485 비자를 신청할 때 주신청자가 있고 배우자는 dependeant라고 해서 동반자 둘 사이에 자녀가 있을 경우 자도 동반비자를 받을 수 있습니다.

485 비자가 그란트된 다음에 한가족이 즐거운 생활을 하면 살다가 어떤 사유가 있어 둘이 헤어질 경우 특히 주신청자의 배우자의 비자는 어떻게 될까요?

주신청자가 더이상 부부 사이 또는 사실혼 관계가 아니라고 이민성에 통보를 하면 배우자의 비자는 취소 (cancellation)이 됩니다. 이때 바로 취소되는 것은 아닙니다. compelling reason 이라고 해서 어떤 특별한 사유 (취소하면 안되는) 있다면 이것으로 취소를 면해 달라고 요청을 해 볼 수 있습니다. 그럼에도 불구하고 취소가 되었다면 AAT에 재심을 요청할 수 있습니다. 불행히도 재심에서도 패소되면 할 수 없이 35일 안에 떠나야 합니다. 

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass  485  (Temporary Graduate) – member of the family unit – parties divorced in Australia – contact with child in Australia – Parenting order – rental obligations and other expenses – best interests of the child – decision under review affirmed

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 3 July 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass  485  (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a national of India, born in December 1992. He was granted the visa as a secondary applicant in December 2022 (동반비자그란트). In June 2024 the applicant was issued with the Notice of Intention to Consider the Cancellation (NOICC) of his visa(비자취소통보). It is reported that the applicant did not respond to the NOICC (although he told the Tribunal he did meet with an Immigration officer and explained his situation) and his visa was cancelled in July 2024.
3. The applicant appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.(패소)

Relevant law

4. 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(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.
5. 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.

Does the ground for cancellation exist? (비자 취소 사유?)

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa in December 2022 on the basis of being a partner, and a member of the family unit of Ms Kaur. The visa was to be in effect until December 2025.
7. The primary decision record indicates that in May 2023 the Department received advice that the applicant’s relationship with Ms Kaur has ceased (남편과 헤어짐을 통보). The applicant was issued with the NOICC in June 2024 (통보후 약 한달후 비자취소하겠다고 이민성에서 연락)  but it appears that he did not respond to the Notice and his visa was cancelled in July 2024 (아무 연락이 없어 약 한달후 비자 전격 취소).
8. In oral evidence the applicant confirmed that his relationship with Ms Kaur had ended. He told the Tribunal that they had been married for three years and he had paid her fees but they are now formally divorced.
9. Having regard to the above evidence, the Tribunal finds that the applicant is no longer a spouse or de facto partner of Ms Kaur. There is no suggestion that the applicant met any of the alternative criteria of the definition of the term ‘member of the family unit’ or that he met the primary criteria for visa grant. The Tribunal finds that the applicant is no longer a member of the family unit of the primary visa applicant. The Tribunal finds that the Skilled visa was granted to the applicant on the basis of him being a member of the family unit of Ms Kaur and that fact or circumstance no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act.
10. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled. (관련 법에 따라 비자 취소가 맞는지 고려해야 함)

Consideration of discretion

11. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion (재심관의 재량이 고려될 수 있음). 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 (호주에 남아 있어야 하는 그 사유가 뭐냐?)

