Aziz (Migration)

[2018] AATA 5211

Aziz (Migration) [2018] AATA 5211 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nazia Aziz

CASE NUMBER:  1708800

DIBP REFERENCE(S):  BCC2016/3761691

MEMBER:Kira Raif

DATE:7 December 2018

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 07 December 2018 at 1:27pm

CATCHWORDS
MIGRATION – Subclass 189 – Skilled – Independent visa – cancellation – incorrect information – failed to identify children as migrating family members in the application – health requirements of one child – US citizens – requirement to return to Pakistan due to lack of US visas – contribution to Australian community – decision under review set aside

LEGISLATION
Migration Act 1958, ss 99, 101, 109(1), 107(1), 111, 140, 359AA

Migration Regulations 1994, Schedule 2, r 2.41, cl 189.215, PIC 4005

CASES
MIAC v Khadgi (2010) 190 FCR 248
COT15 v MIBP (No 1) (2015) 236 FCR 148

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

2. The applicant is a national of Pakistan, born in June 1976. She applied for the Skilled visa in May 2015 and was granted that visa on 21 January 2016. On 13 February 2017 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.101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 18 April 2017. The applicant seeks review of the delegate’s decision.

3. The applicant provided to the Tribunal a large volume of documents on 2 December 2018, three days prior to the scheduled hearing and a further substantial amount of evidence on 5 December 2018. It is unclear to the Tribunal why the documents were submitted such a short time prior to the hearing, contrary to the requirements of paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters, particularly as the matter has been with the Tribunal since April 2017. The applicant was represented by Ms Elizabeth of Son Nguyen, Barrister and Solicitor.

4. The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s colleague, Ms Mahabeer. 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 Immigration 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.

   Did the notice comply with the requirements in s.107? 

8. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

9. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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?

10. 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.101 of the Act.

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the following:

    a.The applicant made the application for the visa on 4 May 2015. In response to the question about migrating family members, the applicant referred to her partner Imran Aslam Janjua.

    b.In response to the question whether there were any dependent family members not travelling to Australia who were not Australian citizens or permanent residents, the applicant stated ‘no’.

    c.In Form 80 the applicant referred to having three children, Maha Rasheed Ahmed (identified as a migrating child), Duaa Rasheed Ahmed (identified as a migrating child) and Nawful Saadat Chaudry (identified as a non-migrating child).

    d.The applicant was granted the Skilled visa on 21 January 2016 and entered Australia 14 February 2016.

    e.On 2 February 2016 the applicant’s three children applied for ETA visas and were granted these visas. They arrived in Australia on 14 February 2016. On 21 March 2016 all three children including Nawfal Saadat Chaudhry applied for Child Subclass 802 visas, sponsored by the applicant.

    f.Included with the Child applications was a Petition under the Guardian and Ward Act 1890 between the applicant and the children’s father stating that the applicant was unaware of the father’s whereabouts. There was also a court order granting guardianship of the children to the applicant.

12. The delegate noted that the applicant was the guardian of the three children and was unaware of the whereabouts of the children’s father and had sponsored the children shortly after her arrival in Australia. The delegate concluded that it was the applicant’s intention for all the children, including Nawfal, to migrate with her. The delegate found that the applicant provided incorrect information by failing to identify the children as migrating family members in the application forms.

13. In her written response to the NOICC the applicant states that the application was prepared by another person. The Tribunal notes, however, that as the visa applicant, she had the responsibility to ensure the information on the forms was correct and accurate, even if the responses were prepared by another person: s.99 of the Act. The applicant also states that the information relating to her son Nawfal was a ‘typo’ and there was no reason to include her two minor daughters as migrating children but not the minor son. The fact that the applicant’s son may not have been able to pass the health checks while the other two children had no health issues contradicts the applicant’s evidence that there was no reason to include the two daughters but not the son in the application forms.

14. The applicant explained to the Tribunal in oral evidence that the application was completed by an agent as she could not do the paperwork herself. She specifically told the agent that her children would be migrating with her. She overlooked the error on the form and also the fact that there was an error with her son’s name.

15. The applicant stated that at the time she applied, her children had not yet had their passports renewed. She was told she had to either get permission from the children’s father or obtain a court order to have their passports renewed. She had already received an invitation from the Department to make the visa application and had limited time to make the application and the system did not allow her to include the children unless they had valid passports. That is the reason she did not include the children in her own visa application.

