Tortato Dos Santos (Migration)

[2019] AATA 847

Tortato Dos Santos (Migration) [2019] AATA 847 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tais Tortato Dos Santos

CASE NUMBER:  1832884

HOME AFFAIRS REFERENCE(S):           BCC2018/2772566

MEMBER:Jennifer Cripps Watts

DATE:18 January 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 18 January 2019 at 3:06pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – member of family unit – relationship with primary visa holder ceased – consideration of discretion – compliance with visa conditions – effort to regularise migration status – degree of hardship – seven months old child – opportunity to be included in visa of current de facto partner – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12; Schedule 2 cl.457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant made her review application on 8 November 2018 and provided the Tribunal with a copy of the delegate’s decision to cancel her visa. The delegate cancelled the visa under s.116(1)(a) on the basis that the circumstance which permitted the grant of the applicant’s Subclass 457 visa (as a member of the primary visa holder’s family unit) ceased to exist. Essentially, the relationship and the primary visa holder ended and the applicant was in a de facto relationship with someone else. 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 18 January 2019 to give evidence and present arguments.  

4. 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

5. 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):

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

   (a)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.

6. 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.

7. The applicant’s Subclass 457 visa was granted to her on 25 November 2016 on the basis that she met the secondary criteria because she was a member of the family unit (as defined in r.1.12 of the Regulations) of Lauro Fabricio De Almeida Santos: cl.457.321 that states:

   Reg 457.231

   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.

8. On 5 June 2018, the Department was informed that the applicant was no longer in a relationship with the primary visa holder, Mr Santos.

9. The visa was granted on the basis that the applicant was the spouse or de facto partner of Mr Santos.  This had ceased to be the case and, consequently, the circumstances which permitted the grant of the applicant’s Subclass 457 visa no longer existed.

10. As a result, on 20 August 2018, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) inviting comment or a response.  The applicant responded and said, essentially, that she was in a relationship with someone else, not Mr Santos, and gave reasons why she says she had not or could not have regularised her visa status to reflect her actual situation.

11. It is accepted by the Tribunal that the applicant has been in a relationship with a new partner, Mr Maestrelli, who is a 457 visa holder from Brazil, since July 2017.  His 457 visa has about two years to run at the time of this decision.  There has been evidence provided and it is accepted, that he is sponsored by and works for Dimension Data in Sydney.  Neil Evans, Field Services Manager at Dimension Data, has provided a letter dated April 2018 stating that they are willing to support an application for the applicant in this matter to be included as a dependant on Mr Maestrelli’s 457 visa, but they consider the costs of the application to be the responsibility of Mr Maestrelli.

12. On the evidence, the timeline of the applicant’s ceasing to be in a spouse or de facto relationship with Mr Santos and subsequently entering into a de facto relationship with her current partner, Mr Maestrelli, who is a Subclass 457 visa holder, and also her immigration status, is as follows.  The applicant:

    a.Originally came to Australia holding a student visa in 2014

    b.Was subsequently granted a Subclass 457 visa as a member of the family unit of Mr Santos in 2016

    c.Travelled offshore on 25 April 2017 for about a month and at the time said there were already difficulties in the relationship with Mr Santos

    d.Ended the relationship with Mr Santos in June 2017

    e.Commenced a relationship with Mr Maestrelli in around July 2017

    f.Conceived a child with Mr Maestrelli in around October 2017

    g.Rented a house with Mr Maestrelli in Caringbah on 13 January 2018

    h.Attempted to register the de facto relationship with Mr Maestrelli in March 2018 but had problems with paperwork

    i.Gave birth to a child on 21 June 2018 and provided a New South Wales birth certificate indicating Mr Maestrelli is the father

    j.Registered the de facto relationship with Mr Maestrelli on 21 August 2018, but did not make an application to be added to his 457 visa

    k.When her visa was cancelled on 7 November 2018, had not resolved her visa status, for example, by applying to be added to Mr Maestrelli’s visa as his de facto partner

    l.Was granted a Bridging Visa E on 20 November 2018. 

    Does the ground for cancellation exist?

13. 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.

14. The Tribunal is satisfied that the applicant is no longer a member of Mr Santos’ family unit and that she ceased to be a member of his family unit in around June 2017.  This is not in dispute.  The applicant confirmed at the hearing that she was no longer in a relationship with Mr Santos from June 2017.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. 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’.

