Khaled (Migration)

[2017] AATA 3126

Khaled (Migration) [2017] AATA 3126 (21 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Asya Khaled

CASE NUMBER:  1619851

DIBP REFERENCE:  BCC2016/3778709

MEMBER:Rosa Gagliardi

DATE:21 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Partner) visa.

Statement made on 21 June 2017 at 11:17am

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) – Subclass 801 (Partner) visa – Applicant’s husband’s protection visa cancelled – Three Australian citizen children – Autistic child – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48A, 109, 140

CASES
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 Immigration on 14 November 2016 to cancel the applicant’s Subclass 801 Partner (Residence) (Class BS) visa under s.109 and s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s husband, Mr Nasser Khaled’s Protection visa (subclass 866) was cancelled on 14 November 2016. As the applicant only held a Partner visa because Mr Khaled held a Protection visa, the delegate cancelled the applicant’s visa under subsection 140(2) of the Migration Act. Subsection 140(2) allows the Minister without notice to cancel a visa if that person holds a visa only because another person holds a visa and that visa has been cancelled. That is what occurred in this case.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 1 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nasser Khaled, the applicant’s husband (the former holder of a subclass 866 visa).  The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Is there ground for cancellation?

7. The applicant provided the Tribunal with a copy of the primary decision record for the purposes of the review.  It indicates that the applicant was sponsored in her Partner visa application, by Mr Nasser Khaled.  Mr Khaled’s visa was cancelled by the department on

   
   

   14 November 2016.  The Tribunal (differently constituted) affirmed the cancellation decision  on 8 May 2017 (Decision 1619790).

8. The Tribunal understands that the applicant’s husband has sought judicial review of the cancellation of his visa.  The Tribunal is of the view, however, that the question of whether the ground for cancellation exists must be assessed at the time the cancellation decision was made, although consideration of discretionary factors allows the Tribunal to take into account all of the circumstances as they exist at the present time.

9. At the time the cancellation decision was made, the visa held by the applicant had been cancelled. The Tribunal finds that Mr Nasser Khaled’s subclass 866 visa has been cancelled under s.109 of the Act. The Tribunal finds that the applicant, as his wife, is a person who held a visa only because Mr Nasser Khaled held a visa. As Mr Khaled’s visa has been cancelled under s.109, the Tribunal finds there are grounds for cancelling the applicant’s Partner visa under s.140(2) of the Act.

10. The applicant is a national of Lebanon.  She and her husband, Mr Khaled, have three children.  The youngest is aged 1.5 years (girl); the second 2.5 years (girl); and the third 4.5 years is a boy who suffers from autism.  The applicant and her husband were born in Danbo, Lebanon in the northern Akkar region, several hours outside Beirut.  Mr Khaled was a tiler in Lebanon prior to his travel here and he works as such in Australia.  The applicant and her husband are Sunni Muslims and are not part of any minority in Lebanon. 

    Should the visa be cancelled?

11. As the Tribunal has decided that there is a ground for cancelling the visa, it is necessary to consider whether the visa should be cancelled.  Cancellation in this context is discretionary.  In deciding whether to cancel the visa, the Tribunal had had regard to the considerations set out below.  Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The visa holder entered Australia on a subclass TO300 Prospective Marriage visa granted on 5 October 2012.  Subsequently she was granted a UK 820 Partner visa on 22 October 2012 and a BS 801 Partner visa on 24 February 2015.  The purpose of the visa was to enable the applicant to remain in Australia with her husband.  The visa held by the applicant’s husband has now been cancelled so the applicant would not be fulfilling the purpose of her travel to and stay in Australia by remaining in Australia without her husband. 

    The extent of compliance with visa conditions

13. The Tribunal is unaware of any non-compliance with visa conditions and the Tribunal attributes weight in this matter in the applicant’s favour.

    The degree of hardship that may be caused (financial, psychological, emotional or other) to the visa holder and any family members

14. The Tribunal has taken into account that the applicant has three Australian citizen children.  The Tribunal appreciates that the quality of education and health services in Lebanon generally are not of a standard as those in Australia.  In particular, access to free health may not be accessible.  The Tribunal places weight on this factor in the applicant’s favour in terms of how the three children generally will be affected if they are to returned to Lebanon, where they may have fewer opportunities than were they to remain in Australia.

