Singh (Migration)

[2021] AATA 3267

Singh (Migration) [2021] AATA 3267 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilraj  Singh

CASE NUMBER:  2012642

HOME AFFAIRS REFERENCE(S):          BCC2019/1693566

MEMBER:Warren Stooke AM

DATE:23 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 August 2021 at 17:34pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – change of fact or circumstance – member of family unit of primary visa holder –relationship with wife ceased – discretion to cancel visa – wife’s visa ceased – application for own student visa in progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(a), (3)

Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 July 2020 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was no longer able to provide evidence that he is a member of a family unit that is the holder of a Graduate 485 visa. 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 19 August 2021 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 was asked by the Tribunal if he understood the reason for the cancellation of his visa and he stated: “The decision is that my visa has been cancelled”.

5. The applicant provided evidence that he had received and read the delegate’s decision and that a copy of the decision was provided to the Tribunal with the applicant’s application for review.

6. 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

7. 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.

8. The delegate’s decision on the Tribunal file, that was provided by the applicant to the Tribunal, included the following:

   “On 2 June 2020 you were notified of, and invited to comment on, the intention to consider cancellation of your subclass VC485 Temporary Graduate visa granted on 30 November 2018. You did not reply to the notification.

   I have decided that there is a ground for cancellation of your visa under paragraph 116(1)(a) of the Migration Act 1958 which states:
   116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
   (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists;

   After weighing up all of the information available, I was satisfied the grounds for cancelling your visa outweighed the reasons for not cancelling, I therefore decided to cancel the visa.

   Your visa was cancelled on 20 July 2020. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the ground for cancellation.

   A copy of the decision record is attached.“

9. The Tribunal explained to the applicant the background to the case before the Tribunal with the following statement:

   “The delegate assessing your visa application determined you were a member of the family unit of the primary person and satisfied the requirements of subclause 485.311 because you were in a genuine and continuing relationship with Maninder KAUR. Your visa was granted based, in part, on this finding.

   The issue is whether you are currently a member of the family unit that led to the grant of your dependent visa.”

10. The Tribunal asked the applicant if he understood this and he responded: “Yes”.

11. The applicant stated that he had sent emails to the Department and had asked to be given a student visa.

12. The Tribunal asked the applicant if he was married to Ms Kaur and he responded: “Yes”.

13. The Tribunal asked the applicant if he was still living with Ms Kaur and he responded: “No”.

14. The Tribunal asked the applicant where is Ms Kaur and he responded that she was in Melbourne but he did not know where.

    Matters for Consideration of Discretion

15. The Tribunal asked the applicant what is the purpose of his travel and stay in Australia and the applicant responded that he came to Australia with his wife. He stated that he only has his parents and was engaged in the study of an ELICOS course for English speaking and that he had completed 6 months of a 12-month course.

16. The Tribunal asked the applicant if he had a compelling need to travel or remain in Australia and the applicant responded that he wanted to qualify here so he can do a car related business in the Punjab India.

17. The Tribunal asked the applicant if he could demonstrate compliance with the visa conditions and he responded – “yes”. The applicant stated that he was allowed to work for 20 hours and that he worked for those 20 hours. He also stated that he was being supported financially and that he had not travelled outside of Australia.

18. The Tribunal asked the applicant what degree of hardship may be caused (financial, psychological, emotional or other hardship) if the Tribunal affirms the delegate’s decision. The applicant responded that he undertakes automotive work and drives a local truck with Bhular Transport in Deer Park and is paid $21.00 per hour.

19. The Tribunal asked the applicant if he understood that if his visa is cancelled there may be mandatory consequences in the visa holder being unlawful and liable to detention and the applicant responded: “Yes”.

20. The applicant provided the following evidence concerning his personal circumstances:

    a.That he has no children;

    b.That he has no other family in Australia;

    c.That there is no reason for him not to return to India;

    d.That he has no obligations pertaining to military service.

21. The Tribunal asked the applicant to describe the circumstances leading to the separation from his wife and he responded that because he could not get a job in Melbourne he worked in Sydney and that his wife, who had remained in Melbourne and had an affair. The applicant stated that after the separation, his visa got cancelled.

22. The Tribunal asked the applicant if any domestic violence was involved in the relationship and he responded: “No”.

23. The applicant provided evidence that he was working at the moment.

24. The Tribunal asked the applicant what would be the consequences if his visa was cancelled under s140 and the applicant responded that his life would be affected and that his parents would be depressed concerning his condition.

25. The applicant provided evidence that he last returned to India in December 2018 and that he had arrived in Australia in September 2017.

26. The applicant asked the Tribunal to access the Immigration Department and check in relation to his application for a student visa. The Tribunal responded that this was not the role of the Tribunal and that he would have to check with the Department directly.

    Does the ground for cancellation exist?

27. 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.

