Singh (Migration)

[2022] AATA 3672

Singh (Migration) [2022] AATA 3672 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

REPRESENTATIVE:  Mr Jyoti Bharati (MARN: 0501219)

CASE NUMBER:  2112682

HOME AFFAIRS REFERENCE(S):          BCC2016/2116876

MEMBER:Penelope Hunter

DATE:21 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa

Statement made on 21 September 2022 at 3:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit and Family Court remittal – fact on which visa granted no longer exists – member of family unit – separation and divorce from primary visa holder spouse – discretion to cancel visa – poor study history – stress, depression, COVID and financial difficulties – current enrolment made after receiving tribunal’s hearing invitation – circumstances of separation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 116(1)(a), 359, 375A
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 2 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) because it was found that the applicant had separated from his spouse and the particular fact or circumstances on which his visa had been granted no longer existed. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant applied to the Tribunal for a review of this decision on 5 December 2016. The applicant was invited to attend a hearing before the Tribunal (differently constituted) and on 22 November 2018, the decision under review was affirmed.

4. The applicant appealed this decision to the Federal Circuit and Family Court of Australia, and orders were made on 16 September 2021, by consent, remitting the matter back to the Tribunal for re-determination.  

5. The applicant appeared before the Tribunal on 27 July 2022, via MS Teams video to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.  

6. The applicant was represented in relation to the review, and his representative also attended the Tribunal hearing.

7. 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

   Non-Disclosure Certificate

8. The Department has issued a certificate of non-disclose pursuant to s 375A of the Act on 1 July 2022. Under s 375A of the Act, a delegate of the Minister may certify in writing that the disclosure of any matter contained in the document, or of the information contained within, would be contrary to public interest.

9. The operation of s 375A of the Act is dependent on the existence of a valid certificate. The relevant certificate is signed and dated by the identified officer. It sets out the reasons for the claim of confidentiality, being the disclosure of lawful methods of preventing, detecting and investigating breaches or evasions of law which would be likely to prejudice the effectiveness of those methods. A copy of the certificate was provided to the applicant on 13 July 2022, and submissions were invited as to validity by 27 July 2022. The Tribunal received no submissions and the applicant and his representative confirmed at the hearing that they did not dispute the validity of the certificate. The Tribunal is satisfied that the certificate has been appropriated exercised and a valid reason for the issue of a certificate has been demonstrated. The Tribunal finds that the certificate is valid.

10. The Tribunal further discussed with the applicant the substance of the information covered by the certificate insofar as it related to the application under review at the hearing in accordance with the appropriate procedure under the Act. It was further revealed in writing to the applicant prior to the hearing that the information related to the granting of a Protection Order by Ms Kulwinder Kaur on 27 July 2016, by Southport Magistrates Court.

    Does the ground for cancellation exist?

11. 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.

12. The applicant is a 35 year old male from Punjab, India. He was granted his subclass 572 student visa on 15 December 2015 as a member of the family unit of his wife, Ms Kulwinder Kaur, who satisfied the primary criteria for the grant of a subclass 572 student visa. The visa was granted until 14 June 2017.

13. The delegate records in their decision record, a copy of which the applicant has submitted to the Tribunal, that on 1 November 2016, the Department sent to the applicant a Notice of Intention to Consider Cancellation of his visa (NOICC) as it had received advice from Ms Kulwinder Kaur, on 30 May 2016, that her relationship with the applicant had ended.

14. In response to the notice the applicant submitted to the Department some photographs, a report from the Indian Police Investigations Commissionerate Jalandhar, a letter from Zimindara Hotel Restaurant and Beer Bar regarding a future offer of employment for the applicant, a screenshot of phone messages between the applicant and Ms Kaur, a statement of the applicant, submissions from the applicant’s representative, and a Confirmation of Enrolment (CoE) for a ‘General English’ course commencing on 21 November 2016 and concluding on 5 March 2017 with the Apex Institute of Education, created on 15 November 2016, and a CoE in an Advanced Diploma of Hospitality Management, with course dates from 10 April 2017 to 7 April 2019 with the Apex Institute of Education, created on 15 November 2016. In his statement the applicant set out he ceased living with his wife on 16 May 2016. In his representative’s submissions, it was claimed that the applicant started to live separately from Ms Kaur from 17 May 2016.

