Sharma Karki (Migration)

[2017] AATA 441

Sharma Karki (Migration) [2017] AATA 441 (14 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Prakriti Sharma Karki

CASE NUMBER:  1610918

DIBP REFERENCE(S):  BCC2016/2111897

MEMBER:L. Hawas

DATE:14 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2017 at 10:52am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Husband reported separation – Threats of divorce – Opportunity to seek further employment – Ability to re-establish life in Nepal

LEGISLATION

Migration Act 1958, ss 5, 48, 116(1)(a)

Migration Regulation 1994, Schedule 2 cl 457.223(2), r 1.12, r 2.12

CASES

MIMA v Zhang (1999) 84 FCR 258
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

APPLICATION FOR REVIEW

Application for review

1. This is an application for review of a decision dated 19 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 Temporary Work (Skilled) visa under s.116 of the Migration Act 1958 (Act).

2. The applicant is married to Krishna Karki (Krishna). Her visa was granted on the secondary family criteria by reason of her being a member of Krishna’s family unit. The delegate cancelled the visa under s.116(1)(a) of the Act because the applicant had ceased to be a member of Krishna’s family unit. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

   The evidence before the Tribunal

3. The delegate’s decision record, which the applicant provided to the Tribunal in the review, recorded the following:

   (a)On 19 November 2015, the applicant was granted a Temporary Work (Skilled) (Subclass 457) visa, which was to remain current until 28 January 2019;

   (b)The applicant was granted the visa on the secondary criteria as a member of Krishna’s family unit;

   (c)The department sent the applicant a notice of intention to cancel her visa dated 8 July 2016. The notice recorded that the department had been notified that the applicant was no longer a member of Kirshna’s family unit. The notice invited the applicant to respond;

   (d)The applicant responded to the notice by email on 12 July 2016. In the email, the applicant agreed that the department had grounds to cancel her visa; and

   (e)The delegate cancelled the applicant’s visa on 19 July 2016.

4. On 19 July 2016, the applicant applied for a review of the delegate’s decision to cancel her visa

5. By letter dated 12 October 2016, the Tribunal notified the applicant that it had considered the information before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 28 October 2016.

6. The Tribunal hearing was conducted on 28 October 2016 with the assistance of an interpreter in the Nepali and English languages.

7. During the hearing, the applicant gave the following oral evidence:

   (a)She was born in Nepal on 29 April 1995. She is 21 years old;

   (b)She finished secondary school in Nepal but does not otherwise have any formal qualifications;

   (c)Other than Krishna, she does not have any family in Australia. Her mother and younger brother live in Nepal;

   (d)In early 2013, she met Krishna in Nepal through a family association. At the time, Krishna was living in Australia on a student visa and was studying a course to qualify as a boilermaker. When she met Krishna, he was visiting his family in Nepal;

   (e)She married Krishna in April 2013 shortly after they had met. After their marriage, Krishna returned to Australia and did not return to Nepal until 2015. The marriage was registered in Nepal in April 2015;

   (f)Some time in 2015, Krishna applied for, and was granted, a 457 visa. By that time, Krishna was working as a boilermaker for a company located in Melbourne’s western suburbs. The applicant also applied for a 457 visa on the secondary criteria as Krishna’s wife. The department granted that visa on 19 November 2015;

   (g)She arrived in Australia in March 2016. On her arrival, she took up residence with Krishna in a unit located in Melbourne’s inner northern suburbs. Krishna’s brother lived with them in the unit;

   (h)About four days after arriving in Australia, Krishna located a job for her as a hotel housekeeper in Melbourne’s CBD. She commenced employment at the hotel soon after arriving in Australia. She earned between $400 and $700 net per week depending on how many shifts she worked. Krishna earned between $600 and $900 net per week (again depending on his shifts) from his work as a boilermaker;

   (i)Problems in her relationship with Krishna emerged on her arrival in Australia. About a week after arriving, Krishna went to a party with his brother leaving her at home alone. Krishna and his brother returned early in the morning yelling and fighting in the street. Shortly after, Krishna asked her for a divorce. When she refused, Krishna told her that she was in Australia under his visa and that he ‘could have her visa cancelled’. He said that in two or three months she would need to leave Australia. Krishna inflicted ‘emotional trauma’ on her by refusing to speak to her, treating her like an ‘outsider’, and threatening her visa. Krishna never assaulted her physically;

