Patel (Migration)

[2022] AATA 2571

Patel (Migration) [2022] AATA 2571 (17 February 2022)

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keyur Hirabhai Patel

CASE NUMBER:  2012056

HOME AFFAIRS REFERENCE(S):          BCC2020/1459667

MEMBER:Joseph Lindsay

DATE:17 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2022 at 11:56am

CATCHWORDS

MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – fact or circumstance no longer the case or no longer exists – member of family unit – secondary visa holder no longer in relationship with primary visa holder spouse – discretion to cancel visa – circumstances of separation – decision under review affirmed

LEGISATION

Migration Act 1958 (Cth), s 116(1)(a)

Migration Regulations 1994 (Cth), r 1.12(2)(a), Schedule 8, condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2020 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 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 20 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

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 ground set out in s 116(a) of the Act. 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 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.

7. The Tribunal accepts that the applicant has provided a copy of the delegate’s decision record dated 20 July 2020 to the Tribunal. The applicant stated that the information in the delegate’s decision record dated 20 July 2020 was correct.

8. In the decision record, it is noted:

   Information before the Department appears to indicate the visa holder is no longer in a relationship with the primary visa holder, Krishna Keyur Patel.

   The visa holder’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that he is a member of the family unit of Krishna Keyur Patel as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994 (the Regulations), which states:

   (2) A person is a member of the family unit of another person (the family head) if the person:

   (a) is a spouse or de facto partner of the family head.

   To be a member of the family unit of Krishna Keyur Patel as prescribed by reg 1.12(2)(a), the visa holder needs to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act.

   ….

   The visa holder was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder, Krishna Keyur Patel and in a genuine and continuing relationship with her. As it appears the visa holder has ceased to be either a spouse or a de-facto partner of that person, it appears he has ceased to be a member of their family unit as prescribed by reg 1.12(2)(a).

   Based on this information, there appear to be grounds for cancelling his visa under s116(1)(a) of the Act because it appears that a circumstance which permitted the grant of the visa no longer exists.

9. In the hearing, the applicant made admissions that he is separated from the primary visa holder, Krishna Keyur Patel, and he is not in a genuine and continuing relationship with the primary visa holder, Krishna Keyur Patel. Accordingly, the Tribunal accepts that the applicant is separated from the primary visa holder, Krishna Keyur Patel, and the applicant is not in a genuine and continuing relationship with the primary visa holder, Krishna Keyur Patel.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(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

11. 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

12. The applicant indicated that his purpose to travel and stay in Australia was to accompany his spouse. However, the Tribunal accepts that the applicant is no longer accompanying his spouse and gives this finding no weight.

    The extent of compliance with visa conditions

13. The applicant made admissions that he has breached condition 8516, as he no longer continues to satisfy the secondary criteria for the grant of his Student visa. However, apart from breaching condition 8516, the applicant said he has not breached any other conditions of his visa. The Tribunal accepts that the applicant has breached condition 8516, as he no longer continues to satisfy the secondary criteria for the grant of his Student visa. The Tribunal accepts that, apart from breaching condition 8516, the applicant has not breached any other conditions of his visa. The Tribunal gives these findings no weight.

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

14. When the Tribunal asked the applicant whether he thought he would be caused any hardship if his visa were to be cancelled, he said in response that he could not answer the question. In considering this factor, the Tribunal accepts that there is likely to be some hardship to the applicant if his visa were to be cancelled, but the Tribunal gives this finding some weight in the applicant’s favour.

    Circumstances in which ground of cancellation arose

15. When the Tribunal asked the applicant about the circumstances in which ground of cancellation arose, the applicant made admissions that he and his spouse had separated due, in part, to [specified circumstances]. The applicant indicated that he had [experienced a result] related to the [specified circumstances]. The applicant also indicated [another result] in respect to [a related circumstance]. The applicant indicated that [further information].

16. In its consideration if this matter, the Tribunal accepts that the applicant and his spouse had separated due, in part, to [the specified circumstances]. The Tribunal accepts that the applicant has [experienced the result] related to the [specified circumstances]. The Tribunal accepts that the applicant has [experienced another result] in respect to [the related circumstance]. The Tribunal accepts that [further information]. The Tribunal does not accept that the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The Tribunal places heavy weight against the applicant in respect to these findings.

    Past and present behaviour of the visa holder towards the Department

17. There is no indication of any concerns about past and present behaviour of the visa holder towards the Department. The Tribunal gives this finding no weight.

    Whether there would be consequential cancellations under s.140

18. There is no indication of any consequential cancellations under s.140 of the Act. The Tribunal gives this finding no weight.

    Mandatory legal consequences

19. The applicant acknowledged that he was aware that there would be legal consequences to him should his visa be cancelled.

20. Indeed, the Tribunal accepts that if the applicant’s visa is cancelled, he would become an unlawful non-citizen and may be liable for detention under s.189 and removal under s.198 of the Act if he does not resolve his immigration status or voluntarily depart Australia. The Tribunal accepts that the applicant would be eligible to apply for a Bridging Visa E which may allow him to remain lawfully in Australia while he makes arrangements to depart. The Tribunal gives these findings no weight.

21. The Tribunal has also considered that the applicant may be subject to s. 48 of the Act that that may prevent him from applying for further visas while in Australia. The Tribunal accepts that the use of this cancellation power does not incur an exclusion period and the visa holder can explore other visa options which suit his purpose of stay in Australia, given he is no longer in an ongoing relationship with the primary visa holder. The Tribunal gives this finding no weight.

    International obligations

22. The applicant indicated to the Tribunal that he does not fear anything in returning to India. Accordingly, the Tribunal accepts that the visa cancellation will not lead to a breach of Australia’s international obligations. The Tribunal gives this finding no weight.

    Any other relevant matters 

23. The applicant indicated there were no other relevant maters he wanted to discuss with the Tribunal.

    CONCLUSION

24. In balancing the above findings and weightings, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    Member