Lamichhane Poudel (Migration)

[2019] AATA 5237

Lamichhane Poudel (Migration) [2019] AATA 5237 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anjana Lamichhane Poudel

CASE NUMBER:  1914258

HOME AFFAIRS REFERENCE(S):           BCC2019/891503

MEMBER:Kira Raif

DATE:26 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2019 at 1:05pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – applicant seeking reconciliation – limited evidence of communication – no evidence of mutual commitment to the relationship – applicant’s studies in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 485.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 4 June 2019 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 (the Act).

2. The applicant is a national of Nepal, born in March 1991. She was granted the Class V Temporary Graduate visa on 7 June 2018. The visa was to be in effect until 7 June 2020. On 8 May 2019 the applicant was issued with a 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 her response to the NOICC and her visa was cancelled on 4 June 2019. The applicant seeks review of the delegate’s decision.

3. On 5 July 2019 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments on 25 July 2019. On 9 July 2019 the applicant’s representative requested that the hearing be postponed on the basis that the case has been with the Tribunal for a short time and that he required access to documents. The Tribunal has considered the request but decided not to grant the postponement. The Tribunal is mindful that the applicant has been granted a prescribed period of notice, which the legislation clearly considers to be adequate to enable the applicant to prepare for the hearing. In relation to the access to documents request, the Tribunal notes that access has been granted to the applicant within a very short period and, significantly, that the applicant was represented by the same agent from the time the application was lodged with the Tribunal on 5 June 2019 and the representative has not made a request to access the documents until after receiving the invitation to the hearing. With respect, that could have been done at any time after lodging the application and no reason has been offered for the delay. As for the representative’s suggestion that the hearing should be postponed because ‘it has only been over a month since the application was lodged’, the Tribunal does not consider that the expeditious processing of applications is in itself a reason to delay hearing matters. The Tribunal is satisfied that the applicant has been granted adequate time to prepare for the hearing and to present evidence and give arguments.

4. The applicant appeared before the Tribunal on 25 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by her registered migration agent. 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. It indicates that the applicant was granted the Class VC visa on 7 June 2018 as a dependant and a member of the family unit of the primary visa holder, Mr Santosh Poudel. The applicant’s relationship with Mr Poudel had ceased and the delegate concluded that the applicant ceased to be a member of the family unit of the primary visa applicant and no longer met the requirements of cl. 485.311.

8. In her written response to the NOICC the applicant stated that she has been in Australia since 2015 and has been legally married to Mr Poudel. Whether or not the applicant continues to be formally married to Mr Poudel the Tribunal does not consider that this defines the existence of a spousal relationship. That is, the existence of a valid marriage is not sufficient to establish that the applicant is the spouse and a member of the family unit of the primary visa applicant. Such a relationship requires a mutual commitment to a shared life as husband and wife and the Tribunal is not satisfied such a commitment exists.

9. In her submission to the delegate the applicant states that her husband no longer wants her in his life and planned to ‘kick her out of the house’. The applicant states that he had terminated the lease without her knowledge and moved away with her legal documents. She tried to sort things out and get life back together but they are living separately. In the Tribunal’s view, these factors indicate that the applicant’s spousal relationship with the primary visa applicant had ceased. The Tribunal is not satisfied they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

10. In her written submission to the Tribunal of 18 July 2019 the applicant provided an outline of her relationship with the primary visa applicant and the couple’s visa history. The applicant states that in June 2018 she and Mr Poudel ‘reviewed the relationship’ and consulted with their parents and decided to continue with the relationship. She states that her husband travelled to Tasmania to explore visa options and she visited him in Tasmania. Her husband gave her the address but when she visited him, somebody else was living there. The applicant states that their close friend was in frequent contact and tried to convince Mr Poudel to review his position. The applicant states that she believes the relationship has not officially ended even though they are living separately temporarily. The applicant states that under the Hindu religion and Nepalese culture, she believes the relationship has not ended as neither had declared their intention to end the relationship and neither is in a relationship with somebody else. The relationship cannot be considered to have ended on the basis of physical separation. The applicant states that friends and family are involved in attempting the reconciliation.