   (j)After about a month after arriving in Australia, she voluntarily left Krishna and the unit in Melbourne’s inner north. She has not since returned to live with Krishna. She could not live with the ‘mental torture’ to which Krishna was subjecting her. The wife of one of Krishna’s friends observed the applicant’s suffering with Krishna and took the applicant into her home in Melbourne’s inner western suburbs. The applicant has since moved out of that home and now lives with two friends in a rental home in Melbourne outer western suburbs;

   (k)She has seen Krishna once since leaving their unit in Melbourne’s inner north. She asked him why he abandoned her and insisted on a divorce. Krishna said that he did not want to stay married to her and asked for a divorce but she refused. Krishna said that he had warned her ‘this would happen’ because she would not divorce him;

   (l)She did not want to divorce Krishna and wanted to try and restore her marriage and her relationship with him. But Krishna does not want to restore their relationship and insists on a divorce;

   (m)The rent for the home in which she lives with two friends in Melbourne’s outer west is $300 per week. She pays one third of the rent but her friends help her with food and utility bills because she is not working. She stopped work as a housekeeper in July 2016 after her visa was cancelled. She has been surviving on some savings and the assistance of friends;

   (n)She accepted that the delegate had proper grounds to cancel her visa. She does not challenge the grounds for cancellation. She says though that the Tribunal should exercise its discretion to set aside the delegate’s decision and reinstate her visa for the following reasons:

   (i)Krishna subjected her to psychological torture and he has treated her unfairly. He brought her here and then abandoned her;

   (ii)She is now a single 21 year old woman who was a victim of Krishna’s behaviour;

   (iii)She wants to be independent. She wants to study and train as a hairdresser or a beautician and then work in those fields. Her current visa status (cancelled 457 visa) does not allow her to do that;

   (iv)If she returns to Nepal she will suffer hardship culturally, emotionally, and financially;

   (v)Culturally (and emotionally), she would feel a sense of shame and will not be able to face her family and friends. She left Nepal as Krishna’s wife and would be embarrassed to return on her own as a single woman. She will not be able to live long with her mother as a single woman who had been married. In the cultural sense, she has nothing to return to in Nepal;

   (vi)Financially, her family in Nepal is very poor. Her mother lives in a rental home. Her mother works as a security guard in a restaurant and earns the equivalent of about $100 AUD per month. Her mother is the eldest of her siblings and she is obliged culturally to look after them as well the applicant’s brother. So on a limited income, her mother must pay the rent, support her siblings, and support the applicant’s brother. Her mother will not be able to support her financially for long and she will need to find work. She will struggle to find work because employment prospects in Nepal are very limited. Even if she does find work, she will struggle to support herself because the salaries are low. If she returns to Nepal, she will ultimately become a burden on her mother; and

   (vii)She wanted the Tribunal to bring about the legal environment for her to stay in Australia permanently.  

8. After the hearing, the applicant submitted to the Tribunal the email she sent to the department on 12 July 2016 in response to the notice of intention to cancel her visa. In the email, she stated that she was ‘totally unaware of this situation’, that she had been fighting with Krishna lately, and that she was unaware that Krishna had reported to the department that they were separated. She asked the department to advise of her options and whether she had any say in the matter.

9. She also submitted her bank statement for the period between 18 March and 30 September 2016. The bank statement showed that she had received regular deposits for salary from ‘Empire Hospitality’ in amounts consistent with her oral evidence about her salary. The last salary payment was on 7 September 2016. It is not clear whether that payment was for work performed after 19 July 2016 (the visa cancellation date) when her visa was cancelled. The bank statement also reveals transfers of money and cash deposits into the applicant’s account both before and after 19 July 2016 but primarily after.

   Consideration of claims

   Does the ground for cancellation exist?

10. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that section are made out. Relevantly to this case, these include the ground set out in s.116(1)(a). Under that sub-section, a visa may be cancelled if the Minister or the Tribunal is satisfied that the circumstances which permitted the grant of the visa no longer exist. The proper construction of s.116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]). The relevant circumstance is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind (per French and North JJ at [54]).

