Mohamed Fairoze (Migration)

[2018] AATA 2636

Mohamed Fairoze (Migration) [2018] AATA 2636 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fathima Rushda Mohamed Fairoze

Mr Nafeez Ahamed Mohamed Illyas

CASE NUMBER:  1717509

DIBP REFERENCE(S):  BCC2016/1783353

MEMBER:Michael Cooke

DATE:4 June 2018

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in the matter of the second named applicant.

Statement made on 04 June 2018 at 12:14pm           

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Change in circumstances – Failure to inform of marriage – Technical breach – Psychological diagnosis – No apparent nefarious motive – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

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 to cancel the first named applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to inform the Department of a change in her circumstances being her marriage to the second named visa applicant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(2) of the Act. As a decision was involved in the visa cancellation under s.140(2), the Tribunal has jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from : Abdul Raheem Sithy Rameeza, Abdul Rahim Mohamed Fairoze, Abdul Rahim Mohamed Fairoze, Aysha Shahani Mohamed Fairoze, Fathima Amra Mohamed Fairoze, Mohamed Shamry Mohamed Fairoze. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicants were represented in relation to the review by their 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 set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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. Extracts of the Act relevant to this case are attached to this decision.

9. 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.104(3) in the following respects:

    ·The applicant admits that she did not comply with Section 104 of Subdivision C of the Migration Act. She failed to inform the Department of her marriage whilst still listed as a dependent on her family’s Subclass 309/100 Partner visa. She claimed it was a technical breach from ignorance with no nefarious conduct intended or performed.

11. For these reasons, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

12. 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).

13. 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

14. The applicant actually married her spouse on 24 January 2016. Prior to her first entry into Australia but following the grant of the visa on 5 November 2015. She was immigration cleared on 14 April 2016.

    ·     the content of the genuine document (if any)

15. Not applicable

    ·     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

16. The decision to grant the visa was not based on incorrect information or a bogus document. The applicant was not married at the time of the visa grant. The applicant was married at the time of her visa clearance. If the Department had been alerted earlier to her change of circumstances (prior to visa clearance) she would not have been granted the visa.

    ·     the circumstances in which the non-compliance occurred

17. The decision to grant the visa was not impugned by a failure to notify the Department of a change in circumstances.  The applicant was a dependent on her mother’s visa and thus granted a visa on 5 November 2015. Her parents were concerned that she was approaching 25 years of age and arranged for her to be married. She married on 24 January 2016 and entered Australia on 14 April 2016.

    ·     the present circumstances of the visa holder

18. The visa applicant is a permanent resident of Austral and mother of a young baby. She co-habits with her husband and extended family in her father’s rented property. She is a student and has sought to upskill herself through gaining qualifications in Early Childhood Education. She has received assistance through Centrelink.

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

19. The applicant has been forthright in admitting her non-compliance.

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

20. None.

    ·     the time that has elapsed since the non-compliance

21. The non-compliance was in January 2016 thus over 2 and a half years have passed at time of writing this decision.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

22. The Tribunal has no evidence of any breaches of the law since the non-compliance.

    ·     any contribution made by the holder to the community.

23. The applicant (and her spouse) has not made any direct contribution to the community in the wider sense.  She has been a tower of strength to the younger members of her (permanent resident and citizen) family according to oral evidence. This includes direct assistance with coaching them with schoolwork, being a mentor to them and assisting with problem solving with her IT student brother.

24. 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.

    Consideration / discussion of: the prescribed factors, where relevant, or where not relevant; any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·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

25. The applicant would become an unlawful non-citizen and subject to detention under s.189 of the Act. She could be removed under s.198 of the Act if she does not arrange her own departure. She would also have limited options for further visas and may be required to return to Sri Lanka. She would also be liable to under Subdivision C to a general exclusion period of three years in which she would not be able to apply for a visa.

    ·whether there would be consequential cancellations under s.140

26. The main effect of upholding the cancellation would be the consequential cancellation of the applicant’s spouse’s visa (Nafeez Ahmed Mohamed Illyas). He holds a Class UF Subclass 309 Combined Partner visa.

    ·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. 

27. There is no information before the Tribunal which indicates that the visa cancellation would impact on Australia’s international obligations. There is no evidence that there would be a breach (as a result of the cancellation) of Australia’s non-refoulement obligations. A consequence of the cancellation is that the applicant’s family would be separated from the applicant and her husband. Her child would be separated from his grandparents and other Australia-based relatives.

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

28. The Tribunal has examined the case of the applicant further and has been apprised of the fact that she has had difficulty having a family. She was subject to an earlier miscarriage (ectopic pregnancy) and now has given birth to a child with difficulty. She has also sought to better her education standards and upskill herself by further study. She is of the opinion that hr Early Childhood qualifications would be unusable in contemporary Sri Lanka. The Tribunal has had the benefit of an extensive psychological diagnosis of the applicant by Dr. Cook. It appears that the applicant’s life has had some significant challenges. She waited for so many years to migrate including being ‘timed out’ at the final stage through Departmental quotas. Then she finds that (having being granted permanent residency) by some technical failure her Subclass 100 Partner visa is to be cancelled. This has weighed heavily on the applicant’s psyche - deleteriously - the Tribunal is informed.

29. Dr Cook is of the opinion that her forced return to Sri Lanka and the disruption it would potentially cause to her and her long-suffering family would exacerbate her fragile psychological state. Vicariously he opines that it could affect the upbringing of her new child. The parties have essentially made their life plans based on staying in Australia. Her husband quit his job in Sri Lanka - after being informed by the Department that his visa had been granted. He has embarked on a new career direction and returning to Sri Lanka would be difficult for him to reintegrate and re-establish his career  - he claims. It is the Tribunal’s view that the applicant would be involved in significant hardship if the cancellation were to be upheld. She has performed a technical breach of the Act with no apparent nefarious motive. It is the Tribunal’s finding that a discretionary decision to set aside the cancellation is the appropriate action in this case.

30. 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

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

32. The Tribunal has no jurisdiction in the matter of the second named applicant.

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.