Kndeya (Migration)

[2024] AATA 4017

Kndeya (Migration) [2024] AATA 4017 (7 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haftu Hailu Kndeya

REPRESENTATIVE:  Ms Trang Doan Vu

CASE NUMBER:  2404063

HOME AFFAIRS REFERENCE(S):          BCC2023/6057165

MEMBER:Mary Sheargold

DATE:7 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 07 October 2024 at 5:33pm

CATCHWORDS
MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) – Subclass 491 (Skilled Work Regional (Provisional)) – visa based on fact or circumstance that no longer exists – relationship ceased and applicant no longer member of family unit of primary visa holder wife – discretion to cancel visa – wife’s undiagnosed physical and mental health and applicant’s work and care for young children – children’s development – church and community activities – current conditions and prospect of harm in home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(d), 116(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 March 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 491 - Skilled Work 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 Mr Kndeya was no longer a member of the family unit of his wife. 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 by MS Teams video link from Adelaide on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr Habte Weldemariam and Mr Kebede Gebrehabtu.

4. The applicant was represented in relation to the review. The representative attended the Tribunal 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.

   Does the ground for cancellation exist?

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

7. 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.

8. Mr Kndeya came to Australia as a dependent on his wife’s student visa, and was listed as a secondary visa holder for this Subclass 491 visa.  On 4 September 2023, Mr Kndeya’s wife told him that their marriage was over and asked him to leave their home.  On the same day, she reported her change in circumstances to the Department.

9. Both at the hearing and within pre-hearing submissions made by his representative, Mr Kndeya conceded that he could no longer meet the definition of ‘spouse’ of his wife set out in s 5F of the Act.  Specifically, Mr Kndeya concedes that he cannot meet the definition in s 5F(2)(d) because, even though he still believes his family is a cohesive unit, he does not live together with his wife, and against his will and better judgment, they do appear to live separately and apart on a permanent basis.

10. Based on the evidence presented at review, the Tribunal is satisfied that the particular fact or circumstance leading to the grant of Mr Kndeya’s visa, being that he is the spouse of his wife, no longer exists.

11. 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

12. 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’.

13. At the hearing, Mr Kndeya presented as optimistic and positive about his family’s future in Australia, demonstrating his strong love for his children and his desire to continue to be their protector in Australia.  Although Mr Kndeya did not provide the Tribunal with medical evidence to back up his assertions, the Tribunal is prepared to accept his claims that his wife suffers an undiagnosed neurological condition that continues to be explored by experts at the Royal Adelaide Hospital and that the condition may contribute to her erratic and at times violent behaviour.  The Tribunal has accepted Mr Kndeya’s account of having to choose to abide by his wife’s often unreasonable demands to try and keep the peace within his family, and to protect his young children.

    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

14. Mr Kndeya came to Australia to support his wife as she pursued her dream to study and work in a foreign country.  The Tribunal is satisfied that Mr Kndeya had fulfilled that purpose as the secondary holder of his estranged wife’s visas.  The Tribunal is satisfied that this purpose no longer exists for Mr Kndeya.

15. While living in Australia, Mr Kndeya has fulfilled the role of primary caregiver to his two young children, including a long period of single parenting while his estranged wife undertook study and work experience in Japan as part of her PhD program.

16. Considering Mr Kndeya’s history of upholding the purpose of his travel to Australia and noting his intention to continue to support his children as well as his estranged wife in Adelaide, the Tribunal gives this consideration a little weight against cancelling the visa.

    The extent of compliance with visa conditions

17. Mr Kndeya told the Tribunal that he has fully complied with all conditions attached to this visa as well as the student visa, graduate visa, and bridging visas he has held in the past.  In fact, the Department was notified of his change of address several months before the Notice of Intention to Consider Cancellation was issued.  There is no evidence before the Tribunal to suggest that Mr Kndeya has not complied with any conditions imposed on his visas.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    Degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

18. The Tribunal accepts Mr Kndeya’s evidence that he will suffer serious emotional hardship if his visa is cancelled.  He has cited examples of his estranged wife’s ongoing emotional abuse over the course of their marriage, at least in part due to undiagnosed and unmanaged neurological afflictions, and he notes that he is still trying to recover from that experience.  Further, the fact that he has two young children who only know life in Australia adds a layer of complexity to this consideration, because if his visa is cancelled, he may no longer be able to live in the same country as them.

19. At present, Mr Kndeya shares custody of his two children equally with his wife.  He told the Tribunal that they enjoy spending time with him and that he engages in a full range of activities and wellbeing work with them on a weekly basis.  The Tribunal is satisfied that Mr Kndeya has developed significant ties to Australia since he arrived here in July 2016, not only with his children, one of whom is Australian born, his local Tigrayan Orthodox church, and the Ethiopian community in Adelaide .

