Hussain (Migration)

[2021] AATA 817

Hussain (Migration) [2021] AATA 817 (9 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eman Hussain

CASE NUMBER:  2013436

HOME AFFAIRS REFERENCE(S):          BCC2020/1911446

MEMBER:Kira Raif

DATE:9 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 09 February 2021 at 11:10am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – no notification to department of change of circumstances – previous application as dependent family member to sister-in-law’s partner visa, declaring no marriage or de facto relationship – later married secretly after family’s disapproval – intentional misleading of department – discretion to cancel visa – compassionate circumstances – husband died, older child in country of residence, younger child an Australian citizen – mental health – risk of deportation from country of residence – potential hardship or harm in country of citizenship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107(1), 109(1)
Migration Regulations 1994, r 2.41

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 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born in December 1990. She was granted the Partner visa in August 2017. On 24 June 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (the Notice, NOICC) because the delegate formed the view that there may have been non-compliance with s. 104 of the Act by the applicant. The applicant provided her response to the NOICC and her visa was cancelled on 26 August 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother Mr Hussain. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

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

6. 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.

7. 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. The Tribunal is satisfied 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.

9. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The visa applicant was included in the application for the Partner visa, made by her sister in law Ms Fozia Hussain in August 2011. It was stated that the visa applicant and her siblings were dependent family members of Ms Fozia Hussain.

10. In response to Question 39 of the application form the visa applicant stated that she had never married or been in a de facto relationship.

11. The application was refused by the delegate because the delegate was not satisfied the visa applicant was dependent on her sister in law, the primary visa applicant. In August 2013 the MRT remitted the matter for reconsideration with a finding that the visa applicant had never married, was financially dependent on her sister in law and was a member of the family of the primary visa applicant. The primary decision record indicates that prior to the visa grant, an officer of the Department contacted the visa applicant to confirm there had been no change in her circumstances or relationship status and it was stated that the visa applicant was not engaged or married. The visa applicant was granted the Provisional Partner visa on 21 August 2017 and the permanent visa on 22 August 2017. The visa applicant entered Australia on 18 September 2017.

12. On 10 May 2018 the applicant’s daughter Haaniya was born. On 20 August 2018 the visa applicant sponsored her husband Omad Ali Mirzaee for a Partner visa. Included in that application was another child, Arish Ali Mirzaee, born on 3 March 2017. The visa applicant completed the sponsorship form in which she stated that she married on 20 September 2015 and committed to a shared life together with Mr Mirzaee to the exclusion of all others on 1 January 2014. Mr Mirzaee included with his Partner visa application a certificate of marriage with the visa applicant dated 20 September 2015.  

13. In her response to the NOICC and evidence to the Tribunal the visa applicant explains the reasons for not informing the Department about the changes in her circumstances. These are addressed in detail below. However, the applicant essentially concedes that her circumstances changed with the marriage to Mr Mirzaee and that she failed to inform the Department of the changes in her circumstances in writing.

14. In her statement to the Tribunal of 8 February 2021 the applicant explains the background of her previous relationship. The applicant states that their families were related and she describes how her relationship with Mr Mirzaee was established. The applicant states that she married her husband secretly in a religious ceremony in September 2015 and her family was unaware of the marriage. The applicant states that her partner wanted her to move to Australia, believing there was no future for them in Pakistan and once she came to Australia, her husband wanted her to bring him to Australia. The applicant explains the circumstances and family interactions after her arrival in Australia. The applicant states that she believed the religious marriage to be like engagement and not marriage but things became ‘messy’ after she became pregnant. In oral evidence the applicant told the Tribunal that she was under a lot of pressure and could not disclose the information about marriage. The applicant explains that her husband kept her daughter as a hostage and she had no choice if she wanted to see her child. The Tribunal acknowledges that evidence but is mindful that the issue here is the applicant’s interaction (failure to inform of the changes in her circumstances) with the Immigration Department and not her family. Whatever the reason the applicant chose not to disclose her marriage to her family, the Tribunal does not consider these justify her failure to inform the Department of these circumstances.

15. The Tribunal has regard to the marriage certificate provided with Mr Mirzaee’s application which shows that he and the applicant married in September 2015. Having regard to the above information, the Tribunal finds that the applicant married Mr Mirzaee in September 2015. The Tribunal finds that at that time the applicant’s circumstances changed, so that an answer on the application form in response to Question 39 became incorrect. The Tribunal finds that  the applicant did not inform the Department in writing of the changes in her circumstances. The Tribunal finds that the applicant did not comply with s. 104 of the Act. The Tribunal finds that there was non-compliance in a way described in the Notice.