28. The applicant stated in evidence that he is no longer living with the primary visa applicant, Maninder Kaur, and that she was living in Melbourne but he did not know where.

29. On the basis of this evidence from the applicant, the Tribunal is satisfied that the applicant is no longer a member of the family unit of the primary visa holder.

30. Further, the Tribunal notes that the primary applicant’s Temporary Graduate (subclass 485) visa was issued on 30 November 2018 and was due to expire on 30 November 2020, which would have had potential consequences for the secondary applicant from this date in terms of the currency of the visa.

31. 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.

32. 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.

33. The applicant's Temporary Graduate 485 visa, as a member of the family unit of Maninder Kaur, was granted on the basis that the application met, amongst other criteria, the secondary criteria for this visa on the basis that Dilraj Singh is a member of Maninder Kaur’s family unit, as prescribed by Regulation 1.12 of the Migration Regulations 1994.

34. Information before the department demonstrates the relationship, which permitted the grant of a Temporary Graduate 485 visa, is currently not continuing and had ceased, based upon the evidence of the applicant, since at least 18 December 2018, when Maninder Kaur advised the Department of her marriage breakdown. Therefore, Dilraj Singh, is no longer considered a member of Maninder Kaur’s family unit.

35. In relation to the Department's NOICC of 2 June 2020, the Tribunal notes that Dilraj Singh did not respond regarding the status of his visa.

36. The Tribunal was provided with oral evidence that the applicant is currently undertaking an English language course and he further advised that he had applied for a student visa and did not receive a reply from the Department. The Tribunal was asked by the applicant to provide assistance in this matter and the Tribunal advised the applicant that that is not the subject of the matter before the Tribunal and that the applicant should address this matter directly with the Department.

37. In the Department decision of 21 July 2021 the delegate stated that the relationship between the applicant and the primary visa holder had ceased, which the Tribunal is satisfied was based upon advice to the Department from the primary visa holder on 18 December 2018 that the applicant was no longer a member of the primary visa holder’s family unit.

38. In his response to a Notice of Intention to Consider Cancellation the applicant stated that that the primary visa holder had separated following his move to Sydney from Melbourne to engage in work, and that during this period of absence, the primary applicant was involved in an affair and separated from the applicant. The applicant stated that he did not know the current whereabouts of the primary visa holder and that he has not had any contact.

39. Further, the Tribunal asked the applicant if there was any family violence involved in the relationship and the applicant responded that no family violence was involved in the relationship, which the Tribunal notes in its consideration of the application for review.

40. As the applicant and the primary visa holder are no longer in a cohabitating marital relationship the Tribunal is satisfied that there is a ground for cancellation of applicant’s visa under s116(1)(a) based upon the facts and circumstance that no longer exist in terms of the requirements of the Act. 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

41. 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’.

42. In regard to a compelling need to remain in Australia the Tribunal relies on information provided to the Department and the Tribunal, including the oral evidence at hearing. The applicant has stated that he wishes to remain in Australia to lodge his own visa application to undertake studies. The Tribunal is not satisfied that remaining in Australia to lodge a visa application is compelling, including participation in an English language course after having resided in Australia for almost 4 years. Therefore, the Tribunal gives weight to this factor in favour of cancelling the visa.

43. As the purpose of the applicant’s travel and stay in Australia was to accompany his former wife (who was granted a Temporary Graduate (subclass 485) visa, which was due to conclude after 2 years from 30 November 2018) and their relationship has now ceased, the Tribunal finds that in the absence of compelling reasons for the applicant to remain in Australia, the Tribunal gives this factor great weight in favour of cancelling the visa.

44. There is no evidence before the Tribunal to suggest that the applicant has not complied with his visa conditions except for not being a member of the primary visa holder’s family unit. The Tribunal gives this factor weight for not cancelling the visa.

45. In regard to the degree of hardship that may be caused to the applicant’s family members the applicant provided the Tribunal with evidence that he has no children and no other family in Australia. The applicant also provided evidence that there is no reason that would preclude the applicant from returning to India, including any obligation arising from political matters or obligation to undertake military service. As such, the Tribunal places weight on this factor in favour of cancellation of the visa.

46. In regard to circumstances, within which the ground of cancellation arose, the Tribunal is satisfied that the relationship has broken down on both the submitted advice to the Department by the primary visa holder and the evidence provided by the secondary applicant at hearing. As the Tribunal is satisfied as to the circumstances in which the ground of cancellation arose the Tribunal places significant weight on this factor in favour of cancellation of the visa.

47. On the information before the Department and the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs these factors neither in favour nor against cancelling the visa.

48. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The potential consequences of an affirmed decision were explained to the applicant and he stated that he understood.

49. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal weighs these factors neither in favour nor against cancelling the visa.

50. The Tribunal is not aware of any other relevant matters.

51. On balance, as the Tribunal has identified, more factors are in favour of cancelling the visa, and when considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Warren Stooke AM
    Member