PATEL (MIGRATION) - [2024] ARTA 140

PATEL (MIGRATION) [2024] ARTA 140 (12 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Mrunaliben Patel
Respondent:  Minister for Home Affairs
Tribunal Number:  2431683
Tribunal:Kira Raif
Place:Sydney
Date:12 November 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 12 November 2024 at 2:16pm
CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant was no longer a member of the family unit or in an ongoing relationship with the primary visa holder – relationship ended – no further compelling need to remain in Australia – applicant can no longer fulfil the purpose of her travel to and stay in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116

STATEMENT OF REASONS
Application for review

This is an application for review of a decision dated 2 September 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India, born in March 1998. She was granted the Skilled visa, as a secondary applicant, in December 2022. In August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there were grounds for cancelling her visa under s. 116 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
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 12 November 2024 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.
Relevant law
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.
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.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was issued the Skilled visa as a spouse and a member of the family unit of Mr Patel. It is stated that in September 2023 the Department became aware that the applicant’s relationship with Mr Patel ended.
In her response to the NOICC and in her oral evidence to the Tribunal the applicant confirmed that her relationship with the primary visa holder ended, although she states that she had no involvement in the termination of the relationship and it was a unilateral decision by her husband.
Having regard to the evidence that the relationship ended, the Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr Patel. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ or that she met the primary criteria for visa grant. The Tribunal finds that the applicant is no longer a member of the family unit of the primary visa applicant. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of her being a member of the family unit of Mr Patel and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.
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 Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with her partner. However, that relationship is no longer in existence. The applicant is no longer in a spouse or de facto relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of her travel to Australia because she is no longer in a relationship with the primary visa holder.
The applicant refers to her employment which, she claims, supports the Australian economy. She told the Tribunal that she works as a restaurant manager and provided to the Tribunal evidence of her employment. The Tribunal does not consider that the applicant’s employment in Australia constitutes a compelling need for her to remain in Australia, particularly in circumstances where the applicant holds a temporary visa only which would, at some point in the future, necessitate the applicant’s cessation of employment. The applicant’s evidence to the Tribunal is that she felt obliged to work for her employer for months but she is also looking for a different job in her field of study. That is, the applicant’s intention is to find a different employer. The applicant has not established to the satisfaction of the Tribunal that her departure from her present employer would cause hardship to the employer. In these circumstances, the Tribunal does not consider the applicant’s employment establishes a compelling need for her to remain in Australia.
The applicant told the Tribunal that she had borrowed money to be able to study in Australia and she would have to repay the loan and also her family has been supporting her and she would need to make repayments. The Tribunal accepts that the applicant prefers to remain in Australia to work but in the Tribunal’s view, it is not the purpose of the Skilled visa to enable the applicant to remain in Australia when she had not met the eligibility for visa grant on the basis of her skills, study or employment, and when she is not employed in her area of study. The Tribunal has formed the view that the applicant’s desire to remain and work in Australia does not establish a compelling need for her to remain in Australia.
The extent of compliance with visa conditions
There is no evidence of any non-compliance with visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In her response to the NOICC and written submissions to the Tribunal the applicant provided a copy of her marriage certificate, evidence of her past study and evidence of her employment in Australia. The applicant claims that she has established a life in Australia, is gainfully employed and contributes to the Australian economy. The applicant states that the cancellation of her visa would be detrimental to her mental health. The applicant states that she cannot return to India where she has no support system, particularly noting her poor emotional state. The applicant also refers to her employment in Australia and states that the cancellation of the visa would result in significant hardship, impacting her mental health and financial stability. The applicant refers to ‘emotional trauma’ and forced departure. The applicant told the Tribunal in oral evidence that she has no income options in India and no opportunity to utilise her Australian study. The applicant refers to ‘mental trauma’ if she has to return to India.
