Qureshi (Migration)

[2017] AATA 1647

Qureshi (Migration) [2017] AATA 1647 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adeel Qureshi

CASE NUMBER:  1714533

DIBP REFERENCE(S):  BCC2016/4092918

MEMBER:Kira Raif

DATE:4 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

Statement made on 04 September 2017 at 3:28pm

CATCHWORDS

Migration – Cancellation – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Changes in circumstances to be notified – Spousal relationship and engagement – Engagement not disclosed in application – Non-compliance as described in the Notice of Intention to Consider Cancellation

LEGISLATION

Migration Act 1958, ss 104, 107, 109

Migration Regulation 1994, Schedule 2, cl 101.213

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 101 (Child) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan, born in December 1992. He was previously granted a Class AH Child visa in Subclass 101 in September 2013 and was in Australia as a holder of that visa. The applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) on 23 January 2017 because the delegate formed the view that the applicant failed to comply with s. 104 of the Migration Act. The applicant provided his response and his visa was cancelled on 30 June 2017. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

   Relevant law

4. 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.

5. 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.

   Did the notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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?

8. 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 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It provides the following information.

   a.The applicant made the application for the Class AH Child visa on 23 May 2011, sponsored by his father. In response to Question 14 of the application form the applicant stated that he was “never married or been in a de facto relationship”. The applicant was assessed as meeting the requirements for the grant of the visa and he was granted the Child visa. The applicant entered Australia in September 2013.

   b.On 24 May 2016 Ms Aneesa Adeel made the application for a Partner visa, sponsored by the applicant. In response to the question on the application form about the relationship, Ms Adeel stated “married on 3 November 2013”. Ms Adeel stated that she and the sponsor committed to a shared life together to the exclusion of all others on 15 August 2013.

   c.In a telephone interview with a Department officer, conducted on 22 September 2016, Ms Adeel stated that the applicant spoke to her parents to ask for her hand in marriage at the beginning of 2013. Ms Adeel stated that when she and the sponsor found out she was pregnant in August 2013, her parents forced the applicant to marry her and the applicant said he was ready to take the responsibility.

10. The NOICC refers to the applicant’s response on the application form about the relationship and notes that it was relevant to the assessment of cl.101.213, which refers to a spousal relationship and engagement. The NOICC suggests that the applicant failed to comply with s. 104 of the Act by failing to inform of the changes in his circumstances.

11. In his written response to the NOICC dated 14 February 2017 the applicant states that he and Ms Adeel were friends since 2012 and could be considered boyfriend and girlfriend in line with the Western tradition, they dated and the applicant bought Ms Adel a significant gift. The applicant notes that they were not married or in a de facto relationship but were sexually active and Ms Adeel fell pregnant in August 2013. The applicant claims that he was concerned for Ms Adeel as women who fall pregnant without husbands are often killed by the family. He spoke to Ms Adeel and her family regarding her and the child’s future but it was a conversation and not a commitment to Ms Adeel’s and the child’s future. The applicant recognised that he should assume responsibility for Ms Adel and the child once his life was established in Australia but there was no predication of date. The applicant notes that arranged marriages are common but this did not occur in this case. He claims he was not engaged when he departed Pakistan, although he spoke to Ms Adeel’s parents with respect to his ongoing responsibility for his unborn child. The applicant claims that they misunderstood the question on the application form and the reference to August 2013 was the date when he acknowledged his commitment to Ms Adeel and the child and not the date of the engagement.

12. The Tribunal considers the applicant’s explanations unpersuasive. They contradict the information which, according to the primary decision record, Ms Adeel presented in her own Partner visa application. In that application, Ms Adeel stated that she and the applicant formed a committed relationship in August 2013 and that in August 2013 when they found out about the pregnancy, her parents insisted on marriage and the applicant agreed. The Tribunal does not accept the applicant’s evidence in response to the NOICC that there was no relationship between him and Ms Adeel because they had not formally married or did not have a formal engagement ceremony. Ms Adeel’s evidence is that they did have a conversation about getting married in August 2013, both she and the sponsor agreed to get married and spoke to her parents about it. Whether the decision to get married was made by the parties of their own accord or at the behest of Ms Adeel’s parents is irrelevant. The parties claim theirs is a genuine and mutually committed relationship, hence Ms Adeel’s application for the Partner visa. The Tribunal prefers Ms Adeel’s evidence provided in support of her Partner visa application and finds that the mutually committed and genuine relationship was formed in August 2013. The Tribunal finds that at that time, the applicant and Ms Adeel made the decision to marry, spoke to Ms Adeel’s parents, who either approved of the marriage or insisted upon it. The Tribunal finds that in August 2013 the parties were engaged to be married, whether or not there was a formal ceremony.

13. The applicant did not disclose that information about the engagement in his application form (his answer is blank). The applicant failed to inform the Department about changes in his circumstances once he became engaged to Ms Adeel in August 2013, and may have been in breach of s. 104. However, this is not the breach described in the s. 107 Notice.

14. The NOICC refers to the applicant’s answer given at Question 14 of the application form where he claims he was “never married or been in a de facto relationship”. The applicant and Ms Adeel were never married and the Tribunal is not necessarily convinced that by the time the applicant entered Australia, his relationship with Ms Adeel had been a de facto one within the meaning of the Migration legislation. Therefore, the information the applicant gave in relation to his marital or de facto relationship did not become incorrect in the new circumstances. The information that did become incorrect is the applicant’s engagement to Ms Adeel and that is not the basis set out in the NOICC. Although the s. 107 Notice refers to the engagement, it only does so in the context of setting out the criteria relevant to the grant of the Child visa and not as a basis for the cancellation. It is not in dispute that the information about the engagement was relevant to the grant of the visa but the NOICC does not refer to that information as establishing the breach, but only to establishing the applicant‘s eligibility for the visa that he was granted. That is not sufficient.

15. The Tribunal must find if there was non-compliance in the way described in the Notice. While the Tribunal has formed the view that there was non-compliance with respect to the information concerning the applicant’s engagement with Ms Adeel, the Tribunal does not consider that there was non-compliance by the applicant in the way described in the s. 107 Notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

16. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 101 (Child) visa.

    Kira Raif
    Senior Member