    Should the visa be cancelled?

16. As the Tribunal has decided that there was non-compliance in the way described in the Notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

17. 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 Regulations. Briefly, they are:

    The correct information

18. The correct information is that the applicant had married prior to the grant of the Partner visa. The applicant suggested to the Tribunal that it was just a small marriage and nobody knew about it but the marriage certificate suggests it was a formal marriage that was legally recognised. It is irrelevant whether it was also socially accepted or well known.

    The content of the genuine document (if any)

19. 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

20. The applicant made the application for the visa on the basis of being a dependent relative, and a member to the family unit, of her sister in law, who was the primary visa applicant. The MRT had previously found the applicant met these requirements, but that Tribunal was not aware of the applicant’s marriage and the birth of her child.

21. The Tribunal is mindful that the relevant definition of ‘member of the family unit’ precludes a relative who is married or in a de facto relationship. That is, if the information about the applicant’s marriage was known, the applicant may not have been assessed as a member of the family unit of the primary visa applicant. The existence of a husband may have also affected the assessment of the applicant’s dependence on the primary visa applicant.

22. The Tribunal finds that the decision to grant the visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

23. The applicant explained the circumstances in which the non-compliance occurred in her response to the NOICC and evidence to the Tribunal. The applicant states that the circumstances were compassionate and beyond her control and comprehension. The applicant states that her relationship with her husband was initiated as forbidden contact and was taboo, so the relationship was kept in secret from other family members. The applicant claims she did not understand that her relationship and child meant that she was not entitled to the visa, due to her humble background and limited literary skills. She was at risk of being deported from Pakistan to Afghanistan and wanted to assist her husband and child by whatever means. The applicant states that if the visas were granted to her siblings, she would feel lonely and scared without her family, as her relationship with the husband was not recognised, and she ‘opted to remain silent’ about the relationship, hoping she would be able to assist her child and husband in Australia and help her family avoid deportation. In her evidence to the Tribunal the applicant also states that her brother did not approve of the relationship, and it was hidden but after she became visibly pregnant, she told her husband’s family and her sister in law.

24. The applicant submits in her evidence to the delegate that she was facing a risk of deportation to Afghanistan and her life in Pakistan was not secure, so she decided not to disclose all information in order to avail a safe haven for her family in Australia. The Tribunal does not accept that evidence. The applicant’s personal circumstances would not have affected those of her family. The applicant’s siblings had been found to be members of the family unit of the primary visa applicant and would have been granted the visas, irrespective of the applicant’s own marital status. Rather, it appears that the applicant herself preferred to migrate to Australia, and enable such migration for her husband and child and that was the reason she chose not to disclose her marital status.

25. In oral evidence to the Tribunal the applicant explained how her relationship with her husband started and said that when he sought her hand in marriage, her brother refused, so they decided to marry in secret. The applicant explains that her husband’s family pressured her to go to Australia and sponsor her husband, otherwise they would take the child away from her. The applicant states that her husband’s family kept her elder child as a hostage and she had no choice because she wanted to bring in the child.

26. The Tribunal acknowledges the applicant’s evidence that she kept the relationship secret from her brother. As noted above, whatever the applicant’s motivations were with respect to her family, and whatever information she believed she could share, does not excuse, in the Tribunal’s view, the applicant’s failure to inform the Department about her circumstances. The applicant’s obligations to the Australian agency cannot be governed, nor defined, by the applicant’s relationship with her family members. Neither does the Tribunal accept the applicant’s claim that she lacked comprehension of her circumstances and the significance of marriage and the child. The applicant was well aware that she made the application as a member of the family unit and not in her own right, so that her personal circumstances and relationship status would have been relevant to that. The application had previously been refused on the basis that the applicant was not recognised as a member of the family unit of her sister in law and that decision was reviewed by the Tribunal, so that the relevant legislative requirement would have been clearly outlined to the applicant in the decision to refuse her the visa by the delegate. It is also significant, in the Tribunal’s view, that according to the primary decision record, before the visa was granted, the delegate made contact with the applicant and her siblings to enquire about their personal status and the applicant is recorded to have advised that she was not married. In the Tribunal’s view, if the applicant was unaware of the significance of marriage, she would have disclosed the true information to the delegate and disclosed her marriage. However, she had deliberately provided an incorrect answer by stating that she was not married. Thus, the Tribunal has formed the view that the applicant had deliberately misled the decision-maker in order to obtain the visa. In her response to the NOICC the applicant states that she hoped to assist her husband and child by whatever means that appeared available at the time. In the Tribunal’s view, that was the real motivation of the applicant at the time. The applicant had deliberately withheld information about the marriage and the birth of her first child because she believed that would assist her in the visa application process. The Tribunal finds the breach was intentional and calculated to achieve a favourable migration outcome.