11. The Tribunal acknowledges that there may still be a valid marriage between the applicant and Mr Poudel as there is no evidence of a formal divorce. The Tribunal also acknowledges the applicant’s claim that the relationship is continuing – and that there are no grounds for cancelling the visa – and any separation is only temporary. The Tribunal accepts that the applicant may wish to reconcile. However, the Tribunal does not accept that evidence and the Tribunal is not satisfied that the spousal relationship continues to exist. Importantly, there is no evidence of Mr Poudel’s commitment to the relationship and no evidence that the parties maintain a mutual commitment to the relationship as husband and wife. It is not sufficient that the applicant herself may be committed to the spousal relationship, nor that she believes the relationship to be ongoing. There must be a mutual commitment to the relationship and in the absence of any indication from Mr Poudel that he has any commitment to the relationship, the Tribunal is not satisfied that the mutual commitment exists.

12. The applicant provided to the Tribunal what she calls evidence of communication with her spouse. The Tribunal notes that such evidence relates to what appears to be a single communication between them, some time around March 2019, with many missed calls. The Tribunal does not consider that a single exchange of messages (which appear to have been unanswered) is indicative of the existence of a spousal relationship.

13. There is also no evidence that any of the aspects of a spousal relationship continue to exist in this case. There is no evidence that the couple pool their finances or have joint assets or liabilities. There is no evidence that they maintain a joint household or have joint responsibilities for any children. There is no evidence that they plan and undertake joint social activities or continue to represent themselves to others as being in a committed spousal relationship. Although the applicant suggested that she tried to reconcile, and there is evidence that friends and family members have been involved, there is no evidence that Mr Poudel has any commitment to this relationship. At its highest, the Tribunal finds that the applicant has the intention of maintaining the relationship and re-establishing cohabitation but the Tribunal is not satisfied that Mr Poudel has that intention.

14. In oral evidence, the applicant said that at the time her husband contacted Immigration, they were still in a relationship and he made an impulsive decision to contact Immigration and she did not know about it. The applicant states that at present they live apart, her husband lives in Tasmania and is studying there while she is in Sydney. The applicant states that the relationship has not ended and their families and friends believe them to be in a relationship. As noted above, there is no evidence to support these claims.

15. The applicant’s evidence is that her husband informed the Department that the relationship has ended. In the Tribunal’s view, that offers a strong indication that he has no commitment to this relationship. There is nothing before the Tribunal to indicate that Mr Poudel’s intentions have changed. He has not appeared before the Tribunal to give evidence in support of this application and has not expressed any desire to resume the relationship, nor indicated his commitment to the relationship. There is very little evidence that friends and family believe the relationship to be ongoing. There is no evidence in relation to other aspects of the relationship that would indicate that the spousal relationship exists.

16. The applicant told the Tribunal that physical separation does not mean the relationship has broken down. The Tribunal accepts that this is so but in this case the issue is not only the physical separation but the absence of any other indicia of the spousal relationship, including the absence of any evidence of the existence of mutual commitment between the parties.

17. The applicant refers to having a ‘conflict’ in the relationship and concedes that at present, her husband may not be committed to the relationship. The applicant states that they married under the Hindu custom and they cannot be separated by the wish of only one party. The applicant states that she is confident that with the help of family and friends, they will be able to re-establish their relationship and will be together in the future. The Tribunal finds such claims speculative. It may happen or it may not. The Tribunal must consider the existence of a spousal relationship (for the purpose of establishing whether the applicant is a member of the family unit of her spouse) and not whether such relationship can exist at some indeterminate time in the future.

18. The applicant refers to her cultural norms and states that these are different to the western culture. She states that it is not uncommon for a conflict to exist in the marriage and she is confident the relationship will be re-established. However, in determining whether the applicant is a member of the family unit of her spouse, the Tribunal must consider the Australian laws and the definitions of the terms ‘spouse’ and ‘member of the family unit’. The Tribunal has found the applicant’s assertions to be nothing more than an aspiration that the relationship will be re-established in the future. The Tribunal’s assessment, however, must be based on the present circumstances and not future aspirations.