15. The applicant also has an autistic child and the Tribunal considers that additional consideration above and beyond how the other two children will be affected should be taken into account by the Tribunal.  A psychological (clinical) report dated 8 June 2017, indicates that the applicant and her husband have attended weekly sessions with the psychologist and that, “The issue of a significantly impaired child with an Autism Spectrum disorder adds a burden of demand that would be “difficult” for any family unit.”  The Tribunal concurs that regardless of where a child with autism may be living, the illness creates significant challenges for the family dynamics. 

16. On 5 June 2017, the applicant’s autistic son’s (Mahmoud’s) kindergarten teacher has provided a report relating to the number of hours that Mahmoud attends school, being 15 hours per week, spread across 3 days, Monday, Tuesday and Friday.  It appears that to fully access and benefit from the Kindergarten program, Mahmoud has required extra assistance through an Inclusion Program.  It appears that Mahmoud has limited play and social skills and had difficulty being separated from his mother.  His sense of danger is also limited.  In the teacher’s view, it is clear that Mahmoud’s attendance at kindergarten is assisting his learning and development.  The teacher’s letter also refers to the fact that parental engagement in strongly related to enhanced well-being, positive behaviours and improved student learning. 

17. The Tribunal is in no doubt that Mahmoud would benefit from continued inclusion in his special kindergarten program and Specialist Children Services.  Other documents have been provided demonstrating that Mahmoud has been the beneficiary of a social worker and occupational therapist.

18. The Tribunal places weight on the hardship that may be suffered by Mahmoud, and consequently the applicant, were he not able to access specialist programs as they exist in Australia and the Tribunal places weight in this matter in favour of the applicant.  

19. The migration agent has written to the Tribunal on 31 May 2017, submitting, among other things, several articles on autism and marginalisation of disabled people in Lebanon:

    ·An article (not cited) which refers to the government not providing guidance in the area of autism, even though it appears that “a new psycho-paediatric & autistic service soon in Beirut”, with the author claiming that this was not enough. The article also refers to Lebanon now having many NGO associations for autism, including:

    -    Lebanese Autism Society (LAS) based in Beirut; and

    -    Al-Midan associations (north Lebanon). 

20. The Tribunal is not clear when this article was written and by whom, and whether the source is credible, however, the Tribunal accepts its premise that the organisations for autism in Lebanon, which the Tribunal notes are based close to the home area of the applicant, have in the past been largely established and driven by parents of autistic children.  The article also states that the Lebanese educational system (both public and private) do not have programs directed towards autistic children.  The Technical School for Children with Autism that was opened, it is claimed in the article, is not accessible to all due to high costs. 

21. The migration agent has also submitted a further article entitled, “Towards Inclusive Educational Communities”, which refers to a project to work with two public schools, providing training, specialist interventions and advice for teachers, parents and students.  These schools will act as pilots to advocate for change at the national level because, “In Lebanon, Lebanese and Syrian refugee children with learning difficulties often do not have the support they need to reach their potential”. 

22. In addition, a paper entitled, “Review of marginalisation of people with disabilities in Lebanon, Syria and Jordan” by Susan J Peters, 2009, has been submitted which discusses, inter alia, the relationship between poverty, disability and education and that minority groups in particular, can be affected, and that in Lebanon the two largest minority groups in Jordan, Syria and Lebanon are Bedouins and Palestinians.  The paper also refers to how cultural links to disability constitute a critical influence on marginalisation and that:

    Culturally embedded attitudes render the severity of an impairment inconsequential compared to the social consequences of disablement.  In a traditional Muslim household, a girl child with a slight disfigurement may be fully functional, but considered impure and unfit for marriage, making education unnecessary in the eyes of her parents.  By contrast, a boy with a more severe impairment within the same household might be sent to school and given supports that greatly diminish the influence of the impairment. 

23. The Tribunal notes that Mahmoud is not a Bedouin or a Palestinian and that he his male which point to his circumstances in Lebanon being less harsh than had he belonged to any of these three social groups.  Having said this, the Tribunal notes that the article by

    
    

    Ms Peters states that quoting a source from 1997 “the birth of a disabled child is seen by many as not only a misfortune, but as shameful and embarrassing.  The husband’s family is likely to blame the misfortune on the mother…and is likely to consign his or her mother to a lifetime of misery”.  These matters were echoed by the applicant, her husband and the migration agent at hearing, stating that the applicant came from a more socially conservative background where disability was not understood as it is in Australia and can attract ridicule, alienation and family shame.  The Tribunal places some weight on the information provided by the migration agent above, noting, however, that some of the material is now out-dated. 