11. The applicant’s visa was granted on the grounds that she was a member of Krishna’s family unit and therefore met the secondary criteria set out in r. 1.12 of the Migration Regulations 1994 (Regulations). Relevantly, r. 1.12(1)(a) provides that a person is a member of another’s family unit within the meaning of s. 5(1) of the Act if the person is the other’s spouse or de-facto partner. Section 5F(1) of the Act provides that a person is the spouse of another if both are in a married relationship. Section 5F(2) provides that the two people will be in a married relationship if they are married, have a mutual commitment to a shared life as husband and wife, the relationship between them is genuine and continuing, and they live together (or do not live separately on a permanent basis). All of those characteristics of the relationship must exist for the definition of a spouse under s. 5F to be satisfied.

12. It is not clear from the applicant’s 12 July 2016 email to the department (in response to the notice of intention to cancel her visa) whether she conceded that she had separated from Krishna, that their relationship as husband and wife was not continuing, and that they lived apart.  The applicant stated only that she did not know Krishna had reported to the department that they had separated. She did not say in the email whether Krishna’s report to the department was true. It is not possible to conclude from that email whether the applicant accepted that she had separated from Krishna, and that the department had proper grounds to cancel her visa.

13. But the applicant’s oral evidence is sufficient to make out those matters. She said that Krishna wanted a divorce but she refused. She voluntarily left the unit she was sharing with Krishna in Melbourne’s inner north about a month after arriving in Australia in March 2016, and she has not returned to live with Krishna. They continue to live apart, and Krishna continues to insist on a divorce. The applicant also conceded in evidence that the delegate had proper grounds to cancel her visa.

14. On that evidence, the Tribunal finds that the relationship between the applicant and Krishna has broken down (it is not continuing), and that they no longer live together as husband and wife. Although they are yet legally to dissolve their marriage, the applicant is not Krishna’s spouse within the meaning of that term in s. 5F of the Act. Accordingly, the Tribunal is satisfied that the ground for cancelling the applicant’s visa under s. 116(a) of the Act existed on 19 July 2016 when the delegate cancelled the visa, and it exists now.

15. As that ground does not require mandatory cancellation of the applicant’s visa under s. 116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.

    The discretion

16. The Act and the Regulations do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to matters outside of PAM3 so long as the matter is relevant.[1] It can have regard to anything not included in PAM3 so long as the matter is relevant. However, PAM3 constitutes a useful starting point for the exercise of the discretion.

    The purpose of the applicant’s travel to and stay in Australia

    [1] See Brennan J in Re Drake (No. 2) (1978-1980) 2 ALD 634. The courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429.

17. The purpose of the applicant’s travel to Australia was to live with Krishna (the primary 457 visa holder) as his wife. Although the applicant is still married to Krishna in that they are yet to divorce, her relationship with Krishna is not continuing by reason of their separation. On the applicant’s evidence, Krishna does not want to restore the relationship and continues to insist on a divorce. Accordingly, the purpose of the applicant’s travel to Australia has ceased to exist. Even though the applicant may wish to restore her relationship with Krishna as his wife, if Krishna is not willing to reciprocate, the purpose of the applicant’s travel to Australia will not revive. On its own, the applicant’s stated wish to restore her relationship with Krishna is not sufficient to preserve the purpose of her travel to Australia.

18. However, that is not the end of the matter. The Tribunal considers it relevant to consider whether the applicant’s proposed continued stay in Australia is consistent with the purpose of the 457 visa scheme.

19. As explained to the applicant at the hearing, a 457 visa is not one under which the visa holder can stay permanently in Australia to establish him or herself, and it does not create an expectation of a permanent stay. Its purpose is to enable a business to sponsor a skilled worker if it cannot find an appropriately skilled Australian citizen or permanent resident to fill a skilled position listed in the relevant list of occupations (ANZSCO). The 457 visa is one of limited duration related to working for a particular sponsor in a skilled occupation. The purpose of a 457 visa is not served by allowing an applicant to remain in Australia to study, train for a particular career, look for employment opportunities, or improve the applicant’s financial position.

20. The applicant said in evidence that she wanted to stay in Australia to train as a hairdresser or beautician and ultimately work in that field. She stated that she wanted to gain her independence. She asked the Tribunal to allow her to remain in Australia permanently so she could pursue those ambitions. On her evidence, the applicant is not in a position to obtain employment with a standard business sponsor in a role described in the relevant list of occupations, and she is not in a position where she can apply for a 457 visa as a primary applicant on the nomination of a standard business sponsor. She is not otherwise in a position to satisfy the requirements of cl. 457.223(2) or (4) of schedule 2 of the Regulations so that she may obtain a 457 visa as a primary applicant. She might ultimately get to that position if for example she trains for a job described on the relevant list of occupations so that she may seek and obtain sponsorship by a standard business sponsor but she is not in that position now. 