15. The delegate considered the submissions of the applicant and found that the applicant was no longer a member of the family unit of the primary visa applicant. Further, the delegate was not satisfied that it was appropriate to exercise discretion provided for in the Act for the waiver, and proceeded to cancel the visa on 6 December 2016.

16. At the Tribunal hearing the applicant confirmed that at the time the visa was granted he was married to Ms Kaur, and that he understood that the visa was granted on the basis that he was her spouse and a member of her family unit. He told the Tribunal that he was no longer living with Ms Kaur after May 2016, when he moved to Sydney and she remained on the Gold Coast living with her brother. In 2018, the applicant said that they had formally divorced, and he has submitted to the Tribunal a copy of a petition for divorce that has been filed in the court in Jalandhar, India, pronounced on 6 July 2018. The petition was jointly made by the applicant and Ms Kaur, on 22 December 2017. The applicant provided several submissions to the Tribunal that for some time after their separation in 2016 that he may have been amenable to reconciliation but Ms Kaur would not accept it.

17. On the evidence before it, the Tribunal is not satisfied that, for the purposes of reg 1.12 of the Regulations, that the applicant is a spouse or de facto partner of the primary visa holder. The Tribunal accepts the evidence before it that they have now divorced. At the time of the delegate’s decision, the Tribunal is also satisfied that they were no longer living together but lived separately and apart on a permanent basis, further they no longer had a mutual commitment to a shared life as husband and wife and their relationship was no longer genuine or continuing (see s 5F of the Act). Accordingly, the applicant did not meet the secondary criteria for the grant of the visa as a member of the family unit of person who satisfied the primary criteria for the grant of the visa.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(a) is made out because at the time of the delegate’s decision the applicant was no longer a member of the family unit of the primary visa applicant, Ms Kaur, and the ground for the visa grant no longer existed. Further the applicant confirmed that he personally had not ever been granted student visa on the basis that he satisfied the primary visa criteria or any other criteria for a substantive visa.

19. 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

20. 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’.

21. The Tribunal has considered the oral evidence of the applicant provided at hearing, and the submissions and documents provided by the applicant to the Department and the Tribunal. This includes the following additional information (in summary):

    i.Representative’s submission dated 15 October 2018, advising the applicant is attending his Advanced Diploma of Hospitality Management course and will be completed by 7 April 219. Submissions also included a letter from Apex Institute dated 15 October 2018, confirming that the applicant attended a  GE General English course commencing on 21 November 2016 and concluding on 5 March 2017, a copy of the CoE with the Apex Institute of Education, created on 15 November 2016, a CoE in an Advanced Diploma of Hospitality Management, with course dates from 10 April 2017 to 7 April 2019

    ii.Representative’s submission addressed to the Tribunal in matter 1620594 dated 4 November.

    iii.Representative’s submissions addressed to the Tribunal dated 20 July 2022, received during the hearing on 27 July 2022, and further copy receive on 2 August 2022.

    iv.Copy of divorce proceedings instituted on 22 December 2017 by the applicant and Ms Kaur.

    v.Affidavit of the applicant’s father confirming the applicant has divorced Ms Kaur.

    vi.NSW Medical Clearance Notice issued to the applicant on 28 September 2021.

    vii.PCR test results for the applicant dated 27 April 2022.

    viii.Letter of offer from Reach Community College to the applicant, dated 19 July 2022, in a Diploma of Hospitality Management from 5 September 2022 to 30 August 2024.

    ix.CoE in a Diploma of Hospitality Management from 5 September 2022 to 30 August 2024, created on 20 July 2022 at Reach College.

    x.Indian Court documents, including copy of statement of Harpreet Singh and translation.

    xi.Translation of report from the Assistant Inspector General of Police Jalandhar to the Inspector General of Police Nagar, re complaint U. I.D. no. 20161644 dated 24 May 2016 from Arjun Singh.

    xii.Translation of report regarding company no 1762-D.C.P. dated 27 July 2016

    xiii.Australian Federal Police, Digital National Police Certificate, dated 26 May 2022.

    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

22. The purpose of the student visa granted to the applicant was so that the applicant could continue within the family unit of his spouse, and stay with his spouse, for the duration of her student visa, which was until June 2017. As the period for which the visa was granted has expired and because the applicant is no longer a member of the family unit of Ms Kaur, he does not satisfy this purpose. There is also arguably no compelling need to remain in Australia for this particular purpose.