20. Mr Arora has worked tirelessly since arriving in Australia.  Though he was a college teacher in Ethiopia, he had to start from the beginning in Australia and worked delivering advertising material, then cleaning, he has had a period of full time stay-at-home parenting responsibilities, and has worked for Uber Eats as a delivery driver.  He has spent recent years working as a taxi driver.  Whenever his children are with their mother, he will work double shifts to try and ensure he has enough money to support himself and his children for all their needs.  Mr Kndeya noted that even though his wife has chosen to end their relationship, and while she earns a very good income in her job, he still feels obliged to provide for the family unit because he is the man of the house.

21. The Tribunal is satisfied that Mr Kndeya will face real hardship – financial, psychological and emotional – if his visa status is not regularised.  The Tribunal gives this consideration a little weight against cancelling the visa.

    The circumstances under which the ground for cancellation arose

22. Mr Kndeya willingly came to Australia as a dependent on his estranged wife’s student visa, and willingly remained in Australia as a dependent on her Graduate visa as well as this visa.  Mr Kndeya continually emphasised to the Tribunal his dismay over his wife’s decision to end their marriage, but stated he continues to make every effort to provide for the family regardless of whether his wife will allow him to live with them or not.  There is no indication of any history of family violence by Mr Kndeya towards his estranged wife or children.  In fact, Mr Kndeya believes his children have a higher degree of attachment to him than they do to their mother, especially their son who spent most of his babyhood in Mr Kndeya’s sole care.

23. Mr Kndeya has provided evidence of the impact of his separation from his estranged wife on his children, showing a steep decline in their academic achievements over the last 12 months.  The childrens’ school reports indicate a marked change in their behaviour and attitude. 

24. Mr Kndeya’s witnesses came to give evidence of their attempts to help the couple reconcile during the early months of their separation, but noted that it appeared Mr Kndeya’s wife was simply unwilling to reach any kind of compromise at all.  The Tribunal is satisfied that all the evidence before it supports a finding that the circumstances under which the grounds for visa cancellation arose were beyond Mr Kndeya’s control.  Therefore, the Tribunal gives this factor some weight against cancelling the visa.

    Mr Kndeya’s past and present behaviour towards the Department

25. At the hearing, Mr Kndeya stated that he has always complied with his visa conditions, including notifying the Department when he changed address after moving out of the home he shared with his estranged wife.  He engaged a representative to assist in his response to the NOICC and this was done in a timely manner.

26. There is no other information before the Tribunal to demonstrate that Mr Kndeya has behaved in anything less than a frank and forthright manner towards the Department to date.  The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Consequential cancellations

27. Mr Kndeya is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  The Tribunal is not able to give this consideration any weight for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

28. Cancelling Mr Kndeya’s visa would result in application of section 48 of the Act, meaning he would be limited in terms of other visa applications he could lodge validly while remaining in Australia.

29. Noting the impact cancellation has already had on Mr Kndeya, and understanding the implications of holding a BVE in the medium to long term, the Tribunal gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

30. Mr Kndeya has never applied for protection, but he has indicated to the Tribunal that he fears harm if he is returned to Ethiopia due to the current genocidal warfare exacted by Ethiopians and Eritreans on Tigrayans that commenced in 2020.  The Tribunal has considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and notes that, subject to further detailed claims, there is a prospect that Mr Kndeya will face harm if he returns to Ethiopia.

31. Mr Kndeya indicated during his hearing that if he did have to return, it would be his duty to join the Tigrayan army and fight against the genocide.  It is possible that forcing Mr Kndeya to leave Australia may breach Australia’s obligations under those instruments.  His witnesses, who are highly regarded members of Australia’s Tigrayan community, were able to corroborate his claims regarding the situation for Tigrayans in Ethiopia at present.

32. This particular decision is not a forum for the Tribunal to engage in active consideration of whether Mr Kndeya would be entitled to seek protection in Australia.  However, the Tribunal does consider the very important facts before it, such as the devastating loss of family members in Ethiopia already, that his remaining family is seeking to flee the country, and the extent of the reported genocide against Tigrayans, as significant factors weighing against a decision to cancel his visa at this time.

33. Mr Kndeya has 2 primary school aged children.  Australia must be mindful of its obligations under the Convention on the Rights of the Child, especially Article 9 and Article 10, in respect of those children.  Mr Kndeya’s uncontested evidence presented through the hearing is that he is the preferred parent of his children, that he has taken on the more active hands-on parenting role since 2016, allowing his wife to study while he undertook childcare and juggled work while the children slept, and noting the significant impact on the children’s wellbeing of their parents’ separation.

34. The Tribunal notes that there is a chance that Australia’s international obligations would be enlivened by an attempt to return Mr Kndeya to Ethiopia, and so it gives this consideration some weight against cancelling his visa.

    Any other relevant matters

35. Mr Kndeya urged the Tribunal to consider his contribution to the Tigrayan community in Australia and his ongoing desire to support his estranged wife through her continuing health challenges.  While he acknowledges that a family reunion is a decision that appears to be beyond his control, he has pledged his ongoing willingness to ensure the most positive family experience that he can for his children.  There is strong evidence that Mr Kndeya’s children will be adversely affected by their father’s visa being cancelled, and the Tribunal gives its consideration of this matter some weight against cancelling the visa.

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

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

    Mary Sheargold
    Member