Ptashko (Migration)

[2020] AATA 5998

Ptashko (Migration) [2020] AATA 5998 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oleksandr Ptashko

CASE NUMBER:  2002115

HOME AFFAIRS REFERENCE(S):          BCC2019/5587128

MEMBER:Kira Raif

DATE:30 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 30 November 2020 at 11:46am

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 –criminal convictions – ongoing relationship with his two children – ongoing parental responsibilities – compelling reason for the applicant to remain in Australia – best interests of children– decision under review set aside

LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 30 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Ukraine, born in November 1976. He was granted the Partner (Provisional) Subclass 309 visa on 26 February 2016. On 5 December 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa). The applicant provided his response to the NOICC and his visa was cancelled on 30 January 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. 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 set aside.

   Relevant law

4. 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)(g). 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Subclass 309 Provisional Partner visa on 16 February 2016. In August 2019 the applicant provided to the Department his National Police Certificate issued by AFP, which indicates that the applicant was convicted in NSW of the following offences:

19/06/19	Contravene Prohibition / Restriction in AVO (Domestic)	$550 fine
03/04/19	Contravene Prohibition / Restriction in AVO (Domestic)	$1000 fine, 18 months community correction order
03/04/19	Destroy or damage property	12 months community correction order
22/05/18	Contravene Prohibition / Restriction in AVO (Domestic)	$550 fine and released on good behaviour 12 months
25/11/16	Contravene Prohibition / Restriction in AVO (Domestic)	Without conviction, good behaviour 18 months

1. The applicant concedes in his written response to the NOICC and evidence to the Tribunal that there are grounds for cancelling his visa.

2. The Tribunal finds that the applicant was a holder of a Class UF Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category vias. The Tribunal finds that the applicant had been convicted of offences against the law of the state of NSW. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

3. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

4. 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 Tribunal has also had regard to the applicant’s written response to the NOICC, his written submissions to the Tribunal, the oral evidence and other materials provided to the delegate and the Tribunal.

   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

5. The purpose of the Partner visa is to enable the applicant to remain with his partner. The applicant’s evidence is that his relationship with the sponsor has broken down irretrievably and he provided to the Tribunal a copy of the divorce order. The Tribunal finds that the purpose of the visa can no longer be fulfilled. The Tribunal acknowledges that a Subclass 100 visa may be granted, in some circumstances, where there are parental responsibilities with respect to the children. In oral evidence, the applicant told the Tribunal that he came to Australia because his wife gave birth to his baby and he came to be with his child. After arriving in Australia, his wife gave birth to their second child. The applicant states that he has a warm relationship with his children whom he sees regularly but he does not see his wife at all as they had divorced a year ago. The applicant spoke about his relationship with his children and states that the children are afraid that he will no longer be there for them. The applicant states that he no longer has any issues with his wife and does not see her.

6. The applicant provided to the delegate evidence of court proceedings in relation to his parental responsibilities towards the two children of the relationship. In his submission to the Tribunal of 17 November 2020 the applicant confirms that there are ongoing parenting proceedings in the Federal Circuit Court and he outlined the nature of his parental responsibilities. The applicant told the Tribunal that after his relationship with the sponsor broke down, his ex-wife did not allow him to have any contact with the children because she was in another relationship. He made an application to the Court which allowed him to spend more time with the children. They are still waiting for the final decision of the court and he hopes that he will have 50% access to the children. The applicant’s evidence to the Tribunal is that the FCC is aware of his criminal convictions and visa issues.

7. The Tribunal accepts that the applicant shares parental responsibilities with his former partner and that he appears to have a meaningful ongoing relationship with his two children. The Tribunal accepts that the applicant sees the children frequently and spends time with them regularly. The applicant states in his written submissions to the delegate and the Tribunal that he wants to continue his relationship with his children and that may not be possible if he was to return to Ukraine. The Tribunal accepts that there may be more limited opportunities for the applicant to communicate with the children if he was to live overseas and to see the children, although it may be possible to maintain some form of relationship through electronic means. The applicant’s evidence to the Tribunal is that his ex-wife will not allow him to have contact with the children if he was to leave Australia. The Tribunal accepts that the presence of two minor children in Australia, and the applicant’s ongoing parental responsibilities in relation to those young children, constitutes a compelling reason for the applicant to remain in Australia.

8. In oral evidence to the Tribunal the applicant also referred to his employment in Australia. He states that he has good references and pays taxes. He is a member of a Ukrainian Association. He also teaches guitar and thereby contributes to the Australian culture. The Tribunal accepts the applicant’s evidence but does not consider these matters constitute a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

9. Nothing adverse is known about the applicant’s compliance with visa conditions.

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

10. The applicant claims that if his visa is cancelled, his contact with his children will be reduced. The Tribunal accepts that physical contact will be reduced or, more likely, will cease if the applicant was to leave Australia. The applicant told the Tribunal that he cannot leave his children and, given the applicant’s involvement with the children, the Tribunal accepts that separation with the children will cause considerable hardship to the applicant and the children.