23. The applicant told the Tribunal that he would like to study on his own and work towards his own future. His submissions to the Tribunal were that he believed that he needed an overseas qualification to get a job when he returned to India.

24. As to the applicant’s desire and claimed intention to study, it is accepted that between 21 November 2016 and 5 March 2017 he has completed a General English course in Australia. The applicant further enrolled in an Advanced Diploma of Hospitality Management, which was to have concluded in April 2019. The representative’s submission to the Tribunal of 20 July 2022, includes an acknowledgement by the applicant that he failed to fulfill the requirements of attendance for this course, and only recorded 7.13 per cent attendance. The submissions also refer to claims made by the applicant at hearing, that his attendance at this course was impacted by depression and stress that arising from court cases lodged by Ms Kaur’s family against his family in India. The applicant claimed that this court case impacted his ability to study for two years. When questioned by the Tribunal, he confirmed that he did not have any medical evidence to support his claim. The applicant said he had approached his education provided for assistance towards end of 2018, but they refused and told him that there was nothing that they could do. It was his submission that instead they told him that he had to pay $6,000 or $7,000 or they would report him to the Department and they only gave him one day to come up with the money. The applicant further told the Tribunal that he had tried to explain the situation regarding his family in India, to his education provider and that he would have money soon, and begged them to tell the Department the correct information regarding his circumstances but he was reported anyway. The applicant had no contemporary corroborative evidence to support his claim that he had sought assistance from his education provider.

25. The applicant has not undertaken any study since 2018. He said that he had been in a state of confusion for several years. He had previously engaged an agent to apply for a student visa for him but they did not communicate with him about the process for a year and a half. He then tried other agents, but none of the agents would assist him. The applicant also claimed that the Department did not advise him or provide him with relevant assistance to obtain a student visa. The applicant also claimed that he was impacted by COVID-19, and that he did not think that he would be suited to online study so wished to wait to attend courses in person.

26. The Tribunal accepts that the applicant has provided evidence that Ms Kaur’s family made complaints to the police in India against the applicant and other members of his family in May 2016, alleging the harassment of Ms Kaur, demands made upon Ms Kaur for dowry and the keeping of relations by the applicant with another woman. It is accepted that this may have caused the applicant stress, but there is no evidence before the Tribunal to support his claims that he was unable to function to the extent that he was unable to attend his course or undertake any study. Further, the documents submitted indicate that the Commissionerate Jalandhar considered that the allegations contained in compliant UID No. 20161664 were non-proven as at 7 July 2016. Further, regarding another complaint no. 1762. D.C.P. dated 27 July 2016, the translation submitted, dated 12 November 2016, records that the S.H.O. P.S. Women, Commissionerate Jalandhar found that there was no necessity to take any action on the complaint. The documents that the applicant has submitted do not support his claims that this matter dragged into 2018, such that it would have impacted on his studies in his initial Advanced Diploma of Hospitality Management at Apex Institute of Education. In fact by 22 December 2017, according to the documents submitted, the applicant had filed with Ms Kaur a consent petition for divorce, he appears to have had the intention to move on from the relationship.

27. It is also not accepted that the applicant’s education provider would not provide him with any assistance and instead demands for payment from the applicant of $6,000 to $7,000 were made above his course fees. The Tribunal takes note of the fact that the applicant has not previously raised this claim in his submissions, and it is in fact conceded in his representative’s submissions dated 20 July 2022, that the applicant had previously expressed fault for not asking his education provider for a deferral of his course on compassionate or medical grounds. The Tribunal is further not satisfied, in the absence of any corroborative evidence, that an accredited Australian education provider would engage in this conduct.

28. The representative of the applicant has submitted that the applicant had emotional and financial difficulties impacting on his study generally, which have limited his ability to study post 2018. It is the expectation that applicants granted student visas will have sufficient funds for the duration of their study. If the applicant cannot afford to study in Australia it is not a compelling reason for him to be granted a visa. Further, as to any emotional difficulties arising from his separation from his wife, and the applicant’s oral claims to the Tribunal that he was hopeful and awaiting possible reconciliation, the Tribunal is not persuaded by these claims. There is no medical evidence to support that this impacted on the applicant’s mental health such that he was diagnosed with a condition, or that he was unable to study at all, and also it is again noted that the applicant  was the petitioner for divorce in the court documents submitted to the Tribunal.

