Mohammadi (Migration)

[2017] AATA 99

Mohammadi (Migration) [2017] AATA 99 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nooria Mohammadi

CASE NUMBER:  1614985

DIBP REFERENCE:  BCC2015/2672607

MEMBER:Deborah Morgan

DATE:9 January 2017

PLACE OF DECISION:  Adelaide

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 January 2017 at 3:25pm

CATCHWORDS

Migration – Cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Initial visa granted as dependant – Failed to notify of changed circumstances – Marital status – Discretionary circumstances – Hardship and negative impact if visa cancelled

LEGISLATION

Migration Act, 1958, ss.104, 107, 109

Migration Regulations 1994, r.2.41

CASES

Dou v Minister for Immigration & Anor [2016] FCCA 682

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 Ms Nooria Mohammadi’s (the applicant) Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. Noting some factual errors with respect to dates, the delegate appears to have cancelled the visa on the basis that the applicant was not the dependent child of her mother, Mrs Fawzia Mohammadi (the applicant’s mother). The issue before the Tribunal is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, from Mr Aman  Mohammadi (the applicant’s father); by telephone from the applicant’s husband, Mr Monawar Shah Rahmani (Mr Rahmani); and, by telephone from her uncle, Mr Qurban Rezaie. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. The applicant, a Hazara, was born on 2 February 1995 in Afghanistan. Accordingly, she is aged 21 years at time of decision.

7. The applicant applied for a Subclass 100 (Spouse) visa as one of the dependent children of her mother on 26 September 2012 at which time she was 17 years.

8. The applicant was granted a Subclass 100 visa on 15 April 2013 (refer Visa Grant Notice to primary applicant Fawzia Mohammadi naming the applicant as one of  her five children, folio 27 Tribunal file).

9. The applicant first arrived in Australia on 30 July 2013 on her Subclass 100 visa.

10. Mr Rahmani applied for a Prospective Marriage Subclass 300 visa on 16 June 2014 on the basis that the applicant was his sponsor for that visa. The Department’s file includes a statement in English from Mr Rahmani’s parents that their son’s engagement to the applicant occurred on 1 July 2013 (Department file, folio 1).

11. The Department notified the applicant of its intention to cancel her Subclass 100 visa on 29 August 2016.

12. The applicant responded in writing to the Department’s notice of intention to cancel her visa.

13. The applicant’s Subclass 100 visa was cancelled by the delegate on 14 September 2016.

14. 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.

15. 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.

16. Noting the representative’s submissions in relation to factual errors in the delegate’s decision, 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?

17. 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.

18. The non-compliance identified and particularised in the s.107 notice was non-compliance with section 104 of the Act in the following respects:

    ·The applicant declared her  marital  status as single in her visa application.

    ·In accordance with the definition of dependent child in regulation 1.03, the applicant ceased to be a dependent child of her mother on 6 July 2013 being the time of her engagement to Mr Rahmani.

    ·The applicant should have informed the Department of Immigration and Border Protection (the Department) of her engagement to Mr Rahmani prior to her entry to Australia on 30 July 2013.

19. The s.107 notice incorrectly states that Mr Rahmani applied for a Subclass 300 visa on 16 June 2012. The Tribunal is satisfied that Mr Rahmani applied for the Subclass 300 visa on 16 June 2014.

20. The representative has submitted that the applicant accepts she did not comply with section 104(1) of the Act in that she failed to inform the Department that her circumstances had changed after the grant of the Subclass 100 visa in consequence of her engagement to Mr Rahmani.

21. It is submitted that the applicant’s application for the Subclass 100 visa on 26 September 2012 was made on the basis that the applicant was the dependent child of her mother and that at time of the Department’s decision to grant the visa, 30 July 2013, the applicant remained the dependent child of her mother. It is further submitted that at the time of decision in this case, the applicant remains financially dependent on her parents.

22. Prior to the hearing the Tribunal received statutory declarations from the applicant, her parents and the transcript of an interview of Mr Rahmani by the representative, the contents of which were consistent with oral evidence received during the hearing.

23. The Tribunal received oral evidence in relation to the history of the applicant’s relationship with Mr Rahmani leading up to their engagement celebrations on 1 July 2013. The applicant told the Tribunal that she and Mr Rahmani have loved each other since childhood and that they are related through her father because Mr Rahmani’s mother is her father’s step-sister.  In mid 2013 Mr Rahmani’s family approached her mother about their marriage and because her father was in Australia, her mother asked for time to discuss the matter with her husband.

24. The Tribunal is satisfied on the evidence that by failing to inform the Department as soon as practicable that she was engaged to Mr Rahmani on 1 July 2013, the applicant failed to comply with s.104(1) of the Act. Specifically,  because s.104(1) requires a non-citizen to inform the Department that an answer to a question in the visa application is no longer correct, and the applicant’s circumstances as described in the Subclass 100 visa application changed upon her becoming engaged to Mr Rahmani.

25. For these reasons, the Tribunal finds that there was non-compliance with section 104(1) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. 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).

27. 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).

28. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

29. 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 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    Consideration of Regulation 2.41 matters

    The correct information:

30. It is submitted, and the Tribunal accepts, that correct information was provided in the applicant’s Subclass 100 visa application and that there were no changes in the applicant’s circumstances prior to the grant of the Subclass 100 visa to her on 15 April 2013.

31. The Tribunal is satisfied on the evidence that the applicant’s circumstances changed upon her engagement to Mr Rahmani on 1 July 2013 which was after the grant of the Subclass 100 visa but before she was immigration cleared.

