Mandal (Migration)

[2024] AATA 3965

Mandal (Migration) [2024] AATA 3965 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gulneer Singh Mandal

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2420100

HOME AFFAIRS REFERENCE(S):          BCC2024/1732272

MEMBER:Alan McMurran

DATE:4 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 04 September 2024 at 5:30pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – visa granted on fact or circumstance no longer the case or no longer exists – secondary visa holder as member of family unit of wife – arranged marriage – wife’s other partner and unilateral decision to end relationship – claim of domestic violence and dispute between families – mental health and treatment – consistent oral and documentary evidence – application for student visa in progress – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(a), 359A, 376

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Background

1. This is an application lodged 27 June 2024 for review of a decision dated 26 June 2024 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 (Cth) (the Act).

2. The delegate cancelled the visa under s116(1)(a) of the Act on the basis 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 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 relevant fact or circumstance was a marriage by the applicant, Mr Gulneer Singh Mandal, to Ms Parwinder Kaur (referred to herein as “Ms Kaur”). Both the applicant and Ms Kaur are citizens of the Republic of India and the applicant was the secondary visa applicant to an application by Ms Kaur for a Subclass 485 Temporary Graduate visa.

4. When the parties separated and the marriage ended, which is not in dispute, the delegate found that a relevant ‘fact or circumstance’ existed under the Act to consider cancellation of the applicant’s visa. The delegate then considered that this was not an appropriate case for the exercise of discretion in the applicant’s favour as to whether the visa should be cancelled.

   Tribunal process

5. The applicant appeared before the Tribunal on 30 August 2024 to give evidence and present arguments. The Tribunal received oral evidence from the applicant, argument and submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. No issues were detected or raised concerning the interpretation in either language.

6. The applicant was represented in relation to the review. The representative also attended the in-person hearing and provided detailed written and oral submissions.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   s376 – Non-Disclosure Certificate (NDC)

8. At the hearing, the Tribunal informed the applicant of possible adverse information under section 359A of the Act. The information was provided in a certificate attached to the documents produced for the Tribunal’s consideration.

9. The Tribunal informed the applicant that it is satisfied the NDC was a valid certificate under s376 of the Act, which had been properly dated and signed, and which referred to non-disclosure of specific information based on public interest considerations.

10. The Tribunal informed the applicant that the specific information concerned a police investigation into possible domestic violence and an intervention order before a court in Victoria.

11. In response, the applicant confirmed he was aware of Police action and an investigation, that he had responded, that he had not been charged or arrested and that he understood it was part of the information for the Tribunal’s consideration. He sought to explain further in his oral evidence.

    Findings on the NDC

12. The Tribunal considered the certified information was not unknown to the applicant, provided nothing additional to the information already before the Tribunal and was part of the information for consideration when determining the issues, including whether in the exercise of discretion, that the visa should be cancelled.

13. The applicant gave evidence at the hearing in response to the information which is referred to below. The applicant asked the Tribunal to consider his explanation in relation to the information.

14. The Tribunal subsequently provided a written copy of the certificate to the applicant who did not seek time for a further response, and made no comment as to the validity of the certificate or further request as to the contents.

    Migration Act- the cancellation issue

15. 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.

16. Relevantly, to this case, these include the ground set out in s 116(1)(a). The subsection provides simply:

    “116(1) subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (a) 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;”

17. If satisfied that the ground for cancellation is made out, the decision maker must then proceed to consider whether the visa should be cancelled, having regard to the specific facts of the case, government policy, and any other facts or circumstances considered relevant.

18. The first step in the process is to determine if a particular fact or circumstance relevant for the grant of the visa is a particular fact or circumstance which no longer exists.

19. If the fact or circumstance no longer exists, the decision-maker must then proceed to determine whether the visa should be cancelled.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

    s 116(1)(a) - Fact or Circumstance for visa grant no longer exists

20. The applicant provided a large amount of information to the Department, including a Statutory Declaration which he declared on 21 May 2024. The applicant confirmed for the Tribunal that the information contained in his declaration was all true and correct.

