Okeke Odinukwe (Migration)

[2018] AATA 5247

Okeke Odinukwe (Migration) [2018] AATA 5247 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emeka Gregory Okeke Odinukwe

CASE NUMBER:  1810407

HOME AFFAIRS REFERENCE(S):           BCC2017/1202242

MEMBER:Kira Raif

DATE:11 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 11 December 2018 at 11:12am

CATCHWORDS
MIGRATION – cancellation – Subclass 489 - Skilled - Regional (Provisional) visa – secondary applicant and member of the family unit of the primary applicant – relationship with primary applicant ended – now married to Australian citizen – best interests of children would not be adversely affected – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2, r 1.12

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 9 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Nigeria born in March 1967. He was granted the Skilled Regional (Provisional) visa in February 2016. On 12 February 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(a) of the Act because the delegate formed the view that the decision to grant the visa to the applicant was based on a fact or circumstance that no longer existed. The applicant provided a written response to the NOICC and his visa was cancelled on 9 April 2018. The applicant seeks review of the delegate’s decision.

3. On 8 November 2018 the Tribunal wrote to the review applicant inviting him to attend the hearing on 5 December 2018. At the applicant’s request, the location of the hearing was changed to enable the review applicant to attend near his new place of residence. The applicant then requested the hearing to be postponed on the basis that he was not given adequate notice of the hearing as he has just commenced new employment. It is unclear how the applicant’s employment affects the notice period and the Tribunal notes that the hearing invitation provided the applicant with the period of notice prescribed by the legislation. The Tribunal is satisfied the applicant was given adequate notice of the hearing and having considered the applicant’s request, the Tribunal decided not to postpone the hearing.

4. The applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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.

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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled – Regional (Provisional) Subclass 489 visa on 17 February 2016. The visa was to be in effect until February 2020. The applicant was granted the visa on the basis of being a secondary applicant and member of the family unit of the primary applicant, Uche Ada Odinukwe. The applicant met the secondary criteria and r.1.12 as a spouse and a member of the family unit of the primary visa applicant.

8. In November 2017 the Department received advice that the applicant’s relationship with the primary visa applicant Ms Odinukwe had broken down. In his written response to the NOICC and his oral evidence to the Tribunal the applicant admits that his relationship with Ms Odinukwe ended as they had irreconcilable differences. The applicant does not dispute the fact that his relationship with his spouse, who was the primary visa applicant, had ended. The applicant’s evidence to the Tribunal is that he is now in a new relationship.

9. The review applicant provided a further written submission to the Tribunal on the evening of 4 December 2018. As the hearing was scheduled for 5 December 2018, the late provision of arguments and supporting material was less than helpful. In this submission to the Tribunal the applicant confirms that he and his former partner have finalised their divorce and that he is now married to another person who is an Australian citizen. The applicant submits that his partner’s interests should be considered with respect to how the cancellation of the visa and his departure from Australia would affect her.

10. Having regard to the applicant’s own evidence and the information set out in the primary decision concerning the breakdown of the relationship, the Tribunal finds that the applicant is no longer in a spousal relationship with Ms Odinukwe. The Tribunal finds there is no longer any mutual commitment between the applicant and Ms Odinukwe. The Tribunal finds that the applicant is not a spouse, nor a de facto partner of Ms Odinukwe. 

11. As the applicant was granted the visa on the basis of being a spouse and a member of the family unit of Ms Odinukwe, the Tribunal finds that this fact or circumstance no longer exists. The Tribunal finds 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 Tribunal finds that there are grounds to cancel the visa under s.116(1)(a) of the Act. 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’.

    The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

13. The Skilled visa is a temporary visa which enables the visa holder to remain in Australia for a temporary period of four years. The applicant was granted the visa as a secondary applicant. The purpose of his visa was to enable the applicant to remain with his partner. However, that relationship is no longer in existence and the applicant’s evidence to the Tribunal is that he is now in a different relationship. The Tribunal finds that the applicant is not able to fulfil the purpose of his visa because he is no longer in a relationship with the primary visa holder.

14. The applicant also travelled to Australia to be with his children and the applicant can maintain that relationship with his children by remaining in Australia. The applicant also referred to his relationship with his step-daughter. The Tribunal is prepared to accept that the presence of the applicant’s children may indicate that there is a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

15. There are no known instances of non-compliance with visa conditions.

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

16. The applicant states in his response to the NOICC that the cancellation of his visa would cause hardship to his two children, presently aged 15 and 13. The applicant refers to his responsibilities towards the children’s upbringing, including financial support he has provided to the children. The applicant states that his children rely on him for financial, physical and emotional support. The applicant states that he pays regular maintenance and maintains a parental bond with the children. The applicant referred to his daughter’s medical condition and states that he visited her during hospital appointments.