29. It is accepted that the applicant may have made approaches to education agents to find further courses after 2018. It is not accepted that the applicant was unable to find anyone to assist him obtain enrolment in a course prior to the hearing date of July 2022. It is noted that the applicant has been consistently legally represented in this matter since 2016. The Tribunal also places no weight on the claim by the applicant that he expected the Department to provide him with advice as to his study options. This is not the role of the Department.

30. It is also accepted that the applicant was previously diagnosed with COVID-19 in 2021 and medically cleared by 28 September 2021. He then tested positive for COVID-19 on 27 April 2022. It is accepted that the applicant may have been ill for several weeks arising from these diagnoses. However, the Tribunal does not accept that they provide a reasonable explanation for the applicant not enrolling in any course between 2018 and July 2022. It does not accept in the absence of further medical evidence that the applicant was continuously ill. The Tribunal also does not accept that the applicant was scared to contact education providers about possible courses until notified of the Tribunal hearing for this reason.

31. The Tribunal also does not accept that the pandemic and the possibility of online classes explains the applicant’s lack of application for study. He clearly had problems with physical attendance at class in his previous attempts and it is not demonstrated that online participation would be more onerous. Further, even if the applicant could not complete some practical modules of his course, it is considered that through online study he could have made some progress towards the completion of the qualification that he claims he desires.

32. The Tribunal further notes that the applicant did not obtain his current offer of enrolment the Advanced Diploma of Hospitality until after he was invited to attend a further Tribunal hearing. When asked to explain the timing of the enrolment at the hearing, the applicant said that he was not aware that the Tribunal would ask him questions in relation to his enrolment and again submitted that he had a genuine desire to study. The Tribunal was not satisfied by this explanation, it is transparent from his statements to the Tribunal, and his representatives submissions, that the applicant was aware that he may be asked to demonstrate an intention to study. It appeared to the Tribunal that the applicant obtained enrolment for the purposes of a positive migration outcome, rather than his desire for the relevant qualification.

1. The Tribunal is not satisfied that the applicant’s evidence was reliable as his lack of progress and to the reasons why he has been unable to study for the many years he has been awaiting review. His long period of non-enrolment, and unsatisfactory previous, attempts do not persuade the Tribunal that he was genuinely desirous of obtaining Australian qualifications.

2. The Tribunal has considered the applicant’s evidence, however on the material before it does not consider that the applicant has a compelling need to remain in Australia, and places no weight on the applicant’s favour in this regard.

   The extent of compliance with visa conditions

3. The applicant claims that he has maintained compliance with his visa conditions. There is no evidence to dispute this.

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

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

5. The applicant claimed that he would be unable to obtain employment in India without a qualification. However, the Tribunal considers that the applicant came to Australia temporarily to accompany his former wife, not for the purposes of study. He has had the time to undertake the alleged contemplated study and obtained previous enrolments in courses but has not progressed to a qualification.  

6. The applicant still has study options available in his home country. He has not demonstrated that he was in financial hardship prior to arriving in Australia or that he was unemployable. In a statement he has submitted to the Tribunal related to his Indian court proceedings the applicant has set out that he was previously operating a visa consultancy business in India with his brother. The applicant claimed that he wished to support his parents in their old age. There is no evidence before the Tribunal that there is a current and pressing need for him to do so. They appear to be currently supporting him, as the applicant told the Tribunal that he had not worked in Australia for some time. The applicant’s family have been supportive of him following the breakdown of his marriage, and it appears that they will continue to provide him with support in the future, both emotional and financial. While it is accepted that the applicant does not yet wish to return to India, he claims that it is his intention in any event to do so in the future. On the material before it, the Tribunal it is not satisfied that the applicant will face significant financial, psychology or emotional hardship if he returned to India.

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

   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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

8. The applicant claims that he was not responsible for the breakdown of his marriage and that he himself was a victim of domestic violence. He alleges that the circumstances in which the ground for cancellation arose were out of his control.

