PATEL (Migration)

[2019] AATA 1373

PATEL (Migration) [2019] AATA 1373 (9 May 2019)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs PALAKBEN MAULESHKUMAR PATEL

CASE NUMBER:  1703223

HOME AFFAIRS REFERENCE(S):           BCC2016/3150080

MEMBER:Melissa McAdam

DATE:9 May 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 09 May 2019 at 10:44am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend hearing – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – consideration of discretion – insufficient information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 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. The applicant was granted the Subclass 573 on the basis she was a member of the family unit of her then husband, Mr Mauleshkumar Patel, a Subclass 573 visa holder.

3. On 25 September 2016 Mr Mauleshkumar Patel wrote to the Department stating he and the applicant were separated and would divorce.  He stated he would like to withdraw his sponsorship for her visa.

   NOICC

4. On 13 February 2017 the Department sent a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa under s.116(1)(a) of the Act, namely 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 Department informed the applicant that the primary visa holder, her then husband, had advised it that his relationship with the applicant had ended. Therefore the applicant no longer met the definition of being a member of his family unit, and the circumstance on which the applicant had been granted the visa no longer existed.

   Applicant’s Response to the NOICC

5. On 16 February 2017 the applicant wrote to the Department stating:

   a.She understands that the ground on which she was granted her visa has ceased to be in effect.

   b.She has never tried to mislead the Department and she has always adhered to her visa conditions and the laws of Australia.

   c.She belongs to a very rigid and conservative Indian community. Relationship breakups are taboo.  If her visa is cancelled she will face the wrath of her family.  Women are considered to need the protection of a father, husband or son.

   d.She caught her husband cheating on her so decided to separate from him.  They are not yet formally divorced.  She was in communication with her husband and trying to repair their relationship.

   e.The situation and the ceasing of the circumstance on which her visa was granted, were beyond her control.

   f.She likes Australia’s education system and would like to study in Australia. She has taken her IELTS exam. She would like a chance to apply for a Student visa as a primary applicant.

   g.She would like to stay in Australia. She likes Australia, the lifestyle and the education system here.

   h.She would like to save herself from disgrace in India.

   i.She would like to get a qualification in Australia.

   j.She will accept the department’s decision, whatever it may be.

6. The delegate cancelled the visa under s.116(1)(a) on the basis that the circumstance on which her visa was granted had ceased to exist. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. On 14 March 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 6 May 2019. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.  The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

9. 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

10. 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?

11. 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.

12. In this matter the applicant has not challenged the contention that a ground exists for cancelling her visa. She has not provided any information to contradict it. She confirmed the breakdown of her relationship with her spouse.

13. On the available information the Tribunal is satisfied that the applicant is no longer a member of the family unit of Mr Mauleshkumar Patel.  The Tribunal therefore finds that the circumstances which permitted the grant of the visa to the applicant, no longer exist.

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’.

    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

16. The applicant’s stated purpose to travel to and stay in Australia, was to be with her husband as part of his family unit.  This has not been possible for a substantial period of time.

17. The applicant has not claimed she has a compelling need to remain in Australia.  She merely states she likes Australia and the education system here and would like the opportunity to study in Australia.

18. The Tribunal considers this matter does not support the setting aside of the visa cancellation.

    The extent of compliance with visa conditions

19. There is no information before the Tribunal that the applicant has breached her visa conditions in Australia. The Tribunal gives this factor a little weight in the applicant’s favour.

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

20. The applicant has presented information that the cancellation will cause her problems in India because her family will be angry with her for no longer being in a relationship with her husband. The information she has provided is very brief and lacking in detail. It is not clear who in her family she speaks of, how they will react, and what if anything they will do. The applicant also stated she will face disgrace in India but did not provide any details about this. It is therefore unclear what the extent or impact of such disgrace may be. 

21. The applicant wrote that she would like to study in Australia. She did not provide any details about what she may study, or her capacity for study here, and whether it may or may not be viable for her to study in Australia.

22. While the Tribunal accepts there may be hardship to the applicant to leave Australia and return to India there is too little detail to be satisfied that such hardship would be significant. The Tribunal gives this factor only a little weight in the applicant’s favour.

    The circumstances in which ground of cancellation arose

23. The applicant provided evidence that her and her husband’s relationship broke down because she caught him cheating. While the Tribunal has sympathy for the applicant if this was the case, there is nothing about such circumstances that alter the fact that the relationship broke down.

24. The Tribunal considers that the circumstances in which the ground of cancellation arose, do not support the revocation of the cancellation.

    The past and present behaviour of the visa holder towards the department and Tribunal

25. There is no indication that the applicant has been uncooperative or involved in any bad behaviour in her dealings with the Department . The Tribunal notes however she failed to attend her Tribunal hearing.  She therefore did not assist herself or the Tribunal in providing relevant information to the Tribunal. The Tribunal accordingly does not view this factor in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

26. There is no indication in any of the information before the Tribunal that the cancellation of the applicant’s visa causes any consequential cancellations.  The Tribunal therefore finds this factor is not a relevant consideration.

    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

27. If the applicant remains in Australia without a valid visa she may become liable to detention. However this not an actual consequence of the cancellation but  a potential consequence dependent upon the applicant’s future actions.  If the applicant obtains a further visa or departs Australia before a bridging visa expires she is not subject to mandatory immigration detention.

28. If the applicant departs Australia while on a Bridging visa or unlawful, she will be subject to Public Interest Criterion 4014 which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval. However this possibility has been brought about by the breakdown of the applicant’s relationship so that she is no longer a member of her husband’s family unit.  She is therefore not entitled to the visa.  The seriousness of this matter outweighs concerns about difficulties the applicant may have in returning to Australia within a three year period.

    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

29. There is no information before the Tribunal that any international obligations would be breached as a result of the cancellation of the applicant’s visa.  The Tribunal gives this factor no weight in the applicant’s favour.

    Any other relevant matters.

30. The Tribunal considers no other relevant matter arises as to why the applicant’s visa should not be cancelled.

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

    DECISION

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

    Melissa McAdam
    Member