SINGH (Migration)

[2018] AATA 4695

SINGH (Migration) [2018] AATA 4695 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet SINGH

CASE NUMBER:  1715135

HOME AFFAIRS REFERENCE(S):           BCC2017/1521536

MEMBER:Nicola Findson

DATE:10 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 10 October 2018 at 1:45pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – member of family unit – marital status – marriage relationship ended – purpose of stay – work to repay debts – non-compliance with work conditions – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 July 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 applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate cancelled the visa under s.116(1)(a) on the basis that a circumstance which permitted the grant of the visa no longer existed.

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

4. The applicant appeared before the Tribunal on 28 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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). 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 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 delegate’s decision record states that the applicant was granted the Subclass 573 visa, having met the secondary criteria, because he was a member of the family unit of Ms Mandip Kaur.  The Department sent the applicant on 1 June 2017 a Notice of Intention to Consider Cancellation (NOICC) as it had been informed that the applicant was no longer a member of Ms Kaur’s family unit.  The applicant responded and indicated that he believed the ground for cancellation did not exist as he was still in a “marriage relationship” with Ms Kaur. He stated that his then migration agent was to blame for indicating in a student visa application lodged on his behalf in April 2017 – either accidentally or knowingly - that he was separated from his wife. Ultimately, the delegate in cancelling the visa was satisfied that the ground provided by s.116(1)(a) existed.

9. The Tribunal finds that the applicant was granted the Subclass 573 visa on 14 July 2016 because the Department was satisfied he was the husband of Ms Kaur and therefore a member of her family unit.  At the hearing the applicant confirmed that he and Ms Kaur separated in March 2017, when she moved out.  He agreed that he is no longer a member of her family unit and that the circumstance no longer exists.  The Tribunal finds that the applicant is no longer the spouse of Ms Kaur.  He is therefore no longer a member of her family unit.  Therefore a particular fact or circumstance leading to the grant of the visa, his membership of Ms Kaur’s family unit, is no longer the case.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. 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

11. 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’.

12. At the hearing the applicant told the Tribunal that he and Ms Kaur, who married in October 2014, arrived in Australia in August 2016 and lived together at addresses in Maylands and Cannington before Ms Kaur initiated the end of the relationship in March 2017.  He told the Tribunal that Ms Kaur had not been happy in their relationship “right from the beginning”.  He said he recalled being at work and taking a phone call from Ms Kaur during which she told him she was going back to India.  He said he rushed home when the call ended, but she had already left with all of her belongings. He said he has had no contact with Ms Kaur since that time.  The relationship is now over. 

13. With respect to the applicant’s purpose for staying in Australia, he now wishes to remain here to work in order to be able to repay his parents for the money he claims he and Ms Kaur were loaned by them for their visa costs, living expenses in Australia and student fees. He indicated he does not want to return to India “empty handed”.  The Tribunal has taken this into account.  It has concerns however, which it discussed with the applicant, that his reason for wishing to remain in Australia to work is not consistent with the purpose of the Subclass 573 visa program, which is to enable higher education sector study or to allow members of the family unit of persons who are engaging in higher education sector study to remain here with them for the duration of that period of study.  The Tribunal acknowledges that as Ms Kaur’s dependant the applicant’s visa conditions did not prohibit him working.  However, the Tribunal notes that the applicant is no longer the dependant of the primary subclass 573 visa holder, Ms Kaur. The Tribunal also noted to the applicant that Ms Kaur, as the primary visa applicant must have demonstrated to the Department prior to being granted the visa, that she had sufficient funds to fund her studies in Australia.  The applicant did not dispute that, but indicated that his parents had still made contributions.  The applicant has not provided any documentary evidence of the financial contributions of his parents.  The Tribunal is of the view that if the applicant wishes to work in Australia, then the Subclass 573 visa is not the appropriate visa for the applicant to hold.  The Tribunal gives this factor significant weight in favour of cancelling the visa.