17. The Tribunal has considered the discretionary matters having regard to the documentary and oral evidence.

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

18. Relating to the case before the Tribunal, the purpose of the applicant’s travel and stay was as a member of the family unit of a person who held a Subclass 457 visa.  She has not resided in Australia consistent with this purpose, in the Tribunal’s view, since mid-2017 when the relationship with the primary visa holder, Mr Santos, ended.

19. The applicant now claims she has a compelling need to stay in Australia because she is in another relationship now, with Mr Maestrelli.  A New South Wales birth certificate has been provided indicating that they have a child together.  The applicant was asked at the hearing, given her relationship history, whether Mr Maestrelli is the biological father and she said he is.  The applicant and Mr Maestrelli’s relationship was registered in New South Wales on 26 August 2018, a few days after the NOICC was sent to her.

20. The applicant and Mr Maestrelli both provided written evidence, and the applicant gave oral evidence, that she wishes to remain in Australia so their family can stay together.  The applicant was asked why, if the visa is cancelled and she has to return to Brazil, her de facto partner cannot accompany her as he is residing in Australia on a temporary visa and they are both Brazilians citizens.  They have both lived and worked in Brazil before.  She said they intend to apply for permanent residency and do not want to return to Brazil.  While it is accepted that the applicant has a wish to stay in Australia, the Tribunal is not satisfied that it is a compelling need.

    Extent of compliance with visa conditions

21. The applicant has been significantly non-compliant with her visa conditions, in the Tribunal’s view.  It is a requirement of cl.457.321 that (as the de facto partner of the primary visa holder) she is a member of the family unit (r.1.12) of a person who is the holder of a subclass 457 visa.  The applicant ceased to be a member of Mr Santos’ family unit no later than June 2017.   The decision to grant the applicant’s 457 had been made, wholly or partly, on a particular fact or circumstance (the de facto relationship with Mr Santos) and this no longer existed.  The Tribunal has no doubt that the applicant was aware the circumstance no longer existed.  She gave evidence at the hearing that the relationship was not good before she returned to Brazil for a visit in April 2017 and that when she returned to Australia in May 2017, shortly afterwards the relationship ended, in June.

22. The applicant claims that she and Mr Maestrelli (her current partner) attempted to register their de facto relationship in March 2018 (which is nine months after the applicant became non-compliant with her visa conditions) but they were notified their paperwork had not been received and, as a consequence, their New South Wales relationship certificate was not issued until August 2018. 

23. This would have been an ideal time for the applicant to make an application to be added to Mr Maestrelli’s 457 visa.  There is a letter on the file indicating dated April 2018 that Mr Maestrelli’s sponsor supported her being added.  The Tribunal is satisfied that the applicant was aware it was something she needed to do and she simply didn’t do it, claiming that it was because she was pregnant, working and it was a costly application and she was saving money for the baby.  Instead she continued to reside onshore holding the 457 visa she was granted on the basis of being a member of the family unit of Mr Santos, whose family unit she had not been a member of since June 2017.  Her visa was cancelled on 7 November 2018.

24. The applicant said at the hearing that she now understands how serious the matter is and expressed remorse.  The Tribunal was unmoved by this and she was told that it is her responsibility to ensure she is aware of and complies with all visa conditions while she is in Australia. 

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

25. The applicant and her current partner have a child who is about seven months old.  The applicant claims she will suffer financial, psychological and emotional hardship if she has to depart Australia with the baby because she would be separated from her partner and would find it difficult to obtain work and housing in her home country.  If the visa is cancelled, Mr Maestrelli does not have to remain in Australia.  He is residing here on a temporary visa and can leave anytime.  The family are all citizens of Brazil and there is no compelling reason, in the Tribunal’s view, that they could not all return there together.  That is, if the visa is cancelled, it does not necessarily mean that the applicant and Mr Maestrelli will be separated.  That would be a matter for the applicant and Mr Maestrelli.  It is accepted that there may be some degree of financial hardship if the applicant and her family had to depart Australia.  However, as they are temporary residents, it is reasonable to think that they may have turned their minds to the possibility that they would need to have the funds to depart Australia when the temporary visa or visas cease.

    Circumstances in which the ground of cancellation arose

26. Departmental 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.  There is no claim or evidence before the Tribunal that the ground for cancellation caused in circumstances that were beyond the applicant’s control.  She simply started a relationship with someone else and, for that reason, at least in part, she ceased to be a member of the primary visa holder’s family unit and no longer met cl.457.321.

