Sachdeva (Migration)

[2024] AATA 3570

Sachdeva (Migration) [2024] AATA 3570 (18 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narinder Singh Sachdeva

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2425796

HOME AFFAIRS REFERENCE(S):          BCC2023/4991268

MEMBER:Kira Raif

DATE:18 September 2024

PLACE OF DECISION:  Sydney

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 18 September 2024 at 12:22pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – fact or circumstance no longer the case or no longer exists –secondary applicant as member of family unit – relationship ceased – attempt to reconcile not supported by wife – no access to young child – family dispute resolution in progress and possible family law proceedings – best interests of child – mental health treatment – possibility of employment sponsorship – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 29 July 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 applicant is a national of India, born in October 1984. He was granted the Skilled visa in February 2023. In July 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of the visa as the delegate determined that there may be grounds for cancelling his visa under s. 116 of the Act. The applicant provided a response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 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 set aside.

   Relevant law

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). 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.

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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Skilled visa in February 2023 as a secondary applicant on the basis of his relationship with Ms Kaur. The applicant claimed to be a spouse and a member of the family unit of Ms Kaur.

8. The primary decisions record indicates that the Department received information that the applicant’s relationship with Ms Kaur ended in August 2023. In his response to the NOICC the applicant disagrees and states that he is trying to reconcile and mend the relationship (although he admits his attempts are unilateral) and the applicant also claims that he and his partner partners are not legally separated and that their present arrangements of living separately is temporary.

9. The Tribunal acknowledges the applicant’s evidence but is mindful that a spouse relationship  requires a mutual commitment to the relationship and the applicant’s claimed desire to reconcile is not sufficient to indicate that the relationship continues to exist. The applicant’s evidence suggests that Ms Kaur does not support the applicant’s efforts at reconciliation or the resumption of cohabitation. There is no evidence before the Tribunal to indicate that Ms Kaur has any intention of maintaining a relationship with the applicant and in such circumstances, the applicant’s own views and preferences about the relationship are insufficient.

10. In his submission to the Tribunal  of 17 September 204 the applicant states that his wife has been blaming him for all her setbacks in life and has taken advantage of him. It is not the role of this Tribunal to determine the circumstances that led to the breakdown of the relationship, nor apportion the blame for it. The applicant confirmed in his oral evidence to the Tribunal that his relationship with Ms Kaur ended.

11. The Tribunal finds that the applicant and Ms Kaur are no longer living together. There is no evidence that they maintain a joint household and that they share domestic responsibilities. There is no evidence that they share their financial affairs and pool their resources. There is no evidence that they continue to plan and undertake joint social activities or that they continue to represent themselves to others as being in a relationship. There is no evidence that there remain a mutual commitment to the relationship.

12. On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s relationship with Ms Kaur has ended and that he is no longer a spouse or de facto partner of Ms Kaur. 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 he 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 him being a member of the family unit of Ms Kaur 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.

13. 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

14. 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

15. 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 his partner. The applicant provided to the Tribunal a number of family photographs evidencing his relationship with his partner. However, the Tribunal has found that the 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 his travel to Australia because he is no longer in a relationship with the primary visa holder.

16. The applicant refers to his employment in Australia and he provided with his response to the NOICC evidence of his employment. He also refers to his voluntary activities. The applicant states that the presence of his young son in Australia constitutes a compelling need for him to remain in Australia. In oral evidence the applicant also told the Tribunal that he has a son in Australia and it is important for him to be able to remain with his child. The applicant states that he wants to remain in Australia until his visa expires and after that time he has been communicating with his employer about getting a visa sponsorship. The applicant states that if he cannot renew his visa in Australia, he will leave Australia but he intends to apply for Visitor visas in the future so he can travel to Australia and see his child. He would not be able to do that if his visa is cancelled.

17. The applicant states that he is presently not in a good position to obtain the sponsorship from his employer, given the cancellation of the visa, but he will be able to have a better conversation with his employer if his visa is reinstated. The applicant told the Tribunal that he is communicating with his company about the sponsorship but he has not been promised the sponsorship and he cannot be certain that the company will sponsor him. It is merely his hope that the company will sponsor him but there is no certainty that it may happen. In these circumstances, the Tribunal does not consider that it can be assumed that the applicant will obtain another visa beyond February 2025 when his visa that is the subject of this review would have expired.

18. The applicant also states that if his visa is cancelled, he will be subject to an exclusion period and will not be able to be granted a Visitor visa in the future. The Tribunal accepts that the applicant will be subject to the exclusion period in PIC 4013 although the Tribunal is mindful that there are (limited) waiver provisions to avoid the three year exclusion period.

