PRERNA (Migration)

[2018] AATA 5197

PRERNA (Migration) [2018] AATA 5197 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss PRERNA PRERNA

CASE NUMBER:  1729026

HOME AFFAIRS REFERENCE(S):           BCC2017/3398078

MEMBER:Penelope Hunter

DATE:25 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 September 2018 at 4:18pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled)) visa – applicant was no longer in a relationship with primary applicant– no longer the spouse of her husband – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5f, 116, 140, 359AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 applicant was no longer in a relationship with Mr Prashant Shukla, who was the primary applicant for the Subclass 457 visa. 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 is a citizen of India and is currently 30 years old. She was granted a Subclass 457 (Temporary Work (Skilled)) visa on 12 August 2016. The basis of the grant of the visa was that she was the wife and member of the family unit of Mr Shukla who had met the primary criteria for the grant of the visa.

4. The Department wrote to the applicant on 17 October 2017, with a Notice of Intention to Consider Cancellation on the basis that it appeared that she was no longer in a relationship with Mr Shukla and therefore 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. 

5. The applicant responded to the Notice on 22 October 2017 and made various submissions as to why the visa should not be cancelled. This included the following:

   ·The applicant married Mr Shukla on 15 May 2015 and they moved to Brisbane on 22 August 2016.

   ·The applicant started searching for jobs and could not find any, so she started a Certificate III course.

   ·In January 2017, her husband stopped coming home and would not inform her of his whereabouts or whom he was with.

   ·In March 2017, the applicant received a job offer from ‘The Database Dept.’ in Sydney and with her husband’s consent she moved to Sydney and was still working with the company.

   ·Her husband may have taken the decision to separate on a highly emotional level. The applicant is still married to Mr Shukla and trying to work through their marriage challenges. Divorce proceedings have not been initiated yet.

   ·If her visa is cancelled it would destroy her hope of saving her marriage as they will be in separate countries.

   ·The status of separated women is not good in India, and it would have an adverse impact on her as she would have to start her life over again.

   ·The applicant had not given up hope; her husband wrote a note on their anniversary and she is still in touch with his family.

   ·The applicant had been working for five years in Singapore and India. If her visa was cancelled it would be difficult for her to apply for a visa to travel, study or have a work opportunity in Australia, Canada and a few other countries.

   ·If she was separated she would have changed her name but her Facebook name is still Prerna Shukla.

   ·If her visa is cancelled, the company that she works for will be affected as well, as her flatmates as she shared expenses with them.

   ·The applicant claimed to be a hardworking kind-hearted human being. She was working on the relationship and still a family member of Mr Shukla and hoped that her visa would not be cancelled.

6. The delegate who considered the application found that as the applicant was no longer in a relationship with Mr Shukla, the circumstances which permitted the grant of the Subclass 457 visa no longer existed and as such the visa should be cancelled. Considering the discretionary factors the delegate noted the following;

   ·The applicant stated her intended purpose of travel to and stay in Australia was to accompany Mr Shukla, and as that relationship had ceased the stated purpose at the time of visa application does not constitute a reason not to cancel the visa.

   ·The applicant had complied with visa conditions until such time she was no longer a member of Mr Shukla’s family unit.

   ·There may be some difficulty faced by the applicant if her visa was cancelled.

   ·In reference to the applicant’s visa, she was granted a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa for a defined period of stay in Australia with the condition that she would comply with the visa. The applicant would not be subject to Public Interest Criterion 4013, so she will not be prevented from applying for and being granted a new visa from overseas once she has departed Australia, provided she is able to meet the relevant requirements for that visa. She would have to make her own enquiries as to applying for other countries.

   ·The delegate was unaware of any specific hardship that may be experienced by the applicant if her visa was cancelled.

   ·The key circumstance which permitted the grant of the visa, that the applicant was a member of the family unit of Mr Shukla, no longer exists.

   ·There was no evidence that the applicant’s past or present behaviour towards the Department has not been appropriate.

   ·There is no other person who will be adversely affected by the cancellation of the applicant’s visa.

   ·There was no information that the cancellation of the applicant’s visa would result in the breach of Australia’s international relations.

7. Taking all the relevant matters into account, the delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa, and accordingly made a decision to cancel the visa.