    The present circumstances of the visa holder

27. The applicant states in her submission to the delegate that she did not rely on the services of a people smuggler and did not mislead the authorities to engage Australian protection obligations to obtain residence. It is not entirely clear to the Tribunal why misleading the authorities to obtain a Partner visa is considered to be better than misleading the authorities in order to obtain a Protection visa.

28. The applicant told the Tribunal that she had studied English at TAFE upon coming to Australia and since the birth of her child she has been taking care of her daughter, as well as her brother’s children. The applicant states that she had never relied on social security benefits but had been dependent on her brother since entering Australia. The applicant submits she cannot make ends meet without the assistance of her brother. The Tribunal is prepared to accept that evidence.

29. The applicant states in her submission that her partner Mr Mirzaee passed away in June 2020 and their three year old child is without parental protection in Pakistan. The applicant told the Tribunal that her daughter is in the care of paternal grandmother who is herself unwell. The applicant’s second child, born in Australia in May 2018, is an Australian citizen.

30. The applicant submits that her mental health is deteriorating. The applicant presented with her submission to the delegate a medical report which provides a diagnosis of mixed anxiety and depression, panic disorder and mental disorder. The applicant provided a statement from her support worker. The evidence is that the applicant requires care of family members. The applicant told the Tribunal that she suffers from depression and takes medication. The Tribunal accepts that evidence.

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

31. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

32. The primary decision record indicates that the delegate contacted the applicant before the visa grant in 2017, she was expressly asked about her marital status and the applicant is recorded to have stated that she was not married. That would constitute an incorrect answer and a breach of s. 101 of the Act.

    The time that has elapsed since the non-compliance

33. The applicant was immigration cleared upon entry to Australia in September 2017 and her obligation to inform of changes in circumstances continued until immigration clearance. Approximately three and a half years passed since the non-compliance.

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

34. There are no known breaches of the law.

    Any contribution made by the holder to the community.

35. The applicant told the Tribunal that she takes care of her brother’s children and his housework. The Tribunal accepts that evidence.

36. 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 would be consequential cancellations under s.140.

37. There are no persons whose visas could be cancelled under s. 140.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

1. In her submission to the Tribunal the applicant refers to her Shia ethnicity and states she would be targeted by Sunni Muslims in Afghanistan, such as ISIS and Taliban. The applicant refers to the Shia Muslims being targeted, killed and women raped. The applicant states she is a female with no family connections. She could be forced to get married to someone from her deceased husband’s family and explains the harm that her children could suffer. The applicant states that she would be targeted as a single woman. The applicant states that her Australian citizen child would not have any documents in Afghanistan and would not be accepted. The applicant states that her children may be taken away from her and she may be forced to marry someone else and she does not want to do that. The applicant states that  children are abused or even killed and her daughter, who is an Australian citizen, may be targeted.

2. The Tribunal acknowledges that, on the face of it, such claims may give rise to Australia‘s non-refoulement obligations. To give the applicant the benefit of the doubt, and without undertaking full assessment, the Tribunal accepts, for the benefit of this application only, that  Australia’s protection obligations may arise in this case.

3. The applicant told the Tribunal that her three siblings reside in Australia. Her daughter is an Australian citizen. She has one child presently residing in Pakistan and a sibling in Iran. The principles of family unity may require the applicant’s presence in Australia.

4. The applicant has two minor children. Her younger child is an Australian citizen and if the applicant was required to leave Australia, there is a real possibility that the child would have to leave Australia with her. The applicant told the Tribunal that she does not have her marriage certificate and cannot prove the child’s paternity so she is not sure the child can acquire the Afghani nationality. The applicant told the Tribunal that her elder child is a national of Afghanistan and is taken care of by a grandmother who can no longer care for the child. The Tribunal accepts that it may be in the best interests of the children if the visa is not cancelled and the children (including the Australian citizen child) are permitted to remain in Australia.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

5. 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 an unlawful non-citizen and 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, including the opportunity to sponsor her child for a visa.

