Ashouripour Ariaee (Migration)

[2022] AATA 3485

Ashouripour Ariaee (Migration) [2022] AATA 3485 (13 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss  Monica Ashouripour Ariaee

REPRESENTATIVE:  Mr Ryan Lasaki (MARN: 1575928)

CASE NUMBER:  2200381

HOME AFFAIRS REFERENCE(S):           BCC2019/6383931

MEMBER:Kira Raif

DATE:13 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 189 - Skilled - Independent visa.

Statement made on 13 September 2022 at 3:40pm

CATCHWORDS

MIGRATION cancellation – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – member of the family unit – secondary applicant blackmailed to marry another person in Iran – second partner visa sponsorship withdrawn – no genuine long-term relationship – no change in circumstances – power to cancel the visa does not arise – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 101-105, 107, 109
Migration Regulations 1994

CASES

Parata v MHA [2020] FCCA 1582

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 Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Iran, born in December 1984. She was granted the Skilled visa in January 2018 and entered Australia in April 2018. In May 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in December 2021. The applicant seeks review of the delegate’s decision.

3. The application appears to have been made outside of the prescribed period. However, the Tribunal has formed the view that the primary notification contains an error of the type identified in Parata v MHA [2020] FCCA 1582. The Tribunal thus finds that the time for review did not start to run and the application has been validly made.

4. The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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.

6. 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.

7. 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?

8. 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 104 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled visa on 13 April 2017 as a secondary applicant. She claimed to be de facto partner of Mr Bashir Ansaritari and it was stated in the application that their relationship began in August 2015. Included with the application was a Relationship Certificate issued by NSW Registry of Births Deaths and Marriages.

10. The applicant and Mr Ansaritari were granted the Skilled visas on 3 January 2018 and entered Australia on 27 April 2018. The primary decision record indicates that subsequent to the visa grant, on 28 February 2019 Mr Shahou Naseri made an application for a Partner visa in which he was sponsored by the applicant. In that application Mr Naseri stated that he and the applicant married on 26 April 2018 and he provided with the application the marriage certificate confirming the marriage taking place in Tehran. The delegate concluded that by the time the applicant entered Australia on 27 April 2018 she was no longer in a genuine and exclusive relationship with the primary visa applicant and an answer on the application form became incorrect, but she failed to inform the Department about the changes in her circumstances.

11. In her response to the NOICC the applicant confirmed that her relationship with the primary visa applicant started in August 2015, they became engaged before he moved to Australia in April 2015 and they registered the relationship in Australia in August 2016 as there was no means of doing that in Iran. The applicant states that the long-distance relationship did not work, and she developed anxiety and depression. The applicant states that at the time of application lodgement and visa grant she was in a relationship with Bashir which was ‘up and down’. The applicant states that during the visa processing she met Shahour Naseri who tried to develop a relationship with her, but she did not commit to him. The applicant states that Mr Naseri was abusing her emotionally in order to migrate to Australia, and before she was to fly to Australia, her took her to the marriage registry and forced her to sign the papers, threatening her that if she did not sign, he would inform her family about her de facto relationship (which they did not know about and would not approve of). The applicant states that after arriving in Australia, she tried to rebuild her relationship with Bashir, but it did not work out and she informed Centrelink she was single. She was not aware that she had to inform the Department about the change in her circumstances. The applicant states that Shahour Naseri asked her to sponsor him for a visa and threatened her that if she did not, he would inform her family and also the foreign ministry as she broke the Iranian Islamic rules, so that she could be sent back and arrested. The applicant states that she was too desperate and signed the papers. The applicant provided with her submission to the delegate a number of documents which are addressed below.

12. In her written submission to the Tribunal of 29 June 2022 the applicant admits to having made ‘mistakes’ in personal life and expressed her remorse. She states that Mr Naseri approached her and took photos of  ‘private moments’ and began to blackmail her. The applicant states that her relationship with Mr Ansari was never irretrievably broken and did not end before her arrival in Australia but they experienced difficulties in the relationship and attempted to improve it. The applicant submits that most of the claims in Mr Naseri’s visa application are untrue and she notes that he had access to many of her personal documents and details. The applicant states that Mr Naseri used her personal information and private photos to put pressure on her and blackmail her to sign the marriage certificate immediately prior to her departure from Iran and he threatened her that she would not be able to exit Iran if she did not comply with his requests.