9. To support his claims the applicant has submitted photographs of what he claims was a knife wound to his forearm delivered by Ms Kaur. As discussed with the applicant at hearing, the photograph is of a forearm and the applicant himself is not identifiable in the photographs. The photographs are not dated, and it appears from one of the photographs medical attention was provided to the wound in the form of stitches. The Tribunal has questioned the absence of any medical evidence to support the injury and when it was sustained, and he claimed to no longer have any records. The applicant claims that he did not report the matter to the police because he did not wish to create problems for Ms Kaur. The Tribunal finds it curious that the applicant has maintained this position even though she has reported his conduct to police and his representative has further submitted that the applicant was investigated by the police post separation due to claims of assault. As discussed with the applicant at hearing, the Tribunal is unsure what weight can be attributed to the photographs. It is not satisfied that they demonstrate that Ms Kaur was responsible for any aggressive behaviour against the applicant or that they are evidence of the claim that Ms Kaur wished to kill the applicant. A further photo provided by the applicant is of a man he alleged to be Garry, there is no way for the Tribunal to identify the man or the source of the photo. It is again not satisfied that it can place any weight on this photo.

10. The applicant further maintains that Ms Kaur was involved in a relationship with another man, Garry, and that for this reason she wished to end the relationship with the applicant.  The applicant has submitted a statement he provided for proceedings in India and screenshot of a text message that he claimed to have received from Ms Kaur in support. This screen shot, dated 31 December 2015, contains the following;

    Kulwinder  “I don’t wanna live with you anymore… You can say both houses Jalandhar and Doburji.. I’m letting Jalandhar know”

    Applicant “Kk fine thanks”

    The Tribunal does not accept that this text exchange corroborates the applicant’s claim that Ms Kaur was in a relationship with another man. It may indicate that Ms Kaur did not want to live with the applicant as early as December 2015, equally it appears that the applicant did not oppose this sentiment.

11. The Tribunal has also reviewed the Indian court documents submitted by the applicant. As previously set out the Tribunal accepts the claim by the applicant that Ms Kaur’s family made various legal allegations against him and his family in India following their separation in May 2016. It is also accepted that there is no evidence before the Tribunal of any adverse finding against the applicant in any Indian court. The Tribunal, however, is not satisfied that these documents demonstrate that the applicant was not responsible for the breakdown of the marriage, that he was a victim of domestic violence or that the events that lead to the breakdown of the marriage were circumstances beyond his control. The translation of Complaint No 1762- DCP 27 July 2016, indicates that it was a complaint regarding a demand of dowry from Ms Kaur and mistreatment by Mr Singh and his parents when she was in India. It makes a finding that no action is required. Yet, as far as events which took place in Australia, there is a reference only to some quarrel between husband and wife. The translated court documents for Complaint No 20161644, dated 24 May 2016, refer to allegations levelled being the demands of dowry upon Ms Kaur and the keeping of illicit relations by the applicant with some other girl after marriage. It is acknowledged that these allegations levelled were found not proved, it remains that the Tribunal is not satisfied that they corroborate the applicant’s claims in relation of him being a victim of violence or that the circumstances leading to the breakdown of the relationship were events beyond his control.

12. The applicant has conceded in his submissions to the Tribunal, and the Department, that Ms Kaur made a complaint to the Gold Coast Police and filed and application for an AVO for protection though the Court. Further that there was also a common assault charge against the applicant, which did not proceed. As to the AVO proceedings when the Tribunal questioned the applicant about these he claimed to be unaware as to whether any final orders were made, although he recalled attending Southport Magistrates Court. The applicant was asked about the content of the court orders and he said that he was told not to go within 100 metres of Ms Kaur, but he was not sure how long this was to last for. He claimed to have been told that if he wanted to get back together with Ms Kaur then the families were to talk to arrange it. When the Tribunal questioned the applicant as to whether he had consented to or defended the application, he said that he did not say anything. Pursuant to the provisions of s 359A of the Act, the Tribunal then discussed with the applicant information before it which was a copy of a Protection Order made at Southport Magistrates Court on 27 July 2016. It was noted that the application was filed by the police and the applicant was the respondent. The applicant was informed that the relevant information in the order was that it was recorded as being made by consent for a period of two years, and that pursuant to the order, the applicant was not to go within 100 metres of anywhere where Ms Kaur lives, stays or works or contact he by any means either directly or indirectly. The applicant was informed that the information was relevant as it indicated that he consented in an Australian court to an order not approach or contact Ms Kaur for two years, that these orders requiring him to live separately and apart from his spouse were not circumstances beyond his control and that his claims that he wished to repair the relationship with Ms Kaur and he was told he could do so through family were not correct. The applicant elected to respond immediately and said that he did not have an interpreter when he had attended court, he said that he had explained everything to the judge, he did not beat his wife or hurt her, her lawyer used everything against him in court, they did not listen to him and the court went against him. The Tribunal has considered this response, and accepts that the applicant is recorded as not having made an admission, yet the orders do not reflect a court finding against him as he alleges, they are recorded as having been made with the consent of the applicant. He agreed to orders keeping him separate from his spouse and as he was not to approach Ms Kaur directly or indirectly by any means, the advice he claims to have received that he could get back together with Ms Kaur through family is rejected.