21. Accordingly, a continued stay in Australia on the grounds the applicant identified is not a stay that is consistent with one under a 457 visa (as a primary visa holder), and is not consistent with the purpose of the 457 visa scheme.

22. The Tribunal places substantial weight on the purpose of the applicant’s travel to Australia no longer existing. It also places substantial weight on her continued stay in Australia being inconsistent with a stay under a 457 visa, and inconsistent with a stay for a 457 purpose.

    The circumstances in which the ground for cancellation arose

23. The delegate cancelled the applicant’s visa because in about March or April 2016 her relationship with Krishna broke down, and they ceased living together as husband and wife.

24. On the applicant’s evidence, Krishna effectively ended the relationship with the applicant by insisting on a divorce but he did not ask the applicant to leave their shared unit in Melbourne’s inner north. The applicant left the unit voluntarily. However, the effect of the applicant’s evidence was that in the circumstances she had little choice but to leave because Krishna inflicted on her psychological torture that she could not endure.

25. Some parts of the applicant’s evidence about her relationship with Krishna are difficult to reconcile. One the one hand, she said that she could not endure living with Krishna because of the psychological torture he inflicted on her but on the other hand she tried to repair their relationship and return to him. Also, on the one hand, she said she wanted to return to Krishna, but she also said she wanted to stay in Australia and become an independent woman. She did not say she wanted to stay in Australia to pursue reconciliation with Krishna.

26. However, the applicant’s evidence about her attempt to return to Krishna is perhaps understandable when placed in context. The psychological torture to which the applicant referred in her evidence was Krishna insisting on a divorce and threatening her continued stay in Australia. Ultimately, she wants to remain in Australia. Returning to Krishna would be more conducive to that outcome. Perhaps the applicant lived in hope that Krishna would take her back, and stop insisting on a divorce which threatens her visa. In the end, that has not occurred.

1. Obviously, the Tribunal has not heard evidence from Krishna’s side and cannot determine with certainty whether his conduct caused the relationship breakdown, and the ultimate cancellation of the applicant’s visa, or whether it was something else. That coupled with the inconsistencies in the applicant’s evidence about her relationship with Krishna leaves the evidence before the Tribunal about the circumstances in which the visa cancellation arose a little elusive.

2. However, the circumstances of the applicant’s relationship with Krishna favour a finding that Krishna’s conduct primarily caused the relationship with the applicant to break down. Krishna is the primary visa holder. The applicant’s visa was secondary and relied on her relationship with Krishna continuing. The applicant had a lot to lose by ending her relationship with Krishna because that would imperil her visa and stay in Australia. That explains the applicant’s attempt to return to Krishna. In those circumstances, she is unlikely to have ended her relationship with Krishna and endangered her visa, especially so early in her time in Australia.

3. Further, when her relationship with Krishna broke down, the applicant was a young woman of 20 years who had just come to Australia to commence her life with her new husband. Krishna had been in Australia from before 2013. Therefore, the applicant was completely reliant on Krishna in Australia. Again, she is unlikely to have ended her relationship with Krishna so early on in Australia to find herself alone.

4. Accordingly, the Tribunal finds that on balance, the circumstances in which the visa cancellation arose were largely beyond the applicant’s control, and that Krishna in effect caused the applicant’s visa to be cancelled by ending his relationship with the applicant. 

5. The Tribunal places substantial weight on this consideration in the applicant’s favour.

   Extent of compliance with visa conditions and co-operation with the department

6. On the evidence before the Tribunal, the applicant has not breached any condition of her visa. Further, there is no evidence of a lack of co-operation with the department. For example, she did not ignore the notice of intention to cancel her visa. She responded to the notice promptly. Those matters stand to her favour.

   Hardship caused by the cancellation to the applicant and her family           

7. The applicant pointed to financial, cultural emotional hardship if she returns to Nepal. She said that her mother would struggle to support her, and she would find it difficult to locate work. Even if she could find work, she would struggle to support herself because the income would be too low. She also said that (culturally and emotionally) she would feel a sense of shame returning to Nepal as a single woman because that is frowned on in Nepal.

