Shahandeh (Migration)
[2021] AATA 2338
•21 June 2021
Shahandeh (Migration) [2021] AATA 2338 (21 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ali Shahandeh
CASE NUMBER: 2018386
HOME AFFAIRS REFERENCE(S): BCC2020/1954757
MEMBER:Vanessa Plain
DATE:21 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 21 June 2021 at 11:55am
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of the family unit – relationship ceased – applicant left Australia – applicant seeking further visas – applicant’s plan to complete PhD studies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 116, 140
Migration Regulations 1994, Schedule 8, condition 8516; r 1.12STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 16 December 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that a circumstance which permitted the grant of the visa no longer exists. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 June 2021 to give evidence and present arguments.
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
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?
Ground for cancellation
The ground for cancellation considered in by the delegate was as follows:
Section 116 - Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)The decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists;
(2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3)If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
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.
Particulars of the ground for cancellation
Information before the Department in the form of a Notification of Change of Circumstances Form 1022 dated 20 July 2020 and signed by Ms Atefeh Maghzi appeared to indicate that the applicant was no longer in a relationship with the applicant.
The Form 1022 signed by Ms Maghzi states (among others) that, “Ali and I are no longer in a de facto relationship and have been separated.”
The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that the applicant was a member of the family unit of Ms Maghzi, as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994 (the Regulations), which provides as follows:
(2)A person is a member of the family unit of another person (the family head) if the person:
(a)is a spouse or de facto partner of the family head; or
To be a member of the family unit of Ms Maghzi as prescribed by reg 1.12(2)(a), the applicant needed to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act, which state (in part):
s5F ‘Spouse’
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis. 1...]
s5CB ‘De facto partner’
De facto partners(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i)live together; or
(ii)do not live separately and apart on a permanent basis; and
(e)they are not related by family (see subsection (4)).
1...]The applicant was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder as he was in a genuine and continuing relationship with Ms Maghzi. Information before the delegate as set out above indicated that the applicant ceased to be either a spouse or a de-facto partner of that person. It therefore appeared that the applicant ceased to be a member of their family unit as prescribed by reg 1.12(2)(a).
Based on this information, there appeared to be grounds for cancelling the applicant’s visa under s 116 (1)(a) of the Act because it appeared that a circumstance which permitted the grant of the visa no longer existed.
On 13 October 2020 the applicant was sent a Notice of Intention to Consider Cancellation of visa. He responded in writing on 19 October 2020 and 29 November 2020 respectively. His responses did not indicate whether he agreed or disagreed that there are grounds for cancellation of his visa.
At the hearing, the applicant stated that he and his de facto wife had separated, and they had not reconciled. He is now living back in his hometown of Mashad in Iran. He returned home as his father was unwell and he didn’t want to be in breach of any visa conditions. He stated further that he tried to obtain and applied for a talent visa, but he just recently received a notification from the Department that he wasn’t eligible for a talent visa and the application was refused.
The Tribunal asked the applicant if he had considered applying for a subclass 457 visa in his own right and the applicant informed the Tribunal that the University where he worked did not sponsor his employment.
The applicant stated further that he is still a PhD student at the University of Newcastle, however, it would be impractical for him to obtain a student visa, because he needs to work more than 20 hours per week to meet his tuition fees and living expenses. He believes that his PhD will be complete in approximately 12 months, but it could be longer. It is the applicant’s desire to return to Australia to complete his PhD.
On the basis of the above evidence, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists, because the applicant is no longer a member of the family unit as prescribed by regulation 1.12 and therefore the circumstance for which the visa was granted no longer 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
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 applicant provided reasons for why his visa should not be cancelled, as summarised by the Delegate (verbatim) as follows:
·He stated “I am a researcher in the medical field and currently under employee contract with the University of Melbourne. I joined the Ocular Biomarker Laboratory & Ocular Physiology Laboratories, Department of Optometry and Vision Science at the University of Melbourne as a research visitor on 1/08/2018”.
·He further stated “Having performed well I was promoted to Research Assistant and has been employed with us since 20/10/2018. I have provided Statement of Service from 2019 and 2020 issued by my supervisors as evidence”.
·He stated “I was a student in the University of Newcastle from 2014-2017 as the enrolment status document presented (please find the attached file). My PhD in the University of Newcastle has not yet been completed. There is an ongoing disagreement about my data that need to be settled”.
·He added “I have already applied for Talent Visa (EOI) on 24th of August and waiting for the response”.
