Shaik (Migration)

[2021] AATA 2375

Shaik (Migration) [2021] AATA 2375 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Ajaz Shaik

CASE NUMBER:  2012605

HOME AFFAIRS REFERENCE(S):          BCC2019/5780098

MEMBER:Kira Raif

DATE:21 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2021 at 10:33am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled - Graduate) – member of the family unit – relationship ceased – visa would have expired – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 7 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Skilled - Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in January 1991. He was granted the Class VC Temporary Graduate Skilled visa in Subclass 485 on 25 July 2019 on the basis of being a member of the family unit of his then partner, Ms Jasbir Kaur. On 1 July 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant was no longer in a spousal relationship with Ms Kaur and a ground for cancellation under s. 116(1)(a) arose. It appears that the applicant did not provide a response to the NOICC and his visa was cancelled on 7 August 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 June 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. 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, as noted above, that he was granted the Skilled visa on the basis of being a spouse, and a member of the family unit, of Ms Kaur. The primary decision record indicates that the applicant’s relationship with Ms Kaur had ended.

7. In oral evidence the applicant confirmed to the Tribunal that his relationship with Ms Kaur has ended and that they are formally divorced.

8. The Tribunal finds that the applicant was granted the Skilled visa on the basis of being a member of the family unit of Ms Kaur and that fact or circumstance no longer exists. the Tribunal finds that the ground for cancellation in s.116(1)(a) exists.

9. 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

10. 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

11. 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. However, the Tribunal has found that the relationship is no longer in existence. The applicant is no longer in a spousal relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder. The applicant has not identified any compelling need for him to remain in Australia. The Tribunal considers that these factors weigh heavily in favour of the cancellation.

    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 he is presently working and the Tribunal acknowledges that if the applicant does not have a visa and is required to leave Australia, he may be unable to continue with his employment.

14. The applicant told he Tribunal that no hardship would be caused to him if the visa is cancelled. The applicant told the Tribunal that it may not practically make a difference whether or not his visa is reinstated (acknowledging that the visa would have expired by now) and he told the Tribunal he may remain in Australia due to Covid or return to his home country.

15. On the limited evidence before it, the Tribunal does not consider that hardship would be caused to the applicant 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 was granted the visa as a secondary applicant, being a member of the family unit and the spouse of the primary visa applicant. The applicant’s relationship with the primary visa applicant had ceased. There is no evidence that the relationship ended because of family violence and the applicant told the Tribunal that there was no family violence but they lacked mutual understanding.  

    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 who 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 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 may 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. The applicant may also be subject to an exclusion period in relation to future visa applications.

    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

20. The applicant told the Tribunal that there are no children who would be affected by the cancellation of his visa.

21. With respect to non-refoulement obligations, the applicant states that he and his ex-wife were from different religions and “anything may happen” if he is to return to his home country. The applicant then suggested that because they are legally separated, nothing would probably happen. The Tribunal has found the applicant’s claims to be extremely vague and unparticularised and in this case, the Tribunal is not satisfied the applicant would experience any form of harm or persecution that would give rise to Australia’s protection obligations. The Tribunal does not consider that non-refoulement obligations would be breached as a result of the cancellation.

22. The applicant told the Tribunal that  his parents and a sibling reside overseas. The principles of family unity do not require his presence in Australia.

    Any other relevant matters

23. The applicant informed the Tribunal there are no other matters that he wished to be considered.

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa because the applicant was granted the visa on the basis of a fact or circumstance (his spousal relationship with the primary visa applicant) which is no longer in existence. The Tribunal has formed the view that the applicant is no longer able to fulfil the purpose of his visa and that there are no compelling reasons for the applicant to stay in Australia. The applicant has not identified any hardship that would result from the cancellation of the visa (although the Tribunal acknowledges that he may be unable to continue to work in Australia if he has no visa to remain in Australia). The Tribunal has found that Australia’s international obligations would not be breached by the cancellation.  

25. The Tribunal acknowledges that the cancellation of the visa would affect the applicant’s future visa options and may lead to the applicant’s departure from Australia. However, 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 (Skilled - Graduate) visa.

    Kira Raif
    Senior Member