Singh (Migration) [2018] AATA 4548 (5 October 2018)

Last Updated: 10 December 2018

Singh (Migration) [2018] AATA 4548 (5 October 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Sandeep Singh

CASE NUMBER: 1731172

HOME AFFAIRS REFERENCE(S): BCC2017/3785410

MEMBER: Amanda Mendes Da Costa

DATE: 5 October 2018

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 05 October 2018 at 1:36pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – member of a family unit – spousal relationship – relationship ceased – intervention order against applicant – loan debts – no significant ties in Australia – permanent employment – decision under review affirm

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 December 2017 made by a delegate of the Minister for Immigration and Border Protection 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) of the Act on the basis that the circumstances for the grant of the applicant’s visa no longer existed, his visa was liable for cancellation under s.116(1)(a) of the Act, and that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. 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 seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to the Tribunal.
4. The applicant appeared before the Tribunal on 3 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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)(a) of the Act. 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?

7. 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.
8. The applicant was granted the visa on 26 June 2017 on the basis that he was a dependent family member of Ms Prabhjot Kaur, who he married on 26 September 2014.
9. On 18 October 2017 Ms Kaur provided the Department with a Notification of changes in circumstances form, in which she stated:

Sandeep Singh and I are no longer in a relationship and I have taken intervention orders against him. I request DIBP to cancel his 457 visa which was granted on the 26/6/2017.

10. On 2 November 2017 the Department issued a Notice of Intention to Consider Cancellation (NOICC) regarding the applicant’s visa on the basis that when the applicant’s Subclass 457 visa was granted it was on the basis that he was a dependent family member of Ms Kaur, whom he married on 26 September 2014.
11. The Department advised the applicant that as this relationship had broken down the circumstances under which his visa was granted no longer existed i.e. that he was no longer a member of the family unit of the primary applicant. The Department invited the applicant to comment on the intention to consider cancellation of his visa.
12. The applicant responded to the NOICC by letter dated 15 November 2017. In that letter, the applicant provided details of the large debts which he had incurred on her behalf during their marriage.
13. On 4 December 2017 the delegate cancelled the applicant’s visa. She provided the following reasons for the decision:

The visa holder was granted his Subclass 457 visa, on the grounds that he met criteria 5457.321, which states that the visa holder is a family unit member of an individual who has satisfied the primary criteria for the grant of a 457 visa.

The visa holder was deemed to meet this criterion as he was in a continuing spousal relationship with Ms Prabhjot Kaur.

Subsequent to the visa holder’s arrival in Australia, the Department has been advised that his spousal relationship with the primary visa holder has broken down.