24. The country information accessed by the Tribunal supports a general view that dealing in Lebanon with autism through the education sector is not as advanced as it might be in Australia, and in particular Melbourne, however, the above country information would support the contention that awareness of autism has gained momentum and that ways forward in terms of early intervention are being explored. 

25. The Tribunal considers that the work of the NGOs in Lebanon for the promulgation of information and advocacy on behalf of autistic children and their parents, has been somewhat minimised by the less than recent articles submitted by the migration agent.  The Tribunal has had access to the website of the Lebanese Autism Society – LAS which was established by both parents and professionals in the area.  LAS’ outreach is significant and it is also a member of different national and international organisations such as AutismEurope, Work Autism Organization, United Nation Global Compact. [1]

    [1] accessed on 20 June 2017. 

26. In addition, the mission of LAS is not diminished because it was started up 1999 by Mrs Arwa El Amine Halawi who is the parent of a son with autism.  Indeed, it appears to be a coordinated and sophisticated organisation that involves professionals so that methodology is introduced into the organisation’s approach.  Significantly the organisation is based in Beirut and is accessible to the applicant and her family.  The LAS focuses on the following areas:

    Early Diagnosis and Intervention emphasizing the development of highly structured, specialized educational programs tailored to the individual needs of children with Autism Spectrum Disorder and other disabilities

    The promotion and support of the social integration of children and teenagers with Autism

    Building capacities of professionals and institutions providing services to children with Autism in Lebanon

    Spreading public awareness in regards to Autism and Autism Spectrum disorders.[2]

    [2] Ibid.

27. The organisation is also recruiting shadow teachers, assistant teachers and is involved in organising fund raising activities.[3] 

    [3] accessed on 20 June 2017. 

28. The fact that awareness about autism has grown is indicated by research undertaken in 2014, which revealed that the rate of autism in Beirut and Mount Lebanon was on the rise according to specialists who attended the second conference held by the OpenMinds Association and AUBNC Special Kids Clinic.  The conference held at the American University of Beirut Medical Center, gathered specialists from the United Kingdom, the United States and Lebanon to discuss children with special needs and the transition to adulthood.  The speakers particularly focussed on identifying the medical and social difficulties that children with autism or those with special needs experience.[4]

    [4] accessed on 20 June 2017.

29. The article in The Daily Star which appeared on 1 December 2014, also refers to Rose-Mary Boustany’s comments at that time (Director of the Neurogenetics Program and AUBMC Special Kids Clinic) that:

    “We hope to show that inclusion in normal nurseries and schools, speech, occupational, psychomotor and applied behaviour analysis therapies will normalize these findings and improve outcome over time, paving the way for full medical and therapy coverage by the National Social Security Fund and private insurance companies…” [5]

    [5] Ibid.,

30. The article also reports that Ali Hamze, Director of Learning Enhancement and Assistance Program introduced a college program designed for young people with special learning needs.  The three-year program would allow each student to “graduate with skills necessary to become employable, live independently, experience personal success and become an active citizen in the society”.[6]

    [6] Ibid.

31. While these aspirations have yet to be fulfilled, it seems that public discourse is growing for recognition of disability as something that the National Social Security Fund and private insurance companies might over time fund.

32. The Tribunal accepts that the Technical School for Autism in Beirut attracts fees and that ideally the family would like not to have the financial burdens of accessing specialist training.  The Tribunal also does not wish to paint an ultra-optimistic picture of what life would be like in Lebanon for Mahmoud and his family.  While the Tribunal accepts that culturally some societies due to misinformation and fear are not tolerant of persons with disabilities, it would seem that in Lebanon, at least more recently, awareness of the issue of autism has been enhanced and that Mahmoud’s parents would have access to organisations that could provide advice and assistance as he grows older which are based in relative proximity to their home area. 

33. The Tribunal also appreciates that the standard of living in Danbo in Lebanon would not be as high as that in Australia.  Information sourced by the Tribunal indicates that rents in places like Beirut are high, and that the north of Lebanon in particular has had to deal with a large influx of Syrian refugees, placing further pressure on the area’s infrastructure and housing.[7]

    [7] accessed on 20 June 2017. 

34. Nonetheless, the applicant’s husband is a tiler, and was so in his home country before coming to Australia.  While his earning capacity in Lebanon may not equate to that in Australia, the Tribunal considers that the family can be provided for.