21. The applicant also provided with his written submissions for the Tribunal a bundle of documents. This included a copy of the Marriage Certificate evidencing that the applicant married Ms Kaur in India on 20 November 2023. The marriage was an arranged marriage as per Indian custom and culture.

22. On 8 May 2024 the Department had provided the applicant with a Notice of Intention to Consider Cancellation (NOICC) under section 116 of the Act. The notice set out the background to the applicant’s presence in Australia and refers to the grant of a Temporary Graduate (subclass 485) visa to the applicant on 5 February 2024, as the secondary applicant to the application by the primary applicant, Ms Kaur, and which was the basis for the grant of his visa.

23. The grant of the visa in those circumstances required the applicant to remain a member of the family unit of Ms Kaur. The notice informs the applicant that as his relationship with Ms Kaur no longer exists, a condition for the grant of the visa no longer exists and the visa may be cancelled. The notice invites his response under section 119 of the Act.

24. The applicant responded on 22 May 2024. The applicant’s response was detailed and outlined the basis of his relationship with Ms Kaur and his explanation as to how it came to end after his arrival in Australia. The applicant confirmed the matters in the NOICC and that the ground for cancellation in s116(1)(a) exists. The response asks the Department not to cancel the visa based on matters in consideration for the proper exercise of the discretion whether the visa should be cancelled.

25. In his oral evidence to the Tribunal, the applicant confirmed that he separated from the applicant in Australia on or about 6 March 2024, which was when he last spoke with her. The next day, he departed for India where he remained until 12 March 2024, and on his return to Australia, moved out of premises where he had been living with Ms Kaur’s sister in Victoria to an address in Blacktown in Sydney since 19 March 2024. He states he has had no further communication with Ms Kaur. He remains on a bridging visa pending determination of this review of the cancellation of his visa.

26. The delegate decided to cancel the visa on 26 June 2024 and on 27 June 2024 this application for review was lodged with the Tribunal. In his detailed submissions to the Tribunal made 27 August 2024, the applicant repeated much of the information already provided to the Department delegate.

27. The applicant also made submissions as to how the discretion should be exercised on whether to cancel the visa. The applicant notes in those submissions that the ground for cancellation arises because of the fact of the separation between the applicant and Ms Kaur. The submission then proposes that for a number of reasons, the discretion should be exercised so as not to cancel the visa. The Tribunal has dealt with those submissions as below.

    Applicant is no longer a member of the family unit of the primary applicant visa holder

28. Having regard to the information available, the Tribunal is satisfied that the applicant as secondary applicant for the grant of the Temporary Graduate subclass 485 visa, was dependent upon the established circumstance that he was in a marital/spousal relationship with the primary applicant and a member of the family unit of Ms Kaur, and that was the reason for the grant of his visa. The Tribunal is further satisfied on the available information including the applicant’s acknowledgement at the hearing that the relationship no longer exists. That has been the fact since on or about 6 March 2024 and the Tribunal is satisfied that the applicant is no longer a member of the family unit of Ms Kaur.

29. The Tribunal finds the applicant was validly notified by the NOICC under s116 of the Act, and invited to respond under s119. The applicant responded to the Department, and subsequently to the Tribunal, confirming he is no longer a member of the family unit of Ms Kaur.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s116(1)(a) of the Act exists.

31. 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

    Matters for consideration

32. 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’.

33. The Tribunal sets out below the matters considered and appropriate weightings in respect of each consideration.

    The purpose of the visa holder’s travel to and stay in Australia

34. The applicant was granted his Temporary Graduate subclass 485 visa on the basis that he was a member of the family unit of the primary applicant who holds such a visa, and granted on the basis of her having satisfied the primary criteria for the grant of the visa. The applicant gave some background evidence about his relationship with Ms Kaur. He said that in India he had obtained formal qualifications in nursing and a degree in science relevantly for that profession. Ms Kaur, who had been in Australia since 2018, had qualified on a student visa as a Chef when the families of the couple arranged for them to be married. Ms Kaur travelled to India for that purpose and the couple were married on 20 November 2023. After a short honeymoon in Dubai, the applicant returned to India and after a stay with the applicant’s parents, Ms Kaur returned to Australia on 15 December 2023.

