Stewart (Migration)

[2022] AATA 3482

Stewart (Migration) [2022] AATA 3482 (16 September 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Lee Alexander Stewart

REPRESENTATIVE:  Mr Ernie Hu

CASE NUMBER:  2200899

HOME AFFAIRS REFERENCE(S):           BCC2021/972898

MEMBER:  Wan Shum

DATE:  16 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 16 September 2022 at 1:55pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 489 Skilled – Regional (Provisional) – member of the family unit – relationship ceased – purpose of the stay has not changed – support for child – child support payments – new relationship with an Australian citizen – emotional and financial hardship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 January 2022 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 (Cth) (the Act).

1. The applicant was granted the visa as the member of the family unit of Ms Gillian Long, who met the primary criteria for the grant of a Subclass 489 visa. On 21 April 2021, the Department was advised that the relationship had ceased.

1. As a consequence, the delegate cancelled the visa under s 116(1)(a) on the basis that the fact or circumstance for the grant of the visa to the applicant no longer exists. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

1. The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Melanie McLeod.

1. 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

1. 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.

1. The applicant was granted a Subclass 489 visa on 9 January 2020 on the basis that he was the member of a family unit of Ms Gillian Long.

1. The applicant was sent a notice of intention to consider cancellation (NOICC) on 20 September 2021, because the Department had been advised on 21 April 2021 that the applicant’s relationship with Ms Long had ended and they were no longer living together.

Does the ground for cancellation exist?

1. 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.

1. In submissions received prior to the hearing, it was acknowledged that the applicant’s relationship with Ms Long has ceased which means that he is no longer a member of Ms Long’s family unit and that grounds for cancellation under Section 116(1)(a) of the Migration Act 1958 exist.

1. The applicant confirmed that his spouse relationship with Ms Long had ceased as of early March 2021. As the relationship was the basis for the grant of his Subclass 489 visa, the Tribunal is satisfied that the decision to grant the visa was based on a fact which no longer exists and that there is a ground for cancellation under s 116(1)(a). 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

1. 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’.

1. The applicant’s evidence to the Tribunal is that he wishes to remain in Australia to maintain his relationship with his son, Master Jay, and also because of his relationship with Ms McLeod.

1. In terms of the former, it was submitted that the main purpose of the applicant’s stay in Australia as a secondary visa holder at the time was so he could remain in Australia with the members of his family unit, namely Ms Long, and his son, Jay Ian Stewart. While it was acknowledged that the applicant’s relationship with Ms Long had ceased, it was submitted that the purpose of his stay in Australia has not changed in that he still wishes to remain in Australia so that he can continue his care and support for Master Jay. This was submitted is a significantly compelling need for the applicant to remain in Australia.

1. The applicant gave evidence that he currently has access to Master Jay 3 nights a fortnight, picking him up from school on Friday afternoons and then dropping him off at school on Monday mornings. It appears that the parties have not formalised the custody agreement for Master Jay which the applicant stated that he wishes to do to ensure regular access, noting that his evidence is that Ms Long reduced access from 4 nights a fortnight to 3 nights following a disagreement and will not allow him to have any phone contact with Master Jay until the next access weekend. The applicant talked about his close relationship with Master Jay and that he wishes to be present and actively involved in his child’s life. The evidence provided reflects that the applicant has been paying child support and the Tribunal accepts that the applicant and also Ms McLeod are actively involved in his son’s life. The Tribunal accepts that the applicant shares parenting responsibilities for Master Jay as his father and has considered his wish to increase the time he has access which, in practical terms, would require that they live near each other.

2. In terms of his de facto relationship with Ms McLeod, who is an Australian citizen, the Tribunal accepts that they are in a committed relationship. The Tribunal accepts on the evidence provided that they live together and share aspects of their household and finances including the support and care of Master Jay when he is with them and also Ms McLeod’s minor daughter, Miss Morgan Gobius. The evidence before the Tribunal is that Ms McLeod is currently pregnant and is due to give birth on 13 December 2022. The applicant gave evidence that he has started a new job recently to increase his income in order to be able to provide for his family with Ms McLeod, and it was submitted that the applicant’s departure from Australia would cause significant emotional hardship to Ms McLeod while also causing financial hardship to them as well given the family’s joint finances.

1. Having considered the submission as to the degree of hardship that may be caused to the applicant and others, the Tribunal accepts that cancelling his visa would result in significant emotional hardship to him due to separation from Master Jay as well as his de facto partner, Ms Melanie McLeod, with whom he is expecting a child. It was submitted that Master Jay would be unable to return to the United Kingdom with the applicant if his visa remained cancelled as it would cause disruption to his studies and result in separation from his mother. The Tribunal was also provided with information from VEVO in respect of Master Jay Stewart which reflects that his Subclass 489 visa has been extended allowing him to stay until 9 January 2027, which indicates that Ms Long’s visa has also been extended until that time. As Master Jay lives with Ms Long, the Tribunal accepts that it would be unlikely that Master Jay would leave Australia with the applicant if the visa remained cancelled.

1. The circumstances in which the ground for cancellation arose was identified as being due to a change of circumstances in which the applicant and Ms Long separated. It was submitted that this is not a case of the applicant no longer having custody of his children or where family violence is involved but that the separation is simply due to irreconcilable differences between the applicant and Ms Long. The applicant gave evidence that there had been a Temporary Protection Order in force but that the application for a Domestic Violence Order made by Ms Long was dismissed by the Magistrates Court. The letter from his acting lawyers for that matter confirms that the matter was dismissed on 15 September 2021 due to insufficient evidence against the applicant. On the information before it, the Tribunal considers that this supports a conclusion that the parties separated because of a relationship breakdown only, noting that the applicant continues to have access rights to Master Jay. The representative submitted that given the relationship between the applicant and Master Jay, cancellation of the applicant’s visa would result in a breach of both the Convention of the Rights of the Child and ICCPR as it is clearly in Master Jay’s best interest as a minor child for the applicant to remain in Australia. The Tribunal accepts that Master Jay’s interests would be best served where both his parents are in the same city or surrounds, whether that is in Australia or another country.

2. There is no evidence before the Tribunal of non-compliance with visa conditions. It was submitted that during the period the applicant was unlawful following the visa cancellation, he did not work until he obtained work rights. There is nothing before the Tribunal which indicates otherwise. Nor is there any information which suggests that the applicant has not been truthful in all his dealings with the Department and with the current appeal to the Tribunal.

1. The Tribunal has taken into account the other matters raised by the applicant’s representative, that he is gainfully employed, and has also taken into account various personal reference letters for the applicant from Australians. It appears that he has been welcomed into Ms McLeod’s extended family.

1. Finally, the Tribunal has turned its mind to the existence of a different visa pathway that appears to be available based on his relationship with Ms McLeod. However, the Tribunal accepts the submissions that due to the s 48 bar and not holding a substantive visa, the applicant would risk a visa refusal should he apply for a partner visa with Ms McLeod as his sponsor. The Tribunal is cognisant that the Subclass 489 visa is a temporary visa whereas he has expressed a desire to remain permanently but acknowledges that reinstatement of the visa will allow the applicant better prospects of success with a partner visa sponsored by Ms McLeod.

1. Having regard to all of the circumstances, the Tribunal is persuaded that the matters supporting the visa not being cancelled, which includes the hardship likely to arise for the applicant, Master Jay and Ms McLeod, outweigh the fact that the relationship upon which the visa was granted to him no longer exists. Given this, the Tribunal concludes that the visa cancellation should be set aside.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Wan Shum Member