NG (Migration)

[2018] AATA 5261

NG (Migration) [2018] AATA 5261 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Meiyee Joan Hernandez NG

CASE NUMBER:  1718108

HOME AFFAIRS REFERENCE(S):           BCC2017/1755145

MEMBER:Nicola Findson

DATE:12 December 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 December 2018 at 1:48pm

CATCHWORDS
MIGRATION – Student (Class) (TU) visa – Subclass 573 Higher Education Sector – cancellation – circumstance for visa grant – no longer family member of primary applicant – acrimonious separation – subsequent new relationship and birth of child – best interests of child – applicant be given opportunity to demonstrate intention to study – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116(1)
Migration Regulations 1994, Schedule 2, r 140

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 August 2017 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. A copy of the delegate’s decision record was submitted to the Tribunal by the applicant for the purposes of the review. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance which permitted the grant of the visa no longer existed. 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 14 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, Mr Foo Hau Lee.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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.

8. The delegate’s decision record states that the applicant was granted a Subclass 573 visa, having met the secondary criteria, because she was a member of the family unit of Mr Man Kit Chan. 

9. According to the decision record, the Department sent the applicant on 17 July 2017 a Notice of Intention to Consider Cancellation (NOICC) as it had been informed that the applicant was no longer a member of Mr Chan’s family unit.  The applicant indicated to the Tribunal that she did not respond to the NOICC sent by the delegate to her, because she did not receive it.  The Tribunal notes from the Departmental file (at folio 20) that the NOICC was returned to the Department unclaimed.  The Tribunal accepts the applicant’s evidence in this regard, however notes that the review process conducted by the Tribunal cures any procedural error that existed at the primary stage.

10. At the hearing the applicant confirmed that he and Mr Chan had separated in about March 2017. Whilst their divorce has not been made official, they have remained separated since that time.  The applicant conceded that, with the ongoing separation, there were grounds for the cancellation, being their continued separation, a material change in the circumstances which permitted the grant of visa.

11. 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

12. 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’.

13. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and I have had regard to Departmental policy.

14. At hearing, the applicant told the Tribunal that she and Mr Chan first arrived in Australia in 2012 as holders of working holiday visas.  She said they were subsequently granted student visas, with Mr Chan being the primary visa holder, in 2013.  She said that they returned to Hong Kong to marry towards the end of 2013, before returning to Australia to enable Mr Chan to continue studying.

15. The applicant indicated to the Tribunal that the plan was for Mr Chan to complete his studies while she supported him, and then he would support her while she studied.  She indicated that she had made several inquiries about studying Child Care after their arrival in Australia.  She indicated that while she and Mr Chan were together she received a letter of offer to study at the Northbridge TAFE campus.  She said, however, that Mr Chan insisted she wait until he had completed his studies before she undertook her own.

16. The applicant indicated to the Tribunal that Mr Chan developed problems and their relationship “turned bad” in early 2017.  She indicated that Mr Chan simply stopped speaking to her.  She told the Tribunal that she did everything she could to keep their relationship together, but she was eventually forced to leave Mr Chan and the majority of her belongings in the home they shared.  She indicated that even though they had separated, she remained hopeful that they could resolve their differences.  However, she said Mr Chan continued to “play games” with her and was very spiteful towards her after they separated.  She gave an example of him initially refusing to allow her to return to their house to collect any of her belongings.  She claimed that when he did agree to her doing so the police turned up while she was in the process of packing because he had called them and made accusations that she was stealing his possessions.  The applicant told the Tribunal that she had also been required to (successfully) defend a Violence Restraining Order Mr Chan had taken out against her.  She indicated that Mr Chan had been extremely difficult to deal with, mostly ignoring her, when it came to trying to settle their affairs. 

17. The applicant told the Tribunal that she felt like she had lost everything when her relationship with Mr Chan was over.  She indicated that she has incurred significant costs in having to defend herself against actions he has subsequently taken against her, both in the criminal domain as well as in relation to her visa.  She told the Tribunal that she was diagnosed with depression which was directly attributable to the breakdown of her relationship with Mr Chan, and prescribed medication after they separated.

18. The applicant told the Tribunal that she met Mr Lee, a Malaysian citizen residing in Australia and undertaking higher sector study, in early 2017.  Mr Lee is currently enrolled in a Bachelor of Commerce degree at Curtin University, and has completed a majority of this course.  The applicant said that when she was at her lowest point Mr Lee provided her with friendship and support.  A relationship between the two of them developed after the applicant’s relationship with Mr Chan had ended and they welcomed a baby on 5 July 2018.  Evidence before the Tribunal supports this.  The implications of a visa cancellation are a cause of significant distress for the applicant, particularly in light of her new relationship and baby.   She is concerned that her family unit remain together.