13. With respect to Mr Naseri’s claims made in his Partner visa application, the applicant denies the claim that she and Mr Naseri formed a relationship around her birthday in March, noting that her birthday is in December and she claims that this is an indication that his claims are ‘baseless’. The applicant denies having frequent contact with Mr Naseri, stating that they worked in different areas and it was not possible to meet frequently. The applicant refers to her long working hours and states that transport was provided by her employer, so that it would have been impossible for them to meet regularly. She also states that she could use her father’s car, so there was no need for her to have transport or rely on Shahou Naseri to take her to work. The applicant also states that due to his own work commitments, Mr Naseri would not find time to cook for her and would not prepare coffee for her as she does not drink coffee. With respect to the photos of her relationship, the applicant states that these were taken over a short timespan and setting. The applicant states that she would not need to rely on Mr Naseri to pay her bills as it can be done easily and quickly using apps and he may have forged some documents. The applicant also denies that Mr Naseri sold her belongings after she came to Australia, stating that she sold most of her items to friends before her departure.

14. The applicant denies in her statement that she decided to marry Shahour Naseri. She states that he had a friend in the Presidential Office, and they had all her ID documents because she was a sportsperson, so  Mr Naseri and his friends forged the documents and provided these to the Department of Home Affairs. The applicant denies the description of the relationship set out in Mr Naseri’s application and states that they met a few times before her departure and there was never a genuine and continuing relationship between them. The applicant notes that the 888 forms refer to a two year relationship while Mr Naseri himself refers to the relationship of 14 months. The applicant denies that they formed a committed relationship in February 2018. She admits she took a trip with Mr Naseri to another city and says it was ‘one of the few times’ she spent with him. She states that they met Mr Naseri’s mother but not any of his friends and did not stay overnight and the trip was arranged by Mr Naseri for visa purposes.

15. The applicant admits that she made a mistake by becoming ‘close’ to Mr Naseri but claims there was never a serious ongoing relationship between them. She states that she never intended to end her relationship with Mr Ansaritari and she provided with her submission to the Tribunal a statement from Mr Ansaritari. The applicant notes that she and Mr Ansaritari provided evidence of their relationship before her arrival in Australia. (The Tribunal is mindful that Mr Naseri’s visa application also contained evidence of the applicant’s purported relationship with Mr Naseri, which the applicant now denies, so the probative value of such documentary evidence of relationships seems to be very limited, at best.)

16. The applicant concedes that the information provided on her behalf was incorrect but states she was coerced, threatened and blackmailed by Mr Naseri and had to comply with his requests. She claims that he had threatened to disclose their encounters to her family and not complying with his request would have put her life in danger. The applicant notes that she had contacted the Department and cancelled the partner visa sponsorship after changing three lawyers in Iran who were following her case with Shantou. The applicant notes that she withdrew the sponsorship before receiving the NOICC and his application is not genuine and includes false information, as she explained in her withdrawal submission.

17. With respect to her marriage, the applicant states that Mr Naseri had a friend in the government who forged some of the documents and on the day of her departure from Iran, arranged a forced marriage. The applicant states that everyone who was present at the ceremony were either Mr Naseri’s friends or the friend’s employees and none of her family or friends attended the ceremony because it was unexpected and planned only by Mr Naseri. She notes that there is a photograph of her crying at the ceremony. The applicant claims that the marriage was forced and she was under threat and blackmail. After arriving in Australia and realising that she was physically safe, she decided to withdraw the sponsorship and this was before the NOICC was issued.

18. The applicant states that Mr Naseri’s application contains incorrect information, and she refers to a number of inconsistencies. The applicant states that she did not complete, nor signed, the sponsorship form. The applicant provided a number of documents in support of her various claims.

