Moonesawmy (Migration)

[2022] AATA 2791

Moonesawmy (Migration) [2022] AATA 2791 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yavindren Moonesawmy

CASE NUMBER:  2105356

HOME AFFAIRS REFERENCE(S):          BCC2021/466908

MEMBER:Joseph Francis

DATE:7 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 7 July 2022 at 4:06pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – purpose in Australia is no longer for which the visa was granted – relationship had ended – no compelling reasons for the applicant to remain in Australia – decision under review affirmed

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 21 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that the review applicant was no longer in a relationship with the primary visa holder. 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 appeared before the Tribunal on 27 June 2022 to give evidence and present arguments.

4. 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

5. 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 grounds 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?

6. 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.

7. The review applicant, Mr Yavindren MOONESAWMY, first arrived in Australia on 3 May 2017 on the basis of being in a genuine and continuing relationship with his then partner, Ms Jolena Beatrice Monique MOONESAWMY, being the primary student visa holder.

8. The visa which is the subject of this review was a subsequent visa granted on 5 December 2019.

9. A submission provided by the visa holder’s authorised representative states that the relationship between the visa holder and Jolena Beatrice Monique MOONESAWMY ceased permanently in 2018. This conflicts with the information provided by the visa holder in his personal statement where he states that Jolena Beatrice Monique MOONESAWMY requested separation from the visa holder in January 2020 and that he moved out after this.

10. Regardless, a significant time being a minimum of some two and a half years has passed since the relationship ended.

11. Given that the review applicant separated from his ex-partner over two years ago, the Tribunal is satisfied that his purpose in Australia is no longer for which the visa was granted.

12. At the hearing held on 27 June 2022, Mr MOONESAWMY provided evidence that the relationship had finished and that his ex-partner is already married to someone else.

13. Given this clear situation, the Tribunal finds the basis for granting the visa no longer exists.

14. 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

15. 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.’

16. The purpose of the applicants travel to Australia was as a dependent of his ex-partner. As the parties are no longer in a relationship, the Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

17. There is no information before the Tribunal with regard to compliance of the visa conditions.

18. The Tribunal notes the reply provided by the applicant on 24 March 2021 in response to the Notice of Intention to Consider Cancellation (NOICC) dated 10 March 2021. However, no further evidence, submissions or arguments have been submitted for the Tribunal to consider, with regards to the following:

    ·    degree of hardship that may be caused

    ·    circumstances in which ground of cancellation arose

    ·    past and present behaviour of the visa holder towards the department

    ·    whether there would be consequential cancellations under s 140

    ·    whether there are mandatory legal consequences

    ·    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

    ·    any other relevant matters

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

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Francis
    Member