Sidhu (Migration)

Sidhu (Migration) [2020] AATA 5602 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Karmandeep Kaur Sidhu
CASE NUMBER:  1921758
HOME AFFAIRS REFERENCE(S):          BCC2019/2386514
MEMBER:Stephen Conwell
DATE:12 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 November 2020 at 4:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – fact or circumstance no longer exist – member of family unit – marriage breakdown – relationship with primary visa holder ceased – consideration of discretion – purpose of visa ceased – formal complaint lodged against previous migration agent – no extenuating circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 116
Migration Regulations 1994 (Cth), r 1.12
CASES
MIMA v Zhang (1999) 84 FCR 258

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 July 2019 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).
The applicant, Ms. Karmandeep Kaur Sidhu was granted a Student (TU 500) visa on 6 March 2018 under the secondary family criteria by reason of her being a member of Mr. Manpreet Singh Sandhu’s family unit at the time of the grant. The delegate cancelled the visa under s.116(1)(a) of the Act, because as of that date, the applicant had ceased to be a member of that family unit. 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 was represented in relation to the review by her registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video conference. The Tribunal exercised its discretion to hold the hearing by video conference. The applicant raised no objections as to conducting the hearing by video conference.
The applicant appeared before the Tribunal by video on 12 November 2020 to give evidence and present arguments. Her representative also participated in the video hearing.
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, 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?
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.
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. Although considering a differently worded version of s.116(1)(a), the reasoning of the Court provides some guidance. The Court held that s.116(1)(a) is concerned with a material change in the circumstances (per Merkel J at [74]).
Particulars of the ground for cancellation
On 6 March 2018, the applicant was granted a Student (subclass 500) visa as a dependant of Mr. Manpreet Singh Sandhu, the primary visa holder. The Student visa was granted to the applicant because the delegate was satisfied that the applicant was a member of Mr. Sandhu’s family unit in accordance with the Act and the Migration Regulations 1994 (Regulations).
Paragraph (2)(a) of regulation 1.12 of Regulations 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 Mr. Manpreet Singh Sandhu 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. ...]
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
(d)   they are not related by family (see subsection (4)).
        [...]
The applicant was granted the secondary visa on the basis that she was a member of the family unit of the primary visa holder, Mr Sandhu.
According to the decision record the Department of Home Affairs (Department) received information in January 2019 that the applicant’s relationship with her spouse had broken down and the couple were no longer living together.
The representative’s written submission of 29 October 2020 and the applicant’s oral evidence provided the following information on the applicant’s relationship and visa history:
·   the sponsor and applicant married in India in March 2017. No long after arriving in Australia the couple experienced marital problems, in part because the applicant wished to study in Australia.
·   the couple returned to India in September 2018 “on their parents advise [sic] to sort out their differences, but the things again escalated.”
·   the applicant “decided to separate from [her] Husband and [she] returned to Australia after discussing this with her parents on 31^st December 2018.”
·   the applicant “submits that she and her husband never contacted each other after their separation in December 2018 and neither of them nor their families tried to sort out [sic].”
·   the applicant “claims that both families including them had accepted that their relationship was over.”
·   the applicant stated that divorce proceedings are currently before the Courts in India. She is not aware of the stage of their progress.
·   the applicant “was looking to study in Australia soon after she arrived in Australia [the] first time.”
·   on 4 February 2019, the applicant lodged her own Student visa application. At hearing the applicant said that this application was refused sometime in April 2019 on the grounds that the Department was not satisfied she was a genuine student;
·   on 2 May 2019, the applicant lodged a second Student visa application, again in her own right.   She claims that this second visa application was lodged by the same migration agent who had lodged her first application in February 2019. It is also claimed that this second visa application was lodged without the applicant’s prior consent;
·   the second Student visa application of 2 May 2019 was refused “on 11th September because the correct information regarding the first student visa refusal was not mentioned.” At hearing the applicant said that this application and the response to its refusal were prepared without her knowledge or consent.
The Tribunal is satisfied on the basis of aforementioned material and the applicant’s oral evidence that the applicant’s relationship with Mr. Sandhu had broken down by the end December 2018 and consequently the applicant had from that time, ceased to be a member of his family unit as prescribed by reg 1.12(2)(a).
Based on this information, the Tribunal is satisfied there are grounds for cancelling the applicant’s visa under s 116(1)(a) of the Act because it appeared that at the time of the delegate’s decision the applicant and Mr. Sandhu were now separated and she was no longer a member of his family unit.
On 12 June 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa (NOICC). She did not provide a written response to the NOICC. The applicant claims that she did not respond because she was entirely reliant upon the advice of her then migration agent and at this point she was confused as to her visa status, having made two Student visa applications in her own name earlier in the year. The delegate then cancelled her Student visa by decision of 30 July 2019.
The Tribunal has carefully considered the applicant’s submissions and the circumstances of the parties as indicated in the applicant’s evidence and on the papers before it, with a view to whether the characteristics of the relationship satisfy the requirements of s.5F. The Tribunal accepts that the parties were validly married according to Indian custom and law. However in light of the evidence before it, the Tribunal is satisfied that, at the time of the delegate’s decision, the applicant and Mr Sandhu no longer have a mutual commitment to a shared life as a married couple; that the couple no longer have a relationship that is genuine and continuing; and that since December 2018 they have lived separately and apart on a permanent basis.
The applicant has expressly stated that both the couple and their families accept that the relationship has ended and she does not claim any likelihood of the relationship being reinstated.
