Naz (Migration)

[2023] AATA 3766

Naz (Migration) [2023] AATA 3766 (7 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mahwish Naz

REPRESENTATIVE:  Mr Kashif Sultan

CASE NUMBER:  2305860

HOME AFFAIRS REFERENCE(S):          BCC2022/5695736

MEMBER:Noelle Hossen

DATE:7 November 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 07 November 2023 at 3:59pm

CATCHWORDS

MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – member of the family unit – relationship ceased – legal divorce in process – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 2, cl 491.311; r 1.12

CASES

Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 April 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) 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 person who was in a married relationship with the applicant as they were no longer living together and were living separately and apart on a permanent basis. 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 the 2 November 2023 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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.

8. On 31 July 2022, the applicant was included as a dependent applicant for a Skilled Work Regional Provisional Visa, which listed Tahir Abbas DOB 21 July 1992 as the primary applicant and her as the spouse.

9. As part of the criteria for a Visa ground, and among other requirements, the applicant was required to meet the requirements of subclause 491.311 of the Migration Regulations 1994 (the Regulations) which stated in part:

   491.3 Secondary criteria

   Note: These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

   491.311

   The applicant is a member of the family unit of a person who holds a Subclass 491 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

10. The applicant’s visa was granted on the basis that she was a member of the family unit of Mr. Abbas (the primary visa holder). Regulation 1.12 of the Migration Regulations 1994 (the Regulations) defines member of the family unit as follows:

    Scope

    (1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    General Rule

    (2) A person is a member of the family unit of another person (the family Head) if the person:

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

    The term “spouse” is defined at section 5 F of the Act which states:

    Section 5 F Spouse

    (1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2) , the 2 persons are in a married relationship.

    (2) For the purposes of subsection (1), persons are in a married relationship if:

    (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

    (c) the relationship between them is genuine and continuing; and

    (d) they:

    (i) live together

    (ii) do not live separately and apart on a permanent basis.

11. In the Delegate’s Decision it is stated as follows:

    On the 20 December 2022, Mr. ABBAS advised the Department that the visa holder’s relationship with him had ended since at least 30 November 2022. In addition, on the 22 January 2023, Mr ABBAS provided the department with a copy of the Divorce Registration Certificate (CRMS No. V651258059) issued by the Government of Sindh (Pakistan) that stated the ‘Date of effectiveness of Divorce’ as 17 December 2022.

    On the 24 January 2023, the visa holder advised the Department via an online Regional contact details Form that her address had changed and that she was living in Wollongong since 28 December 2022.

    This information appears to indicate that the visa holder no longer meets the definition of “spouse” under Section 5 F (2) (c ) and 5 F (2) (d) (i) because:

    The relationship between the visa holder and the primary visa holder is no longer continuing; and

    The visa holder does not live with the primary visa holder.

    As it appears that the visa holder no longer meets the definition of “ spouse”, she is no longer a member of the family unit of the primary visa holder and therefore she does not meet regulation 1.12 of the Regulations . As a result, the visa holder no longer satisfies the requirements of regulation 491.311 of the Regulations.

    Date of Intention to consider cancellation (the Notice) : 3 March 2023

    Response received: yes, if yes date: 10 March 2023

12. The Delegate was of the view that the applicant agreed that the grounds for cancellation existed when she replied to the Department after receiving the Notice of Intention to cancel the Visa. His reasons for inferring that the grounds for cancellation existed are set out in the Decision as follows:

    “In the visa holder’s response to the Notice, she advises that she received a copy of the divorce certificate through WhatsApp on 18 December 2022. I have taken this to mean that she acknowledges that a ground for cancelling her Visa exists because she is no longer married to the primary visa holder.

    In the visa holder’s response to the Notice, she advises that she was in an oppressive arranged marriage and that she experienced verbal abuse. She also states that her family has very strict religious beliefs and forced her into this marriage by being verbally and physically, abusive towards her. The Visa holder infers that she was not happy within her marriage.”

13. On the 20 December 2022 Mr ABBAS advised the Department that the applicant’s relationship with him had ended since at least the 30 November 2022. In addition, on the 22 January 2023, Mr ABBAS provided the Department with a copy of the Divorce Registration Certificate issued by the Government of Sindh (Pakistan) that stated that the Date of Effectiveness of the Divorce was the 17 December 2022.

14. On the 24 January 2023, the applicant advised the Department via an online regional contact details form, that her address had changed and that she was living in Wollongong since the 28 December 2022.

15. As the evidence, as at the date that the Notice of Intention to Cancel was sent to the applicant, pointed to the fact that the applicant and her husband were no longer living together and the relationship between the parties had ended the Delegate found that the applicant was no longer a “member of the family unit “ of the primary visa holder and therefore did not meet  regulation 1.12 of the Regulations. As a result, the applicant no longer satisfied the requirements of regulation 491.311 of the Regulations.

16. The Tribunal finds that based on the information there is a ground for cancelling the applicant’s visa under s 116(1) (a) because it appears that a circumstance that permitted the grant of her visa (that is, the relationship with Mr. ABBAS) no longer exists.