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

6. The applicant states that if her visa is cancelled, she may be forced to return to Afghanistan or face indefinite detention in Australia. The applicant describes the hardship she and her children would face if the family were to live in Afghanistan, particularly as the applicant is a single mother.

7. The applicant states that she has no meaningful connection with Afghanistan as she had spent most of her life in Pakistan. She has no relatives and no means of returning to that  country or making a life for herself. The applicant refers to country information about insecurity and well-being of “unaffiliated women” in Afghanistan. The Tribunal accepts that significant hardship would be caused to the applicant and her children if the visa is cancelled.

8. The applicant submits that she helps her brother to raise their child as her sister in law is relying on her due to her own medical condition. The applicant states that  her removal from Australia would cause hardship to her brother’s family. The Tribunal accepts that evidence.

9. The applicant states that she could face indefinite detention if her visa is cancelled as she would not consider returning to Afghanistan or lodge a protection visa application in Australia. The Tribunal acknowledges that the applicant has an option of making the application for a protection visa in Australia and if it is determined that Australia owes the application protection obligations, she may be granted that visa. The applicant would only be returned to Afghanistan if it was determined that Australia’s protection obligations do not arise. The Tribunal does not consider there is any possibility of indefinite detention.

10. The applicant states that her family are in Australia and she has nobody in Afghanistan. Her mother in law does not want to, or cannot help her and there is no man, so she cannot survive as a single woman. The applicant states that she will be forced to marry someone. The applicant states that her mother in law calls her and asked her to take way the daughter a she cannot look after the child on her own and she herself is stressed after the death of her son.

11. The applicant’s three siblings live in Australia and the Tribunal accepts the applicant has strong family links in Australia. The Tribunal also accepts that the applicant has little links in Afghanistan. The applicant told the Tribunal that she cannot live in Pakistan as she has no right to live there and she would not be able to live there as a single woman. The Tribunal accepts that considerable hardship would be caused to the applicant and her children if the visa is cancelled, in particular, if the applicant was required to leave Australia. The Tribunal accepts that  the cancellation of the visa may affect the applicant’s opportunity to bring her elder daughter to Australia. The Tribunal also acknowledges that the applicant has little to go back to in Afghanistan, that she may not be eligible to reside in Pakistan

12. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s. 104 of the Act and that there are grounds for cancelling her visa. The Tribunal has formed the view that the breach was deliberate and that the applicant had intentionally misled the Department in order to secure a visa. It is of considerable concern to the Tribunal that the applicant appears to have no remorse about her conduct, as her evidence to the Tribunal is that she could not disclose the information due to her personal circumstances and that she had no choice. The applicant appears to believe that the provision of incorrect information (when the was interviewed prior to visa grant and referred to her single status) and failure to advise the Department of the changes in her circumstances, were justified. The Tribunal has formed the view that the applicant has very little regard for the Australian laws and her obligations under such laws. Should the applicant seek Australian citizenship in the future, these may be relevant considerations. The Tribunal also places significant weight on the fact that  the applicant would not have been entitled to the visa if the information was disclosed because she may not have met the definition of the term ‘member of the family unit’. That is, the applicant obtained the visa by deception and would not have obtained that visa if she had complied with the legal requirements. The Tribunal finds that there are very strong reasons why the visa should be cancelled.

13. However, the Tribunal is also mindful that Australia’s non-refoulement obligations may arise in this case and, importantly, that there are two young children who would be affected by the cancellation. The applicant’s younger child is an Australian citizen and should the visa be cancelled and if the applicant was to leave Australia, that child may have to travel with the applicant to Afghanistan where she may not be safe. There is also a young child in Pakistan who presently lives without parental care. If the applicant’s visa is cancelled, she would be unable to sponsor that child. The Tribunal has formed the view that the best interests of these children would be adversely affected if the visa is cancelled. The Tribunal has also formed the view that considerable hardship may be caused to the applicant and her family if the visa is cancelled and if the applicant was required to leave Australia. The Tribunal acknowledges there is a real possibility that the applicant may be forced to marry if returned to Afghanistan and that she would find it difficult, if not impossible, to live in Afghanistan on her own and without ‘male protection’. In the particular circumstances of this case, the Tribunal finds that the hardship that would be caused to the applicant, the best interests of her children and potential non-refoulement obligations outweigh other considerations.

14. 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

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kira Raif
    Senior Member