35. The applicant’s subclass 485 visa was granted on 5 February 2024 and he arrived in Australia on 21 February 2024. He said his only reason for coming to Australia was to support his spouse and to make a life for them here as that is where she intended to reside. He initially stayed in Melbourne with Ms Kaur’s sister and her husband who are both Australian citizens. The applicant asserts that not long after his arrival, he was informed by Ms Kaur that she had another partner and would not be continuing their relationship. He said he became anxious and depressed while living with his wife’s relatives and decided to return to India to discuss the issue with his family and where he fell ill. He said the families in India were in dispute over the breakdown of the relationship and that various demands and threats were made by his wife’s Indian relatives. These matters were reported in India and investigated by police there without any conclusion, although there is now remaining enmity between the families which is unresolved.

36. Having provided this background, the applicant said that his initial visa and travel to Australia was for the purpose of supporting his wife and to enable him to remain here in order to do so. He said he longer intends to pursue Ms Kaur in order to continue their relationship and has himself now made application for a student visa. He says he intends to remain in Sydney where he hopes to enrol in a course to pursue business studies. He said his ambition is to learn management skills so he can return to India to establish his own business in aged care. He said he would not be able to undertake such a skilled course in India separate to his career in nursing, but that it would be necessary for him to acquire those skills to commence his own business in healthcare. He wants to remain in Australia to acquire those business qualifications.

37. The applicant readily conceded that he no longer had a relationship with Ms Kaur and there was no purpose for him to remain in Australia to support her. As the applicant is no longer able to meet the requirement for the grant of his subclass 485 visa and its purpose which was to enable him to accompany her as a member of her family unit, the Tribunal finds that the purpose for the applicant’s travel to and stay in Australia no longer exists.

38. The Tribunal gives little weight to that consideration against cancellation of the visa.

    The extent of compliance with visa conditions

39. On the available information, the Tribunal finds that the applicant has at all times complied with his visa conditions and the requirements of the Department when it issued the visa. The Tribunal finds therefore there has been no non-compliance by the applicant with any visa conditions.

40. The Tribunal gives little weight to that consideration against cancellation.

    The degree of hardship that may be caused to the applicant visa holder

41. The Tribunal listened carefully to the applicant’s evidence. The Tribunal is satisfied on the evidence that the applicant came to Australia genuinely to support his spouse, giving up his career and employment in India for that purpose and to meet his family commitments. The Tribunal has accepted the applicant’s statements in his response to the NOICC. The Tribunal finds that it is not necessary for it to make any findings concerning the allegations about the current family dispute which has erupted in India since March 2024. It does accept however that the extent of family disagreements arising from the marriage breakdown have caused the applicant significant distress and anxiety. The applicant was particularly concerned that Ms Kaur’s family in India had made threats to demand money, and had threatened him personally that allegations would be made of domestic violence on his part in order to provoke the loss of his visa and compel him to return. The threats also included production of a forged pregnancy test by Ms Kaur’s family, which Indian police had apparently disregarded.

42. It is possible to make findings as to the degree of emotional and psychological hardship facing the applicant, without the need to make any findings concerning untested and disputed allegations. The applicant confirmed that he had attended voluntarily at the police station in Victoria after an allegation had been made against him of domestic violence, which he disputes. He states that his wife left their Melbourne premises shortly after telling him the relationship would not continue, and to resume her employment as a chef at Apollo Bay, some distance from Melbourne. Shortly after that the applicant returned to India and on his return to Australia relocated to Sydney. An intervention order in relation to a complaint made in Victoria is currently being investigated and details were not made available, nor considered by the Tribunal. The applicant was willing to share information which the Tribunal declined to hear on the basis that it would not be appropriate for him to share information yet to be determined by a court.

