SAMOEI (Migration)

[2020] AATA 1148

SAMOEI (Migration) [2020] AATA 1148 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ABRAHAM KIPLANGAT SAMOEI

CASE NUMBER:  1901214

HOME AFFAIRS REFERENCE(S):          BCC2018/4384569

MEMBER:Helen Kroger

DATE:1 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 01 April 2020 at 9:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) –circumstances of grant of visa no longer exist – secondary visa as member of family unit –end of spousal relationship – discretion to cancel visa – general conditions and personal safety in home country – decision under review affirmed

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 11 January 2019 made by a delegate of the Minister for Home Affairs 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.

3. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments. The applicant was invited to attend a hearing on 20 February 2020 and the applicant sought a postponement to allow time to prepare for the hearing, claiming that his agent had not communicated to him the hearing details.  The Tribunal granted an extension of three weeks.

4. The applicant provided the Tribunal with a copy of the delegate’s decision for the purpose of its consideration.

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?

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 applicant, Mr Samoei, was granted the Subclass 500 visa on the basis he was the spouse of Sheila Jebet Lelei. The applicant stated he was the holder of a dependent student visa because of his marriage to Ms Sheila Jebet Lelei. The applicant claims that the parties were married on the 23 August 2016 and lived together until April 2018, and told the Tribunal that they formally separated “at the end of 2017”. The applicant did not dispute that he was no longer in a relationship with Ms Lelei.

9. Mr Samoei first travelled to Australia in February 2012 on a student visa to study a Diploma in Business Management that he successfully completed. He then moved to a working visa, and was employed by Quantum Dialogue until late 2017 when he commenced  work with a  relocation company, and later became a secondary visa holder attached to his wife’s student visa.

10. Mr Samoei explained to the Tribunal at the hearing (the evidentiary basis being the audio file), that he tried to work things out when his marriage broke down in 2017, as he wanted to have a future in Australia. He indicated that he attempted to continue to talk to Ms Lelei, but that she discontinued all contact and that the last time he had spoken to her was towards the end of 2019.

11. The applicant was sent a Notice of Intention to Consider Cancellation of his visa (NOICC) on 17 December 2018 inviting him to comment. The delegate did not receive a response to this invitation. The applicant’s visa was subsequently cancelled on 11 January 2019.

12. The Tribunal has considered all the evidence before it and relevantly, the applicant’s confirmation to the Tribunal that his relationship with Ms Lelei broke down and that the parties separated towards the end of 2017 and physically moved apart in April 2018. Accordingly, the Tribunal is satisfied that Mr Samoei is not a part of Ms Lelei’s family unit after their physical separation in April 2018, and before the expiration of the visa on 15 March 2019.

13. For these reasons, I am satisfied that the ground for cancellation of the visa, namely that circumstances for the grant of the visa did not exist, and remained at the time of the Department’s decision to cancel the visa. The applicant was not the spouse, or a member of the family unit of the holder of the student visa, and was not entitled to be the dependent student visa at any time after their separation in April 2018, until Ms Lelei’s student visa ceased.

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’.

    The purpose of the applicant’s travel and stay in Australia, including any compelling need to stay in Australia.

16. The purpose of the applicant’s stay was to be as the spouse of Ms Lelei who was studying whilst the applicant was working. The Tribunal accepts that the parties were in a spousal relationship that finally ceased in April 2018, and that the applicant was interested in reconciling. The applicant told the Tribunal that their relationship changed after Ms Lelei’s elder sister arrived and that this sister influenced Ms Lelei that contributed to the irreconcilable breakdown of their marriage.

17. The applicant explained that he wishes to remain in Australia as it is a peaceful country and he wishes to stay in Australia rather than returning permanently to Kenya. The applicant has lived in Australia since 2012, when he arrived on a student visa and indicated to the Tribunal the circumstances that he would face should he return on a permanent basis to Kenya. The applicant indicated that Ms Lelei has ceased all contact with him since 2019. As the purpose of the applicant’s visa was to be with his wife Ms Lelei while she studied and that their relationship has now ceased, I give this no weight in favour of the applicant’s favour.

    The extent of the compliance with visa conditions

18. There is no evidence before me that indicates that the applicant has not complied with his visa conditions, and I give this some weight in the applicant’s favour.