12. The primary decision record indicates that the applicant previously held a Student visa and had completed some study in Australia. He returned to Australia holding a Student dependent visa and was subsequently granted a Skilled visa.
13. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. The applicant was granted the visa as a secondary applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with his partner. However, he is no longer in a relationship with the primary visa holder. The Tribunal finds that the applicant is not able to fulfil the purpose of his travel and stay Australia because he is no longer in a relationship with the primary visa holder. (주신청자가 파트너였기에 호주에 남아 있었지만 더이상 부부사이가 아님)
14. The applicant told the Tribunal that he does not want to live in Australia but needs 1-2 years to be able to see his child. The applicant told the Tribunal that he has a child, who is 3 years old. He states that his mother in law took away the child through false claims (claiming the child would be returned after 6 months and that there would be regular contact but that has not happened). The applicant states that his wife’s family refused to intervene when they were getting the divorce. He states that initially his wife allowed him to have contact with his child but in the past six months his wife prevented that contact and she told him that he cannot see the child. The applicant states that he wants to save money to hire a lawyer and make an application for a Parenting order so he can see his child again. He has saved about $3000 and needs a few months to get more savings before he can start the process. (호주에 남고자 하는 이유는 3살된 딸을 보고 싶을 뿐 살고 싶은 생각은 없다. 변호사 비용을 더 벌어야 한다. 현재는 3천불이 있지만 돈을 더 벌어야 한다고)
15. The applicant confirmed that he presently does not have a Parenting order and has not commenced any proceedings to obtain a Parenting order. His evidence is that he is trying to save money to pay for the lawyer and the legal process and get a Parenting order that would enable him to access his daughter. The Tribunal accepts that the applicant wants to remain in Australia to see his child. However, the present circumstances are such that there are no arrangements at present that enable the applicant to see the child, the child’s mother has refused him access, there are no current proceedings on foot to enable the applicant to obtain a Parenting order and no certainty as to whether, or when such proceedings could commence. In such circumstances, the Tribunal is not satisfied there is a compelling need for the applicant to remain in Australia.

The extent of compliance with visa conditions

16. There is no evidence of any non-compliance with any visa conditions.

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

17. The applicant told the Tribunal that he needs time to be able to get a Parenting order to see his daughter. The Tribunal acknowledge that if the applicant is to leave Australia as a result of his visa being cancelled, he may not be able to obtain the Parenting orders. However, the Tribunal places wight on the fact that the applicant has not yet commenced the family law proceedings and, on his own evidence, is not able to commence these as he does not have sufficient funds. In the Tribunal’s view, the applicant’s ability to see his daughter in such circumstances is merely hypothetical (noting also that the applicant’s visa is due to expire in late 2025 and the parenting orders may or may not be obtained by that time).
18. The applicant told the Tribunal that he has a taxi contract for 2 years and has to pay nearly $1,600 a month for the taxi fees. He refers to his rental obligations, registration, various bills and other expenses. The Tribunal accepts that the applicant has financial obligations but is mindful that if the applicant is to leave Australia, he may not have to meet many of these expenses.
19. The applicant told the Tribunal that he does not want to live in Australia but wants to stay here for 1-2 years and wait until his daughter is a little older so he can communicate with her. The Tribunal is mindful that the applicant’s visa would have expired in late 2025 so that even if the visa is reinstated, the applicant will not have the two years to remain in Australia. The applicant suggested that he would apply for another visa but he has not been able to identify what visa he could apply for and how he could extend his stay in Australia. The applicant then said that he would leave Australia upon the expiry of his visa.
20. The applicant told the Tribunal that he wanted his mother to travel to Australia and to see his daughter with his mother, as it may help re-establish the relationship. However, he told the Tribunal that his mother has not travelled to Australia so far due to the high cost of the air ticket, the fact that she is looking after another grandchild in India and her physical needs. The applicant also stated that even if his mother could come to Australia, the police told him that he would still need a Parenting order before he can see his daughter. The Tribunal accepts that if the applicant’s visa is cancelled, it is unlikely that the applicant’s mother would travel to Australia but the applicant’s own evidence is that even his mother’s presence in Australia is unlikely to enable him to see the child.

Circumstances in which ground of cancellation arose

21. The ground for cancellation arises because the applicant, who was granted the visa on the basis of being a secondary applicant, is no longer a member of the family unit of the primary visa holder. The applicant told the Tribunal that there was no family violence in their relationship.

Past and present behaviour of the visa holder towards the department

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

Whether there would be consequential cancellations under s 140

23. There are no persons whose visa would be subject to consequential cancellation.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

24. 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 would 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 although there are limited types of visas for which the applicant may be able to apply onshore due to the operation of s. 48.

Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligation arise in this case.
26. The applicant refers to his close relationship with his child and states that his only wish is to see his daughter. In most circumstances, the Tribunal would accept that it is in the best interest of a young child to maintain a relationship with a parent. However, in this case the Tribunal notes the applicant’s evidence that he has not had any contact with his daughter for the past six months, that his former partner has not had any contact with him (and does not allow such contact between the applicant and his daughter) and that her family do not support such contact. While the applicant hopes to obtain a Parenting order in the future, his evidence is that he presently does not have the funds to commence the process and it is uncertain when (or whether) he will be able to make the application for the Parenting order and whether he will be successful in that application. There is no certainty that the process will be finalised before the applicant’s visa would have expired in late 2025 and the applicant has not satisfied the Tribunal that he will be able to extend his visa and remain in Australia for a longer period. The Tribunal also notes the applicant’s evidence that he and his former partner and child live in different states and the applicant has not suggested that he would move to live closer to his daughter. That is, at best, there will be sporadic and limited personal contact between the applicant and his daughter and otherwise electronic contact which can occur whether the applicant remains in Australia or lives elsewhere.
27. In such circumstances, the Tribunal does not consider that the best interests of the applicant’s minor child will be adversely affected by the cancellation of the applicant’s visa.

Any other relevant matters

28. The applicant has not identified any other matter.
29. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the circumstances that permitted the grant of the visa no longer exist and that there are grounds for cancelling the visa.
30. The Tribunal has formed the view that the applicant is no longer fulfilling the purpose of his travel and stay in Australia as he is no longer in a relationship with his partner. The Tribunal is not convinced there is a compelling need for the applicant to remain in Australia, given that he is unable to have contact with his daughter and, on his own evidence, is not presently able to make an application for a Parenting order that would enable him to have access to his daughter. For that reason also, the Tribunal has formed the view that the best interest of the applicant’s child would not be adversely affected by the cancellation of the applicant’s visa. This is because there has been no contact between the applicant and his daughter for the past six months, there is no certainty as to whether such contact could be negotiated by the family, whether the applicant will be able to make the application for the Parenting order and whether such an application could be successful before the applicant’s visa was due to expire and the applicant would be required to leave Australia.
31. The Tribunal is not satisfied the cancellation of the visa would cause hardship to the applicant. While the applicant referred to several financial obligations in Australia (such as rent, living expenses and taxi license), most of these would no longer apply if the applicant was to leave Australia. Significantly, the applicant repeatedly told the Tribunal that he does not wish to remain in Australia and that he intends to return to India upon the expiry of his visa or in 1-2 years. In the circumstances where the application itself, and the outcome of his application for parental rights is uncertain, the applicant has not established, in the Tribunal’s view, the hardship that would result from the cancellation of his visa rather than the expiry of his visa in late 2025.
32. The Tribunal acknowledges that there are circumstances that weigh against the cancellation of the visa, most notably, the opportunity for the applicant to re-establish contact with his daughter and the more limited visa options in the future. However, in the circumstances of this case, the Tribunal has decided to give greater weight to the fact that the applicant is no longer able to fulfil the purpose of his travel and stay in Australia.
33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass  485  (Temporary Graduate) visa.

긴 이야기 짧게 하면 재심에서 고려해 주지 않았습니다. 한가지 흥미로운 점은 아빠는 딸과 부인의 연락처를 6개월간 전혀 모르고 있다는 점을 아빠가 딸을 보고자 하는 심정을 크게 보지 않았다는 점입니다. 그래서 보통은 어린 아이가 있을 경우 고려를 해 주는데 반면 이 케이스는 그렇지 않았습니다. 결국 그는 호주를 떠나야 하는 상황이 18 October 2024 이후로 발생합니다. 딱 35일 안에 떠나야 하는 …

Last update: 2024년 10월 31일

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