Pun (Migration)

[2024] AATA 4026

Pun (Migration) [2024] AATA 4026 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laxmi Pun

REPRESENTATIVE:  Mr Ujwol Shrestha (MARN: 1685463)

CASE NUMBER:  2412965

HOME AFFAIRS REFERENCE(S):          BCC2023/1615853

MEMBER:Mary Sheargold

DATE:8 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 08 October 2024 at 8:55am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – visa granted on fact or circumstance no longer the case – secondary visa holder as member of family unit of husband – relationship ceased – ground for cancellation conceded – discretion to cancel visa – working to support husband – emotional abuse, wife’s decision to separate temporarily and husband’s unilateral decision to divorce – social stigma attached to divorce – application for student visa in progress, and bridging visa held – significant ties, including brother’s family – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5F(1), 116(1)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 May 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).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that Ms Pun is no longer the member of the family unit of the primary visa holder, Mr Sonam Tamang. 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 by MS Teams video link from Adelaide on 13 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be 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?

   s 116(1)(a) - Circumstances permitting grant no longer 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. Ms Pun was granted a Subclass 485 visa by virtue of satisfying cl 485.311 of Schedule 2 to the Regulations. She was the spouse of Mr Sonam Tamang at the time the visa was granted. 

9. Ms Pun told the Tribunal that during her marriage to Mr Tamang, her primary role had been to work to provide funds for Mr Tamang’s study in Australia.  They had moved to Australia in 2018 shortly after their marriage.  The couple had lived apart for extended periods during their relationship, as Ms Pun moved to Sydney for over one year to work in housekeeping at the Pullman hotel in Darling Harbour, which provided her enough income to fund Mr Tamang’s college fees that he continued to accrue.  Once she had significant housekeeping experience in an Australian hotel, she returned to Queensland to live with Mr Tamang again and found work as a housekeeper at a hotel in Brisbane.  She states that trouble in their marriage began around 2 years after she returned to Queensland.

10. At the hearing, Ms Pun explained that her older brother had already migrated to Australia and had established his life in Adelaide.  When Ms Pun grew tired of fighting with her husband, she decided to take a holiday to see her brother.  At that time, her intention had been to stay with her brother for around one month.  At this point, it was around June 2022.

11. Ms Pun never returned to live with her husband in Queensland.  On 7 March 2023, he notified the Department that they were separated.  On 26 April 2024, Ms Pun was issued with a Notice of Intention to Consider Cancellation of her Subclass 485 visa.

12. Mr Tamang served Ms Pun with divorce papers at her brother’s home address in Adelaide after they had been separated for over 12 months.  Ms Pun states that she did not know her husband had any intention of divorcing her; she maintains her belief that they had ‘regular’ problems in their marriage like any couple, and believed they would reconcile eventually.  Ms Pun explained that she comes from a very small village in Nepal and that to become divorced would jeopardise her family’s position within their community.  She stated that there is a lot of stigma around separation and divorce in Nepal, especially in smaller villages, and that the stigma extends to parents and other family members.  Because of this, she never contemplated the possibility that her husband would divorce her.  They had lived separately before without question from the Department or anyone else.

13. Although clearly unhappy about the fact that Mr Tamang made a unilateral decision to end their marriage, Ms Pun ultimately had little choice but to accept and acknowledge that she is no longer Mr Tamang’s spouse under the definition set out in s 5F(1) of the Act, and accepts that she is, therefore, no longer a member of his family unit.  Therefore, she accepts that the grounds for cancellation exists.

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’.

16. At the hearing, Ms Pun explained her reasons for believing her visa should not be cancelled. She freely acknowledged that it was her own independent decision to leave her relationship with Mr Tamang, but she does not accept that in moving to Adelaide, she made a conscious decision to end her marriage.  Ms Pun made clear that she believes a marriage is permanent, for life, and that no matter the circumstances, it should endure.  Ms Pun explained that she now seeks her own Subclass 500 visa to obtain qualifications in hospitality so that she may eventually return to Nepal to open her own hotel.  That application is pending with the Department, and she currently holds a Bridging E visa while waiting for the outcome of that application.

    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

17. Ms Pun came to Australia to support her husband as he pursued his dream to study and work in a foreign country.  The Tribunal is satisfied that Ms Pun had fulfilled that purpose as the secondary holder of her ex-husband’s visas.  The Tribunal is satisfied that this purpose no longer exists for Ms Pun.