19. The applicant also refers to the ongoing family law proceedings to enable him to see his son, as his ex-partner does not permit him to see the child, despite taking his Child Support payments. The applicant states that his wife has refused to attend mediation and the next step is to make an application to the Family Court and he is uncertain how long that process would take. The Tribunal accepts that generally, the presence of a child in this country may constitute a compelling need for the applicant to remain in Australia but in this case, the applicant’s evidence is that he has not been able to see his child, as his wife prevents contact and access. Again, there is no certainty that these circumstances will change before the applicant’s visa expires.

    The extent of compliance with visa conditions

20. There is no evidence of any non-compliance with visa conditions.

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

21. In his response to the NOICC the applicant refers to his settlement in Australia, including employment, professional development and contribution to the community through the payment of taxes and voluntary activities. The applicant presented evidence of his employment to the delegate and the Tribunal, as well as his taxation records. The Tribunal accepts that the applicant has contributed to the community, although in the Tribunal’s view, that does not establish hardship to the applicant.

22. The applicant states in his submission to the delegate that he has no ties in India and returning would cause him personal and financial hardship. The Tribunal considers this to be an odd statement, given that the visa in question is only a two year temporary visa which does not permit the applicant to remain in Australia beyond February 2025. There is nothing before the Tribunal to suggest that the applicant has ever been granted a permanent Australian visa. In such circumstances, the applicant’s claim that returning to his home country would cause him hardship is, with respect, unreasonable. As the applicant does not hold, and has never held a permanent visa, he would be expected to return to India upon the expiry of the visa, which in the present case would have expired only about six months after it was cancelled. As noted above, there is no certainty that the applicant will be able to obtain another visa enabling his stay in Australia beyond February 2025.

23. The applicant’s evidence to the Tribunal is somewhat different as he referred to previously having a good job in India and his ability to find stable employment in the future that would enable him to obtain the Australian visitor visas.

24. In his submission to the delegate the applicant refers to the presence of his son in Australia and states that he visits his son regularly and supports him financially. In his submission to the Tribunal the applicant states that he was the primary caregiver to his son when his wife moved to Australia and until their recent separation. The applicant states that since his separation from his partner, his wife does not allow him to see or speak to his son. The applicant states that he has been paying child support (he provided evidence relating to the child support assessment) and resorted to Family Dispute Resolution to be able to access his son. (He provided to the Tribunal evidence of his engagement in the family dispute resolution program but told the Tribunal that his wife refused to participate). The applicant states that he will face ‘serious emotional and psychological hardship’ if he is separated from his son. The applicant submits that he would be denied an opportunity to keep up his ‘physical relationship’ with his son if his visa is cancelled and he has to leave Australia.

25. The applicant states that the cancellation of his visa would cause him to separate from his child and all his efforts to see his child would be in vain. The applicant states that if he is the subject of the exclusion period, he will have no option of seeing his son and if his visa is reinstated, he will pursue his legal options and have the hope of being able to see his son. The Tribunal is mindful that the applicant’s inability to see his child is the result of his relationship with his partner, rather than the visa issues. It is significant, in the Tribunal’s view, that even if the visa is reinstated, there is no guarantee that the applicant will have the option of seeing his child.

26. The applicant’s evidence is that his contact with child is presently non-existent and while the applicant hopes to be able to resume that contact, that is yet to happen. That  is, whether or not the applicant’s visa is reinstated, he will not be able to, at least at present, see his child. Nevertheless, the Tribunal accepts that the applicant will have a better opportunity to pursue the family law proceedings and to engage with his partner to negotiate access to his son, if the applicant remains in Australia.

27. The applicant states that due to stress and anxiety, he was admitted to hospital and is seeking mental health support. He states that due to the cultural norms in India, it would be very difficult for him to get mental health support there. The Tribunal is mindful, however, that the applicant’s visa would only be in effect for a short period of less than six months when the applicant would be expected to return to India. If the applicant intends to seek medical treatment in Australia, then a more appropriate visa for that purpose would be a Medical Treatment visa, rather than a Skilled visa.

28. The applicant refers to his poor mental health and states that his company has initiated for him to see a psychologist. The applicant also refers to his heart issue. He provided to the Tribunal a number of medical reports and hospital records and the Tribunal accepts that he received treatment in Australia. The applicant has not satisfied the Tribunal that the treatment would not be available to him in India and, as noted above, the Tribunal is of the view that if the applicant needs ongoing treatment in Australia, he is able to seek a visa that is more suitable for such needs.

    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.

29. The ground for cancellation arose because the applicant’s relationship with the primary visa holder had ended.

30. In his written submission to the Tribunal the applicant stated that he holds a bacshelor degree and had stable employment in India but he chose to accompany his wife to Australia so that the family could reunite. The applicant states that he tried to reconcile but his wife ‘is not taking any initiative’. In his declaration dated 17 September 2019 the applicant referred to the reasons for the relationship breakdown and the effect it has had on him. The applicant told the Tribunal that there was no family violence or other issues in the relationship.

