Melathethil Chellappan (Migration)

[2019] AATA 1276

Melathethil Chellappan (Migration) [2019] AATA 1276 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sijin Melathethil Chellappan

CASE NUMBER:  1820143

HOME AFFAIRS REFERENCE:                BCC2016/2499375

MEMBERS:Lilly Mojsin (Presiding)

Frank Russo

DATE:11 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 11 April 2019 at 1:12pm

Statement made on 11 April 2019 at 1:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Court remittal – ground for cancellation – member of family unit – relationship with primary visa holder ceased – consideration of discretion – purpose of visa grant – discrepancies in accounts of events leading to relationship breakdown – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 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 22 September 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant’s Student visa was granted on the basis that he met, amongst other criteria, the secondary criteria for this visa on the basis he was a member of the primary visa holder’s family unit. Namely, he fell within the definition of a ‘Spouse of de facto partner’, within the definition of ‘Member of the family unit’ contained within Regulation 1.12 of the Migration Regulations 1994 (Cth). Under s.5F of the Act the relationship must be ‘genuine and continuing’ (s.5F(c)) and the primary and secondary applicants must ‘live together’ and not ‘live separately and apart on a permanent basis’.

3. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was no longer a member of the family unit of the primary visa holder, and therefore a circumstance which permitted the grant of the visa no longer exists.

4. The applicant appealed that decision to this Tribunal on 30 September 2016, annexing a copy of the Department’s decision to his application for review.

5. A differently constituted Tribunal affirmed the Department decision on 9 March 2018.

6. The applicant appealed that decision and the Federal Court of Australia, by order the dated 10 July 2018, remitted the decision to the Tribunal.

7. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

8. 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

9. 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.

   Does the ground for cancellation exist? – s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

10. 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.

11. At the Tribunal hearing the applicant said that he entered Australia in 2016, most likely February. His wife was enrolled to study nursing in Perth. When asked by the Tribunal about the status of his relationship, the applicant confirmed that they were separated. He stated that they have not legally divorced. They separated in March 2016, when he left Perth and moved to Sydney, where he has resided since their separation.

12. The Tribunal asked the applicant whether he had seen and understood the Department’s decision. The applicant confirmed that he understood the decision and stated that the reason for the cancellation of the visa was because he was the secondary applicant, and he was no longer in a relationship with the primary visa applicant. He agreed those circumstances are not in dispute.

13. He told the Tribunal that he was supposed to be the primary applicant. He had organised to study in Australia and he was going to submit as primary applicant, but his wife and her family were more influential and powerful and they overrode his decision. He stated that his father is a retired military officer, and told him that he should be the primary applicant. His wife’s family told him he should give them 5 lakh for applying with his wife as her dependant. He said that he paid this money to her father. The money was transferred into the bank to her family. It was the only money he had from his work in the UAE immediately prior to marrying his wife. 

14. The applicant told the Tribunal that he met his wife on the internet, in the matrimonial section of a newspaper. It was only after chatting to her for six months on the internet that he approached his parents. His parents made enquiries about his wife’s family background and said they did not recommend the relationship as the family did not have a ‘good moral reputation’ in the locality where they are from. The applicant said that by that stage he was connected to her. They married in a registry, but he told the Tribunal that the marriage was not for the purpose of moving to Australia. They lived together as husband and wife for 6 months in a flat in Cochin, India.

15. The applicant gave evidence that prior to marrying he worked from 2014-2015 at the client service desk of a hospital in Abu Dhabi.  He also had a background in Nursing, which he had studied part-time. He had completed a Bachelor in IT, soon after which he got job a in an airport and studied an airport management course. He was then offered his job in the hospital in Abu Dhabi, and he stated that another reason why he didn’t finish these studies was because of the financial demands placed on him by his family, with his mother and father both ill.

16. The Tribunal finds that the purpose for the applicant’s travel to and stay in Australia was to accompany his wife, a student, who was the primary visa holder, while she was studying in Australia. He separated from his wife in March 2016 and has since lived in Sydney while his wife continues to reside in Perth. The applicant no longer falls within the definition of a ‘Spouse or de facto partner’ within the definition of ‘Member of the family unit’ within Regulation 1.12 as the applicant does not live together with his wife and has lived separately since March 2016. The Tribunal is satisfied on the evidence before it that the circumstances which permitted the grant of the Student visa to the applicant have now ceased. 

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

18. 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

19. The applicant stated at hearing that he came to Australia with his wife, who planned to study Nursing. He had a Bachelors degree in IT, which he had obtained in India, and he also intended to study in Australia.

20. The Tribunal discussed with the applicant his reasons for remaining in Australia. The applicant has stated that it is his desire to study in Australia. He enrolled in a course at the Australian Institute of Personal Trainers in Parramatta approximately one year ago. He received some lessons, however he had to request an extension in relation to the payment of fees. He stated that he has not been able to keep up because he was trying to make ends meet financially and he had to be here or there and he missed some classes. The applicant said he wishes to continue with the studies he has commenced. The Tribunal is not satisfied that this is sufficient to establish that the applicant has a compelling need to travel or remain in Australia.

