Al-Hameed (Migration)

[2019] AATA 6120

Al-Hameed (Migration) [2019] AATA 6120 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fatimah Mahmood Al-Hameed

CASE NUMBER:  1817113

HOME AFFAIRS REFERENCE(S):          BCC2018/2200015

MEMBER:Kira Raif

DATE:16 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 16 October 2019 at 5:29pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – sponsor husband’s visa cancelled – applicant wife’s partner visa cancelled as consequence – discretion to cancel visa – factors for and against cancellation – husband left home country at young age, and does not have documentation – no right to enter any other country – wife’s previous unsuccessful visa applications using incorrect information and bogus documents – current successful visa application using correct information and documents – security and safety in home country – best interests of children, including two Australian citizens – family’s settled life in Australia – husband’s family in Australia, wife’s in home country – wife did not inform Centrelink of cancellation of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140(2), 359A

CASE

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 25 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.140 of the Migration Act 1958 (the Act).

2. The applicant is a national of Iraq, born in October 1986. She was granted the Class BC Partner visa on 29 September 2012 on the basis of her marriage to, and sponsorship by, Mr Mikdad Mithafar. On 4 April 2014 Mr Mithafar’s visa was cancelled under s. 109 of the Act because it was determined that he did not comply with s. 101 of the Act. On 25 May 2018 the Partner visa held by the applicant was also cancelled under s. 140(2) of the Act. Section 140(2) of the Act allows the Minister to cancel a visa if that person holds a visa only because another person holds a visa and that visa has been cancelled. The delegate also cancelled the visa held by the applicant’s minor child and it is the subject of a separate review before this Tribunal.

3. The Tribunal wrote to the applicant on 30 August 2019 pursuant to s. 359A of the Act. The applicant requested the Tribunal to await the outcome of the related application for review made by the applicant’s husband, which was done, and to allow her more time to provide submissions. The applicant’s representative provided a detailed submission to the Tribunal, with a number of supporting documents on 10 October 2019, less than a day prior to the scheduled hearing. No explanation has been offered by the applicant’s representative for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Ms Sai Sivalohan of Turner Coulson Immigration Lawyers.

4. The applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Does the ground for cancellation exist?

5. Information on the Departmental file indicates that the applicant was sponsored in her Partner visa application by Mr Mikdad Muthafar. Mr Muthafar’s visa was cancelled by the delegate on 4 April 2014 and this information was the subject of the Tribunal’s correspondence under s. 359A of the Act. In oral evidence to the Tribunal the applicant confirmed that her husband’s visa has been cancelled.

6. The Tribunal finds that the visa held by Mr Muthafar has been cancelled under s. 109 of the Act. The Tribunal finds the applicant is a person to whom s. 140(1) does not apply. The Tribunal further finds that the applicant is a person who held a visa only because Mr Muthafar held a visa. As Mr Muthafar’s visa has been cancelled under s. 109, the Tribunal finds there are grounds for cancelling the applicant’s visa under s. 140(2) of the Act.

   Consideration of discretion

7. As the Tribunal has decided that there is a ground for cancelling the visa, it is necessary to consider whether the visa should be cancelled. Cancellation in this context is discretionary. In deciding whether to cancel the visa, the Tribunal has had regard to the considerations set out below. Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248.

   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

8. The purpose of a Partner visa is to enable the visa holder to remain in Australia with her partner. However, the visa held by the applicant’s partner has now been cancelled. The Tribunal has formed the view that the applicant is no longer able to fulfil the purpose of her visa because she can no longer remain in Australia with her partner who is not a holder of an Australian permanent visa. The applicant told the Tribunal that her husband will apply for another visa, as he cannot return to Iraq. However, unless and until he is granted a permanent visa, the husband is not an Australian permanent resident and cannot remain in Australia on a permanent basis. It cannot be assumed, in the Tribunal’s view, that a permanent visa will be granted.

9. The applicant told the Tribunal that her husband had not lived in Iraq and does not have Iraqi citizenship or papers. She claims her husband cannot return to Iraq and they will try to get another Australian visa. The applicant states that her husband left Iraq when he was very young. There is no evidence before the Tribunal that the applicant’s husband is stateless or that he cannot acquire citizenship of any other country but distinction must be made between having citizenship and the papers evidencing such citizenship. The Tribunal accepts that the husband may not have any citizenship papers at present. However, the applicant has not established that her husband cannot obtain the citizenship of another country, such as Iraq. There is no evidence of any inquiries being made about his citizenship or of any steps being undertaken to acquire or re-establish the citizenship and of the husband being denied the citizenship of another country. The Tribunal does not accept on the evidence before it that the applicant’s husband is unable to acquire citizenship of another country. In any case, as noted above, he is no longer a holder of an Australian permanent visa and cannot remain in Australia permanently unless he is granted such a visa.

