Ahmadzai (Migration)

[2018] AATA 1446

Ahmadzai (Migration) [2018] AATA 1446 (18 April 2018)

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DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Khatira Ahmadzai

CASE NUMBER:  1709649

DIBP REFERENCE(S):  BCC2016/1580319

MEMBER:  A B Baker

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 April 2018 at 2:45 pm (QLD time)

DATE OF WRITTEN RECORD:               18 April 2018

PLACE OF DECISION:  Brisbane

Statement made on 18 April 2018 at 4:56

CATCHWORDS
Migration – Cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 204 (Woman at risk) – Incorrect information – Single – Formal engagement – No effective male protection

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 April 2017 to cancel the applicant’s Subclass 204 Refugee and Humanitarian (Class XB) visa under the Migration Act 1958 (the Act).

2. At the hearing on 18 April 2018 the Tribunal made an oral decision and gave an undertaking to provide written reasons within fourteen days. The following is the written record of those reasons.

3. The delegate cancelled the visa on the basis that the applicant provided incorrect information in the application for her visa. The delegate also found that the document in which the incorrect information was made was a bogus document. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. He also attended the hearing and gave an oral submission at the end of the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

BACKGROUND

1. The applicant is a citizen of Afghanistan born on 1 January 1991 (27 years old).

2. The applicant arrived in Australia as a dependent on her mother’s XB-204 Women at Risk visa which was lodged on 22 September 2013 and granted on 31 December 2013. The applicant arrived with her mother in Australia on 16 April 2014. The applicant’s mother was referred to Australia for resettlement consideration from the UNHCR.

3. Of relevance to this case is that the applicant declared herself as “single” on both the application to the UNHCR (Folio 41 of the department’s file) and to the Australian government. It is a requirement of the subclass 204 visa that the applicant not be engaged or married or in a de-facto relationship.

4. On 11 June 2015 the applicant lodged an application to sponsor Mr Sohrab Sekandari to Australia as her prospective spouse under on a subclass 300 visa. Mr Sekandari is an Afghan citizen currently resident in Istanbul, Turkey.

5. Neither party has declared any previous relationships.

6. In assessing the applicant’s application to sponsor Mr Sekandari, the delegate noted that the parties had known each other for several years and were engaged in 2011 prior to the applicant departing Afghanistan for Pakistan in 2012. According to the delegate, the applicant admitted in her interview for the subclass 300 visa that she had provided false information about this material. The delegate also states that during this interview the applicant stated that she took off her engagement ring prior to the interview and that she didn’t declare her relationship as the engagement was just between families.

7. In response to the Section 107 notice of intention to consider cancellation sent by the department to the applicant on 6 March 2017, the applicant sent a submission to the department on 28 March 2017 stating the following:

a.When she applied for the subclass 204 visa she was single and not engaged.

b.That the parents’ consent for the parties to be married does not amount to an engagement as her previous fiancé might find out and cause problems nor did they complete any engagement ceremonies as required by Afghan tradition to be validly engaged.

c.The ring given to her by Sohrab was not a “chela” which is used for engagement.

d.When she stated that she was single and not interested in marriage at the time of her application for a 204 visa she was not formally engaged to Sohrab and her parents had not given a definitive answer on their marriage

e.An engagement in Afghanistan is a major cultural event and because she had not been through this process she did not consider herself to be engaged.

f.She removed all of her jewellery prior to her interview, not just her ring.

g.The interpreter at the department’s interview spoke a different dialect and therefore some information may have been misunderstood

h.The profession of their mutual love to each other and the commitment they made to each other on 3 January 2011 was informal and she did not consider this to be an engagement.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

2. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

3. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

Was there non-compliance as described in the s.107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

2. The delegate cancelled the applicant’s subclass 204 visa under section 109 of the Migration Acton the basis that there was non-compliance under s.101(b) and 103 in relation to the grant of the applicant’s subclass 204 visa.

3. S 101 (b) relates to the provision of incorrect information on an application for a visa, in the applicant’s case in her application for a subclass 204 visa. The delegate found that the applicant provided an incorrect answer to question 3 of form 842. In response to this question the applicant declared that her marital status was single when it appears that she was engaged on 3 January 2011.

4. The delegate also cancelled the visa under S.103 which refers to the provision of a bogus document. The delegate also found that the applicant provided a bogus document to the department in support of her subclass 204 visa in relation to the UNHCR Refugee Resettlement Form, where it was also recorded under her marital status that she was “single”.

