Salvi (Migration)

[2019] AATA 4183

Salvi (Migration) [2019] AATA 4183 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Madhura Ajit Salvi

CASE NUMBER:  1714350

HOME AFFAIRS REFERENCE(S):           BCC2017/1425937

MEMBER:Peter Emmerton

DATE:2 September 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 02 September 2019 at 3:32pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – consideration of discretion – original purpose to accompany primary visa holder ceased – substantially beyond the applicant’s control – decision under review affirmed

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 3 July 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 she no longer satisfied the secondary criteria for the visa as she was no longer a member of Mr Ganesh Balasaheb Kate’s family unit, as prescribed by Regulation 1.12 of the Migration Regulations 1994. 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, via video conference on 2 September 2019 to give evidence and present arguments. The Tribunal also received evidence from Mrs Sarita Anumalla.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

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) - Fact or Circumstance for visa grant no longer exists

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 Madhura Ajit Salvi’s 457 Temporary Work (Skilled) visa was granted on the basis the application met, amongst other criteria, the secondary criteria for this visa on the basis she was a member of Mr Ganesh Balasaheb Kate’s family unit, as prescribed by Regulation 1.12 of the Migration Regulations 1994.

9. To be a member of the family unit of Mr Ganesh Balasaheb Kate as prescribed by Regulation 1.12 of the Migration Regulations 1994, Ms Madhura Ajit Salvi needs to continue to be either a spouse or a de-facto partner of that person as defined respectively by sections 5F and 5CB of the Migration Act 1958.

10. On 27 April 2017 the Department received advice from the primary visa holder, Mr Ganesh Balasaheb Kate, advising that Ms Madhura Ajit Salvi’s de facto relationship with him had ended. The above information indicates Ms Madhura Ajit Salvi and the primary visa holder, Mr Ganesh Balasaheb Kate, no longer have a mutual commitment to a shared life together to the exclusion of all others, that the relationship between them is no longer genuine and continuing and they live separately on a permanent basis.

11. On this basis It would appear that Ms Madhura Ajit Salvi no longer meets the definition in the Migration Regulations 1994 of being in either a married or de facto relationship with the primary visa holder, and therefore no longer meets the definition of being a member of their family unit.

12. The Tribunal has subsequently formed a view that this key circumstance of being in either a married or de facto relationship with the primary visa holder who held a 457 Temporary Work (Skilled) visa, that enabled her to meet the requirements for the grant of the visa, no longer exists.

13. The Tribunal notes that Ms Madhura Ajit Salvi and the primary visa holder, Mr Ganesh Balasaheb Kate vary on the stated dates that the relationship ceased but this is not material to the core circumstance as they both acknowledge that the relationship has not existed for a substantial time period. This was demonstrated by written communication to the Department by Mr Ganesh Balasaheb Kate on 27 April 2017 and written communication to the Department by Ms Madhura Ajit Salvi, on 21 June 2017 and reaffirmed to the Tribunal at the hearing by Ms Madhura Ajit Salvi. Ms Salvi stated at the hearing that her relationship ended at 31 March 2017.

14. The Tribunal asked Ms Madhura Ajit Salvi if it was still the case that she was no longer Mr Ganesh Balasaheb Kate’s de facto partner. She replied in the affirmative.

15. The Tribunal has formed the view that Ms Madhura Ajit Salvi no longer meets the definition in the Migration Regulations 1994 of being in either a married or de facto relationship with the primary visa holder, Mr Ganesh Balasaheb Kate and therefore no longer meets the definition of being a member of their family unit. As the key circumstance of being in either a married or de facto relationship with the primary visa holder who held a 457 Temporary Work (Skilled) visa, that enabled her to meet the requirements for the grant of the visa, no longer exists, the visa may be cancelled under s.116(1)(a).

16. 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

17. 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’.

    Purpose of the visa holder’s travel to Australia

18. Ms Madhura Ajit Salvi was granted the 457 Temporary Work (Skilled) visa On 04 August 2016 for the purpose of being able to accompany and remain in Australia temporarily with the 457 primary visa holder, with whom she was in a de facto relationship. Ms Madhura Ajit Salvi also stated in her response to the NOICC that she wished to remain in Australia, continuing her career with her Australian employer - Club Tropical Resort in Darwin. The visa was due to expire on 18 July 2020. The Department was advised on 27 April 2017 that the relationship had ceased. At that time, the original purpose can be considered to have ended. The Tribunal gives this minimal weight in the applicant’s favour.

