Singh (Migration)

[2024] AATA 3996

Singh (Migration) [2024] AATA 3996 (2 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simranjot Singh

CASE NUMBER:  2426266

HOME AFFAIRS REFERENCE(S):          BCC2023/3688722

MEMBER:Kira Raif

DATE:2 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 October 2024 at 12:06pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – was no longer a member of the family unit or in an ongoing relationship with the primary visa holder – relationship ended – no further compelling need to remain in Australia – applicant can no longer fulfil the purpose of his travel to and stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 29 July 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India, born in June 1987. He was granted the Skilled visa, as a secondary applicant, on 31 January 2023. In July 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there were grounds for cancelling his visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 2 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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.

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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Skilled visa on the basis of being a spouse, and a member of the family unit, of Ms Kaur. It is stated that in June 2023 the Department became aware that the applicant’s relationship with Ms Kaur has ended. In his response to the NOICC the applicant concedes that his relationship with Ms Kaur has ended. In oral evidence to the Tribunal the applicant confirmed that his relationship with his partner ended and that she had initiated the divorce.

8. Having regard to the applicant’s evidence, the Tribunal finds that the applicant is no longer a spouse or de facto partner of Ms Kaur. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ or that he met the primary criteria for visa grant. The Tribunal finds that the applicant is no longer a member of the family unit of the primary visa applicant. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of him being a member of the family unit of Ms Kaur and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.

9. For these reasons, 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

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 applicant confirms that the relationship is no longer in existence. The applicant is no longer in a spouse or de facto relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his travel to Australia because he is no longer in a relationship with the primary visa holder.

12. In his submission to the Tribunal the applicant provided evidence of his past employment in Australia, as well as evidence relating to some payments. He told the Tribunal that he has made a lot of effort to be in Australia and wants to settle here and live here. The Tribunal notes, however, that the visa in question is a temporary visa only, that would have expired in January 2026. That visa would not enable the applicant to remain in Australia long-term and settle here as he wants to do. The applicant has not explained how he would have been able to remain in Australia beyond the period of the validity of his visa and he has not been able to present a visa pathway for longer residence in Australia.

13. In oral evidence the applicant told the Tribunal that he is trying to reconcile with his wife but if he is to return to India, their relationship would be finished. He told the Tribunal that they are living separately but see each other on the weekends and they talk to each other about the relationship and she is willing to reconcile but her family does not support that. The Tribunal does not accept that evidence. Firstly, the applicant’s evidence to the Tribunal is that his wife has applied for divorce and while the applicant submits that his wife might be willing to reconcile, there is no evidence from the applicant’s spouse to support these claims. That is, there is nothing before the Tribunal to indicate that Ms Kaur is willing to, or intends to, resume her relationship with the applicant and there is no evidence that there is a mutual commitment to a relationship. In the absence of such evidence, the Tribunal does not accept the couple’s relationship will resume. Secondly, the Tribunal does not accept the attempts at reconciliation can only take place when the couple live in the same country. The Tribunal does not consider these to be compelling reasons for the applicant to remain in Australia.

14. The applicant states that by remaining in Australia longer he can learn English and learn more about the Australian culture. The Tribunal does not consider that the applicant’s desire to improve his English and get acquainted with the Australian culture constitute a compelling reason for him to remain in Australia. 

15. The Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

16. There is no evidence of any non-compliance with visa conditions.

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

17. In his submission to the delegate the applicant refers to the psychological and financial hardship resulting from the break-down of his relationship. The Tribunal is prepared to accept that the applicant may have experienced emotional hardship due to the breakdown of his relationship but that is not the result of his visa being cancelled.

18. The applicant told the Tribunal that he had helped his wife a lot when they came here but she divorced him without even telling him. While that may be the case, the circumstances of the divorce are not at issue here. The Tribunal is concerned with the consequences of the cancellation of the applicant’s visa, rather than the circumstances of his relationship breakdown.

19. The applicant told the Tribunal that he wants to remain in Australia and work and save more money. He claims that he has no money now to buy a ticket and needs more time to save money. The applicant has not presented any financial records or bank statements to support these claims. The Tribunal does not accept, in the absence of such evidence, that the applicant has no funds to purchase his air ticket. While the Tribunal accepts that the applicant prefers to remain in Australia to work and save money, the Tribunal is not convinced that this is the purpose for which his visa was granted.

