Abdo (Migration)

[2023] AATA 3992

Abdo (Migration) [2023] AATA 3992 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Mohamed Ahmed Abdo

REPRESENTATIVE:  Mr Ricky Bustos

CASE NUMBER:  2310788

HOME AFFAIRS REFERENCE(S):          BCC2022/135554

MEMBER:Amanda Mendes Da Costa

DATE:20 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 20 November 2023 at 1.25pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – visa granted on fact or circumstance that is no longer the case – no longer member of family unit of primary visa holder – separated from wife and unlikely to reconcile – wife and children’s application for permanent residency in progress – regular child support payments and agreement for video contact and future personal visits – best interests of children – work in regional area, professional certification and entitlement to register – mandatory legal consequences – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - 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) on the basis that he was no longer a member of the family unit of the primary visa applicant, Mrs Nourhan Ibrahim Ibrahim Elzanati (the PVA). 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. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments.

4. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

5. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the review.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

7. The applicant was represented in relation to the review, with his representative also participating in the hearing.

8. The documentation provided to the Tribunal for the purpose of the review, includes the following:

   ·Notice of request for provisional order for case hearing, dated 9 December 2021.

   ·Skills assessment dated 19 November 2018.

   ·Tax invoice, Australian Health Practitioners Regulatory Agency, dated 14 August 2023.

   ·Written submissions dated 28 February 2022.

9. 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

10. 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.

    Applicant’s evidence at the hearing

11. The applicant is a national of Egypt who is currently 36 years of age. The applicant married the PVA in February 2017 in Egypt. Both applicants are qualified as pharmacists in that country. From 2013 to 2017 the applicant lived and worked in Saudi Arabia where he was employed by a pharmaceutical company. After his marriage, the applicant returned to Saudi Arabia with the PVA, who also gained employment for a pharmaceutical company there. The applicant and PVA’s eldest child (a son) was born in Egypt in September 2019 and their youngest son was born in Saudi Arabia in September 2020. The applicant and PVA continued to live in Saudi Arabia until they were granted Skilled Regional (Provisional) (subclass 489) visas (on 5 November 2019) and the applicant completed his employment contract.

12. The applicant and PVA separated when the family returned to Egypt on 1 November 2021 and the PVA and the children went to live with her parents. Given that the applicant was aware that he, the PVA and their children had been granted visas to enter Australia, he became concerned that the PVA would remove the children from without his prior knowledge and permission. For this reason, he filed a court application in Egypt on 9 November 2021, seeking an order preventing the PVA from removing them from that country. On 7 December 2021, the PVA was informed of this application.

13. On 10 December 2021, the PVA left Egypt (with the children) and travelled to Dubai and then to Australia. She and the children have been living in Australia since December 2021.

14. On 13 December 2021, the applicant obtained a court order preventing the removal of the children from Egypt. However, he subsequently discovered that it was too late from preventing this from occurring. Although he and the applicant had separated, he decided to travel to Australia  in January 2022 in order to be near his children whom he loves.  He also considered that he would be able to obtain employment in Australia as a pharmacist.

15. The applicant arrived in Australia on 16 January 2022, where he was questioned by Australian Border Force officers about his arrival in the country at a date later than the PVA and their children. He was eventually permitted to enter Australia and travelled to Adelaide where he and the PVA had originally planned to live. He subsequently discovered from members of his extended family in Australia that the PVA and the children were living in Geelong, and he followed them to Victoria.

16. The applicant is currently living in Warrnambool where he has gained employment as a pharmacy intern with a large pharmacy retailer. In October 2023, the applicant undertook  oral and written examinations provided by the Australian Health Practitioners Regulatory Agency (AHPRA), the passing of which is a prerequisite for registration as a pharmacist in Australia.

17. Since January 2023, the applicant has been making regular child support payments through the Child Support Agency and prior to that he made several payments directly to the PVA for the financial support of the children.

18. With the assistance of a Family lawyer, the applicant has reached agreement with the PVA to allow him weekly contact (by video) with his children. The PVA has agreed to allow him in person visits with the children when they have become accustomed to contact with him. The applicant is prepared to make an application to the Family Court for parenting orders allowing him ‘in person’ contact with his children.

19. The applicant will be able to live with family members in Egypt if his visa is cancelled and he is required to leave Australia. He will also be able to gain employment as a pharmacist or with a pharmaceutical company if he returns to Egypt. However, he is concerned that if he leaves Australia, the PVA will not continue to facilitate his contact with his children by video and that he will not have the opportunity to further develop his relationship with his children through in person visits.

    Post hearing submissions

20. Following the hearing the applicant provided the Tribunal with a Results Certificate (dated 14 November 2023), issued by the Australian Pharmacy Council, which shows that the applicant passed his written exams and is now entitled to register (without restrictions) as a pharmacist with AHPRA.

    Does the ground for cancellation exist?

21. 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.