16. The Tribunal acknowledges that there were reasons why the children could not be included in the application but that does not explain the answers the applicant gave on the form in relation to the children’s migration. The applicant said that on the application form, she stated that there were no non-migrating dependents because it was always her intention to bring the children to Australia, and the agent advised her that they were not non-migrating dependents. She did not want to provide incorrect information but it was a mere oversight.

17. The applicant denies that she failed to include the children to circumvent the health requirements for her son. The applicant states that she had worked as a clinical psychologist, including for immigration departments of various countries. The applicant states that she had seen cases with more severe conditions where applicants had been granted visas. Understanding her son’s condition, she knew that he is low on the autism spectrum and would pass the medicals. The applicant said that she was well aware that everybody would have to meet the health requirements and that her son would need to undertake the medical assessment. The applicant said that it is distressing to her that the delegate made the suggestion that she intentionally failed to include her child to circumvent the health requirements.  The applicant states that she acknowledged the mistake but there was never any intention not to include her son. The applicant states that she is the only carer for the children and it was her intention to bring all the children to Australia.

18. Ultimately, it is not necessary for the Tribunal to determine whether the non-compliance was intentional or due to an oversight. In accordance with s.111 of the Act, s.109 applies whether the non-compliance was deliberate or inadvertent.

19. The Tribunal accepts the applicant’s evidence that it was always her intention for the children to travel to Australia with her and to remain in Australia. The applicant stated on Form 80 that her two daughters were migrating with her and that her son was not. The Tribunal has formed the view that the relevant question on Form 80 (whether a child is migrating with the primary visa applicant) relates to migration in the context of the specific visa application made by the applicant and not a broader intention to migration at some indeterminate time in the future. The application form relates to the specific visa application made by the applicant. In the Tribunal’s view, the questions on the form are limited to that application. That is, whether the family members, or the children in the present case, would be migrating with the applicant in relation to the present application. The children were not. The children made another visa application several months after the applicant completed her form and gave the answer. While there may have been an intention for the children to migrate in the future, the Tribunal does not consider this to be sufficient to establish that the children were ‘migrating family members’ at the time the answer was given and the application made. Thus, the information on Form 80 was correct in relation to the applicant’s son but not correct in relation to the applicant’s daughters.

20. However, on the application form the applicant did not mention the children as non-migrating dependents. In the Tribunal’s view, the children were dependent and were non-migrating because they were not included in the same visa application. The Tribunal finds that the applicant provided an incorrect answer on the application form when she failed to mention the children as non-migrating dependents. While the Tribunal acknowledges the applicant’s evidence that she misunderstood the question, acted on advice of the agent and had no intention to mislead, under s.111, the cancelation provisions apply whether the non-compliance was deliberate or inadvertent.

21. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer was given. The Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice. The Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

22. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

23. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

24. The correct information is that the three children were non-migrating dependents.

    The content of the genuine document (if any)

25. This is not relevant in this case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

26. Non-migrating dependent family members are required to complete medical examinations for the purpose of public interest criteria (PIC) 4005 and the applicant could not have been granted the visa unless the members of her family unit, including dependent but non-migrating children, completed the medicals. By not mentioning the children in her application as non-migrating dependents, the delegate was precluded from making that assessment. In particular, there is no suggestion that the applicant’s son undertook medical examinations for the purpose of the applicant’s Skilled visa application and there was no assessment whether he met PIC 4005. The Tribunal notes that cl.189.215 of Schedule 2 to the Regulations requires each member of the family unit who is not an applicant for the visa to satisfy PIC 4005, and there is no evidence that the applicant claimed (or was assessed) that it would be unreasonable to require the applicant assessment in relation to that criterion.

27. The applicant informed the Tribunal that in her professional opinion, her son’s condition is not severe and he would have been able to pass the health requirements. The applicant states that in relation to his Child visa application, she believes that her son was assessed as meeting the health requirements because only minimal evidence relating to his health had been requested and no further issues had been raised. However, information on the Departmental database indicates that the applicant’s son was assessed as not meeting health requirements and it was determined that the cost of his treatment would exceed $4 million. This information was put to the applicant pursuant to s.359AA of the Act. The applicant told the Tribunal that her son would not be, and does not need to be, reliant on any services. However, that is not the issue. There is no waiver provision in relation to the Skilled visa. If the child was identified as a non-migrating dependent and requested to undertake the health checks, and if it was found that he did not meet the health requirements, no waiver provision would have been available and the applicant would not have been entitled to the grant of the Subclass 189 visa.

28. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

29. The applicant explained in her submissions to the delegate that the children were waiting for their passports and could not be included in her application. The applicant claims that she wanted to leave the country as quickly as possible, so she made the decision not to include the children but to sponsor them for a visa later.

30. In her evidence to the Tribunal the applicant confirmed that it was always her intention for the children to travel to Australia. The advice from the migration agent was not to include the children on the main form because they would be migrating with her. The applicant states that the questions on the form are ambiguous and they interpreted the form in a way that because the children would be migrating with her, they were not non-migrating family members.  The applicant states that she did not have access to the Department’s online system and her agent managed the process.

31. The applicant states that she was going through a difficult time in that period. She had been away from Pakistan for many years, having lived and studied in the United States (US) since she was 17. At the time of her application, she was in Pakistan but it felt like being in a foreign country and she was going through the divorce. There were also family issues.

32. The Tribunal acknowledges the applicant’s evidence that the question on the application forms about ‘non-migrating dependents’ was ambiguous and the Tribunal accepts that the applicant genuinely believed that the children were not ‘non-migrating’ because she intended to bring the children to Australia. The Tribunal considers it significant that the applicant did mention the children on the Form 80, so there does not appear to be any intention to mislead and withhold information about the children’s existence. Although she stated on Form 80 that two of the children were migrating with her and one was not, the Tribunal is mindful that the legislation requires non-migrating family members to undertake health examinations. Information about the children, whether migrating or non-migrating, was available to the decision-maker from Form 80 and a request for the children to undertake the medicals could have been made on the basis of that information. The Tribunal is of the view that the fact that the children were mentioned on the Form 80 supports the applicant’s claim that she misunderstood the question on the application form and that she did not intentionally withhold information about the children in order to circumvent the health requirements. That is, the breach was unintentional.

    The present circumstances of the visa holder

33. In her submission to the delegate the applicant refers to her activities in Australia. The applicant has completed a professional assessment and is registered to work as a psychologist. She told the Tribunal that she works for the Department of Education as a psychologist and also has a private practice. The applicant states that she is one of the few practitioners who do adult autism assessments. The applicant provided to the Tribunal evidence of her employment and the Tribunal accepts that both the applicant and her partner are gainfully employed. The Tribunal accepts that given the nature of her work, the applicant is making a significant contribution.

34. The applicant referred to her voluntary work and involvement with various organisations. The Tribunal accepts that evidence.

35. In her submission to the Tribunal the applicant provided her children’s school reports, photographs and a character reference. The applicant’s colleague spoke about the children’s settlement in Australia and her professional assessment that it would be difficult for the children to live in Pakistan as they had spent very little time in Pakistan. The applicant’s evidence is that her children were born in the US and had lived in Pakistan for about two years. The Tribunal accepts that the children are settled at schools in Australia and are doing well. The Tribunal accepts that the applicant is well regarded by others. The Tribunal also accepts that despite being US citizens, the children may not be able to return to the US until they are older because the applicant has no visa to enter and reside in the US. As the applicant can only return to Pakistan, the children would accompany her to Pakistan where they have spent limited time.

1. The applicant told the Tribunal that they have bought a house where the family presently resides.

   The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

2. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the above provisions.

   Any other instances of non-compliance by the visa holder known to the Minister

3. There are no other known instances of non-compliance by the visa holder.

   The time that has elapsed since the non-compliance

4. The applicant made the application for the visa in May 2015.  About three and a half years has passed since the non-compliance.

   Any breaches of the law since the non-compliance and the seriousness of those breaches

5. There are no other known breaches of the law.

   Any contribution made by the holder to the community

6. In her submissions to the Tribunal the applicant refers to her extensive voluntary activities in Australia. The applicant refers to her professional work and states that she contributes through the services she offers. The applicant states that there are very few professionals in Adelaide offering autism assessments for adults, which is what she specialises in.

