Kunwar (Migration)

[2022] AATA 925

Kunwar (Migration) [2022] AATA 925 (25 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sovit Kunwar

REPRESENTATIVE:  Mr Christopher Hugh Levingston (MARN: 9301108)

CASE NUMBER:  2016911

HOME AFFAIRS REFERENCE(S):          BCC2020/1336476

MEMBER:Kira Raif

DATE:25 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 25 January 2022 at 6:13 pm

CATCHWORDS
MIGRATION – cancellation– Skilled Regional (Provisional) visa– Subclass 489 (Temporary Graduate)) visa – applicant was granted the visa as a secondary applicant – applicant’s relationship with primary visa holder ended – circumstances that permitted the grant of the visa no longer exist – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

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 489 - Skilled - Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in February 1992. He was granted a Skilled – Regional Subclass 489 visa in October 2019 on the basis of being a spouse and a secondary applicant of Ms Thapa. In August 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the applicant’s relationship with Ms Thapa ended and the delegate formed the view that there may be grounds for cancelling the visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in November 2020. The applicant seeks review of the delegate’s decision.

3. On  6 January 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but 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 on 31 January 2022 . On 25 January 2022 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. 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.

5. 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?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he was granted the visa on the basis of being the spouse of Ms Thapa and met the secondary criteria for visa grant. It is stated that the Department received advice that the applicant’s relationship with Ms Thapa ended in March 2020 and in his response to the NOICC the applicant concedes that while there was a genuine relationship at the time of visa grant, that relationship has ended.

7. In his submission to the delegate the applicant argues that the ground for cancellation does not exist because he did have a genuine relationship with Ms Thapa at the time the visa was granted. In the Tribunal’s view, that submission is misguided because under s. 116(1)(a), a ground for cancellation would be established if particular circumstances existed at the time of the visa grant but ceased to exist subsequent to the visa grant. There is no suggestion that the applicant was not a spouse of Ms Thapa at the time of visa grant and if that was the case, a more appropriate ground for cancellation may have been s. 116(1)(aa). Here, it is not in dispute that the applicant was the spouse of Ms Thapa and met the visa criteria as a secondary applicant at the time of visa grant but as the relationship ceased to exist, that circumstance no longer exists.

8. In his written submission to the Tribunal of 25 January 2022 (which consists, largely, of the recitation of the law and previous communication between the applicant and the delegate) the applicant confirms that he was granted the visa as a secondary applicant and was in a genuine relationship with Ms Thapa and that the relationship ended. The applicant concedes that the ground for cancellation in s. 116(1)(a) is made out.

9. The Tribunal finds that the applicant is no longer a spouse or de facto partner of Ms Thapa. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’. The Tribunal finds that the applicant is no longer a member of the family unit of Ms Thapa. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of the applicant being a member of the family unit of his spouse and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.

   Consideration of discretion

10. 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

11. 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 was to enable the applicant to travel to, and stay in Australia with his partner. However, the applicant confirms that the relationship is no longer in existence. The applicant is no longer in a spousal or de facto relationship with the primary visa applicant. The applicant has not identified any other purpose for his travel and stay in Australia and the Tribunal is not satisfied on the limited evidence before it that any such purpose exists. The Tribunal finds that the applicant is not able to fulfil the purpose of his travel and stay in Australia because he is no longer in a relationship with the primary visa holder. There is no evidence before the Tribunal to indicate to the Tribunal that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

12. There is no evidence of any non-compliance with visa conditions.

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

13. The applicant states in his submission to the delegate that the temporary visa is a pathway to a permanent visa and that he may be eligible to seek the permanent visa in his own right or, with permission of Ms Thapa, as a member of her family unit. However, the applicant concedes in his written submission to the Tribunal of 25 January 2022 that he has not made such an application. There is no evidence before the Tribunal to suggest that the applicant intends to make that application, or that  he is taking steps to be able to lodge such an application.

14. The applicant presented no other evidence in relation to any hardship that may be caused by the cancellation of the visa. On the very limited evidence before it, the Tribunal is not satisfied that hardship would be caused by the cancellation (subject to the findings below concerning the legal consequences of the cancellation).

    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.

15. The ground for cancellation arises because the applicant’s relationship with the primary visa holder had ceased. The applicant has not offered any evidence as to whether the relationship broke down as a result of family violence.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s 140

17. There are no persons whose visas would be subject to consequential cancellation.

    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

18. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he will be detained indefinitely. The applicant would be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act would prevent the applicant from making valid visa applications for certain visas onshore without the Minister’s intervention but there are other visas he can apply for onshore without the Ministerial intervention. If the applicant’s visa is cancelled, he may lose some opportunities of seeking permanent visas in Australia. The Tribunal accepts that these matters may cause some hardship to the applicant.

    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

19. There is no evidence before the Tribunal, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant  has not presented evidence in relation to any children who would be affected by the cancellation, nor as to their best interests. There is little evidence about the applicant’s family composition. On the limited evidence before it, the Tribunal does not consider that Australia’s international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

20. As noted above, the applicant presented very limited evidence concerning the above considerations and it is unfortunate that he has not take the opportunity to present such evidence in his written submission of 25 January 2022 or by presenting oral evidence to the Tribunal.

21. 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 circumstances that permitted the grant of the visa no longer exist. The Tribunal has determined that the cancellation would not breach Australia’s international obligations.

22. The applicant presented no evidence as to any hardship that may be caused by the cancellation but the Tribunal acknowledges there are serious repercussions arising from the legal consequences to the cancellations which would limit the applicant’s future options. The Tribunal acknowledges that such matters may cause some hardship to the applicant.

23. The Tribunal has decided to place greater weight on the fact that the applicant does not appear to meet the purpose of his travel and stay in Australia as he is no longer in a relationship with his partner and he has not provided evidence to the Tribunal of having any other purpose for his stay in Australia. Nor is there evidence that the applicant intending to, and being eligible to, seek other visas in Australia.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member