Skorokhodov (Migration)

[2019] AATA 3673

Skorokhodov (Migration) [2019] AATA 3673 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hila Sveta Skorokhodov

CASE NUMBER:  1906860

HOME AFFAIRS REFERENCE(S):           BCC2017/1859232 BCC2019/6303 BCC2019/6306

MEMBER:Jennifer Cripps Watts

DATE:21 August 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 457 (Temporary Work (Skilled)) visa.

Statement made on 21 August 2019 at 2:42pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – relationship ceased – genuine intention to study – full time student – evidence provided upon review – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cl 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 March 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 the decision to grant the visa, based on the applicant being a part of the family unit (as defined in r.1.12 of the Regulations) of the primary visa holder, no longer exists. 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. On 22 March 2019, the applicant lodged a review application, within time, and provided the Tribunal with a copy of the delegate’s decision.  The applicant was invited to attend a hearing scheduled for her on 20 August 2019.  A written response to the invitation was received indicating that the applicant would be attending and that she required a Hebrew interpreter.

4. The applicant appeared before the Tribunal on 21 August 2019 to give evidence and present arguments.  The applicant and Tribunal were assisted by an interpreter in the English and Hebrew languages.

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) of the Act.

7. 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?

8. 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.

9. Evidence has been provided, and it is not in dispute, that the applicant was granted a Subclass 457 visa as a member of the family unit of the primary visa holder, Mr Francesco Franco, and that the applicant is no longer a member of Mr Franco’s family unit because their de facto relationship ended in December 2018, about four months after they arrived onshore.

10. The Tribunal is satisfied that the particular relevant circumstance on which the decision to grant the visa was based, that is, that the applicant was a member of the primary visa holder’s family unit, no longer exists.

11. For this 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

12. 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’.

13. The Tribunal has had the benefit of speaking face to the face with the applicant.  She was co-operative, gave spontaneous and cogent evidence and is considered by the Tribunal to be highly credible.

14. The applicant gave evidence at the hearing that she and the primary visa holder, Mr Franco, had been in a relationship for three years, from December 2015, and that they spent the majority of the relationship living in Italy together before they both came to Australia holding 457 visas for two years relating to Mr Franco’s job.  The applicant gave oral evidence that it was always her intention, even before they arrived in Australia, to study English while she lived in Sydney with Mr Franco.

15. The applicant commenced study at Duke College in early March 2019, before the visa was cancelled.  It has been submitted by the applicant that she wishes to stay on in Australia and apply for a student visa to continue and complete that study and that she mistakenly thought, on advice she received from a friend, that she needed to wait until her Subclass 457 visa was cancelled before she could apply for a student visa.  The applicant discovered, once her visa was cancelled, that she could not apply for a student visa onshore and was devastated.

16. On 13 February 2019, it is noted on the Department file that a Notice of Intention to Consider Cancellation (NOICC) of her visa was sent to the applicant by email to the gmail address she had provided on 4 February 2019 when updating her details.  It is noted in the Department file that the NOICC was re-issued on 21 February 2019 due to missing 457 regulations in the original NOICC, sent on 13 February 2019. A response was required within five working days.  None was received.

17. The applicant gave oral evidence at the Tribunal hearing that she received the NOICC and, on the basis that she was sure that she needed to wait until the visa was cancelled, did not respond.  On 27 February 2019, she says she commenced an online student visa application so she could have it ready to submit when the visa was cancelled, which is accepted by the Tribunal. 

18. The Tribunal accepts that relying on the incorrect advice about waiting until cancellation had occurred, albeit unwise, was an honest mistake on the part of the applicant.  It is accepted that it was the applicant’s intention to study while living her with her partner and, when that relationship broke down, continue with that plan and to apply for her own visa, a student visa.

19. Having commenced her student visa application online on 27 February 2019, the applicant then went back to the incomplete application (after her visa was cancelled on 19 March 2019) on 22 March 2019 to complete and submit it.  In the Tribunal’s mind, this confirms the applicant’s claim that she believed she needed to wait until the visa was cancelled to lodge the student visa application.  There can be no sensible reason why she would have waited to lodge a student visa application if she knew that she could not do so onshore without a substantive visa.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

20. The applicant’s Subclass 457 visa was granted because she met the secondary criteria, including the requirements in cl.457.321 of Schedule 2 to the Regulations:

    457.321

    The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

21. The visa was granted to her on 21 June 2018 for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, while he held a Subclass 457 visa granted on the basis of an approved nomination.

22. Evidence has been provided, and is accepted by the Tribunal, that the applicant has not been a member of the family unit of the primary visa holder since 31 December 2018.  The purpose of the applicant’s travel and stay, holding a Subclass 457 visa, ceased to exist on 31 December 2018.  As mentioned above, the applicant did not dispute this.

23. Since the relationship with the primary visa applicant ceased, the applicant has lived in Australia for a purpose other than that for which her visa was granted. 

    Extent of compliance with visa conditions

24. The cancellation of the visa was not on the basis of non-compliance and consideration of compliance is not relevant in this case.

