Thakur (Migration)

[2020] AATA 3273

Thakur (Migration) [2020] AATA 3273 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aminder Thakur

CASE NUMBER:  1933855

HOME AFFAIRS REFERENCE(S):          BCC2019/2385408

MEMBER:Vanessa Plain

DATE:24 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 24 June 2020 at 1:35pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had ceased to be the spouse of his wife– no extenuating circumstances beyond the applicant’s control –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F,116
Migration Regulations 1994 (Cth), rr 1.12, 2.07, Schedule 2, cl 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 November 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(aa) on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist. 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 appeared before the Tribunal on 22 June 2020 to give evidence and present arguments.  

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi 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)(aa). 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?

   Ground for cancellation

   The ground for cancellation considered in by the delegate was as follows:

   Section 116 - Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (aa)The decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists;

   (2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

7. A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

   Particulars of the ground for cancellation

8. On 18 May 2017, the applicant lodged a Student (subclass 500) visa application as a dependant of his then spouse, Ms Shabnam Chopra, the primary visa holder.  The application was initially refused, but ultimately granted by the Department on 15 April 2019, because the delegate was satisfied that the applicant was the spouse of Ms Chopra and a member of Ms Chopra’s family unit in accordance with the Act and the Migration Regulations 1994 (Regulations). 

9. Paragraph (2)(a) of regulation 1.12 of Regulations 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
   
   

   To be a member of the family unit of Shabnam Chopra 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...]

   Clause 500.311 requires as follows:

   The applicant is a member of a family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person and was included in:

   (i)the primary person’s applications under subregulation 2.07AF(3); or

   (ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or

   (b)the applicant became a family member of the family unit of the primary person:

   (i)after the grant of the student visa to the primary person; and

   (ii)before the application was made.

10. The applicant was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder as he was in a genuine and continuing relationship with Ms Chopra, his spouse.   

11. Information before the delegate indicated that the Department received information that the applicant’s relationship with his wife broke down in 2017, indicating that he was not in an ongoing and mutually exclusive relationship with his wife since that time.  ON 2 May 2019, the applicant lodged his own student visa application, as a primary student visa holder.  He declared in his application that his marital status was ‘separated.’

12. Information before the Department indicated that the applicant’s divorce from Ms Chopra was finalised on 16 June 2019 in the Federal Circuit Court of Australia. Based on the Family Law Act 1975 (Cth), the Federal Circuit Court of Australia must be satisfied that the applicants to that proceeding have lived separately and apart for at least 12 months, with no reasonable likelihood of resuming married life, in order to grant the divorce.

13. The aforementioned material further indicated that the applicant’s relationship with Ms Chopra had broken down prior to the grant of his dependant Student visa application on 15 April 2019 and on that basis, the applicant had ceased to be the spouse of his wife and a member of her family unit as prescribed by reg 1.12(2)(a).

14. Based on this information, there appeared to be grounds for cancelling the applicant’s visa under s 116 (1)(aa) of the Act because it appeared that at the decision to grant the applicant’s dependant student visa was based on the fact he was in a genuine and continuing relationship with his wife at the time, which apparently was not the case.

15. On 15 December 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa.  He responded in writing on 21 and 28 October 2019 respectively.  He did not admit that there were grounds for cancellation and provided the following reasons to the Department, as summarised by the Delegate:

    ·A statement from the visa holder in which he outlines his life before arriving in Australia, his marriage to his former wife, and his journey to Australia.

    ·He stated ‘he was fully committed to (their) relationship’, and was shocked when, in May 2017, he found out that she had left him.

    ·He stated he was hoping for a reconciliation, and was distressed, and this took a toll on his health and work. He stated neither his wife, nor her parents ever told him that their relationship had ended, and he was shocked when he was served the divorce papers in May 2019.

    ·He claimed he had never sighted any confirmation of their divorce, and only found out that he was divorced when he received the Department’s Notice on 15 October 2019.

    ·He states he advised the Department that he had separated from his former wife when he lodged his own Student visa application on 2 May 2019, claiming he ‘was (hoping) the divorce application (was) still in process and (he would) be informed about the same’.

    ·A psychologist report was submitted by the visa holder in support of his statement. In the report, the registered psychologist, Elizabeth Chetcuti, reiterates the visa holder’s version of events regarding his life before coming to Australia, his overseas education, his marriage, and the events leading to their separation in 2017. She states his symptoms are consistent with Depression and Adjustment Disorder, and recommends a treatment of 10 therapy sessions over 3 months with her.

16. At the hearing, the applicant stated that he signed the ‘divorce papers’ on 9 May 2019.  He said further that he knew he had to sign the documents within 30 days (of having received them) and he waited until that time to sign, so on that basis he thinks he received the divorce papers on 8 or 9 April 2019.  

17. On the basis of the admissions made by the applicant as set out in paragraph 16 hereof, the Tribunal is satisfied that at the time of the grant of the dependant student visa on 15 April 2019, the applicant did not satisfy the definition of a ‘spouse’ under s 5F of the Act, because the applicant knew, on 8 or 9 April 2019, that his relationship with his wife had irretrievably broken down and he was not in a continuing and mutually exclusive relationship with his wife on 15 April 2019. 

18. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(aa) is made out. 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

19. 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’.

20. The applicant provided extensive reasons in his responses to the NOICC as to why his visa should not be cancelled, as summarised by the Delegate, as follows:

    ·‘(He) genuinely believed that (he) and (his) ex-wife had a chance of reconciliation’.

