O'Shea (Migration)

[2018] AATA 5661

O'Shea (Migration) [2018] AATA 5661 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tyrone Lee O'Shea

CASE NUMBER:  1822452

HOME AFFAIRS REFERENCE(S):           BCC2018/1316829

MEMBER:Antoinette Younes

DATE:5 December 2018

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 (Temporary Work (Skilled)) visa.

Statement made on 05 December 2018 at 1:05pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – no longer a member of the family unit – relationship ceased – parent of three children – financial support and daily responsibilities for family – adverse impact of the separation on the family – Convention on the Rights of the Child – compelling need to remain in Australia – decision under review set aside        

LEGISLATION

Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that 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 appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s former partner.

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, which may include matters of government policy.

   Does the ground for cancellation exist?

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.

7. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.  Specifically, the Tribunal indicated that the information is that he was granted the subclass 457 visa on 21 February 2017 as a member of the family unit, namely de facto partner of the primary visa holder, Ms Lana Muller who on 8 March 2018 advised the Department that she and the applicant are no longer in a relationship. 

8. In response to the Notice of Intention to Consider Cancellation and to the Tribunal, the applicant agreed that he no longer meets the definition of a de facto partner. On the evidence, the Tribunal 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. That is, the applicant is no longer a member of Ms Muller’s family unit. For these reasons, the Tribunal finds 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

9. 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’.

   ·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

10. The applicant travelled to Australia as the de facto partner of the primary visa holder, Ms Muller. The applicant is claiming that as the parent of three children, he has compelling needs to remain in Australia.  He requested that his visa not be cancelled essentially on the basis of the support and care he provides to their three biological children aged 15, 9 and 2 years.  The applicant’s former partner provided a statement and gave evidence in support.

11. In the course of the hearing, the applicant gave evidence that he came to Australia with his family in March 2017 and that he has been working full-time as a labourer, earning approximately $800 a week net. He explained to the Tribunal that prior to coming to Australia and for approximately two years, he was the primary carer for all three children to assist Ms Muller in pursuing her career. He stated that prior to that period, he worked in South Africa in sales.

12. The applicant indicated to the Tribunal that approximately one day after the family’s arrival in Australia, his father died and he experienced difficulties in dealing with his father’s death. He stated that this led to problems in the relationship and after 17 years, the couple decided that their relationship was no longer healthy and it was not in the interest of their children that they remained as a couple.

13. The Tribunal asked the applicant and Ms Muller if there had been any incidents of violence between the couple and they both confirmed that although there were arguments, there was never any physical violence between the two. The Tribunal observes that although the applicant gave evidence that the decision to separate was a mutual one, Ms Muller gave evidence that it was primarily her decision.

14. Both the applicant and Ms Muller gave evidence that the applicant is very close to his three children and has daily responsibilities such as picking up their two-year-old daughter from daycare. He gave evidence that it has been difficult for the family in Australia, including him being employed at a far distance from where they lived which meant that he travelled on public transport for about 4 ½ hours a day. He explained to the Tribunal and provided evidence in support that he makes financial contribution to the family, approximately $350 a week and that the cost of daycare for the two-year-old daughter is $500 a week.  The Tribunal accepts that the applicant makes significant financial contribution to the family, without which Ms Muller would face substantial difficulties.  The Tribunal is of the view that the applicant could work in South Africa, but the financial contribution that he would make is likely to be much less given the differences in salaries between the two countries, impacting adversely on the family.

15. Ms Muller gave evidence that the couple no longer saw eye to eye but she emphasised that she is supporting the applicant because he is a good father. She reiterated that the children love their father and they are adversely impacted by the separation, particularly the nine-year-old daughter who recently had sought assistance from a psychologist to deal with the grief of the separation. Ms Muller indicated that the children would have difficulties coping if the applicant were to leave Australia. She stated that she herself would not be able to cope without his financial as well as support that he provides to the children.

16. Ms Muller explained to the Tribunal that her career has been important to her and she sees working in Australia as an “opportunity of a lifetime”. She stated that the family had sold all their belongings to come to Australia. She however understood that the subclass 457 is a temporary visa but she would like to continue working in Australia.

17. The Tribunal is satisfied that the purpose of the applicant travelling to Australia is consistent with the subclass 457 visa. The Tribunal gives significant weight to the evidence of Ms Muller particularly the fact that she considered the applicant to be a good father and that she needed his contribution.

