Jayasinghe (Migration)

[2023] AATA 1462

Jayasinghe (Migration) [2023] AATA 1462 (19 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jayasinghe Pathirannehelage Harshana Viduranga Jayasinghe

REPRESENTATIVE:  Mr Suresh Wickramasinghe (MARN: 0960532)

CASE NUMBER:  2206163

HOME AFFAIRS REFERENCE(S):          BCC2021/1398099

MEMBER:Damien O'Donovan

DATE:19 May 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 May 2023 at 1:14pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – relationship ceased – parties divorced – financial support to family – Temporary Activity Visa application – shared parenting arrangement – best interests of the children – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 36, 116, 359, 363
Migration Regulations 1994, Schedule 2, cls 408.229, 500.311; rr 1.03, 1.12, 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19^th April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 grounds that a fact or circumstance on which the grant of the visa was made, or partly made, no longer exists. 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 represented in relation to the review.

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(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.

   Does the ground for cancellation exist?

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

6. 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. The relevant fact or circumstance on the basis of which the visa was granted in this instance, under r 500.311(a), is that the applicant was a member of the family unit of the primary visa holder. The evidence before the Tribunal, which is not disputed by the applicant, indicates that that their marital relationship has broken down. It can be stated at the outset that there is little doubt in this instance that the statutory pre-condition for the exercise of the cancellation power exists; the key issue is whether the discretion to cancel should have been exercised or not. The facts of the case are as follows.

   Prior to entry into Australia

7. The applicant is a Sri Lankan national, born in ­­Kollupitiya, Western Province, Sri Lanka on 17^th February 1989. He and his former wife, Ms Dinithi Padmasiri Mampe Kankanamalage, were married at Siyane Koralya West, Gampaha, Sri Lanka, on 22^nd January 2015.  He has provided a copy of their marriage certificate, hand-written in Sri Lankan, along with a translation by an accredited translator.

8. The couple’s son and only child, Jayasinghe Mihasya Abhimaan Jayasinghe (‘Abhimaan’), was born in Kirulapana, Western Province, Sri Lanka on 14^th October 2017.

9. On 9^th January 2020, while still resident in Sri Lanka, Ms Kankanamalage applied to enter Australia on a Student (Post-Graduate Research) (class TU/subclass 500) visa, having won a scholarship to study for her PhD at UNSW Canberra. The applicant and their son were included on the application as members of the same family unit, as provided for by r 500.311(a). Mr Jayasinghe is listed on that application as having primary care and legal custody of Abhimaan ‘since the mother is applying as a student’.  The visa was granted on 23^rd January 2020, with Mr Jayasinghe and Abhimaan included as secondary entrants. The family arrived and entered Australia on the TU-500 visa on 10^th February 2020.  That visa is due to expire on 10th May 2024. 

   The separation, divorce, and cancellation of the applicant’s visa

10. In July 2021 it came to the Department’s attention that Mr Jayasinghe had separated from his wife and that a divorce order had been granted by the Federal Circuit and Family Court of Australia on 18^th June 2021, being due to take effect one month and one day from that date.   

11. The Delegate stated in their decision that ‘[A]s such, it appears that the visa holder’s relationship with the primary visa holder has ceased and he no longer resides with [Ms] Kankanamalage’. The delegate concluded that the basis for the grant of the applicant’s TU-500 visa, being that he was a member of the same family unit as the primary visa holder, no longer existed, and that there was, therefore, a prima facie ground for cancellation under s 116(1)(a).

12. On 5^th April 2022 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116 of the Migration Act 1958.  The NOICC informed Mr Jayasinghe that Ms Kankanamalage had notified the Department of the separation, and that this constituted grounds for cancellation of his visa.  He was informed that if his visa was cancelled, he may be rendered an unlawful non-citizen subject to detention and deportation.  In accordance with Department policy and procedural fairness principles, he was given 5 days to make comment or response.  Mr Jayasinghe did not respond to the NOICC, and on 19^th April 2022 the Department proceeded to cancel his visa and send him notice of its decision.

13. It appears the Delegate did not take into account the fact that the applicant has a 5-year-old son who would be affected by the cancellation decision.  The decision does not assess the child’s interests as a primary consideration in deciding whether to exercise the discretion to cancel the visa, and in fact does not reference him at all. In Departmental paperwork before the Tribunal, on the Priority Caseload Assessment form, the attendant officer responded ‘no’ to the question of whether there were any escalating factors present, such as an affected minor or dependant. 

