Shrestha (Migration)

[2021] AATA 4771

Shrestha (Migration) [2021] AATA 4771 (3 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashok Shrestha

CASE NUMBER:  2100769

HOME AFFAIRS REFERENCE(S):           BCC2020/2045607

MEMBER:Wendy Banfield

DATE:3 December 2021

PLACE OF DECISION:  Canberra

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 December 2021 at 5:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – fact or circumstance no longer the case – no longer member of family unit of primary visa holder – discretion to cancel visa – interference from wife’s family and applicant unaware that divorce proceedings commenced – no response to department’s notice – work and intention to study before returning to home country – opportunity to demonstrate genuine student – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(a)
Migration Regulation 1994 (Cth), r 1.12(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 January 2021 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 applicant is no longer the spouse or de facto partner of the primary visa holder and therefore, is not a member of the family unit of the family head, as defined in regulation 1.12(2)(a) of the Migration Regulations 1994. 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 11 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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.

7. The applicant was granted a secondary visa on the basis that he was a member of the family unit of the primary visa holder and was in a genuine and continuing relationship with Grishma Thapa. The applicant confirmed the information before the Department that he is now divorced, and he has ceased to be a member of their family unit as prescribed by reg 1.12(2)(a).

8. Based on this information, there appear to be grounds for cancelling the applicant’s visa under s. 116(1)(a) of the Act because a circumstance which permitted the grant of the visa holder’s visa no longer exists. As the applicant acknowledged his marriage status is now divorced, 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

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 applicant came to Australia as the holder of a Student visa that was granted on 18 October 2018 and was valid until 15 March 2021. The applicant’s former wife was the primary visa holder and was studying in Australia. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was as a member of the family unit of the primary visa holder.

11. The applicant gave evidence in writing and at the hearing that although he travelled to Australia to support his then spouse, he wants to study in his own right. The applicant submitted he has been working as a chef and after studying in this field, he wants to return to Nepal to work in the tourism and hospitality industry. The Tribunal accepts the applicant may want to study in Australia but is not satisfied he has demonstrated what could be considered a particularly strong or compelling need to remain in Australia and does not place weight on the stated reasons.

    ·     the extent of compliance with visa conditions

12. There is no evidence before the Tribunal that the applicant had not complied with other visa conditions and the Tribunal has given some weight in his favour on this consideration.

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

13. The Tribunal considered any hardship that may arise because of his visa being cancelled. The applicant is currently enrolled in a Certificate IV in Commercial Cookery, and a Diploma and Advanced Diploma in Hospitality Management. Based on the Provider Registration and International Student Management records, the applicant has commenced the first course of study. In his written statement the applicant declared:

    I worked hard to finance my ex-wife’s education costs. I did not study; instead, I worked and assisted in her studies. She refused to allow me to study since it would be too expensive to study both at the same time. Currently, I do not have a wife and do not have an Australian degree. I would be seen as a failure if I had to travel to Nepal. I already have a gap in my education. Without a degree, I would have a difficulty in finding work in Nepal. As a result, the I would face substantial financial and emotional hardship. My present path is consistent with my current employment and future objectives. If I am allowed to finish my study, I would easily get job in Nepal and will have good career in Nepal.

14. Based on the evidence provided, the Tribunal accepts the applicant will suffer some hardship caused by the cancellation of his 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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The applicant’s visa was cancelled because he is no longer the spouse of the primary visa holder and therefore, he has ceased to be a member of the family unit. According to the applicant his marriage broke down due interference from his former wife’s family members. The applicant stated in his written submission that he had not been aware that divorce proceedings had commenced and did not have the opportunity to change his visa in Australia. Although the applicant should have taken steps to ensure he remained in Australia lawfully following the breakdown of his marriage, the Tribunal is prepared to accept the circumstances in which the ground for cancellation arose were beyond his control.

    ·     past and present behaviour of the visa holder towards the department

16. The Tribunal notes the applicant did not respond to the Department’s Notice of Intention to Consider Cancellation that was sent to him on 2 December 2020. According to his evidence, he was depressed and was not aware of the notice. The applicant claims he did not purposefully ignore the notice. The Tribunal considers it was the applicant’s responsibility to ensure he remained compliant with visa conditions in Australia and should have sought advice about his visa status after his marriage ended. However, the Tribunal accepts the applicant has since taken action in a positive direction and no adverse weight is placed on this criterion.

    ·     whether there would be consequential cancellations under s.140

17. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

18. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention because of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation would severely impact the applicant’s own study plans and would be an unreasonable penalty in the circumstances of this case.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

19. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

20. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

21. The Tribunal placed some weight on the applicant’s enrolment in a course of study but has not assessed whether the genuine temporary entrant criteria has been met. This is because it is not a relevant consideration in assessing the applicant’s student visa cancellation but may be relevant to any future visa grant.

    Conclusion

22. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are certainly aspects of the applicant’s case that weigh against him, on balance, the Tribunal considers he should be given the opportunity to demonstrate his academic plans are sincere and he is a genuine student. The Tribunal is satisfied the issues encountered by the applicant in this case are sufficient reason for the visa not to be cancelled.

23. Therefore, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Wendy Banfield
    Member