43. It was evident however to this Tribunal that the applicant was stressed and anxious due to the circumstances and not understanding fully how his current situation had arisen and why it was continuing. He provided evidence from his local GP practice at Blacktown for prescription medicine and for a referral for counselling. He submitted a report from a clinical psychologist made 23 August 2024 reporting on a second counselling session and the applicant’s anxiety said to arise from “stress since the dissolution of their relationship”. The applicant said he continues to receive counselling and will respond as required to court proceedings arising from the complaint in Victoria. He said he was seeking legal advice in that regard and was represented. He said he had voluntarily attended a police interview in Victoria before he departed and was unaware of any further developments from police as regards any investigation which was underway. The applicant said he is now living in Sydney with friends and is hopeful of obtaining a student visa to enable him to start his business studies. He said that he had borrowed funds from his family and that it would be difficult for him to return to India where the families remain in dispute. He said there is shame attached to the breakdown of a relationship and Indian culture would leave him criticised, notwithstanding the allegations made against him were false and designed to humiliate him. He said he would have difficulty dealing with the stress from the marriage breakdown which he had not caused and which had arisen suddenly and unexpectedly. He believes the allegations against him including domestic violence are designed to create a reason for him to lose his visa and return to India, that there has been limited contact between him and his wife before they separated and that his current circumstance was all brought about through no fault of his own.

44. The Tribunal listened carefully to the applicant’s evidence and accepts that the applicant will face continuing anxiety and distress while the outcome of his stay in Australia is uncertain and the possibility of a future visa being granted unknown. The Tribunal accepts the applicant is receiving treatment and counselling to deal with his anxiety and depression. The Tribunal further accepts that in addition to the health impacts, the applicant may suffer continuing employment difficulties were he to return to India because of the cultural shame he may suffer. Furthermore, the applicant may be prevented because of the cancellation of his visa from making further visa applications and where his current application would be unlikely to succeed.

45. The Tribunal attributes some considerable weight to these considerations against cancellation of the visa.

    If there are any extenuating circumstances in which the ground for cancellation arose including whether the circumstances in which the ground for cancellation arose were beyond the control of the visa holder and whether the relationship breakdown was as a result of family violence

1. As the holder of the 485 visa as a secondary applicant, and as a member of the family unit of the primary applicant, it is the circumstances outlined above which have resulted in a termination of his relationship with the primary applicant and led to the cancellation of his visa.

2. The applicant has enlarged on those circumstances considerably in his oral evidence. The evidence includes a large-volume of written material surrounding the dispute between the families in India supported with various witness statements. A copy of the Indian police report determining to take no action is also included. The applicant submits that where no action was taken on complaints from the wife’s relatives, it corroborates his version of events for which he was not responsible and places the circumstances giving rise to the cancellation in its proper context, placing responsibility for his circumstance at the feet of the primary applicant, Ms Kaur.

3. The Tribunal put to the applicant that as there was no longer a reason for him to remain in Australia why he would not return to his family in India and his previous occupation. He explained that having arrived in Australia where he is now being supported by friends in Sydney and still by his family in India financially, he would prefer to remain in Australia and improve his business prospects for when he returns.

4. The Tribunal accepted the applicant as a witness of truth and his statements were in large measure consistent with all the information provided to date. The Tribunal notes that the family history is relatively recent and it encompasses only a short period during the relationship from November 2023 until February 2024 and those matters are still fresh in the applicant’s recollection. Without making any specific findings concerning any allegations which it is not in any position to do, the Tribunal accepts in general terms the applicant’s evidence and his background information and explanation as to how the circumstances arose before his cancellation. The Tribunal accepts that in general terms the matters as they have developed were beyond his control, sudden, and unexpected.

5. The Tribunal is further satisfied for the purposes of this review only, that having considered what little information is available and on the evidence of the applicant which is accepted, that the relationship breakdown was the result of a decision unilaterally made by the applicant’s wife not to continue their marriage.

6. The Tribunal has considered whether family violence has played any role, but is unable to draw any factual conclusion in that regard where the Victorian police are apparently still conducting their own investigation. There is no evidence before the Tribunal of any family violence allegations in the form of any court report or interim intervention order. The primary applicant, Ms Kaur, had been in Australia for several years, did not know the applicant before November 2023 and where the marriage was arranged by their respective families. They had spent very little time together either in India or in Australia before the primary applicant terminated the relationship. There is evidence submitted which shows Ms Kaur had already commenced another relationship which was not revealed until the applicant arrived in Australia, and for which reason he was compelled to suddenly leave the household. The Tribunal is generally satisfied that these were matters beyond the control of the applicant.