19. In assessing the evidence, the Tribunal notes that the applicant presented as a persuasive, reliable witness.  It can be satisfied it can rely on her oral evidence to make many of its findings.

    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

20. The applicant said that her purpose had been to accompany her then-husband and support him while he studied.  She also stated that she had also planned to study in Australia.  With no evidence to the contrary, the Tribunal accepts that this was the intention of the applicant.  The Tribunal gives this no weight towards the visa being cancelled.

    the extent of Compliance with visa conditions

21. The applicant said that she had complied with all conditions on her visa and had not applied for another visa.  On the basis of her evidence and with no evidence to the contrary the Tribunal finds that the applicant has complied with conditions on her visa and gives this some weight in her favour.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

22. The applicant was very distressed when considering the situation she would face if she was forced to depart Australia.

23. The applicant indicated she had remained alongside Mr Chan for several years in Australia and spent a significant amount of her own money to support him while he studied.  The visa cancellation, as a result of the acrimonious relationship break down the Tribunal accepts occurred, would result in her having achieved no benefit from her time in Australia.

24. Also, in considering the Convention on the Rights of the Child, in particular Articles 3 and 9 as well as the policy guidance of the Department on these matters in the context of cancellations, the Tribunal considers that the best interests of the child in this case are a relevant consideration, and inclines it towards allowing the applicant to remain in Australia in order to ensure that a parental connection between the baby and both of her parents is maintained.

25. In this particular case, and on the evidence of the applicant, the Tribunal accepts that the applicant would suffer significant hardship if the visa remains cancelled and she was compelled to return to Hong Kong, without Mr Lee. The Tribunal also accepts that there is sufficient evidence to indicate that the applicant’s baby daughter would suffer hardship as a result of being denied the opportunity of the right to access to both parents. The Tribunal gives this factor significant weight towards the visa not being cancelled.

    circumstances in which 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

26. The Tribunal does not accept that the circumstances of the breakdown of the relationship were beyond the applicant’s control, nor does it accept uncritically her claims against Mr Chan, or that the fault is his or his alone.  However, there is also no evidence that the circumstances demonstrate bad faith on the part of the applicant, or an intent to circumvent or otherwise abuse immigration requirements, and the Tribunal gives this no weight towards the visa being cancelled.

    past and present conduct of the visa holder towards the department

27. According to the decision record, there is no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in her favour.

    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

28. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

29. If the visa were cancelled the applicant would be liable to removal. There is some chance that the applicant would not leave voluntarily, meaning that she may be liable to detention and involuntary removal. The Tribunal gives this factor little weight towards the visa being cancelled.

    whether there would be consequential cancellations under s.140

30. The Tribunal has considered that the cancellation will have implications for the applicant’s child, Miss Xin Ru Jennifer Lee, born in Australia on 5 July 2018. The Tribunal observes that although this child may not be listed as a dependent in Departmental records, by virtue of s.78 of the Act a baby born onshore in Australia is entitled to hold the visa of its parent(s).   Accordingly, if the applicant’s visa remains cancelled, this may result in the consequential cancellation of any visa held by the applicant’s daughter.  The Tribunal gives some limited weight to this consideration.

    whether any international obligations would be breached as a result of the cancellation

31. As set out above, the Tribunal does consider that the Convention on the Rights of the Child has some relevance to this case. There is potential for breaches of the above Articles if the applicant is removed and the applicant’s child is denied the opportunity to maintain her parental connection with both of her parents.

32. The Tribunal considers that there is scope for potential breach of the Convention if the applicant’s visa remains cancelled and gives this some weight towards the visa not being cancelled.

    any other relevant matters.

33. There are strong compassionate reasons for the grant of the visa, but the Tribunal must also consider the purpose of the visa, which is a higher education sector visa. In this regard however, the Tribunal notes that the student visa cancelled by the Department would have ceased on 15 March 2018 in any event.  The Tribunal is conscious that if it were to set aside the cancellation, the applicant would be required to apply for a further visa, and would be required to demonstrate she meets the relevant requirements in this regard.

34. The Tribunal has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. Whilst finely balanced, it considers that the discretionary factors above indicate that the applicant should be given an opportunity to maintain her new family unit and potentially convince the Department of her genuine intention to study. The Tribunal considers that, weighing the information before it, she should be given some opportunity to do that.

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

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Nicola Findson
    Member