11. The applicant told the Tribunal that he has formed relationships in Australia and people will be saddened if he was to leave Australia. The Tribunal is prepared to accept that evidence but the Tribunal is not satisfied these matters amount to hardship.

12. The applicant states in his written evidence that if he cannot work in Australia, he cannot provide financial support to his children, or his capacity to provide such support will be reduced. In oral evidence the applicant states that when the children are with him, he pays for all their expenses and he is willing to take over the responsibilities for the children altogether. The applicant states that his income in Ukraine would be low and he and his children would experience financial hardship. The Tribunal is prepared to accept that the applicant’s income may be reduced if he were to live in Ukraine, although it is likely, in the Tribunal’s view, that his daily living expenses (such as accommodation, food, transport, etc) may also be reduced. The applicant has not satisfied the Tribunal that he would be unable to find gainful employment, even if his income is reduced, and continue to provide financial support to his children. More significantly, the applicant has not satisfied the Tribunal that the children would experience financial hardship even if any financial support they receive from the applicant is reduced. The Tribunal is not satisfied on the evidence before it that the children do require the financial support from the applicant, even if such support is being provided. There is little evidence as to what other support the applicant may provide, for example from his savings or the sale of any assets or funds from his family members or through a loan. It is possible that the children also receive financial support from the Australian government. Even if the applicant ceases his financial support altogether and the children’s financial support is reduced, the applicant has not satisfied the Tribunal that the children would experience financial hardship in such circumstances.

13. The applicant claims it would be difficult for him to find a job in Ukraine. He has not presented probative evidence to support that assertion. The applicant may have supported himself in his home country before travelling to Australia. It is not readily apparent why he will be unable to do the same in the future. The applicant has not presented evidence of having sought employment in Ukraine and of having been denied such employment. The Tribunal is not satisfied that the applicant would be unable to find a job in Ukraine. Thus, the Tribunal is prepared to accept that if the applicant was to return to Ukraine, his income may be reduced. However, the Tribunal is not satisfied that the applicant would be unable to support himself and that he or his children would experience financial hardship as a result of the cancellation.

14. The applicant states that he would experience psychological and emotional hardship as a result of the cancellation because he would not be able to fulfil his parenting duties in Australia. The applicant presented with his response to the NOICC a report from a psychologist, Ms Meylakh, who states that the applicant had been diagnosed with an Adjustment Disorder with mixed anxiety and depression and has been undertaking treatment and the applicant told the Tribunal that he has been seeing a psychologist regularly. The Tribunal accepts that evidence. The Tribunal is also mindful that Ms Meylakh states in her report that the mental health of the applicant’s children will be ‘significantly affected’ if the applicant was to leave the country. However, it is not apparent from her report that Ms Meylakh has seen the children or has conducted any assessment with respect to the children. The basis of this prognosis is therefore unclear.

15. The Tribunal accepts that the applicant wants to perform his parental responsibilities and that it would be difficult for him to do that if he was in Ukraine and impossible to maintain physical proximity to the children.

16. Generally, the Tribunal accepts that significant hardship would be caused to the applicant and his family if the visa is cancelled because this will reduce the opportunities for his interactions with children and because the applicant would have to re-establish himself in his home country and find employment and, if he chooses to, provide financial support to his children with a reduced income. The Tribunal accepts that these circumstances may cause emotional or psychological hardship to the applicant.

    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.

17. The ground for cancellation arises because the applicant has been convicted of a number of offences as a holder of a temporary visa.

18. The applicant explains in his evidence to the Tribunal that he had been subjected to family violence during the relationship with the sponsor but did not report the actions because he was fearful of his partner and did not wish the relationship to break down completely. The applicant explained to the Tribunal that he has limited English while his ex-wife has perfect English and is aware of her rights, so she was more successful when dealing with the police. The Tribunal does not accept that evidence because the applicant would have been provided with an interpreter during any police interview and in any proceedings before the courts. The Tribunal does not accept that the convictions resulted from the applicant’s lack of English.

19. In oral evidence the applicant concedes that he had breached the AVO. The applicant explained the circumstances leading to each of the convictions. The applicant states that on one occasion he observed his wife having relationship with another man and told her that he wanted to divorce and his wife became aggressive and pushed his head into the wall. The applicant states that he attended a hospital as he had damage to his head. The neighbours called the police and because his wife was scared, she lied to the police stating that he was the one who damaged the wall. When his ex-wife calmed down, she wrote a letter to the court recanting her evidence but the court did not take it into account.

