Singh (Migration)

[2019] AATA 3630

Singh (Migration) [2019] AATA 3630 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmeet Singh

CASE NUMBER:  1911635

HOME AFFAIRS REFERENCE(S):     BCC2019/951685

MEMBERS:Dr Jason Harkess

DATE:21 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 21 August 2019 at 1:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – relationship ceased – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 May 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(a) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 5 November 2018 with an original expiry date of 9 December 2020, providing for more than 2 years during which the Applicant would be permitted to reside in Australia. He had applied for the visa not as a primary applicant but as a secondary applicant. The primary applicant, who is the Applicant’s wife, was granted her student visa on the basis of a proposed course of study that she planned to undertake in Australia. The Applicant, as a secondary student visa applicant, was granted his student visa on the basis that he was in a relationship of dependency with his wife. The visa permitted him to reside in Australia with his wife while she undertook her studies. He was not required to study himself.

3. In this case, the delegate cancelled the Applicant’s visa on the basis that he was considered no longer to be a member of the primary visa holder’s family unit. Specifically, the delegate found that the Applicant and his wife had separated. As a consequence, the delegate found that the circumstance which had formed the basis of the Applicant’s visa grant no longer existed. Such a change of circumstance established the legal ground to cancel the Applicant’s visa pursuant to s 116(1)(a) of the Act.

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

5. The Tribunal convened a hearing to consider the merits of the application for review on 13 August 2019. The Applicant appeared at the hearing to give evidence and present arguments. The hearing was conducted with the assistance an interpreter of the Punjabi and English languages.

6. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 116(1)(a) of the Act provides that a student visa, which includes the Applicant’s visa, may be cancelled on the basis that the Tribunal 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 that no longer exists.’

2. The Applicant’s student visa was granted on 5 November 2018 on the basis that he was, on that date, a ‘member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa.’[1] A ‘member of the family unit’ includes a spouse or de facto partner.[2] The ‘primary person’ in this case was the Applicant’s wife, Ms Simranjeet Kaur Bhatt. The Applicant and Ms Bhatt had produced a marriage certificate, evidencing their marriage, at the time they lodged their visa applications. This evidence satisfied the regulatory criteria for the Applicant being granted his student visa.

   [1] See Migration Regulations 1994 (Cth), Sch 2, cls 500.3, 500.311.

   [2] See Migration Regulations 1994 (Cth), reg 1.12.

3. Subsequent to the grant of the visa, the Department was notified by Ms Bhatt that the marriage had broken down and that she and the Applicant were no longer living together. That information led the delegate to conclude that the Applicant was no longer a member of Ms Bhatt’s family unit and that the basis upon which the Applicant’s visa had been granted no longer existed. Accordingly, the visa was cancelled.

Is the Applicant no longer a member of the family unit?

1. At the hearing before the Tribunal, the Applicant admitted that he and Ms Bhatt had separated and had not been living together since November 2018. Upon further inquiry by the Tribunal, the Applicant stated that there is no prospect of reconciliation. The marriage between the Applicant and Ms Bhatt is over. The Applicant indicated that he will be taking steps to divorce in the near future.

2. On the basis of this evidence and the material that was before the delegate, the Tribunal is satisfied that the ground for cancellation under s 116(1)(a) is established.

Consideration of the Discretion to Cancel the Visa

1. Having found that the ground for cancellation under s 116(1)(a) of the Act has been made out, 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Ground for Cancellation

1. The circumstances relating to the breakdown of the Applicant’s marriage with Ms Bhatt were outlined in a written statement provided by Ms Bhatt to the Department. In accordance with the requirements under s 359AA of the Migration Act 1958, the Tribunal orally communicated Ms Bhatt’s written statement to the Applicant during the hearing. The Tribunal was satisfied that the Applicant understood why this information was relevant to the review. The Tribunal explained to the Applicant that, if the Tribunal were to rely on the information, it may lead to the Tribunal affirming the decision to cancel his visa. The Tribunal invited the Applicant to comment on or respond to the information. The Tribunal advised the Applicant that he may seek additional time for this purpose. He did not request additional time and chose to respond at the hearing immediately.

2. The Applicant disputed a significant portion of the assertions contained in Ms Bhatt’s statement. In these circumstances, the Tribunal does not consider it appropriate to make any particular findings as to the reason for the breakdown of the marriage. What is clear, however, is that both the Applicant and Ms Bhatt agree that the marriage is over.

3. Relationships and marriages break down for a variety of reasons. Fault does not necessarily need to be attributed to the parties in such situations. The Tribunal does not propose to do so in this case. Accordingly, the circumstances of the relationship breakdown are not considered to be a significant consideration for the purposes of the Tribunal’s present determination.

Purpose of Applicant’s Stay in Australia

1. Underpinning the grant of a secondary holder’s student visa is recognition of the fact that international students may have relationships of dependency with other non-Australian citizens who are members of their immediate family. Such family members, including the Applicant, may therefore be granted student visas if it can be demonstrated that they are indeed a member of the primary applicant’s family unit, provided the primary applicant meets the primary criteria for the grant of a student visa. In that regard, the crucial circumstance that provides the basis for the grant of a secondary applicant’s student visa is the fact of the relationship of dependency with the primary applicant.

2. When that relationship somehow ends after the visa has been granted, so too does the utility in allowing the secondary student visa holder’s visa to be maintained. While no fault may necessarily be attributed to the secondary visa holder, that does not avoid the fact that they now no longer have a legitimate basis to remain in Australia, at least insofar as their student visa is concerned.

3. No legitimate purpose is served by allowing the Applicant’s visa to remain valid. This consideration is an overriding concern that has led to the Tribunal affirming the decision under review.

Extent of Applicant’s Compliance with Visa Conditions

1. The Tribunal finds that the Applicant has otherwise complied with his visa conditions while he has remained in Australia. There is nothing adverse against him in that regard.

Hardship

1. The Tribunal accepts that it would be difficult for him were he forced to return to India. He stated that he has family here, who are long-term residents and Australian citizens. He stated that he would prefer to remain in Australia on a longer-term basis. He would rather not have to return to India.

2. While the Tribunal has taken this potential hardship into account, the Tribunal notes that the Applicant is still young and has some family and a social network back in India. Upon his return to India, he is likely to adapt to life back there.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member