10. The applicant states that she and her husband should stay together. The Tribunal is mindful that the applicant does not only claim that they should stay together, but that they should stay together in Australia and not in any other country. As the applicant’s husband is no longer the holder of a permanent visa, it may be that the couple may have to stay together in another country.

11. The applicant spoke about the unsafe situation in Iraq. She states that she cannot take her children to Iraq, where they would not be safe, and they have nowhere else to go. This evidence is addressed below. The applicant told the Tribunal that she has a compelling need to stay in Australia because she has nowhere to take her children and cannot take them to Iraq. The applicant holds citizenship of another country and, as noted above, the Tribunal is not satisfied that her husband does not hold, or cannot acquire, the citizenship of another country. Nevertheless, having regard to the family’s circumstances, including the fact that the situation in Iraq may be unsafe and that the children are living in Australia and two of them are Australian born and Australian citizens and had never lived in any other country, the Tribunal accepts that the applicant may have a compelling need to remain in Australia.

    The extent of compliance with visa conditions

12. There is nothing before the Tribunal to indicate that the applicant had not complied with visa conditions.

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

13. This consideration has been addressed elsewhere in this statement. Essentially, the applicant refers to the length of time she has spent in Australia and the family’s inability to relocate to any other country, partly because her husband does not have the documents to live anywhere else and partly because of lack of safety in Iraq. The applicant spoke of the hardship as a mother and a human being and the hardship that would be caused to the children if they were to leave Australia.

14. The Tribunal accepts that considerable hardship would be caused to the applicant and the family if the visa is cancelled.

    Circumstances in which ground of cancellation arose

15. The ground for cancellation arises as the applicant held the visa because her husband held a visa and the husband’s visa has been cancelled under s. 109 of the Act.

16. The applicant provided a statement to the Tribunal on 7 October 2019 outlining the circumstances that led to the cancellation of her husband’s visa. The applicant states that after the fall of the regime in Iraq, she travelled to Iran and met her aunt’s son Mikdad and they started a love relationship. They agreed to get married and have contact without informing his family and they started contact in 2003 with the knowledge of her family. She travelled to Iran from time to time and after a couple of months became pregnant. They authenticated their (marriage) contract in 2005. After her husband travelled to Australia, she stayed with her family in Iraq hoping to join her husband. Her husband approached someone and told him their story and this person advised her husband to allege that she was her husband’s fiancé and to forge some papers. Her husband does not speak English and does not know anything about the laws, her husband called her and explained what this person advised and she explained this to her brother whose friend forged the formal papers. It was found that the papers were forged and her application was refused and she suffered from severe depression at the time. Her husband approached another migration agent and they submitted another application stating the full truth. She was granted the visa. Her husband applied for citizenship and passed the test but later they received the advice that the visa may be cancelled because they lied, even though they told the truth and the visa was granted.

    Past and present behaviour of the visa holder towards the Department

17. Information before the Tribunal indicates that on 29 September 2008 the applicant made an application for a Prospective Marriage visa using a different name of Fatmah Abdulbary. The applicant explained in her oral evidence to the Tribunal that in Iraq, they use the father’s name and grandfather’s name and the names she gave in her applications were not wrong. She had given the full papers to the migration agent. The Tribunal accepts that the names used by the applicant in the two applications may not have been falsified but the Tribunal finds that the two applications contained different names, which would have made it difficult for the Department to match the two applications.

18. The applicant was sponsored in her Prospective Marriage application by Mr Muthafar. Included in that application was the applicant’s son Hamed Shaker, born in January 2006. In that application the applicant stated that she met Mr Muthafar in June 2006 and they became engaged. The applicant claimed that her first husband was deceased. The applicant provided a number of personal and identity documents. A document examination report prepared by the Department found that that the death certificate for the applicant’s first husband, the applicant’s and her son’s national ID cards were counterfeit and that the custody document for the applicant’s son was based on the counterfeit death certificate. The applicant’s application for the Prospective Marriage visa was refused in March 2010.

19. In her submission to the Tribunal of 10 October 2019 the applicant admits that she provided counterfeit documents in her Prospective Marriage visa application lodged in September 2008. The applicant explains that her husband sought advice from a migration agent, who told them to provide incorrect information. The applicant states that her husband’s English was poor and he was not familiar with the laws, so her husband called her and explained to her the advice from the migration agent, and her brother’s friend ‘forged some formal papers’. The Tribunal finds that explanation unpersuasive. The Tribunal is of the view that even if the applicant and her husband did not have proficient English and did not understand the laws, they would have both been aware that the provision of bogus documents, incorrect information and a false identity of the child’s father were not permitted by the laws. No special knowledge of the laws or of the English language would have been necessary to appreciate the wrongfulness of such actions.