14. As to the applicant’s compliance with visa conditions, he told the Tribunal that up until his visa was cancelled he had been working for several months at a vegetable market in Canningvale between 25 and 30 hours a week. When the Tribunal suggested that working these hours meant that he had not complied with the 20 hour a week work condition which was attached to his visa, the applicant said that he had relied on the advice from the agent in India who had arranged his visa, that he was able to work on a full time basis when he arrived in Australia.   There is also evidence before the Tribunal that is relevant to its consideration of the applicant’s compliance with visa conditions as well as his past and present behaviour towards the Department. The Tribunal suggested to the applicant that on the basis of his evidence to it, he had been dishonest in his response to the Department’s NOICC, in which he maintained he was in a continuing relationship with Ms Kaur; indicated an unscrupulous agent had prepared and lodged a student visa application on his behalf in April 2017 which stated, incorrectly, that he was separated from his wife; and provided documentary evidence in the form of photographs and correspondence directed to both himself and Ms Kaur at the same address to support his claims that they were still in a spouse relationship.  The Tribunal also noted it was concerned that it was only at the Tribunal hearing – one and a half years after his relationship with Ms Kaur had ceased -  that he had finally conceded that his relationship was over.  The applicant indicated to the Tribunal that he was scared his visa would be cancelled and by his response to the NOICC he was trying to secure his future by remaining in Australia.  He also indicated that he had relied on the advice of his agent, who had more knowledge than him about how to deal with his visa issue.  He told the Tribunal that it was at his hearing that he had to admit it was finally over.  The Tribunal finds that the applicant’s non-compliance with the work conditions attached to his visa, his failure to inform the Department that his relationship with Ms Kaur had ended, and the misrepresentations contained in his response to the Department on 17 June 2017 as to the status of his spousal relationship, represent non-compliance of visa conditions as well as the applicant, in the Tribunal’s view, displaying dishonest behaviour towards the Department.   The Tribunal gives these factors some weight towards the visa being cancelled.

15. The Tribunal has considered the evidence regarding the degree of hardship that may be caused to the applicant if the visa is cancelled.  Specifically, the Tribunal has had regard to the applicant’s claims that he has not worked since his visa was cancelled by the Department in July 2017 and will be unable to repay his parents for money they loaned to him and Ms Kaur to come to Australia.  The Tribunal has already formed the view that the applicant’s desire to return to work in Australia is not consistent with the purpose of the subclass 573 visa program.  While it accepts that as Ms Kaur’s dependant the applicant was able to work under his visa conditions, it has found he is no longer a member of her family unit.  The Tribunal acknowledges that there may be some financial consequences on the applicant and his parents if the visa is cancelled, however it is not satisfied that any hardship will be serious.   Accordingly, the Tribunal gives this consideration little weight in favour of the visa not being cancelled.

16. With respect to the circumstances in which the ground for cancellation arose, the evidence before the Tribunal is that the applicant’s relationship with Ms Kaur ended because she was unhappy in the relationship and wanted to separate.  The Tribunal is prepared to accept that it was the applicant’s wife who initiated the breakdown of the relationship, but irrespective of how or why the relationship broke down, the Tribunal has found that it did. Further, the Tribunal does not consider that in this matter, the breakdown of the relationship between the applicant and his wife constitute circumstances outside of the applicant’s control that would outweigh the grounds for cancelling the visa.  The Tribunal gives this consideration little weight towards the visa not being cancelled.

17. With respect to whether there are mandatory legal consequences, the delegate has indicated the applicant’s visa was cancelled on 6 July 2017.  At the hearing the applicant indicated to the Tribunal that he was currently the holder of a bridging visa.  Departmental records indicate that the applicant is the holder of a Bridging visa E.  The Tribunal is satisfied that the applicant is the holder of a visa.  The Tribunal does not have evidence before it that a cancellation would result in the applicant being unlawful and subject to detention, or that indefinite detention is a possible consequence of cancellation. The Tribunal gives this consideration little weight towards the visa not being cancelled.

18. There is no evidence before the Tribunal to suggest that any international obligations would be breached as a result of the applicant’s visa cancellation.  The applicant indicated to the Tribunal that there was no reason he cannot return to India and has not made any claims which would relate to this consideration. The Tribunal gives no weight to this consideration.

19. There is no evidence before the Tribunal that there would be consequential cancellations under s.140 of the Act.  There is no evidence before the Tribunal that the applicant has entered another relationship and there is no evidence that he has children in Australia. The Tribunal gives no weight to this consideration.

20. The Tribunal has considered and weighed up all of the relevant circumstances in the applicant’s case.  It has found that the basis for the applicant’s grant of the Subclass 573 visa, his membership of Ms Kaur’s family unit, no longer exists.  The Tribunal gives this factor significant weight.  It accepts that the applicant now wants to remain in Australia to work , however, it is of the view that this is not consistent with the purpose of the Subclass 573 visa program.  It also gives this factor significant weight.  While the applicant may have borrowed money to enable himself and Ms Kaur to come to Australia, and consequently may suffer some financial hardship, the Tribunal is not satisfied any hardship will be serious. Nor is it satisfied that the applicant is unable to safely return to India.  There is evidence to suggest the applicant breached visa conditions and the Tribunal has concerns about his conduct towards the Department.  The Tribunal attributes weight to these factors.  The applicant now holds a Bridging visa E so the cancellation would not result in the visa holder being in Australia unlawfully and subject to detention.   

21. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa.  The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

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

    DECISION

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

    Nicola Findson
    Member