5. The evidence given by the applicant and her mother at the Tribunal’s hearing over almost 2 hours was compelling, consistent, logical and persuasive. For the following reasons the Tribunal substitutes a decision not to cancel the applicant’s visa.

6. Both the applicant and her mother were questioned about the interview at the offices of the UNHCR in respect to their resettlement. Both told the Tribunal that the officers at the UNHCR only asked the applicant if she was married; to which she responded “no”. Both she and her mother claimed that no further questions were asked about her marital relationship including whether she was in a de-facto relationship or divorced.

7. The Tribunal accepts this evidence as a truthful recollection of events. The record of the UNHCR’s decision in relation to her refugee claims identifies the applicant as an “unmarried young woman without effective male protection in her country of origin or her country of asylum”. This is unequivocally true in the Tribunal’s mind.

8. The applicant and her mother told the Tribunal that she and Mr Sekandari never lived together either formally or informally in a de facto relationship; they were not recognised by the village elders as engaged; they did not conduct the formalities required of a recognised “engagement”; they did not engage in sexual relations. Mr Sekandari did not provide physical or financial support in any way particularly as that would not have been tolerated by their community. It seems to the Tribunal that they only made a commitment to marry at an undetermined future date at a time when both of their futures looked not only uncertain, but unlikely - and they were in love. Such circumstances do not, in the Tribunal’s mind, constitute anything resembling what the Migration Act or the applicant would consider a formal “engagement”.

9. The UNHCR decision records the applicant as single without any further discussion about her status. That they recorded it in such a way when the applicant merely confirmed that she was not married, is not something that can be viewed as a deliberate deception, let alone the foundation of what the delegate has found to be a bogus document.

10. For these reasons, the Tribunal is not satisfied that the applicant was non-compliant with s.103 of the Migration Act.

11. The Tribunal questioned the applicant about why she therefore declared in her 300 application that she and Mr Sekandari were engaged on 3 January 2011. The applicant was confused by this question and sought clarification. The Tribunal gave her a copy of the document and with the assistance of her representative and the interpreter understood the question. The applicant told the Tribunal that when that form was completed by her then agent, she had basically told him her life story and he filled in the form as a result. She claims that at the time she had emphasised to him time again that she had never been in a de facto relationship or married in the past and that she was single. Whilst she accepted it was her responsibility to make sure the facts in the application was true, she vigorously maintained that she did not tell her agent that she was engaged at any time.

12. The Tribunal asked the applicant why her agent put be so specific as to put in the date that they were allegedly engaged. The applicant said that she told him her life story and on that date Mr Sekandari and she promised each other that they would marry in the future. She said that this did not amount to a formal marriage as the village elders were not informed and there was no temporary Nikah or formal celebration. The applicant’s mother corroborated this evidence when questioned.

13. Parenthetically, and to be fair to the applicant, question 21 of the form 40SP asks the applicant to choose one of three alternatives regarding her current relationship status with Mr Sekandari as follows:

a.Married

b.Engaged

c.De-facto

1. It seems to the Tribunal that she had no option but to choose “engaged” as she was most assuredly not married or in a de-facto relationship with Mr Sekandari.

2. Equally, the delegate in their decision at paragraph 18 states that “had this information been provided (that she was allegedly engaged), the visa holder may not have been granted the visa. Emphasis added.

3. It seems unlikely that a semantic misunderstanding, for that is all it is, would have prevented the delegate from granting the applicant a subclass 204 visa. She was not married or in a de-facto relationship. She did not have the effective protection of a male. Indeed, the UNHCR decision states at paragraph 35 (Folio 32 of the department’s file), “As a recognised refugee, the forcible return of the applicant to Afghanistan would amount to refoulement.” Paragraph 36 “She is a woman at risk; she has immediate legal and physical protection needs and she has no foreseeable alternative durable solution.”

4. The UNHCR recommended her case be considered by Australia as an urgent priority. Emphasis in original.

5. For these reasons the Tribunal is not satisfied that the applicant provided incorrect information and hence the Tribunal is not satisfied that the applicant was non-compliant with s.101(b) of the Migration Act.

CONCLUSION ON NON-COMPLIANCE

1. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 204 (Woman at Risk) visa.

AB Baker

SeniorMember