The Tribunal does not accept these claims as they presuppose that the applicant will be able to remain in Australia permanently or even on a long-term basis. However, that is not the case. The visa in question is a temporary visa only and that visa would have expired in December 2025. That is, the applicant would be expected to return to India before the expiry of her visa in about 12 months’ time. The applicant told the Tribunal that she has completed a Civil Construction Design course and wants to make an application for a Skilled visa in the future but she is not sure if she can make the application onshore. The applicant’s representative submits that if the applicant is able to find employment in her area, she could be sponsored for a Subclass 407 visa. She can also apply for a Student visa in the future but that application may need to be made offshore. The representative notes that if the applicant’s visa remains cancelled, it would be harder for her to find employment and sponsorship.
The Tribunal accepts that the applicant wishes to make an application for a further visa. However, she has not been able to provide a meaningful explanation of what she intends to apply for or what visa she may be eligible for. While the applicant spoke about her intention to find an employer and obtain sponsorship, the applicant confirmed that at present, there is no offer of sponsorship, she is not working in her area of study and there is no clear pathway for the applicant to make an application for a permanent visa onshore.
The applicant’s representative notes that the applicant would be subject to a three year exclusion period if her visa remains cancelled. The representative submits that if the visa is reinstated, the applicant would be in a better position to find an employer and a sponsor and make an application for another visa in the future. The Tribunal accepts that the applicant will be subject to an exclusion period and may not make another application in that period (subject to the waiver). However, as noted above, both the applicant and representative confirmed that at present, the applicant has no offer of employment and no offer of sponsorship. The applicant told the Tribunal that she had completed her course in May 2024 but has not been able to secure a job before her visa was cancelled. In the circumstances, the Tribunal is not convinced that there is a realistic option of the applicant being able to obtain sponsorship and apply for another visa in the period of validity of her subclass 485 visa.
The applicant told the Tribunal that she presently works as a restaurant manager and her employer is willing to sponsor her for a visa but she presented no evidence that she might be sponsored by her employer. The Tribunal is mindful that if the employer is willing to sponsor the applicant, that process can take place even if the applicant was to leave Australia, noting that there is a waiver provision that would allow the three year exclusion period to be waived.
The applicant has not satisfied the Tribunal that she would be able to obtain a permanent visa or another temporary and that she would be precluded from pursuing that option as a result of her Skilled visa being cancelled. In such circumstances, the Tribunal does not accept the applicants’ claim that she cannot return to India or that she would suffer emotional or any other hardship, given that she has no permanent visa to remain in Australia and is expected to return to India, whether now as a result of her visa being cancelled, or in a year’s time when her visa would have expired.
The Tribunal accepts that there will be hardship to the applicant by the cancellation of her visa because she will may not be able to work in Australia and her future visa options will be more limited. However, in the Tribunal’s view, such hardship is somewhat diminished by the fact that the applicant has not identified, at least at present, any realistic options of being able to remain in Australia beyond the period of validity of the present visa and thus her permitted residence in Australia is for a relatively short period of 12 months.
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
The ground for cancellation arises because the applicant’s relationship with her partner and the primary visa applicant has ended. The applicant claims in her response to the NOICC and her written submission to the Tribunal that it was her husband’s unilateral decision to end the relationship and it was a circumstance beyond her control. The applicant explains in her response to the NOICC that the relationship ended because her husband was cheating on her. She did not make any claim relating to family violence.
In oral evidence the applicant told the Tribunal that she married her husband in 2020. After they came to Australia, his behaviour changed and she found out that he had an affair. Her husband applied for a permanent visa without informing her and without including her in his application. The applicant told the Tribunal that she has applied for divorce in India.
In her submission to the Tribunal the applicant claims that her visa should not be cancelled in circumstances where the ground arises due to circumstances beyond her control. The Tribunal acknowledges the applicant’s evidence that she did not wish to end the relationship with her husband and that he had made that decision unilaterally. In the absence of any evidence from the applicant’s partner, it is impossible to determine the circumstances that led to the relationship breakdown and it is not for this Tribunal to apportion the blame for the relationship break-down. It is not in dispute that the relationship has ended and there is no longer a mutual commitment between the applicant and her partner. On the evidence before it, the Tribunal does not accept the applicant’s evidence that the ground for cancellation arises due to circumstances beyond her control.
