Kumar (Migration)

[2018] AATA 3566

Kumar (Migration) [2018] AATA 3566 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Olena Kumar

CASE NUMBER:  1721440

HOME AFFAIRS REFERENCE(S):           BCC2017/2866358

MEMBER:Kira Raif

DATE:8 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2018 at 11:35am

CATCHWORDS
Migration – Cancellation – Skilled (Provisional )( Class VC) – Subclass 485 (Temporary Graduate) visa – Change in circumstances – No longer a member of the family unit of the primary visa holder – No longer in a spousal relationship with primary visa holder – Visa expired – Child not included in primary visa holder’s application – Decision under review affirmed

Practice and procedure – Tribunal decided not to postpone hearing – Sufficient time to arrange for legal representation

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2 cls 485.311, 485.321

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 6 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Ukraine, born in March 1988. She was granted a Class VC Skilled visa on 10 March 2016 as a member of the family unit of her then partner. The visa was in effect until 10 March 2018. On 10 August 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa to the applicant was based on a fact or circumstance that no longer existed. The applicant provided a written response to the NOICC and her visa was cancelled on 6 September 2017. The applicant seeks review of the delegate’s decision.

3. On 18 July 2018 the Tribunal wrote to the applicant inviting her to attend the hearing on 8 August 2018. On 6 August 2018 the Tribunal received the applicant’s request for the hearing to be postponed on the basis that the applicant was attempting to obtain legal representation. The Tribunal has considered the request but decided not to postpone the hearing. The Tribunal is mindful that the application for review was lodged with the Tribunal in September 2017, almost a year before the scheduled hearing. The applicant had ample time, in the Tribunal’s view, to obtain professional representation. The applicant has not indicated what steps, if any, she has made since lodging her application to obtain profession advice. The Tribunal is not convinced that the applicant was unable to find a migration agent prior to the scheduled hearing. The applicant also refers to her lack of English but the applicant was assisted by a professional interpreter throughout the hearing, so her claimed lack of English should not disadvantage her appearance at the hearing. In such circumstances, the Tribunal has decided not to postpone the hearing.

4. The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Ukrainian and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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?

7. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

   a.The applicant made the application for the Skilled Class VC visa on the basis of being a member of the family unit of Mr Gyanendra Kumar. The applicant was included in Mr Kumar’s application and had provided evidence of the relationship. The applicant was assessed as being the spouse of Mr Kumar and a member of his family unit for the purpose of cl. 485.311.

   b.On 26 November 2016 Mr Kumar advised the Department in writing that his relationship with the applicant ended and that they have separated and would be seeking a divorce. Mr Kumar advised the Department that the applicant would be returning to Australia on 27 November 2017 with her friends and possibly a new boyfriend.

   c.On 29 December 2016 Mr Kumar advised the Department that he and the visa applicant were still separated. Mr Kumar stated that he and the visa applicant were living at the same address but the applicant was planning to move out when she found her own accommodation.

   d.On 28 January 2017 Mr Kumar advised the Department that when the applicant returned to Australia, she came to live with him for a few days until she found another place but is now refusing to leave. Mr Kumar stated she had a new boyfriend.

8. In her written response to the NOICC of 16 August 2017 the applicant referred to Mr Kumar as her ‘soon to be ex-husband’ and states that they have been separated for ten months due to domestic violence and would soon divorce. The applicant told the Tribunal that she has now divorced Mr Kumar.

9. Having regard to the applicant’s own evidence and the evidence of Mr Kumar set out above, the Tribunal finds that the applicant is no longer in a spousal relationship with Mr Kumar. The Tribunal finds there is no longer any mutual commitment between the applicant and Mr Kumar. The couple have now divorced. The Tribunal finds that the applicant is not a spouse, nor a de facto partner of Mr Kumar. 

10. As the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Mr Kumar, 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.

11. 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

12. 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

13. The applicant told the Tribunal that she joined her husband in Australia in 2014 with their son but as soon as she came to Australia, they started fighting and they realised the relationship would not work. She wanted to stay in the relationship for the sake of their child. When she travelled to Ukraine, her husband wrote to Immigration stating that the relationship was over. After she came back to Australia, she stayed with her husband because she did not have enough money and also for the sake of the child. Eventually, her husband wanted her to move out and she found refuge accommodation. Later on she met her present partner and they now live together. The applicant said she has made the application for the Partner visa but it was found to be invalid and she plans to reapply.

14. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a period of two years. The applicant was granted the visa as a secondary applicant. The purpose of her visa was to enable the applicant to remain with her partner. However, that relationship is no longer in existence.

15. The applicant claims that the relationship broke down due to family violence. The Tribunal notes that the requirements of cl. 485.311 and cl. 485.321 do not allow for the grant of the visa where the relationship has ended, for whatever reason. The applicant told the Tribunal that if she has a chance to stay in Australia, she would be able to reapply for the Partner visa. However, the applicant may have the opportunity to apply for the Partner irrespective of the outcome of the present application.

16. The Tribunal finds that the applicant is not able to fulfil the purpose of her visa because she is no longer in a relationship with the primary visa holder.

    The extent of compliance with visa conditions

17. There are no known instances of non-compliance with visa conditions.

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

18. The applicant claims in her response to the NOICC that she has a child with Mr Kumar and the child’s interests would be affected if the visa is cancelled. The Tribunal is mindful, however, that the Skilled visa was in effect until March 2018. The visa has now expired. There is no suggestion that the child was included in any other application that Mr Kumar may have made and the applicant’s evidence to the Tribunal is that Mr Kumar has had no contact with the family, including his son, for the past six months. Thus, unless the applicant, her son and Mr Kumar all seek, and are granted Australian visas, there appears to be no basis for the child to be with his father. The visa in question is a temporary visa only and since the applicant’s relationship with the child’s father has ended, it would be necessary for the applicant to make other arrangements to enable the child to stay with his father, if that is what the family decides to do. The Tribunal finds that if there is separation of the child and his father, that would not be due to the cancellation of the applicant’s Skilled visa but because that visa would no longer be in effect and on the applicant’s own evidence, Mr Kumar has not included the child in any other visa application.  

