Pashaei Pirloujeh (Migration)

[2023] AATA 1007

Pashaei Pirloujeh (Migration) [2023] AATA 1007 (21 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ebrahim Pashaei Pirloujeh

REPRESENTATIVE:  Mrs Sheri Enkeshafi (MARN: 0958723)

CASE NUMBER:  2217644

HOME AFFAIRS REFERENCE(S):          BCC2022/4214921

MEMBER:Noelle Hossen

DATE:21 April 2023

PLACE OF DECISION:  Perth

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 21 April 2023 at 12:15pm

CATCHWORDS

MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 – Skilled Work Regional (Provisional) – member of the family unit – relationship ceased – compelling need – applicant’s daughter resident in Australia – debt from Family court proceedings – employment in Regional Australia – financial hardship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 1.12; Schedule 2, cl 491.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 2022 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 the applicant is no longer a member of the family unit of the person who holds a Subclass 491 visa granted on the basis of satisfying the primary criteria for the grant of the visa. 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 the 14 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review.

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. On the 3 April 2020, the applicant lodged an application for a Skilled Work Regional (Provisional) visa, as a dependent applicant and spouse of Shahrnaz Sharifi born on the 27 October 1984. On the 29 November 2021, the applicant was granted a Skilled Work Regional (Provisional) visa on the basis that he was a member of the family unit of Ms. Sharifi (the primary holder of the visa) as part of the criteria for the grant of the visa, the applicant was required to meet the requirements of subclause 491.311 of the Migration Regulations 1994 (the regulations) which states as follows:

9. 491.3 Secondary criteria

   Note These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

   491.311

   The applicant is a member of the family unit of a person who holds a Subclass 491 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

   A member of the family unit of a person in subclause 491.311 is defined by the regulation 1.12 of the Migration regulations 1994 (the Regulations). Reg 1.12 relevantly states as follows:

   Reg 1.12 Member of the family unit

   Scope

   (1)This regulation has the effect for the purposes of the definition (the main definition) of member of the family unit in Subsection 5(1) of the Act.

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

   (a) is a spouse or the defacto partner of the family head.

   “Spouse” as referred to above, had the meaning given by Section 5 F of the Act.

10. On the 19 September 2022, Ms Sharifi advised the Department that the applicant’s relationship with her had ended. This information indicated that the applicant no longer met the definition of “spouse” under s.5 F (2) (b) and 5 F (2)(c).

    “The applicant and the primary visa holder no longer had a mutual commitment to a shared life as a married couple to the exclusion of others; and the relationship between the applicant and the primary visa holder is no longer continuing.”

11. Based on this information the delegate found that there appeared to be a ground for cancelling the applicant’s visa because he found that “a circumstance that permitted the grant of the visa (his being a member of the family unit of the primary visa holder) no longer existed.”

12. The applicant was notified in writing on the 10 November 2022 of the Department’s intention to cancel his Visa by Notice.

13. The applicant sought an extension of time to respond, and he provided a response on the 24 November 2022. The applicant did not provide any supporting documents.

14. In his response the applicant stated that he was still legally married and that their family lawyers are attempting to resolve matters. He provided a list of reasons why the marriage was not at an end. He indicated that the parties were attending marriage counselling. He said that the family lawyers were negotiating to try to “fix the legal matters that happened.” Neither he, nor Ms Sharifi wanted to terminate their marriage.

15. The delegate accepted that the parties had not legally divorced. However, that was not the only requirement under the Act under Section 5 F for the applicant to still be considered as the “spouse” of Ms Sharifi.

16. Ms. Sharifi did not advise the Department that she was still in a committed relationship with the applicant. The applicant advised the Department that the police were temporarily preventing him and Ms Sharifi from living together on a permanent basis, until their issues are resolved.

17. There was no evidence before the Department that Ms Sharifi was of the same view.

18. The delegate concluded that the applicant was no longer a member of Ms. Sharifi’s family unit as defined by reg 1.12 and no longer satisfied the requirements of subclause 491.311 of the Regulations.

19. At the hearing the applicant confirmed that he has separated from Ms. Sharifi and that the marriage had irretrievably broken down.

20. 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

21. 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:

22. The applicant, his former wife, and their child Parnian Pashaei Pirloujeh born on the 28 December 2009 arrived in Australia on the 24 January 2022. Ms. Sharifi and the applicant had been married for 14 years which the Tribunal considers to be a long marriage. She had applied for the Skilled Work Regional (Provisional) Visa and her family members namely the applicant and their daughter were dependents on her visa.

23. At the time that the visa was granted being the 29 November 2021, the applicant did not envisage that his long marriage would break down and he would be therefore the subject of a cancelled Visa in Australia.

24. The applicant assumed that he would be remaining to live in Australia permanently. He had commenced employment as an electrician on the 2 October 2022.

