Mohammadi (Migration)

[2024] AATA 1934

Mohammadi (Migration) [2024] AATA 1934 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammadmehdi Mohammadi

REPRESENTATIVE:  Mr GURVINDERJEET SINGH PARMAR (MARN: 1808842)

CASE NUMBER:  2405846

HOME AFFAIRS REFERENCE(S):          BCC2022/289610

MEMBER:Mary Sheargold

DATE:14 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 14 June 2024 at 11:50am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – parties divorced in Australia – applicant completed Nursing studies – demand for dowry in Iran – skilled employment – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 116, 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(a) on the basis that the applicant was no longer a member of the family unit of the primary visa holder, Dr Elham Mohammadi Foomani. 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. Mr Mohammadi appeared before the Tribunal via MS Teams video link from Adelaide on 14 June 2024 to give evidence and present arguments. He was represented in relation to the review, but his representative did not attend the hearing.

4. 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

5. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(a). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s 116(1)(a) - Fact or Circumstance for visa grant no longer exists

6. A visa may be cancelled under s 116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

7. Mr Mohammadi is the secondary holder of a Subclass 485 student visa and Dr Elham Mohammadi Foomani is the primary visa holder.  On 23 April 2022, the couple were formally divorced under Australian law.  Mr Mohammadi has provided the Department with a copy of the divorce order and its authenticity and validity are not contested.

8. At the hearing, Mr Mohammadi stated he agreed that the fact he is now divorced under Australian law means he is no longer a member of Dr Foomani’s family unit, and he accepts that this means that a particular fact or circumstance that formed the basis for him being granted the visa in the first place no longer exists.

9. Therefore, the Tribunal is satisfied that the ground for cancellation in s 116(1)(a) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

10. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

11. At the hearing, Mr Mohammadi explained to the Tribunal his reasons for believing that his visa should not be cancelled.  He told the Tribunal that he had come to Australia in 2016 to support his wife undertaking a PhD at Monash University, but that after some time living here, his wife changed markedly and began to behave against the tenets of their marriage and their religion.

12. Mr Mohammadi told the Tribunal that he is the only child of his parents, and that his father had passed away when he was a child.  It had been a childhood dream to become a doctor.  Prior to moving to Australia with his now ex-wife, Mr Mohammadi had established a successful career in the public service in Iran and attained a Master of Business Administration degree.

13. When the couple arrived in Australia, Mr Mohammadi discovered his Iranian qualifications and experience were not recognised and so he took an entry level role at Coles Supermarkets.  He progressed in the ranks and became a Duty Manager, and took on extra shifts to support his wife while she studied.

14. Mr Mohammadi stated that his wife’s behaviour began to change around 2019, when she found a different group of friends.  She began drinking alcohol, which neither of the couple had done before, and Mr Mohammadi discovered that she had downloaded dating apps such as Tinder on her mobile phone.  He said he had never heard of such things before he had come to Australia.  He says that he pleaded with his wife to repair their marriage and offered to go to counselling with her, but that she refused.  He explained that she started taking extended absences from their marital home, and would come back once a week or so, pushing out to once per month during the Covid-19 pandemic.  Her registered address was always with him.

15. Mr Mohammadi said that no matter what he did, his wife showed no interest in reconciling their relationship, and that she had considered them to be separated.  He said he would write her letters and leave flowers in the house for her, hoping she would return and wish to reconcile, but she never did.  Mr Mohammadi said she thought it would be best if they divorced so that he could return to Iran and start his life over while she remained in Melbourne, so he agreed to sign the paperwork for the divorce order in the Federal Circuit and Family Court of Australia, believing that once this was finalised, they would complete the paperwork for their divorce in Iran.

16. However, Dr Foomani refused to engage in any discussions regarding the need to travel together to the Iranian embassy and the Islamic centre in order to formalise a divorce in Iran.  Mr Mohammadi believes this was so she did not lose entitlement to her dowry that he owes her.  That dowry is specified in the translated marriage certificate that Mr Mohammadi provided to the Department and includes payment of 314 gold coins, which Mr Mohammadi does not have.  He claims that the couple spent all their savings supporting Dr Foomani’s study and extended stay in Australia.  He said that he never wished to stay beyond the initial student visa term and that they had planned to return to Iran and establish a family once Dr Foomani’s PhD was completed.

17. Mr Mohammadi told the Tribunal that he was devastated by the separation and divorce.  During their separation, he consulted a migration agent who advised him that he could enrol to study nursing on the terms of Dr Foomani’s Subclass 485 visa. Mr Mohammadi said that he felt he was too old to start over his career to become a doctor, and that nursing would be the next best thing.  He also expressed that he wished to enter a caring profession to help people who were hurting just as he was hurting due to his separation from Dr Foomani.  He was located in Adelaide, where he had commenced his Diploma of Nursing with TafeSA in early 2022.

18. Mr Mohammadi stated that Dr Foomani told him she would be reporting their divorce to the Department, and he said he felt very scared and afraid at that time.  He admits that he took no proactive steps to try to regularise his status independent of his ex-wife prior to the Department issuing a Notice of Intention to Consider Cancellation in August 2023.  At that point, he was nearly finished his nursing course and he attained a contract as an Enrolled Nurse at Calvary Health, based at Calvary North Adelaide Hospital.  He hopes to continue his studies to become a Registered Nurse and dreams of completing a Master level degree and ideally a doctorate in nursing in the future.

19. Mr Mohammadi told the Tribunal that despite all the wrongs his wife has committed, he still feels love for her and does not hate her for what she has done to him.  He said his mother is heartbroken to learn of their divorce and has been prescribed antidepressants to help with her low mood.  She is cared for by Mr Mohammadi’s aunts, her younger sisters. 