    The hearing

17. The applicant did provide extensive submissions with attachments prior to the hearing, to the Tribunal. The Tribunal has read the material supplied and has taken the information into consideration in arriving at the findings in this Decision,

18. In her submissions the applicant stated as follows:”

    The applicant’s marriage was solemnised according to the Islamic laws on 4 February 2022 in Pakistan. After the marriage the applicant went back to Rome to continue with her studies and her husband Mr Tahir Abbas went to Australia on 4 March 2022. He received his 491-visa grant in May 2022.

    On 31 July 2022, Mr Tahir Abbas applied for the dependent Visa for the applicant and the dependent Visa was granted on 2 December 2022.

    The applicant came to Australia on 16 December 2022 to start her married life in Australia on permanent basis with her husband.

    As soon as the applicant arrived in Australia, Mr Tahir Abbas’s behaviour changed towards her. The applicant was made to suffer domestic violence and she was kicked out of the house.

    The applicant kept on receiving constant threats from her husband was constantly asked to leave Australia or to face severe consequences.

    Mr Tahir Abbas sent her a copy of divorce deed through WhatsApp on 18 December 2022 at 11:40 PM, which is not valid, therefore the applicant only considered it as a mere threat.

    On 20 December 2022, Mr Tahir Abbas informed the Department that his relationship with the applicant had ended. On 22 January 2023, he provided the Department with a copy of a divorce certificate Registration Certificate CRMS NO: V651258059) issued by Union Council-27.

    However, the applicant only found out about the divorce when she received a notice of intention to consider cancellation from the Department on 3 March 2023.

    The applicant asked her family to make enquiries from the Union Council and they found out that 2 separate divorce registration certificates from 2 different Union Councils were registered. The divorce registration certificate bearing CRMS NO:  V464459289 at Union Council -08 (Copy of the Divorce Registration Certificate attached herewith as Annexure D)

    The applicant in her response to notice of intention to consider cancellation informed the Department about the domestic abuse but the delegate of the Minister did not give any consideration to that fact and cancelled her Visa based on the divorce registration certificate bearing CRMS No V651258059 and also for not being part of the family unit.”

19. The applicant’s representative submitted that even if the religious divorce had been executed correctly by Mr Abbas this is not recognised as a legal divorce in Australia. Therefore, even after the applicant received the divorce deed there was still legally married until an application through the Federal circuit and Family Court of Australia is made for legal divorce.

20. The submissions ignore the fact that the ground for cancellation of the Visa exists because the Visa holder is no longer in a relationship with and is no longer a member of the family unit of the primary Visa holder in accordance with the definitions in the legislation. The evidence is that the parties did not live together after the 17 December 2022, and they no longer have a mutual commitment to a shared life as a married couple. The department did have evidence before it that the relationship had broken down irretrievably. It is not necessary therefore to prove that they have been legally divorced.

21. In the summary of the submissions the applicant stated as follows:

    27. In light of the above submissions the grounds cancellation did not arise for the facts below:

    27.1 Mr Tahir Abbas relied on fraudulent documents to get divorce registration certificate from Pakistan.

    27.2. The applicant was legally married and was part of the family unit. She never received any divorce deed; all she was asked to attend reconciliation as required under Islamic law.

    27.3. The delegate of the Minister relied upon incorrect information provided by Mr Abbas.

    27.4. Even if there was a breakdown in relationship, Mr Tahir Abbas had to establish separation of 12 months before he could file for divorce in family Court of Australia. Since, Mr Tahir Baas inform the Department that his relationship broke down on 30 November 2022 even if assume it to be true, he could possibly apply for divorce after 30 November 2023

22. The Tribunal is of the view that the grounds for the Cancellation of the Visa arises because the parties have legally separated and there is no need to prove that they are legally divorced.

23. At the hearing the Tribunal asked the applicant to explain what occurred when she arrived in Australia on the 17 December 2022. She said that her husband did not collect her from the airport and that she arrived at his home in Darwin in a cab at 3 to 4 am in the morning. They had an argument. She had asked to use his phone as hers was not charged, and he refused as she had wanted to call his family and he had not wanted to involve his family.

24. Apparently, she had refused to leave and that is why he called the police. From the evidence that was provided at the hearing by the applicant, it did not appear that the police deemed that she had been subjected to family violence as they asked her to leave and there was no record of evidence of violence from the police provided to the Tribunal.

25. The evidence confirmed that the parties ceased to live together and were not in a committed relationship from that date.

26. The applicant confirmed that after she left his home, she has not seen her husband again from that date. She subsequently moved 3 days later from Darwin to Wollongong. The evidence suggests that the relationship had irretrievably broken down and was not continuing and the parties were no longer living together.

27. For these reasons, 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

28. 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.

    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

29. The applicant arrived in Australia on 17 December 2022 as the holder of a dependent Skilled Work Regional Provisional (Subclass 491) Visa and has remained on shore since that date. She advised the Department that she had obtained employment as a dental assistant in Wollongong. She said that as she is a qualified dentist by profession, she intended to sit for the Australian dental exam in the future so that she can practice dentistry whilst residing in Australia.