19. The applicant states in her submission to the delegate that she wants to explore other visa options. As noted elsewhere, the applicant had time to explore such options and can continue to explore her option irrespective of the cancellation of this visa. The applicant told the Tribunal that she has made the application for a Partner visa and intends to reapply. The applicant can explore the option of applying for the Partner visa whatever the outcome of this review.

20. The applicant told the Tribunal that she wants to stay in Australia to be able to provide for her son as there is nothing for him in Ukraine, there are no educational facilities and she would be unable to get a job and support her son in her home country. However, as noted above, the Skilled visa that is the subject of this review is a temporary visa only and would not permit the applicant and her child to remain in Australia. It is also significant that the visa would have expired in March 2018 if it was not cancelled, so even if the cancellation is set aside, the Skilled visa would not enable the applicant and her child to remain in Australia. Unless the applicant applies for another visa, she would be required to leave Australia.

    Circumstances in which ground of cancellation arose

21. The applicant claims in her response to the NOICC that the relationship broke down due to family violence. The applicant has not presented evidence of family violence and while the Tribunal acknowledges the statement from St Vincent de Paul society about the applicant’s residence at their refuge, it does not refer to, nor establishes, family violence.

22. Even if the Tribunal were to accept that the applicant suffered family violence, the Tribunal is mindful that the applicant’s relationship with her partner ended. She is now in a different relationship. The applicant can avoid the violence of the previous relationship by removing herself from that relationship, which is what has happened and her evidence to the Tribunal is that she has not had any contact with Mr Kumar since early 2018 and is uncertain as to whether he remains in Australia.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s.140

24. There are no persons whose visa would be subject to consequential cancellation under s. 140. The primary decision record indicates that at the time of the primary decision, the applicant’s child continued to hold the Subclass 485 visa as a member of the family unit of his father. The applicant told the Tribunal that her son’s visa has expired and he is now holding a bridging visa on the basis of her application.

    Whether there are mandatory legal consequences

25. 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. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she 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.

26. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant referred to the war between Ukraine and Russia but the Tribunal does not consider such reference to general country information, rather than the applicant’s personal circumstances, establishes Australia’s non-refoulement obligations. The applicant also said that she would experience financial hardship if she was to return to Ukraine but on the evidence before it, the Tribunal is not satisfied this gives rise to protection obligations. The Tribunal is mindful that if the applicant believes she would be subjected to any harm in Ukraine, she is able to make an application for a protection visa. In these circumstances, the Tribunal is satisfied that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

27. In her response to the NOICC the applicant refers to the best interests of her child, stating that if the visa is cancelled, the child would be separated from his father. The Tribunal notes, however, that the visa in question would have expired by now. Thus, the reinstatement of the visa would not permit the applicant or her child to remain in Australia or for the child to remain with his father. The applicant told the Tribunal that she has not had any contact with Mr Kumar and has not heard from him from February 2018. The applicant told the Tribunal that she is not aware of Mr Kumar’s whereabouts. He did not attend the divorce hearing and is not contesting the orders in relation to the child. The applicant’s evidence suggests that Mr Kumar does not have any relationship with his son and appears to be disinterested in such a relationship. The applicant told the Tribunal that she is unsure whether Mr Kumar remains in Australia or has left the country. The Tribunal is not satisfied that the cancellation of the visa would adversely affect the child’s relationship with his father because that relationship does not exist.

28. The applicant also told the Tribunal that it is in the best interests of the chid to be in Australia. She states that the child has been living here for a number of years, speaks English and attends school and has friends in Australia. The Tribunal acknowledges that the child may prefer to stay in Australia but the present Skilled visa would not allow him to do that because it has already expired. The setting aside of this visa would not extend the child’s stay in Australia.  The Tribunal has formed the view that the best interests of the child would not be affected by the cancellation of the visa.

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because 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 is no longer in a spousal relationship with the primary visa applicant. The Tribunal accepts that a certain degree of hardship may be caused as a result of the applicant not being able to stay in Australia but in light of the fact that the Skilled visa would have already expired, such hardship would not be caused by the cancellation of the visa. Whether or not the visa remains cancelled, the applicant is unable to remain in Australia unless she is granted another visa.

30. There are no other visa holders who would be affected by the cancellation. The Tribunal is satisfied that Australia’s international obligations would not be breached as a result of the cancellation. The Tribunal does not consider that the best interests of the child would be adversely affected by the cancellation, partly because the child has no contact and no relationship with his father, who may or may not be in Australia, and partly because the Skilled visa would no longer enable the child to remain in Australia. The Tribunal is not aware of any other breaches of the law or non-compliance with visa conditions.

31. The Tribunal places weight on the fact that the applicant can no longer fulfil the purpose for which the visa was granted, given that her spousal relationship with the primary visa applicant had ceased. The Tribunal also places significant weight on the fact that the visa would have already expired, so the applicant’s desire to remain in Australia and any hardship that she claims would result from her departure from Australia, would not be caused by the cancellation of the visa but its expiry. The applicant informed the Tribunal she intends to reapply for a Partner visa and that option remains open to her.

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

    DECISION

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

    Kira Raif
    Senior Member