Zeb (Migration)

[2021] AATA 5432

Zeb (Migration) [2021] AATA 5432 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jibran Zeb

REPRESENTATIVE:  Mr Nilesh Nandan

CASE NUMBER:  2105878

HOME AFFAIRS REFERENCE(S):          BCC2020/2839090

MEMBER:Mary Sheargold

DATE:20 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 20 December 2021 at 4:47pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa– applicant ceased to be the spouse of primary applicant – he was no longer a member of her family unit –relationship breakdown – best interest of the child – significant financial hardship – decision under review set aside

LEGISLATION
Migration Act 1958, ss 5F, 116, 375
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) 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 he was no longer the member of a family unit of the holder of a Subclass 485 visa who met the primary criteria. 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 by MS Teams video link on 17 December 2021 to give evidence and present arguments.

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

   Non-disclosure certificate issued pursuant to s.375A of the Act

5. The Tribunal notes that the Department places a non-disclosure certificate pursuant to s.375A of the Act in respect of a statutory declaration made by the applicant’s wife provided to the Department in support of her application to have his visa cancelled.  At the hearing, the Tribunal alerted the applicant to the existence of this certificate and invited him to comment on its validity, noting the Tribunal’s view that it appeared it had been issued validly.  After the hearing, the applicant’s representative submitted that the certificate was not valid.  The representative argued:

   While the certificate ostensibly appears to comply with the terms of section 375A, the better view is that the (earlier) decision to issue the certificate is a decision which is infected with a jurisdictional error rendering the certificate invalid.
   
   The error is that the law of public interest immunity mandates the certificate author to evidence an active intellectual engagement with the competing interests of disclosure to the review applicant on the one hand and the public interest not to disclose on the other hand.
   
   As there is no evidence of any such engagement, the certificate cannot be authorised by law.
   
   Any other consideration of the certificate would result in a not-to-be-preferred outcome, defeating the scope, purpose and object of the Act because every document, if offered to the Department "in confidence", would provide work for section 375A to do. That simply cannot be the intention of the legislature.

6. The Tribunal acknowledges the difficulty the applicant faces in circumstances where the contents of his wife’s statutory declaration may have some relevance to the application as it currently stands.  In fact, the Tribunal notes that it does allude to the contents of that statutory declaration at various points in its findings set out below.  However, whilst the Tribunal accepts the representative’s arguments with respect to the potential jurisdictional error regarding the validity of the certificate on the basis that no evidence of active intellectual engagement with the competing interests of disclosure to the applicant versus the public interest not to disclose, it finds that the certificate itself, in its present form, is valid nonetheless.  For completeness, the Tribunal notes that the applicant is not prejudiced in any way as a result of this finding.

7. 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

8. 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

9. 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.

10. The evidence before the Tribunal makes plain that the applicant and his wife are permanently separated and as such, he is no longer her spouse within the definition of that term in s.5F of the Act.  It follows that he is, therefore, no longer the member of the family unit of the primary visa holder and the circumstance for the grant of his visa as a secondary applicant no longer exists.  The applicant agrees with the delegate’s assessment and does not dispute that the ground for cancellation exists. 

11. Based on the evidence before it, 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

12. 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’.

13. The delegate’s weighting of the various matters in the PAM3 indicate to the Tribunal that the factors in favour of cancelling the visa only slightly outweighed the factors against cancelling the visa.  Of the 8 matters considered by the delegate, one could be afforded no weight, 5 were afforded weight against cancelling the visa and 2 were afforded weight in favour of cancelling the visa.

14. The Tribunal will consider the matters highlighted in the PAM3 in determining whether or not it should exercise the discretion to cancel the applicant’s Subclass 485 visa.

15. Relevantly, at the hearing, the applicant explained that he had met his wife while they studied at university where he completed a Master of Business Administration degree and she studied bioinformatics.  He told the Tribunal that he accompanied his wife to Australia after she obtained a Fulbright scholarship to complete a Doctor of Philosophy degree in Western Australia.  Approximately halfway through her studies, she gave birth to their son.  She took 2 to 3 weeks of maternity leave, then returned to her studies full time.  The applicant cared for their son as a full time primary caregiver from then on, caring for their son whilst his wife attended university during the day, and providing the family with income by working as an Uber driver in the evening.

16. The applicant told the Tribunal that at the completion of her studies, his wife obtained a graduate position in Melbourne, and the family relocated to Clayton.  He explained to the Tribunal that marriages are built on trust, and that upon discovering his wife was operating 2 separate Facebook accounts, he confronted her, which led to a verbal altercation culminating in her calling the police.  The applicant told the Tribunal that this occurred in March 2020.  He told the Tribunal it was not the first significant argument they had since relocating to Melbourne in 2019, as they had struggled with the adjustment to life in Melbourne and their new community surrounds.  The applicant told the Tribunal that the police offered to apply for a family violence intervention order on her behalf, and that his wife accepted this offer.

