Singh (Migration)

[2022] AATA 3551

Singh (Migration) [2022] AATA 3551 (6 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1903868

HOME AFFAIRS REFERENCE(S):          BCC2018/4469835

MEMBER:Gabrielle Cullen

DATE:6 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 06 October 2022 at 4:56pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – relationship ceased – applicant now a genuine student – separate student visa granted – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5, 48, 116, 140
Migration Regulations 1994, rr 1.12, 2.12

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 15 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. 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 exists. Specifically, the applicant’s student visa was granted based on being a member of the family unit of the primary visa holder, Ms Paramjeet Kaur and evidence before the Department indicated that they had separated and were no longer in an ongoing relationship. The delegate found that the applicant was therefore not a member of the primary visa holder’s family unit.

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 applied for review on 20 February 2019 and attached the decision of the Department.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 applicant’s student visa was granted on 23 February 2018 because the application met, among other criteria, the secondary criteria for the visa on the basis that the applicant was a member of the family unit of Ms Paramjeet, Kaur as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994 (the Regulations), which provides as follows:

   (2)A person is a member of the family unit of another person (the family head) if the person:

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

9. To be a member of the family unit of Ms Paramjeet Kaur as prescribed by reg 1.12(2)(a), the applicant needed to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act, which state (in part):

   s5F ‘Spouse’

   (1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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. 1...]

   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 de 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

   (e)they are not related by family (see subsection (4)).
   1...]

10. Information before the delegate indicated that the applicant had ceased to be either a spouse or a de-facto partner of that person, that they had separated and were no longer in an ongoing relationship.  It therefore appeared that the applicant ceased to be a member of their family unit as prescribed by reg 1.12(2)(a).

11. On 10 January 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa.  He responded in writing on 7 February 2019 via his representative and requested the delegate consider his circumstances urging the officer not to cancel the visa as he is a genuine student looking to study in Australia and that cancelling his visa would bar him from further study and deprive him of improving his career.

12. On the basis of the above evidence, that the applicant is no longer in a relationship with the primary visa holder, the Tribunal is satisfied that a decision to grant the applicant a student visa on 23 February 2018 was based on a particular fact or circumstance that is no longer the case or that no longer exists. 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 power to cancel the visa should be exercised

    Consideration of discretion

13. 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 Procedural Instruction ‘General visa cancellation powers’.

    Background

14. The applicant is a 30-year-old citizen of India. He first arrived in Australia on 27 February 2018 on a student visa granted as he was a member of the family unit of Ms Paramjeet Kaur. As noted above that relationship ceased and his visa was cancelled by the Department on 15 February 2019.

15. Prior to the delegate’s decision on 15 February 2019, the applicant on 1 February 2019 applied for a student visa as the primary applicant on the basis of enrolment in a Certificate III, Certificate IV and Diploma of Horticulture to be studied from 11 March 2019 to 12 November 2021. On 13 March 2019 he was granted a subclass 500 visa as the primary applicant valid to 30 June 2021.

16. On 29 June 2021 he applied for a further student visa to complete a Diploma of Horticulture and study a Diploma of Agribusiness Management from 10 January 2022 to 6 January 2023 followed by an Advanced Diploma of Business from 9 Janaury 2023 to 5 Janaury 2024.He was granted a further subclass 500 student visa on 13 December 2021 valid to 5 March 2024.

17. The evidence indicates he has completed the Certificate III, IV and Diploma of Horticulture and is currently studying the Diploma of Agribusiness Management.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

18. The purpose of the first visa grant was for the applicant to travel and stay in Australia for the purposes of being the member of the family unit of his spouse, the primary applicant. The Tribunal accepts that his travel to Australia in  February 2018 was as a member of the family unit of his spouse who was studying.

19. As noted above the evidence indicates he has since been granted further student visas as the primary applicant since applying on that basis on 1 February 2019. His current subclass 500 student visa is valid to 5 March 2024.

20. The evidence from the PRISMS record indicates the applicant has been continuously enrolled and completing courses since the grant of the first visa on 13 March 2019 with him as primary applicant. The Department has granted him a further student visa in December 2021 to study a Diploma of Agribusiness which he is studying and an Advanced Diploma of Business. The Tribunal accepts that the applicant’s purpose in Australia is to study and complete his courses. It accepts there is a compelling need for him to stay in Australia and complete these courses as he has been assessed as a genuine student and genuine temporary entrant by the Department.

21. The Tribunal gives this discretionary factor weight in favour of the applicant.

    The extent of compliance with visa conditions

22. There is no information before the Tribunal that the applicant did not comply with any conditions on his visa.

23. The Tribunal gives this discretionary factor weight in favour of the applicant.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. As the applicant is currently studying and has been for over 3 years, the Tribunal accepts there will be a degree of hardship if the visa is cancelled due to the legal consequences as outlined below.

25. The Tribunal gives this consideration weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

26. The ground for cancellation arose because of the breakdown of a relationship.

27. While the Tribunal does not know the circumstances of the breakdown of the relationship, it finds that the events leading to the cancellation of his student visa were only partly within his control. Therefore, the Tribunal attributes this low weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

28. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

29. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

    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

30. There are mandatory consequences in the case of the cancellation of the visa, including difficulties in obtaining any further visas.

31. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia, following the expiry of his current student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12.

32. The Tribunal gives this consideration weight in these circumstances as since the cancellation he has been granted student visas and is a genuine student and genuine temporary entrant.

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

33. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

34. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

35. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

36. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are significantly favourable to the applicant as outlined above

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    decision

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Gabrielle Cullen
    Member