7. The Tribunal accepts that the applicant has made a significant contribution to the community.

8. While 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 Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual, PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

9. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that the applicant will be detained indefinitely. 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. If the visa is cancelled, the applicant may lose some entitlements she may have had as a permanent resident of Australia. If the applicant does not hold a permanent visa, she would also be unable to act as a sponsor in relation to her children’s applications.

   Whether there would be consequential cancellations under s.140

10. The visa held by the applicant’s partner would be subject to cancellation under s.140 of the Act.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

11. In her submission to the delegate the applicant provided extensive submissions and country information concerning the harm she claims she would face in Pakistan. The applicant states that once she and her husband initiated the divorce proceedings, there was a lot of harassment and she was ostracised from family and the community. The applicant told the Tribunal that she had to send her children to live elsewhere because she was concerned about their safety when they were in Pakistan. The Tribunal acknowledges the applicant’s evidence but the Tribunal is mindful that the applicant is able to make an application for a protection visa if she believes Australia owes her protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is nothing to suggest that the applicant would be prevented from validly applying for or being granted a protection visa. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

12. The applicant also refers to the best interests of her children. The applicant’s three children are minors. They have been living in Australia for a little over two years. The applicant told the Tribunal that they spent about two years in Pakistan and prior to that lived in the US, but she has no visa to live in the US, so the children would have to return to Pakistan, which would be difficult for them. They have no family support in Pakistan and have experienced hardship and discrimination because of her family circumstances. The applicant states that the children are settled in Australia and have only been happy in the US and Australia, but cannot live in the US and they prefer to live in Australia. Because they have no Pakistani citizenship, the children would need to apply for visas to live there.

13. The Tribunal acknowledges the various school reports and accepts that the children are settled in Australia. The Tribunal also acknowledges the evidence of Ms Mahabeer, who is a registered psychologist, who states that it would be difficult for the children to adapt to life in Pakistan.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

14. The applicant explained to the Tribunal that the family can only return to Pakistan as she cannot live in the US. She explained that they had a traumatic time in Pakistan and they could not stay together as a family because she had to move the children to a safer place. The Tribunal acknowledges that the children had spent the majority of their lives in the US and had spent relatively little time in Pakistan. They are not Pakistani citizens and would need a visa to live in Pakistan. The applicant told the Tribunal that they had a temporary visa, which is not difficult to get, but may be more complicated if they were to live there permanently. The applicant also told the Tribunal that there are no special schools and little care offered to people with disabilities and that may affect her son’s circumstances. The applicant referred to kidnappings in Pakistan, especially in relation to the US citizens. She refers to the threats and harassment they received in Pakistan. The Tribunal accepts that moving to Pakistan may cause a significant degree of hardship to the applicant and her family.

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act because she failed to mention the children as non-migrating dependents on the application. The Tribunal accepts the applicant’s submission that the breach was unintentional because she did refer to the children on the other forms. The decision-maker was made aware that the applicant had minor children and it was open to the decision-maker to request the dependent children, whether migrating or non-migrating, to undertake health examinations for the purpose of cl.189.215.

16. The Tribunal places significant weight on the fact that if the correct information was known, and if the children did undertake the health examinations, the applicant’s son is unlikely to have passed the health requirements in PIC 4005 – as he has not passed these for the purpose of his Child visa – and the applicant would not have been granted the Subclass 189 visa. In the Tribunal’s view, that weighs heavily in favour of the cancellation.

17. However, the Tribunal has also formed the view that the cancellation of the visa would cause significant hardship to the family. This is because the applicant and her children are nationals of different countries and cannot live in one country without obtaining visas. The Tribunal also accepts the evidence of the applicant and Ms Mahabeer that the children may find it difficult to adapt to life in Pakistan as they have lived predominantly in western countries. The Tribunal has formed the view that the best interests of the children would be adversely affected by the cancellation of the visa.

18. The Tribunal has accepted the applicant’s evidence concerning her employment and contribution through voluntary activities and finds that the applicant contributes to the community. There are no other known breaches of the law or of the migration requirements.

19. In the Tribunal’s view, the circumstances in which the breach has occurred, the present circumstances of the applicant and the best interests of the three minor children, outweigh other considerations.

20. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. 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