Al-Mudhafar (Migration)

[2019] AATA 6130

Al-Mudhafar (Migration) [2019] AATA 6130 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Shakir Muqdad Shakir Al-Mudhafar

CASE NUMBER:  1817119

HOME AFFAIRS REFERENCE(S):          BCC2018/2200007

MEMBER:Kira Raif

DATE:17 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2019 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – sponsor father’s visa cancelled – mother’s and applicant son’s partner visa cancelled as consequence – discretion to cancel visa – factors for and against cancellation – living in Australia from a young age, well settled and attending school – father has no right to enter any other country – safety and security in home country – best interests of children – applicant’s two siblings are Australian citizens – all of father’s family in Australia, all of mother’s in home country – 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 January 2006. He was granted the Class BC Partner visa on 29 September 2012 as a member of the family unit of an application made by his mother. The applicant’s mother was sponsored in that application by Mr Mikdad Muthafar. On 4 April 2014 Mr Muthafar’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 mother.

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 his father, which was done, and to allow him 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’s mother Ms Al-Hameed appeared before the Tribunal on 11 October 2019 to give evidence and present arguments on behalf of the applicant, who is a minor. The applicant was represented in relation to the review by his 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 his Partner visa application by Mr Mikdad Muthafar. Mr Muthafar’s visa was cancelled by the delegate on 4 April 2014. In oral evidence to the Tribunal the applicant’s mother 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 subsection 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.

   Consideration of discretion

8. 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’.

   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

9. The purpose of a Partner visa is to enable the visa holder to remain in Australia with a partner. In this case, the applicant was granted the Partner visa as a secondary applicant in order to live with his father, who was an Australian permanent resident. However, the visa held by the applicant’s father has now been cancelled. The Tribunal has formed the view that the applicant is no longer able to fulfil the purpose of his visa because he can no longer remain in Australia with his father who is not a holder of an Australian permanent visa.

10. The applicant’s mother, Ms Al-Hameed 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 applicant’s father is not an Australian permanent resident and cannot remain in Australia permanently. It cannot be assumed, in the Tribunal’s view, that a permanent visa will be granted.

11. The applicant’s mother told the Tribunal that the applicant came to Australia as a young child and has been living in Australia and attending Australian school. He is a peaceful person who cannot live in Iraq. The applicant’s mother told the Tribunal that he had not gone to school in Iraq and the system in Iraq is different. While the Tribunal accepts that the child has been used to the Australia school, there is nothing before the Tribunal to suggest that he would be unable to adapt to school and life in Iraq.

12. Ms Al-Hameed also refers to the general lack of safety in Iraq and in the submission to the Tribunal of 10 October 2019 the applicant provided a number of reports concerning the situation in Iraq, particularly for children. The Tribunal acknowledges that evidence but given the applicant’s age, the Tribunal is of the view that the applicant needs to remain with his parents. As the visa held by the applicant’s father has been cancelled and he no longer has the right to remain in Australia permanently, in such circumstances, the Tribunal does not consider that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

13. There is no evidence that the applicant has not complied with visa conditions.

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

14. This consideration has been addressed elsewhere in this statement. Essentially, the applicant’s mother referred to the length of time the family had spent in Australia and the family’s inability to relocate to any other country, partly because the applicant’s father does not have the documents to live anywhere else and partly because of lack of safety in Iraq. The applicant’s mother 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.

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

    Circumstances in which ground of cancellation arose

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

    Past and present behaviour of the visa holder towards the department

17. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

18. There are no visas that would be cancelled under s. 140.

    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

19. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he 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 him 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 he 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

20. In his written and oral evidence to the Tribunal the applicant’s mother refers to the unsafe situation in Iraq and the difficulties he and the family would face living in that country. In his written submission of 10 October 2019 the applicant refers to the Convention on the Rights of the Child.

21. 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.

22. As for the best interests of the applicant, who is a minor child, the Tribunal is of the view that given his age, his best interests are to remain with his parents and that does not necessarily mean in in Australia. The Tribunal acknowledges that the applicant’s two sisters are Australian citizens but that does not mean they cannot live elsewhere. The Tribunal finds that it is in the best interests of the applicant to live with his parents. The Tribunal does not accept that his best interests necessarily require his residence in Australia.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The applicant’s mother referred to the applicant coming to Australia at a young age, his attendance at school and the links he formed in Australia. The Tribunal accepts that the applicant has been attending Australian school, has spent the majority of his life in Australia and that he has strong ties to Australia, including the presence of his grandparents and other paternal relatives. The Tribunal is mindful that his maternal relatives live in Iraq and it appears that the applicant also has links outside of Australia. Nevertheless, the Tribunal accepts that the applicant has strong family and social ties to Australia.

    Any other relevant matters

24. Other matters put forward by the applicant have been considered above.

25. The Tribunal has considered the applicant’s circumstances. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 140 because the visa held by the applicant’s father has been cancelled.

26. The Tribunal accepts that considerable hardship may be caused to the applicant, and his family, if the visa is cancelled. In particular, the Tribunal accepts that the applicant entered Australia at a young age he attends an Australian school and is well settled in Australia. The Tribunal acknowledges his mother’s evidence that it may be difficult for the family to relocate to another country for a number of reasons and also that it may be unsafe for the family to live in Iraq. The Tribunal accepts that the applicant’s two siblings are Australian citizens and that he has strong family and other links in Australia. Having regard to all of the visa applicant’s circumstances, the Tribunal accepts that there are strong reasons why the visa should not be cancelled.

27. However, the Tribunal has formed the view that it is in the best interests of the applicant, who is the minor child, to remain with his parents. The father’s visa has been cancelled and the applicant’s parents no longer have the right to remain permanently in Australia. In such circumstances, the Tribunal has formed the view that the visa held by the applicant should also be cancelled.

    DECISION

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

    Kira Raif
    Senior Member