The applicant submitted the following documents in support of his application:
Statement of Service dated 22 October 2019
Statement of Service dated 18 October 2020
Enrolment status details issued by the University of Newcastle dated 7 October 2014
Global Talent contact form
Status letter issued by the University of Newcastle dated 26 November 2020
Skills assessment for Managers dated 10 November 2019
Form eM1
Purpose of applicant’s travel to and stay in Australia
The Delegate’s decision record states as follows:
“The visa holder was granted a dependant subclass 457 (Temporary Work) visa for the purpose of accompanying Atefeh MAGHZI while in Australia. Information before the Department indicates that the relationship between the visa holder and Atefeh MAGHZI ceased, thus I find the visa holder’s purpose of stay in Australia no longer in line with the original purpose for which his visa was granted.
In the NOICC response, the visa holder stated he applied for Talent Visa (EOI) on 24 August 2020 and provided a document titled ‘Global Talent Contact Form’ dated 24 August 2020. Departmental records however do not indicate there is a pending visa application before the department for the visa holder.”
The applicant was granted a subclass 457 (Temporary Work) visa as a dependent (spouse) for the purpose of being able to accompany, remain and work in Australia temporarily with the primary visa holder Ms Maghzi with whom he was in a de facto relationship.
The Department was notified that the visa holder ceased to be in relationship with Ms Maghzi via her lodgement of a notice dated 20 July 2020, in which she informed the Department that she and the applicant were no longer in a de facto relationship. There is no evidence before the Tribunal indicating that the couple have reconciled.
As the applicant has ceased to be the de facto of the primary visa holder, the Tribunal considers that the purpose for which the visa was granted has ended and there is no legitimate immigration reason for the applicant to continue to hold the dependant visa.
The Tribunal affords this consideration weight in favour of cancelling the visa.
The extent of compliance with visa conditions
There is no evidence before the Tribunal to suggest that the applicant has breached any of his visa conditions that applied to his previous visa. However, the applicant is in breach of condition 8516, as he is no longer a person who satisfies the secondary criteria for the grant of the visa.
The Tribunal notes that the applicant was under the impression that his visa ceased in January 2021 and on that basis, he returned home and was mindful to ensure that he was not residing in Australia without a lawful visa. The Tribunal however notes that the applicant’s visa is due to expire on 10 May 2022 and on that basis is of the view that the applicant need not have departed Australia on account of any issue to do with his visa. The Tribunal notes that it is a testament to the applicant’s good character that he departed Australia on the basis that he thought that this was required of him due to a misconception about the end date of his visa.
The Tribunal gives this consideration a little weight against cancelling the applicant’s visa.
The degree of hardship that may be caused to the visa holder and any family members
The applicant informed the Tribunal that his brother is a permanent resident in Australia and if he can’t return to Australia he won’t be able to see him. He also wishes to finish his PhD studies in Australia in due course.
The Tribunal is mindful that a cancellation of the visa will possibly impede upon the applicant’s capacity to complete his studies and see his brother in the short term, however, critically, a cancellation under s.116(1)(a) of the Act does not cause a visa holder to be affected by the Public Interest Criterion 4013. Therefore, the applicant will not be prevented from applying and being considered for a new visa which suits his need to return to and remain in Australia for the purpose of completing his studies and seeing his brother (provided he is able to meet all the relevant criteria for any visa he applies for).
The Tribunal acknowledges that a cancellation outcome may impact the applicant’s capacity to study further in Australia in the immediate future. However, the Tribunal notes that the applicant has already departed Australia and there is no evidence before the Tribunal to the effect that the applicant could not achieve his short term study objectives outside of Australia if required.
The Tribunal acknowledges that the applicant will suffer some hardship gives this consideration some minor weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The grounds for cancellation arose when the applicant ceased to be in a continuing relationship with the primary visa holder, his de facto partner, Ms Maghzi.
Taking into account the evidence of the applicant at hearing and the matters raised by him in his response to the NOICC, the Tribunal cannot be satisfied that there are extenuating circumstances in this case that were beyond the applicant’s control that led to the ground for cancellation arising.
The Tribunal affords this consideration significant weight in favour of cancelling the visa holder’s
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
The applicant has already departed Australia.
The cancellation of the applicant’s visa is not subject to Public Interest Criterion 4013, which would otherwise exclude him from being granted a visa for a specific period of time in the future. By contrast, the applicant would be eligible to apply and be granted further visas without penalty, should he meet the required criteria.
These are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
Any other relevant matters
The Tribunal takes into account and places weight upon the fact that the applicant is well advanced in his PhD Studies at the University of Newcastle and has acted at all material times in good conscience and has abided by visa conditions. On that basis, if the applicant were to apply for a student visa in the future, or any other visa for that matter, the Tribunal is of the view that the Department ought not draw any adverse inference against the applicant on account of this particular visa cancellation.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reason for the breach of the visa condition was not due to extenuating circumstances beyond the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Vanessa Plain
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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