Hewa Masmullage (Migration)

[2021] AATA 4288

Hewa Masmullage (Migration) [2021] AATA 4288 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suranga Abeywardene Hewa Masmullage

CASE NUMBER:  2017231

HOME AFFAIRS REFERENCE(S):          BCC2020/1961819

MEMBER:Kira Raif

DATE:12 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2021 at 1:36pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant failed to attend tribunal hearing – ceased to be the spouse of primary applicant – he was no longer a member of her family unit – best interest of the child would not be adversely affected by the cancellation of the applicant’s visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 379, 362

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 25 November 2020 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 (the Act).

2. The applicant is a national of Sri Lanka, born in August 1989. He was granted the Class VC Skilled visa in June 2019. In October 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. On 21 September 2021 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 12 October 2021. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. On 11 October 2021 the Tribunal received advice from the applicant’s representative that the applicant had another appointment booked at the same time and would therefore be unable to attend the Tribunal hearing. The applicant requested that the hearing be postponed. The Tribunal has considered the request but found it utterly inadequate as the applicant failed to explain the nature of another appointment and whether it could be rearranged to another time. The Tribunal decided not to postpone the hearing on the basis of such limited information and wrote to the applicant on the same day, advising that more information was required before a request for hearing postponement would be considered. An officer of the Tribunal also made several attempts to contact the representative to relay the same information, with no success. On 12 October 2021 the Tribunal again wrote to the applicant confirming that the hearing would proceed as scheduled in the absence of the requested information.

5. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal is satisfied that the applicant was aware of the hearing. Importantly, the Tribunal is also satisfied that the applicant was expressly informed that his request for hearing postponement has not been granted, that the Tribunal required further information to consider that request and that in the absence of such information the hearing would proceed as scheduled. The applicant was also informed that if he did not attend the hearing, the Tribunal may proceed to make a decision on the material before it. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

6. 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). 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.

7. 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.

   Does the ground for cancellation exist?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa as a spouse and a member of the family unit of Ms Katugampalage Don. in July 2020 the Department received advice that the applicant’s relationship with Ms Katugampalage Don, who was the primary visa holder, ended in February 2020.

9. In his response to the NOICC the visa applicant states that he and his spouse had some confrontations and family issues that they were trying to work through. The applicant states that even though they live in different states, he believes the relationship is continuing, he provides financial support to Ms Don and they speak on the phone. The visa applicant expressed his commitment to Ms Katugampalage Don and their child. The visa applicant provided evidence of financial transfers and telephone bills.

10. The Tribunal acknowledges the applicant’s evidence but finds it unpersuasive as evidence of an ongoing spousal or de facto relationship. Financial transfers and telephone communication are insufficient to establish the existence of a spousal relationship. There is no evidence before the Tribunal that the couple maintain a joint household, that they share domestic or financial responsibilities, that they continue to represent themselves to others as being in a spousal relationship and plan and undertake joint social activities. Importantly, while the applicant claims he is committed to the relationship and his child, there is no evidence to indicate that Ms Katugampalage Don has any such commitment. A spousal relationship requires a mutual commitment and there is no evidence before the Tribunal that Ms Katugampalage Don has such commitment. The Tribunal is not satisfied on the evidence before it that Ms Katugampalage Don is committed to the relationship and finds that the spousal (or de facto) relationship between the applicant and Ms Katugampalage Don does not exist.

11. The Tribunal finds that the applicant is no longer a spouse or de facto partner of Ms Katugampalage Don. There is no suggestion that the applicant met any of the alternative 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 Ms Katugampalage Don. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of him being a member of the family unit of his 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.

12. 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

13. 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

14. 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 his partner. However, the Tribunal has found 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 his visa because he is no longer in a relationship with the primary visa holder.

15. The applicant refers to the presence of his daughter in Australia. The Tribunal finds that the presence of the applicant’s child in Australia may constitute a compelling need for the applicant to remain in Australia. However, the Tribunal is mindful that the information in the primary decision indicates that the applicant’s visa would have expired in June 2021 and would no longer be in effect, even if the cancellation is to be set aside and so the applicant would not have the right to remain in Australia as a holder of a Skilled visa to be with his child, irrespective of the outcome of this review.

16. The Tribunal also notes that the applicant presented no updated information to the Tribunal concerning his relationship with the child (or indeed, of the child’s presence in Australia). in the absence of any information about the applicant’s relationship with the child, the Tribunal does not consider the child constitutes a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

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

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

18. The applicant presented very little evidence in relation to the hardship that would be caused by the cancellation. The Tribunal acknowledges his evidence in response to the NOICC that  his child lives in Australia and ordinarily, the Tribunal would accept that the cancellation of a vias that may result in separation of a parent and a child may cause hardship. However, in this case, the Tribunal is mindful that irrespective of the outcome of this review, the applicant would not have permission to remain in Australia as his Skilled visa would have already expired. The applicant has not presented evidence to the Tribunal whether he intends to seek other visas.

19. The Tribunal also acknowledges that the applicant has been residing in Australia for a number of years and he may have settled in Australia. Again, these factors must be considered, in the Tribunal’s view, in light of the fact that the applicant would not be a holder of a substantive visa if the cancellation is set aside.

20. On the very limited evidence before it, the Tribunal is not satisfied that hardship would be caused to the applicant by the cancellation of the visa.

    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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

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. There is no evidence that the relationship ended because of family violence.  

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s.140

23. 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

24. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may 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 may also be subject to an exclusion period in relation to future visa applications. The Tribunal accepts that these matters may cause some hardship to the applicant.

    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

25. The applicant has not provided any evidence, and on the limited evidence before it the Tribunal does not accept that Australia’s non-refoulement obligations arise in this case.

26. There is little information before the Tribunal concerning the applicant’s family. His response to the NOICC suggests that  his former partner and child reside in Australia but there is no information before the Tribunal to indicate whether this is still the case. The Tribunal is unaware of the circumstances of any other family members.

27. With respect to the best interests of the applicant’s child, the applicant presented no evidence to the Tribunal concerning his interactions with the child and the nature of any parental support he provides. He provided evidence in response to the NOICC of providing financial support to his former partner (which may include support to the child) but there is little evidence before the Tribunal concerning the present arrangements. On the very limited evidence before it, the Tribunal cannot be satisfied that the applicant does have interactions with the child or that there continues to be a meaningful relationship between them. On the very limited evidence before it, the Tribunal concludes that the best interest of the child would not be adversely affected by the cancellation of the applicant’s visa.

    Any other relevant matters

28. The applicant has not raised other matters.

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found 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 and that there are grounds for cancelling the visa. The applicant presented very little evidence to the Tribunal concerning his present circumstances and on the very limited evidence, the Tribunal cannot reach a conclusion that the cancellation of the visa would cause hardship to the applicant or adversely affect the best interests of his child. There is little information before the Tribunal concerning the applicant‘s present circumstances. The Tribunal places weight on the fact that the applicant can no longer fulfil the purpose of his visa which was granted on the basis of his relationship with his partner, which no longer exists.

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

    DECISION

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

    Kira Raif
    Senior Member