Ptashko (Migration)

This matter concerned an application by Mr Ptashko to the Administrative Appeals Tribunal (AAT) concerning the cancellation of his Subclass 309 Spouse (Provisional) visa. The AAT was required to consider whether the visa should be cancelled, following the existence of a ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel Mr Ptashko's visa, notwithstanding the existence of a ground for cancellation. The Tribunal had to weigh various factors, including the purpose of the visa, the applicant's circumstances, and any compelling reasons for him to remain in Australia.

The Tribunal reasoned that while the original purpose of the Partner visa, to remain with his partner, could no longer be fulfilled due to the irretrievable breakdown of the relationship and divorce, other compelling factors existed. Mr Ptashko had two young children in Australia with whom he maintained a meaningful and regular relationship, and ongoing parenting proceedings were before the Federal Circuit Court. The Tribunal accepted that the presence of these minor children and his parental responsibilities constituted a compelling reason for him to remain in Australia, and that his ability to maintain this relationship might be significantly limited if he were to return to Ukraine.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr Ptashko's Subclass 309 visa.