Manan (Migration)
[2019] AATA 4217
•16 August 2019
Manan (Migration) [2019] AATA 4217 (16 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sahl Manan
CASE NUMBER: 1806930
HOME AFFAIRS REFERENCE(S): BCC2018/45546
MEMBER:Jason Pennell
DATE:16 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 16 August 2019 at 1.00pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – relationship ceased – no evidence provided – did not attend hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 48, 116, 189, 198, 441A
Migration Regulations 1994 (Cth), r 1.12
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
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 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116 (1)(a) of the Act on the basis that the particular fact or circumstance upon which the decision to grant the visa is no longer the case or no longer exists. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal invited the applicant to attend a hearing of his application for review on 16 August 2019 at 10.30am by a letter dated 17 July 2019. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender. The applicant, without any reasonable excuse, did not appear before the Tribunal on the day and time scheduled for the hearing.
Having reviewed the department file, the Tribunal has decided to exercise its discretion to proceed to determine the applicant’s application for review on the information and material currently before it.
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
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?
s.116(1)(a) - Fact or Circumstance for visa grant no longer exists
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.
Pursuant to s.116(1)(a) of the Act, subject to subsections (2) and (3), the Minister may cancel a visa if he or she 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 that no longer exists.
The applicant provided the department with a copy of his passport.[1] The passport lists his family members and his spouse. Based on the document provided by the applicant to the department the Tribunal finds that the applicant was born on 12 December 1987[2] in Amritsar, Punjab, India, and married to Preeti Mana.[3]
[1] Department File BCC2018/45546 @f.2
[2] Applicant’s passport dated [date]; AAT File 1830541 f.12
[3] Applicants marriage certificate registered on 26 October 2017; AAT File 1830541 f.12
On 22 June 2015 the applicant was granted a Student (temporary) Class TU (Student) (subclass 573) visa for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, Preeti Mana. The applicant arrived in Australia on or about 3 August 2016.
The applicant’s dependant Higher Education TU 573 visa was granted on the basis that he was a member of the family unit of the primary applicant Preeti Mana as prescribed by Regulation 1.12 of the Migration Regulations 1994 (Regulation 1.12).
Regulation 1.12 states as follows
‘1.12 Member of the family unit
(1)For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i)does not have a spouse or de facto partner; and
(ii) is usually resident in the family head‘s household; and
(iii) is dependent on the family head.
(2) A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the applicant; or
(b) a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18.
(2A) A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the holder; or
(b) a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18.
(3) In addition to subregulation (1), a person is a member of the family unit of an applicant for a Contributory Parent (Migrant) (Class CA) visa, being an applicant who was the holder of a Subclass 173 (Contributory Parent (Temporary)) visa at the time of application, if: (a) the person was a member of the family unit of the applicant, in accordance with subregulation (1), at the time of application for the Contributory Parent (Temporary) (Class UT) visa; and Federal Register of Legislative Instrum….’
To be a member of the family unit of Preeti Mana as prescribed by Regulation 1.12, the applicant needs to continue to be either a spouse or de facto partner of Preeti Mana as defined under s.5F and 5CB of the Act respectively.
On 30 December 2017 the department was informed that the applicant is no longer in an ongoing relationship with Preeti Mana and therefore no longer a member of Preeti Mana family unit. As a result, 20 February 2018 applicant was notified by the department of its intention to consider cancellation (NOICC) of his visa and invited the applicant to respond to the NOICC. The applicant did not respond to the NOICC and did not provide any reasons why his visa should not be cancelled.
Therefore based on the information before the department, it was established that the applicant (‘the dependant’) and Preeti Mana (the primary visa holder) were no longer in an ongoing relationship. As a result, the department found that as the relationship has ceased, the circumstances under which the visa was granted no longer exist and therefore it concluded to cancel the applicant’s visa under s.116(1)(a) of the Act..
Having considered the department file, the Tribunal is satisfied that 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
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.
The applicant was granted granted a Student Higher Education (TU573) visa for the purposes of being able to accompany and remain in Australia temporarily with hi spouse at the time and primary visa holder, Preeti Mana.
The information before the Tribunal, being the department file, establishes the relationship, which permitted the grant of his visa, ceased on 30 December 2017 and has not resumed or continuing. The applicant has not provided any response to the department and no evidence to the Tribunal to dispute that fact. As a result and in the absence of any correspondence or evidence from the applicant, the Tribunal finds that the applicant and Preeti Mana are no longer in an ongoing relationship and finds that the applicant is no longer considered a member of Preeti Mana family unit.
The Tribunal does not consider the purpose of the applicant’s travel to and stay in Australia provides any reason no to cancel his visa. Accordingly, the Tribunal places no weight to this consideration.
Degree of hardship that may be caused
The department was advised on 30 December 2018 and the Tribunal has found that the applicant is no longer in an ongoing relationship with Preeti Mana. As such, the tribunal finds that the applicant has ceased to be a member of Preeti Mana family unit as prescribed by Reg 1.12 and that he no longer satisfies the Higher Education Sector TU573 visa.
The applicant has not provided any response to the department and no evidence to the Tribunal to dispute that fact.
While the applicant did not appear to give evidence before the Tribunal, it accepts that the applicant may suffer some social shame as a result of his failed marriage. However, it does not accept that this represents a reason why he cannot return to India. There is no evidence to suggest that he would be threatened or harmed as a result of such embarrassment or social shame. The country information confirms that while the divorce rate in India is low[4], it is becoming more common particularly in the more urban area. As such, the Tribunal accepts that there is some social stigma attached to being a ‘divorcee’, however, it notes that such a stigma is generally worse for women than men as it is relatively easier for a man to marry again.[5] [6] As such, the Tribunal finds that the applicant will not suffer any hardship as a result of his social embarrassment or shame as a result of his relationship with his spouse coming to an end.
[4] DFAT Report 17 October 2018
[5]Scoop Whoop, India Has The Lowest Divorce Rate In The World, Here’s Why It Isn’t Necessarily A Good Thing’
[6]BBC’ What divorce and separation tell us about modern India’
In addition it may have been open to the applicant to have claimed some financial hardship as a result of the breakdown of his relationship. However, no information has been received by the Tribunal in relation to hardship the applicant may suffer. Accordingly, the Tribunal finds that the applicant will not suffer adverse financial hardship upon his return to India. As such, the Tribunal places little weight on this matter in the applicant’s favour.
As such the tribunal places little weight on this matter in the applicant’s favour.
The extent of compliance with visa conditions
There is no evidence of the applicant having breached any other conditions of his visa. Accordingly, the Tribunal places some weight on this consideration in the applicant’s favour.
Past and present behaviour of the visa holder towards the Department
The applicant has not engaged with the department or the Tribunal by failing to respond to the department’s notice of intention to cancel his visa and his non-appearance at the Tribunal hearing. Notwithstanding his failure to provide any evidence or information to the department or the Tribunal, no adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.
Persons in Australia whose visa would be cancelled under s.140.
The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.
Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.
Legal consequences of a decision to cancel the visa
If the visa is cancelled the applicant will become unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not depart the country voluntarily.
Additionally the applicant may be subjected to s.48 of the Act which will limit opitions of applying for further visas in Australia.
The cancellation of this visa will not be subjected to Public Interest Criteria 4013.
As the above consequences are intended by the legislation and affected by the force of the force of law the Tribunal places little weight on this factor in favour of the applicant.
Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.
The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.
Other relevant factors
Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.
Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 (Student) visa
Jason Pennell
Senior Member
by Arushi Kapoor 1 February 2019.
by Soutik Biswas India correspondent 29 September 2016,
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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