SINGH (Migration)

[2019] AATA 1356

SINGH (Migration) [2019] AATA 1356 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ARSHDEEP SINGH

CASE NUMBER:  1704622

HOME AFFAIRS REFERENCE:                BCC2016/3501350

MEMBER:Lilly Mojsin

DATE:9 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 May 2019 at 5:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – fact or circumstance no longer exist – member of family unit – relationship with primary visa holder ceased – consideration of discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
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 6 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s116(1)(a) because the applicant Arshdeep Singh who was the dependent of the primary visa holder, Navdeep Kaur Bains, was no longer in an ongoing relationship with her.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his application.

4. The applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 9 May 2019 at 2.00pm.

5. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

6. The applicant did not acknowledge the Tribunal correspondence, the applicant did not attend the Tribunal on 9 May 2019 at 2.00pm and the Tribunal has received no explanation.

7. In addition, the Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.

8. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. The applicant's Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on the basis that the application met, amongst other criteria, the secondary criteria for this visa on the basis that Arshdeep Singh is a member of Navdeep Kaur Bains' family unit, as prescribed by Regulation 1.12 of the Migration Regulations 1994.

12. Information before the department demonstrates the relationship, which permitted the grant of his 573 visa, is currently not continuing and had ceased since at least 17 October 2016. Therefore, Arshdeep Singh is no longer considered a member of Navdeep Kaur Bains's family unit.

13. In his response to the Department's NOICC, Arshdeep Singh stated that he intends to apply for his own student visa. This new purpose for wishing to remain in Australia is not in line with the purpose for which the 573 visa was granted to him.

14. In the Department decision the delegate stated that the relationship between the applicant and the primary visa holder had ceased since at least 17 October 2016 and that he was no longer a member of the primary visa holder’s family unit.

15. In his response to a Notice of Intention to Cancel the applicant stated that that the primary visa holder had lodged a divorce application and he intends to apply for his own student visa.

16. As the applicant and the primary visa holder are no longer in a marital relationship the Tribunal is satisfied that there is a ground for cancellation of applicant’s visa under s116(1)(a) - fact/circumstance no longer exists 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

17. 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’.

18. In regard to a compelling need to remain in Australia as the applicant did not attend the hearing the Tribunal relies on information provided to the Department and the Tribunal. The  applicant has stated that he wishes to remain in Australia to lodge his own visa application studies. The Tribunal is not satisfied that remaining in Australia to lodge a visa application is compelling. Therefore the Tribunal gives this weight to this factor in favour of cancelling the visa.

19. As the purpose of the applicant’s travel and stay in Australia was to accompany his former wife, a student, and their relationship has now ceased, 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.

20. 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.

21. In regard to the degree of hardship that may be caused to the applicant’s family members the applicant claims that his his in-laws would sue him for a fake dowry if he returned to India and his whole life would become hell. Further as he has paid fees and travel expenses if he has to return to India he would face severe financial hardship. The Tribunal accepts that the cost of travel and stay in Australia may cause some degree of hardship. But as the applicant did not attend the hearing the Tribunal is unable to be satisfied that the applicant would face any hardship in regard to a dowry or that the applicant would face financial hardarship. The Tribunal places weight on this factor in favour of cancellation of the visa.

22. In regard to circumstances in which ground of cancellation arose the applicant states that he and the primary visa holder had agreed to resolve their issues as the relationship was not going well and to take a break. He was not aware his wife had taken divorce proceedings and claims that they were not separated for the required 12 months. He claims that there were circumstances beyond his control. As the applicant did not attend the hearing the Tribunal is unable to be satisfied that the circumstances were beyond his control or that the parties were not separate for 12 months. As the Tribunal is not satisfied as to the circumstances in which the ground of cancellation arose the he Tribunal places weight on this factor in favour cancellation of the visa.

23. 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.

24. 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 applicant would need to seek advice regarding his immigration status. 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.  

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

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

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    Member