Kamaldeep Singh (Migration)

Case •

[2019] AATA 4919

•

28 October 2019

Kamaldeep Singh (Migration) [2019] AATA 4919 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Kamaldeep Singh

CASE NUMBER:  1804205

HOME AFFAIRS REFERENCE(S):           BCC2017/3549079

MEMBER:Jason Pennell

DATE:28 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 October 2019 at 4.15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – adjournment declined – insufficient medical evidence – non-appearance before the Tribunal – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship ceased – consideration of discretion – degree of hardship – no attempt to regularise visa status – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 116, 426
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 31 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that the applicant no longer meets the definition In the Migration Regulations 1994 of being wither married or de facto relationship with the primary visa holder, and no longer meets the definition of being a member of the same family unit. As such, the key circumstance of being wither married or in a de facto relationship with the primary visa holder who held a student visa that enabled the applicant to meet the requirements for the grant of his visa, 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.By a notice dated 8 October 2019 the applicant was invited to hearing before the Tribunal on 28 October 2019 at 2.30pm to give evidence and present arguments relating to the issues arising in his case. By an email dated 18 October 2019 the applicant sought an adjournment of the hearing on the basis that he was suffering for a medical condition. The applicant provided a medical certificate dated 17 October 2019 advising that the applicant will ‘not be able to attend work/university on/from 18 October 2017 to 30 October 2019.’ The diagnosis /clinical details stated that the applicant was suffering from a groin infection.

4.By a letter dated 18 October 2019 the Tribunal advised that applicant that it had considered his request for the hearing to be postponed but had decided to proceed with the hearing as listed. The Tribunal advised the applicant that for the purposes of adjourning a hearing for medical reasons he was required to provide information about:

·the diagnosis, duration and prognosis of any medical conditions preventing you from participating in the Tribunal hearing;

·the symptoms of the above medical conditions and their impact on your ability to participate in a hearing to give evidence and present arguments about you’re your claim;

·any other reason why an applicant would be unable to attend the hearing on the day listed.

5.Accordingly, the Tribunal advised the applicant that his request for a postponement was refused due to the fact that his medical certificate did not explain how his medical condition would prevent or impact on his ability to participate in the hearing for the purposes of giving evidence and presenting arguments. The applicant was advised that pursuant to s.426 of the Act where an applicant is invited to appear before the Tribunal and fails to do so, it may proceed to make a decision on the application without taking further action to allow the applicant to appear before it.

6.On 28 October 2019 at 11.53 am the Tribunal received a telephone call from a person who stated that she was visiting a friend at Blacktown Hospital in NSW when she had been approached by the applicant to ask her to contact the Tribunal and inform it that he could not attend the hearing as scheduled due to the fact that he was in hospital for a CT scan. As far as the tribunal was aware the person who contacted it was not related to the applicant. The Tribunal did not receive any communication or any other documentation from the applicant confirming that he was in hospital. Accordingly, in circumstances where the applicant was aware of the hearing, was allegedly able to arrange a third party to contact the tribunal on his behalf but failed to personally contact the Tribunal to advise of his circumstances, the Tribunal does not accept that the applicant was in hospital as claimed and as such does not accept that he was unable to attend the scheduled hearing.

7.The applicant failed to appear before the Tribunal on 28 October 2019 at 2.30pm to give evidence and present arguments. Accordingly, the Tribunal has decided to proceed to make a decision on the application without taking any further action to allow the applicant to appear before it.

  1. 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

  1. 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?

s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

  1. 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.

  2. Pursuant to s.116(1)(a) of the Act, subject to subsections (2) and (3), the Minister may cancel a visa if he or she 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 that no longer exists.

  3. The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass573) visa on 27 April 2016. The visa was granted for the purposes of the applicant being able to accompany and remain in Australia temporarily with the primary visa holder, Arita Heer with whom he was in a married relationship. As such the visa was granted on the basis that the applicant met, amongst other criteria, the criteria as prescribed by Regulation 1.12 of the Migration Regulations 1994, as a member of Arita Heer’s family unit.

  4. Regulation 1.12 states as follows

    ‘1.12 Member of the family unit

    (1)For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)     a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e)     a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)does not have a spouse or de facto partner; and

    (ii) is usually resident in the family head‘s household; and

    (iii) is dependent on the family head.

    (2) A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a)     a spouse or de facto partner of the applicant; or

    (b)     a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.

    (2A) A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:

    (a)     a spouse or de facto partner of the holder; or

    (b)     a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18.

    (3) In addition to subregulation (1), a person is a member of the family unit of an applicant for a Contributory Parent (Migrant) (Class CA) visa, being an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, if: (a) the person was a member of the family unit of the applicant, in accordance with subregulation (1), at the time of application for the Contributory Parent (Temporary) (Class UT) visa; and Federal Register of Legislative Instrum….’

  5. To be a member of the family unit of Arita Heer’s as prescribed by Regulation 1.12, the applicant needs to continue to be either the spouse or the de facto partner of Arita Heer’s as defined under s.5F and 5CB of the Act respectively.

  6. On 21 November 2017 the department received a Notification of Changed Circumstances (Form 1022)[1] (NCC) from Arita Heer advising that the applicant’s marriage relationship with Arita Heer had ended. As a result, applicant was notified by the department of its intention to consider cancellation (NOICC) of his visa on 30 November 2017. The applicant was invited to respond to the NOICC.  The applicant did not respond to the NOICC and has not appeared before the tribunal for the purposes of giving evidence or making submission in relation to his review application. As such the tribunal finds that the applicant’s relationship with Arita Heer ended on 21 November 2017.   

