Singh (Migration)

[2019] AATA 4406

Singh (Migration) [2019] AATA 4406 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1904513

HOME AFFAIRS REFERENCE(S):           BCC2018/1652059

MEMBER:Kira Raif

DATE:14 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2019 at 9:05am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – relationship ceased – plan to complete studies – compelling need to stay in Australia – working to support family – 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 18 February 2019 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 applicant is a national of India born in December 1989. He was granted the Class VC Temporary Graduate Subclass 485 visa on 23 February 2018. The visa was to be in effect until 23 February 2020. On 31 January 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa to the applicant was based on a fact or circumstance that no longer existed. The applicant did not provide a response to the NOICC and his visa was cancelled on 18 February 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses nominated by the applicant. 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, Mr Jujhar Bajwa, who did not attend the Tribunal hearing and did not provide any submissions to the Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the visa on the basis of being a partner, and a member of the family unit, of Ms Navjot Kaur. Information before the Department indicates that in April 2018 a Domestic Violence Protection Order (DVO) was issued, prohibiting the visa applicant from approaching, contacting or committing domestic violence against Ms Kaur. The Order is in effect until April 2023. The delegate concluded that the applicant was no longer in a spousal relationship with Ms Kaur and that there were grounds for cancelling the visa under s. 116(1)(a) of the Act.

7. The primary decision record indicates that the applicant did not respond to the NOICC.

8. In oral evidence to the Tribunal the applicant said that he is not aware of any divorce proceedings but he conceded that his relationship with Ms Kaur was no longer in existence. The applicant confirmed that there is an DVO in place which prohibits him from living with, or contacting Ms Kaur. The applicant told the Tribunal that previously, the relationship was going well. They were making inquiries about applying for temporary residence and employment. At some point, his wife told him that she wanted to have a break from the relationship, she sent the children overseas. The applicant described their financial and living arrangements and his interactions with the Department. The applicant told the Tribunal that he was unaware of his visa being cancelled and did not receive the NOICC.

9. The applicant admits that there is ‘nothing’ between him and Ms Kaur. The Tribunal acknowledges that there may still be a valid marriage between them but the Tribunal notes that a spousal relationship is not defined by the existence of a valid marriage. There is no evidence that any of the aspects of a spousal relationship, including financial and social aspects and the nature of the household, exist in this case. Although the applicant suggested that he may be willing to reconcile, there is no evidence that Ms Kaur has any commitment to this relationship. The Tribunal finds on the basis of the applicant’s own evidence that the applicant is no longer in a spousal or de facto relationship with Ms Kaur. The Tribunal finds that he is no longer a member of her family unit.

10. The Tribunal finds that the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Ms Kaur. The Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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. The Tribunal finds that there are grounds to cancel the visa under s.116(1)(a) of the Act.

11. 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

12. 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

13. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a period of four years. 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, that relationship is no longer in existence. The applicant is no longer in a spousal relationship with the primary visa applicant. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder.

14. The applicant told the Tribunal that they came to Australia in order to study but later decided to obtain permanent residence. The applicant said that he completed a course in automotive technology in January 2019 and obtained a skills assessment from TRA, a copy of which he provided to the Tribunal. The applicant told the Tribunal that he wants to complete his study and either return to India or seek temporary residence. However, the applicant confirmed that he has not made an application for a Skilled visa as the primary applicant. The applicant has not provided to the Tribunal evidence that he meets the requirements for the grant of that visa as the primary applicant. His evidence to the Tribunal is that he only completed one year of study in Australia, which would not meet the Australian study requirement. That it, the applicant does not presently meet the primary criteria for the grant of the Skilled, and is not entitled to be granted that visa, until he completes further study.

15. The applicant told the Tribunal that he wants to complete his studies before he returns to India but in the Tribunal’s view, the Subclass 485 visa is not designed to enable the applicant to study in Australia. The applicant may have the opportunity to seek a Student visa in the future that would better suit his plans. If the applicant believes he qualifies for the Skilled visa, he may also be able to make an application for that visa in the future when his eligibility for the grant of the visa would be assessed. In this particular case, the Tribunal finds that the purpose of the applicant’s travel to and stay in Australia was to accompany his partner and that relationship is no longer in existence. For that reason, the applicant cannot fulfil the purpose of his travel to and stay in Australia.  The Tribunal is not satisfied the applicant has a compelling need to stay in Australia because the applicant claims the main reason for his ongoing stay in Australia would be to study and the Tribunal does not consider the Skilled visa to be the appropriate visa for that purpose.