20. Since his visa was cancelled, Mr Mohammadi has attained sufficient Australian employment experience as a nurse to be able to submit an Expression of Interest to the South Australian government for sponsorship for a Subclass 491 visa and he is awaiting the outcome of that application.  He told the Tribunal that he required 6 months of full-time employment experience prior to being able to submit his EOI.

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

21. Mr Mohammadi accepts that the purpose of his travel to and stay in Australia under this visa and his ex-wife’s previous student visa was to support her study and Australian work experience, and that at this point, that purpose is no longer served.  He left stable employment and a happy life in Iran to help Dr Foomani pursue her dreams.

22. Mr Mohammadi spoke at length of the difficulties he would face returning to Iran where his nursing qualifications will not be recognised, where he will be unable to pay his wife’s dowry, which she may demand at any time while she withholds the Iranian divorce from him, and where he will bring shame to his mother and her family by returning without a wife or children.

23. Having developed a passion for nursing, Mr Mohammadi wants to dedicate his career to this service.  He does not believe he will ever wish to remarry or be able to have children, a dream he had always held.  He cited the grounding and stability his work at Calvary North Adelaide Hospital has provided and cited the extreme shortage of nurses in Australia as reasons his visa should not be cancelled.

24. While there are good reasons for Mr Mohammadi to wish to remain in Australia, he accepts that the purpose of his travel to and stay here is no longer served.  Therefore, I give this consideration a little weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

25. Mr Mohammadi told the Tribunal that he has always complied with his visa conditions, and he stated that he is a law abiding citizen with no criminal history.  There is no evidence to suggest that Mr Mohammadi has ever failed to abide by a visa condition.  Therefore, I give this consideration a little weight against cancelling the visa.

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

26. I accept Mr Mohammadi’s account of the deep emotional and psychological hardship he has suffered, and will continue to suffer, that has been brought on by his wife’s changed behaviour and personality culminating in her decision to divorce him.  I accept that this has changed his life in marked and permanent ways.

27. I also accept that Mr Mohammadi would suffer financial hardship if he was forced to return to Iran where he is in a circumstance that means he is unable to pay his dowry owed, where he is unable to obtain employment in his current profession, and where the length of time away from his previous profession is such that he would struggle to be employed in that area again.  I therefore give this consideration some weight against cancelling the visa.

    The circumstances under which the ground for cancellation arose

28. From the evidence available at review, it is plain that Mr Mohammadi did everything in his power to try and save his marriage.  He stated that Dr Foomani blocked his phone number after he appealed to her to proceed with their Iranian divorce, and he has no contact with her whatsoever.  She has offered no support, evidence, or context to Mr Mohammadi through this process.

29. I am prepared to accept that the circumstances giving rise to Mr Mohammadi no longer being a member of Dr Foomani’s family unit were beyond his control.  He told the Tribunal that he still loves Dr Foomani and that he would never have agreed to the Australian divorce if she would not follow through with the Iranian divorce.  I therefore give this consideration a little weight against cancelling the visa.

    Mr Mohammadi’s past and present behaviour towards the Department

30. I am satisfied that Mr Mohammadi has been honest and forthright in his dealings with the Department.  He has provided all documents requested in a timely manner, and has been frank about the circumstances he has found himself in.  While it is possible that he could have initiated steps to attain his own student visa when he relocated to Adelaide to study nursing before his divorce was finalised, I accept that Mr Mohammadi had continued to hold a belief that he could save his marriage and restore his life with Dr Foomani.  As he has emphasised, under Iranian law, they are still married.  I give this consideration a little weight against cancelling the visa.

    Consequential cancellations

31. Mr Mohammadi is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  I am not able to give this consideration any weight for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

32. If Mr Mohammadi’s visa is cancelled, it will enliven section 48 of the Act and render him unable to apply for a Subclass 491 visa onshore when he receives an invitation to do so.  The cancellation of his visa may also lead to him becoming an unlawful non-citizen and leave him liable to detention under the Act.  I give this consideration a little weight against cancelling the visa.

    Australia’s international obligations

33. Mr Mohammadi has not applied for protection nor has he ever considered doing so.  He has raised some concerns regarding his inability to pay a dowry to Dr Foomani should she expect him to do so, and has noted that he may be imprisoned in Iran if he cannot pay his dowry.  I have considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and am satisfied that removing Mr Mohammadi from Australia will not leave Australia in breach of any of its obligations under those instruments.

34. At the hearing, Mr Mohammadi confirmed that he has no children.  There is no information before the Tribunal to suggest that cancelling Mr Mohammadi’s visa would result in Australia breaching its obligations under the Convention on the Rights of the Child.

35. I note that although none of Australia’s international obligations would be enlivened by an attempt to return Mr Mohammadi to Iran, I do not consider it necessary to give this consideration weight in favour of cancelling his visa.

    Any other relevant matters

36. Mr Mohammadi cited the Australian government’s August 2014 paper, Australia’s Future Health Workforce – Nurses that sets out a need for an additional 85,000 nurses in Australia by the end of 2025.  There is no doubt that there is a severe shortage of nursing staff in Australia, especially since the onset of the Covid-19 pandemic.  Mr Mohammadi told the Tribunal that recent rises in Covid-19 and influenza infections in South Australia has left most hospitals in an ongoing ‘code yellow’, meaning there are insufficient beds and nurses available to meet patient needs.

37. The nursing shortage in Australia is well documented and well publicised.  I am satisfied that Mr Mohammadi has completed his full probationary term with Calvary Health and has permanent, ongoing employment as an Enrolled Nurse at Calvary North Adelaide Hospital as long as his visa status permits him to remain in the workforce. I give this consideration some weight against cancelling the visa.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Mary Sheargold
    Member