20. The applicant states that if he returns home now, there will be too much criticism from his family and friends about the breakdown of his relationship as they had a love marriage and could not live together. The applicant states that the remarks and comments from others would make him even more upset. It is unclear to the Tribunal why others would express their criticism of the relationship break down if the applicant was to return to India and why that would occur if the applicant was to return now, rather than in 16 months’ time when his visa would have expired.

21. The applicant states that he does not have a father in India to help him while in Australia he has an opportunity “to do something”. When asked what he is doing in Australia, the applicant stated that he is working in a chicken factory. Again, the Tribunal is mindful that whether or not the applicant has parental support in India, he would be expected to return to India upon the expiry of his visa.

22. The applicant states that if he is to return to India, he would have to look for a job and start afresh and that would be difficult. The applicant has not presented any evidence to support these claims and no evidence that he would be unable to find employment in India. In oral evidence the applicant told the Tribunal that he used to work as a salesperson before coming to Australia and his company had hired more staff but his former boss told him there was no place for him in his old company and that he would have to look for a job elsewhere. The applicant told the Tribunal that he had not made any attempt to find a job elsewhere. In the circumstances where the applicant has not made any effort to find employment in India, the Tribunal does not accept that he would be unable to find gainful employment in India.

23. The Tribunal accepts that the applicant wants to earn more money by working in Australia. However, the Tribunal does not accept that his inability to do so (prior to the expiry of his visa) would constitute significant hardship to the applicant.

    Circumstances in which ground of cancellation arose

24. The ground for cancellation arises because the applicant’s relationship with his partner and the primary visa applicant has ended. The applicant told the Tribunal that there was no family violence in their relationship.

25. In his submission to the delegate the applicant states that he could have applied for the visa on his own but chose not to do that. The applicant has not presented adequate evidence to the Tribunal to indicate that he would have been eligible to be granted the Skilled visa as the primary applicant (for example, his evidence to the Tribunal is that he has never done an English test). Whether or not the applicant was eligible for the visa as the primary visa applicant, it is not in dispute that he did not make the application on the basis of meeting the primary criteria and was granted the visa as a secondary applicant.

26. The applicant claims that he did not initiate the relationship break-down and that he wanted to reconcile with his partner but she did not support that. The applicant told the Tribunal that his wife might be willing to reconcile but her family does not support that. As noted above, there is no evidence before the Tribunal from Ms Kaur that she supports the re-establishment of the relationship and the Tribunal does not accept on the limited (and unilateral) evidence before it that the applicant and his partner are likely to reconcile. It is not necessary for the Tribunal to determine why the relationship ended. It is not in dispute that the relationship which enabled the applicant to be granted the visa is no longer in existence.

    Past and present behaviour of the visa holder towards the department

27. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

28. There are no persons whose visas 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

29. 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. Unless the applicant is granted another visa, he may also be subject to possible removal from Australia and he would be subject to an exclusion period in PIC 4013 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 due to the operation of s. 48.

    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

30. There are no children who would be affected by the cancellation.

31. The applicant told the Tribunal that his wife has a large family and he would face many difficulties if he returns to India and he would find it difficult to settle there. The applicant states that it would be difficult for him to find a job. For the reasons set out above, the Tribunal does not accept these claims and, in any case, the Tribunal does not consider these amount to serious harm or significant harm. The Tribunal has formed the view that Australia’s non-refoulement obligations do not arise in this case.

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

32. The visa in question is not a permanent visa.

    Any other relevant matters

33. The issues raised by the applicant are addressed above.

34. The Tribunal has considered the entirely of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa. The Tribunal places significant weight on the fact that the applicant can no longer fulfil the purpose of his travel and stay in Australia as he is no longer in a relationship with his partner who was the primary applicant. The Tribunal has formed the view that the applicant does not have a compelling need to remain in Australia.

35. The Tribunal accepts that the cancellation of the visa may cause some hardship to the applicant as he will no longer be able to work and earn money in Australia. The Tribunal gives some weight to the fact that there is no evidence of any non-compliance with visa conditions. The Tribunal also accepts that there will be significant legal consequences of the visa being cancelled, most notably limiting further visa options to the applicant, although he has not identified any visa options that he would pursue in the future. The Tribunal has determined that the cancellation of the visa would not breach Australia’s international obligations.

36. While there are factors that may be against the cancellation, the Tribunal has decided to give greatest weight to the fact that the applicant can no longer fulfil the purpose of the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Kira Raif

    Senior Member