Jaiswal (Migration)

[2022] AATA 2902

Jaiswal (Migration) [2022] AATA 2902 (28 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pooja Jaiswal

REPRESENTATIVE:  Mr Harjeet Singh (MARN: 1679096)

CASE NUMBER:  2105190

HOME AFFAIRS REFERENCE(S):          BCC2020/2322919

MEMBER:Kira Raif

DATE:28 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 28 July 2022 at 3:06pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – grant of visa based on circumstance which no longer exists – secondary applicant as member of partner’s family unit – relationship ceased and claim of family violence – employment in critical sector in regional area and intention to apply for own visa – lack of employment opportunities in home country and late claim of fear of harm from ex-husband’s family – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(a)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 21 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in July 1994. She was granted the Skilled visa in July 2019. In December 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the decision to grant the visa was based on a circumstance which no longer existed. The applicant provided her response to the NOICC and her visa was cancelled in April 2021. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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?

6. 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 secondary applicant and a member of the family unit of Mr Raju Jaiswal. The primary decision record refers to the information before the Department, which indicates that the applicant is no longer in a relationship with Mr Jaiswal.

7. In her response to the NOICC and evidence to the Tribunal the applicant agrees that her relationship with Mr Jaiswal had broken down, claiming that she was subjected to family violence.

8. The Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr Jaiswal. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ when she was granted the visa. The Tribunal finds that the applicant is no longer a member of the family unit of Mr Jaiswal. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of the applicant 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.

9. 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

10. 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

11. 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. The applicant told the Tribunal that she travelled to Australia to be with her husband and was totally dependent on him. However, the applicant confirms that the relationship is no longer in existence. The applicant is no longer in a spousal or de facto relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of the visa granted on the basis of the applicant being a secondary applicant because she is no longer in a relationship with the primary visa holder.

12. The applicant submits in her submissions to the delegate that she has maintained employment in a regional area and would meet the requirements for making the application for a permanent Skilled visa. In her post-hearing submission to the Tribunal the applicant confirms her intention to apply for the permanent skilled visa. The Tribunal acknowledges that if the applicant is able to apply for a permanent Skilled visa in the future, she may be precluded from doing so in Australia if her visa is cancelled.

13. The applicant claims she cannot return to Nepal and states that she would be subjected to harm if she was to return to Nepal due to her personal circumstances and also that she would be unable to find employment. These claims are addressed more fully below. Importantly, in the Tribunal’s view, the visa in question is a temporary visa only which does not permit the applicant to remain in Australia permanently and the present visa implies that she would have to return to her home country, unless she is granted another visa. In these circumstances, the Tribunal does not consider it persuasive that the applicant cannot return to Nepal. The Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

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

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

15. In her submission to the delegate the applicant refers to her employment in a critical area of aged care. The applicant states that she has been living and working in a regional area and would meet the requirements to make an application for a permanent visa. The Tribunal accepts that if the applicant’s visa is cancelled, she may not be able to make the application for the permanent visa onshore.

16. The applicant told the Tribunal that her parents are dependent on her brothers and she does not want to be dependent on her family members. The Tribunal accepts that evidence. The applicant states that it would be better for her physically and emotionally if she is able to remain in Australia.

17. The applicant refers to the stigma and embarrassment she would experience upon return to Nepal, particularly as a result of her divorce. She told the Tribunal that she was not able to complete her study and does not want to be a burden on her parents. As noted above, the Tribunal’s concern with that evidence is that the visa which the applicant held would require her to return to Nepal upon its expiry and the applicant cannot have an expectation that she would be granted another visa to remain in Australia permanently. The Tribunal is not convinced that the hardship that would be caused by the cancellation of the visa would be significantly different or more severe to the hardship that the applicant would experience upon departure, if she awaits the expiry of her visa.

18. The applicant states that it would be very difficult for her to live in Nepal and it would be ‘torture’ as her parents’ home is close to her parents in law and the society will not accept her. Even if all of this was true, as noted above, the visa in question does not allow the applicant to remain in Australia and avoid that hardship. In the circumstances where the visa in question will require the applicant to leave Australia, the Tribunal does not place weight on the applicant’s evidence that, for whatever reason, she is unable and unwilling to return to Nepal.

19. The applicant refers to the length of time she has lived in Australia, her completion of a course and employment in a critical sector of an aged care. The Tribunal accepts that evidence.