7. The applicant himself has addressed the family violence issue and has submitted a statement from a professional Social Worker made 22 August 2024. The social worker, from the Harman Foundation Ltd, is expert in delivery of victim support services and intervention services for survivors of family violence, and interviewed the applicant on 16 July 2024. The applicant gave the examiner a history similar to that presented to the Tribunal about the behaviour of his wife and her desire to end the relationship quickly. The examiner determined that the applicant displayed symptoms of shock and deteriorating health. The examiner held further consultations with the applicant and assessed that he displayed symptoms of trauma, anxiety and depression. The examiner has encouraged the applicant to continue counselling sessions to deal with his anxiety and depression as a victim of domestic violence “perpetrated by his wife”.

8. The Tribunal places some weight on these considerations against cancellation of the visa.

9. The visa holder’s past and present behaviour towards the Department

10. On the available information, there is nothing adverse reported against the applicant or evidence that he has not been cooperative towards the Department.

11. The Tribunal gives little weight to this consideration against cancellation of the visa.

12. Whether there are persons in Australia whose visas would, or may, be cancelled under s140

13. In this application, there are no persons in Australia whose visas would or may be cancelled as a consequence of the applicant’s cancellation.

14. The Tribunal gives no weight to this consideration against cancellation of the visa.

15. Whether there are mandatory legal consequences to a cancellation decision

16. As a result of cancellation, it is likely that the applicant will face a bar for a period which will prevent him from making any further visa applications. His current student visa application is unlikely to succeed. The applicant will be unable to remain onshore in Australia and would face detention and deportation if not voluntarily departing. It is furthermore unlikely that the applicant would meet any relevant criteria for Ministerial intervention to prevent his removal.

17. The applicant has been in Australia for only a few months since February 2024 and in which time he has not provided evidence of any establish social or commercial relationships, his principal focus having been on the breakdown of his marital relationship. He is aware of the consequences resulting from a cancellation and would be prepared to return to India voluntarily. He has expressed no reason why he would not be able to return safely. He prefers however to have the opportunity to remain in Australia to improve his education and training. A cancellation will deprive him of that opportunity.

18. The Tribunal gives a little weight to this consideration against cancellation of the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

19. There is no information before the Tribunal and no submission made by the applicant of any relevant international agreements that would be breached as a result of the visa cancellation.

20. The Tribunal gives no weight to this consideration against cancellation of the visa.

21. Any other relevant matters

22. The Tribunal has considered all of the available information from the written submissions and the oral evidence. The Tribunal has found that the ground for cancellation under s 116(1)(a) of the Act exists. The Tribunal has considered the Policy guidelines and matters relevant for the exercise of its discretion whether the visa should be cancelled.

23. As noted, the list of matters for consideration is not mandated nor finite. The process involves weighting the different matters considered overall, on a cumulative basis, and assessing how best to exercise the discretion to arrive at the correct and preferable decision. It is not an exact science and minds may differ as to the weight to attach to various considerations. The applicant’s credibility when giving evidence and submitting arguments is also a factor to consider when determining the accuracy of factual matters relied upon. The applicant has presented as generally truthful and reliable in the Tribunal’s opinion.

24. The Tribunal considers that the applicant will suffer some significant hardship as a result of the cancellation of his visa which shall prevent him obtaining his goal of improving his education and his opportunities and prospects on return to India, for no fault of his own. It would also make it difficult for him were he ever intending to return to Australia in the near future and his visa prospects would be limited. The applicant has already commenced an application for his own visa and seeks an opportunity to pursue that application.

25. Taking all the available information into account, the Tribunal finds the information and weight of consideration is in favour of exercising the discretion not to cancel the visa for the reasons given above.

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

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Alan McMurran
    Member