14. On 10 July 2018 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information about whether he was still in a spousal relationship with Ms Kaur, the primary visa applicant. The applicant was advised that the due date for his response was 24 July 2018. On 23 July 2018 the applicant requested an extension of time in which to provide the information. On 24 July 2018 the Tribunal wrote to the applicant advising that it had agreed to grant him an extension of time until 7 August 2018.
15. On 7 August 2018 the applicant provided the Tribunal with the following written information:
    • He married Ms Kaur on 26 September 2014. After they were married, she returned to Australia and he went to Dubai for work.
    • Although his wife was working in restaurants she didn’t make enough money to cover her expenses. Consequently he sent her money and even borrowed money from his parents and other family members to financially assist his life.
    • He arrived in Australia on 24 August 2017 and whilst their marriage was initially happy the couple began to experience “a few issues and misunderstandings”.
    • He had since attempted to reconcile with his wife but it had not been successful as his wife was not prepared to resume the relationship.
    • He lost his job in Dubai and was in debt as a result of his wife’s spending habits.
    • If he was required to return to India, he would not be able to find employment as he had no specific job skills.
    • If he was permitted to remain in Australia he would be able to undertake a course of study which will enable him to gain employment in India; he will start a small business there and pay off his debts.
16. The applicant’s oral evidence may be summarised as follows.
17. The applicant and his wife married in September 2014. Their marriage was arranged by their respective families. At the time of marriage the applicant was working in Dubai in the United Arab Emirates. He had been employed there as a truck driver since 2016. After they were married the applicant returned to Dubai and his wife came to Australia.
18. From 2014 to 2017 the applicant financially supported his wife by making payments to her every 3 to 6 months. He estimated that he had sent her a total of approximately AUD35,000. Although some of the monies came from his salary, he borrowed a significant amount from friends in his family’s hometown in India. In order to borrow this money his family have mortgaged land belonging to them. The applicant estimated that approximately 15 Lakh rupees had been borrowed to give to his wife and of that only 1 to 2 Lakh rupees have been repaid.
19. The applicant provided the Tribunal with the following documentation regarding the monies he claims to have borrowed:
    • Agreement for sale of land dated 8 September 2016.
    • Loan agreement between the applicant and others, dated 2 January 2015.
    • Loan agreement between the applicant and others, dated 16 June 2016.
    • Oriental Bank of Commerce, customer account ledger report from 1 January 2015 to 26 September 2017.
20. The applicant also provided the Tribunal with ANZ banking payment transfers to Ms Prabhjot Kaur dated 22 and 23 October 2017, evidencing payments of AUD2,000 by the applicant to his wife.
21. On 24 August 2017 the applicant arrived in Australia to live with his wife. The couple lived together for approximately two weeks before their relationship broke down. Ms Kaur wanted the applicant to leave their home and obtained an intervention order against him. The terms of this order prevent the applicant from living with or approaching his wife. The applicant has not seen or had any contact with her since they separated.
22. The applicant subsequently went to stay with a relative and has since moved in with a friend and his wife. Although the applicant was not required to make regular rental payments to his friend, he made a contribution to household expenses when he was able to do so.
23. The applicant is currently employed on a casual basis as a furniture removalist and in a car wash business. He works approximately 20 hours per week and is paid AUD16 per hour. In his spare time he stays at home.
24. If the applicant is able to remain in Australia he wishes to study, probably mechanics. Eventually he plans to return to India to gain employment or open his own business.
25. As the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Ms Kaur, the Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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.
26. 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

27. 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’.

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

28. The Subclass 457 (temporary Work (Skilled)) visa is a temporary visa which enables the visa holder to remain in Australia for a limited period. In the case of the applicant, his visa was valid for the period 26 June 2017 to 22 March 2019. The applicant was granted the visa as a secondary applicant. The purpose of his visa was to enable the applicant to remain with his partner. However, that relationship is no longer in existence.
29. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder.

The extent of compliance with visa conditions

30. There are no known instances of non-compliance with visa conditions by the applicant.

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

31. The Tribunal accepts that the applicant has incurred debt as a result of loans which he took out during his relationship with his wife. He told the Tribunal that he wished to remain in Australia to study and work and would have difficulty in obtaining employment in India. However, the Tribunal is satisfied that regardless of whether the visa is cancelled, the applicant will still owe the outstanding loan amount. The Tribunal also considers that if he returned to India, the applicant would have the support of his family.

Circumstances in which the ground of cancellation arose

32. The Tribunal accepts that the cancellation arose in circumstances where the applicant’s relationship with his wife broke down when she left the marriage.

Past and present behaviour of the visa holder towards the Department

33. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

Whether there would be consequential cancellations under s.140 of the Act

34. There are no persons whose visa would be subject to consequential cancellation under s.140 of the Act.

Whether there are mandatory legal consequences

35. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

International obligations including re-foulement

36. There is no evidence and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation.
37. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because 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. The applicant is no longer in a spousal relationship with the primary visa applicant. Whilst the Tribunal acknowledges that it may not be easy for the applicant to re-establish his life in India., it notes that since the breakdown of his marriage, he has formed no significant ties in Australia, is not involved in any course of study and is not engaged in permanent employment.
38. There are no other visa holders who would be affected by the cancellation. The Tribunal is satisfied that Australia’s international obligations would not be breached as a result of the cancellation. The Tribunal is not aware of any other breaches of the law or non-compliance with visa conditions.
39. The Tribunal places weight on the fact that the applicant can no longer fulfil the purpose for which the visa was granted, given that his spousal relationship with the primary visa applicant had ceased.
40. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

41. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Amanda Mendes Da Costa
Member