13. Again pursuant to the provisions of s 359A of the Act the Tribunal invited the applicant to comment on information contained within a statement provided by Ms Kaur, contained within the Department file. The relevant information was that Ms Kaur had informed the Department that the reason for the marriage breakdown was that the applicant was having a relationship with another woman in India, and that he had only married her to go overseas. Further Ms Kaur claimed that the applicant was rude, angry and aggressive, that he had hit her, and that as a consequence of the behaviour she had ended up in hospital in May 2016. The applicant was advised that the information was important because it was not consistent with the reasons that he had offered for the breakdown of the relationship and if relied upon the Tribunal may not accept that the circumstances giving rise to it were not beyond his control. The applicant again elected to respond immediately and said that he was aware that Ms Kaur had gone to hospital in May 2016, but this was after he had relocated to Sydney and he was not aware of the reason for her admission. The Tribunal acknowledges that Ms Kaur records the date of her admission as after 17 May 2016. As to the claims that he was in a relationship with another woman, the applicant referred to proceedings commenced by Ms Kaur’s family in various Indian courts and maintained that they all said there was no such thing to support the complaint. The Tribunal also acknowledges that in documents produced by the applicant relating to Complaint No 20161644, dated 24 May 2016 in India, there was record of a finding of there being no strong proof to support the complaint against the applicant of keeping of illicit relations with some other girl after marriage. Despite these acknowledgements it remains that Ms Kaur has levelled similar allegations for the breakdown of the marriage against the applicant.

14. The Tribunal is not satisfied that it can make any firm findings on the basis of Ms Kaur’s untested allegations. Yet on the totality of the material before it the Tribunal is not satisfied that the evidence demonstrates that the applicant was a victim of domestic violence or that the events leading to the breakdown of the relationship, and the ground for cancellation were beyond the control of the applicant. Ms Kaur and the applicant each present the other as engaging in conduct not conducive to a genuine and continuing relationship. In circumstances where the applicant consented to a protection order preventing  him from residing with and contacting Ms Kaur for a period of two years from July 2016, it is not satisfied that in light of these consent orders and the alleged distress he maintained that the court proceedings in India caused him, that he had an ongoing intention or reconciling or resurrecting the marriage.

15. On the material before it the Tribunal makes no finding against, or in favour of the applicant, and gives this consideration neutral weight.

    Past and present behaviour of the visa holder towards the department

16. There is no evidence that the applicant has been uncooperative with the Department in the past, or with the Tribunal. The Tribunal gives this consideration some weight in favour of the applicant.     

    Whether there would be consequential cancellations under s 140

17. The applicant told the Tribunal that he did not have any partner or any dependents. Accordingly, the Tribunal places no weight on this consideration either in favour of or adversely against the visa remaining cancelled.

    Whether there are mandatory legal consequences

18. The applicant would need to return to India if his visa was cancelled. He would further be subject to s 48 of the Act which would limit his options for returning to Australia or applying for other visas. If the applicant himself did not take steps to return he could face consequence such as detention and removal from Australia.

19. If the visa is cancelled the applicant would continue to hold a bridging visa for a short time to allow him to finalise his affairs before he departed. Upon questioning by the Tribunal the applicant said that if the visa was cancelled and he had exhausted all avenues of review he would voluntarily depart Australia. In these circumstances, on his evidence, it is therefore unlikely that the applicant would face detention and removal.

20. The Tribunal gives this consideration neutral weight.

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

21. The applicant claimed that he did not have any fears of returning to India. There is nothing to demonstrate that Australia’s protection obligations would be engaged and this factor is given no weight in favour of the applicant.

22. The applicant did not advance any other relevant matters.

23. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not persuaded as to his commitment to further study. It is not demonstrated that he has a compelling need to remain in Australia, or that that there are reasons consistent with the original visa grant. The Tribunal has placed a neutral weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

24. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    decision

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Penelope Hunter
    Member