    The Temporary Activity (subclass 408) visa application

14. On 19^th June 2021, one day after the divorce was granted, the applicant applied for a Temporary Activity (subclass 408) visa, and associated Bridging E (class WE) visa, under r 408.229(b) (Australian Government Endorsed Event) stream.  The bridging visa was granted on 4^th August 2022, and, as at the date of this decision, the substantive visa application is still pending.  In the cancellation decision the Delegate noted that, if the applicant’s TU-500 was in fact cancelled, he would be eligible to apply for the appropriate bridging visa to enable him to remain onshore while awaiting the outcome of that application. It appears this factor was given some weight in the exercise of the discretionary power to cancel Mr Jayasinghe’s visa.

    Application and submissions to the Tribunal

15. On 26^th April 2022, Mr Jayasinghe applied for review of the s 116 cancellation decision by the Migration and Refugee Division of the AAT. He appointed an Authorised Representative in relation to the review: Mr Suresh Wickramasinghe (MARN 0960532).

16. On 6^th December 2022, the Tribunal sent Mr Jayasinghe a letter under s 359A and s 359(2) of the Migration Act inviting him to comment on or respond to information before the Tribunal. In particular, it invited the applicant to comment on the information indicating  that he was no longer a member of Ms Kankanamalage’s family unit. The letter explained that this may be a reason for affirming the Department’s cancellation decision.  He was given until 20^th December 2022 to respond.­­

17. On 16^th December 2022, the Tribunal received numerous submissions from Mr Jayasinghe’s representative.  They included:

    • The representative’s written submission (undated)
    • The divorce application (undated)
    • The Divorce Order of 18^th June 2021
    • Four batches of Commonwealth bank statements in the applicant’s name, with a date range of April 2021 – October 2022
    • An Applicant Statement (undated) primarily addressing his relationship with his son and participation in his care and financial support since the couple’s separation
    • A letter from Ms Kankanamalage (undated) in support of the applicant’s appeal, detailing his relationship and contact with Abhimaan
    • A collection of photos of Mr Jayasinghe, Ms Kankanamalage and Abhimaan, or just Mr Jayasinghe and Abhimaan, in various locations (undated)

    Use of the Tribunal’s summons power

18. In order to confirm that the claims that the applicant was making were credible, the Tribunal decided to use its power under s 363(3) of the Migration Act to summons a number of entities to produce documents that might assist the Tribunal to obtain a clearer picture of the applicant’s situation, and to confirm the genuineness of the relationship and its subsequent breakdown.  The following were summonsed:

    ·     ACT Health, requesting ‘all records relating to the employment of Mr Jayasinghe … at ACT Health’, issued 16th January 2023

    ·     Department of Home Affairs, requesting Ms Kankanamalage’s Student Temporary (Subclass 500) visa application and associated documentation, along with Mr Jayasinghe’s pending Subclass 408 (Temporary Activity) Visa and associated documentation, issued 16th January 2023

    ·     Access Canberra, requesting any documentation held in relation to Mr Jayasinghe and Ms Kankanamalage’s marriage and subsequent divorce, issued 16th January 2023

    ·     University of New South Wales Canberra, requesting any records held in relation to Ms Kankanamalage, including her student file and enrolment documentation, issued 16^th January 2023.

19. The documents returned in response to the summonses contained the following information that is relevant to the Tribunal’s decision in this case:

20. UNSW Canberra responded with a large volume of material relating to Ms Kankanamalage’s studies and student status.  This included, relevantly, evidence of Ms Kankanamalage’s scholarship (which covers the cost of her tuition fees, plus $35,000 pa for living expenses, and for which only full-time on-campus students are eligible), and a copy of her compulsory Overseas Student Health Cover policy from Medibank Private, which includes Mr Jayasinghe and Abhimaan as dependents.

21. Materials returned from the Department of Home Affairs indicate that, at the time of the applicant’s application for a Subclass 408 Temporary Activity Visa on 29 June 2021, his marital status was reported as ‘separated’, and that he was employed as a commercial cleaner at the Canberra Hospital doing specialist CoViD-19 discharge cleaning.  The ‘temporary activity’ that was the subject of his application (specialist CoViD-19 cleaning) was due to end in June 2022. His employer, Praphul Prabhu, Environmental Services Manager at ISS Facility Services Canberra Hospital, provided a positive reference endorsing Mr Jayasinghe’s qualities as an employee and stating that he was engaged with them on a full-time basis from 27th April 2021, at a rate of $23.92/hour. 