18. Considering Ms Pun’s history of upholding the purpose of her travel to Australia, despite her husband divorcing her, and noting her intention to now undertake study for her own benefit, the Tribunal gives this consideration a little weight against cancelling the visa.

    The extent of compliance with visa conditions

19. Ms Pun told the Tribunal that she has fully complied with all conditions attached to this visa as well as the student visa and bridging visas she has held in the past.  Ms Pun states she did not believe she needed to notify the Department regarding her current address because she did not believe she was permanently separated from her husband and that she believed her true home was with him in Queensland despite the fact she had voluntarily moved away.  There is no evidence before the Tribunal to suggest that Ms Pun has not complied with any conditions imposed on her visas.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    Degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

20. The Tribunal accepts Ms Pun’s evidence that she will suffer serious emotional hardship if her visa is cancelled.  She has explained to the Tribunal the serious social stigma attached to divorce in Nepal generally but specifically in her village Myagdi.  Her brother has provided a letter of support confirming his view that his parents will be adversely impacted by Ms Pun’s divorce.  If Ms Pun is forced to return to Nepal without a husband and without any qualifications of her own, the degree of hardship she will suffer, both financially, psychologically, and emotionally, will be very high.

21. Further, Ms Pun has been living in Australia since 2018 and the Tribunal is satisfied that she has developed significant ties to Australia during that time, including with her brother’s family in Adelaide.

22. The Tribunal is satisfied that Ms Pun will face real hardship – financial, psychological and emotional – if her visa status is not regularised.  The Tribunal gives this consideration some weight against cancelling the visa.

    The circumstances under which the ground for cancellation arose

23. Ms Pun willingly came to Australia as a dependent on her ex-husband’s student visa, and willingly remained in Australia as a dependent on his Graduate visa.  She admits and accepts that she initiated the separation by leaving their marital home and moving in with her brother, but denies she ever had any intention of ceasing to be Mr Tamang’s spouse.

24. Although it was Ms Pun’s free decision to relocate to Adelaide, the Tribunal accepts that she did so because she had suffered significant levels of emotional abuse during her marriage.  She claimed that she sacrificed her own opportunity to study and enhance her career prospects by choosing to work and support her ex-husband fully, and that Mr Tamang did not demonstrate a willingness to build a shared life with him. 

25. Although the Tribunal is satisfied that Ms Pun had reasonable grounds for leaving her marital home that precipitated her husband’s decision to divorce her, she did give cause to the circumstance under which the ground for cancelling his visa arose.  Therefore, the Tribunal gives this factor a little weight in favour of cancelling the visa.

    Ms Pun’s past and present behaviour towards the Department

26. At the hearing, Ms Pun stated that she has always complied with her visa conditions, and notes her belief that she was not obliged to report a change to her address because she did not believe that had permanently changed when she moved to Adelaide.  She engaged a representative to assist in her response to the NOICC and this was done in a timely manner.

27. There is no other information before the Tribunal to demonstrate that Ms Pun has behaved in anything less than a frank and forthright manner towards the Department to date.  The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Consequential cancellations

28. Ms Pun is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  The Tribunal is not able to give this consideration any weight for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

29. Cancelling Ms Pun’s visa would result in application of section 48 of the Act, meaning she would be limited in terms of other visa applications she could lodge validly while remaining in Australia.  However, prior to her visa being cancelled, Ms Pun had managed to apply for a Subclass 500 student visa and currently holds a BVE while awaiting the outcome of that application.

30. Noting the impact cancellation has already had on Ms Pun, and understanding the implications of holding a BVE in the medium term, the Tribunal gives this consideration a little weight against cancelling the visa.

    Australia’s international obligations

31. Ms Pun has never applied for protection nor has she indicated to the Tribunal that she fears harm if she is returned to Nepal.  The Tribunal has considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and is satisfied that removing Ms Pun from Australia will not leave Australia in breach of any of its obligations under those instruments.

32. At the hearing, Ms Pun confirmed that she does not have any children.  There is no information before the Tribunal to suggest that cancelling Ms Pun’s visa would result in Australia breaching its obligations under the Convention on the Rights of the Child.

33. The Tribunal notes that although none of Australia’s international obligations would be enlivened by an attempt to return Ms Pun to Nepal, it does not consider it necessary to give this consideration weight in favour of cancelling his visa.

    Any other relevant matters

34. The Tribunal is not aware of any other matters that are relevant to its consideration of whether to cancel Ms Pun’s visa, and so is unable to give this consideration any weight for or against a decision to cancel the visa.

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

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Mary Sheargold
    Member