8. The Tribunal accepts that the applicant would suffer some financial hardship in the manner she described if she returned to Nepal. According to the International Monetary Fund, Nepal’s per capita GDP at Purchasing Power Parity ranks at 162 on a list of 189 countries: one of the lowest in the world. The Tribunal accepts that the applicant’s family is relatively poor, that her mother is on a low income, and that her mother has limited means. The Tribunal also accepts that the applicant might face difficulties locating work, and that she will likely be on a low income if she does find work.

9. The Tribunal also accepts that the applicant will suffer some emotional and cultural hardship in Nepal. The applicant is a young woman who only began living with her husband from about March 2016 when she arrived in Australia. The Tribunal accepts that returning to Nepal as a woman who has separated from her husband so quickly is likely to cause the emotional and cultural hardship the applicant described. 

10. But balanced against that hardship the applicant will likely face in Nepal are two considerations.

11. First, the emotional or cultural hardship the applicant will likely endure in Nepal, as she described it, follows more from the break-down of her relationship with Krishna than it does from the cancellation of her visa. The cancellation of her visa has compounded the problem for the applicant but the cultural difficulties the applicant described follow primarily from the marriage breakdown.

12. Second, the applicant has only been in Australia since March 2016: about a year. She has not had sufficient time in Australia (and away from life in Nepal) to develop deep social bonds, build a long-term work career, or otherwise establish herself in Australia. She has not become sufficiently accustomed to life here such that leaving that life will create substantial hardship. The hardship the applicant described of life in Nepal is not likely to be compounded by leaving some established life in Australia.    

13. Although the Tribunal has taken into account the matters set out in paragraphs 37 and 38 above, those matters do not eliminate the hardship the applicant will likely endure in Nepal but they balance the hardship considerations a little. Ultimately, the Tribunal has given weight to the likely hardship in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s Intervention

14. The applicant is currently on a bridging visa because of this review process. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately she will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

15. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future applications from 19 July 2016 into account.

    Whether there are others whose visas would or may be cancelled under s. 140

16. This consideration does not apply. The applicant is single and does not have any children. There are no secondary visa holders whose authority to remain in Australia is affected by the cancellation decision.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

17. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).

18. Before the hearing, there was nothing in the documents before the Tribunal that would have supported an argument that Australia would offend its international obligations if the applicant was required to return to Nepal. The applicant did not say anything at the hearing, and did not submit any written evidence, that would change that position.

    Other matters

19. In her evidence, the applicant said that Krishna had subjected her to emotional and psychological torment only. She did not say that Krishna ever assaulted her physically or that he subjected her to physical violence. The Tribunal has had regard to the applicant’s evidence of psychological torment. It is not necessary to consider the impact on the applicant of physical violence because the evidence does not disclose any.

    Conclusion

20. The Tribunal has placed substantial weight in the applicant’s favour on the circumstances in which the cancellation arose being beyond her control. She relied heavily on Krishna in Australia but he changed his mind about their relationship and insisted on a divorce soon after she arrived. By reason of Krishna’s actions, the applicant was left to rely on friends she did not know very well and her visa was imperiled.  The Tribunal has also placed weight in the applicant’s favour on the financial, cultural, and emotional hardship she said she would endure by returning to Nepal, although that weight is balanced slightly by the matters set out in paragraphs 37 and 38 above. The Tribunal has also taken into account the applicant’s co-operation with the department and her lack of breach of visa conditions.

21. However, the Tribunal does not consider those matters in the applicant’s favour to be sufficient, on their own, to justify setting aside the delegate’s decision. Those matters fall to be to be considered with all the other circumstances, especially the stated purpose of the applicant’s continued stay in Australia.

22. The purpose of the applicant’s continued stay in Australia stands against her in this review. The reasons the applicant cited for wanting to remain in Australia (at least for the life of her 457 visa should it be reinstated) are not consistent with the purpose of her original travel to Australia, and the purpose of the 457 visa scheme. The Tribunal places substantial weight on that consideration.

23. Having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 457 visa.

24. In the end, the Tribunal considers that the purpose of the applicant’s proposed continued stay in Australia to be so far removed from the purpose of her original travel here, and the purpose of the 457 visa scheme, that those matters outweigh the matters in the applicant’s favour.

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 visa.

    L. Hawas
    Member