22. Access Canberra confirmed it does not hold any documentation in relation to the applicant’s marriage or divorce, and also that foreign nationals are not required to provide any such documentation.

23. ACT Health did not respond to the summons.

    Does a ground for cancellation under s 116(1)(a) exist?

24. In order to continue to satisfy the secondary criterion for the TU-500 visa in r 500.311(a), the applicant must continue to be a member of the family unit of the primary visa holder, Ms Kankanamalage.

25. Regulation 1.12(2)(a) relevantly defines a member of the family unit as the ‘spouse or de facto partner of the family head’. Regulation 1.03 states that ‘spouse’ has the meaning set out in r 1.15A. Regulation 1.15A(1A) provides:

    Persons are in a married relationship if:

    (a)      they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

    (b)   the Minister is satisfied that:

    (i)       they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (ii)      the relationship between them is genuine and continuing; and

    (iii)     they:

    (A) live together; or
    (B) do not live separately and apart on a permanent basis.

26. Mr Jayasinghe does not dispute that he and Ms Kankanamalage are no longer in a married relationship and that he is not a member of her family unit for the purposes of r 500.311(a), which was the basis on which his visa was granted. Both he and Ms Kankanamalage have provided documentation relating to their separation and divorce to the Department and to the Tribunal. For these reasons and those discussed above, 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.

28. The Tribunal is satisfied that the applicant’s marriage was genuine at the point in time when the applicant arrived in Australia. The Tribunal is also satisfied that despite the ending of the marriage the applicant remains closely involved with the raising of his son. The evidence indicates that he continues to work with his ex-wife in the raising of their child.

29. Ms Kankanamalage states that the applicant pays AUD $550 per fortnight, plus various additional expenses, towards Abhimaan’s ‘education, health, and skill and social development’.  Mr Jayasinghe’s CBA statements indicate a regular fortnightly transfer to Ms Kankanamalage of $450 or $550, across the 18-month period covered by the submitted statements, with the description ‘for Abhi’, plus miscellaneous additional expenses (eg: 6/07/2022, $70.00 for ‘Abhi’s School voluntary contribution’; 23/07/2022, $71.00 for ‘Abhi’s karate class’; 14/10/2022, $100.00 for ‘Abhi cricket’).  Ms Kankanamalage notes that she is a full-time PhD student (her visa conditions do not permit more than 40 hours’ work per fortnight) and is in need of Mr Jayasinghe’s financial support to care for Abhimaan.

30. Both parents reference the details of a shared parenting arrangement agreed to and documented in the divorce order.  The Tribunal does not have the relevant court documentation on this point before it; however, Ms Kankanamalage states that Mr Jayasinghe spends each Sunday with Abhimaan (the submissions from Mr Jayasinghe’s representative state that he is employed 6 days per week from 10am to 9pm, which is why he only has Sundays to spend with his son), that both parents jointly attend any school events, functions etc with Abhimaan, and that Mr Jayasinghe stays with him on an ad hoc basis when his mother is travelling out of Canberra.  Ms Kankanamalage’s statement concludes that Mr Jayasinghe ‘provides immense support in many ways including financial, emotional, and social beyond he agreed [sic] in the divorce order for the development of the child’.

31. Mr Jayasinghe’s statement details his emotional attachment to his son, the types of activities they engage in when they are together, and references the regular fortnightly payments to Ms Kankanamalage for Abhimaan’s care.  As mentioned above, these claims are substantiated by the bank statements he has submitted, as well as the corroborating evidence of his former wife.

32. If the applicant’s visa were cancelled there is a significant risk that he would not be entitled to any other visa and would be required to return to Sri Lanka. I am satisfied that would not be in his child’s best interests. At present the applicant is an active and positive influence in his son’s life. There is evidence that he provides direct financial support and evidence that he provides direct care. Neither of these would be possible if the applicant were required to return to Sri Lanka.

33. There is no evidence that the applicant has been non-compliant with any visa conditions and there is no suggestion that the breakdown in the marital relationship was a consequence of any misconduct on the part of the applicant.

34. In these circumstances, there are no strong factors which press towards a cancellation decision and the best interests of the applicant’s child clearly favour deciding not to cancel. 

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

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Damien O'Donovan
    Senior Member