18. On the evidence before it, the Tribunal is satisfied that the applicant is staying in Australia to be with his three children and the Tribunal considers that reason to amount to a compelling need to remain in Australia.

19. The Tribunal is satisfied that this consideration weighs heavily in favour of the applicant.

    ·the extent of compliance with visa conditions

20. There is no evidence of non-compliance with visa conditions and the Tribunal gives this consideration weight in the applicant’s favour.

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

21. The Tribunal is satisfied that the cancellation of the visa would mean that the applicant and his family would experience a significant degree of hardship.  The applicant has three minor children in Australia and the Tribunal has accepted the evidence that the applicant makes financial contribution as well as providing emotional support for the family.  The Tribunal is satisfied that his former partner and three children would be negatively impacted by the cancellation of his visa. The impact is significant.

22. If the applicant chooses not to leave Australia voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas. The Tribunal is of the view that although these are intended consequences of the legislation, in his circumstances, they do mean that the visa should not be cancelled.

23. On balance, the Tribunal is satisfied that there is degree of hardship in the case of cancellation of the applicant’s visa and that the degree of hardship is such that it means that the visa should not be cancelled.

24. The Tribunal has given this aspect favourable weight.

    ·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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. As outlined earlier, the cancellation arose as a result of the breakdown of the relationship between the applicant and the primary visa holder. Both the applicant and Ms Muller confirmed that there is no family violence and that the relationship broke down as a result of differences between the two of them.

26. The Tribunal does not consider it appropriate to question further the reasons for the breakdown of the relationship but in light of Ms Muller’s evidence that it was her decision to separate, the Tribunal is satisfied that this suggests that this was beyond the applicant’s control. The Tribunal recognises that relationships breakdown for many reasons and at times it is difficult to identify which partner was more responsible but there is no evidence before the Tribunal to suggest that the applicant caused the breakdown of the relationship.  The evidence is that the applicant has worked and for approximately two years prior to coming to Australia, he was the children’s primary carer in South Africa. The Tribunal accepts the evidence that the applicant has been a caring father for his children.  The fact that Ms Muller is supporting the applicant indicates that the couple has remained civil and focussing on the interest of their three children.

27. The Tribunal gives this consideration significant weight in favour of the applicant.

    ·past and present behaviour of the visa holder towards the department

28. The applicant responded to the notice of intention to consider cancellation and the Tribunal gives this aspect weight in his favour.

    ·whether there would be consequential cancellations under s.140

29. There is no evidence before the Tribunal of any consequential cancellation under s.140.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

30. If the applicant does not to leave Australia voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas. The Tribunal is of the view that although these are consequences of the legislation, in his circumstances, they do mean that the visa should not be cancelled.

31. The Tribunal has given this aspect favourable weight.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. The applicant has three minor children all of whom are in Australia.  They currently live with their mother but the applicant is actively involved in their lives and he makes significant contributions, including financial towards his family. He was their primary carer for two years whilst in South Africa.

33. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s children.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

34. The CROC applies to children under 18 years of age.  The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

35. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

36. The applicant’s children are aged fourteen, nine, and two years old. The two older children are studying and the youngest is in daycare.  The children were granted the subclass 457 visas on the basis of being members of the family unit of Ms Muller. The cancellation of the applicant’s visa does not mean that their visas would be cancelled. They could remain in Australia with their mother who is the primary visa holder. This would however mean that the children would be separated from their father if the primary visa holder chooses to remain in Australia. The potential separation of the father from the children in these circumstances would be adverse and potentially inconsistent with the CROC.

37. In the course of the hearing, both the applicant and Ms Muller talked about the lack of security in South Africa and of their fears of potential harm particularly to their children. The Tribunal does not consider those to be protection claims but in any event on the evidence before it, the Tribunal is not satisfied that there is a real chance or a real risk of serious or significant harm as contemplated by the Act. 

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

38. The subclass 457 is not a permanent visa. There is no assurance or guarantee that the holder of the subclass 457 would eventually be granted a permanent visa. The Tribunal gives weight not favourable to the applicant.

    ·any other relevant matters

39. There are no other matters relevant to the Tribunal’s consideration.

40. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are aspects that are not favourable to the applicant but there are many other aspects that weigh heavily in the applicant’s favour.

41. The Tribunal is satisfied that on balance the correct and preferable decision is that the applicant’s subclass 457 visa should not be cancelled.

42. In summary, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Antoinette Younes

    
    Senior Member