21. As the purpose of the applicant’s travel and stay in Australia was to accompany his wife, a student, and their relationship has now ceased, in the absence of compelling reasons for the applicant to remain in Australia, the Tribunal gives this great weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

22. In regard to his compliance with the conditions of his visa, the applicant said that he was not able to study or attend any course himself and was not able to work more than 20 hours per week. He stated that he has complied with his visa conditions. Since moving to Sydney he has been the holder of a Bridging visa Class E. He stated that he has always worked a maximum of 20 hours per week. There is no evidence before the Tribunal that the applicant did not comply with the conditions of his Student visa. The Tribunal gives this some weight against cancelling the visa.

    The degree of hardship that may be caused to the applicant and any family members (financial, psychological, emotional or other hardship)

23. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant said that his original plan was to improve his qualifications and to ‘be somebody’, but the situation with the breakdown of his marriage has put him in a predicament. He stated that he wished to be the primary applicant for study in Australia, however his wife and her family exercised their influence, and he was therefore the secondary applicant. He stated that he needs a chance to remain in Australia to work and to assist his family. He stated that both of his parents are unwell and his older sister also suffers an illness.

24. The applicant also claims that:

    ·He has spent $6000 in payments to the Australian Institute of Personal Trainers. He has not yet completed these studies and wishes to have the opportunity to do so.

    ·The savings that he had from Abu Dhabi were given to his wife’s family to support her in her studies.

    ·Since arriving in Australia he has been without personal support. He approached his brother and sister who live overseas and asked them to financially support his studies in Australia. He has obtained a loan from them, which he will need to repay.

    ·In deciding to come to Australia he gave up a good job in Abu Dhabi, where he was settled and had a good social life. He stated that in Australia he has neither of these things and that his career had been ruined.

    ·His father has had two strokes and his mother is undergoing treatment for stomach cancer. His parents are not in a position to hear about his predicament, therefore he has been unable to communicate it to them.

    ·He is responsible for supporting his parents and one of his sisters, including supporting his parents with their medical expenses. He wishes to be able to support his parents by obtaining a professional degree in Australia. The applicant stated that he had documentary evidence to support his claims about his parents’ illnesses. The Tribunal noted at the hearing that it accepted his evidence about his parents’ illnesses.

    ·If he returns home he will receive no help and he will be unable to help himself. He had to borrow money to be in Australia.

    ·In an email which he provided to the Department on 20 September 2016, the applicant refers to being depressed and his parents being in debt. At the hearing the applicant did not raise any issues of depression and did not provide any medical records in relation to any conditions which he may suffer.

25. The Tribunal accepts that it was reasonable for the applicant to be depressed as a result of the circumstances in which he described, but as no medical reports were provided with respect to a medical diagnosis of depression, the Tribunal is unable to assess this as part of the applicant’s claims with respect to the degree of hardship that may be caused.

26. The Tribunal accepts that the applicant has spent $6000 in payments to the Australian Institute of Personal Trainers and has not yet completed these studies and wishes to have the opportunity to do so. The Tribunal also accepts that he has been without personal support in Australia and he will have financial hardship in repaying a loan to his brother and sister.  The Tribunal also accepts that his parents are not well, that he has had to borrow money and that he wishes to support his family. The Tribunal also accepts that the applicant wishes to further himself professionally and to obtain a degree in Australia. The Tribunal gives this consideration some weight against cancelling the visa.

    The circumstances in which the 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.

27. The applicant gave evidence that he and his wife lived in a marital relationship in Australia for two months. When they arrived in Perth he had no job, but he took a job in construction, as a ‘construction assistant’. His work hours were not regular. His wife was studying and returning home late. When he asked her why she returned home so late she did not respond. He asked whether her studies were holding her up, but he did not get a satisfactory answer from her. He said that one day, out of curiosity, he wanted to find out why she was coming home late. He finished his job early and waited for her at her place of study. He waited until 9:00PM, when he saw her go with another man in a car. He asked some other people in the college whether they knew who the man was, and they said they usually go together. That same night she came home late and he asked her for an explanation. He stated that she did not give him any answer. For two days they did not talk to each other, after which she left him. He stated that later on he searched for her at the college and other familiar places, but he did not get a chance to see her again.

28. In response to this evidence the Tribunal asked whether the applicant saw his wife again after she left. He said that he tracked her to down at a place where she did babysitting. He asked her why she did not contact him and she responded that it was best that they separated as she had a different man now. He stated that this was the only interaction between them after she left and whenever he tried to ring her up she gave him threatening warnings. She cancelled his visa and contacted the police. He received a Violence Restraining Order (VRO) from the police. He signed the order but he didn’t know what a VRO was and didn’t understand its implications. He said he didn’t want to stay there, so he left to go to Sydney shortly after this. After this they communicated sometimes through video chat. Other than receiving a phone call from the Wembley Police Station in Perth, when the police asked whether he had been in contact with his wife, the police did not take any further action. He told the Tribunal that despite this, his wife continued to contact him several times. He said that he still had hope of continuing their relationship, but that things turned against his wishes and hope. He stated that he did not wish to separate as there would be nothing for him.

