Pelden (Migration)

[2019] AATA 1670

Pelden (Migration) [2019] AATA 1670 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sonam Pelden

CASE NUMBER:  1722973

HOME AFFAIRS REFERENCE(S):           BCC2017/2677865

MEMBER:Wendy Banfield

DATE:20 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 May 2019 at 5:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – consideration of discretion – compelling need to remain in Australia – undertake study as mature age student – circumstances giving rise to ground for cancellation – marriage breakdown out of applicant’s control – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer 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.

   Background

3. The applicant Ms Pelden is a citizen of Bhutan and is currently 28 years old. She came to Australia as a secondary applicant on her husband’s student visa which was granted on 21 April 2017. The applicant’s husband was undertaking post-graduate studies and it was intended the applicant would work until he completed his course. According to the applicant she had hoped to study in Australia after her husband but a few months after their arrival, the parties separated and the applicant’s visa was subsequently cancelled.

4. The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law Mr Kencho Phub.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should 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 visa was granted on the basis the applicant met the secondary criteria for a student visa. In this case, at the time of the visa grant the applicant was a member of the family unit of the primary visa holder in accordance with r.1.12 of the Migration Regulations. The primary visa applicant was the husband of the applicant for review. A short time after arriving in Australia and while residing with the primary applicant’s family members in Perth, the applicant and her husband separated due to disagreements and conflict in the marriage. The applicant in this review then travelled to Canberra to receive support from her own relatives where she has remained.

9. The applicant gave evidence that she and her husband argued and became estranged due to interference by her sister-in-law and that she continued to be harassed by phone and text message after she left the relationship. According to the applicant her husband did not want to reconcile once the applicant had left Perth and was residing in Canberra.

10. The applicant did not dispute that she was no longer a member of the family unit of the primary applicant and therefore, the circumstances which permitted the grant of the visa no longer exist. 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

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 gave evidence that the purpose of her travel to Australia was to support her husband who was undertaking post-graduate studies. She said she planned to work until her husband completed his course, after which the applicant hoped to enrol in a course of study herself. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was as a secondary applicant on her husband’s student visa.

13. During the Tribunal hearing the applicant was invited to make submissions regarding a compelling need to remain in Australia. The applicant stated she had completed her education to Year 12 level but had not studied further in her home country. According to the evidence of the applicant and the witness who is also from Bhutan, there are limited opportunities for a mature age student such as the applicant to study in their home country, particularly for those wanting to undertake intensive English and management related subjects. The Tribunal is satisfied the applicant has demonstrated a convincing reason for needing to stay that weighs in her favour in this regard.

    ·     the extent of compliance with visa conditions

14. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account.

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

15. At the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant advised she would suffer emotional hardship if her visa is cancelled because she had been in the process of applying for her own student visa when her dependent visa was cancelled. The applicant had already enrolled in a course of study, had responded to the Department’s Notice of Intention to Consider Cancellation (NOICC) and was waiting for her educational documents to arrive from her home country when her visa was cancelled. She was unrepresented and was not aware her visa would be cancelled soon after her response to the NOICC. She has since completed courses in English from which she appears to have benefitted and the Tribunal accepts a significant degree of hardship would result from the visa 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

16. The applicant’s visa was cancelled because her marriage failed and she was no longer able to satisfy the criteria for which the visa was granted. After leaving the marriage and moving from Perth to Canberra the applicant was no longer a member of the family unit of the primary visa holder. The applicant said her marriage suffered as a result of her and her husband living with in-laws which the applicant was unhappy about. The applicant was accused of having an inappropriate relationship with her sister-in-law’s husband which led to the parties separating.

17. The applicant gave evidence that she was harassed and verbally abused while living in Perth and after her removal to Canberra. She said she left her accommodation in Perth because of her poor treatment which was making her depressed. The applicant explained that she travelled to Canberra at her sister’s urging and had hoped the distance would lead to a change in her husband’s behaviour towards her. However, she said her husband did not want to reconcile and she is no longer in contact with him.

18. The Tribunal finds that while there is insufficient evidence of family violence in this case, the breakdown of the relationship appears to have been out of the applicant’s control. For this reason, the Tribunal places weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

19. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant weight in this regard.

    ·     whether there would be consequential cancellations under s.140

20. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

21. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. While those are the intended consequences of the legislation, the Tribunal has taken the consequences of cancellation into account in this case due to the impact on the applicant future plans.

    ·     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

22. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

24. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

25. The Tribunal has considered the applicant’s circumstances individually and cumulatively and finds the majority of considerations weigh in favour of the applicant. The Tribunal found the applicant to be consistent and credible and considers she should be given the opportunity to apply for her own student visa.

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

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Wendy Banfield
    Member