20. The applicant states that she is not ‘well educated’ and it would be difficult for her to find employment in Nepal. Putting aside the fact that the temporary visa in question here would not allow the applicant to remain in Australia, the Tribunal notes that the applicant presented no evidence to support her assertion. There is no probative evidence before the Tribunal to indicate that only those with a particular type or level of education are able to find employment in Nepal. There is no evidence that the applicant had attempted to find employment in Nepal and was unable to. The Tribunal does not accept the applicant’s evidence that she would not be able to find employment in Nepal.

    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 told the Tribunal that she had a genuine marriage with her husband. The applicant’s relationship with the primary visa applicant had ceased.

22. The applicant claims that she has been subjected to family violence, and these were factors beyond her control, and the applicant claims that in these circumstances, her visa should not be cancelled. In her response to the NOICC the applicant states that her marriage was arranged by her mother when she was very young and she remained dependent on her husband.

23. The applicant refers to mental and emotional stress due to the family violence. The applicant provided to the Tribunal her hospital admission record, evidence of her communication with her family in Nepal, a statement from her brother, photographs of what she claims to be her injuries (the Tribunal has no means of determining how these occurred) and other material to support her claim. The Tribunal is prepared to accept, on the basis of presented evidence that at least some of the circumstances described by the applicant did occur. That is, the Tribunal is prepared to accept, for the purpose of this review only, that the applicant may have been subjected to family violence during her marriage. The Tribunal is prepared to accept that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

24. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

25. 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

26. 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 and removed from Australia. The applicant 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 due to the operation of s. 48 of the Act.

    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

27. The applicant refers to hardship she would experience upon return to Nepal, and the social stigma due to her divorce. She refers to having to experience ‘torture’ from family and society. She states that her husband’s parents had already threatened her family and demanded that she should return home or that police complaints would be made. The Tribunal found the applicant’s claims to be very vague and is mindful that many of her claims have been made only recently (there is only a recent mention of her parents receiving complaints from her husband’s family.) Notably, and problematically in the Tribunal’s view, the applicant’s claims are unsupported by any probative documentary evidence. In the Tribunal’s view, if the applicant’s family had received threats from her husband’s family, or if police complaints were made, there would be documentary evidence of such threats or complaints. The applicant states that she was only informed of the threats recently and she was unaware she had to provide evidence but the Tribunal does not accept that to be the case, as the applicant was put on notice of discretionary considerations at the time NOICC was issued and having read the delegate’s decision. Given the recency of some of the claims made by the applicant and lack of supporting evidence, the Tribunal is not prepared to accept the applicant’s claims that she would experience harm or discrimination if she was to return to Nepal.

28. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia if she believes she would be subjected to harm in Nepal. The applicant told the Tribunal that she has not thought about making an application for a protection visa and that she has no support and no advice in Australia. The Tribunal does not accept to be the case, as the applicant is assisted by a migration agent. Again, the Tribunal is of the view that if the applicant’s claims were true, she would have discussed these options with her representative or sought advice.

29. In these circumstances, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

30. The applicant has no family in Australia and the family unity obligations would not be breached by the cancellation. There are no children who would be affected by 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 a temporary visa.

    Any other relevant matters

32. The applicant refers to the length of her stay in Australia and the hardship that she would experience if she was to return to Nepal, including lack of employment and social stigma and threats. The Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicant.

33. The applicant told the Tribunal that she wants to stay in Australia and ‘do something on her own’ and maybe seek another visa in the future.

34. 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 because her visa was granted on the basis of a circumstance which no longer exists. However, the Tribunal has formed the view that there are strong reasons why the visa should not be cancelled.

35. The Tribunal places significant weight on the circumstances in which the ground for cancellation arose. The applicant’s relationship with her partner ended and the applicant claims she was subjected to family violence. There was no element of fraud or deception as a result of which the ground for cancellation arises. The breakdown of the relationship appears to be a factor beyond the applicant’s control. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant, partly because of the length of time she has spent in Australia and, most significantly, because it would preclude her being able to seek another visa in Australia. The applicant’s evidence to the Tribunal is that she has been living and working in regional Australia in the hope of qualifying for a permanent visa. If the applicant’s visa is cancelled, she would be precluded from seeking a permanent visa in Australia, while retaining the present visa would enable the applicant to seek another visa for which she appears to qualify. In her submission to the Tribunal of 27 July 2022 the applicant provided evidence of how she would qualify to apply for a permanent visa if her temporary visa is reinstated.

36. In all the circumstances of this case, the Tribunal has decided that the applicant should not be denied the opportunity of seeking another visa in Australia in the future. The Tribunal accepts that the denial of that  opportunity would cause considerable hardship to the applicant. for these reasons the Tribunal decided that the applicant’s visa should not be cancelled to enable her to seek another visa onshore in the future.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member