17. In oral evidence to the Tribunal the applicant states that he could not work once his visa was cancelled and he could not support his children financially. He stopped supporting his children when he stopped working. Since that time he had used his savings. He has recently obtained another job but because he borrowed money and had many expenses, he was not able to support his children financially. The applicant states that once he is settled, he will again support his children financially. The applicant stated that he last provided financial support to the children around the time of the cancellation of his visa in April 2018. In the meantime, the children’s mother supports them financially. The Tribunal finds that the applicant is not providing financial support to his children and that the children are not reliant on the applicant for financial support. There is no evidence to indicate that the children experienced financial hardship as a result of losing the financial support from the applicant for the past seven months. The Tribunal is not satisfied that the children will experience financial hardship as a result of the visa being cancelled.

18. In terms of physical support, the applicant told the Tribunal that his children continue to live in Western Australia while he moved to a Melbourne around July 2018, and since that time he communicates with the children by phone. The applicant said that he plans to visit his children for a week around Christmas and then he anticipates that they will visit each other regularly. The applicant said that he did not make these arrangements earlier because due to his financial circumstances he could not travel. The Tribunal acknowledges the applicant’s evidence that he had a ‘financial crisis’ before and could not see his children and that he is now working and can afford to travel. However, the Tribunal also notes that the applicant has not seen his children since July 2018. He has not offered his children financial or physical support since that time. Although the applicant claims that now he has a job and hopes to make different plans in the future, there is no evidence that any arrangements have been made for that to occur. The applicant told the Tribunal that his leave is yet to be approved. There is no evidence that he has made arrangements to travel to WA or obtain accommodation there. There is nothing more than the applicant’s own evidence to show that he does intend to visit his children or that he plans to maintain a closer relationship with them. The Tribunal is not satisfied the applicant provides physical support to the children and the Tribunal is not satisfied, on the limited evidence before it, that he will provide such support in the future. The Tribunal is not satisfied that the children will experience physical hardship as a result of the visa being cancelled.

19. As for emotional support, the Tribunal acknowledges that the applicant may contact his children by telephone but in the Tribunal’s view, such telephone contact can be made from the applicant’s home country. The Tribunal is not satisfied that any emotional support that the applicant may provide to his children would be diminished as a result of his visa being cancelled. The Tribunal is not satisfied that the applicant or the children will experience emotional hardship as a result of the visa being cancelled.

20. The Tribunal also considers it significant that the applicant made the decision to move to a different state, away from his children and his former wife, following the breakdown of his relationship. The applicant told the Tribunal that he did so in order to find work and also because of his present relationship with his new partner. The applicant presented no evidence to support his claim that he had looked for, but was unable to find a job in Western Australia. The Tribunal does not accept that the applicant moved to Melbourne in order to find employment, although he may have done so to pursue a new relationship. In the Tribunal’s view, the applicant’s decision to move to a different state away from the children contradicts his claim that he has a close and ongoing relationship with the children and that he plays a significant role in the children’s lives.

21. The applicant presented no probative evidence of his interactions with his children since he moved to a different state. Despite the applicant’s claim that he maintains a good relationship with the children’s mother, there are no statements from her to support the applicant’s claim that he cares for the children and she was not available to give oral evidence to the Tribunal. There is no photographic or other evidence of the applicant’s interactions with his children. Overall, the Tribunal does not accept on the evidence before it that the applicant has a close relationship with his children and that he plays an instrumental role in their upbringing and daily lives.

22. The applicant also referred to the relationship he has with his step-daughter. The applicant’s evidence about this child was vague. He was unsure which school she attends, did not know what year she was in and said that he never attended her school or participated in any school activities. He never met the child’s teachers. The Tribunal is prepared to accept that the applicant has been living in the same household as his new partner and step-daughter, and has done so for a few months, but the Tribunal is not satisfied that there is a close relationship between the applicant and his step-daughter. The Tribunal is not satisfied the step-child treats the applicant as her father and that he plays a meaningful role in his step-daughter’s life. The Tribunal is not satisfied that hardship would be caused to the applicant’s step-daughter as a result of the cancellation.

