Seldon (Migration)

[2024] AATA 3988

Seldon (Migration) [2024] AATA 3988 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pema Seldon

REPRESENTATIVE:  Mr Maneesh Bohra (MARN: 2217860)

CASE NUMBER:  2428189

HOME AFFAIRS REFERENCE(S):          BCC2024/1856687

MEMBER:Kira Raif

DATE:2 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 02 October 2024 at 1:47pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – was no longer a member of the family unit or in an ongoing relationship with the primary visa holder – relationship ended – no further compelling need to remain in Australia – applicant can no longer fulfil the purpose of her travel to and stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 13 August 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 Bhutan, born in May 1994. She was granted the Skilled visa in February 2024 on the basis of being a spouse and a member of the family unit of the primary visa applicant, Mr G. In June 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate noted that the applicant’s relationship with Mr G ended and the circumstances permitting the grant of the visa no longer existed. It is recorded in the primary decision that the applicant did not respond to the NOICC and her visa was cancelled in August 2024. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 2 October 2024 to give evidence and present arguments. 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 affirmed.

   Relevant law

4. 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.

5. 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?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was issued the Skilled visa as a spouse and a member of the family unit of Mr G. It is stated that in February 2024 the Department became aware that the applicant’s relationship with Mr G ended.

7. In oral evidence the applicant confirmed that her relationship with the primary visa holder ended and she is now in a new relationship. Having regard to that evidence, the Tribunal finds that the applicant is no longer a spouse or de facto partner of Mr G. 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 she 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 her being a member of the family unit of Mr G 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.

8. 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

9. 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

10. 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 her partner. However, that 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 her travel to Australia because she is no longer in a relationship with the primary visa holder.

11. The applicant told the Tribunal that she started a new relationship in late 2023 and wants to remain in Australia with her new partner. The applicant states that her partner is a holder of the Student visa and she had made an application to be included in his Student visa, that process is still ongoing. The Tribunal finds that the processing of that application is independent of the present process and will continue irrespective of the outcome of the present review. That is, even if the presence of her partner in Australia constitutes a compelling need for the applicant to remain in Australia, the applicant will be able to remain in Australia with her partner while her other application is under consideration, whether or not her Skilled visa is cancelled.

    The extent of compliance with visa conditions

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

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

13. The applicant told the Tribunal that it would be hard for her and her partner if she had to go overseas and be separated from him. However, as noted above, the applicant has an ongoing application for another visa which is not finally determined. That means that the applicant will not be required to leave Australia and be separated from her partner if her Skilled visa is cancelled.

14. The applicant told the Tribunal that if she cannot work, she might not be able to support her family. However, the Tribunal notes that the applicant is able to apply for permission to work if she can establish financial hardship. The Tribunal does not consider that financial hardship would be caused to the applicant as a result of her visa being cancelled.

15. The applicant has not identified any other hardship that may be caused to her by the cancellation of the visa.

    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.

16. The ground for cancellation arises because the applicant’s relationship with her partner and the primary visa applicant has ended. The applicant informed the Tribunal that there was no family violence in their relationship.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s 140

18. There are no persons whose visas 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

19. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she would be subject to an exclusion period in relation to some future visa applications contained in PIC 4013. 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, as set out in s. 48 of the Act.

20. The applicant told the Tribunal that she had previously applied for a Student visa and her visa application was refused. The Tribunal is thus mindful that the above consequences already apply as a result of the Student visa refusal.

    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

21. There are no children who would be affected by the cancellation of the visa. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. In terms of the family unit, the applicant’s new partner resides in Australia, holding a temporary visa. She may have other family members overseas. The applicant has other visa options that would enable her to remain with her partner.

22. The Tribunal finds that Australia’s international obligations will not be breached as a result of the cancellation.

    Any other relevant matters

23. The applicant has not raised any other matters.

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has determined that there are grounds for cancelling the visa. The Tribunal has found that the cancellation would not in breach of Australia’s international obligations. The Tribunal is not satisfied that hardship would be caused to the applicant as a result of the cancellation, noting that she would be able to remain in Australia with her partner while awaiting the outcome of another visa application. The Tribunal gives the greatest weight to the fact that the applicant can no longer fulfil the purpose of her travel to and stay in Australia.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif

    Senior Member