    The extent of compliance with visa conditions

    There are no known instances of non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

16. The applicant told the Tribunal that he had given his wife a lot of money and it is not fair that she has ruined his and his children’s future. The applicant states that he wants to study and make the application for a visa in his own rights. As noted above, the applicant is able to make an application for a visa in the future when his eligibility for the visa can be assessed.

17. The applicant told the Tribunal that he wants the visa to be able to finish the course before he returns to India to have a better future for himself and his children. The applicant claims that if he completes his study in Australia, he will be able to get a better job and support his children. The Tribunal does not consider that the purpose of the Subclass 485 visa is to enable the visa holder to undertake study in Australia. That visa is designed for those applicants who have already completed a certain level of study in Australia.

18. The applicant told the Tribunal that he wants to live with his wife. However, there is no evidence that Ms Kaur has any intention of reconciling. The Tribunal also notes that there is a DVO in place at present that prevents the applicant from contacting Ms Kaur. The applicant claims that their relatives will try to make the relationship work and Ms Kaur can apply to remove the DVO. Again, there is no evidence before the Tribunal to indicate that Ms Kaur has any intention, or desire, to do so. The Tribunal finds the applicant’s claims to be entirely speculative and is not prepared to accept these claims, which appear to be entirely unilateral on the part of the applicant with no support whatsoever from Ms Kaur.

19. The applicant claims that his parents are very sick and are not in a position to financially support his children and if his visa is reinstated, he can work and support his family. The Tribunal is prepared to accept that if he cannot remain in Australia and work in Australia, this may affect financially the applicant and his family.

20. The applicant told the Tribunal that he is stressed and depressed. The applicant presented no medical or otherwise probative evidence of his claimed poor health and the Tribunal is not prepared to accept these claims without independent evidence.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence

21. The ground for cancellation arises because the applicant’s relationship with his spouse has broken down. There is no information before the Tribunal as to whether the relationship broke down as a result of family violence but the Tribunal notes that the applicant has been issued with a DVO, which remains in place. The applicant told the Tribunal that he has not committed any violence, that the claims are untrue and that the final DVO has not been issued.

    Past and present behaviour of the visa holder towards the department

22. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department.

    Whether there would be consequential cancellations under s.140

23. There are no consequential cancellations under s.140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

24. 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. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period 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. The applicant may also be subject to an exclusion period.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. The applicant told the Tribunal that his wife has threatened him, and told him that if he returns to India, she can ‘pick him out’. The applicant said that nothing happened and he does not know what she can do or what can happen in the future. The Tribunal has found the applicant’s claims to be vague. The applicant also told the Tribunal that the threats happened when the relationship broke down but they have spoken several times since and there had been no threats. The applicant said that when she did threaten him, he took it lightly and laughed it off. The applicant told the Tribunal that he did not think he needed to apply for a protection visa. The Tribunal does not accept that the applicant has any genuine fear of harm or persecution or that there is any chance of such harm occurring. The Tribunal is not satisfied that the applicant’s claims give rise to Australia’s protection obligations.

26. The Tribunal is also mindful that the applicant is able to apply for a protection visa where such claims can be assessed. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

27. The Tribunal has considered the best interests of the children. The applicant claims that if his visa is cancelled, his children’s lives would be ‘spoiled’ because he would not be able to complete his study. He said that if he completes the course in Australia, he would be able to get a better job and support his family. However, the applicant told the Tribunal that he needs up to 15 months to complete his study and his visa, if not cancelled, would have expired in February 2020. The applicant requested that he should be granted a longer visa but that is not possible unless the applicant makes a new visa application. If the cancellation is set aside, the applicant’s visa will not exist beyond February 2020 and the applicant will not be able to complete his studies. The applicant suggested that he may finish the course earlier but he presented no evidence that the course provider would permit him to do so. In the particular circumstances of this case, the Tribunal does not consider that it is the cancellation of the visa that would prevent the applicant from completing his studies in Australia

28. The applicant states that if his visa is cancelled, he cannot support his children because he will not be able to get a job with his qualifications. The Tribunal does not accept that evidence. The applicant’s evidence is that he has completed a Certificate III in Australia and he claims that it is not a “full course” and he needs to complete further study. The applicant states that he wants to complete a Job Ready course. The Tribunal Is not convinced that completing of an Australian Job Ready course – which is designed specifically for the Australian work environment – would necessarily assist the applicant in obtaining a job in India.