19. Having regard to the information provided to the Department about the breakdown of the relationship, as set out in the primary decision record, and in the absence of any probative evidence about the mutual commitment to this relationship, the Tribunal finds that the spousal relationship between the applicant and her husband has ceased, despite the ongoing existence of the formal marriage. The Tribunal finds that the applicant is no longer in a spousal or de facto relationship with Mr Poudel. The Tribunal finds that there is no longer a mutual commitment to a shared life as husband and wife to the exclusion of all others between the applicant and Mr Poudel. The Tribunal finds that the applicant is not a spouse and no longer a member of his family unit.

20. The Tribunal finds that the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Mr Poudel. 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.

21. 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

22. 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

23. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a period of four years. 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 her partner. However, the Tribunal has found that the relationship is no longer in existence. The applicant is no longer in a spousal relationship with the primary visa applicant. 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.

24. The applicant told the Tribunal that she came to Australia three years earlier to support her husband in his study. Her husband went to Tasmania to pursue permanent residence while she stayed in Sydney and is undertaking a nursing course. If she has to leave the country, she would not be able to complete her study and also her relationship would be affected. The Tribunal is mindful that the applicant can pursue a more appropriate visa to enable her to continue with her study in Australia. The Tribunal does not consider that there is a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

25. There are no known instances of non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

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

26. The applicant’s evidence to the Tribunal is that she had enrolled in a Bachelor of Nursing which commenced in January 2019 and has exams in October 2019. She expects to complete the course in January 2021. The applicant refers to the hardship if her visa is cancelled, stating that she would be unable to complete her course in Australia for which she has invested money and hard work and time. The applicant states that she was planning apply for a Student visa closer to the expiry of her visa in June 2020. The Tribunal accepts that the applicant is enrolled in a course and that she would experience hardship if she cannot complete the course. However, the Tribunal is also mindful that it is not the purpose of a Subclass 485 visa to enable students to enrol in long-term full-time study. A Student visa would be more appropriate to meet the applicant’s desire to study in Australia. The applicant refers to her intention to apply for a Student visa but also the fact that she had not made that application. In the Tribunal’s view, if the applicant’s intention is to engage in studies in Australia, it would be more appropriate for her to seek a Student visa and have her circumstances accessed against the requirements of that visa. The Tribunal acknowledges that if the visa is cancelled, there may be limitations or an exclusion period in relation to such an application in the future.

27. The applicant told the Tribunal that the cancellation of the visa would cause her stress and physical, financial, emotional and psychological hardship. She would not be able to focus on her study. If she has to leave the country and give up on the funds spent on the course so far, she would be affected. As noted above, while the Tribunal accepts that certain hardship would be caused if the applicant cannot pursue her study in Australia, the Tribunal is also of the view that the Skilled visa is not an appropriate visa to enable the applicant to study in Australia. The applicant told the Tribunal that the Skilled visa allows her to work without restrictions, unlike a Student visa but she also said that if she has to apply for a Student visa, her family would support her financially. In the circumstances where the applicant is able to seek a Student visa in the future, the Tribunal has formed the view that the hardship due to the cancellation of the visa would be minimised by the applicant’s capacity to pursue a more appropriate visa in the future.

28. With respect to financial hardship, the applicant states that she has the funds to pay for the next semester and that her family has been supporting her. As the applicant appears to have access to a substantial sum, the Tribunal is not satisfied that financial hardship would be caused by the cancellation, although the Tribunal acknowledges that the applicant may feel she has wasted the funds already paid for the course.

29. The applicant refers to the psychological, emotional and financial hardship if her visa is cancelled. The Tribunal considers her claims to be extremely vague. The applicant refers to her poor mental state due to the relationship breakdown. The applicant told the Tribunal that she has seen a health professional at the university but has no medical evidence. There is no medical or otherwise probative evidence before the Tribunal that the applicant’s mental state would be adversely affected by the cancellation of the visa and the Tribunal is not prepared to accept the applicant’s claims without such evidence.

1. The applicant states that if her visa is cancelled and if she has to leave the country, she will be far away from her husband and that will cause their relationship to end completely and she would be sad about it. As noted above, the Tribunal accepts that the applicant hopes to re-establish her relationship with her husband but the Tribunal is not satisfied there is a mutual desire for the relationship to be re-established and the Tribunal is not satisfied that the future of the marriage would depend on the applicant’s presence in Australia.

