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

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).
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.
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.
The applicant was represented in relation to the review.
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
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
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.
On the 3 April 2020, the applicant lodged an application for a Skilled Work Regional…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pashaei Pirloujeh (Migration) [2023] AATA 1007
Case: [2023] AATA 1007
Decision Date: 21 April 2023

CaseChat Overview and Summary

This matter concerned an application by Mr. Pashaei Pirloujeh for review of a decision by the Department of Home Affairs to cancel his Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant had arrived in Australia with his former wife and daughter, who was the primary applicant for the visa, with the intention of settling permanently.

The primary legal issue before the Tribunal was whether, having found that a ground for cancellation under section 116(1)(a) of the *Migration Act 1958* (Cth) existed, the Tribunal should exercise its discretion to set aside the cancellation decision. This required consideration of whether the applicant had a compelling need to remain in Australia.

The Tribunal reasoned that while the ground for cancellation was established, it did not mandate cancellation. In exercising its discretion, the Tribunal had regard to the applicant's circumstances, including his long marriage breakdown, his daughter's residency in Australia, and his employment as a Civil Draftsman in Canberra. Crucially, the Tribunal found that the applicant had a compelling need to remain in Australia to maintain his relationship with his daughter, who was his only child. The Tribunal considered it unfair for the child to remain in Australia while her father was forced to return to his home country, disrupting their relationship. The Tribunal also noted the applicant's efforts to meet his financial obligations to his daughter.

The Tribunal concluded that the applicant had demonstrated a compelling need to remain in Australia and, accordingly, set aside the decision to cancel his visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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