29. Neither is the Tribunal satisfied that the applicant must complete his study in Australia in order to obtain a job in India. The Tribunal is not satisfied that the applicant cannot undertake study in India to enable him to work in his home country. The applicant states that study in India is expensive and in Australia he can work part-time to support his study but in India he cannot study. The applicant has not presented documentary or otherwise probative evidence of what the entry requirements are for the study in India and whether he would be able to pursue any study. Neither has the applicant satisfied the Tribunal that he would be unable to work and support his study in India. The applicant also presented no documentary evidence of having being unable to get a job in India with his current qualifications and experience. The applicant’s evidence to the Tribunal is that he used to do agricultural work prior to coming to Australia but he said it would be difficult for him to find someone to work for. Again, the applicant presented no evidence that such work, or any other work, would not be available to him. Essentially, the applicant has not satisfied the Tribunal that he would be unable to find gainful employment in India unless he completes further study in Australia

30. While the Tribunal accepts that the applicant may prefer to remain in Australia and study and work in Australia, the Tribunal is not satisfied that the applicant will be unable to support himself and his family if he returned to India. The Tribunal is not satisfied that if the visa is cancelled, the applicant’s children will experience financial hardship. The Tribunal does not consider that the best interests of the applicant’s children would be adversely affected if the visa is cancelled.

    Any other relevant matters

31. The applicant repeatedly told the Tribunal that he wants to complete study in Australia to have better job opportunities and to provide a better future for his children. The applicant states that it would be difficult for him to get a job in India otherwise. These claims have been addressed elsewhere. Essentially, the Tribunal is not satisfied that the applicant would be unable to obtain a job, and support himself and his children in India without completing further study in Australia and the Tribunal is also not satisfied on the evidence before it that the applicant will be able to complete the entire course in the short time that his visa would be valid for.

32. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the visa grant was based, in part, on a particular fact or circumstance that is no longer the case or that no longer exists and that there are grounds for cancelling the visa.

33. The Tribunal acknowledges that the applicant’s (and his witnesses’) claims the separation was instigated by his wife and that he is innocent and a victim but these are not matters that need to be determined by this Tribunal. It is not in dispute that the relationship has broken down and for that reason, the ground for cancellation arises. The Tribunal has formed the view that the applicant cannot meet the purpose of his travel to and stay in Australia because the applicant travelled to Australia to accompany his wife and the relationship broke down. The applicant also does not meet the primary criteria for visa grant. The Tribunal Is not satisfied there is a compelling need for the applicant to remain in Australia.

1. The Tribunal acknowledges that some hardship may be caused to the applicant as a result of the cancellation. This is because the applicant will have limited options of remaining in Australia or seeking other visa in Australia and that would affect his capacity to complete his studies in Australia and also work in Australia, as he wishes to do. The Tribunal also accepts that there will be legal consequences to the cancellation, importantly, limitations on future visa applications and on applications made onshore. The Tribunal acknowledges that the applicant may not be able to live, work and study in Australia if his visa is cancelled and that may cause hardship to the applicant and financially affect his family.

2. There is no evidence of the applicant breaching other visa conditions. There are no consequential cancellations. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

3. The Tribunal notes that the visa in question has a limited validity period which would not allow the applicant to complete the study which he claims he wishes to undertake. The Tribunal does not accept the applicant’s evidence that he would be unable to find employment in India without completing further study in Australia and the Tribunal has also formed the view that if the applicant does want to study in Australia, he can seek a Student visa in the future.

4. The Tribunal places greater weight on the fact that the applicant can no longer fulfil the purpose of his travel to and stay in Australia and he does not appear to meet the eligibility criteria to hold the Subclass 485 visa. In the Tribunal’s view, these matters outweigh other considerations.

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Kira Raif
   Senior Member