29. The Tribunal asked the applicant whether he and his wife had a good relationship prior to her leaving. He said that it was, but during the two days leading up to her departure he was trying to communicate with her, but she would get on her mobile phone and leave the room. When asked whether prior to that he didn’t think there were any problems with their relationship, he responded that they had married at a registry, but the relationship was sincere on his part. He stated that he still had hope that she would come back.

30. The Tribunal put to the applicant that it was having difficulty reconciling the evidence he had given at hearing about his relationship and the account he gave the Department in an email dated 29 September 2016 in response to the notice of intention to cancel his visa. The Tribunal put to the applicant that in that email he told the Department that his wife was intermittently depressed, that she stopped cooking and was on the phone full-time. The Tribunal also put to the applicant that in his email he recounted an incident where his wife drank alcohol at a friend’s house in the lead-up to their relationship ending and raised that the scenario he had given for his marriage breakdown was different to the one which he had given to the Department. In particular, he had told the Tribunal that their relationship had been good up until two days before she left, but in the account to the Department he raised issues which preceded her departure.

31. The applicant stated that he may have missed some details from each account, but both accounts are true, and he apologised for not providing all of the information in each account. He explained that since his wife had left he has had no-one to speak to about what happened. He stated that there may be a few mistakes between his oral evidence and his written statement to the Department, but each account is not far from the truth.

32. The Tribunal finds that there are significant discrepancies between the two accounts, which are not merely a matter of having omitted certain details. In particular there are discrepancies as to his statements about the catalysing event that resulted in his wife leaving, the location of the event, the communication between them over the subsequent days and the level of effort required to find her after she left.

33. The Tribunal accepts that the applicant received a VRO and was not aware of the significance of the document. The Tribunal also accepts that the police took no action against the applicant subsequent to the issuing of the VRO. Therefore the Tribunal is not satisfied that the applicant was the perpetrator of domestic violence.

34. In light of the inconsistent evidence given by the applicant to the Tribunal and to the Department, the Tribunal is not satisfied that the relationship broke down because of family violence. The Tribunal is also not satisfied that the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal gives this weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

35. At the hearing the applicant stated that he has always behaved humbly in relation to his dealings with the Department. The decision of the delegate notes that the applicant has been cooperative with the Department. The Tribunal notes in this regard that the applicant sent an email to the Department on 20 September 2016, in response to the Notice of intention to cancel his visa. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

36. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. The Tribunal does not give this consideration any weight against cancelling the visa.

    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

1. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   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

2. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   Any other relevant matters

3. The applicant raised a number of matters such as the health conditions of his parents and older sister, the need for him to financially support his family, the monies he has paid for studies at the Australian Institute of Personal Trainers and, in his written statement and his depression. These have been considered under the consideration of hardship and so need not be considered again.

4. The Tribunal drew to the applicant’s attention certain information on file that would not form part of the Tribunal’s consideration. The applicant was informed that the information is located at folios 6,7,38 of the Department’s file, which were provided by the Department with a non-disclosure certificate preventing the provision of the documents to the applicant.

5. Section 375A provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.

6. The tribunal has considered the validity of certificates, which were issued by the Department under Sections 375A. The Tribunal is satisfied that the Department has established a credible reason why access to the information at folios  6, 7 and 38 of the Department’s file are covered by the 375A certificate, dated 23 April 2018, would be contrary to the public interest, as the particulars of the information includes information which may contain personal identifiers and personal information. The Tribunal finds the certificate issued under Section 375A of the Act is valid. The Tribunal determined it was appropriate to nonetheless provide applicant with the essence of the information covered by this certificate. The Tribunal advised the applicant about the information contained at folios 6-7, which was about the applicant’s marriage was not being genuine and having broken down. This information was also located elsewhere within the Department’s file (folios 9, 12, 29, 30), within documents not covered by the 375A certificate. The Tribunal advised the applicant it would not rely on that information as the applicant had conceded that the marriage was at an end. In regard to the information at folio 38, the Tribunal advised the applicant that this contained allegations about incidents in India and it was not relevant to the considerations before the Tribunal.

7. There are no other relevant matters which give weight against or in favour of cancelling the visa.

   Weighing discretionary considerations

8. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. In considering the circumstances as a whole the Tribunal gives great weight to the purpose of the visa holder’s travel and stay in Australia and finds that it outweighs those considerations which give some weight against cancelling the visa.

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Lilly Mojsin
   Member

   
   

   Frank Russo
   Member