17. The applicant told the Tribunal that upon issue of the first family violence intervention order in March 2020, he was able to remain in the home and he continued living with his wife and his son.  However, a subsequent dispute in August 2020 led her to have the police file a further application including a no contact order.  At this time, the applicant left the family home and is now permanently separated from his wife.  The applicant advised the Tribunal that he is in the process of contesting his son’s inclusion in the family violence intervention order as he believes there is no evidence available supporting the need for him to be protected by it. 

18. He explained to the Tribunal that he is seeking consent orders with respect to the ongoing parenting of their son, and is currently pending advice from his wife in this respect.  He told the Tribunal that if she does not agree to parenting orders by consent, he will contest the matter in the Federal Circuit and Family Court of Australia.  The applicant told the Tribunal that he has regular contact with his son.  His wife brings him to see him on Wednesdays and either Saturday or Sunday.  He told the Tribunal that she leaves him alone with their son during these visits and that she drops him off and collects him herself.  The applicant confirmed that his time with his son is limited to several hours per week, but that he is hopeful of spending more time with him in the future.

19. The Tribunal notes the applicant’s son recently turned 5 and is about to commence his primary school education in Melbourne.  The applicant told the Tribunal that he is enrolled in both a private religious-based school, Minaret College, as well as Clayton North Primary School, and that he is most likely to attend Clayton North Primary School in the new year.  The applicant has provided written statements and photographs to the Tribunal addressing his special relationship with his son.  With this background in mind, the Tribunal will address the considerations relevant to the cancellation of the applicant’s Subclass 485 visa.

    The purpose of the applicant’s travel to and stay in Australia, and whether the applicant has a compelling need to travel to or remain in Australia

20. As set out above, the purpose of the applicant’s travel to and stay in Australia was to support his wife and family while she obtained her doctoral degree, and he has stayed here to support his family while she completes her graduate placement.  The applicant’s young son was born in Australia and will continue to live here with his mother.  The Tribunal notes the applicant’s wife has applied for a permanent visa for herself and for the applicant’s son to remain in Australia and that the applicant has willingly consented to giving his son the opportunity to remain here permanently despite not being included in the permanent visa application himself.  The Tribunal notes his son’s permanent remainder in Australia is a compelling reason for the applicant to remain in Australia, and the Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

21. The only condition attached to the applicant’s Subclass 485 visa, condition 8501 (to maintain health insurance). There is no information before the Tribunal to indicate that the applicant has not complied with this condition.  Further, there is no information before the Tribunal to indicate that the applicant has not complied with any other conditions attached to his previous visa.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    The degree of hardship that may be caused to the applicant and any family members

22. As set out above, the applicant has a 5 year old son and the applicant’s wife has applied to remain permanently in Australia with their son.  The applicant has not been included in that visa application.  The Tribunal acknowledges that the applicant lived with his wife in Australia for almost 6 years prior to their separation, which occurred almost 16 months ago.  The applicant was the primary caregiver for his son until the time he separated from his wife.  Despite a final family violence intervention order being issued against the applicant in respect of his wife and son, his wife brings his son to see him twice a week and he has one-on-one contact with him at this time. 

23. The applicant holds a Master of Business Administration yet chose to accompany his wife to Australia so she could gain a higher qualification.  He supported his family financially during this time by engaging in occupations that do not require the level of skill and qualification he possesses.  In short, the applicant has sacrificed over 7 years of opportunity to build a career in business in order to support his wife’s study and further endeavours, and to raise their son as a primary caregiver until he was almost 4 years old.

24. The applicant’s representative highlighted that the applicant would suffer severe financial hardship if his visa was cancelled and he was required to return to Pakistan, noting the impracticality of the applicant engaging in a higher level job after his time working as an Uber driver and courier in Australia for 7 years, and the fact that it would become cost prohibitive for him to fly back to Australia to see his son.  The Tribunal accepts that it is highly likely that the applicant would face significant financial hardship both in the immediate term and the longer term if his visa is cancelled.

25. The applicant would also be denied an opportunity to keep up his physical relationship with his son if his visa was cancelled and he was returned to Pakistan.  Given the special significance of the role the applicant played in his son’s life in the first 5 years as his primary caregiver for the majority of that time, the Tribunal considers the cancellation of the visa would cause hardship to both the applicant and his son.  Taking this into account, the Tribunal gives this consideration some weight against cancelling the visa.

    The circumstances in which the ground for cancellation arose

26. The Tribunal notes that the circumstance in which the ground for cancellation arose in the applicant’s case is the breakdown of the relationship between him and his wife.  The Tribunal notes the Department’s policy guidelines, indicating that the presence of family violence as a contributing factor to the relationship breakdown is an important consideration when weighing up this consideration.  The delegate did not address the allegations of family violence made by the applicant’s wife in assessing this criterion. Rather, the delegate focused on the fact that the applicant did not provide details regarding the breakdown of his marriage as part of his response to the Notice of Intention to Consider Cancellation of his visa as the basis for giving this consideration some weight in favour of cancelling the visa.

