Mubashir (Migration)

[2018] AATA 1932

Mubashir (Migration) [2018] AATA 1932 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nida Mubashir

CASE NUMBER:  1718392

DIBP REFERENCE(S):  BCC2016/3297291

MEMBER:Michael Cooke

DATE:22 May 2018

PLACE OF DECISION:  Sydney

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 22 May 2018 at 11:45am

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) visa – Non-compliance – No notification of change of circumstances – Applicant engaged – No longer a ‘member of the family unit’ of her father – Current circumstances – Married prior to the review –Immediate family in Australia –Australian born child – Valuable member of the community – Remitted for reconsideration for Partner visas

LEGISLATION
Migration Regulations 1994, ss 48, 104, 107, 109, 140
Migration Regulations 1994 rr 1.05A, 1.12, 2.08E, 2.41 Schedule 2 cls 309.311, 309.321

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 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 had failed to notify a change in circumstances as required. 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. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ahmed Mubashir, who is the applicant's father. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

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. 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.

7. 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.

8. The Tribunal has considered the validity of the NOICC. 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?

9. 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 in the following respects: The applicant failed to notify the Department that she had got engaged while still claiming to be ‘a member of the family unit’ of her father (the principal applicant for the visa).

10. On 11 September 2012 the applicant was included as a dependant applicant of MUBASHIR Ahmed (DOB 01/05/1964) on a Partner (Provisional) (OFFSHORE) (UF 309) visa application. The application was based on the applicant being dependent on the primary applicant MUBASHIR Ahmed or his spouse; the sponsor SHAKILA, - (DOB 01/01/1965).

11. In order to meet the requirements for the grant of a dependent Partner (Provisional) (Offshore) Class (UP) (Subclass 309) visa and Partner (Migrant) Class (BC) (Subclass 100) visa, the applicant must satisfy, among other requirements, clause 309.311 of Schedule 2 of the Migration Regulations 1994 (the Regulations), specifically: the applicant is ‘a member of the family unit’ of and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.321.

12. At the time of decision cl.309.321 requires that:

    The applicant:

    (a) continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 (Partner (Provisional)) visa (the person who satisfies the primary criteria); s5(1) of the Act states that a member of the family of a person has the meaning given by the regulations made for the purposes of this definition.

    In the Migration Regulations:

    Regulation 1.12 Member of the family unit

    A person is ‘a member of the family unit’ of another person (the family head) if the person:

    (a) is a spouse or de facto partner of the family head; or

    (b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

    has not turned 18; or

    has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

    has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c) is a dependent child of a person who meets the conditions in paragraph

13. As part of the Combined Partner (UF 309/BC 100) visa application Form 47A — Details of child or other dependent family member aged 18 years or over, the following information was provided:

14. At question 4 of Part B of the 47A Form where it asks for the "Dependent's full name" the following information was provided:

    Dependant's full name: MUBASHIR, Nida

15. At question 16 of Part B of the 47A Form where it asks for the "Dependant's current relationship status" the box denoting "Never married or been in a de facto relationship" was ticked. The form was signed by the applicant and dated 5 September 2012.

16. On 22 July 2014 the applicant was granted a Partner (Migrant) Class (BC) (Subclass 100) as a dependent visa holder as she was still deemed to be an adult dependent child of the main applicant. The visa holder then arrived in Australia on 16 August 2014.

17. On 23 December 2014 Shera MEHMOOD lodged a Prospective Marriage (Temporary) (Class TO) Prospective Marriage (Subclass 300) visa application. The applicant was listed as the sponsor.

18. In the Record of Responses for the Sponsorship for a partner to migrate to Australia the following information was provided;

    Under "Relationship status", the following information was provided:

    Relationship status: Engaged

    Date of intended marriage: 12 July 2015

19. In support of the Prospective Marriage (Temporary) (Class TO) Prospective Marriage (Subclass 300) visa the applicant  submitted a statutory declaration dated 21 December 2014 in which she stated that she and Sheraz Mehmood had grown up together and that this relationship changed into love. Furthermore, they committed to share a life together, with the consent of both families, on 12 June 2014. In addition Sheraz MEHMOOD submitted a statutory declaration dated 02 February 2015 in which he declared that he decided to share a life with the visa holder on 12 June 2014. In support of the application two third party declarants submitted Form 888 — Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application on 21 December 2014, in support of the relationship between the visa holder and Sheraz MEHMOOD:

