Tamir (Migration)

[2020] AATA 4345

Tamir (Migration) [2020] AATA 4345 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maralmaa Tamir

CASE NUMBER:  2001128

HOME AFFAIRS REFERENCE(S):          BCC2019/3347563

MEMBER:Donna Petrovich

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 September 2020 at 3:11pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – fact or circumstance no longer exist – member of family unit – separated with primary visa applicant – consideration of discretion – status of relationship – divorce not sought – considered married under Mongolian law – possibility of reconciliation – 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 15 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a Mongolian woman who first arrived in Australia on 30 October 2018 on a Student (Subclass 500) visa.  The applicant told the Tribunal that she had enrolled, but had not studied and that the enrolment had been cancelled. The delegate cancelled the visa on the basis that the applicant had not complied with all visa conditions as she was no longer in a relationship with her partner Ganzorig Ganbold, the visa having been granted on the basis that she was a member of a family unit as the secondary applicant on this visa.

3. The applicant appeared before the Tribunal on 19 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband who told the Tribunal that he had not seen his wife for over 12 months and considers the relationship over. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

4. The Delegate cancelled the visa under s.116(1)(a) on the basis that the applicant’s circumstances had changed: her Student visa was granted on the basis that she was a member of the family unit of her former partner, the primary visa applicant. 

5. The Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 10 December 2019, to which she responded.  The applicant claimed in her response that the relationship had broken down and the couple had separated for a period of 4 months but they had a “past, present and future together, and that their separation is not permanent”.  It was not made clear in this submission that they had got back together.  The Delegate, having considered the applicant’s response, considered that the grounds for cancelling the visa outweighed the reasons for not cancelling, and cancelled the visa on 15 January 2020. 

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

7. The applicant appeared before the Tribunal via telephone hearing as a result of COVID-19 restrictions. The hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

8. 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

9. Under s116 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?

10. 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.

11. In her response of 10 December 2019 to the NOICC, the applicant acknowledged that the circumstances under which she was granted the visa had changed; that while she was in a relationship with the primary visa applicant at the time of application and was married under Mongolian law to the primary applicant, they had in fact separated for a period of time (approximately four months). At the Tribunal hearing, the applicant agreed that this had been the case, but told the Tribunal that although they did not live together during the week, her husband stayed with her each weekend at her Sydney address. When questioned about her husband’s living arrangements during the week, his work, and his living arrangements, her responses were unconvincing, vague and not plausible. The Tribunal gives no weight in favour of the applicant in this regard.

12. The Tribunal is satisfied that the ground for cancellations in s.116(1)(a) exists. As that ground does not required mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.        

13. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

14. The applicant told the Tribunal that she had not been enrolled since she had been in Australia, but had intended to enrol in English language and Master of Laws as she told the Tribunal that she had a Bachelor of Law qualification obtained in her home country. She told the Tribunal that she held an enrolment in Scott’s College in March 2019, but because of relationship breakdown her visa was cancelled.  The applicant received the NOICC on 10 December 2019, to which she responded on the 14 December 2019. The applicant told the Tribunal that she and her husband had planned study together, but this had not happened.  Her husband initially studied Business Administration and that he had come to Australia first and then her visa was granted on 28 September 2018.

15. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course and has not maintained a relationship with the primary visa holder as required by her visa. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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’.

18. The Tribunal has considered the applicants’ evidence provided at the hearing along with the documentation provided to the delegate. The information provided to the Tribunal at the hearing has been considered by the Tribunal in its exercise of discretion as outlined above.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel and stay in Australia

19. The applicant told the Tribunal that she had come to Australia as a secondary applicant on a Student visa to join her husband who had come to Australia to Study Business Administration.  The applicant told the Tribunal that she intended to continue her studies and wished to undertake a Bachelor of Laws after undertaking English Language studies.  The couple were married in July 2017 in Mongolia, and both the applicant and her applicant told the Tribunal that they had not sought a divorce and continue to be considered married under Mongolian law.

20. The applicant told the Tribunal that they had reconciled as a couple and that they live together at the weekend. The Tribunal asked the applicant about the circumstances of the relationship and the applicant provided inconsistent and implausible evidence in relation to the living arrangements, and could not provide plausible evidence, and did not have knowledge of her husband’s working arrangements, location, or his role at work.  The Tribunal did not accept that the evidence provided was sufficient to prove that the couple had reconciled and were living together albeit at the weekend. The Tribunal placed no weight in favour of the applicant.

21. The primary visa holder told the Tribunal that it was understood by the family of the couple that they were no longer together and had not been in a relationship for over 12 months, and in his view there was no possibility of reconciliation. The Tribunal accepts the evidence that the relationship has broken down and places some strong weight against considering exercising discretion not to cancel.

22. As the secondary applicant of a Student visa, the applicant does not comply with the visa condition to be part of a family unit and live together in a relationship. The Tribunal accepts that the applicant is no longer in a relationship with the primary visa holder, and places significant weight against the applicant in this regard.         

    The Tribunal has carefully considered the evidence provided by the applicant and the reasons she submitted regarding her wish to stay so that she can study her Master of Laws. On the evidence submitted to the delegate and the applicant’s oral submission to Tribunal explaining the breakdown in the relationship which she told the Tribunal had now been reconciled.  The Tribunal has some sympathy for the applicant in her desire to study a Master of Laws to continue her education, but her husband who appeared at the hearing as a witness denies that the couple have ever reconciled and that they have not spoken or seen each other for over 12 months.  It would appear on balance that they are no longer together but have not yet sought a divorce. The Tribunal considers the evidence provided and accepts that it is more than likely that the applicant is no longer part of a relationship and in considering this accepts that Ms Tamir’s visa was granted so that she could accompany the primary visa holder to Australia and that this relationship on the balance of evidence has ceased. Given the circumstances as outlined above, the Tribunal gives no weight in the applicant’s favour. 