    The content of the genuine document:

32. This matter is not relevant as there do not appear to be any non-genuine documents before the Tribunal.

    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:

33. The Tribunal is satisfied that the Department’s decision to immigration clear the applicant  was based partly on incorrect information because by that time, 30 July 2013, the applicant was engaged to Mr Rahmani but she had not notified the Department of that change in her circumstances.  In this context, the applicant contends she was unaware that she should have advised the Department of her engagement. In her statutory declaration of 8 September 2016 (Tribunal file, folio 36) the applicant declared she did not know Australian visa rules and that her engagement on 1 July 2013 was about securing her relationship with her cousin and getting to know him better while continuing to remain dependent on her parents.

34. The applicant’s father’s statutory declaration dated 8 September 2016 (Tribunal file, folio 35) relevantly declares that in their religion, culture and tradition, a girl remains dependent on her parents until she permanently moves to her husband’s home after marriage. Oral evidence consistent with that claim was received during the hearing.

35. The Tribunal is satisfied on the basis of the oral evidence that the celebrations in Afghanistan on 1 July 2013 were “Shirni-khuri” at which time the applicant and Mr Rahmani’s families officially declared their engagement to each other.

36. The book “Culture and customs of Afghanistan” by Hafizullah Emadi, published in 2005, at page 174, confirms that following Shirni-khuri, engaged persons have “an opportunity ………to get to know each other before getting married.”

37. Oral evidence was received during the hearing that the applicant has remained financially dependent on her father since her arrival in Australia. Her mother does not work in paid employment.  The applicant said she had a short period of work experience as required for a secondary school subject for which she did not receive a wage.  The applicant told the Tribunal she has received wedding clothing and jewellery from Mr Rahmani and his family but has not ever received financial support from them.

38. For the above reasons the Tribunal is satisfied that the decision to immigration clear the applicant was based partly on incorrect information with respect to the applicant’s relationship status, noting that the breach occurred after the grant of the Subclass 100 visa.

39. The Tribunal has referred to the judgment in Dou v Minister for Immigration & Anor [2016] FCCA 682 (22 March 2016) which relates to a secondary applicant who also failed to report a change in circumstances to the Department. In that case the applicant was granted the Subclass 100 visa on 15 January 2014 and married on 14 February 2014. Her husband subsequently applied for a visa on the basis of his relationship with the applicant which he stated had existed since 23 August 2013.

40. In Dou Judge Smith held at paragraph 2:

    “It was a criterion for the grant of the temporary subclass 309 visa that, at the time of the decision, the applicant continued to be a member of the family unit of the primary applicant, namely, the mother. However, it was not a criterion for the grant of the subclass 100 visa that at the time of the decision the applicant continued to be a member of her mother’s family unit or, in other words, that she be the dependent child of her mother.”

41. Relevantly, Judge Smith also found in Dou (refer paragraph 8 in judgment):

    “It is accepted that the delegate was not correct in assuming, as she appears to have done, that it was a criterion for the grant of the subclass 100 visa that the applicant be a dependent child of her mother at the time of the grant of that visa.”

42. On application of Dou, the Tribunal finds that the delegate in this case was not correct in his apparent assumption that it was a criterion for the grant of the applicant’s Subclass 100 visa that the applicant be a dependent of her mother.

    The circumstances in which the non-compliance occurred

43. For the reasons given above, the Tribunal is satisfied that non-compliance with s.104(1) occurred after the grant of the Subclass 100 visa and prior to the applicant’s immigration clearance in Australia.

44. The Tribunal considers that the applicant’s non-compliance which occurred after the grant of the Subclass 100 visa and before she entered Australia was minor, taking into account the nature of the breach, the time when the breach occurred in relation to the grant of the visa and her young age.  

    The present circumstances of the visa holder

45. The Tribunal accepts on the evidence that the applicant is a secondary school student and usually resides with her parents in South Australia. She is about to enter Year 12 and plans to study midwifery.

46. The applicant departed Australia in mid-2016 and married Mr Rahmani in Afghanistan on 1 July 2016.

    The subsequent behaviour of the visa holder, any breaches of the law by the visa holder, any contributions to the community made by the visa holder  

47. It is submitted that the applicant is a person of good character.

48. The applicant told the Tribunal that she has not ever breached laws of Afghanistan or of Australia. There is no information before the Tribunal that the applicant has breached any laws of Afghanistan or Australia apart from section 104 of the Act.

49. A report from psychologist Damien McInerney confirms the history of the relationship between the applicant and Mr Rahmani and gives the opinion that the cancellation has had “a severely negative impact” on the applicant’s emotional well-being.  

50. Letters of support were submitted to the Tribunal from Tony Zappia MP;  the applicant’s GP Dr K Kubra;  the Australian Hazara Federation Inc; Ms M Urbano, Principal of OLSCH College where the applicant has studied full-time since July 2015; Ms Mei French, the applicant’s Additonal language teacher;  from several of the applicant’s classmates and the family’s neighbours; and from Mr Mohammad Jafari, who teaches the applicant. Mr Jafari submits the applicant’s visa should not  be cancelled because she is the “backbone of her family” (being the eldest child of her parents), and the consequent hardship she and her family would experience if she has to return to Afghanistan.

51. The Tribunal takes into account the positive claims made with respect to the applicant’s character and her contributions to her school and neighbours.

52. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Deborah Morgan
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.