23. The applicant also refers to his relationship with his present partner. His and his partner’s evidence to the Tribunal is that they have recently registered their marriage and have been living together for a few months. The Tribunal is prepared to accept that evidence. The Tribunal notes that if the relationship is genuine, the applicant may be eligible to seek a Partner visa. The Tribunal acknowledges the applicant’s evidence that he may be unable to meet the Schedule 3 criteria and his partner’s evidence that such an application would be costly.  The applicant also claims that he does not want to rely on his partner but wants to have a visa in his own right. Nevertheless, an application for a Partner visa, either made onshore or offshore, is an option that is open to the applicant.

24. The applicant claims that he does not want to be separated from his children and his partner. However, the Tribunal considers it significant that the visa in question is a temporary visa that would have been in effect until 2020. The applicant informed the Tribunal that his partner made an application for a permanent visa but he was not included in that application and there is no suggestion that the parties intend to seek reconciliation, given that the applicant is now in another relationship. The applicant told the Tribunal that if his visa is reinstated, he intends to live and work in a regional area and then seek a permanent visa on that basis. In the Tribunal’s view, this is nothing more than a hypothetical possibility. If the visa is reinstated the applicant will have to meet certain conditions before he may be eligible to apply for another visa which he may or may not be granted. At the time of this assessment, the only visa that the applicant was entitled to is the Subclass 489 visa, which is a temporary visa with a limited validity period. It cannot be assumed that the applicant would be granted another visa. As such, the Tribunal finds the applicant’s evidence – that he wishes to remain in Australia to care for his children and to be with his partner on a long term basis – unpersuasive, given that the applicant does not have permission to remain in Australia beyond February 2020.

25. Nevertheless, the Tribunal accepts that hardship may be caused to the applicant and his family if the visa is cancelled and if the applicant was to leave Australia immediately, rather than at the time of the natural expiry of his visa 14 months later.  

26. The applicant refers to his employment in Australia. He referred to his difficulty in finding employment in the past but states that that he has recently been offered a position as a disability support worker and continues to contribute to the health industry in Australia and the economy. The Tribunal acknowledges that if the applicant is no longer a holder of a visa, he may be unable to continue his employment in Australia.

27. The applicant told the Tribunal that he had given up everything in his home country and has nothing to go back to and would have to start ‘from scratch’. He claims he had to dispose of most things he had in order to pay the fees to come to Australia. In the Tribunal’s view, that evidence is problematic because the applicant and his family travelled to Australia on temporary visas. They never had been granted permanent visas. The applicant states that they always intended to apply for permanent visas but there could not be any guarantee that a permanent visa would be granted. In the Tribunal’s view, it was not reasonable for the applicant to assume that he would be permitted to remain in Australia permanently, and dispose of all his assets before coming to Australia, when he was only granted a temporary visa.

    Circumstances in which ground of cancellation arose

28. The cancellation is being considered because of relationship breakdown with the primary visa holder. In oral evidence to the Tribunal the applicant stated that he came to Australia with his former partner. Initially they had no problems but later on his partner filed for divorce ‘out of spite’. The applicant stated that his former partner had an extra marital affair. The applicant said they lived together until about December 2016 when his former wife left the family home and from that time he lived alone or in shared accommodation but not with his partner. The applicant told the Tribunal that he told the Department around January 2017 about the breakdown of the relationship.

    Past and present behaviour of the visa holder towards the Department

29. Nothing adverse is known about the past and present behaviour of the visa holder towards the Department. The Tribunal acknowledges the applicant’s evidence that he had informed the Department about the breakdown of his relationship.

    Whether there would be consequential cancellations under s.140

30. There are no consequential cancellations under s.140. The visas held by the applicant’s children are dependent on their mother’s visa and not the applicant’s and would not be affected by the cancellation of the applicant’s visa.

    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

31. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply.

    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

1. The applicant states that his daughter has a serious medical condition and regularly attends hospital. The applicant refers to the support he provided to his daughter during her hospital visits. The Tribunal accepts that the applicant’s daughter has a medical condition and that the applicant had provided support to her when he was living with his family. As noted above, the applicant has had limited interactions with his children since he moved from Western Australia to Victoria and he provided very little documentary evidence of his interactions with the children. Given the very limited personal interaction between the applicant and his children, and the applicant’s decision to move away from where his children live, the Tribunal rejected the applicant’s claim that he is providing physical support to his children. The Tribunal does not consider that the daughter’s health or well-being, and her best interests, would be adversely affected as a result of the cancellation.

