HENG (Migration)

[2017] AATA 356

HENG (Migration) [2017] AATA 356 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sitouch HENG

CASE NUMBER:  1602339

DIBP REFERENCE(S):  BCC2016/644852

MEMBER:Stavros Georgiadis

DATE:6 March 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to cancel the visa.

Statement made on 06 March 2017 at 5:34pm

CATCHWORDS

Migration – Cancellation – Partner (Temporary) (Class TU) visa – Subclass 820 Partner (Spouse) (Class UK) – s 137 – Husband’s permanent visa cancelled – Consequential cancellation – Degree of integration into the Australian community – Husband had departed from role of Buddhist Monk – Teaching language and culture to the Khmer community

LEGISLATION

Migration Act 1958, ss 48, 101, 103, 137, 140(1)

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 Immigration on 15 February 2016 to cancel the applicant’s Subclass 820 Partner (Spouse) (Class UK) visa under s.137 and s.140 (Consequential) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that Mrs Heng was granted a Partner (Subclass 820) visa because her husband, Mr Sophac Kien, had been granted a Regional Sponsored Migration Scheme (Class AN119) visa as a religious worker (Buddhist Monk). However, Mr Kien’s visa was subsequently cancelled on 15 February 2016 and therefore the applicant's visa was subject to consequential cancellation under section 140(2) of the Act.

3. The issue in the present case is whether the ground for cancellation of the applicant’s visa is made out, and if so, whether the visa should be cancelled.

4. Mr Kien's visa cancellation was reviewed by the Tribunal in the related matter number 1601868 and as acknowledged by the applicant at the hearing, the outcome of this review in terms of potential consequential loss of her visa, is conditional on that outcome.

5. The applicant appeared before the Tribunal on 7 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kien, who provided evidence in the related matter above in respect of cancellation of his Regional Sponsored Migration Scheme (Class AN119) visa with the Khmer Krom Buddhist Monastery SA Inc. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The delegate of the Minister cancelled Mr Kien’s visa on the basis that he had not complied with ss.101 and 103 of the Act relating to a bogus document and incorrect information provided in respect of his visa application.

9. The applicant in this case held her Partner (Temporary) Class UK (Spouse) (Subclass 820) visa only because her spouse held a Regional Sponsored Migration Scheme (AN 119) visa.

10. Subsection 140(2) of the Migration Act states that where a person’s visa is cancelled under s140 of the Act (Consequential) loss of the visa and another person holds a visa only because the person whose visa is cancelled held a visa, then the Minister may cancel the other person’s visa without notice. That is what occurred in this case.

11. On 27 February 2017 the Tribunal made a decision to affirm the decision to cancel Mr Kien’s Subclass 119 (Regional Sponsored Migration Scheme) visa. In making that decision the Tribunal considered the relevant circumstances discussed in its statement of decision and reasons, and concluded on balance, that the visa should be cancelled and therefore did not exercise the discretion to not cancel Mr Kien's visa. It follows that the visa applicant's subclass 820 (Spouse) visa is subject to consequential cancellation under section 140(2) of the Act.

12. The Tribunal has considered whether the grounds for cancelling the applicant’s visa outweigh the grounds for not cancelling the visa. The Tribunal has had regard to the submissions made on behalf of the applicant and her husband of status as an Australian permanent resident who applied for citizenship in 2015. The Tribunal accepts and gives some weight to the fact that the applicant’s husband has resided in Australia since April 2009 and that the visa applicant, having lived in Australia with her husband since arriving in March 2014 has integrated somewhat into the local community and would like to start a family in Australia.

13. In considering any element of hardship in the consequential cancellation of the applicant’s visa, the Tribunal acknowledges that she has been a source of support to her husband who has departed from the role of Buddhist Monk having married the visa applicant.  The Tribunal has had regard to any effect on children under 18 years of age in Australia or subject to Australian jurisdiction and is satisfied that there is no evidence the cancellation of the applicant’s visa will adversely affect any children under the age of 18 years.  In this regard the Tribunal acknowledges the submission of the applicants’ contribution to their local community as teachers of language and culture to members of the Khmer community including local children.  The Tribunal considers this work may be continued by the numerous others (Monks, former Monks and relevant partners and others) in their community. There is no evidence that any other family member will be adversely affected.

14. The Tribunal has had regard to any effect of cancellation on the principle of refoulement - that is, whether as a result of the cancellation a person may be returned to a country where they face persecution; death; torture; or cruel, inhuman or degrading treatment or punishment. There is nothing before the Tribunal to suggest that the applicant and/or her spouse cannot return to Cambodia to live.  Indeed they have lived there for a number of years prior to travel and stay in Australia and are accustomed to Cambodian culture and way of life. The Tribunal notes that the applicant’s husband has made a number of return trips since arriving in 2009 and also that she and her husband speak Khmer fluently. 

15. The Tribunal accepts that there are no relevant international agreements that would be breached as a result of the visa cancellation.  The Tribunal is satisfied that the removal of the applicant and/or her husband would not be in breach of Australia’s non-refoulement obligations.

16. The applicant’s submission is that even if the Tribunal (or further appeal) sets aside and reinstates her husband’s visa, her visa will remain cancelled. In circumstances of the former visa holder becoming an unlawful non-citizen, the Tribunal acknowledges that this would render her liable to be detained and removed from Australia and enliven s.48 of the Act to limit the types of visas the former holder could then apply for. However, the Tribunal considers that in the absence of any breach of Australia’s refoulement obligations, it is not unreasonable for a person to be subject to administrative sanctions which have resulted (ultimately) from a consequential loss of the visa stemming from breaches of ss.101 and 103 of the Act in respect of a bogus document and incorrect information provided as part of her spouse’s visa application.

17. Whilst the visa holder would be liable to immigration detention in circumstances of the visa cancellation, this can be avoided by applying for a visa permitted to apply for (such as a Bringing E Visa) or by leaving Australia.

18. Having regard to the relevant circumstances discussed the Tribunal finds that the visa applicant's subclass 820 (Spouse) visa is subject to consequential cancellation under section 140(2) of the Act and considers, on balance, that it should be cancelled.

    DECISION

19. The Tribunal affirms the decision under review to cancel the visa.

    Stavros Georgiadis
    Member