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

1. 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).

2. 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).

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. The Tribunal explained that it is reviewing a decision made by the Department to cancel his Subclass 485 visa, which would, but for the cancellation, have ceased on 16 September 2021 in any case. Accordingly, it is no longer possible to reinstate his Subclass 485 visa regardless of whether the primary decision is set aside or not.

10. The applicant is 29 years of age and a citizen of Bangladesh where he completed a Bachelor of IT and was working at the family garment manufacturing and wholesale business. His two siblings and mother live in Bangladesh and he has no blood relatives in Australia. The family business is currently run by his brother. The applicant is divorced and currently not involved in any relationship. He does not own property in Bangladesh.

11. He first arrived in Australia on 15 February 2018 as a holder of a Student visa. By December 2019, he had completed a Master of IT at the University of Tasmania. On 16 June 2020, his relationship with his former wife ended. The divorce proceedings were finalised on 10 November 2020. He gave evidence that he has no contact with his former wife.

12. Mr Khan stated in his evidence that he undertook a professional year at Indus Institute in Tasmania in September 2020 but was unable to complete it as he was prevented from studying in Australia by the conditions imposed on his bridging visa.

13. He is currently living at student accommodation and is employed as a housekeeper at a hotel in Hobart. He also has his own taxi business.

14. The applicant confirmed in his evidence that in response to the NOICC, he submitted a written statement dated 24 October 2020 to the Department and that everything written in that statement is true and correct. He conceded in his evidence that the ground for visa cancellation is made out as he is no longer a member of the family unit of Ms Alam who was the primary holder of the Subclass 485 visa.

15. The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that the ground for cancellation, as prescribed by s 116(1)(a), exists and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. The Tribunal indicated that it would take into consideration the evidence given at the hearing as well as documentary evidence provided in support of the application. The Tribunal asked the applicant if there was anything else that he wanted to raise with the Tribunal.

17. The applicant reiterated that he was unable to complete his professional year at Indus Institute in Tasmania as he was not holding a visa which gave him permission to study. He further stated that he does not have money to apply for another visa offshore and that, if the visa is cancelled, he will no longer be able to support his family in Bangladesh.

18. The applicant stated that it will be difficult for him to find a job in the IT industry in Bangladesh. When the Tribunal pointed out that his brother is running a family business in Bangladesh, that all of his family lives there and that he is a highly educated person having completed both an IT degree and Master of IT, the applicant stated that the business is currently not doing well.

19. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone conferencing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

20. 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

21. 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?

22. 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.

23. 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).

24. 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.

25. With his review application, the applicant submitted a copy of the Divorce Certificate as evidence that the divorce was finalised on 10 November 2020.

26. 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.

27. 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.

28. 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

29. 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’.

30. 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].

31. 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

32. 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.

33. 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.

34. As the applicant is no longer in a relationship with the primary visa holder, he ceased being a member of her family unit, as prescribed by reg 1.12(2)(a).

35. The Tribunal further finds that the applicant’s Subclass 485 visa would, but for the cancellation, have ceased on 16 September 2021 in any case. It follows that it is no longer possible to reinstate his Subclass 485 visa.

36. The Tribunal gives significant weight to this consideration in favour of the visa cancellation.

    The extent of compliance with visa conditions

37. There is no information before me to indicate that the applicant has not complied with any conditions attached to the visa. I give this consideration a little weight against cancelling the visa.

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

38. In his response to the NOICC, the applicant stated that if the visa is cancelled, it would cause disruption to his studies. The Tribunal noted that in December 2019, the applicant completed a Master of Information and Technology Systems at the University of Tasmania.

39. In his evidence, the applicant stated that he does not have money to apply for another visa offshore and that, if the visa is cancelled, he will no longer be able to support his family in Bangladesh. The Tribunal accepts that the applicant may suffer financial hardship if the visa remains cancelled and the applicant is required to depart Australia.

40. The applicant further claimed in his evidence that it will be difficult to find a job in the IT industry in Bangladesh. The Tribunal noted that the applicant holds both a Bachelor and Master of IT. All his family lives in Bangladesh where his brother is running a family business. The Tribunal is satisfied that the applicant would be able to re-establish himself in Bangladesh, given his education and work experience obtained in Australia and overseas.

41. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa which created no expectation of remaining in Australia permanently.

    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

42. The ground for cancellation arose when the applicant ceased to be in a continuing relationship with the primary visa holder.

43. While the Tribunal accepts that the breakdown of the relationship may have been beyond the applicant’s control, Mr Khan decided to continue to reside in Australia in order to complete his Master of IT and undertake a Professional Year course with Indus Institute in Tasmania.

44. Whilst the Tribunal accepts that the circumstances in which the ground for cancellation arose are not the fault of the applicant, and are to that extent beyond his control, nevertheless it is in the context of a temporary visa for a specific purpose which has now ceased.

    Past and present conduct of the visa holder towards the Department

45. There is no other information before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff. The Tribunal gives this consideration some weight against cancelling the visa.

    Whether there would be consequential cancellations under s 140

46. There are no consequential cancellations under s 140.

    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

47. If the applicant’s visa remains 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.

48. The Tribunal is unable to make findings as to whether the applicant will be affected by the public interest criterion (PIC) 4014 as this will depend on the way the applicant leaves Australia. However, if the applicant is affected by the PIC 4014, that is the intended consequence of the legislation.

49. The Tribunal is mindful that s 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which do not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore.

    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

50. There are no children who would be affected by the cancellation.

51. The applicant does not claim that Australia’s non-refoulement obligations arise in his case and the Tribunal finds that international obligations would not be breached by the cancellation.

1. 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

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

   Antonio Dronjic
   Member