KARIMI ZANDI (Migration)

KARIMI ZANDI (Migration) [2020] AATA 6045 (7 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs SEPIDEH KARIMI ZANDI
CASE NUMBER:  2000726
DIBP REFERENCE(S):  BCC2018/4156689
MEMBER:Kira Raif
DATE:7 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 07 December 2020 at 12:09pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous partner visa application – inconsistent accounts of the applicant’s meeting and family composition – registration of the marriage in Iran – bogus marriage certificate – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101-105, 107, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant is a national of Iran, born in June 1985. She was granted the Resident Return visa in May 2017. In November 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act. The applicant did not respond to the Notice in writing and her visa was cancelled on 10 January 2020. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 11 November 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 December 2020. On 7 December 2020 the applicant advised the Tribunal that she did not wish to give oral evidence. The applicant informed the Tribunal that because certain documents were not released to her (which were subject to the s. 375A certificate), she would be prevented from giving evidence. The Tribunal does not consider that to be the case, as the applicant was provided with the substance of the information contained in those pages in the NOICC. The Tribunal is satisfied the applicant has been given the opportunity to address the adverse information.
The applicant consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
Relevant law
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.
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.
Section 107A provides that possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.
Did the notice comply with the requirements in s.107?
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.
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?
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 ss. 101 and 103 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for a Partner visa on 7 July 2008 and she was sponsored in that application by her husband Mr Behrooz Karimi Zandi. In the application form 47SP the applicant gave names and dates of birth for herself, her parents and four siblings. The applicant is recorded to have provided the following information on form 47SP:
·At question 67 ‘when and where did you and your partner first meet?” the applicant stated “01/01/98 in Iran”
·At question 74 ‘did you enter into this relationship with your partner solely to gain permanent residency in Australia?” the applicant stated ‘no’
The applicant is recorded to have provided the following information on form 40SP:
·At question 9 ‘when and where did you and your partner first meet?‘ the applicant stated ‘01/01/98’ in Iran
·At question 10 ‘how long after you met did you and your partner begin a relationship/” the applicant stated ‘1 year and 6 months’
·At question 12 ‘when and where did you begin a spouse or interdependent relationship with your partner’ the applicant sated ’15 June 2007 in Iran’.
The applicant included with her application a statement dated 6 April 2010 in which she stated that she knew her husband Behrooz Karimi Zandi as he is a cousin of her father. She also included a Marriage certificate showing the date of marriage and its registration as 15 June 2007. The sponsor confirmed that the marriage took place by proxy in his absence from Iran at the time of the wedding.
The applicant was granted the temporary Partner Subclass 309 visa in April 2010 and a permanent visa in Subclass 100 in April 2012.
The primary decision record indicates that in May 2003 Behrooz applied for a visa in Australia and in that application he provided details of his parents and six siblings. In January 2005 Behrooz sponsored his then wife Fatemeh Rezaei and son Kamyab for a Global Special Humanitarian Subclass 202 visa. In that application he also gave details of his parents and six siblings. Also included in that application was a marriage certificate relating to the marriage between Behrooz Karimi Zandi and Fatemeh Rezai which occurred on 20 April 1995.
The primary decision record indicates that the applicant declared in her Partner visa application a brother named Saman Karimi Zandi. Saman arrived in Australia and was interviewed by the Department, declaring his parents and grandfather by the same name and approximately the same date of birth as the applicant’s. The delegate concluded that Saman is the applicant’s brother.
It is stated in the primary decision that in July 2017 the applicant sponsored Mr Mohammad Osfatizadeh for a Prospective Marriage visa. She included in that application a ‘shenasnameh’ (an identity document) which refers to the applicant having no marriages or children registered up to May 2017. The delegate concluded that the applicant’s marriage to Behrooz may not have been registered with the Iranian authorities.
The primary decision record indicates that the applicant, Behrooz, Fatemeh and others have used the same addressed at Reynella, South Australia. It is stated that Behrooz completed Incoming Passenger Cards (IPCs) in March 2011 and December 2012 and gave an address at Reynella, SA. The same address was given by Fatemeh Rezaei upon her entry to Australia in July 2011 and November 2012 despite the claim that the applicant and Behrooz were in a spousal relationship at that time. The applicant herself completed an IPC upon entering Australia in September 2012 and gave the same address in Reynella, SA. It is also stated that Behrooz stated Fatemeh to be emergency contact person in March 2011 and December 2012 despite his claimed relationship with the applicant. Further, despite the claimed divorce, both the applicant and Behrooz declared the same address on their IPCs in April and June 2017 respectively.
The primary decision record indicates that in his own visa application and in his sponsorship of his first wife and son, Behrooz referred to his siblings as Iraj, Tooraj, Nasrin, Masoud, Mehryar and Sholeh. In her partner visa application the applicant referred to Behrooz’s siblings as Nasrin, Masoud, Mehryar and Sholeh. Iraj is listed as a witness to the marriage between Behrooz and his first wife Fatemeh and both Iraj and Behrooz are identified as the sons of Ali. However, Iraj is not listed by the visa applicant in her own visa application.
The delegate concluded that the identity of Iraj has been concealed in the applicant’s Partner visa application in an attempt to distance herself from her relationship with Behrooz. The delegate formed the view that Behrooz is the applicant’s uncle and not her father’s cousin as she claimed at the time of her visa application.
The delegate found that the applicant gave incorrect answers in response to several questions on the application form by not declaring her father Iraj as the brother of Behrooz and by stating that the couple met in 1998. The delegate found that the applicant intentionally distanced herself from Behrooz so as to secure a partner visa to enter Australia.
