Khan (Migration) - [2022] AATA 585

Khan (Migration) [2022] AATA 585 (2 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD Nazmul Kabir Khan
CASE NUMBER:  2016993
HOME AFFAIRS REFERENCE(S):          BCC2020/1924573
MEMBER:Antonio Dronjic
DATE:2 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 02 March 2022 at 12:11pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – visa period ceased – further studies interrupted – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 116
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4014; rr 1.12, 2.12
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Visnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 17 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 (Cth) (the Act).
The delegate formed the view that the applicant is no longer a member of the family unit of Ms Navila Alam who was the primary visa holder. As the decision to grant the Subclass 485 visa to the applicant was based, wholly or partly, on a fact or circumstance that is no longer the case or that no longer exists, the delegate cancelled the visa under s 116(1)(a).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background to the cancellation of the applicant’s visa
The decision record of 17 November 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 16 September 2019, the applicant was granted a Subclass 485 visa to remain valid until 16 September 2021.
·The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that he is a member of the family unit of Ms Alam, as prescribed by reg 1.12(2)(a) of the Migration Regulations 1994 (Cth) (the Regulations).
·To be a member of the family unit of Ms Alam as prescribed by reg 1.12(2)(a), the applicant needs to continue to be either a spouse or a de facto partner of that person as defined respectively by ss 5F and 5CB of the Act.
·Information before the Department was that the applicant is no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khan (Migration)

Details

AGLC: Khan (Migration) [2022] AATA 585
Case: [2022] AATA 585
Decision Date: 2 March 2022

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant’s Subclass 485 (Temporary Graduate) visa. The applicant had been granted the visa on 16 September 2019, valid until 16 September 2021, based on being a member of the family unit of the primary visa holder, Ms Alam. The delegate cancelled the visa under s 116(1)(a) of the *Migration Act 1958* (Cth) on the grounds that the applicant was no longer a member of Ms Alam's family unit, as the relationship had ceased. The Administrative Appeals Tribunal was asked to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(a) of the Act was established. This section permits cancellation if the visa was granted based on a fact or circumstance that no longer exists. The Tribunal also had to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances. The applicant had confirmed the breakdown of his relationship with Ms Alam and provided a divorce certificate.

The Tribunal found that the applicant was no longer in a spousal or de facto relationship with Ms Alam, and that the visa had been granted based on this relationship. Consequently, the Tribunal concluded that the fact or circumstance upon which the visa was granted no longer existed, establishing the ground for cancellation under s 116(1)(a). In exercising its discretion, the Tribunal considered the applicant's submissions, including his intention to undertake further studies and claims of financial hardship, but found these did not constitute a compelling need to remain in Australia. The Tribunal determined that the reasons for cancelling the visa outweighed the reasons for not cancelling it.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Background to the cancellation of the applicant’s visa The decision record of 17 November 2020 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:·On 16 September 2019, the applicant was granted a Subclass 485 visa to remain valid until 16 September 2021.·The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that he is a member of the family unit of Ms Alam, as prescribed by reg 1.12(2)(a) of the Migration Regulations 1994 (Cth) (the Regulations).·To be a member of the family unit of Ms Alam as prescribed by reg 1.12(2)(a), the applicant needs to continue to be either a spouse or a de facto partner of that person as defined respectively by ss 5F and 5CB of the Act.·Information before the Department was that the applicant is no longer in a relationship with Ms Alam.·A Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 9 October 2020.·The applicant responded to the NOICC on 26 October 2020, confirming inter alia that he is no longer living with the primary visa holder due to a breakdown in their relationship and that on 16 June 2020, his wife informed him that she wanted a divorce and preferred that they lived separately.·On 17 November 2020, the delegate proceeded to cancel the applicant’s visa. The applicant applied to the Tribunal on 23 November 2020 for review of the visa cancellation and with his application submitted a copy of the primary decision record. On 12 January 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 22 January 2022. The hearing was adjourned and re-scheduled for 24 February 2022. The applicant appeared before the Tribunal on 24 February 2022 via video link to give evidence and present arguments. On the same day, the applicant submitted an e-mail containing a link to a newspaper article ‘International students say career opportunities in Australia do not match their qualifications’. A copy of the same article was again submitted on 28 February 2022. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that his visa was cancelled under s 116(1)(a) of the Act as the delegate concluded that he is no longer a member of the family unit of Ms Alam. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

Evidence

Evidence Before The Court

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 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.Does the ground for cancellation exist? 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 that no longer exists. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class VC visa on 16 September 2019 as a dependant and a member of the family unit of the primary visa holder, Ms Alam. The applicant’s relationship with Ms Alam had ceased and the delegate concluded that the applicant ceased to be a member of the family unit of the primary visa holder and no longer met the requirements of reg 1.12(2)(a). In his written response to the NOICC the applicant confirmed that he is no longer living with the primary visa holder due to a breakdown in their relationship and that, on 16 June 2020, his wife informed him that she wanted a divorce and preferred that they lived separately. With his review application, the applicant submitted a copy of the Divorce Certificate as evidence that the divorce was finalised on 10 November 2020. Based on the evidence before it, including the applicant’s oral evidence given at the hearing, the Tribunal finds that the applicant is no longer in a spousal or de facto relationship with Ms Alam. The Tribunal further finds that the applicant was granted the visa based on being a spouse or de facto partner and a member of the family unit of Ms Alam. The Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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. The Tribunal finds that there are grounds to cancel the visa under s 116(1)(a) of the Act. For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.Consideration of discretion 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’.

Decision

Reasons for decision

Having had regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.Antonio DronjicMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal finds 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 power to cancel the visa should be exercised.Consideration of discretion 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 Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2] [1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia 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 spouse. However, the Tribunal has found that the relationship is no longer in existence. 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. In his evidence, the applicant stated that he decided to undertake a Professional Year course with Indus Institute in Tasmania in September 2020. The Tribunal does not consider this to be a compelling need for the applicant to remain in Australia.