The Tribunal is satisfied the applicant was not a member of Mr Sandhu’s family unit at the time of the delegate’s decision; that the circumstances of the relationship do not satisfy the requirements of s.5F, and therefore the applicant does not meet the r.1.12(2)(a).
The applicant’s visa was granted on the secondary family criteria by reason of the applicant being a member of Mr Sandhu’s family unit at the time of the grant, Mr Sandhu having satisfied the primary criteria in cl.500.2 of the Regulations. Given that the Tribunal is satisfied the applicant is no longer a member of Mr Sandhu’s family unit as defined, 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
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’.
Purpose of applicant’s travel to and stay in Australia
The applicant was granted a Student (TU 500) visa as a dependant (spouse) for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, Mr Sandhu, her spouse at the time .
The Tribunal acknowledges that following the separation from Mr Sandhu the applicant made two applications for a Student visa in her own name. According to the applicant’s evidence, both these applications have been refused by the Department.
For the purpose of this merits review the Tribunal is satisfied that the applicant applied for, and was granted, a secondary Student visa travel to and stay in Australia when she was a member of Mr Sandhu’s family unit.
As the applicant has ceased to be a member of Mr Sandhu’s family unit, 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 Student visa.
The Tribunal affords this consideration some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The representative’s written submission notes that the applicant’s visa application of 2 May 2019 was refused was refused “because the correct information regarding the first student visa refusal was not mentioned.” The applicant’s oral evidence is that this application of 2 May 2019 was completed by her previous migration agent, without her knowledge or consent. and the subsequent correspondence regarding its refusal was also undertaken without her knowledge or consent. Whilst the Tribunal empathises with applicants who may have been poorly served by a migration agent, it remains the law that it is an applicant's responsibility to ensure that they understand, and are compliant with, the conditions of their visa at all times. Applicants are also responsible for all information and evidence provided by them or on their behalf to the Department.
The evidence concerning “incorrect information” submitted in respect of a previous visa application suggests that the applicant may have breached some other visa condition. However for the purposes of this review the Tribunal is prepared to give this consideration neutral weight against cancelling the applicant’s visa.
The degree of hardship that may be caused to the visa holder and any family members
At the hearing the applicant stated that her parents, younger sister and younger brother are all back in India. She has no immediate family in Australia, only some cousins. She is living in rental accommodation with others.
The applicant mentioned that prior to coming to Australia she had completed a four year bachelor (Honours) degree in food science. She said that if afforded the opportunity to study in Australia, she hopes to embark on Masters studies in the food technology or ‘agri-food’ sector. The Tribunal notes however that despite holding an Honours degree, both of the applicant’s Student visa applications were in Australia’s Vocational Education and Training (VET) sector. Her explanation that she wishes to study ‘leadership and management’ skills in the VET sector before pursuing Master’s studies, is not persuasive to the Tribunal.
The applicant claims to “have always wanted to study in Australia” but apart from speaking generally of “time wasted” and of the expense of her studies, she did not mention any particular hardship that may arise as a result of her visa being cancelled. The Tribunal can give no weight to the applicant’s claims of intending to enrol in Master’s studies – that may or may not be a genuine aspiration. The Tribunal is not persuaded by her enrolment in Australian VET sector studies as evidence of such an aspiration. As she already holds a bachelor degree at Honours level, there appears to be no reason why the applicant could not pursue studies at Master’s level back in India should she wish to do so.
The Tribunal has considered the claims made by and on behalf of the applicant addressing this factor however it is not satisfied they demonstrate hardship of such a degree that the Tribunal should exercise the discretion not to cancel the visa.
The Tribunal accepts the applicant and her family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and Student visa. These consequences are a foreseeable result of the cancellation of the visa.
The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of her family a degree of emotional or psychological hardship that would weigh in favour of exercising its discretion to set aside cancellation of the visa. The Tribunal accordingly gives these factors neutral weight for this factor.
The circumstances in which the ground for cancellation arose
The circumstances in which the ground for cancellation arose are described above. The applicant’s visa was granted on the secondary family criteria by reason of the applicant being a member of Mr Sandhu’s family unit at the time of the grant - Mr Sandhu being the primary visa holder. The Tribunal is satisfied the applicant was not a member of Mr Sandhu’s family unit at the time of the delegate’s decision and the circumstances of the relationship do not satisfy the requirements of s.5F, and therefore the applicant does not meet the r.1.12(2)(a).
The Tribunal acknowledges that a marriage breakdown and separation take an emotional toll on the couples involved and their families, The Tribunal also accepts the possibility that the applicant was poorly served by her previous migration agent and notes that she has lodged a formal complaint with the industry’s association in this regard. Nonetheless the Tribunal is not satisfied that there were extenuating circumstances 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 applicant’s visa.
Past and present conduct of the visa holder towards the Department
According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal gives this some weight in her favour.
Whether there would be consequential cancellations under s.140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 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.
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
Cancellation of the visa would mean 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 Act which would limit her 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. However, these are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
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
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. Indeed, the applicant’s oral evidence is that she has no children. As there is no information before the Tribunal, the Tribunal gives neutral weight to this consideration for or against cancelling the visa.
Any other relevant matters

There are no other relevant matters to be considered in the applicant’s case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. 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 500 (Student) visa.
Stephen Conwell
Member

[2020] AATA 5602

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice