Lapinski (Migration)

[2018] AATA 4166

Lapinski (Migration) [2018] AATA 4166 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fernanda Sibelli Lapinski

CASE NUMBER:  1806532

HOME AFFAIRS REFERENCE(S):           BCC2017/4980566

MEMBER:Mr S Norman

DATE:13 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 13 September 2018 at 10:40am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of a family unit – ceased relationship with primary visa applicant – purpose of travel and stay – present intention to stay – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 5CB, 48, 116
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was not lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that the decision to grant the visa was based wholly or partly on circumstances that no longer exist. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by her registered migration agent.

4. By letter of 12 July 2018 (dispatched by email to the applicant’s authorised recipient), the Tribunal invited the applicant to appear and give evidence and submissions at a hearing on 13 September 2018. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. By her migration agent email of 18 July 2018, the applicant confirmed she would attend the scheduled hearing. However by email of 6 September 2018, the agent advised that the applicant would ‘not be attending the hearing on 13 September 2018’. In these circumstances, and pursuant to s.362A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. 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

6. 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) of the Act. 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?

7. 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.

8. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 19 May 2016. That visa was granted to her on the basis (amongst other things) that she met the secondary criteria for the grant of the visa (reg.1.12), as she was a member of the family unit of Mr Flavio Do Carmo Junior (the primary visa applicant). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 15 February 2018, the applicant was advised that it appeared she was no longer a member of the primary visa applicant’s family unit. In the NOICC letter, the applicant was referred to reg.1.12. She was also advised that to continue to be a member of the primary visa applicant’s family unit she would need to continue to be either a spouse or de facto partner as defined in s.5F (Spouse) & 5CB (De facto partner) of the Act.

9. The applicant was then advised that as the relationship between herself and the primary visa applicant had ceased, she had ceased to be either his spouse or de facto partner as defined in the Act. She was therefore no longer a member of his family unit as prescribed in r.1.12 of the Migration Regulations. Therefore, she was advised that her visa may be cancelled under section 116(1)(a) of the Act.

10. The applicant responded to the Department NOICC letter. However, she did not dispute she had ceased a relationship with the primary visa applicant and that grounds may exist for the cancellation of her visa. The delegate cancelled the applicant’s visa, pursuant to s.116(1)(a) of the Act, on 7 March 2018.  

11. Based on the evidence before the Tribunal, I am satisfied the applicant had ceased to be in a relationship with the primary visa applicant. She had therefore ceased to be either a spouse or de facto partner of the primary visa applicant, as defined in sections 5F and 5CB of the Act. She was therefore no longer a member of the family unit of the primary visa applicant (pursuant to r.1.12). Therefore, the circumstances which permitted the grant of the applicant’s visa no longer existed and her visa may be cancelled under s.116(1)(a) of the Act.

12. For these reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(a) of the Act exists. 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

13. 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’.

14. Regarding the purpose of the applicant’s travel to and stay in Australia, she said she was married to the primary visa applicant for two years but their relationship had ceased. She said they maintain contact but did not reside together. She said she now wished to remain in Australia to, amongst other things, improve her English language skills. However, the visa was granted to the applicant for the purpose of her travel to and residence in Australia as a member of the family unit of the primary visa applicant. That purpose had now ceased (‘since at least 28 December 2017’). Based on the evidence, the Tribunal is not satisfied the present intention of the applicant in continuing to reside in Australia, is for the purpose of continuing in a relationship with the primary visa applicant.

15. Next, the Tribunal notes the applicant had ceased her relationship with the primary visa applicant, and is therefore not a member of his family unit (‘since at least 28 December 2017’).  

16. Next, though no material evidence of same was provided, the Tribunal proposes to find the applicant or her family may suffer some limited harm should her visa be cancelled. She may also be subject to detention under s.189 and removal under s.198 of the Act. However, she could (temporarily) retain her Bridging visa in order to remain in the community to finalise her affairs prior to departure. Based on the evidence before it the Tribunal is not satisfied the applicant would be subject to indefinite detention.  

17. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013 (meaning she could not be granted a temporary visa for three years from the date of cancellation).

18. Next, and regarding the circumstances in which ground for cancellation arose, in her response to the NOICC letter, the applicant said she was married for two years to the primary visa applicant; that “relationship had reached a crisis” so they decided it would “be better to break up while they were still friends”; she ‘still loves’ the primary visa applicant; but she does not live with him anymore; she did not intend to be “illegal or to do something hidden”. She said that since arriving in Australia, she had “fallen in love with the country, the landscape, the education of the people” and she had also made friends in Australia. She also wished to improve her English and in order to do so would like to remain living in Australia. However, and though the Tribunal accepts the applicant may wish to remain in Australia, I am not satisfied it should prevent the Tribunal from exercising its discretion to cancel the visa in this case.

19. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be impacted if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Mr S Norman
    Member