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

25. While some degree of hardship or inconvenience may be caused, the applicant has only resided in Australia for about a year and, in the view of the Tribunal, is unlikely to have established strong ties.  She has no family in Australia.  Her parents and one brother live in Israel and a second brother lives in Canada.

26. The applicant holds a Bridging Visa E with work and study rights.  It is accepted that the applicant likes living in Sydney, that she currently has a job with a cosmetic shop called Gold Elements, which has outlets in Chatswood Chase and Darling Harbour, and that since 11 March 2019 she has been studying English at Duke College and hopes to complete two years of general and business English, finishing in April 2021.

27. The applicant is well settled and employed, with clear intentions and documentary evidence, relating to her English studies as a full time student at Duke College from 2019 to 2021.  The applicant said she is currently working three or four days a week and has spoken to her boss at Gold Elements about reducing her work hours in the future to ensure compliance with her student visa conditions, if she is granted a student visa, and they have indicated they will support her in those changed circumstances.

28. While it is the Tribunal’s view that the applicant does not have strong ties to Australia, she works and studies and there would seem to be no utility in requiring the applicant to leave Australia, possibly subject to a three year exclusion period, to apply for a student visa for a course the Tribunal is satisfied that she has already paid for and has already been studying for around six months. 

    Circumstances in which the cancellation arose

29. The applicant no longer meets the requirements for holding a 457 visa as a member of the family unit of the primary visa holder, Mr Franco.  Her relationship with Mr Franco ended in late December 2018 and from that time she was no longer a member of his family unit which was the basis upon which her visa was granted.  The visa applicant did not regularise her immigration status between the time the relationship with Mr Franco ended, in late December 2018, to the time when the visa was cancelled, on 22 March 2019.

30. The Tribunal is not satisfied that there were circumstances beyond the applicant’s control relating to the reason for cancellation.  However, as discussed earlier in this decision, the Tribunal accepts that not regularising her immigration status while she still held a substantive visa (by applying for a student visa), while not beyond her control, was an honest mistake for reasons already given.

    Past and present behaviour towards the Department

31. There is no evidence before the Tribunal indicating that the applicant has been unco-operative with the Department.  She has kept her contact details up to date, as she is required to do.  And although the applicant did not respond to the NOICC, reasons have been given and are accepted why this was the case.  This has been discussed earlier in the decision.

    Whether there would be consequential cancellations under s.140

32. The Tribunal is satisfied that cancellation of the applicant’s visa would not, in her circumstances, result in any consequential cancellations under s.140 of the Act.

    Mandatory legal consequences

33. If the visa is cancelled, the applicant will become an unlawful non-citizen and, if she does not depart voluntarily, may be detained under s.189.  Under s.48 of the Act, she would be unable to lodge another visa application, with some limited exceptions. A three year re-entry ban will apply if the visa is cancelled.  If the applicant applies for a new temporary visa that she is entitled to apply for, she can ask the Department to set aside the re-entry ban, if there are compassionate or compelling circumstances to put it aside and grant the visa.

    International obligations, including non-refoulement and best interests of children

34. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

35. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103].  It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

36. The applicant has not made any claim or provided any evidence indicating that she cannot return to her home country, India, because she would be subject to a risk of harm.  The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.

    Other relevant matters

37. The applicant was told at the hearing that if the Tribunal was to set aside the decision to cancel her visa that the sponsor’s obligations to her would continue.  She was asked if she genuinely intends to lodge the student visa application and said she does.  The Tribunal is satisfied that, in setting aside the decision to cancel the applicant’s visa, the applicant genuinely intends to lodge the student visa application soon after and considers that the applicant should be given the opportunity to lodge the student visa application onshore as she has paid for and is already part way through the course.  There is no evidence before the Tribunal that suggests, or causes concern, that the applicant is intending to apply for a student visa for the purpose of maintaining residence in Australia and not as a genuine student. 

38. The Tribunal has considered the effect of setting aside the cancellation.  Clearly the applicant no longer meets the Subclass 457 visa requirements on the basis of being a member of the primary applicant’s family unit.  Although the applicant is no longer residing in Australia for the purpose for which the visa was granted, she planned to live and study in Australia before arriving onshore with her former partner and is following through with the plan to study.  The Tribunal is satisfied this has remained consistent, both while she held the 457 visa and after it was cancelled. 

39. The Tribunal has given significant weight, in exercising its discretion, to the applicant’s plan to study while residing in Australia with her partner holding a Subclass 457 visa, her intention to lodge her own student visa application and that she commenced her study on 11 March 2019 before her visa was cancelled.  The Tribunal believes the applicant should be given an opportunity to lodge the student visa application and await an outcome while onshore and that there is the potential, in her circumstances, for the student visa to be approved ceasing and replacing her Subclass 457 visa.  If the applicant does not apply for or is not granted a student visa, or breaches any of her visa conditions, the Department may consider whether her Subclass 457 visa should be cancelled under a prescribed ground that applies in this applicant’s circumstances.

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

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Jennifer Cripps Watts
    Member