Singh (Migration)

[2019] AATA 1968

Singh (Migration) [2019] AATA 1968 (1 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PARAMJIT SINGH

CASE NUMBER:  1702319

HOME AFFAIRS REFERENCE:                BCC2016/4069104

MEMBER:Lilly Mojsin

DATE:1 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 01 May 2019 at 6:33pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – wife divorced applicant without applicant’s knowledge – circumstances beyond applicant’s control – applicant remarried – wife would suffer financial hardship if visa cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 116, 140, 189
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 8 February 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 s.116(1)(a) on the basis that circumstances for the grant of the visa no longer exist. The applicant appealed that decision to this Tribunal, attaching a copy of the decision and stating that his name was Paramjit Singh Singh. The decision referred to Paramjit Singh Na.

3. The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   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). 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.

7. 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.

8. The applicant was notified of the intention to consider cancellation on 31 January 2017 and the notice invited him to respond in writing. No response was received.

9. The delegate’s decision stated that Paramjit Singh Na’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 he was a member of the family unit of Navneet Kaur Na, as prescribed by Regulation 1.12 of the Migration Regulations 1994.

10. Information brought to the department’s attention indicated that the applicant and Navneet Kaur Na are no longer in an ongoing relationship. Therefore, the applicant was no longer considered a member of Navneet Kaur Na’s family unit.

11. On 19 March 2019 the applicant advised the Tribunal that in regard to hardship his wife applied for the divorce on her own when she went to India. She notified Immigration. He has provided her with significant financial assistance.

12. In regard to the financial, emotional and social impact the applicant stated that he was a genuine student intending to complete his studies and the delegate should have considered his genuine circumstances. He has spent considerable money on his studies, his career goals were abruptly stopped and he lost direction. This disruption was a significant blow to his future career prospects.

13. The applicant told the Tribunal he was married in December 2013 and his wife divorced him 11 August 2016. She returned from India and she lived with him for a month. He found out she had divorced him, they argued and she moved out.  The applicant works in an Indian warehouse. He has work right under his visa.  The applicant did not support the submission made by his advisor that he was a genuine student.

    REASONS AND FINDINGS

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

15. Regulation 1.12 states

    (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)    a spouse or de facto partner of the family head; or

    (b)     a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (c)     a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (1)       does not have a spouse or de facto partner; and

    (ii)       is usually resident in the family head's household; and

    (iii)      is dependent on the family head.

    (2)         A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a)     a spouse or de facto partner of the applicant; or

    (b)     a dependent child of the applicant, or of that spouse or de facto partner, who is unmarried and has not turned 18...

    (2A) A person is a member of the family unit of a holder of a Student (Temporary) (Class TU)visa if the person is:

    (a)     a spouse or de facto partner of the holder; or

    (b)     a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18....’

16. To be a member of the family unit of Navneet Kaur Na as prescribed by Regulation 1.12 of the Migration Regulations 1994, the applicant needed to continue to be either a spouse or a de-facto partner of that person as defined respectively by sections 5F and 5CB of the Migration Act 1958. Sections 5F and 5CB indicate (in part) as follows:

s5F Spouse

(1)         For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)         For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of

this Act; and

(b)     they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(c)     the relationship between them is genuine and continuing; and
(d)     they:

(i)    live together; or

(ii)   do not live separately and apart on a permanent basis.

s5CB De facto partner De facto partners

(1)         For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a facto relationship with the other person.

De facto relationship

(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

(a)     they have a mutual commitment to a shared life to the exclusion of all others; and

(b)     the relationship between them is genuine and continuing; and
(c)     they:

(i)    live together; or
(ii)   do not live separately and apart on a permanent basis; and

(d)     they are not related by family (see subsection (4)).

1. As the applicant and Navneet Kaur Na are no longer in a marital relationship the Tribunal is satisfied that there is a ground for cancellation of Paramjit Singh Na’s visa under paragraph(s) 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

2. 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’.

3. In regard to a compelling need to remain in Australia the applicant indicated that he has remarried in a Sikh temple in Australia on 23 March 2019. His wife is on a temporary residence visa, she is a student.  He wishes to remain in Australia with his wife whilst she completes her studies. The Tribunal is not satisfied that remaining in Australia whilst his wife studies is compelling. Therefore the Tribunal gives this weight to this factor in favour of cancelling the visa.

4. 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 great weight in favour of cancelling the visa.

5. 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 Navneet Kaur Na’s family unit. The Tribunal gives this factor weight for not cancelling the visa.

6. In regard to the degree of hardship that may be caused to Paramjit Singh Na or Paramjit Singh Na’s family members the applicant claims that his wife,  Jagdeep Kaur does not have work rights and so should his visa be cancelled as she relies on him for financial support she would suffer hardship. They were in a relationship from October to December and they married in March. His wife’s intention is to get work experience in Australia but he does not know if she wants to find a job here or in India. The applicant intends to live in Australia. He is not studying but he would like to study. As the applicant’s second wife would suffer financial hardship if the visa were cancelled, the Tribunal places weight on this factor against cancellation of the visa.

7. In regard to circumstances in which ground of cancellation arose the applicant was upset and confused about how and why his first wife left him. He was not aware of her intentions to divorce him and he was most upset that she had spent money that he had earned returning to India and obtaining a divorce without his knowledge. The applicant did not suggest that that the relationship had broken down as a result of family violence. Whilst the applicant stated that he was not aware of the motives of his first wife the Tribunal is satisfied that these circumstances were beyond the applicant’s control.  The Tribunal places weight on this factor against cancellation of the visa.

8. 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.

9. 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. As the applicant has remarried and is with his wife in Australia and cancellation might result in difficulties for further visas on the evidence before it the Tribunal weighs this factor in favour of not cancelling the visa.  

10. The circumstances in which ground of cancellation arose were not due to a relationship breakdown. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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

12. On balance as the Tribunal has identified more factors the in favour of not cancelling the visa and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    Member