SINGH (Migration)

[2020] AATA 5272

SINGH (Migration) [2020] AATA 5272 (29 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TARUNPREET SINGH

CASE NUMBER:  1925723

HOME AFFAIRS REFERENCE(S):          BCC2019/3164361

MEMBER:Donna Petrovich

DATE:29 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 29 September 2020 at 6:59pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – relationship ceased – applicant lost contact with daughter – financial hardship – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the visa holder’s Dependent Student (subclass 500) visa was based on a circumstance that no longer exists.  Relevantly to this consideration, that the visa holder’s relationship with the primary visa holder no longer exists on the basis that the applicant is no longer in a relationship with Kiran Bala his wife, after the relationship ceased on 6 May 2019. 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 22 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Migration Agent.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. The applicant provided the Tribunal with a copy of the delegate’s decision for the purpose of its consideration.

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), namely that the decision to grant the visa was based, wholly or in part on a particular fact or circumstance that is no longer the case or that bo longer exists,  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

7. A visa may be cancelled under s116(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 review applicant was granted a Dependent Student (subclass 500) visa on 15 March 2019, on the basis that he was in a relationship with the primary visa holder.  The delegate issued a Notice of Intention to Consider Cancellation (NOICC) on 2 August 2019, inviting the applicant to comment on information before the delegate that he was no longer in a relationship with his wife.  In his response to the delegate on 8 August 2019 the review applicant does not dispute that the relationship has ceased and detailed his efforts to communicate with his wife and child through Relationships Australia, and he described his circumstances up until the time of his separation from his wife on 7 May 2019.  At the hearing the alleged breach was put to the applicant and reference made to the delegates decision record that indicated that the applicant’s relationship with the primary visa holder had ceased.  The applicant was invited to comment on these circumstances and did not dispute that his relationship with the primary visa holder had ceased.

9. On the evidence before the Tribunal, namely the applicant’s admission during the hearing and his response to the NOICC, the Tribunal finds that the applicant’s relationship with the primary visa holder has ceased.

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

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Advice Manual (PAM3) ‘General visa cancellation powers’.

12. The Tribunal has considered the applicant’s evidence provided at the hearing along with the documentation provided to the delegate. 

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

13. The applicant told the Tribunal that he had initially come to Australia in 2010 on a Tourist visa and stayed for just one month of the three months he was permitted to stay, and then returned home to India.

14. The applicant then obtained a Student visa and came to Australia to study a Master of Health Science.  He then met his wife and formed a live-in relationship together. They returned to India together to get married in 2019 and when they returned he became a secondary applicant on his wife’s Student visa as she was doing a Master of IT at that time and he told the Tribunal that he worked and provided for the family. There was no evidence submitted of the applicant resuming his studies.

15. The applicant also told the Tribunal of his distress about being unable to see his daughter as a result of an Interim AVO being taken out by his wife/police.  He told the Tribunal that he has not seen his wife or daughter for 17 months.

16. The Tribunal in considering the evidence finds that the applicant does not appear to have an enrolment to study and is no longer in a relationship with the primary visa holder. On this basis the Tribunal gives little weight in favour of the applicant in this regard.

    The extent of compliance with visa conditions

17. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa.  The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches. 

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

18. The  Tribunal heard that the applicant had a daughter which he had not seen since his wife had left him suddenly in 2019 and that he felt that his wife had done this in an attempt to gain an additional 10 points towards permanent residency which would be attained if she was a single woman. The applicant did not provide any evidence to support this claim therefore, the Tribunal gives no weight in favour of the applicant in this regard.

19. The applicant expressed his frustration that he had attempted to seek assistance through Relationships Australia, and his wife had refused to come to the table, he told the Tribunal that he felt that there was an opportunity to reconcile if they could participate in this mediation. The Tribunal has considered this and gives no weight in favour of the applicant in this regard.

20. The applicant expressed that he had been issued with a bogus AVO (interim) which was a way for his wife to gain a greater advantage in gaining permanent residency as a single woman.  He told the Tribunal that his wife was using his child as a weapon, and that he is being punished. The Tribunal has considered this and gives no weight in favour of the applicant.

21. He told the Tribunal that he had worked to support his family as a specialist forklift driver at a logistics company, and that he and his wife had worked at the same company together prior to the birth of their daughter. He told the Tribunal that he had left this company to seek greater renumeration to provide for his family in his current job. His wife had a savings account in her own name and jewellery which he thought that she had used to live on since their separation in May 2019.  His wife has resumed work and the applicant told the Tribunal that he is not contributing to the support of his wife and child and has not done so for over 12 months.  