20. The Tribunal finds that the applicant had previously completed an application form in a way that incorrect answers were given and that she had given bogus documents with her Prospective Marriage application. The Tribunal finds that the applicant had been deliberately untruthful in her past dealings with the Department. The Tribunal finds that the applicant’s past behaviour towards the Department favours the cancellation of her visa.

21. In her statement to the Tribunal the applicant claims that she had provided full information in her Partner visa application, including the dates when the relationship with her husband started, and she was granted the Partner visa. The Tribunal accepts that she did so.

    Whether there would be consequential cancellations under s. 140

22. There are no visas that would be subject to a consequential cancellation. The Tribunal acknowledges that the visa held by the applicant’s son has been cancelled under s. 140(2) as a consequence of the cancellation of the visa held by the applicant’s husband.

    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

23. If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for her to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements she may have acquired as an Australian permanent resident.

    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

24. In her evidence to the Tribunal the applicant refers to the unsafe situation for women in Iraq and she provided a number of country reports on the situation in Iraq. In oral evidence, the applicant spoke about the general lack of safety in Iraq for the family and her children, who are Australian citizens. The applicant refers to the killing of her relative because of his participation in a demonstration. The applicant states that they have nothing in Iraq but here they live in a safe place. If she returns to Iraq, people would think that because they are coming from overseas they have money.

25. While the Tribunal is mindful that the applicant may be eligible to make an application for a protection visa, where such claims would be assessed, the Tribunal is prepared to accept, for the purpose of this review only and without undertaking a full assessment, that the applicant may be subjected to harm upon return to Iraq and that non-refoulement obligations may arise in this case.

26. The Tribunal has also considered the best interests of the applicant’s children. The visa held by the applicant’s son is subject to the cancellation under s. 140 of the Act. The couple have two children born in Australia who are Australian citizens.

27. The applicant states that her two daughters were born in Australia and are Australian citizens and cannot leave Australia. The Tribunal does not accept that argument. It is not uncommon for people to live in countries other than the countries of their nationalities. The applicant herself has made the decision to travel to Australia, with her minor son, even though they were not Australian citizens at the time. That is, the applicant made the decision for herself and her son to live in a country other than their country of citizenship. The Tribunal does not consider that living outside of the country of nationality is itself sufficient to state that the children cannot live outside of Australia.

28. The applicant told the Tribunal that her younger children have only lived in Australia and are attending schools and are attached to their schools. She claims there is no future for the children in Iraq and her children would not be safe in Iraq. The applicant referred to the poor security situation in Iraq and states that the children would be affected if they were to live in that country.

29. The Tribunal accepts that the two younger children were born in Australia and had never lived in Australia and that the eldest child came to Australia at a younger age and may be used to life in Australia. The Tribunal accepts that it may be difficult for the children to settle in another country, particularly if the situation in that country is unsafe. The Tribunal accepts that it may be better for the children to remain in Australia. However, that does not necessarily define the best interests of the children. Ultimately, the Tribunal is of the view that it is in the best interests of the children, given their young age, to be in the presence of both parents. As their father is no longer a holder of a permanent Australian visa, that may not be in Australia.

    Whether the former visa holder has strong family, business or other ties in Australia

30. The applicant’s partner and children live in Australia. However, as noted above, the visa held by the partner has now been cancelled. The decision in relation to the applicant’s son is subject to a separate application for review. The applicant has two other children, who were born in Australia and are Australian citizens and the Tribunal accepts that such children constitute strong family ties in Australia.

31. The applicant told the Tribunal that her husband’s parents live in Australia and she and the children are attached to them; there is a strong attachment between the children and their grandparents. There is little other evidence of such a relationship (for example in the form of photographs, evidence from the grandparents, etc) but the Tribunal is prepared to accept that such a relationship exists. The applicant states that it is impossible for them to live in Iraq, but while the Tribunal accepts that it may be safer for the family to live in Australia, the Tribunal is also mindful that there are children, and families, residing in Iraq and the Tribunal does not accept the applicant’s evidence that it is impossible to do so.

1. The husband’s family members live in Australia but the applicant’s own family members, including her mother and siblings, live in Iraq. The Tribunal considers that the applicant and her family have strong family ties outside of Australia, as well as strong family links in Australia. There is no evidence, and the applicant does not claim, that she has business or other ties in Australia.

   Any other relevant matters

2. The applicant claims that she disclosed the correct information in the Partner visa application and the visa has been granted. She states that they have not breached the law in any way. She lied but then told the truth and the visas have been granted. The applicant claims it is unfair to cancel the visa when they had already admitted the lie and she had been granted the visa on that basis.

