AYALA REYES (Migration)

[2021] AATA 2219

AYALA REYES (Migration) [2021] AATA 2219 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Carlos Andres AYALA REYES

CASE NUMBER:  2013319

HOME AFFAIRS REFERENCE(S):          BCC2020/940603

MEMBER:Joanne Bakas

DATE:16 June 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 16 June 2021 at 12:25pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – fact or circumstance no longer exists – member of family unit – secondary visa holder no longer in genuine and continuing relationship with primary visa holder – still legally married but lengthy separation with no communication – child currently in wife’s home country – COVID-19 travel restrictions – discretion to cancel visa – lengthy absence from home country and hardship if required to return there – greater difficulty in re-establishing relationship from there – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(a), (3)
Migration Regulations 1994 (Cth), r 1.12(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the basis that the applicant was the holder of a secondary visa and the decision to grant that visa was based, wholly or partly, on the existence of a particular fact or circumstance that permitted the grant of the visa and which no longer exists. That particular fact or circumstance was that the applicant was a member of a family unit of the primary visa holder as he was in a genuine and continuing relationship with Ms Farisyah Bahnan, as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994. 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 7 June 2021 via audio and video conference on MS Teams to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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(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?

   s.116(1)(a) - Circumstances permitting grant no longer exist

6. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied the circumstances which permitted the grant of the visa no longer exist.

7. While the applicant has not spoken with Ms Bahnan for over a year he is hopeful of a reconciliation especially as they have a two year child together. The child is currently in Indonesia with Ms Bahnan’s mother and due to COVID-19 restrictions they have not been able to return him to Australia. They separated about one and a half years ago but are still legally married.

8. Even though the applicant is still legally married to Ms Bahnan, given the length of time since the they have spoken, the Tribunal is satisfied that the relationship between the applicant and Ms Bahnan has ended.

9. 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

10. 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’.

11. At the hearing the applicant’s submissions included the following:

    a.He came to Australia initially as a student when he met Ms Bahnan.. The fact that they both got together prompted him to change his visa status in Australia. She was granted a career opportunity and he was willing to support this.

    b.Australia is a wonderful place to raise a family. 

    c.If he has to go back to Columbia he is worried that he will not be able to come and visit his sone as Columbia is an unstable country and financially it offers less opportunities. He is worried he will lose his son forever.

    d.He wants the opportunity to try to reunite with his son in Australia upon his return from Indonesia. His son has been there since about September 2019. They tried to organise their finances to have their son return to Australia in March 2020 with his grandmother but this did not eventuate because of COVID-19.

    e.Even though he has not had any contact for a year with his wife, the applicant is aware his son continues to live in Indonesia due to Ms Bahnan’s social media posts.

    f.His parents live in Columbia and he has some half-sisters on his father’s side.  He has no other family in Australia.  He has been in Australia for about 9 years and visited Columbia about 5 years ago.

    g.If he was to have to go back to Columbia he fears he will lose his opportunity to sort out the situation regarding his child. It will be much harder to manage this from Columbia.

    h.He did engage a solicitor to investigate his options.  However, he was advised that there is nothing he can do until his son returns to Australia and he cannot visit Indonesia due to COVID-19.

    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

12. The Tribunal notes that the applicant first arrived in Australia in March 2012 and has been granted various visa’s during his stay.  Most recently, the applicant was granted a Subclass 482 visa on 9 March 2019 as a secondary applicant, with the purpose of his stay in Australia being to live with Ms Bahnan (the primary 482 visa holder) as her husband. While they are still legally married, he has not spoken with Ms Bahnan for about a year and their relationship appears to have broken down.  There is no evidence before me of any reconciliation attempts despite the applicant’s willingness to do so.

13. His relationship with Ms Bahnan appears to be no longer continuing. Accordingly, the purpose of the applicant’s stay in Australia appears to have ceased to exist. On the evidence before it, the Tribunal is satisfied that the relationship between the applicant and Ms Bahnan has ended.

14. While the Tribunal accepts the applicant’s evidence that he is wanting to reconcile and make the relationship work, the Tribunal places some weight on the purpose of the applicant’s stay in Australia no longer existing. This weighs in favour of cancelling the visa.

    The extent of compliance with visa conditions and past and present behaviour of the visa holder towards the department

15. There is no evidence before the Tribunal that the applicant has breached any condition of his visa. Further, there is no evidence of a lack of co-operation with the department. The applicant promptly responded to the notice of intention to cancel her visa. Those matters weigh in his favour to not cancel the visa.

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

16. The Tribunal accepts the applicant’s evidence that if his visa is cancelled, he would find it very difficult to try to establish a relationship with his sone, upon his son’s return to Australia.

17. Further the Tribunal accepts the applicant’s evidence that returning to Columbia may cause some hardship as he has not lived there for some nine years.

18. The Tribunal accepts that the applicant would suffer some hardship (including psychological, emotional and financial) if the visa is cancelled given his circumstances and the Tribunal places some weight in the applicant’s favour on the hardship that may be caused by cancellation of the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

19. The ground for visa cancellation arose because the visa holder is no longer in a genuine and continuing relationship with the primary visa holder. 

20. The applicant’s evidence included that the relationship broke down but that he wanted to attempt a reconciliation. However, Ms Bahnan will not speak to him and has not done so for over a year.  While there is no evidence before me from Ms Bahnan, the Tribunal accepts the applicant’s evidence that he does not want the relationship to end.   

21. The Tribunal gives this consideration some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

22. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s.140 of the Act.  As such, this is not a relevant consideration to this case.

    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

23. In circumstances where the visa is cancelled, the applicant will no longer have suitable visa status to allow them to remain in Australia. He will thus become an unlawful non-citizen liable for detention under s.189 of the Act and removal under s.198 of the Act.

24. The applicant would also be subject to s.48 of the Act which would limit the potential to lodge further visa applications onshore in Australia.

25. As such, the Tribunal gives this consideration a little weight against cancelling the visa.

    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

26. The Tribunal notes that the applicant’s child is currently offshore in Indonesia without either parent.  As such, cancellation of the visa will not result in the immediate separation of the child from his father. However, the Tribunal acknowledges that the visa cancellation  may result in the separation of the child with his father in the future, should the child return to Australia to live with his mother.

27. The Tribunal’s consideration of this consideration is also balanced with the understanding that the child has Columbian and Indonesian citizenship and as such the child may be able to be reunited with the father in Columbia.

28. On balance, the Tribunal attributes some weight in favour of not cancelling the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. As the visa subject to cancellation is not a permanent visa, this is not a relevant consideration to this case

    Any other relevant matters

30. There are no other relevant matters evident or raised by the applicant.

31. In considering the circumstances as a whole, the Tribunal is satisfied, on balance, that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. The Tribunal accordingly concludes that the visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Joanne Bakas
    Member