35. The Tribunal places some weight in the applicant’s favour in terms of the economic disadvantages she may face in returning to Lebanon, including her need to seek out assistance for Mahmoud in particular, but overall, the Tribunal is not satisfied that these factors outweigh any considerations for why the visa ought to be cancelled. 

36. The Tribunal has also had regard to the psychologist’s report dated 8 June 2017 highlighting that the applicant had been diagnosed with stress and depression, although little methodological information has been provided to substantiate this diagnosis.  The Tribunal appreciates that the level of support in Lebanon may not be as extensive as that the applicant would receive in Australia for any mental health conditions.  The psychologist focuses on the need to keep the family together and that “The diagnosis of Autism together with the demonstrated and observed relative weakness of this mother points to the outcome of “great difficulty” in life if she does not retain the support of an intact family” and that “it equally follows that his (Mr Khaled’s) absence would create a situation of duress which may be anticipated to be at the level of “unmanageable”, and would certainly be in the “severe difficulty” range of impact”. 

37. The Tribunal is not advocating the separation of the family.  Clearly it would be in the best interests of the children to have both parents in their lives, and as the applicant’s husband has had his visa cancelled, then that would mean, if they wish to remain together, that the applicant and her three children would travel with him to Lebanon.

38. The applicant, the Tribunal notes, also has family members including parents and siblings, living in Lebanon and the Tribunal has limited information before it that they would not be of assistance to the applicant in raising her family there.

39. The Tribunal also understands that the visa holder is arguing that in Australia she receives welfare payments for her children – something she would not receive in Lebanon.  Clearly this matter is something that the Tribunal takes into consideration, but on the other hand as stated above, it is not as though the evidence demonstrates that the applicant’s husband is prevented from earning a living in Lebanon.  Indeed even after claiming persecution in Australia, the applicant’s husband returned to Lebanon to marry the applicant meaning that, as the breadwinner, the evidence before the Tribunal that he would be deprived of supporting his family, is scant.  The applicant’s husband, the Tribunal understands, is appealing the decision to cancel his protection visa application and at hearing it was claimed that the applicant’s husband was undergoing a transition back to Islam and that the matter is a lot more nuanced than the AAT decision maker in his case appreciated. The Tribunal is not opening up the claims of Mr Khaled in this decision and it would not be appropriate to do so.  However, on the evidence before it the Tribunal has little to indicate that Mr Khaled could not support his family in Lebanon.

1. The Tribunal has considered the degree of hardship that may be caused to the visa holder and any family members in having her visa cancelled, but overall considers that the applicant’s health and that of Mahmoud, including the educational and health opportunities the family would have access to overall are not such that the family would suffer severe deprivation or unreasonable hardship. 

   Circumstances in which ground of cancellation arose

2. The cancellation occurred because the visa held by the applicant’s husband has been cancelled and the applicant only held the visa because he held a visa.

   Past and present conduct of the visa holder towards the department

3. In his submission dated 31 May 2017, the migration agent has written:

   It is respectfully submitted the review Applicant and Australian citizen children are merely innocent victims who deny any knowledge or culpability of any falsehood or the provision of misleading information that was submitted to the Department of Immigration and Border Protection.

4. The Tribunal appreciates that the applicant and her children are subject of cancellation because her husband’s visa has been cancelled and that they have no culpability in the alleged misleading information provided to the Department by the applicant’s husband.  Nonetheless, the regulations do not envisage that culpability or otherwise of an applicant whose visa has been consequentially cancelled is a key consideration, however, the Tribunal does agree that the lives of the applicant and her three children will be impacted for reasons that were beyond their control, and this is something that the Tribunal does place some weight in favour of the applicant. 

5. In short, nothing adverse is known about the holder’s past and present behaviour towards the Department.

   In the case of a permanent visa, the links that the person may have made to the community, for example, the strength of the family, social, business and other ties.

6. The Tribunal notes that the family appears to have integrated well and that the visa holder’s husband is a tiler and has made a contribution economically to the community.  In addition, the applicant has a large family network in Australia as does her husband with numerous siblings and their families.  They will no doubt be affected somewhat adversely by this decision as the extended family is close it is claimed.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

7. The Tribunal is mindful that Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR), Article 3.1 of the CROC which states:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

8. In addition, Australia has signed the International Covenant on Civil and Political Rights (ICCPR).  Article 23.1 of the ICCPR provides that the family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.  Relevant departmental policy instructions (PAM3) relating to family separations state:

   Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction.  The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refer to an obligation that people should not be removed to frontiers/territories where they face certain types of harm.

