Jones (Migration)

[2018] AATA 4830

Jones (Migration) [2018] AATA 4830 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shelley Jones

CASE NUMBER:  1804772

HOME AFFAIRS REFERENCE(S):           BCC2017/4066125

MEMBER:Mr S Norman

DATE:5 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 05 October 2018 at 9:50am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UO) – Subclass 457 (Temporary Work Skilled) – spouse or de facto of the primary applicant – relationship ceased – intention to apply for an alternative visa – decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that the decision to grant the visa was based wholly or partly on circumstances that no longer exist. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 11 September 2019 (being the day before the first scheduled hearing), the applicant telephoned the Tribunal and requested the hearing be re-scheduled. She said she was ‘not feeling well’ and was proposing to attend a doctor in the afternoon of 11 September 2018. The applicant was then advised she should lodge the request to reschedule the hearing in writing, and also a doctor’s certificate with the Tribunal.

4. Given the applicant had also conceded she wished to be allowed time to apply for an alternative visa in Australia, by letter of 13 September 2018 the Tribunal notified the applicant it had dismissed the application, and that she could contact the Tribunal by 27 September 2018, if she wished the Tribunal to re-instate the review application. By email of 19 September 2018,[1] the applicant said she had attended her treating psychiatrist on 12 September 2018, that she could not attend the first scheduled hearing, and she wished to ‘arrange a new date for the Tribunal when she is feeling a bit better’. Her treating psychiatrist report dated 12 September 2018,[2] stated the applicant ‘became too anxious and was unable to attend’ the first scheduled hearing. On 19 September 2018, the Tribunal re-instated the review application.

   [1] Tribunal – folio 47.

   [2] Tribunal – folio 46.

5. As the Tribunal had provided the applicant with the prescribed period of time in the first hearing invitation, after having re-instated her review, the Tribunal scheduled a further hearing for 4 October 2018.  

6. The applicant appeared before the Tribunal on 4 October 2018 to give evidence and present arguments.

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. 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) of the Act. 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?

9. 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.

10. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 3 November 2015. That visa was granted to her on the basis (amongst other things) that she met the secondary criteria for the grant of the visa (reg.1.12), as she was a member of the family unit of David Roger Chadwick (the primary applicant). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 18 January 2018, the applicant was advised that it appeared she was no longer a member of Mr Chadwick’s family unit. In the NOICC letter, the applicant was referred to reg.1.12. She was also advised that to continue to be a member of Mr Chadwick’s family unit she would need to continue to be either a spouse or de facto partner as defined in s.5F (Spouse) and s.5CB (De facto partner) of the Act.

11. The applicant was then advised that as the relationship between herself and Mr Chadwick had ceased, she had ceased to be either his spouse or de facto partner as defined in the Act. She was therefore no longer a member of his family unit as prescribed in r.1.12 of the Migration Regulations. She was also advised that her visa may be cancelled under s.116(1)(a) of the Act.

12. The delegate noted the applicant responded to the Department NOICC letter. However, she did not dispute she had ceased a relationship with Mr Chadwick and that grounds may exist for the cancellation of her visa. On 20 February 2018, the delegate then cancelled the applicant’s visa pursuant to s.116(1)(a) of the Act.

13. At the Tribunal hearing, the applicant conceded that her relationship with David Roger Chadwick had ceased and had not been re-commenced.  Therefore, the Tribunal is satisfied the applicant had ceased to be either a spouse or de facto partner of the primary applicant.

14. For these reasons, the Tribunal is satisfied the ground for cancellation of the visa in s.116(1)(a) of the Act, 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

15. 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’.

16. At hearing, the applicant said she travelled to Australia on a Working Holiday visa, arriving around September 2011 (and then working near Broome WA). She then held a Student visa before being granted the Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 3 November 2015, as a secondary applicant. However, the information before the Department included that the relationship between the applicant and Mr Chadwick had ceased “since at least 23 October 2017” (something the applicant conceded at hearing). Therefore the applicant is no longer a member of the family unit of Mr Chadwick. The delegate noted the applicant had advised that it was her intention to apply for an alternative visa to remain in Australia. This was one reason that satisfied the delegate (and now the Tribunal) that the applicant’s purpose for remaining in Australia was no longer consistent with the purpose for which her Temporary Business Entry visa was granted.

17. The Tribunal notes the applicant had ceased her relationship with Mr Chadwick, and is therefore not a member of his family unit - since around 23 October 2017.

18. Next, in her response to the NOICC letter, the applicant claimed she would suffer “undue personal hardship” if her visa was cancelled. She said she had established herself in Australia and she would be ‘impacted by adverse circumstances of a personal and professional nature’ if she was required to depart. When discussed at hearing, the applicant said she had travelled to Australia when she was 28 years old and had resided here for the last seven years. Though she had studied in Australia, she had trained as a nurses aid in Ireland, and in that capacity she had been employed full time at St Vincent Private Hospital for the last 2 ½ years. She also said (words to the effect) the hospital may be prepared to sponsor her for an alternate visa. She also said she had been advised by a migration agent that she may have to return to Ireland in order to apply for another visa to Australia while ‘offshore’.

19. In her response to the NOICC letter, the applicant acknowledged that her relationship with Mr Chadwick had ceased, but she requested that she be allowed time to apply for an alternative visa. However, and though the Tribunal accepts the applicant may hope to apply for an alternative visa, without more, I am not satisfied it should prevent the Tribunal from exercising its discretion to cancel the visa in this case.

20. Next, the applicant explained that both her parents reside in her home region of Tipperary in Ireland (her father works in the construction industry); and one brother also resides in the Tipperary region (and he also works in the construction industry). She also said she did not maintain contact with friends in Tipperary and did not have a wide support network there. However when asked, she said that if her visa was cancelled she would have to return to Tipperary to reside with her mother while she was re-establishing herself there, and she believed her return to Ireland would (words to the effect) constitute a hardship for her. The Tribunal accepts the applicant would have to reside with her mother in Tipperary while re-establishing herself there, if her visa is cancelled.

21. The applicant also explained that she suffered with inter alia anxiety and that she had been treated by a medical practitioner in Australia. When then asked, the applicant agreed she would be able to access similar medical treatment in Ireland, and the Tribunal accepts this to be correct.

22. The applicant also said she may be unemployed if forced to return to Ireland. However, the applicant has had work experience in Australia, which the Tribunal believes should assist her in obtaining work in Ireland. Further, at hearing and when asked what work she had performed in Ireland prior to travelling to Australia (when she was 28 years old), the applicant said she had been employed in ‘hospitality’; and the Tribunal accepts this to be correct 

23. That being said, the Tribunal accepts the applicant or her family may suffer some limited hardship if her visa is cancelled. She may also be subject to detention under s.189 and removal under s.198 of the Act. However, she could retain (temporarily) her Bridging visa and remain in the Australian community in order to finalise her affairs prior to departure. Based on the evidence before it, the Tribunal is not satisfied the applicant would be subject to indefinite detention.

24. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

25. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 of the Act, and she would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she could not be granted a temporary visa for three years from the date of cancellation.

26. The Tribunal accepts the applicant has resided in Australia for around seven years and would prefer to remain in Australia. However, after having considered all the evidence and without more, I am not satisfied the limited hardship she may suffer if her visa is cancelled, should prevent the Tribunal from exercising the discretion to cancel the visa in this case.

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

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Mr S Norman
    Member