20. The applicant states that on another occasion, his wife called him and asked him to come over and put the children to bed as they missed him but when he came near her house, he saw his wife filming him and he realised she wanted to use it against him, so he did not go in. She called the police and he was found to have breached the AVO. The applicant states that while he did breach the AVO, he acted in the best interests of the children.

21. The applicant states that the last occasion was when he was told his father passed away in Ukraine and he wanted to inform his wife about it. He had prepared to fly out of Australia and given the circumstances, his emotions took over his mind so he called his wife to tell her about his father’s death and to say goodbye to the children. She drove him to the airport and they said goodbyes and after he left, his ex-wife informed the police that he had breached the AVO so as to make difficulties for him. When he returned to Australia, he was convicted. The applicant states that while he did breach the AVO, the court did not consider his extenuating circumstances.

22. The applicant states that he is a teacher and has been working with children for many years. He is a calm person and could not engage in aggressive conduct. He states that his ex-wife is a former sports person who is stronger than him and could do anything to him. The applicant provided statements from his former partner stated that the conduct leading to the convictions ‘did not happen’ and that the breach is a mistake. The applicant states that his ex-wife had provided statements to the police and the court admitting that she was the one being aggressive, particularly when she was drunk and that her claims were manipulative. The applicant states that sometimes these statements were considered by the court and he was found not guilty. However, the Tribunal is satisfied that a conviction is probative evidence of the applicant’s guilt and that the criminal process would have considered the applicant’s conduct, and proven it, before convictions were recorded.

23. The Tribunal has formed the view that while the applicant concedes the ‘technical’ breaches of the law, his evidence suggests that all the conduct was instigated by his partner and that he had not engaged in any misconduct. The applicant does not appear to have any remorse for his actions and does not appear to recognise that he had engaged in any misconduct.

    Past and present behaviour of the visa holder towards the department

24. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

25. There are no persons who would be affected by the 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

26. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas and would have limited opportunities to make visa applications onshore.

    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. In oral evidence the applicant told the Tribunal that he was born in Crimea which had been forcefully annexed by Russia. The applicant states that he may be affected by the political situation in the country. The applicant has not explained how he personally would be affected by the situation and the Tribunal found his claims to be generalised and uninformative. The Tribunal does not accept that Australia has non-refoulement obligations with respect to the applicant.

2. The applicant has two minor children who are Australian citizens. The applicant’s evidence to the Tribunal, which is accepted, is that the applicant has a close and meaningful relationship with his children, actively participates in decisions about their daily living, spends considerable time with the children and has an ongoing court case in relation to his parental responsibilities.

3. The applicant told the Tribunal that the children’s mother is aggressive towards the children and does not manage her parental responsibilities properly. He states that his ex-wife had been taking drugs in the past, which had affected her mental state. She had left the children on their own for the entire night.

4. The Tribunal accepts that it is in the best interests of the children to maintain the relationship with their father.

   Any other relevant matters

5. The applicant provided to the delegate a number of character references and the Tribunal accepts that those who provided references believe the applicant to be a good person and a good father to his children. The Tribunal is mindful that some of the references do not refer to the applicant’s convictions, so that when forming a view about the applicant’s character, it is not apparent that the writers were aware of the applicant’s convictions. There is a statement from a community organisation which refers to the applicant working as a volunteer and contributing to the community. The Tribunal accepts that evidence.

6. There is a statement from the applicant’s employer Mr Rymovskyy who claims the business will be adversely affected if the applicant was to leave. The Tribunal does not accept that evidence. The Tribunal is also of the view that Mr Rymovskyy may have appreciated the fact that the applicant is free to leave the business at any time and to change his employment. There is no guarantee that the applicant would be employed at the same business for any period of time. Thus, it is likely, in the Tribunal’s view, that Mr Rymovskyy would have made alternative arrangements, should the applicant be unavailable or unwilling to contribute to the business. That is normal business practice. The Tribunal does not accept that there will be adverse consequences to the business, should the applicant’s visa be cancelled.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa as the applicant held a temporary visa and had been convicted of offences. The Tribunal considers offences relating to family violence to be serious and the applicant had been convicted of several breaches of the AVO. The Tribunal has formed the view that the applicant does not appreciate the seriousness of the offences and has little remorse for the breaches of the law.

8. However, the Tribunal places greater weight on the best interests of the applicant’s children. The evidence establishes that the applicant has a close relationship with his children, that he has been granted access and sees his children regularly and is pursuing parenting orders. The Tribunal accepts that it would be difficult for the applicant to maintain such a relationship if he was to leave the country. In the particular circumstances of this case, the Tribunal has formed the view that this consideration outweighs the reasons why the visa should be cancelled.

9. The Tribunal also accepts the applicant’s evidence that hardship would be caused to him if the visa is cancelled. The Tribunal also accepts that the applicant is settled in Australia and is contributing to the community.

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

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member