    Past and present behaviour of the visa holder towards the department

31. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

32. There are no persons whose visa 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

33. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he would be subject to an exclusion period in relation to some future visa applications. 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.

    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

34. In his submission to the Tribunal of 17 September 2024 the applicant states that his wife travelled to Australia in 2019 while he remained in India with their son and there developed a ‘serious bond’ between the applicant and his child. The applicant states that, given his relationship with his child as a primary caregiver, the cancellation of his visa and separation would cause hardship to the applicant and his son. The applicant states that he has sacrificed his career and prospects for the sake of the family and has built a special and deep bond with his son. He is in the process of trying to obtain more regular and deep contact with his son and the family law process in Australia needs time to be followed appropriately.

35. The applicant told the Tribunal that his son wants to see him but he is prevented by his mother and may be in the five months before his visa expires, things will change and he will be able to gain access to his child, or, alternatively, he will be able to seek Visitor visas in the future to visit his child in Australia if his visa is not cancelled but he would be subject to an exclusion period if his visa is cancelled.  

36. The Tribunal is prepared to accept that the applicant has a close and meaningful relationship with his son. However, the evidence before the Tribunal is that the applicant is presently prevented from seeing his child and he has no access to his son. While he intends to initiate family law proceedings in the court to gain such access, the duration of that process and its outcome cannot be assumed. There can be no guarantee that the applicant will be granted access to his child before the expiry of his visa in February 2025, nor that the applicant will be able to gain the Visitor visa in the future to visit his son.

1. The applicant told the Tribunal that he and his son have a strong bond and the situation is ‘definitely’ affecting his son. However, he also stated that he does not know how his son is feeling as he has not been able to talk to, or see his son. Importantly, the separation and lack of contact are the result of the decision made by the child’s mother and not the cancellation of the applicant’s visa.

2. The Tribunal has formed the view that the reinstatement of the applicant’s visa will not result in him being able to see his child or have any contact with his child. There will be no practical difference at present whether or not the applicant retains his visa. However, the Tribunal also accepts the applicant’s submission that he may lose the opportunity to pursue formal proceedings in Australia to gain access to his child (such as an application to the court) and that he is unlikely to be able to return to Australia on Visitor visas in the future to visit his child, if he is subject to the exclusion period in PIC 4013. That is, despite not being able to see his child now, the Tribunal accepts that the applicant’s options in re-establishing that relationship will be far more limited if his visa is cancelled. The Tribunal is of the view that it is in the best interest of the applicant’s child to retain such options and to give the family the opportunity to re-establish a relationship between the applicant and his son. That means that it is in the best interest of the applicant’s child that the applicant’s visa is not cancelled.

3. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

   Any other relevant matters

4. The applicant’s evidence is that he is engaged in the family law process to gain access to his child and that process needs time. He states that it would be ‘next to impossible’ to successfully prosecute any claim with respect to parenting orders in the Australian court if he was to return to India. The Tribunal accepts that evidence, although the Tribunal notes that  the applicant’s Skilled visa cannot be extended beyond February 2025 for that purpose.

5. The applicant states that his circumstances changed within six months of him coming to Australia and it is possible that in the future, things will change as well and he may reconcile with his wife and may be able to see his child. The Tribunal acknowledges that submission but considers it purely hypothetical.

6. The applicant’s representative referred to a number of other Tribunal decisions. The Tribunal considers such references unhelpful, as each case is decided on the basis of its particular factual circumstances.

7. The Tribunal has considered 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 visa. However, in the circumstances of this case, the Tribunal has decided to place greater weight on considerations that do not support the cancellation.

8. Firstly, the Tribunal has formed the view that there would be significant hardship to the applicant if his visa is cancelled. This is because the applicant will lose the opportunity to pursue the family law proceedings and re-establish contact with, and obtain access to, his child. The Tribunal accepts that the applicant is actively pursuing legal action to be able to see his child and that there is little chance of the applicant being able to see his child if he was required to leave Australia. The Tribunal also accepts that the future possibility of the applicant obtaining Visitor visas to see his son would be minimal if the applicant’s visa remains cancelled.

9. The Tribunal has also formed the view that it is in the best interest of his child if the applicant is able to remain in Australia and engage in the processes that may enable him to have contact with the child and possibly access to the child. That is, it is in the best interest of the child if there remains a possibility of re-establishing contact with the applicant and such possibility will be minimal if the applicant was to leave Australia.

10. Having regard to these matters, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Kira Raif
    Senior Member