30. The applicant acknowledges she wishes to remain in Australia so that she can practice dentistry. However, there is no evidence that she can practice dentistry at the moment. She gave evidence that she had qualified as a dentist in Pakistan and had worked in Pakistan as a dentist. She was studying in Italy but has not completed those studies as she has one semester to complete.

31. There is no information before the Tribunal that indicates that the applicant has lodged an application for a new Visa that is in line with a new purpose for remaining in Australia. The applicant is presently residing in Wollongong. The Tribunal applies significant weight in favour of cancelling the Visa based on the facts of this consideration.

    the extent of compliance with visa conditions

32. There is no information before the Tribunal that indicates that the applicant did not comply with the conditions attached to her Visa. The Tribunal places a little weight against cancelling the Visa on those facts.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

33. In the applicant’s response to the Notice she advised that she needed to remain in Australia because her family would not accept her after being divorced in Pakistan. She advises that her family has strong religious beliefs and have made a number of threats against her due to her divorced status.

34. The applicant stated that her personal situation has resulted in several physical and mental health impacts including thoughts of suicide. The applicant was asked whether she had sought any assistance in respect of her mental health. She said that she had consulted a psychiatrist friend in Pakistan. The applicant has the support of her family and a mental health professional in Pakistan. She also indicated that if she returned Pakistan she would live with her parents.

35. The Tribunal accepts that she is currently employed as a dental assistant and planned to complete further training so she can practice dentistry in Australia. There is no doubt that a cancellation of her Visa would result in some financial hardship. For that reason, the Tribunal has applied a little weight against those factors for cancelling the Visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

36. The ground for cancellation arose as a result of the applicant separating from the primary Visa holder and therefore no longer being a member of his family unit.

37. The applicant provided information to the Department that she was in an arranged marriage that was oppressive and that her former husband was verbally abusive towards her. The relationship broke down due to these issues and the circumstances were outside of her control.

38. The Tribunal acknowledges that the applicant’s visit to Australia was unpleasant when she realised that her husband was not interested in continuing the relationship. There is no evidence before the Tribunal of domestic abuse from the primary visa holder to the applicant save for her submissions.

39. The evidence that she gave at the hearing was that they spent some time together during the wedding ceremonies and soon thereafter in Pakistan. However, they had been living in separate countries until the day that she arrived in Australia. On that date the arguments were because of the fact that the husband was not interested in continuing the relationship. The police were called but there is no evidence before the Tribunal that there was any violence between the parties. The evidence is that the parties had not seen each other since that date. The applicant did provide some text messages that she is alleged to have received from members of his family in Pakistan which said, “Get ready for deport.”

40. By virtue of her relationship with the primary Visa holder ceasing this essentially means that she no longer meets the definition of being a member of the family unit of the primary Visa holder. As the Visa holder no longer meets this definition, she no longer satisfies criterion 491.311.

41. It is not appropriate for the applicant to remain in Australia as the holder of a dependent Visa. The Tribunal therefore applies some weight in favour of cancelling the Visa on this consideration.

    past and present behaviour of the visa holder towards the department

1. There is no information before the Tribunal that indicates that the applicant has been uncooperative with the department or with departmental staff. The Tribunal applies a little weight against the decision to cancel the Visa.

   whether there would be consequential cancellations under s 140

2. According to Departmental records there are no persons in Australia who, or may, be cancelled under section 140 of the act.

3. The Tribunal does not apply weight for or against the decision to cancel the Visa on this consideration as it is not relevant to this case.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

4. if the Visa was cancelled the applicant would become an unlawful noncitizen and could be liable for detention under section 189 and removal under section 198 of the act if she does not voluntarily depart.

5. In addition, the applicant may be affected by section 48 of the Act which means that she will have limited options to apply for further visas in Australia.

6. In the event of a cancellation outcome the applicant will not be affected by an exclusion period and the applicant can apply for a further visa that is appropriate for her current or future need to remain in Australia.

7. The Tribunal places a little weight against the decision to cancel the Visa on this consideration.

8. whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

9. The policy guidelines require that all delegates should assess whether Australia would be in breach of its international obligations if the Visa was to be cancelled. Among others the obligations in relation to non-refoulement and pursuant to the 1951 Convention relating to the status of refugees (the Refugee Convention) and its 1967 protocol, the International covenant on civil and political rights, the Convention on the rights of the child, and the Convention against torture and other cruel, inhumane, or degrading treatment or punishment.

10. The Applicant is a citizen of Pakistan. While she has not applied for protection, she raised claims that she fears returning to home country due to her status of being a divorced woman. The Tribunal accepts that she may face several hardships due to her divorce status however she has not been formally assessed to be owed protection. The Applicant has the avenue available to have these claims assessed should she choose to do so. There is no information before the Tribunal to indicate that the applicant’s political and civil rights would be affected if the Visa was to be cancelled. There is no information before the Tribunal to indicate that the applicant has any children in Australia and there is no information before the Tribunal to indicate that any other of Australia’s international obligations may be impacted should the Visa be cancelled.

11. The Tribunal places a little weight against cancelling the Visa on this consideration.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

12. This matter is not being considered as it is not applicable and there are no other matters before to consider.

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

    Noelle Hossen
    Member