Le (Migration)

[2022] AATA 923

Le (Migration) [2022] AATA 923 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Huong Nguyen Linh Le

REPRESENTATIVE:  Ms Lena Hung

CASE NUMBER:  2103922

HOME AFFAIRS REFERENCE(S):          BCC2020/2625792

MEMBER:Kira Raif

DATE:24 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 24 January 2022 at 11:22am

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 – applicant’s employment may constitute a compelling need for her to remain in Australia – making a significant contribution to her employer and the state economy– decision under review remitted

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 26 March 2021 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 Vietnam, born in November 1992. She was granted the Skilled visa in May 2020 on the basis of being the secondary applicant and a member of the family unit of her then partner. In March 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there are grounds for cancelling her visa under s. 116(1)(a) of the Act. The applicant provided her response and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in relation to the review. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 the circumstances which permitted the grant of the visa no longer exist.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Mr Tran, who was the primary visa holder. The Department received advice that the applicant’s relationship with Mr Tran had ended and in her response to the NOICC and evidence to the Tribunal the applicant concedes that the relationship had ended.

7. The Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr Tran. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ when applying for the visa. The Tribunal finds that the applicant is no longer a member of the family unit of Mr Tran. 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 her 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.

8. 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

9. 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

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

11. The applicant submits that she has maintained employment in a regional area and contributes significantly to her employer and the state economy. The applicant submits that she fulfils the ‘spirit of the visa program’. The Tribunal acknowledges that it is the case. 

12. In her submission to the Tribunal the applicant states that her employer has recently merged with another company. The applicant refers to the projects she is responsible for, stating that she contributes to the state economy due to her work with high worth clients, and claims that her employment constitutes a compelling need for her to remain in Australia. The Tribunal accepts that the applicant’s employment may constitute a compelling need for her to remain in Australia.

    The extent of compliance with visa conditions

13. There is no evidence of any non-compliance with visa conditions. The applicant notes that she has been working in a regional area, as her visa requires.

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

14. In her submission to the delegate the applicant refers to her employment, stating that she plays an instrumental role in the company. The applicant provided evidence of her employment and of her activities. The Tribunal accepts that evidence.

15. In her submission to the delegate, the applicant refers to the incidents that occurred during her residence in Vietnam and states that she does not wish to return to Vietnam. The applicant also provided her father’s medical records. The applicant refers to her settlement and future plans in Australia.

16. The applicant provided a statement to the Tribunal with her submission of 21 January 2022. In that statement the applicant referred to her previous employment and the harassment she claims to have experienced, outlined the nature of her relationship with her former partner, also referring to harassment from him and the effect on her mental health and her standing in the professional community in Vietnam. The applicant states that given the past events, she may be unable to find a job in the industry in Vietnam and she would be unable to support herself and her family. The applicant states that the cancellation of her visa may affect her psychological health and cause financial hardship. The Tribunal acknowledges that evidence.

17. The applicant states that her visa should not be cancelled, referring to the length of her stay in Australia, her achievements and the links she has formed in this country. The applicant also provided statements from her relatives in Australia and a number of friends, all of whom support the applicant’s stay in Australia. The Tribunal acknowledges that evidence. However, the Tribunal is mindful that the visa in question is a temporary visa only. It does not allow the applicant to remain in Australia and as a holder of that visa, the applicant cannot assume that she would be permitted to remain in Australia for a period beyond the visa validity period. Thus, the Tribunal is of the view that the applicant’s claims that she does not wish to return to Vietnam and wants to live and conduct business in Australia are misguided. The applicant will need to seek other visas that would enable her to do that, and she has indicated that it is her intention to do so.

18. The applicant states that her uncle had recently passed away unexpectedly, which had profoundly affected her. The applicant states that she supports her aunt emotionally and financially and hardship would be caused to her aunt if she is required to leave Australia. The Tribunal is prepared to accept that evidence.

19. The applicant refers to the hardship that would be caused to her, her aunt and family in Vietnam (who are financially dependent on her), as well as her employer. The Tribunal accepts that hardship would be caused to the applicant and others if her visa is cancelled, if the cancellation was to lead to the applicant’s departure from Australia.

    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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

20. The ground for cancellation arises because the applicant was granted the visa as a secondary applicant, being a member of the family unit and the spouse of the primary visa applicant. The applicant’s relationship with the primary visa applicant had ceased.

21. The applicant outlined her background, past relationships and employment in her detailed declaration and submission received by the Tribunal on 21 January 2022. The applicant also described the reasons that led to the breakdown of her relationship with the primary visa applicant. The Tribunal generally accepts the applicant’s evidence and is prepared to accept her description of the various events. The Tribunal is prepared to accept, for the purpose of this review only, that the applicant may have experienced family violence during the relationship.

    Past and present behaviour of the visa holder towards the department

22. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

23. 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

24. 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 and removed from Australia. The applicant 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.

25. In her submission to the Tribunal the applicant refers to the travel limitations caused by Covid, noting that it would be very difficult for her to return to Australia. The Tribunal acknowledges that would be the case.

26. The applicant states that if her visa is not cancelled, she would have other visa options and would be able to pursue other visas but she is presently barred from doing so by s. 48 of the Act. The Tribunal accepts that evidence.

    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

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

28. The applicant states that Australia has an obligation to protect her against family violence and violence against women. The Tribunal is of the view, however, that the cancellation of the visa does not equate to the applicant’s departure from Australia and the applicant has opportunities to seek other visas where her evidence would be assessed. The Tribunal does not consider that Australia’s non-refoulment obligations, or other obligations arising from international conventions would be breached as a result of the cancellation.

    Any other relevant matters

29. In her submission to the Tribunal the applicant argues that she could have met the visa requirements as the primary applicant, given her qualifications, language and other skills, and she provided to the Tribunal evidence in relation to various aspects of visa requirements. The Tribunal acknowledges that this may have been the case, but the applicant did not apply as a primary applicant, she made the application as a secondary applicant and met only the secondary criteria and because of that, the breakdown of her relationship with the primary applicant does offer a ground for cancelling the visa.

30. The applicant states that she has other options of gaining permanent residence, if her visa is not cancelled. The Tribunal accepts that evidence. The applicant refers to her employment, stating that she contributes significantly not only to her employer, but also to the state, her clients and members of the community. In her submission to the Tribunal the applicant outlined in some detail the nature of such benefits and the Tribunal is prepared to accept het applicant’s evidence.

31. The applicant refers to her father’s ill-health and the effect that the cancellation of her visa would have on her father.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the circumstances that enabled the visa grant no longer exist and that there are grounds for cancelling the applicant’s visa. However, the Tribunal has decided, in the circumstances of this case, that the visa should not be cancelled. This is because the applicant is fulfilling the broad purpose of this visa category by working in a regional area and making a significant contribution to her employer and the state economy, given the nature of her employment. The Tribunal accepts that the cancellation of the visa would not only cause considerable hardship to the applicant and her family members, but also to her employer and other members of the community. Importantly, in the Tribunal’s view, this is not the case where the applicant has been untruthful in her past dealings with the Department or where the visa was granted due to any misrepresentation on her part. There is no evidence of any misconduct by the applicant and the applicant has complied with the conditions of her visa and maintained employment in a regional area, in accordance with the purpose of the visa.

33. The Tribunal considers it significant that the applicant has the option of seeking a permanent visa in the future and would be prevented from doing so if her present visa is cancelled. However, should the visa be reinstated, the applicant will have the opportunity to seek another visa and, if granted, maintain her social, employment, financial and other links in Australia. In the Tribunal’s view, there is benefit in enabling the applicant to pursue that option in the future.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member