   Information to the Tribunal

8. The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments.

9. The applicant told the Tribunal that at the time the Department made their decision she was still in touch with her husband and his family. Although they were living separately, this was just because of work; she claimed she was still his wife and intending to fix the marriage. She claimed to be in daily contact with his family, and this was because she was still considered a member of his family, and they were telling her that it was just a bad phase, things would work out and if they came back to India they would help. The applicant claimed that she would not have continued to be in contact with Mr Shukla’s family, and they in contact with her, if she was not a member of his family unit.

10. The Tribunal discussed with the applicant, pursuant to the provisions of s.359AA of the Act, information that Mr Shukla had filed with the Department, being a Form 1022 Notification of Changes in Circumstances, signed on 15 September 2017, in which he notified that his marital status was separated. The Tribunal explained to the applicant that it considered this information relevant as it indicated that as at 15 September 2017, Mr Shukla did not have an intention to continue the marriage. The applicant chose to respond immediately and said that she agreed that he had submitted the information, but that if it was his intention to separate permanently, she would not have still been in contact with his family, and marriage in India is not just between two people but two families.

11. The Tribunal asked the applicant if she was still in contact with Mr Shukla’s family and she advised that this had ceased around August 2018. She told the Tribunal that the last time she had seen Mr Shukla was in March 2017, when she left Brisbane. She has not received any financial or emotional support from him since then. She has had brief contact with Mr Shukla. He posted on her Facebook page in May 2017, and she also had contact with him around the time of the Department decision in November 2017. Mr Shukla had also returned to India in 2017, and on his return he forwarded to her a gift from her sister-in-law. When the Tribunal questioned the applicant on the steps she was taking to work on the marriage, she explained that it was the communication with Mr Shukla’s family who were also in touch with him. She was not sure whether Mr Shukla had re-partnered. She observed some photographs on his Instagram account; however, when she questioned them the account was shut down. Recently the applicant had received communication from Mr Shukla’s legal representative seeking a divorce. The applicant provided to the Tribunal a copy of the email that she had received on 7 September 2018 from Genuine Legal, on behalf of Mr Shukla, attaching a draft Application for Divorce. The applicant also submitted her email response dated 14 September 2018.

12. 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

13. 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?

14. 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.

15. The basis of the decision of the Department was that the applicant had ceased to be a member of the family unit of Mr Shukla as she was no longer the spouse of her husband as defined in s.5F of the Act. That decision was based on the fact that the Department had been contacted by Mr Shukla, stating that they had separated. The applicant claimed to be having difficulties but was working on reconciliation.

16. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard may be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3).

17. Evidence has previously been provided to the Department that the applicant and Mr Shukla were married in India. Mr Shukla may have initiated steps to obtain a divorce in Australia however there are no finalised proceedings. Accordingly the marriage remains valid. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

18. The applicant confirmed at the hearing that she had not been financially dependent on Mr Shukla for any of her needs since March 2017. She did not claim that there were any joint accounts, they have not pooled financial resources since March 2017, and no day to day expenses were shared.

19. The living arrangements of the parties were such that they had not lived together since March 2017. The email correspondence sent to Mr Shukla’s legal representative on 14 September 2018 also records that the applicant does not know Mr Shukla’s whereabouts and that he has been hiding from her.

20. The applicant has not undertaken any joint activities with Mr Shukla since March 2017. Although the applicant provided evidence that she was in contact with Mr Shukla’s family for a considerable time following March 2017, she also conceded that they were aware of the difficulties in the relationship and that she had moved to Sydney and that Mr Shukla was not communicating with her. At the time of the Tribunal hearing, Mr Shukla’s family was no longer in contact with the applicant, and it appears from this evidence that their opinion as to the nature of the relationship between the applicant and Mr Shukla has changed, and they are not communicating hope of reconciliation.

21. The Tribunal is not satisfied that Mr Shukla has a commitment to the applicant. He advised the Department that they had separated. He has not communicated often with her and has not revealed his whereabouts. The Tribunal cannot find on the evidence that Mr Shukla has provided any companionship or emotional support since March 2017. Mr Shukla clearly does not see the relationship as long term as he has initiated divorce proceedings. 