The applicant told the Tribunal in oral evidence that there was family violence in the relationship. She states that she did not report the incidents to the police and did not seek any help. There is no evidence before the Tribunal, other than the applicant’s claims, to indicate that the applicant has experienced family violence. There are no police reports, contemporaneous (or any other) records from support workers, health professionals or others. The applicant told the Tribunal she did not report the family violence as she did not wish to jeopardise her husband’s visa. The applicant made no mention of the family violence in her written submissions to the delegate or the Tribunal. On the limited evidence before it, the Tribunal is not prepared to accept the applicant’s claims that she had experienced family violence.
Past and present behaviour of the visa holder towards the department
Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s 140
There are no persons whose visas would be subject to consequential cancellation.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she would be subject to an exclusion period in relation to some future visa applications contained in PIC 4013. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore, as set out in s. 48 of the Act.
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
There are no children who would be affected by the cancellation. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The applicant has no immediate family in Australia. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.
If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa in question is not a permanent visa.
Any other relevant matters
In her written submission to the Tribunal the applicant refers to Australia’s international human rights obligations, stating that the cancelation of her visa would subject her to hardship disproportionate to any action on her part and would be contrary to the international humanitarian principles. The Tribunal finds that submission misguided. While the Tribunal is able to consider the hardship that may be caused by the cancellation, as well as a range of other factors, there is no obligation for the Tribunal to have regard to general international human rights obligations in reaching its decision.
The applicant refers to her employment (and has provided a supporting a letter from her employer) stating that is making a positive contribution to Australia and has integrated into the Australian society. The Tribunal accepts that evidence, which has been addressed in more details above.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the circumstances that permitted the grant of the visa no longer exist and that there are grounds for cancelling the applicant’s visa.
The Tribunal accepts that hardship maybe caused to the applicant if her visa is cancelled. This is primarily because the applicant will not be able to remain in Australia and work and she may experience financial hardship. The Tribunal also accepts that the applicant may experience hardship because her future visa options would be more limited as a result of the cancellation and due to the operation of the exclusion period. While the applicant has not identified what visa she is eligible to apply for (her statements in that regard were quite vague), the Tribunal acknowledges that the legal consequences of the cancellation will limit the applicant’s future options. These factors weigh against the cancellation.

The Tribunal accepts that the applicant has complied with visa conditions. The Tribunal has formed the view that the cancellation will not be in breach of Australia’s international obligations. The Tribunal acknowledges that the applicant is gainfully employed, prefers to remain in Australia and work in Australia and may have contributed to Australia through her employment. The Tribunal accepts that she hopes to find employment in her area of study and seek a future sponsorship and visa, although the Tribunal has found that there are no firm arrangements to enable her to do that at present. These considerations are neutral.
The Tribunal has not accepted the applicant’s claims that the relationship broke down due to family violence (as the applicant claimed that her partner had been unfaithful and initiated the break-up of the relationship) and neither does the Tribunal accept, on the very limited evidence, that there was family violence in the relationship. The Tribunal has not been satisfied that the ground for cancellation arose due to circumstances beyond the applicant’s control because the Tribunal considers itself unable to positively determine what caused the breakdown of the relationship, particularly in the absence of any evidence from the applicant’s partner. These considerations are neutral.
In the circumstances of this case, the Tribunal has decided to give the greatest weight to the fact that the applicant is no longer able to fulfil the purpose of her visa. Ultimately, the applicant was granted the visa as a secondary applicant and a member of the family unit of her partner. She is no longer a member of the family unit and, significantly in the Tribunal’s view, has not established that her eligibility for any other visa that would be affected by the present cancellation.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Date(s) of hearing 12 November 2024
Representative for the Applicant: Mr Amber Gupta (MARN: 0533773)