25. As a result of the cancellation, he did not commence work in his field until January 2023. He applied to get his Certificate IV in Building and Construction from the Canberra Institute of Technology.

26. He provided the Tribunal with a letter from Engineers Australia showing that the requirement for him to be employed as a Professional Engineer. He had completed a Bachelor Degree in Engineering in his home country in 2002.

27. He graduated as an Engineer and worked as a Civil Engineer in his home Country of Iran.

28. Since January 2023 he has been employed as a Civil Draftsman at an Engineering Company in Canberra. His submission was that his occupation was on the ANZSCO 312211 being on the Medium to long term skills list.

29. The applicant submitted that he had a compelling need to remain in Australia. He says that he still wishes to maintain a relationship with his daughter. He intended to live in Australia permanently. Both he and his former wife had plans to settle in Australia. The Tribunal accepts his evidence that he does have a compelling need to remain in Australia as he is close to his daughter who is his only child.

30. It would be unfair for the child to remain living in Australia and her father be made to return to his home country and for his relationship with his daughter to be disrupted.

31. Presumably if he thought that this was likely scenario, he may not have consented to travel to Australia with his daughter. It is important for his role as a significant person in the child’s life to continue. He is presently meeting his obligations to provide for his daughter financially according to his evidence.

32. The Tribunal is of the view that the applicant does have a compelling need to remain living in Australia and places a lot of weight on those facts against the cancellation of the Visa.

    the extent of compliance with visa conditions

33. The applicant submitted that he has complied with his visa conditions. His current Class WE visa is not subject to a work limitation.

34. There is no evidence before the Tribunal that he has not complied with his Visa obligations and the Tribunal places some weight on those facts in favour of not cancelling his Visa.

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

35. The Tribunal is satisfied that the applicant and his daughter will suffer irreparable damage to their relationship should his visa be cancelled.

36. He will be required to leave Australia if his visa is cancelled. He will be separated from his daughter.

37. He provided court documents to show that he has a debt of $350,000 to be paid to his former wife because of Family court proceedings that she initiated in Iran after the separation, based on the initial marriage contract.

38. He will be unable to leave Iran once he arrives until he satisfies the debt.

39. Ms Sharifi has indicated to the Department that she does not plan to return to Iran and therefore he will be unable to see his daughter until she attains the age of 18 years.

40. The applicant is employed in Regional Australia and has the possibility of a sponsorship in his current occupation. If his Visa is cancelled, he will be unable to continue in his skilled occupation.

41. The applicant will suffer emotional and financial hardship if his Visa is cancelled.

42. The Tribunal places significant weight on those factors in favour of not cancelling the Visa.

    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

43. The marriage has broken down irretrievably and there are allegations of domestic violence, but the Tribunal was not provided with any evidence of any findings of fact by any Court dealing with the matter namely the Family Court or the Magistrate’s Court, that the relationship has broken down because of family violence.

44. The Tribunal is of the view that the visa should not be cancelled as the circumstances that arose were beyond the applicant’s control. The Decision was made by his former spouse to end the relationship causing him to be the subject of the cancellation of his Visa.

45. The Tribunal places a lot of weight on those facts in favour of not cancelling the Visa.

    past and present behaviour of the visa holder towards the department

    The applicant has cooperated with the Department and has been truthful in his dealings with the Department. The Tribunal found that the applicant’s oral evidence to be given in a forthright manner and the Tribunal accepts the evidence as truthful.

    The Tribunal places a lot of weight on those facts in favour of not cancelling the Visa.

    whether there would be consequential cancellations under s 140

46. There is no evidence that there will be any consequential cancellations, so this factor is not considered relevant to the determination of the Tribunal.

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

47. There are mandatory legal consequences of the cancellation decision. The applicant is unable to apply for an employer sponsored Visa by operation of Section 48 of the Act.

48. The applicant holds a Class WE visa and cannot lodge a valid application for any of these visas. If his visa is restored, he will have that possibility.

49. The Tribunal places a lot of weight on those facts in favour of not cancelling the Visa.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

50. The applicant has a daughter who resides in Australia in the primary care of her mother.

51. The applicant gave evidence at the hearing that he has a good relationship with his daughter and can see her on a regular basis.

52. He will be unable to see her if his Visa is cancelled as set out above as her mother’s Visa will expire in 2026. Her mother is likely to apply for a permanent Visa which means that the father and daughter bond will be affected if his Visa is cancelled.

53. The Tribunal is of the view that the best interests of the applicant’s daughter is best served by the fact that her father should remain living in Australia.

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

54. This factor is not relevant to this application.

    any other relevant matters

55. The Tribunal accepts that there are benefits that flow from the non-cancellation of the Visa. The applicant will be able to continue to work in his skilled occupation and to have a relationship with his daughter.

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

    DECISION

57. 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.

    Noelle Hossen
    Member