Sidhu (Migration)

[2018] AATA 5702

Sidhu (Migration) [2018] AATA 5702 (3 December 2018)

(1)(a)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhdip Singh Sidhu

CASE NUMBER:  1712810

HOME AFFAIRS REFERENCE(S):           BCC2017/1251556

MEMBER:Danielle Galvin

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2018 at 9:17am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – visa grant based on circumstances that no longer exist – no longer a member of the family unit – relationship ceased – no longer a spouse or de facto partner – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5, 116, 189, 198
Migration Regulations 1994, r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) of the Act on the basis that the decision to grant the visa was based wholly or partly on circumstances that no longer exist. 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. By letter dated 25 September 2018 (dispatched by email to the applicant’s authorised agent) the Tribunal invited the applicant to appear and give evidence and submissions at a hearing to be held on the 19 November 2018. The applicant appeared before the Tribunal on that day to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant had been represented in relation to the review by his registered migration agent. However, the agent did not attend the hearing scheduled on 19 November 2018 at 10am.

5. 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

6. 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) of the Act. 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?

   s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

7. 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.

8. The applicant was granted a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa on 10 July 2014. That visa was granted to him on the basis (amongst other things) that he met the secondary criteria for the grant of the visa (reg. 1.12), as he was a member of the family unit of Ms Inderjeet Kaur (the primary visa applicant). As stated in the delegate’s decision record, which was provided to the Tribunal with the application for review, on 2 February the Department received information that the applicant and primary visa holder had separated in May 2016 and that the relationship had irretrievably broken down.

9. By a Notice of Intention to Consider Cancellation (NOICC) of that visa dated 12 May 2017 the applicant was advised that it appeared that he was no longer a member of the primary visa applicant’s family unit. In the NOICC Letter of 12 May 2017 the applicant was referred to r.1.12 of the Regulations. He was also advised that to continue to be a member of the primary visa applicant’s family unit he would need to continue to be either a spouse or de facto partner as defined in s.5F(Spouse) and s.5CB (De Facto partner) of the Act. The applicant was then advised that as the relationship between himself and the primary visa applicant had ceased, he had ceased to be either a spouse or de facto partner as defined by the Act. He was therefore no longer a member of the primary applicant’s family unit as prescribed in r.1.12 of the Regulations. He was therefore advised that his visa may well be cancelled under s.116(1)(a) of the Act.

10. The applicant responded in writing to the Department NOICC letter through his agent on 18 May 2017 and confirmed that the relationship had broken down in May 2016. However, in the agent’s submission to the Department dated 18 May 2017 it was alleged that the applicant had been the victim of domestic violence and a history of alleged incidents was provided.

11. The delegate cancelled the applicant’s visa pursuant to s.116(1)(a) of the Act on 13 June 2017.

12. At the hearing the applicant confirmed his story of a history of violence between Inderjeet Kaur and himself. However, he also advised that intervention orders proceedings against each other in relation to this conduct were ultimately withdrawn. He stated that he was fearful that if he was returned to India the primary visa holder would arrange for him to be killed. The applicant provided no evidence in support of this claim and stated that he had had nothing to do with the Inderjeet Kaur for about 2 years.

13. Based on the evidence before the Tribunal, I am satisfied that the applicant had ceased to be in a relationship with the primary visa applicant. He had therefore ceased to be either a spouse or de facto partner of the primary visa applicant as defined in sections 5F and 5CB of the Act. He was therefore no longer a member of the family unit of the primary visa applicant (pursuant to r.1.12). Therefore, the circumstances which permitted the grant of the applicant’s visa no longer existed and his visa may be cancelled under s.116(1)(a) of the Act.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

15. 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’.

16. In relation to the purpose of the applicant’s travel to and stay in Australia, he stated that he was married in India to the primary visa applicant  but that their relationship broke down in May 2016. He stated that he wished to continue to reside in Australia as he feared that if he returned to India the primary visa applicant would arrange for him to be killed. The applicant did not provide any evidence in support of this contention and confirmed that he had had no contact with the primary visa applicant for about 2 years. The applicant stated that he was working as a truck driver and wanted to stay in Australia. The applicant did not provide any other reason as to why he should be permitted to stay in Australia. Given the lack of evidence in support of the claimed risk in returning to India and the absence of any other reason save for a desire to stay the Tribunal finds that there is no compelling need for the applicant to travel to or remain in Australia. Further, the applicant did not submit evidence as to the degree of hardship that may be caused to him in relation to financial, psychological, emotional of other forms of hardship other than to state that he feared that he would be in danger upon his return to India. He did state, in submissions to the Department, that he would have difficult sourcing work upon a return but provided no further information in support of this claim. The Tribunal found that the applicant has not had contact with his ex-partner for about 2 years and whilst no evidence was submitted that the partners were divorced there was evidence that they were no longer in the relationship in relation to which the visa was granted.