19. In her submission of 1 September 2022, the applicant states that she had an ‘unwanted temporary and casual relationship’ with Mr Naseri, which was never meant to be, and never was, a genuine long-term relationship. The applicant states that Mr Naseri pressured her to advance his own plans of migrating to Australia and threatened her and her family. The applicant submits that there are numerous inconsistencies in Mr Naseri’s visa application and she never signed the application form, and he is an ‘unreliable source’. The applicant submits that she was under influence and duress, she was forced into the marriage which would have been illegal by the Australian standards and was coerced. The applicant states that ‘time did not permit’ her to notify the Department. She claims she was in a ‘dire emotional status’ in the hours before her flight to Australia and did not know of her obligation to notify the Department. The applicant states that she withdrew her application as soon as she received legal advice. The applicant refers to the evidence from Mr Ansaritari confirming that their relationship was genuine.

20. The applicant submits that she had hired multiple lawyers to deal with her forced marriage and threats from Mr Naseri and she has evidence that Mr Naseri threatened her and her family. The court cases are still ongoing as the primary decision was in her favour, but Mr Naseri appealed. The applicant provided to the Tribunal a copy of her divorce papers from Iran. the applicant notes that the divorce court order states that the wife is facing serious financial, safety or reputational threats which supports her claims that she was blackmailed by Mr Naseri.  

21. In oral evidence, the applicant told the Tribunal that she met Mr Ansaritari in 2006 at university and they liked each other. After completing university, they worked together, and he decided to migrate to Australia. At the time she was forced to marry another person, but they separated after a year. After she married, they did not have any contact with Mr Ansaritari but after she divorced, their relationship started again, and they decided to get married while in Iran. Mr Ansaritari was granted a work visa and wanted to travel to Australia first to settle before sponsoring her for a visa. Mr Ansaritari came to Australia in April 2015 and in August 2016 they registered the relationship in Australia because at the time their families were not agreeable yet to their marriage. The applicant states that due to separation, and people talking about them, she was anxious and depressed and their relationship ‘cooled’ but they still travelled together in Malaysia and also in Iran when Mr Ansaritari returned. The applicant states that once Mr Naseri entered the scene and got involved with the families, she was ‘forced’ to end her relationship with Mr Ansaritari. The applicant told the Tribunal that Mr Ansaritari knew about her situation with Mr Naseri and was supportive of her and they tried to rebuild their relationship. The applicant states Mr Naseri threatened her and because the families became aware and became involved, Mr Ansaritari felt obliged to inform Services NSW to inform that the relationship had ended. The applicant states that her relationship with Mr Ansaritari only ended because of the involvement of their families and they are still good friends.

22. The applicant told the Tribunal that she met Mr Naseri during a competition February 2017 and they were team-mates and saw each other at the stadium where they trained. He knew about her relationship with Mr Ansaritari and that she was planning to migrate to Australia. They were friends and were ‘a little close’, such as going out to meals together. The applicant concedes that there were some private photographs taken but states that there was no ‘real’ relationship between them. The applicant states that Mr Naseri would take many photographs of her and took her to visit his mother, but he was doing all of that to get the Australian visa. The applicant notes that all the photos in Mr Naseri’s visa application date over a short period and he used all her personal information when he applied for the visa.

23. With respect to the marriage registration, the applicant states that Mr Naseri had connections, so it was easy to arrange. The applicant states that she was staying with her family in north Iran, and she came to Tehran the day before her travel to Australia. Mr Naseri threatened her to tell her family and others about their relationship and he threatened that he would not let her leave the country. She had no choice but to enter the marriage, but she did not have any documents, even the marriage certificate. The applicant states that she did not sign the sponsorship papers and Mr Naseri forged her signature and had all her personal documents. She did not know that he made the application for the Partner visa, but she was suspicious and saw a migration agent and through the agent she notified Immigration that she did not want to have anything to do with Mr Naseri.

24. The applicant told the Tribunal that Mr Naseri paid the visa application fees but had to use her banking details as he did not have an international facility. In the Tribunal’s view, the fact that the applicant facilitated the visa payment for Mr Naseri’s visa application contradicts her claim that she did not know about Mr Naseri’s visa application.

25. The applicant states that she had approached a lawyer in Iran around January 2020 to facilitate her divorce with Mr Naseri, but the lawyer did not take on the job, so she found another lawyer who started the application for divorce. The applicant states that she did not commence the divorce process earlier because of the threats to her family.

