2214380 (Migration)

[2023] AATA 1920

2214380 (Migration) [2023] AATA 1920 (3 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2214380

MEMBER:K. Chapman

DATE:3 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa.

Statement made on 03 March 2023 at 4:43pm  

CATCHWORDS

MIGRATION – cancellation – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 - Skilled Employer Sponsored Regional (Provisional) – member of the family unit – relationship ceased – Restraining Order in place – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994

CASES

Abebe v Commonwealth (1999) 197 CLR 510
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision, dated 20 September 2022, made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa, under s 116 of the Migration Act 1958 (Cth) (‘the Act’).

2. The delegate cancelled the visa under s 116(1)(a) of the Act, on the basis that the applicant was no longer the member of the family unit of the primary visa holder, as they had separated. 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 was granted the Subclass 494 visa on the basis of being a member of the family unit of his wife, [Ms A]. She had earlier arrived in Australia with her children of previous relationships. On 23 May 2022, the Department was notified that the relationship between the applicant and [Ms A] had ceased [in] May 2022.

4. On 21 June 2022, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he was no longer a member of the family unit of [Ms A]. On 27 June 2022, the applicant responded in writing to the NOICC indicating that he was still married to [Ms A], although acknowledging they were not living together and a Restraining Order was in place against him.  

5. On 20 September 2022, the delegate cancelled the applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa. On 28 September 2022, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of the delegate’s decision with his application. The applicant also submitted material including, but not limited to, photographs, screen shots, a marriage certificate, an audio recording and a translation of portions of an audio recording. All submitted material has been duly considered by the Tribunal.

6. The applicant appeared by video conference before the Tribunal on 19 January 2023 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video. The applicant also confirmed to the Tribunal that no other person was providing evidence at the hearing. During the review hearing, the applicant submitted a copy of a Western Australia Family Violence Restraining Order dated [in] May 2022.

7. 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

8. 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). 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?

9. 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.

10. It is common ground that the Subclass 494 visa was granted to the applicant as a secondary visa holder on the basis that he was a member of the family unit of his wife, [Ms A]. It is also common ground that whilst they remain legally married, they do not reside together, they are not in contact and a Family Violence Restraining Order dated [in] May 2022 remains in place for the protection of [Ms A]. The central contentions of the applicant are that he remains legally married to [Ms A] and that she set him up to remove him from her residence and obtain the Family Violence Restraining Order.

11. The applicant conceded at the review hearing that he was no longer in a relationship with [Ms A], although they remain legally married. He has not been in communication with her since [May] 2022, when he was removed from her residence by the Western Australia Police Force. During the review hearing, the Tribunal canvassed with the applicant the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of their commitment to each other, with the applicant’s evidence demonstrating he is no longer in a spousal relationship with [Ms A] for migration purposes. Indeed, the Family Violence Restraining Order prohibits the applicant from contacting [Ms A], noting there is a further Court hearing scheduled in Western Australia in May 2023 regarding the future of that Order.

12. The Tribunal canvassed in detail the contents of an audio recording (and associated translation) that was taken by the applicant during his final day of residence with [Ms A], [specified] (into the evening of [a day in ] May 2022). Whilst he contends that this material proves [Ms A] set him up to get him out of her residence (the applicant was not a lease holder), the Tribunal raised with the applicant that it tends to suggest he was asked to leave the house by [Ms A], he refused to do so, the Police were called and he was escorted from the premises. The Tribunal also raised with the applicant that it cannot look behind the decision of the Court to impose the Family Violence Restraining Order dated [in] May 2022. The applicant doggedly maintained that he remained legal married to [Ms A] and that she lied to the Police to set him up. However, late in the review hearing, the applicant stated with respect to [Ms A’s] allegations to the Police, they are “…not officially fake but she said I’ll get you charged.” Following careful consideration, the Tribunal is of the view that no evidence of false complaint by [Ms A] is before it.

13. Having regard to the submitted evidence, it is apparent that the applicant is no longer in a spousal relationship with [Ms A] for migration purposes and he is not presently a member of her family unit. The Tribunal so finds. It follows that the decision to grant the Subclass 494 visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

14. 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

15. 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’.

16. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

17. The applicant worked as an [occupation 1] in Egypt prior to travelling to Australia to join [Ms A] and her children. He closed his business prior to departing his country of nationality. The Subclass 494 visa is the only substantive visa held by the applicant. [Ms A] is [an occupation 2], she has [number] children from prior relationships residing with her. The applicant resided with them for approximately two months after his arrival in Australia in early 2022. The applicant has had no contact with these children, or [Ms A], since he was removed by the Police from their residence in the early hours of [the day in] May 2022.

18. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 494 visa is to remain in this country as a member of the family unit of [Ms A]. On his own evidence, the applicant has not been in a relationship with [Ms A] since [the day in] May 2022, although they are still legally married. The Tribunal considers it a matter of significance that the applicant is no longer a member of the family unit of [Ms A] and that was the basis upon which he was granted the Subclass 494 visa, as a secondary visa applicant. For completeness, the Tribunal does not accept the applicant’s contention that the submitted evidence points to [Ms A] having set him up or lied to the Police.