The delegate found that the applicant gave incorrect answer about the relationship with Behrooz commencing around 1999 because Behrooz was married to Fatemah between 1995 and 2007 and had a child in 1997. The delegate concluded that the applicant did not comply with s.101 of the Act.
The delegate also found that the applicant gave with her Partner visa application a bogus Iranian marriage certificate because her shenasnameh subsequently submitted in support of her sponsorship of her fiancé showed that the applicant was not previously married, contrary to the information in the marriage certificate submitted with the applicant’s Partner visa application. The delegate found the marriage certificate was a bogus document, given in breach of s. 103 of the Act.
As noted above, the applicant did not provide a response to the NOICC and she provided no additional evidence to the Tribunal. In the absence of any explanation from the applicant or any evidence to indicate that the evidence set out in the primary decision is incorrect or inaccurate, the Tribunal finds such evidence persuasive. The Tribunal finds that the applicant had deliberately provided incorrect information, or withheld information about the nature of her relationship with the sponsor. In particular, the Tribunal finds that the applicant stated in her statement which accompanied the Partner visa application that Behrooz Zandi was her father’s cousin and that information was incorrect as Behrooz is the brother of her father. The Tribunal is mindful that an answer provided in a statement is considered an answer on the application form. The Tribunal finds that the applicant completed the form in a way that incorrect answers were given and that she has not complied with s. 101 of the Act.
The Tribunal also finds that the marriage certificate the applicant submitted with her Partner application was a bogus document because a subsequent document shows that the applicant’s marriage in Iran was not registered. The Tribunal finds that the applicant has not complied with s. 103 of the Act.
The Tribunal finds that there was non-compliance with ss. 101 and 103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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
The correct information is that the sponsor was the applicant’s uncle and that relationship was not as distant as the applicant sought to portray in her Partner visa application.
The content of the genuine document (if any)
The Tribunal has formed the view that the marriage certificate the applicant submitted with her Partner application was a bogus document because she was not previously legally married in Iran. The content of a genuine document would not show that there was a valid and legally recognised marriage in Iran.
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
The decision to grant a Partner visa relies on the assessment of the applicant’s relationship with the sponsor. The Tribunal has formed the view that the applicant gave incorrect answers in relation to the nature of her familial relationship with the sponsor. These details would have been relevant to the assessment of whether the applicant’s relationship with the sponsor was genuine and committed and to the exclusion of all others. Further, the Tribunal has formed the view that the applicant’s marriage certificate was a bogus document and the applicant relied on having a valid marriage with the sponsor when seeking the visa. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and a bogus document.
The circumstances in which the non-compliance occurred
The applicant has not provided a response to the NOICC and no evidence to the Tribunal to explain the circumstances in which the non-compliance occurred. The Tribunal is unable to determine such circumstances.
The present circumstances of the visa holder
The primary decision record indicates that since first entering Australia in May 2010, the applicant had spent approximately 1300 days offshore, mostly in Iran. The applicant has not presented any updated evidence to the Tribunal concerning her present circumstances.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
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
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The applicant made the application in July 2008. More than 12 years passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant has not provided evidence of having made any contribution to the community.
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
If the applicant’s visa is cancelled, unless she is granted another visa, 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 applicants from making a valid visa application without the Minister’s intervention although the Tribunal acknowledges that the applicant will have limited opportunities to make visa applications onshore. If the applicant does not hold a permanent visa, she would be unable to sponsor her new Partner for a visa (although the primary decision record indicates that his application has been withdrawn). The applicant would also lose any entitlements she may have acquired as a permanent resident of Australia.
Whether there would be consequential cancellations under s.140
There are no other persons whose visas would be subject to consequential cancellation.
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.
The applicant has not presented any evidence to indicate that Australia’s non-refoulement obligations arise in this case, or that there would be any children affected by the cancellation. On the limited evidence before it, the Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The applicant has not raised any other matters and has not explained what hardship, if any, would be caused by the cancellation of the visa.
The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with ss. 101 and 103 of the Act and that there are grounds for cancelling her visa. The Tribunal considers the breach to be significant because the decision to grant the visa was based, in part, on incorrect information and the nature of the applicant’s relationship with the sponsor was central to the decision to grant her the visa.
There is very limited evidence before the Tribunal concerning the applicant’s present circumstances or the circumstances in which the ground for cancellation arose. The applicant has not provided any evidence of hardship that the cancellation may cause and on the limited evidence before it, the Tribunal does not consider that hardship would be caused. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations. There is no evidence of the applicant’s contribution to the community. The Tribunal acknowledges that there are no other known breaches of the law and nothing adverse is known about the applicant’s compliance with her obligations under the Act. The Tribunal also acknowledges that over ten years passed since the non-compliance and the applicant may well be settled in Australia, although she has not presented any evidence relating to her life in this country.

Overall, the Tribunal places greater weight on the fact that the decision to grant the visa was based on incorrect information and bogus document. 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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Kira Raif
Senior Member

[2020] AATA 6045

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction