Naz (Migration) - [2023] AATA 3766

Naz (Migration) [2023] AATA 3766 (7 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mahwish Naz
REPRESENTATIVE:  Mr Kashif Sultan
CASE NUMBER:  2305860
HOME AFFAIRS REFERENCE(S):          BCC2022/5695736
MEMBER:Noelle Hossen
DATE:7 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 07 November 2023 at 3:59pm

CATCHWORDS
MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – member of the family unit – relationship ceased – legal divorce in process – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 2, cl 491.311; r 1.12
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 April 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(a) on the basis that the applicant was no longer a person who was in a married relationship with the applicant as they were no longer living together and were living separately and apart on a permanent basis. 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 applicant appeared before the Tribunal on the 2 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
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). 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.
On 31 July 2022, the applicant was included as a dependent applicant for a Skilled Work Regional Provisional Visa, which listed Tahir Abbas DOB 21 July 1992 as the primary applicant and her as the spouse.
As part of the criteria for a Visa ground, and among other requirements, the applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Naz (Migration)

Details

AGLC: Naz (Migration) [2023] AATA 3766
Case: [2023] AATA 3766
Decision Date: 7 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, held by the applicant, Naz. The dispute arose because the applicant's relationship with the sponsor, who was a member of her family unit for visa purposes, had ceased, and a legal divorce was in process. This cessation of the relationship was the basis for the Department's decision to cancel the applicant's visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(a) of the *Migration Act 1958* (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider the applicant's circumstances, including her reasons for wishing to remain in Australia, her compliance with visa conditions, and the degree of hardship she might suffer if the visa were cancelled.

The Tribunal found that the ground for cancellation under s 116(1)(a) was satisfied because the applicant was no longer a member of the family unit of the sponsor. While the applicant expressed a desire to remain in Australia to practice dentistry, the Tribunal noted a lack of evidence that she could do so at that time, and no application for a new visa aligned with this purpose had been lodged. The Tribunal acknowledged the applicant's compliance with her visa conditions, which weighed against cancellation, but placed significant weight in favour of cancellation due to the facts of the case. Regarding hardship, the applicant cited threats from her family in Pakistan due to her impending divorce and reported mental health impacts, including suicidal thoughts. However, the Tribunal noted she had support from family and a mental health professional in Pakistan and could reside with her parents upon return.

The Tribunal was satisfied that the ground for cancellation existed and, after considering all relevant factors, exercised its discretion to affirm the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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 The applicant arrived in Australia on 17 December 2022 as the holder of a dependent Skilled Work Regional Provisional (Subclass 491) Visa and has remained on shore since that date. She advised the Department that she had obtained employment as a dental assistant in Wollongong. She said that as she is a qualified dentist by profession, she intended to sit for the Australian dental exam in the future so that she can practice dentistry whilst residing in Australia. The applicant acknowledges she wishes to remain in Australia so that she can practice dentistry. However, there is no evidence that she can practice dentistry at the moment. She gave evidence that she had qualified as a dentist in Pakistan and had worked in Pakistan as a dentist. She was studying in Italy but has not completed those studies as she has one semester to complete. There is no information before the Tribunal that indicates that the applicant has lodged an application for a new Visa that is in line with a new purpose for remaining in Australia. The applicant is presently residing in Wollongong. The Tribunal applies significant weight in favour of cancelling the Visa based on the facts of this consideration.the extent of compliance with visa conditions There is no information before the Tribunal that indicates that the applicant did not comply with the conditions attached to her Visa. The Tribunal places a little weight against cancelling the Visa on those facts.degree of hardship that may be caused (financial, psychological, emotional or other hardship) In the applicant’s response to the Notice she advised that she needed to remain in Australia because her family would not accept her after being divorced in Pakistan. She advises that her family has strong religious beliefs and have made a number of threats against her due to her divorced status. The applicant stated that her personal situation has resulted in several physical and mental health impacts including thoughts of suicide. The applicant was asked whether she had sought any assistance in respect of her mental health. She said that she had consulted a psychiatrist friend in Pakistan. The applicant has the support of her family and a mental health professional in Pakistan. She also indicated that if she returned Pakistan she would live with her parents.