22. The applicant understood that he faced returning to India if the delegate’s decision was upheld and he expressed his distress at not having contact with his daughter and being unable to see her for many years, if he retuned to his home country.  The Tribunal has considered this and understands that in the future if there is a resolution to communication issues and the matter of the AVO then these matters could be addressed, the Tribunal places some weight in favour of the applicant in this regards.   

23. The Tribunal in considering the evidence submitted by the applicant acknowledges that the applicant will face hardship of a financial if he returns home but does not consider this factor any greater than another facing the same situation and gives this little weight.

24. In relation to emotional and psychological hardship the applicant will face in relation to separation from his daughter, if the delegate’s decision is upheld. The Tribunal must also consider the current circumstance where the applicant has not seen his daughter as a result of an Interim AVO being in place for 17 months.

25. The Tribunal is mindful that the applicant has not seen his daughter for 17 months and has and Interim AVO in place, which the applicant told the Tribunal is currently unresolved and is awaiting further hearings. In these circumstances the Tribunal is not able to determine the true nature of this matter, only the effect that this has currently, which is that the applicant is unable to see his daughter as a result of the current Interim AVO. In considering these circumstances, the Tribunal finds that the applicant will continue to face hardship in relation to this circumstance and gives some weight in favour in this regard.  

    Circumstances in which the ground for 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 the visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

26. The applicant told the Tribunal that he had no indication of any difficulty in the relationship, and only became aware of the breakdown when his wife failed to pick him up from work as she would usually do, on 7 May 2019.

27. When he went home from work that night his wife and child had packed up and left their rental property and had gone to live with her brother.  He went to visit his daughter at his brother-in-law’s house on 9 May 2019 with a housemate, because he was concerned about something bad happening, and told the Tribunal he was met with hostility from his wife’s family.  They told him he could not see his child and that they called the police and that he is not allowed on the premises. He has an Interim AVO which was issued against him and he has had no contact with his wife or child for 17 months.

28. The applicant told the Tribunal that he felt his wife leaving him was to give her an additional 10 points to enable her to become a permanent resident, and that he had no indication that his wife was unhappy or was about to leave him prior to 7 May 2019, and that the AVO that had been placed on him was bogus.  The Tribunal in considering this evidence places little weight in favour of the applicant in this regard.    

29. He has remained separated from his wife or child in this time and has maintained residence in the rental property that he and his wife previously shared. In considering the circumstance overall, the Tribunal gives no weight in considering exercising discretion not to cancel.

    Past and present behaviour of the applicant to the Department    

30. There is nothing before the Tribunal to indicated that the applicant has not cooperated with the Department or the Tribunal in his dealings and gives this some weight in favour of the applicant and not cancelling his visa.

    Consequential cancellations under s.140

31. There is no evidence that there would be consequential cancellations if the applicant’s visa is cancelled and the Tribunal gives this no weight.

    Mandatory legal consequences

32. There would be mandatory legal consequences, upon cancellation of the visa and the Tribunal notes that the visa under consideration has already expired.  The applicant would become unlawful and subject to the possibility of detention, although he would also be eligible to apply for a bridging visa.  The applicant would be subject to the provision of s.48 of the Act which limits the application for other visas the applicant would otherwise be entitled to apply for whilst in Australia.  The Tribunal has considered the restrictions this would impose upon the applicant and as such gives this some weight in favour of the applicant.

    Any international obligations

33. There is nothing before the Tribunal to indicate that there are any international obligations to consider.

34. The Tribunal has carefully assessed the relevant factors, both individually and cumulatively, including the evidence raised by the applicant and his sister during the hearing. The cancellation of the applicant’s visa is based on the relationship breakdown, as the applicant is no longer a member of the primary visa holder’s family unit, as required to be the holder of the dependent student visa.  Based on the evidence before the Tribunal, namely the evidence submitted to the delegate and the applicant’s testimony to the Tribunal, the relationship broke down on 7 May 2019.  In consideration of whether discretion should be exercised in relation to the cancellation of the visa, the Tribunal has given limited weight to the factors that have been assessed in the applicant’s favour, including the personal safety issues and his attempts to resolve personal relationship issues as canvassed above.  However, on balance, the Tribunal has concluded, the circumstances in which the ground for cancellation arose outweighs the consideration of the other factors.  The Tribunal is satisfied that the factors in favour of the cancellation of the visa outweigh the other considerations.

    Any other relevant matters

35. The Tribunal was not presented with any other relevant matters to be considered.

36. 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 Class TU visa.

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.