2. The applicant states that due to his daughter’s medical condition, she will need a transplant and he needs to be there for her. There is no evidence before the Tribunal to indicate that any arrangements have been made for the transplant. The applicant explained that the transplant may be done when his daughter turns 18, in about five years at least. However, as noted elsewhere, the visa in question is a temporary visa only, which would not permit the applicant to remain in Australia beyond February 2020. Even if the applicant’s visa is reinstated, it would not allow the applicant to remain in Australia permanently to care for his daughter in five years’ time or later when she has the procedure. The applicant told the Tribunal that he planned to live and work in a regional area for the requisite time and apply for a permanent visa. Essentially, the applicant states that at some time in the future, he may be able to meet the eligibility requirements to be able to make an application for a skilled visa, which may or may not be granted. In the Tribunal’s view, this process is entirely hypothetical and beyond the consideration required for the purpose of the present proceedings.

3. The applicant also stated that he has a close relationship with his step-daughter, whose biological father had passed away. The representative submits that there is a close relationship between the applicant and his step-daughter, who would be impacted by the separation. The Tribunal does not accept that evidence. As noted above, the Tribunal has formed the view that the applicant does not have a close relationship with his step-daughter and that he has limited knowledge about this child. There is very little probative evidence before the Tribunal, other than the applicant’s and his partner’s evidence, indicating that such a relationship exists or that the child would be impacted by the separation. There is little evidence of the applicant participating in any activities of the step-daughter and his own evidence is that he had never attended her school prior to the hearing. There is no evidence that he had meaningfully participated in this child’s life. There are no reports from any health professionals or educators confirming that the child’s separation from the applicant would have an adverse effect on the child. The Tribunal has accepted that the applicant and his step-daughter live in the same household and the Tribunal also accepts that there is some relationship between them but the Tribunal is not satisfied there is a close relationship between them. The Tribunal finds that the best interests of the step-daughter would not be adversely affected as a result of the cancellation. The Tribunal does not consider that the best interests of that child require the applicant’s presence in Australia.

4. The applicant refers to general poverty and lack of employment opportunities in his home country. He states that it would be difficult for him to re-establish himself in his country. The Tribunal is not satisfied that any of these matters give rise to Australia’s protection obligations but in any case, the Tribunal notes that the applicant is eligible to make an application for a protection visa, where such claims would be assessed. The Tribunal finds that Australia’s non-refoulement obligations would not be breached if the visa is cancelled.

   Any other relevant matters

5. The applicant told the Tribunal that he has no criminal record and has complied with the Australian laws. The Tribunal accepts that evidence.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the decision to grant it was based on a particular circumstance that no longer exists, as the applicant’s relationship with his partner has ended. The Tribunal accepts that a certain degree of hardship would be caused as a result of the cancellation, particularly if the applicant is to leave Australia, as it would cause separation of the applicant and his present partner and his children and step-daughter. The Tribunal accepts that the applicant intended to remain in Australia and acknowledges his evidence that he has nothing to go back to. The Tribunal accepts that there are no other known instances of non-compliance or breaches of the law and that the applicant has settled in Australia, is gainfully employed and has a relationship with an Australian citizen partner. The Tribunal is prepared to accept that hardship may be caused to his partner if the visa is cancelled. There are factors indicating that the discretion should be exercised in the applicant’s favour.

7. The Tribunal places weight on the fact that the visa in question is a temporary visa and while the applicant clams he intended to apply for a permanent visa, there can be no guarantee that the applicant will meet the eligibility criteria or that he would be granted such a visa. The only substantive visa that the applicant held, which is the visa that has been cancelled, would not have permitted the applicant to remain in Australia beyond February 2020. If he wants to make other arrangements to remain in Australia, he can do that, although the Tribunal accepts that the applicant’s opportunities may be more limited if he makes another visa application onshore.

8. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation and do not require the applicant’s presence in Australia. This is because the Tribunal has rejected the applicant’s claim that he plays a meaningful role in relation to his children or his step-daughter.

9. The Tribunal also places significant weight on the fact that the applicant is no longer entitled to the visa in question. The applicant’s sole eligibility for that visa was his relationship with the primary visa holder and that relationship no longer exists. In the Tribunal’s view, that consideration outweighs other factors in favour of the applicant.

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member