17. The visa was granted to the applicant for the purpose of him travelling to and residing in Australia as a member of the family unit of the primary visa holder. The applicant stated that he was the victim of domestic violence and evidence was submitted that both he and the primary visa applicant had sought intervention orders against each other. However, the applicant advised that these proceedings were withdrawn and the parties have not seen each other or had any contact in 2 years. The Tribunal therefore finds that the visa was granted on the basis that he was a member of the family unit of Inderjeet Kaur. That purpose had now ceased. Based on the evidence, the Tribunal is not satisfied that the present intention of the applicant in continuing to reside in Australia is for the purpose of continuing in a relationship with the primary visa applicant as there has been no contact between them for approximately 2 years. Further, the Tribunal notes that the applicant had ceased his relationship with the primary visa applicant and is therefore not a member of her family unit and has not been so since May 2016.

18. The Tribunal is not in receipt of information suggesting that the applicant has otherwise not complied with the conditions of the visa. However, the Tribunal notes that the applicant did not volunteer any information about his changed circumstances until the Department contacted him by phone on 12 September 2017. The applicant was then forthcoming in confirming that the relationship with the primary visa applicant had broken down. The applicant has cooperated since that time with the Department. The compliance with the visa conditions and the past and present behaviour of the applicant were not matters that held much  weight in the Tribunal’s ultimate decision in this matter.

19. The Tribunal notes that the applicant claimed to be the victim of domestic violence and that both he and the primary visa applicant had sought intervention orders against each other. The applicant also stated that there had been no contact between them for about 2 years. In the circumstances the Tribunal finds that there is insufficient  information that suggests that the relationship breakdown was beyond his control given that both parties sought orders against each other. The Tribunal finds that whilst there is evidence that there were allegations of violence made by the visa applicants against each other, proceedings for intervention orders were abandoned. The applicant has not had contact with the primary visa applicant for some time. The Tribunal therefore does not find that the relationship broke down due to domestic violence but rather a breakdown in the relationship which saw both parties seeking intervention orders against each other. The primary visa applicant ended the relationship with the applicant who, despite allegations of violence against his wife, was not the party seeking an end to the relationship.

20. The Tribunal notes that the applicant confirmed that the relationship broke down in May 2016 and that he was granted the visa because he had the required relationship with the primary visa applicant. When asked at the hearing, the applicant could give no reason as to  why he had not made inquiries about his visa status once the relationship had ended, despite understanding that the relationship was the basis for his visa, other than to state that he was waiting to see what happened.

21. The applicant stated, at the hearing, that if his visa was cancelled and he was required to return to India he would be at risk from an attack by his ex-partner’s family. He believed that he would be killed. However, the applicant confirmed that he had had no contact at all with the primary visa applicant for 2 years and had no evidence of his allegation other than his fear that he was at such risk. The Tribunal finds that, on the evidence available, there is insufficient evidence to find that this would be the result of a cancellation.

22. In the event that the visa is cancelled the applicant would however, become an unlawful non-citizen and liable to detention under s.189 and removal under s. 198 of the Act. However, this is the intended purpose of the legislation in such circumstances and the Tribunal places little weight on this claim in considering whether to cancel the visa or not.

23. Further, cancellation would leave the applicant with limited options to apply for other visas in Australia and he may be required to return to India. This is also the intention of the legislation in such circumstances. The applicant is a citizen of India and holds a passport from that country and is therefore capable of returning there despite his desire not to do so. The applicant stated at the hearing that he has no children and there is no other person affected by the cancellation of his visa. Further the Tribunal finds that there is little risk of the applicant being detained in indefinite detention as he is an Indian citizen with a passport and there is therefore no obstacle preventing him from returning to India.

24. The applicant has not applied for any other visa and has not applied for protection, despite the fears he has raised about his return to India. The Tribunal therefore finds that there is no evidence that any international obligations, including Australia’s non-refoulement obligations, would be breached as a result of the cancellation.

25. 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 457 (Temporary Work (Skilled)) visa.

    Danielle Galvin
    Member