26. The Tribunal has formed the view that the applicant misrepresented the nature of her relationship with Mr Naseri by claiming they were simply friends and having meals together. In the Tribunal’s view, their relationship was closer than that, having regard to the multiple social photographs, the existence of intimate photographs and the fact that Mr Naseri took the applicant to meet his mother. Neither does the Tribunal accept that the applicant did not know about Mr Naseri’s visa application, given that the payment for the application was made by her. The Tribunal has formed the view that the applicant was not entirely truthful in some aspects of her evidence. However, the Tribunal also acknowledges the applicant’s evidence that there are many inconsistencies in Mr Naseri’s account of the relationship contained in his visa application, for example, he referred to jointly attending a competition in China when the applicant was in Australia, he made reference to an incorrect date of birth and made representations that do not seem to reflect the applicant’s personal circumstances. The Tribunal thus accepts that Mr Naseri’s evidence is unreliable. The Tribunal also acknowledges other concerns raised by the applicant, such as the absence of the applicant’s friends or relatives at the marriage ceremony, and the fact that the marriage took place only a few hours before her departure from Iran, which she claims no reasonable person would have arranged. These matters support the applicant’s claims that the marriage was arranged quickly, and she was not a willing participant.

1. On the evidence before it, the Tribunal has formed the view that there is sufficient doubt about the applicant’s relationship with Mr Naseri. It is possible that the applicant’s evidence is true in that Mr Naseri threatened to expose the applicant if she did not sign the marriage papers and facilitate his migration to Australia. Notably, the applicant claims she did not sign Mr Naseri’s sponsorship and if she denies the information contained in his application, then there is no reason to give Mr Naseri’s evidence greater weight than the evidence of the applicant.

2. Overall, the Tribunal has formed the view that there is insufficient basis to form a positive satisfaction that the applicant commenced a relationship with Mr Naseri of a nature that her relationship with Mr Ansaritari was no longer to the exclusion of all others. The applicant does not dispute that there was some form of relationship between her and Mr Naseri (she refers to it as friendship but in the Tribunal’s view, it was more than mere friendship, given the existence of the photographs) but given the unreliability of Mr Naseri’s evidence in his Partner application, the Tribunal cannot make a positive finding that the applicant and Mr Naseri did have a relationship that would have affected the nature of the applicant’s relationship with Mr Ansaritari. It is not for the applicant to disprove any allegations or concerns about her relationship with the primary visa applicant.

3. As the Tribunal cannot be positively satisfied that the applicant’s relationship with Mr Naseri was such that her relationship with Mr Ansaritari was no longer a mutually exclusive one to the exclusion of all others, the Tribunal does not consider that the applicant’s relationship with Mr Naseri can be said to constitute a change in her circumstances with respect to which the obligations imposed by s. 104 arise.

4. The other issue of concern is that the applicant did marry Mr Naseri prior to her arrival in Australia. That is not in dispute. The fact that the applicant was married in a marriage that would have been recognised as legal in Iran indicates that the applicant’s circumstances had changed so that an answer on her application form became incorrect. However, the marriage took place a day before the applicant entered Australia and was immigration cleared. The obligation to inform of a change in circumstances in s. 104 required the applicant to do so ‘as soon as reasonably practicable’. In the Tribunal’s view, it may not have been reasonably practicable for the applicant to inform the Minister of the changes in her circumstances within 24 hours of the marriage. That is, her failure to do so does not constitute a breach of s. 104.

5. Overall, the Tribunal cannot make a positive finding that the applicant’s circumstances changed because she had a relationship with Mr Naseri. There is sufficient doubt about the veracity of the claims made by both Mr Naseri and the applicant, and the onus is not on the applicant to disprove the information that may form the basis for cancelling the visa. The Tribunal further does not find that the applicant failed to inform of changes in her circumstances (marriage to Mr Naseri) as soon as reasonably practicable, given the very short time that had passed from the marriage to the applicant’s entry to Australia. The Tribunal find that a breach of s. 104 is not established.

   Conclusion

6. 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

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

   Kira Raif
   Senior Member