22. The Tribunal notes that on 18 January 2022 the Department was advised that the applicant was no longer in a relationship with her, and that the relationship had ended on 18 January 2022.

23. On 21 February 2022, the Department sent the applicant a Notice of Intention to Cancel (NOICC) his visa under s 116(1)(a) of the Act, on the basis that he was no longer in a relationship with the PVA.

24. The applicant responded to this NOICC (in writing) on 28 February 2022 and 1 March 2022 in which he admitted to no longer being in a relationship with the PVA.

25. The Tribunal is satisfied that the visa was granted to the applicant on the basis that he was the member of the family unit of the PVA, which fact or circumstance 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’.

    Purpose of the applicant’s travel and stay in Australia

28. The purpose of the applicant travelling to Australia was to accompany the PVA as a member of her family unit. Although the applicant and PVA were both qualified as pharmacists in Egypt, the decided to nominate the PVA as such for the Subclass 489 Skilled Regional (provisional) visa, because her English language ability was superior to that of the applicant.

29. However, this purpose is no longer applicable because the applicant and PVA’s relationship has ended, and they are unlikely to reconcile.

30. The Tribunal gives this consideration significant weight in support of cancellation of the visa.

    Extent of the applicant’s compliance with visa conditions

31. There is no evidence before the Tribunal to suggest that the applicant has not been compliant with his visa conditions whilst he has been living in Australia.

32. The Tribunal gives this consideration some weight against cancellation of the visa.

    Degree of hardship that may be caused

33. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to Egypt he will be required to leave his current employment and the prospect of gaining employment in Australia as a pharmacist after being registered with AHPRA. However, more importantly, he will be separated from his children and will no longer have the opportunity for future ‘in person’ contact with them.

34. However, the Tribunal notes that the applicant’s parents and siblings continue to live in Egypt, and he is able to stay with family members there upon his return.  The applicant also continues to be qualified as a pharmacist in Egypt and has the opportunity to gain employment in that profession in Egypt.

35. The Tribunal has given this consideration some weight against cancellation of the visa.

    Circumstances in which the ground of cancellation arose

36. The Tribunal is satisfied that the circumstances  in which the ground of cancellation arose was the breakdown in the marital relationship of the PVA and applicant and their separation when they returned to Egypt from Saudi Arabia in early November 2021. The Tribunal further notes that the applicant and PVA have not since reconciled.

37. The Tribunal has given this consideration some weight in support of cancellation of the visa.

    Past and present behaviour of the applicant towards the Department

38. The Tribunal accepts that the applicant’s behaviour towards the Department and its officers has been cooperative and that he replied to the NOICC and other requests for information, in a timely manner.

39. The Tribunal gives some weight to this consideration against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

40. The Tribunal is not satisfied that there would be any consequential cancellations under s 140 of the Act if the applicant’s visa is cancelled.

41. The Tribunal therefore gives this consideration no weight either in support of or against cancellation of the visa.

    Whether there are mandatory legal consequences

42. 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 because as a citizen of Egypt he will be able to return to that country. 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 applications.

43. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s 116 from applying for any visa not prescribed for the purposes of s 48 while in the migration zone.

44. The Tribunal gives this consideration significant weight against cancellation of the visa.

    International obligations including non-refoulement and best interests of the child

45. The Tribunal notes that the applicant and PVA have two young children together, who are living in Australia with their mother. They are likely to continue living in Australia and have applied for permanent residency here. The applicant makes regular Child Support payments for the financial support of his children and currently spends time with them (via video) on a weekly basis. The applicant intends to seek the agreement of the PVA or a court order to enable him to increase the amount of time he spends with his children and for this contact to be ‘in person.’

46. The Tribunal accepts that it is in the best interests of the children to have a positive and ongoing relationship with their father. Whilst the Tribunal acknowledges that the children could continue to have contact with their father via video, even if his visa is cancelled and he is required to leave Australia, it does not consider that such an arrangement is likely to foster the relationship and is not in the best interests of the children.

47. Accordingly, the Tribunal finds that Australia’s international obligations to protect the best interest of the applicant’s children, as a primary consideration, would be breached as a result of the cancellation of the visa.

48. The Tribunal gives this consideration significant weight against cancellation of the visa.

    If the visa is a permanent one, whether the applicant has strong family, business, or other ties in Australia

49. As the applicant’s visa is not a permanent one, the Tribunal does not give any weight to this consideration either in support of or against cancellation of the visa.

    Any other relevant matters

50. Following the hearing the applicant provided the Tribunal with the result of his recent oral and written pharmacy examinations. The Tribunal notes that he has passed these examinations and is now qualified to register as a pharmacist with AHPRA. The Tribunal considers that the applicant’s qualifications and role as a pharmacist (particularly in the regional area where he lives and works) is of significant benefit to the community.

51. The Tribunal gives this consideration significant weight against cancellation of the visa.

    Conclusion

52. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

53. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Amanda Mendes Da Costa
    Member