    [1] Department file No BCC2017/3549079 @ f.6

  7. On 2 February 2018 the department notified the applicant of its decision to cancel his visa under s.116(1)(a) of the Act on the basis that it was satisfied that the grounds for the particular fact or circumstances for granting the applicants visa no longer the case or no longer exists.

  8. Therefore, based on the NCC received by the department from Arita Heer, 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

  1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The applicant did not respond to the NOICC or appear before the tribunal at the time and date listed for hearing. Nevertheless, the Tribunal has had regard to the circumstances of this case as detailed in the department file, including the NOICC and the department’s Decision Record. In addition it has had regard those 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.

  1. The applicant was granted a student visa on 27 April 2016 for the purposes of being able to accompany and remain in Australia temporarily with the primary visa holder Arita Heer to whom he was married. The applicant did not respond to the NOICC and did not appear at the hearing of his application before the Tribunal. As such, the applicant has not provided any information regarding the breakdown of his relationship with Arita Heer or why he wishes to remain in Australia. 

  2. Accordingly, the Tribunal places no weight in relation to this consideration in the applicant’s favour.

Degree of hardship that may be caused

  1. The applicant has not responded to the NOICC or appeared before the Tribunal for the purposes of giving evidence or making submission in support of his application for review of the delegated decision to cancel his visa. As such, the tribunal is not aware of any specific hardship the applicant or any of his family members may suffer as a result of his visa being cancelled.

  2. The Tribunal acknowledges that the applicant may suffer some financial hardship in the event his visa is cancelled and he is required to depart Australia. However, the tribunal notes that he may eligible to apply for a bridging visa E, which may allow him to remain in Australia temporarily to enable him to finalise any outstanding matters.

  3. The Tribunal also recognised that he may be subjected to a degree of social shame as a result of his failed relationship with Arita Heer but does not accept that it represents a reason why he cannot return to his country of origin, being India. The country information confirms that while the divorce rate in India is low[2], it is becoming more common particularly in the more urban area.  As such, the Tribunal accepts that there is some social stigma attached to being a ‘divorcee’, however, it notes that such a stigma is generally worse for women than men as it is relatively easier for a man to marry again.[3] [4] As such while the Tribunal accept the applicant may suffer some social embarrassment and shame, it notes that the country information which states that such shame or embarrassment is less in urban area and generally less for men as it is easier for them to remarry. Accordingly, the Tribunal places little weight on this matter in the applicant’s favour.     .

    [2]    DFAT Report 17 October 2018

    [3]Scoop Whoop, India Has The Lowest Divorce Rate In The World, Here’s Why It Isn’t Necessarily A Good Thing’

    [4]BBC’ What divorce and separation tell us about modern India’

  4. Finally, the applicant may claims that he is not educated and as such will not be able to find any employment if he returns to India. The tribunal was not provided any evidence as to the level of education the applicant has achieved but it notes that he has been able to support himself while he has been in Australia. It shows that the applicant is resourceful in finding employment and to be able to support himself. There appears to be no reason why the applicant will not be able to find employment in the event he returns to India. Accordingly the Tribunal places no weight on the consideration in the applicants favour.

The extent of compliance with visa conditions

  1. There is no evidence of the applicant having breached any other conditions of his visa. Accordingly, the Tribunal places some weight on this consideration in the applicant’s favour.

Past and present behaviour of the visa holder towards the Department

  1. The applicant has not responded to the NOICC and has failed and/or refused to appear before the Tribunal at the date and time listed for hearing of his application for review. Accordingly the tribunal gives no weight in the applicants favour in regard to this consideration.

Persons in Australia whose visa would be cancelled under s.140.

  1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

  2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Circumstances in which the grounds for cancellation arose.

  1. The tribunal acknowledges that the circumstances by the grounds for the cancellation of his visa arose may have been largely beyond his control. However, the applicant has not responded to the NOICC or appeared before the tribunal to give evidence or provide submissions in support of his application for review. Nevertheless the tribunal gives this consideration little eight by reason that:

    (a)In all the circumstances it is reasonable to expect that the applicant was aware that he had been granted on the basis of being a family member of Arita Hee. As such, its reasonable to conclude that he would have known that any change to his circumstances would impact on his eligibility to continue to hold a the student visa.

    (b)That from the date the department was notified of the applicant’s change of circumstances to the date his visa was cancelled (a period of over two months) the applicant made no attempt to contact the department concerning his visa status and options.

    (c)At no relevant time, despite having been issued with the NOICC and notice to cancel his visa, the applicant has not made any attempt to regularise his visa status. Having been aware that his circumstances had changed it was within the applicant’s control to have made all necessary enquires for the purposes of  regularising his visa status.        

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

  1. The circumstances of this case are such that they would not engage Australia’s international obligations. In particular, the departmental records show that the applicant does not have any children in Australia whose interests may be affected by the cancellation of his visa.  As such, the Tribunal does not give any weight in favour of the applicant in relation to this consideration in making this decision. 

Other relevant factors

  1. Having considered the department file, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

  2. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

DECISION

  1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Jason Pennell
Senior Member



by Arushi Kapoor 1 February 2019.

by Soutik Biswas India correspondent 29 September 2016,

Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Natural Justice

  • Procedural Fairness

  • Remedies

  • Appeal

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