    
    The extent of compliance with visa conditions

23. The applicant has not complied with the conditions of the visa on the basis that as a secondary applicant, the applicant joined her husband and was granted visa as a secondary applicant visa which was dependant on her continued relationship with the primary applicant. It appears on the balance of the evidence that this relationship has not been maintained and is not ongoing.  The Tribunal in considering this gives no weight in favour of the applicant.

    Degree of Hardship that may be caused

24. The Tribunal invited the applicant to comment on any potential hardships that may be caused should her visa be cancelled and that she be required to return to Mongolia. The Tribunal heard that the applicant has family in Mongolia and that she could return to her family as they remained in contact and that she would be made welcome by her family, and gave no reason that returning home to Mongolia would not be possible.  

25. The applicant told the Tribunal that she would like to continue her studies to gain her Masters of Laws in Australia as this would be a highly regarded qualification internationally, and whilst the Tribunal has some sympathy for the applicant in this regard, it would not be impossible for her to continue study in her home country as she has previously. The Tribunal in considering this understands that some hardship and disappointment would be felt by the applicant and potentially her family.  The Tribunal finds that the applicant would not be subjected to any additional emotional or psychological hardship than experienced by others under the circumstance where a relationship has also broken down.  In this regard the Tribunal places some weight in the applicant’s favour.

    Circumstances in which ground of cancellation arose

26. The applicant told the Tribunal that she was married in Mongolia in July 2017, and that her husband had arrived in Australia prior to her arrival and that he had commenced studying Business Administration.  The applicant joined her husband and was granted visa as a secondary applicant which was dependant on her continued relationship with the primary applicant.

27. The Tribunal heard that there was conflict in the relationship and that the couple had separated for three to four months after arguing over her studies. The applicant told the Tribunal that after five months she and the primary visa holder had reconciled. The applicant told the Tribunal that her husband worked away cleaning building sites in Residential Developments.  She did not know where he lived during the week but told the Tribunal that he returned home to her residence at the weekend and that they hoped to have a family in the future after she had completed her studies. The applicant works as a cleaner and her sister in Melbourne has also assisted her financially during her separation.  The applicant submitted that her husband pays her rent and visits her every weekend and they are now reconciled. The Tribunal in considering this, found that these submission to be inconsistent, and were not substantiated by provision of additional material and not corroborated by the witness. The Tribunal places no weight in favour of the applicant in this regard.  

28. The Department sent a NOICC on 10 December 2019 and gave the reason for cancellation as the applicant ceasing ‘to be either a spouse or a de-face of [the primary visa holder]’ and therefore ceasing ‘to be a member of their family unit as prescribed by reg 1.12(2)(a)’.

29. The applicant asked her husband Ganzorig Ganbold to appear as a witness and provide evidence at the hearing, he told the Tribunal that he and his wife were estranged, that they do not live together and there is little chance of reconciliation as they have not been in contact for over 12 months.  He denied knowing where his wife lived and told the Tribunal that he had not spoken to her for over 12 months and did not pay her rent on the Sydney property. The Tribunal has considered this evidence and places some weight against the applicant in this regard.

30. The Tribunal has carefully considered the circumstances in which the cancellation arose and is sympathetic to the situation that the applicant has found herself in.  However, when viewed in the context of the applicant’s visa conditions the Tribunal places weight against the applicant in the regard that the circumstances for which the visa was granted no longer exist on the balance of the evidence provided. Therefore, the Tribunal gives no weight in favour of the applicant in this regard.

    Past and present behaviour of the Visa holder towards the Department   

31. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings, although the Tribunal has reason to doubt the evidence provided and found the applicant’s submission vague and not credible. The Tribunal gives no weight in favour in this regard.

    Whether there would be consequential cancellations under s.140

32. There is no evidence that there would be consequential cancellations if the applicant’s visa is cancelled and the Tribunal gives this no weight.

    Mandatory legal consequences

33. There would be mandatory legal consequences, upon cancellation of the visa, and the Tribunal notes that the visa under consideration has already expired. The applicant would become unlawful and subject to the possibility of detention, although she would also be eligible to apply for a bridging visa. The applicant would be subject to the provision of s.48 of the Act which limits the application for other visa the applicant would otherwise be entitled to apply for whilst in Australia. The Tribunal has considered the restrictions this would impose upon the applicant and as such gives this some weigh in favour of the applicant.

    Any international obligations

34. There is nothing before the Tribunal to indicate that there are any international obligations to consider.

35. The Tribunal has carefully assessed the relevant factors, both individually and cumulatively, including the evidence raised by the applicant and her estranged husband during the hearing.  The cancellation of the applicant’s visa is based on the relationship breakdown, as the applicant is no longer a member of Mr Ganbold’s family unit, as is required to be the holder of the dependent student visa.  Based on the evidence before the Tribunal, namely the evidence submitted to the delegate and the applicant’s submission to the Tribunal at the hearing along with the submission provided by her witness and estranged husband Mr Ganbold.

36. The relationship broke down as a result of domestic disputes which arose over her studying and their subsequent separation, and continued living separately, which according to her husband has no chance of reconciliation. In consideration of whether discretion should be exercised, in relation to the  cancelation  of the visa, the Tribunal has given limited weight to the factors that have been assessed in the applicant’s favour, including the issues raised by the applicant around the reconciliation of the relationship as canvassed above, which her husband who appeared as witness denies has ever been the case.     

    The Tribunal has concluded the circumstances in which the ground for cancellation arose outweighs the consideration of other factors in which ground of cancellation arose. The Tribunal is satisfied that the factors in favour of the cancellation of the visa outweigh those other considerations.

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.