    ·‘(He) was not aware that (his) ex-wife had started the divorce proceedings and one-sided divorce is a possibility’.

    ·‘Even before receiving the divorce papers (he) had already applied for the student visa. Had (he) not been a genuine student (he) would not have done so’.

    ·‘(He has) tried to do everything by the law. In (his) first student visa application (which was refused), (he) had put (his) marital status as separated. This was in May 2019 before (he) received the divorce papers and even knew that (his) wife had started the divorce proceeding one sided [sic]’.

    ·‘He has lodged a Student visa application on his own (on 31 July 2019), which is currently being assessed by the Department, and ‘(he) should be given a chance to study in Australia so that (he) can build (his) own successful career’.

    ·‘(He has) been a victim and (has) gone through a lot of mental stress. (He has) this one chance of putting things right’ and requests the Department ‘to give (him) one more chance by not cancelling (his) visa’.

    Purpose of applicant’s travel to and stay in Australia

21. The applicant was granted a Student (TU 500) visa as a dependent (spouse) for the purpose of being able to accompany and remain in Australia temporarily with the primary visa holder, Ms Chopra, with whom he was married.

22. The applicant contended that he decided to lodge his own student visa application  for the purpose of furthering his own career and that he is a genuine student.  The Tribunal has had regard to evidence of the applicant having enrolled in a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology at Everest Institute of Education Pty Ltd.

23. The Tribunal acknowledges that while the applicant’s purpose of travel to and stay in Australia has changed since he arrived, and that there has been a change in his circumstances which has clearly contributed to his change in purpose, it is clear that the purpose for which the visa was granted did not exist at the time it was granted.

24. The Tribunal places weight on the fact that the applicant in his evidence at hearing acknowledged being in receipt of divorce papers prior to the grant of his visa on 15 April 2019.  That admission is inconsistent with the applicant’s statement to the Department in his NOICC response, that he received the divorce papers in May 2019. 

25. As the applicant has ceased to be the spouse of the primary visa holder, the Tribunal considers that the purpose for which the visa was granted has ended and there is no legitimate immigration reason for the applicant to continue to hold the dependant student visa.

26. The Tribunal affords this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

27. There is no evidence before the Tribunal to suggest that the applicant has breached any of his visa conditions.  The Tribunal gives this consideration a little weight against cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

28. The applicant has lived in Australia for nearly five years and has commenced studies in the automotive courses set out above.  The Tribunal acknowledges that he may have formed social and employment ties was would be prejudiced by the cancellation of his visa and the this may case him some emotional and financial hardship.  However, the Tribunal notes that there is no evidence before it to suggest that the applicant could not pursue studies in his home country.

29. The Tribunal notes the Delegate’s statement that if the student visa is cancelled, this may result in the applicant not being able to complete his treatment, proposed by the psychologist in her report, which may cause him some hardship. The Tribunal notes that this was not pressed bv the applicant at the hearing and there is no evidence before the Tribunal that the treatment has commenced, nor that it could not be undertaken in the applicant’s home country.

30. The applicant stated that he was supporting his wife initially, and this meant that he could not financially return home to visit his family and his future has been spoiled by the marital breakdown.  He stated that the divorce causes him stress and some depression.  He stated that he wants to get a student visa so he can study and secure his future. 

31. There is no evidence that any family members in Australia will be adversely affected by the cancellation of the applicant’s visa. However, the Tribunal acknowledge that the applicant will suffer some hardship and gives this consideration some weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

32. The circumstances in which the ground for cancellation arose are described above.  Information before the Department provided that the applicant was not a member of the primary applicant’s family unit, as their relationship had broken down prior to the grant of his Student visa on 15 April 2019, and therefore did not meet criterion 500.311 of the Regulations.

33. At the hearing, the applicant stated that he signed the ‘divorce papers’ on 9 May 2019.  He said further that he knew he had to sign the documents within 30 days (of having received them) and he waited until that time to sign, so on that basis he thinks he received the divorce papers on 8 or 9 April 2019.  

34. On the basis of the admissions made by the applicant as set out in paragraph 33 hereof, the Tribunal is satisfied that at the time of the grant of the dependant student visa on 15 April 2019, the applicant did not satisfy the definition of a ‘spouse’ under s 5F of the Act, because the applicant knew, on 8 or 9 April 2019, that his relationship with his wife had irretrievably broken down and he was not in a continuing and mutually exclusive relationship with his wife on 15 April 2019. 

35. The decision to grant the applicant a student visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist at 15 April 2019. 

36. While the Tribunal acknowledges the separation and divorce took an emotional toll on the applicant, the Tribunal is not satisfied that there were extenuating circumstances beyond the applicant’s control that led to the ground for cancellation arising.

37. The Tribunal affords this consideration significant weight in favour of cancelling the visa holder’s

    The visa holder’s past and present behaviour towards the Department

38. The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

39. The Tribunal gives this consideration a little weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

40. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

41. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent them from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude them from being granted a visa for a specific period of time in the future.

42. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.

    Australia’s international obligations

43. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.

    Any other relevant matters

1. There are no other relevant matters before the Tribunal. 

2. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reason for the breach of the visa condition was not due to a matter that was outside the control of the applicant or due to extenuating circumstances. 

3. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Vanessa Plain
   Member