3. To the extent that the applicant claims that her visa cannot be cancelled because she had disclosed the incorrect information, the Tribunal does not accept that argument. The ground for cancellation arises because the visa held by the applicant’s husband has been cancelled and the applicant holds the visa only because her husband held the visa. The ground for cancellation does not arise, in this case, because of the provision of false or misleading information or incorrect answers. Even if that was the case, s. 110 of the Act makes it clear that a visa may be cancelled whether or not the Minister became aware of the non-compliance because of information given by the holder.

4. Thus, while the Tribunal accepts that the applicant and her husband gave correct information in the Spouse visa application interview, the provision of correct information does not preclude the cancellation power, nor does it necessarily require the Tribunal to exercise the discretion in favour of the applicant.

5. The applicant informed the Tribunal that she is in receipt of Centrelink payments. She said that she has not informed Centrelink about the cancellation of her visa, and the changes in her circumstances, because ‘nobody told her’. The Tribunal is of the view that it was for the applicant to acquaint herself with her obligations and she would have been, or should have been, aware that she must inform Centrelink of the changes in her circumstances and residence status. The applicant also told the Tribunal that after the Tribunal affirmed her husband’s visa cancellation, he did contact Centrelink and his payments have been cancelled. That is, the applicant was put on notice that the cancellation of the visa may lead to the cancellation of the Centrelink entitlements. Despite that, the applicant told the Tribunal that she had not taken any steps to inform Centrelink about her own circumstances. In the Tribunal’s view, the applicant’s conduct shows her disregard for the Australian laws and dishonesty in her dealings with a government agency.

6. The applicant told the Tribunal that compassionate consideration should apply in her case. Her children had been born in Australia and are used to life in Australia. There is the whole family that would be affected by the cancellation. The applicant states that even though they lied, they also told the truth. The Tribunal acknowledges that evidence, which has been addressed elsewhere in this decision.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant held a visa because her husband held a visa and the visa held by her husband has been cancelled. The Tribunal has found that there are grounds for cancelling the applicant’s visa under s. 140 of the Act.

8. The Tribunal accepts that significant hardship may be caused to the applicant and her family if the visa is cancelled. The Tribunal acknowledges that the applicant has been living in Australia for a number of years and appears to be settled in Australia. The eldest child attends an Australian school and is also settled in Australia. The two younger children are Australian citizens and have not lived outside of Australia. The Tribunal accepts that the situation in Iraq may be less safe for the family and is prepared to accept (for the purpose of this review only and without the full assessment) that Australia’s non-refoulement obligations may arise in this case. The Tribunal acknowledges the applicant’s evidence that her husband does not have any papers to live in another country and while the Tribunal does not accept that he is stateless, the Tribunal accepts that a certain degree of hardship would be caused for the family to relocate. The mandatory consequences of the cancellation are significant and may also cause hardship to the applicant. The Tribunal has formed the view that it is in the best interests of the children to be with their parents, but the Tribunal accepts that the children would prefer to remain in Australia, as would the applicant herself. The applicant and her family have strong family links to Australia, although she also has family links in her home country. The Tribunal has also formed the view that the applicant may have a compelling need to remain in Australia, given the particular circumstances of her family and her children. The Tribunal accepts that there are strong reasons why the visa should not be cancelled.

9. Against these considerations, the Tribunal places weight on the fact that the applicant can no longer fulfil the purpose of her travel to and stay in Australia because the applicant held a Partner visa and her partner is no longer a permanent resident of Australia.

10. The Tribunal places significant weight on the applicant’s past behaviour towards the Department. The applicant concedes that she provided bogus documents and incorrect information in her previous Prospective Marriage visa application. While the applicant claims that her husband did not speak English and did not understand the Australian laws, the Tribunal does not accept these were the reasons for the provision of bogus documents and incorrect information. Neither proficiency in English nor knowledge of the laws would have been required for the applicant to appreciate that using a false name, a false relationship history, a non-existed former spouse and bogus documents was wrong under Australian law. It is of significant concern to the Tribunal that the applicant chose to engage in such conduct and that she was willing to breach the immigration laws in order to obtain the visa.

11. The Tribunal acknowledges the applicant’s evidence that the correct information was given with the Partner application and the visa was granted. Putting aside the fact that the ground for cancellation arises because the visa held by the applicant’s husband was cancelled, and not because of the provision of incorrect answers, the Tribunal does not consider that the provision of correct information in a subsequent application justifies the deliberate provision of incorrect information and bogus documents – which were highly significant to the application – in the earlier application. The fact that the applicant did provide incorrect answers and bogus documents in her Prospective Marriage application shows, in the Tribunal’s view, her disregard for the law, as do her interactions with Centrelink and her failure to inform about the changes in her circumstances. These are significant considerations in favour of the cancellation.  The Tribunal gives these matters greater weight.

12. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kira Raif
    Senior Member