19. The Tribunal notes that the applicant wishes to remain in Australia to study and work. He would like to pursue [occupation 1] qualifications, or a trade in Australia, although he noted the course fees were too high for temporary visa holders. However, it is inconsistent with the purpose of the Subclass 494 visa to allow him, as a secondary visa holder, to remain in Australia pending the pursuit of other visa options.

20. Following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia is no longer extant, given the aforementioned matters. On balance, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

21. The Tribunal has carefully considered whether the applicant has breached any visa conditions. There is no evidence before the Tribunal suggestive of the applicant having done so. This factor weighs moderately against cancelling the applicant’s visa.

22. The Tribunal has also had regard to the circumstances of the visa cancellation. The applicant concedes that the relationship between him and [Ms A] has concluded. Indeed, they have not been in contact since [May] 2022, when he was removed by Police from her residence. As outlined, the Tribunal does not accept there is evidence of [Ms A] lying to Police or setting him up to have him removed from the residence. Rather, the evidence before the Tribunal overwhelmingly indicates the relationship broke down in May 2022 and it was necessary for [Ms A] to obtain Police assistance to remove the applicant from her residence and to obtain a Family Violence Restraining Order in her favour.

23. Following careful consideration, the Tribunal is satisfied that the relationship of the applicant and [Ms A] broke down no later than [the day in] May 2022. There is no evidence to suggest that the applicant is the victim of family violence. Rather, the issuance of the Family Violence Restraining Order of [May] 2022, in favour of [Ms A], suggests she requires protection from the applicant. Whilst the Tribunal accepts that the applicant did not wish for the relationship to cease, it is clear that it did no later than [the day in] May 2022. The applicant’s Subclass 494 visa was subsequently cancelled because he was no longer the member of the family unit of [Ms A]. The Tribunal finds that the circumstances of the visa cancellation weigh strongly in favour of cancelling the applicant’s visa, given his relationship with [Ms A] broke down and he had to be removed from their residence by the Western Australia Police Force because he would not accept her request for him to depart her residence.

24. The Tribunal has also carefully considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to remain in Australia. The Tribunal notes the applicant maintained that he has a compelling need to remain in Australia because he sold his business in Egypt, has only his mother left in Egypt and he wishes to work and study in Australia. The Tribunal notes the applicant also must attend Court in May 2023 in Western Australia, regarding the future of the Family Violence Restraining Order made in favour of [Ms A].  

25. Whilst the Tribunal accepts that it is the preference of the applicant to remain working in Australia, it notes he has demonstrated the ability to run a successful [occupation 1] business in Egypt previously. The Tribunal, therefore, does not accept that the applicant will be unable to obtain work and re-establish himself in Egypt given his personal qualities and work experience. Therefore, the Tribunal is satisfied that the applicant would be able to re-integrate into Egyptian society after having been away for approximately one year. For completeness, the Tribunal does not accept there will be any hardship faced by [Ms A], or her children, if the applicant’s visa is cancelled, particularly given the existence of the Family Violence Restraining Order of [May] 2022.

26. Following careful consideration, the Tribunal does not accept that the applicant has a compelling need to remain in Australia. This is particularly so given he has limited ties to the community and has only casual employment as [an occupation 3]. Furthermore, whilst the applicant has a Court date in May 2023, it is open to him to approach the Department for a Bridging Visa to allow his attendance. Those proceedings are not such that require the applicant to remain in Australia on a longer term basis. Additionally, whilst the Tribunal accepts that if his visa is cancelled some hardship will be caused to the applicant, any such hardship weighs only slightly against the cancellation of his Subclass 494 visa, particularly given that he obtained it on the basis of being a member of the family unit of [Ms A] and he is clearly now no longer part of that family unit.

27. Regarding the applicant’s past and present conduct towards the Department, there is no evidence before the Tribunal to suggest that he has not been cooperative in his dealings with them. The Tribunal finds that this circumstance weighs moderately against cancelling his visa.

28. The Tribunal notes there is no evidence that any other person would receive a consequential visa cancellation, pursuant to s 140 of the Act, if the applicant’s visa is cancelled. This matter weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the circumstances.

29. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make visa applications in Australia and he would be liable to removal from Australia. He may also face some difficulty in obtaining a future Australian visa offshore. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of the legislation.

30. In relation to the consideration of Australia’s international obligations, there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. As previously described, the Tribunal does not accept there will be any significantly adverse consequences for the applicant, or any other person, if he departs Australia. The Tribunal has carefully considered Australia’s international obligations arising from the Convention on the Rights of the Child (CROC) with respect to the present case. Given that the applicant is no longer in a relationship with [Ms A], nor does he still have contact with her children, the Tribunal is satisfied that there will be no breach of CROC obligations if the applicant departs Australia. This circumstance weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

31. Further, there is no evidence before the Tribunal to suggest that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled. Accordingly, the consideration of Australia’s international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

32. The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other circumstance weighing either in favour of, or against, cancellation of his visa.   

    CONCLUSION

33. The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 494 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

34. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa.

    K. Chapman
    Member