20. Iftekhar Ahmed KHALID stated that he knew the visa holder by birth as she was his niece. He further stated that he knew Sheraz MEHMOOD from birth as he was also a relative and when Mr. Khalid was in Pakistan they would often meet at family gatherings, the last of which was December 2012. Mr. Khalid often speaks to Sheraz MEHMOOD on "Skype" when he visits his niece. When asked to state whether she believed the relationship to be genuine and ongoing Iftekhar Ahmed KHALID stated the following:

    I believe the relationship of the applicant and the sponsor to be genuine and continuing for the following reasons:

    I certainly believe they are engaged with the consent of both families. I believe that they are serious about their relationship

21. Nisar AHMED stated that he knew the visa holder by birth as she was his niece. They spent a lot of time together in Pakistan and now she is here I meet her almost every day. He further stated that he knew Sheraz MEHMOOD from birth as he was also a relative and when Mr. Ahmed was in Pakistan they would often meet at family gatherings.

22. He stated:

    I believe the relationship of the applicant and the sponsor to be genuine and continuing for the following reasons:

    I certainly believe they are engaged with the consent of both families. They like each other and I believe that they are serious about their relationship. They have booked a civil marriage ceremony.

23. On 24 August 2016 the applicant’s Prospective Marriage (Subclass 300) visa application, lodged on 23 December 2014, was refused as the delegate was not satisfied that the main applicant and the visa holder met the relevant legal requirements specified in the Act and the Regulations; the delegate was not satisfied that they genuinely intended to get married nor live together as spouses. On 05 October 2016 the applicant lodged a valid application for a review of the Department's decision.

24. In support of the review application the applicant submitted an updated statement dated 26 December 2016 in which she stated that she and Sheraz MEHMOOD were officially engaged on 12 June 2014. She also submitted photographs of the event to the Department as documentary evidence. In addition Sheraz MEHMOOD submitted an updated statement dated 03 December 2016 in which he confirmed that he and the visa holder became officially engaged on 12 June 2014. The visa holder and Sheraz MEHMOOD were married on 14 October 2016.

25. As the visa holder had validly married Sheraz MEHMOOD prior to the review being finally determined, on 21 February 2017 the Tribunal remitted the visa application to the Minister for reconsideration pursuant to reg.2.08E with the direction that the application also be taken for:

    ·a Partner (Migrant) (Class BC) visa; and

    ·a Partner (Provisional) (Class UF) visa

26. The fact that the parties and their supporters had confirmed that the parties were actually engaged whilst the applicant had been a secondary applicant ‘member of the family unit’ on her father’s visa aroused the interest of the Department. The delegate noted that the definition of ‘member of the family unit’ in r. 1.12 relevantly provides that a child must be a ‘dependent child’ other than a child who is engaged to be married or has a spouse or de facto partner. Thus the engagement information provided by the parties indicated that the applicant had changed her personal circumstances without informing the Department creating a breach of the Migration Act in particular s.104.

27. The applicant provided a written response to the NOICC and additional evidence to the Tribunal. In her submission to the delegate of 26 September 2017 the applicant conceded that she did not inform the Department about the change in his circumstances, namely her engagement with Mr MEHMOOD. The applicant claims he was not aware that she was required to advise the Department and is remorseful for not doing so. The applicant claims that under her cultural and religious norms, a person continues to be a member of the family unit until marriage and the family needs to consent to any contact with her prospective partner. The applicant claims that it was not until the Nikkah occurs that the marriage is formalised and in this case this was done in October 2016 and the wedding ceremony took place in October 2016. The applicant claims that he believed she remained a member of the family unit until the Nikkah.

28. The Tribunal notes that the applicant has also claimed that she was not officially ‘engaged’ in the usual Australian meaning of that term and rejects that she was non-compliant. Any relevant non-compliance was inadvertent and based on her ignorance of migration law and inadequate understanding of English. The relative non-compliance is that she had breached the Act by getting engaged and contrary to the stipulation in reg.1.12 that as a ‘dependent child’ and ‘a member of the family unit’ she not be ‘a child who is engaged to be married’. The applicant, in the Tribunal’s opinion, had adequate time to inform the Department of her change in circumstances prior to the grant of her Subclass 100 visa as she committed to her fiancé on 12 June 2014. The grant of her visa took place on 22 July 2014.