19. The Tribunal accepts the evidence stated at the hearing regarding Ms Salvi’s recent relocation to Melbourne Victoria to further her career. She is currently employed at Sheraton Hotels Melbourne as an Assistant Manager and the Tribunal acknowledges the evidence that reinforces the claim that she has been and continues to be, a diligent and contributing member of society. The Tribunal gives this some weight in the applicant’s favour.

    Extent of compliance with visa conditions

    Evidence provided by the visa holder at the hearing, coupled with written submissions prior to the hearing and the Department’s statement in their Decision record dated 3 July 2017, has drawn the Tribunal’s to the conclusion that Ms Salvi’s inability to comply with the conditions of her visa has been substantially outside of her control. The Tribunal also notes the statement by the Department that ‘Cancellation is not being considered because of a non-compliance of visa condition. Ms Madhura Ajit Salvi has been forthcoming and responded to the Notice within the specified timeframe.’
    The Tribunal gives this some weight in her favour.

    Degree of hardship that may be caused to the visa holder and any family members

20. The Tribunal accepts through her written statements and evidence given at the hearing that Ms Salvi, as the only child, supports her aging parents domiciled in India and that they wish to visit her in Australia. It also accepts that it may be difficult to do either of these if she is unemployed and acknowledges her concerns about obtaining further Australian visas.

21. The Tribunal agrees that some hardship may occur as a result of her having too leave Australia and accepts that having to leave at a time not of her choosing may be less than desirable from her perspective. The Tribunal also accepts the assertion by Ms Salvi that she will be embarrassed by her circumstances as will her parents, if she is required to return because of a failed visa application and a failed relationship and this may have some negative career and social implications. This however is unlikely to be greater than most people in her circumstances. The Tribunal gives this minimal weight in the applicant’s favour.

22. Whilst assisting her parents to travel to Australia is laudable, an inability to do so does not in the view of the Tribunal, constitute undue hardship. The Tribunal is also of the view that with the training and experience that Ms Salvi has accrued, coupled with her career stage and enthusiasm, that she is relatively well placed to find future employment in India in her chosen field. The Tribunal acknowledges that relocation may retard her career for some period of time as she re-establishes herself in India and that it may be initially difficult to obtain a role at her current level. This is not in the view of the Tribunal any greater hardship than would be faced by many in such a circumstance as they relocate to another country or return to their home country.  Re-establishing her career will subsequently allow her to continue to assist her parents financially if she so chooses. The Tribunal gives this minimal weight in the applicant’s favour.

23. Assuming Ms Salvi complies with all the lawful requirements regarding her visa status and subsequent requirements of the Department, the Tribunal is not aware of any reason why Ms Salvi could not apply for a future visa to Australia once she has established her eligibility for one. The Tribunal notes that these are the intended consequences of the legislation when a visa is cancelled on such grounds. The Tribunal gives this no weight in the applicant’s favour.

    Circumstances in which the ground for cancellation arose

24. The ground for cancellation arose when the Department received information that Ms Madhura Ajit SALVI and the primary visa holder’s relationship ceased. In her response to the NOICC Ms Madhura Ajit Salvi provided the following reasons as to the circumstances in which the grounds arose.

25. Ms Salvi stated to the Department and subsequently to the Tribunal that she was a victim of circumstances not of her making. In summary she stated that she was in a relationship with a manipulative man who dominated her and had not treated her well. He had subsequently departed Australia and married someone else. He is now living back in Melbourne according to Ms Salvi. He submitted a change of circumstances form notifying the Department of the relationship breakdown and subsequently notified Ms Salvi of his actions. The Tribunal accepts the evidence as stated.

26. At the time Ms Salvi was granted a 457 visa she would have been aware of the conditions of the visa grant and in fact it was her responsibility to be so informed. She confirmed at the hearing that this was largely correct but that Mr Kate was not always forthcoming with the information surrounding the visas. The Tribunal considers it reasonable to expect that Ms Salvi was aware when granted the visa that this was on the basis of being a member of the family unit of the primary visa holder and they would reasonably have realised any change of circumstances would have impacted on her eligibility to continue to hold the 457 Temporary Work (Skilled) visa. The Tribunal gives this no weight in favour of the applicant.

