Gurung (Migration)

[2021] AATA 3544

Gurung (Migration) [2021] AATA 3544 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rukh Bahadur Gurung

CASE NUMBER:  2101478

HOME AFFAIRS REFERENCE(S):          BCC2020/2613045

MEMBER:Kira Raif

DATE:18 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 18 August 2021 at 3:25pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant gave incorrect answers on the application form – applicant ceased to be the spouse of primary applicant – he was no longer a member of her family unit – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 1.12, Schedule 2, cl 485.311

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted the Temporary Graduate visa on 21 February 2019. In November 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response and his visa was cancelled on 2 February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 August 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 25 December 2018 Ms Manju Lama made an application for the Temporary Graduate visa and listed the applicant as a spouse and a member of her family unit. Ms Lama and the applicant were granted the Temporary Graduate visas on 21 February 2019.

9. The primary decision record indicates that an application for divorce was lodged with the Federal Circuit Court in Sydney on 18 July 2019 and was served upon the applicant on 23 July 2019. In that application it is stated that the applicant and Ms Lama separated on 7 July 2018 and at that date, both parties indicated that they regarded the marriage to be over. The divorce application indicates that since the date of the separation, the parties had not lived together as a married couple and both indicated that they did not think it likely that they would live together again as a married couple. The delegate concluded that the applicant ceased to be the spouse of Ms Lama at the time of separation on 7 July 2018 and he was no longer a member of her family unit from that time.

10. In his response to the NOICC the applicant states that there were fights in their relationship, which exist in every marriage, but he thought the separation was temporary and did not believe the marriage to be over. He thought his partner would come back and the relationship would resume and they both believed they might get back together. The applicant states that he did not provide incorrect information in the visa application. In oral evidence to the Tribunal the applicant gave the same evidence. The applicant states that divorce is significant in their culture and they had spent several years together and he hoped that his wife would come back. His family also wanted the relationship to continue. The applicant states that emotionally he was trying to convince his wife to come back to him. The applicant claims that by the time the application for the Skilled visa was made, they were still together.

11. The Tribunal does not accept the applicant’s evidence. Firstly, the information the applicant provided in the NOICC and to the Tribunal contradicts the information that was provided in the application for divorce. The primary decision record outlines specific questions and answers the applicant and his former partner provided in the divorce application and both indicated that they believed the marriage to be over by the date of the separation in July 2018, that they did not think they would reconcile and that they had not lived together as husband and wife since the separation. In the Tribunal’s view, these claims contradict the applicant’s evidence that they considered there was a possibility of reconciliation. Secondly, the Tribunal is of the view that the very fact that an application for divorce was made indicates that the parties believed the marriage to be over. If they thought there was mere fighting, a temporary separation and a possibility of reconciliation, there was no reason for the application for divorce to be made, the applicant and his partner could have simply lived separately until they were ready to live together again. The Tribunal considers the fact that an application for divorce was made to be strong evidence that the relationship was over when they claimed it was over, and was perceived by both the applicant and his then partner as having ended at the time of the separation. Thirdly, and in the Tribunal’s view, fatally to the applicant’s claims, the applicant presented no evidence from his former partner to support what he now claims. Even if the applicant did have the desire to reconcile, there is nothing to suggest that  Ms Lama held the same views and that she perceived the relationship as being ongoing. The Tribunal considers that the applicant’s own perceptions (or claimed perceptions) about the relationship are insufficient to establish the existence of a relationship. There is no evidence from Ms Lama to indicate that she considered herself to be in a spousal or de facto relationship with the applicant after July 2018 (the date of separation stated in the divorce application), that she did not believe the separation to be permanent and that she contemplated reconciliation. In the absence of that evidence from Ms Lama, the Tribunal is not satisfied there remained mutual commitment to the relationship after July 2018. The Tribunal does not consider the applicant’s own evidence about the relationship being ongoing to be sufficient to show mutual commitment to the relationship, which is an integral part of a spousal relationship. Thus, the Tribunal does not accept that after July 2018 the applicant continued to be the spouse or de facto partner of the primary visa applicant, Ms Lama.

12. The Tribunal finds that the applicant’s relationship with Ms Lama ended when the couple indicated on their divorce application that they had separated, in July 2018. The Tribunal finds that from that time the applicant was no longer the spouse of the primary visa applicant, Ms Lama and not a member of her family unit. The Tribunal finds that the applicant gave incorrect answers on the application form when he claimed to be the spouse of Ms Lama. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act. The Tribunal finds there was non-compliance in the way described in the Notice.

    Should the visa be cancelled?

13. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

15. The correct information is that the applicant was no longer the spouse (and no evidence that he was a de facto partner) and not a member of the family unit of the primary visa applicant when the application for the Skilled visa was made. The applicant claims in his evidence to the Tribunal that they had some fights or some quarrels and the relationship was ongoing but for the reasons stated above, the Tribunal has formed the view that the relationship was over by July 2018 and the breakdown was much more serious than ‘a few quarrels’ as the applicant suggests.

