Gurung (Migration)

[2024] AATA 2970

Gurung (Migration) [2024] AATA 2970 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rekha Gurung

REPRESENTATIVE:  Mr Ramesh Raj Sharma (MARN: 1796989)

CASE NUMBER:  2408825

HOME AFFAIRS REFERENCE(S):          BCC2023/7172185

MEMBER:Kira Raif

DATE:6 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 06 August 2024 at 11:45am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – parties divorced in Australia – applicant planning to study – best interests of the children – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 116, 140

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 15 April 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in January 1996. She was granted the Temporary Graduate visa in December 2022. In March 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be a ground for cancelling the visa under s. 116(1)(a) of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review.

4. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(a). A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

6. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. The applicant confirmed in oral evidence to the Tribunal that she was granted the visa on the basis of her relationship with her husband, stating that he was the main application and she was included in her husband’s application. The applicant confirmed in her evidence to the Tribunal that she is no longer in a relationship with her husband and that they are now divorced.

8. The applicant submitted to the Department the Notification of Changes in Circumstances signed by herself and her former husband, confirming that  their relationship ended. The applicant also included a copy of the divorce order dated September 2023.

9. Having regard to the divorce certificate and the applicant’s own evidence, the Tribunal finds that the applicant is no longer a spouse or de facto partner of her husband. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’. The Tribunal finds that the applicant is no longer a member of the family unit of her husband. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of her being a member of the family unit of her spouse and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(a) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with her partner. However, the applicant confirms that the relationship is no longer in existence. The applicant is no longer in a spousal relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of her travel to Australia because she is no longer in a relationship with the primary visa holder.

13. The applicant told the Tribunal that initially she planned to apply for a Student visa and study English, as she has nothing to go back to in Nepal but she was told that the rules have now changed and she can no longer apply for the Student visa onshore. The applicant has not identified any other option that would enable her to remain in Australia beyond the original period of validity of her Skilled visa in December 2024.

14. The applicant has not identified any compelling need for her to remain in Australia.

    The extent of compliance with visa conditions

15. There is no evidence of any non-compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

16. In her response to the NOICC the applicant stated that she intends to apply for a Student visa and if her visa is cancelled, she will not be able to do so. The applicant told the Tribunal that due to the changes in the immigration rules, she was informed that she can no longer apply for the Student visa onshore.

17. The applicant told the Tribunal that she has nothing to go back to in Nepal and wants to remain in Australia for a few more years. The applicant states that it would be difficult for her to live in Nepal as a divorced woman. However, the Tribunal notes that the applicant’s Skilled visa would have expired in December 2024, if it was not cancelled. The applicant has not identified any options available to her to extend her stay in Australia, despite saying that she wants to stay in Australia. She also told the Tribunal that a Student visa application would have to be made offshore. That is, it would appear that the applicant may have to leave Australia and return to Nepal, whether permanently or to make another visa application. The Tribunal does not consider that in the circumstances, the cancellation of the visa would cause hardship to the applicant, noting that  there is not a significant amount of time before her visa would have expired, necessitating the applicant’s departure from Australia.

18. The applicant states that she was planning to study before her visa was cancelled and she cannot do that on the bridging visa. The applicant also told the Tribunal that she has not made an application to the Department to change the conditions on her Bridging visa to enable her to study. The applicant’s lack of any action to take steps to enable her study does not support the applicant’s claims that she genuinely intended to study in Australia until December 2024 when her visa would have expired. The applicant also confirmed that from July 2024 she was no longer able to apply for a Student visa as a holder of the Subclass 485 visa. In the circumstances, the Tribunal does not accept that inability to study in Australia constitutes hardship to the applicant.

19. The applicant has not identified any other hardship.

20. The Tribunal acknowledges that if the applicant’s visa is cancelled, she may be subject to an exclusion period in relation to future visa applications. While the applicant has identified a desire to study in Australia, she has not provided evidence of having made any arrangements to secure a place with an education provider, or to have taken any other steps to ensure she is able to study in Australia. The Tribunal is not convinced that the applicant genuinely intends to study in Australia beyond December 2024. However, if she does, the Tribunal is mindful that there is a provision to waive the exclusion period in certain circumstances.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

21. The ground for cancellation arises because the applicant was granted the visa as a secondary applicant, being a member of the family unit and the spouse of the primary visa applicant. The applicant’s relationship with the primary visa applicant had ceased.

22. In her submission to the delegate the applicant states that she divorced her husband due to his extra-marital affair. The applicant told the Tribunal that she did not want to divorce, as they have two children, but it was her husband who wanted to divorce and their families were against it and blame her. The applicant told the Tribunal that they separated in late 2021 before her visa was granted but they were not formally divorced and they thought they would both apply for the permanent visa. The applicant does not claim that she had experienced family violence.

    Past and present behaviour of the visa holder towards the department

23. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

24. There are no persons whose visas would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely and the applicant’s evidence is that she has been granted a Bridging visa. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she would be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant will be unable to apply for a Student visa onshore if her visa remains cancelled but she told the Tribunal that due to the change in immigration rules, she is no longer able to apply for a Student visa onshore irrespective of the cancellation .

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

26. The applicant told the Tribunal that she has two children in Nepal. They live with their father’s family and she claims she would not be able to live with her children even if she returns to Nepal.

27. As noted above, the applicant’s visa would have expired in December 2024 and the applicant has not identified any opportunities that would enable her to remain in Australia. That is, it appears that the applicant would have to return to Nepal, either now as a result of the cancellation of her visa, or after December 2024 due to the expiry of her visa. The applicant told the Tribunal that if she was able to study in Australia, she planned to bring her children to Australia but she also explained that she cannot apply for the Student visa in Australia. In the circumstances, the Tribunal does not see any practical difference to whether the applicant’s visa expires or is cancelled insofar as the children’s interests are concerned. That is, the Tribunal does not consider that the best interests of the children would be adversely affected by the cancellation of the applicant’s visa.

28. With respect to non-refoulement obligations, the applicant told the Tribunal that there would be no risk to her if she was to return to Nepal but she said that the family will not listen to her. The Tribunal does not consider that this gives rise to Australia’s non-refoulement obligations.

29. The applicant does not have any immediate family in Australia, noting that she is now divorced from her husband.

30. The Tribunal finds that  Australia’s international obligations will not be breached as a result of the cancellation.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. The visa in question is not a permanent visa.

    Any other relevant matters

32. The applicant has not raised any other matter.

33. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa as the decision to grant the visa was based on a circumstance that no longer exists. The Tribunal accepts that some hardship may be caused by the cancellation, most notably due to the fact that the applicant will not be able to engage in study until the expiry of her visa in December 2024 and because there will be an exclusion period in relation to some future visa applications but the Tribunal does not consider the hardship to be significant, as the Tribunal is not convinced that the applicant genuinely intended to study in the circumstances where she can no longer apply for a Student visa onshore and has not identified any other visa options. While the applicant refers to her desire to remain in Australia, she has not been able to explain what visa she could apply for and, without another visa being granted, she would have been required to leave Australia upon the expiry of her visa in December 2024.

34. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. The Tribunal finds that there is no compelling need for the applicant to remain in Australia. The applicant is not fulfilling the purpose of her visa.

35. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member