27. The Tribunal acknowledges that the circumstances surrounding the cancellation of her visa were not substantially within her control and therefore has some empathy for her plight. The Tribunal gives this some weight in its decision.

    Visa holder’s past and present behaviour towards the Department

28. The Department acknowledged that there was no information to suggest that Ms Salvi had been uncooperative or untruthful with the Department or their staff in her past or present interactions. It is also acknowledged that Ms Salvi responded within the relevant timeframe to the NOICC. The Tribunal also notes that it has no evidence before it which might refute the Department’s view. It further observes that the visa holder presented as someone who was aware of her visa conditions, behaved ethically and had endeavoured to comply and has continued to do so following the visa cancellation. She appeared to genuinely believe that it was important to do the best she could to comply with the requirements of the visa cancellation process. The Tribunal gives this some weight in his favour.

    Whether there are persons in Australia whose visas would, or may be cancelled under section 140 of the Act

29. It is clear from the circumstances as stated by the visa applicant at the hearing and the associated records and documentation from the Department and the visa applicant’s submission, that no other person’s would be consequently cancelled. The Tribunal notes that there are no children in Australia for whom the applicant has responsibility and subsequently no children for whom the cancellation of the applicant’s visa would result in the cancellation of their visas. The Tribunal places no weight on this consideration.

    Legal consequences of a decision to cancel the visa

30. If Ms Madhura Ajit Salvi’s 457 Temporary Work (Skilled) visa is cancelled, this will result in her becoming an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958 if she does not voluntarily depart Australia. Section 48 of the Act means that Ms Salvi will have limited options to apply for further visas in Australia.

31. Cancellation of the 457 visa on the grounds before the Tribunal will not incur any penalty under Public Interest Criterion 4013 and will not prevent Ms Salvi from applying for a new visa from offshore once she can establish her new purpose and eligibility for one.

32. No evidence has been put before the Tribunal that the applicant will be held in detention or that indefinite detention is a possible consequence of the 457 visa cancellation. If Ms Salvi chose not to depart voluntarily within the required period this may ultimately result in detention and subsequent removal actions. This is however not a consequence of the cancellation decision and would only be likely to occur as a direct consequence of the actions of Ms Salvi, if she chose to ignore the Department’s lawful instructions. The previous respectful and compliant actions of the applicant suggest to the Tribunal that this is not a likely outcome. This was confirmed by Ms Salvi at the hearing and the Tribunal is confident that this is Ms Salvi’s intention.

33. The Tribunal confirmed at the hearing that Ms Salvi had been briefed by her representative on her responsibilities and understood the potential consequences of non-compliance with the Department’s lawful instructions. The Tribunal further notes and confirmed at the hearing that Ms Salvi is a citizen of India and holds a Passport for that country and subsequently should be able to return to India without impediment. I give this consideration no weight in Ms Madhura Ajit SALVI’s favour.

    Impact on victims of family violence

34. There is no evidence before the Tribunal that cancellation would impact on any victims of family violence.

    Australian international obligations

35. There is no information before the Tribunal that would indicate circumstances that would engage Australia’s international obligations. The Tribunal places no weight on this consideration.

    Any other relevant matters

36. Ms Salvi canvassed with the Department and subsequently explained to the Tribunal, the fact that she had been provided with an opportunity to be sponsored in her own right by an employer. She declined in order to fall in-line with the demands and expectations of her spouse at the time, as per her perceived Indian cultural responsibilities and traditions. She also stated at the hearing that his aggression could be intimidating. Ms Salvi additionally stated at the hearing that had she been given more time by the Department beyond the 2 months stated by the Department in their decision, she could have obtained a 187 visa. It was evident by her statements at the hearing that around this time she was conflicted and dealing with substantial emotional challenges.

37. The Tribunal has some sympathy for this circumstance. Ultimately however Ms Salvi is responsible for her decisions in regard to her visa status. The Tribunal again notes that cancellation of the 457 visa will not preclude her from applying outside of Australia when she has established her eligibility to do so. The Tribunal places minimal weight on this factor in favour of Ms Salvi.

38. The Tribunal is not aware of any other relevant matters.

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

    DECISION

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

    Peter Emmerton
    Member