27. At review, the Tribunal was able to extrapolate from the applicant his interpretation of the circumstances leading to his marriage breakdown.  He repeatedly denied inflicting any physical harm on his wife and maintains their arguments, whilst sometimes heated, were typical of those you would expect in marriage.  It is apparent to the Tribunal that the applicant feels aggrieved by his wife obtaining a final family violence intervention order against him, especially as the order covers his son as well as his wife.

28. The Tribunal notes there is no evidence before it to corroborate his wife’s allegations relating to family violence.  At the time it makes its decision, the Tribunal notes that there are no photographs, hospital records, medical records, police reports, or any objective primary evidence available to support her claims.  Whilst the Tribunal gives weight to the fact that a magistrate was persuaded to issue a final family violence intervention order against the applicant in relation to contact with his wife and child, the Tribunal is not satisfied that, based on the current evidence available to the Tribunal, this particular consideration warrants more than a little weight in favour of cancelling the visa.

    The applicant’s past and present behaviour towards the Department

29. There is no information before the Tribunal to indicate that the applicant has been uncooperative with the Department in the past and notes that the evidence before the Tribunal indicates that the applicant has readily cooperated with the Department (and the Tribunal) in all aspects of this cancellation proceeding.  The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Any consequential cancellations that may result

30. The applicant is a secondary visa holder and so cancellation of his visa would not result in any consequential cancellations.  The Tribunal is therefore unable to give this consideration any weight either for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

31. The Tribunal notes that if the visa is cancelled, the applicant will become an unlawful non-citizen and he may be detained under section 189 of the Act and removed from Australia under section 198 of the Act if he did not voluntarily depart Australia.

32. The applicant’s representative submitted that the applicant would be subject to section 48 of the Act should his visa be cancelled, which would prevent him applying for any visa that he may genuinely be able to apply for while in Australia.  The delegate acknowledged that in addition to this, the applicant may not be permitted to work or study in Australia if his visa was cancelled.  The Tribunal gives this consideration a little weight against cancelling the visa.

    Australia’s international obligations

33. The applicant is a Pakistan national.  Cancellation of his visa would not impact Australia’s international obligations, nor would it be in breach of Australia’s non-refoulment obligations.

34. However, the Tribunal must consider whether cancellation of the applicant’s visa would be in breach of the Convention on the Rights of the Child (CROC).  CROC states that the best interests of the child must be the primary concern in making decisions that affect them and that in considering visa cancellation, the consequences – specifically whether a child will be separated from the family unit – must be at the forefront of the assessment.

35. The delegate noted that information before the Department indicated that the applicant’s wife is the primary carer of their son.  The Tribunal notes that upon review of the document in the Departmental file stating this fact, it is plain that the applicant’s wife only assumed this role when the applicant was required to leave the family home due to the family violence intervention order and breakdown of his relationship with his wife.  The delegate also noted that whilst the applicant would be separated from his son if his visa was cancelled, he would have the ability to apply for an appropriate visa offshore if he wished to be part of his son’s life.

36. The Tribunal rejects the delegate’s characterisation of the circumstances surrounding the applicant and his son.  The evidence before the Tribunal leads to the conclusion that the applicant is a committed father who has sacrificed his career and prospects for the sake of his son, that he has built a special and deep bond with his son, and that, in spite of obtaining an intervention order against him, the applicant’s wife brings his son to him frequently for visits.  While the Tribunal gives weight to the fact that the applicant’s contact with his son has been severely limited since he ceased living as part of his family unit, the Tribunal also considers the fact that the applicant is in the process of trying to obtain more regular and deep contact with his son as an important consideration.  The family law process in Australia needs time to be followed appropriately, and it would be unreasonable to give too much weight to the nature of the applicant’s present arrangements with his wife regarding contact with his son.

1. The Tribunal notes it would be next to impossible for the applicant to successfully prosecute any claim he may wish to litigate with respect to permanent parenting orders in the Federal Circuit and Family Court of Australia if his visa is cancelled and he is required to return to Pakistan.  The Tribunal is of the view that the applicant has next to no skilled migration options at this time, nor would he have any access to appeal rights if he applied for a visa offshore and had that visa application rejected by the Department.  The Tribunal’s view is that it would prejudice the applicant’s son, who is about to commence formal schooling, if his father were to leave Australia in the immediate term.  The Tribunal’s view is that this is not an appropriate time for the applicant’s son to have to grapple with the emotions that may arise if his father leaves Australia uncertain as to if and when he may see him again.

2. Therefore, in all the circumstances, the Tribunal gives this consideration some weight against cancelling the visa.

3. In summary, the Tribunal finds that almost all the considerations before it weigh in favour of not cancelling the applicant’s visa at this time.  The Tribunal notes that the Department is not precluded from making a further cancellation of the applicant’s visa should circumstances change or further evidence come to light regarding the applicant’s contributions to the breakdown of his marriage.

4. Considering the circumstances as a whole at the time of its decision, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

   Mary Sheargold
   Member