    The content of the genuine document (if any)

16. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

17. The applicant sought to meet the visa requirements on the basis of being a member of the family unit of the primary visa applicant, his spouse. He did not claim to meet the primary criteria for visa grant and confirmed in his oral evidence to the Tribunal that he did not meet the key primary criteria for vias grant. To be considered as a member of the family unit, within the meaning of r. 1.12 and for the purpose of cl. 485.311, the applicant had to establish that he was the partner of the primary visa applicant and there is no suggestion that he would have met any of the alternative definitions of the term ‘member of the family unit’.

18. Thus, the decision to grant the visa was based on a determination that the applicant was the spouse and a member of the family unit of the primary visa applicant. If the correct information was known that the applicant was no longer the spouse of the primary visa applicant, the applicant may not have been able to meet cl. 485.311. The Tribunal finds that the decision to grant the visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

19. The applicant claims that his relationship with his partner continued at the time the application for the Skilled visa was made but for the reasons stated above, the Tribunal does not accept that evidence. The Tribunal has formed the view that the applicant had not been truthful when claiming he was in a relationship and a member of the family unit of his partner.

    The present circumstances of the visa holder

20. The applicant told the Tribunal that he is in the process of completing an English course and intends to undertake a hospitality course. He has made an application for the Student visa, which is pending. The Tribunal is mindful that  the processing of that application would be unaffected by the present review.

21. The applicant told the Tribunal that he has been working in the industry for a few years and wants to add to his knowledge before he returns to his home country. The Tribunal acknowledges that the applicant has been living in Australia for a few years and has formed employment and social links with Australia.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

22. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

23. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

24. The application was made in December 2018 and a little over two and a half years passed since the non-compliance. The Tribunal does not consider this to be a significant period of time.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

25. There are no known breaches of the law.

    Any contribution made by the holder to the community.

26. The applicant told the Tribunal that he has been working and paying taxes and has not done anything harmful. The Tribunal accepts that the applicant has contributed to the community through employment.

27. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140

28. There are no persons subject to the consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

29. There are no children who would be affected by the cancellation of the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

30. The applicant does not claim, and there is no evidence that he would be subjected to any form of harm or persecution. The applicant does not claim that Australia’s non-refoulement obligations arise in this case. The Tribunal finds that the cancellation of the visa would not result in the breach of Australia’s non-refoulement obligations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

31. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

32. In his response to the NOICC the applicant states that now that the relationship has ended, he decided to study English in Australia so as to improve his opportunities upon return to Nepal and he has made an application for a Student visa. The applicant told the Tribunal that he intends to study hospitality and wants an opportunity to do that in Australia and if his visa is cancelled, he cannot study in Australia.

33. The Tribunal acknowledges that evidence but notes the applicant’s evidence that he has already made an application for the Student visa. That application would be processed irrespective of the outcome of the present review. Thus, the Tribunal does not consider that  the cancellation of the applicant’s Skilled visa would have adverse consequences in relation to his Student visa application and his ability to study in Australia, if granted the Student visa. The Tribunal also notes the information in the primary decision, which the applicant confirmed in oral evidence, that the Skilled visa would have already expired earlier in 2021, so that the reinstatement of that visa would not enable the applicant to remain and study in Australia. In these circumstances, the Tribunal does not consider that hardship would be caused by the cancellation of the visa.

34. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had completed the application form in a way that incorrect answers were given or provided and that there are grounds for cancelling the visa under s. 101 of the Act. The Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information. Essentially, the applicant did not meet the primary criteria for visa grant and would not have met the secondary criteria if it was known that he was no longer the spouse of the primary visa applicant. In the Tribunal’s view, that weighs very heavily in favour of the cancellation.

35. The Tribunal has formed the view that the cancellation of the visa would not result in the breach of Australia’s non-refoulement obligations and would not affect the best interests of any children. The Tribunal is of the view that an insignificant period of time has passed since the non-compliance, although the Tribunal accepts that the applicant has been living in Australia and has formed social and employment links in this country. He has also made a contribution to the community. The Tribunal places weight on the fact that the applicant has an application for a Student visa that has not been finally determined and which, if granted, would enable the applicant to pursue his goal of completing study in Australia. The primary decision record also indicates that the applicant’s Skilled visa would have already expired, so the reinstatement of the visa would not enable the applicant to remain in Australia and to study in Australia and another visa is required for this purpose. In these circumstances, the Tribunal does not consider that the cancellation of the visa would cause hardship to the applicant or his family.

36. Overall, the Tribunal places greatest weight on the fact that the decision to grant the visa was based on incorrect information and that if the correct information was known, the applicant may not have met the requirements for the grant of the visa. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif
    Senior Member