2. The applicant states that if she cannot study in Australia, it would ruin her career. The Tribunal does not accept that evidence. Firstly, it is unclear to the Tribunal why the applicant must only study in Australia in order to maintain her career. Secondly, the applicant can obtain a visa in the future (albeit subject to an exclusion period) and pursue her study in Australia in the future. The applicant’s evidence to the Tribunal is that she had completed a nursing course in Nepal and could work as a nurse in Nepal but her degree was not recognised in Australia. Thus, the Tribunal does not accept the applicant’s claim that unless she completes her Australian study, her career would be ruined. The applicant is capable of pursuing her chosen field of work in her own home country. The applicant’s complaint is she cannot work as a nurse in Australia, rather than she cannot pursue her chosen career. The Tribunal does not accept that the applicant’s career would be ruined if she cannot complete her study in Australia.

3. The Tribunal is also mindful that the Skilled visa in question would expire in June 2020, before the applicant is able to complete her course and she would be required to seek another visa in the future. The applicant told the Tribunal that the Skilled visa enables her to work and earn a living. That is, the applicant’s real objection appears to be the capacity to work full-time and support herself rather than her future career.

4. The applicant told the Tribunal that she has invested over $22,000 to pay for her first semester and has the money to pay for the second semester and all of this would be wasted if she cannot complete the course. The Tribunal accepts that evidence.

5. The Tribunal accepts that the applicant would be upset by the cancelation of her visa or by the fact that she may have to leave Australia as a result of the cancellation. The Tribunal accepts that departure from Australia would preclude the applicant from undertaking further study in Australia, at least unless she is granted another visa to enable her to return to Australia. The Tribunal accepts cancellation of the visa would cause hardship to the applicant.

   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

6. The ground for cancellation arises because the applicant’s relationship with her spouse has broken down. [Information deleted.]

7. [Information deleted.]

   Past and present behaviour of the visa holder towards the Department

8. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department.

   Whether there would be consequential cancellations under s.140

9. 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, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. 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 she 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.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

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

12. The applicant told the Tribunal that she has a ‘normal life’ and no issues. The applicant does not claim that Australia’s non-refoulement obligations arise in her case.

13. The Tribunal finds that international obligations would not be breached by the cancellation.

    Any other relevant matters

14. The applicant told the Tribunal that she wants to maintain the relationship with her husband with the help of friends and family and that she wants to pursue her career and have the opportunity to complete her study and develop her career in Australia. These matters have been addressed above.

15. The Tribunal has considered the totality of the applicant’s evidence. The Tribunal has found that the applicant’s relationship with her husband has ended and because she was granted the visa as a spouse and a member of the family unit of her husband, the decision to grant the visa was based on a particular fact or circumstance that is no longer the case or that no longer exists. There are grounds for cancelling the visa.

16. The Tribunal accepts that some hardship would be caused by the cancellation. The applicant would be unable to continue with her studies in Australia, unless she is granted another visa, and the Tribunal accepts that she has made a significant investment in her studies in this country. The applicant may be subject to an exclusion period in relation to future visa applications and her ability to remain in Australia and to study in Australia would be affected. The Tribunal accepts that the applicant would be upset about these circumstances, although the Tribunal has found the applicant’s evidence in relation to hardship she would experience as a result of the cancellation to be vague and exaggerated. There are no known breaches of the visa conditions. The cancellation would not result in any consequential cancellations and in the breach of Australia’s international obligations.

17. The Tribunal finds that the applicant is no longer able to fulfil the purpose of her visa due to the breakdown of her relationship. The Tribunal has rejected the applicant’s evidence that she continues to be in a relationship with her husband. The Tribunal is also mindful that the visa in question is a temporary visa only, valid for a period of less than one year, and it would not permit the applicant to complete her course in Australia.

18. The Tribunal finds that the significance of the fact or circumstance that no longer exists to the applicant’s eligibility for the visa and the fact that the applicant is no longer able to fulfil the purpose of her visa, outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member