    Past and present behaviour of the applicant towards the Department

27. The applicant’s behaviour towards the Department is of concern.  She was aware she was no longer in a relationship with the primary visa holder, Mr Santos, from at least June 2017 and did not inform the Department of her changed circumstances, instead residing onshore holding the visa for a further 16 plus months before it was cancelled.  The Department became aware, in June 2018, that the applicant was no longer compliant with r.457.321 because she had ceased to be a member of the family unit of Mr Santos.  The applicant was sent an NOICC on 20 August 2018.  In the Tribunal’s view, unless she had been put on notice by the Department that she was non-compliant with her visa conditions, it is likely the applicant would have continued to reside in Australia holding a visa she was not entitled to because she did not meet the requirements.  For more than a year she had not notified the Department of her changed circumstances relating to the requirements of cl.457.321 and there is little convincing evidence before the Tribunal that she was planning to.

    Consequential cancellations

28. There are no consequential cancellations that will result from the applicant’s 457 being cancelled.

    Mandatory legal consequences

29. The Tribunal considers the mandatory consequences of cancellation to be an intended consequence of the legislation.

30. If the applicant's visa is cancelled, she will have no visa and will become an unlawful non-citizen unless she is granted another visa.  The applicant may be precluded from making another application onshore unless permitted to do so by the Minister.

31. The applicant told the Tribunal that if her visa is cancelled, she is aware she will be required to leave Australia, resulting in temporary separation from her de facto partner.  As stated earlier in the decision, there is no requirement that her partner remains in Australia.  Notwithstanding that he has a 457 visa that doesn’t cease until 2021, he is free to depart any time he wishes and may choose, if that is what he decides, either to remain in Australia or accompany the applicant and their son back to Brazil if the applicant’s visa is cancelled. 

    International obligations, including refoulement and bests interests of any children

32. There is no claim made or information before the Tribunal that any international obligations would be breached as a result of the cancellation.

    If a permanent visa, whether there are strong ties to Australia

33. The visa is not a permanent visa.  However, the applicant said at the hearing that she and Mr Maestrelli plan to apply for permanent residency.  This has been noted and is given minimal weight in the applicant’s favour.   

    Other relevant matters

34. The Tribunal has significant concerns about the careless and even wilful manner in which the applicant has disregarded her visa conditions and requirements over a significant period of time and also her lack of engagement with the Department until she was informed in the NOICC of the intention to cancel her visa, on 20 August 2018.

35. In June 2017, she ceased being a member of the family unit of the primary visa holder under which her 457 was granted and did not seek to resolve her visa status.  She did not inform the Department of her changed circumstances.  At the hearing the applicant was told that the Tribunal considered it reasonable to think that she should be aware of visa conditions and the responsibility she had to advise the Department of any change to her circumstances and was asked to comment.  The applicant said she was very sorry and that the reasons she had not made a new application with her current partner is because she was pregnant, busy at work and that the cost was at the time beyond her means.  The applicant was told that the Tribunal did not consider these were satisfactory or acceptable reasons for continuing to hold a visa that she did not meet the requirements of and not take steps to notify the Department or regularise her visa status.  It also indicated, as the applicant had considered the cost of the application, that she had thought about applying and decided not to.

36. In the Tribunal’s view, the applicant has had ample time to regularise her visa status, that is, by applying to be added to Mr Maestrelli’s 457 visa as his de facto partner.  She has not been in a relationship with the primary visa holder of the visa she held previously for at least 18 months.  The applicant continued to reside in Australia for a lengthy period non-compliant with her visa criteria, for more than a year, before she was sent the NOICC in August 2018.  The Tribunal is not satisfied that the applicant had a genuine intention to make a new 457 visa application at that time, or at least lodge one in a timely manner.  

37. The applicant said at the hearing she now understands the seriousness of her non-compliance with her visa conditions and non-engagement with the Department.  When asked questions during the hearing about dates and visa conditions, the applicant was fairly vague on detail.  The Tribunal has reservations, in all the circumstances, about whether the applicant will in future make herself aware of any visa conditions that she may be subject to.

38. However, on balance, given that the applicant and Mr Maestrelli have a child together (who has already been added to Mr Maestrelli’s 457 visa) and Mr Maestrelli’s 457 visa does not cease until 2021, and because the applicant has said she will make an application to be added to Mr Maestrelli’s 457 visa, the Tribunal is inclined to give her the benefit of the doubt and substitute a decision not to cancel her visa for the purpose of allowing the applicant to make an application to be included in the Subclass 457 visa of her current de facto partner, Mr Maestrelli.

39. Considering the circumstances as a whole, and for the reasons given, the Tribunal concludes that the visa should not be cancelled.

    DECISION

40. 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