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

19. The Tribunal invited the applicant to comment on any potential hardships that may be caused should his visa be cancelled and he returned to Kenya. The applicant submitted that he held concerns for his personal safety should he be required to return to Kenya. He explained that following the government elections in 2007,  a number of local people were victimised and threatened and he claims that he continues to be cautious in his activities when travelling home. He indicated that he has travelled to Kenya three times since he has been living in Australia and that in organising these visits, he ensures that they do not coincide with elections. He explained that he did not support the Member of Parliament who represents the area where he is from, and that this Member of Parliament, victimises those who don’t support him. As a consequence, he claims he keeps a low profile when he is in Kenya.  He indicated that this victimisation of non-supporters has resulted in looting and property damage. The Tribunal invited the applicant to comment on any further hardship considerations, and the applicant stressed that this victimisation would potentially cause emotional and financial stress through possible property damage and potentially limiting employment opportunities.

20. The Tribunal has considered all the evidence before it, namely the applicant’s oral evidence during the hearing, and is sympathetic with the applicant’s claims that he may experience a level of victimisation as he didn’t support the locally elected Member of Parliament. The Tribunal has considered the applicant’s evidence that indicates that notwithstanding this concern, that the applicant has been able to travel to his family home on three separate occasions without incurring problems, noting that the applicant indicated that these visits were conducted with a degree of discretion. The Tribunal is satisfied based on the evidence available that whilst the applicant has concerns about his personal safety, and potential victimisation that could limit his opportunities, and given that he has been able to return on three separate occasions safely, that any potential personal, emotional or psychological hardship would be limited. The Tribunal is satisfied that the concerns expressed relate to a specific and finite geographic area, and would not preclude the applicant from considering opportunities in nearby areas. There is no evidence before the Tribunal to indicate any financial hardship that would be incurred should the applicant’s visa be cancelled.

21. For these reasons, the Tribunal is satisfied that the applicant could return to his home country without suffering financial, emotional or psychological hardship. However I accept the applicant’s claims of a degree of concern regarding his personal safety and accordingly give this some weight in the applicant’s favour.

    Circumstances in which the ground for cancellation arose

22. The applicant was entitled to the visa as the spouse of Ms Lelei who was the holder of a student visa. The applicant and Ms Lelei were married on 23 August 2016, separating in late 2017 and the applicant confirmed to the Tribunal at the hearing that they finally moved apart to live separately in April 2018. The reasons for the separation have not been fully explained to the Tribunal and the applicant submitted that the relationship became more problematic after Ms Lelei’s sister arrived in Australia, and that she exercised influence over her sister. The applicant told the Tribunal that he had wanted to try and sort it out but that Ms Lelei was not interested, particularly after her sister arrived. The Tribunal gives the evidence of the circumstances in which the ground for cancellation arose weight in favour of the cancellation of the visa.

    Past and present behaviour of the applicant to the Department

23. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings and gives this some weight in favour of the applicant and not cancelling his visa.

    Consequential cancellations under s.140

24. There is no evidence that there would be any consequential cancellations if the applicant’s visa is cancelled and I give this no weight.

    Mandatory legal consequences

25. There would be mandatory legal consequences, upon cancellation of the visa and the Tribunal notes that the visa under consideration has already expired. The applicant would become unlawful, and subject to the possibility of detention, although he would also be eligible to apply for a bridging visa. The applicant would be subject to the provision of s.48 of the Act which limits the application for other visas the applicant would otherwise be entitled to apply for whilst still in Australia. The Tribunal gives this some weight in the applicant’s favour.

    Any international obligations

26. There is nothing before the Tribunal to indicate that there are international obligations to consider.

27. The Tribunal has carefully assessed the relevant factors, both individually and cumulatively, including the evidence raised by the applicant during the hearing. The cancellation of the applicant’s visa is based on the relationship breakdown, as the applicant was no longer a member of Ms Lelei’s family unit, as required to be the holder of the dependent student visa. Based on the evidence before the Tribunal and that submitted by the applicant at the hearing, the relationship broke down in late 2017 with the parties living separately from April 2018. In consideration of whether the discretion should be exercised in relation to the cancellation of the visa, the Tribunal has given weight to the factors that have been assessed in the applicant’s favour, including the personal safety issues that have been canvassed above. However, on balance, the Tribunal has concluded, the circumstances in which the ground for the cancellation arose outweighs the consideration of the other factors. The Tribunal is satisfied that the factors in favour of the cancellation of the visa outweigh the other considerations.

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

    DECISION

29. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Helen Kroger
    Member