22. The Tribunal is satisfied at the time of its decision that the applicant is no longer the spouse of Mr Shukla for the purposes of the Act and is no longer a member of his family unit. Therefore a particular fact or circumstance leading to the grant of her visa, her membership of Mr Shukla’s family unit, is no longer the case.

23. 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

24. 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’.

25. With respect to the applicant’s purpose for staying in Australia, the applicant claimed that she arrived in 2016 with the intention of building a life and a career together with Mr Shukla. She claimed that the difficulties that she had experienced in the relationship were not of her making but that she had rebuilt her career and was working to support herself. There is no information before the Tribunal that the applicant would meet the criteria for the grant of any other visa at this time, or at any time she held the Subclass 457 visa, on the basis of being a member of the family unit of Mr Shukla. When considering the purpose of the applicant’s travel and stay in Australia, the Tribunal is not satisfied that this provides a reason not to cancel the visa.

26. The applicant told the Tribunal that she had complied with her visa conditions. The delegate considered that the applicant should have advised the Department when she moved to Sydney in March 2017 of her separation. The Tribunal has considered her evidence that she did not consider the separation to be permanent, and that she was still intending to reconcile, and that she had sought advice and been informed that she could not take any steps in relation to her visa as she was not the primary applicant. The Tribunal is therefore satisfied that she has complied with her visa obligations.

27. The Tribunal has considered the degree of hardship that may be caused to the applicant if the visa is cancelled. It is accepted that the applicant will have to move out of her shared accommodation; however, it considered that it is possible for the applicant and her housemates to find another person to sublease her room. The applicant will have to cease her employment, she claimed that her current employer is aware that her visa is under consideration for cancellation, and the applicant did not make any claims to the Tribunal about hardship that would be experienced if she was required to leave her current employment. The applicant does not have any family in Australia. The applicant did not provide evidence of any significant financial resources in Australia. The Tribunal is not satisfied that her circumstances in Australia could give rise to hardship.

28. The Tribunal has also considered the claim by the applicant that culturally, divorced women are looked down upon in India. However in her particular circumstance, the applicant acknowledged that her family and her in-laws had been extremely supportive of her in the circumstances and have been aware of the events that occurred in the marriage. She also conceded that she had many friends in India who were supportive. She holds an MBA and has experience working in Singapore and Australia; she conceded that she would be able to find employment to support herself on her return. While it is accepted that it will be challenging for the applicant to return to India, the Tribunal is not satisfied that any level of hardship will be serious.

29. With respect to the circumstances in which the ground for cancellation arose, the Tribunal accepts the breakdown of the marriage was not something that the applicant wanted or expected. There is no evidence to suggest that the relationship broke down because of family violence. The parties physically separated in March 2017 and contact has been minimal since that time, and 18 months have now passed. There is no evidence of reconciliation, and Mr Shukla has now taken steps to initiate divorce proceedings. It has been considerable time since the applicant’s circumstances have changed such that the basis that she was granted the visa no longer exist.

30. There is no evidence, and the delegate did not identify any evidence, of matters of relevance regarding the applicant’s behaviour toward the Department.

31. With respect to the mandatory legal consequences, the applicant is on a bridging visa and in the absence of her making another successful visa application, or the Minister granting a visa, ultimately she will not have the authority to remain in Australia. If so the applicant accepted that she will have the opportunity to depart voluntarily. The Tribunal does not have evidence before it that a cancellation would result in the applicant being unlawful and subject to detention or that indefinite detention was a possibility of cancellation.

32. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the cancellation.

33. There is no evidence before the Tribunal that there would be consequential cancellations under s.140 of the Act. The applicant has not re-partnered and she does not have any children or dependants.

34. The applicant has claimed that if her visa is cancelled, it may be difficult for her to travel to Australia or other countries in the future. There is no evidence that the applicant would unable to apply for any future temporary visa’s offshore due to any exclusion periods. The Tribunal there is no conclusive evidence before the Tribunal that the applicant will be excluded from other countries.

35. The Tribunal has also considered that the applicant has volunteered for charities while in Australia and has sought to make a positive contribution to the Australian community. The Tribunal considers that the applicant will continue to be in a position to make a positive contribution to the community in her home country if the visa is cancelled, and the Tribunal is not satisfied that this provides a reason not to cancel the visa.

1. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the visa is the correct and preferable decision.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   Penelope Hunter
   Member