9. Generally Australian courts have found that it is in the best interests of the child to remain with their family.  This is particularly so in cases such as this family, where the children are cared for very well by their parents and benefit from the presence of both parents.  The visa holder’s visa cancellation will not result in the children being separated from their parents.  The Tribunal also takes into account that the children are all under five years of age. 

10. Furthermore, the applicant and her husband have the legal right to return to return to Lebanon.

11. The Tribunal finds, therefore, that Australia would not be in breach of Article 3.1 or 3.3 if the visa holder’s children were to return to Lebanon, as it is in their best interests to remain with their parents.  In terms of Mahmoud’s autism, the Tribunal has provided discussion above about the difficulties the family will face, but the Tribunal is not persuaded that Article 3.1 or 3.3 imposes on the Tribunal any obligation not to return children to a place where their standard of living might be reduced and they may not have access to services that are of a standard as those in Australia and that attract no payment.

12. Cancellation would not mean that the visa holder would be separated from her family as she is free to return to Lebanon with her children and husband.  The Tribunal notes that the visa holder’s husband is appealing the AAT’s decision to cancel her husband’s visa and the Tribunal presumes that she and her children will also be entitled to a Bridging visa, meaning they would not be held in detention while resolution of the appeal is awaited. 

13. In terms of Australia’s non-refoulement obligations which require a decision maker to have regard to whether as a result of the cancellation a person may be returned to a country where they face persecution; death; torture; or cruel and inhuman or degrading treatment or punishment.  The Tribunal is mindful that the applicant would have an opportunity to apply for a protection visa, if she believes such obligations arise.  The Tribunal is not aware that the applicant would be removed from Australia without her claims being assessed, should she wish to make any claims to engage Australia’s protection obligations.  As such, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.  The Tribunal does not consider that the cancellation would result in Australia breaching its international obligations.  Given the young age of the children, the Tribunal considers that they will adjust to their new circumstances in the context of a loving nuclear family.

14. The Tribunal notes that at hearing the migration agent argued that if the Tribunal did not affirm the decision then the visa holder would be eligible to sponsor the visa applicant back to Australia.  The Tribunal has considered this matter but is not satisfied that it has a role in facilitating her husband’s travel back to Australia in circumstances where his visa was cancelled.

    The impact of cancellation of any victims of family violence, if family violence is a factor

15. There has been no suggestion that family violence is a factor.

16. The Tribunal may also have regard to lawful governmental policy set out in PAM3.  This policy in relation to ‘General visa cancellation powers’ requires decision-makers to have regard to such matters as:

    Whether the visa would have been granted if the correct information had been given

17. As noted above, there is no suggestion that the applicant gave incorrect answers in relation to her Partner visa application.  That is, the grant of the Partner visa was not dependent on the provision of correct information.

    Whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act.

18. There are no persons in Australia whose visas would, or may be automatically cancelled under s.140 of the Act. The cancellation of the applicant’s visa is in itself consequential upon the cancellation of the visa held by her husband, Mr Khaled. The children are Australian citizens and therefore they would not be affected.

    The legal consequences of a decision to cancel the visa

19. While the decision to cancel the applicant’s visa might not mean the permanent separation of the applicant and her children and her husband, the applicant will be subject to Section 48A(1B) of the Act, limiting the types of visas the former visa holder could apply for. In addition, upon cancellation of the visa, the visa holder would become an unlawful non-citizen and liable to be detained under section 189. The Tribunal has also considered whether, as a result of a cancellation decision, the former visa holder would be subject to indefinite detention, although the Tribunal does not see why the applicant cannot apply for a Bridging visa E while her husband’s visa cancellation is being reviewed by the courts.

    Conclusion

20. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has formed the view that there is a ground for cancellation because the applicant held a visa only because another person held a visa, and that person’s visa has been cancelled.  The Tribunal acknowledges that some hardships will arise for the family in returning to Lebanon, particularly in relation to the applicant’s autistic child.  The applicant in participating in early intervention programs in Australia has also benefited from ways of dealing with autism and has gained knowledge about the illness.  Furthermore, Mahmoud has had the benefit of some early intervention that will lay some foundations for further positive growth and development.  The overriding factor in the Tribunal’s consideration is that the family remain intact.  That can occur if the family return to Lebanon together where the children, given their young ages can adapt to their new circumstances. 

    DECISION

21. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Partner) visa.

    Rosa Gagliardi
    Member