    Conclusion on non-compliance

29. 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?

30. 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).

31. 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

32. The correct information is that the applicant failed to notify the Department of her change in circumstances pursuant to reg.2.41. In fact she was engaged to her fiancé on 12 June 2014. This information was confirmed in the visa application her fiancé lodged on 23 December 2014 along with additional elaborative statements submitted subsequently.

    ·     the content of the genuine document (if any)

33. Not relevant.

    ·     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;

34. The applicant failed to notify her change in circumstances in that she was engaged and no longer a ‘dependent child’ of her father (the principal applicant). This allowed her to proceed to the grant of her Subclass 100 visa unhindered. Thus the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information.

    ·     the circumstances in which the non-compliance occurred

35. The applicant claims she was too poor to afford an agent to process her application and then misunderstood the requirements because of poor English language skills. She claimed that she had not (in her mind) changed her circumstances. She was still living with her father and dependent on him. She claims her engagement was more of an ‘understanding between my parents and her fiancé’s parents that they will marry in the future. She has opined that ‘the engagement does not have any legal status in Islamic law’.

    ·     the present circumstances of the visa holder

36. The now married applicant resides in Australia and has done so for 4 years. Her husband remains in Pakistan. She is, therefore, still somewhat dependent on her father for shelter whilst her husband assists her financially as well. She is now the mother of an Australian-born child. Her only other sibling is migrating soon to Britain leaving no siblings in Pakistan.. An affirmation of the cancellation by the Tribunal would lead to a need for the applicant to return to Pakistan and separate from her parents. There is also the added factor that she is an Ahmadiyya Muslim which is compounding the situation because Ahmadiyya Muslims are known to suffer prejudice and persecution in Pakistan.

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

37. The applicant has engaged with the Department and Tribunal in a wholly appropriate way and the Tribunal gives this favourable weight.

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

38. The Tribunal is not aware of any other instances of non-compliance.

    ·     the time that has elapsed since the non-compliance

39. Four years have elapsed since the initial non-compliance and the applicant has given birth to a baby.

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

40. There Tribunal is not aware of any breaches of the law by the applicant.

    ·     any contribution made by the holder to the community.

41. The applicant has provided testimonials as to her charitable involvement in the local Ahmadiyya community. She teaches Sunday school and had been involved in other activities such as Red Cross doorknocks and Clean Up Australia. She also contributed financially UNHCR and Cerebral Palsy Australia. The Tribunal gives these contributions favourable weight.

42. 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 indicate 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 applicant 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

43. The likely consequences of a decision to cancel the visa holder's visa are listed below:

    ·It would enliven section 48 of the Act, limiting the types of visas that the applicant could apply for.

    ·It would result in the applicant becoming an unlawful non-citizen and liable to be detained and removed from Australia.

44. While the applicant would be liable to immigration detention if her visa were cancelled, she may apply for a visa (such as a Bridging E Visa) to remain lawful in Australia, or by leaving Australia to mitigate the consequences of immigration detention.

45. The cancellation of the applicant’s visa would attract PIC 4013. This would mean she may be ineligible to be granted another visa for a three year period.

46. The Tribunal considers these to be standard mandatory legal consequences that may arise as the result of a visa cancellation outcome.

    ·whether there would be consequential cancellations under s.140

47. None.

    ·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. 

48. The applicant has claimed to be part of a persecuted minority in Pakistan being Ahmadiyya Muslims. However, the Tribunal does not accept that Australia would breach its non-refoulement obligations as the applicant could apply for a Protection visa. The applicant’s family (apart from one sibling) now reside in Australia as settled permanent residents. Her child born in 2017 has not seen his father (as yet) due to visa restrictions created by the cancellation of her permanent residency. Her child would be also prevented from having Australian citizenship as his birthright due to the proposed cancellation disenabling that outcome for her son. Finally the separation of the parents is not in the best interests of the child.

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

1. The Tribunal finds that the applicant would suffer enormous hardship in the future if her visa cancellation were to be affirmed. She would have to await the outcome of a Protection visa application (should she make one) which would separate her for even longer from her husband. She is suffering significant hardship at the present in the absence of her husband who has not yet seen his recently born (2017) child.

2. 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

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

   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.