Ferreira Diamantino (Migration)

[2021] AATA 1158

Ferreira Diamantino (Migration) [2021] AATA 1158 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabio Ferreira Diamantino

CASE NUMBER:  2012263

HOME AFFAIRS REFERENCE(S):          BCC2019/6150725

MEMBER:Michael Cooke

DATE:29 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 29 January 2021 at 10:29am

CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – visa holder is ‘a member of the family unit’ of partner – genuine and continuing relationship with partner – ground for cancellation in s.116(1)(a) no longer exists –decision under review set aside

LEGISLATION
Migration Act 1958, ss 5CB, 116
Migration Regulations 1994, rr 1.09, 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) 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’s relationship had ended. 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 28 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner - Scott Lennon.

4. The applicant was represented in relation to the review by his registered migration agent - Mr Richard Shakenovsky – who attended the hearing.

5. 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

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). 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.

7. The applicant’s visa was granted because the application met, among other criteria, the secondary criteria for the visa on the basis that the visa holder is ‘a member of the family unit’ of Scott Lennon, as prescribed by paragraph (2)(a) of regulation 1.12 of the Migration Regulations 1994 (the Regulations), which states:

   (2)

   A person is a member of the family unit of another person (the family head) if the person:

   (a)

   is a spouse or de facto partner of the family head; or

   […]

   To be a member of the family unit of Scott Lennon as prescribed by reg 1.12(2)(a), the visa holder needs to continue to be either a spouse or de-facto partner of that person as defined respectively by sections 5F and 5CB of the Act, which state (in part):

   S.5CB ‘De facto partner’

8. De facto partners

   (1)

   For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)

   For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)

   they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)

   the relationship between them is genuine and continuing; and

   (c)

   they:

   (i)

   live together; or

   (ii)

   do not live separately and apart on a permanent basis; and

   (d)

   they are not related by family (see subsection (4)).

   […]

9. The applicant was granted the secondary visa on the basis that he was a member of the family unit of the primary visa holder as he was in a genuine and continuing relationship with Scott Lennon. As it appeared that the applicant had had ceased to be a de-facto partner of that person, it appears the applicant ceased to be a member of their family unit as prescribed by reg 1.12(2) (a).

   Does the ground for cancellation exist?

   s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

10. 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.

11. The Tribunal has had the benefit of additional information provided by the applicant and his de facto partner - Mr Scott Lennon.

12. The information discloses that following serious discussion and therapy with mental health professionals (and a period of self-reflection) the applicant and his partner have reconciled their de facto relationship. They explained, in oral evidence, that job pressure (they are both nurses) compounded with the erratic hours and the demands of that profession had contributed to a breakdown in their relationship. The applicant said that at times he was ‘mentally exhausted’ and not able to face inter-personal relationship conflict. In particular, both had difficulty basically communicating with each other. Following a sage decision to seek professional help, they discovered that historical personal issues (which had remained unresolved) had been at the forefront of some of their interpersonal conflict.

13. The applicant is a Brazilian and Mr Lennon is of British extraction. They suggested that historical cultural and familial difficulties (growing up with their sexual orientation) had diminished their ability to confront many of the day to day problems faced by people in a relationship. As Mr Lennon put it, clearly, they had to “learn how to be vulnerable’. He indicated that the therapy and counselling in which they engaged had been a ‘humbling experience’ and had led to a resolution of their relationship issues. The applicant said they both realized that ‘they loved each other and wanted to build a life together’. The applicant wishes to attend university in the future and enhance his nursing qualification to Bachelor of Nursing standard.

14. The Tribunal was further made aware from the additional information that the parties had made domestic arrangements pursuant to the requirements of reg.1.09A of the Act such as a new joint bank account and a joint lease. They have indicated to the Tribunal’s satisfaction that they ‘live together’ or ‘not separately and apart on a permanent basis’. They have a de facto partner like household and social relationship. The Tribunal finds that they share a strong commitment to each other and have supported each other through their relationship travails. They see their relationship as long-term.

15. The Tribunal is satisfied that the requirements of reg.1.09A and s.5CB of the Act are met. As can be seen from the accumulated evidence they have indicated that the breakdown of the relationship was temporary. They both claim they have been reconciled as a family unit and the applicant is (again) a ‘member of the family unit’ of Mr Lennon - the family head - pursuant to reg.1.12 of the Regulations. The Tribunal finds from the available evidence that this is the case.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) no longer exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

    Michael Cooke
    Senior Member