Rana (Migration)

[2022] AATA 4490

Rana (Migration) [2022] AATA 4490 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rita Shahi Rana

REPRESENTATIVE:  Mr Ramtin Diznab

CASE NUMBER:  2211300

HOME AFFAIRS REFERENCE(S):          BCC2021/1077537

MEMBER:Andrew McLean Williams

DATE:17 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme visa.

Statement made on 17 November 2022 at 11:46am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – dependent spouse of primary applicant – false information provided in previous and current visa applications – previous name, entry and overstay not declared – discretion to cancel visa – previous travel controlled by abusive former husband, who destroyed applicant’s passport – new marriage and passport in new name – work and community activity – best interests of child who has lived most of his life in Australia, and family unity – applicant’s employment and social prospects if returned – country information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
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 Home Affairs to cancel the Applicant’s Subclass 186 - Employer Nomination Scheme visa, under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Delegate determined to cancel the visa on the basis that the Review Applicant (‘the Applicant’) had provided false information in relation to her prior Subclass 457 visa, and also in relation to her current Subclass 186 visa.  In both instances the Applicant is a secondary visa applicant, who had applied for the visas in her capacity as the spouse of the primary applicant.  On her Subclass 457 visa application form, the Applicant had answered ‘no’ to the question ‘have you been excluded from or asked to leave any country (including Australia)?  On a separate occasion, on her Subclass 186 visa application form, the Applicant had also answered ‘no’ to the questions whether the Applicant had ever been known by another name, or had held other passports. 

3. Subsequently, information became known to the Department that indicated that the Applicant had previously been known by the name Asha Shercan, and had previously travelled to Australia on a Nepalese passport in that name, initially arriving under a student (Subclass 572) visa on 11 June 2008, and whilst still onshore was then issued with a Student ‘further stay’ (Subclass 573) visa in the name Asha Shercan, which remained valid until 15 March 2012.  However, the Applicant overstayed the Subclass 573 visa until 12 May 2012 and hence had remained in Australia unlawfully for a period longer than 28 days.  

4. In light of the matters described in the preceding paragraph, the answers given by the Applicant on both her Subclass 457 and Subclass 186 visa applications contained ‘incorrect information’, contrary to the requirements of s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 2 November 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant was represented in relation to the review by Mr Ramtin Diznan, legal practitioner of Gold Migration Lawyers. Mr Diznan also attended the Tribunal hearing and had prepared written submissions prior to the hearing that were filed in the Tribunal on 31 October 2022.  At the conclusion of the Tribunal hearing the Applicant was afforded further leave to file additional written submissions addressing specific issues raised by the Tribunal during the hearing.  These further submissions were received by the Tribunal from Mr Diznan on 10 November 2022.

7. For the following reasons, the Tribunal has now concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of ss. 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these provisions require that non-citizens provide correct information in their visa applications and on their in-bound passenger cards; to not provide ‘bogus documents’, and to notify the Department of any incorrect information of which they become aware, as well as of any relevant changes in their circumstances.

9. 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.

10. In the present matter, a notice under s.107 was issued by the Department in the form of a Notice of Intention to Consider Cancellation (‘NOICC’) on 28 June 2022. The Tribunal is satisfied that the Delegate had reached the necessary state of mind to engage s.107 and that the NOICC issued on 28 June 2022 complied with the statutory requirements.

    Was there non-compliance in the manner described in the NOICC?

11. The issue before the Tribunal is whether there was non-compliance in the manner described in the NOICC, and if so, whether the visa should be cancelled.

12. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, arising in the following circumstances:

    ·On her Subclass 457 visa application the Applicant had answered ‘no’ to the question ‘[has the visa applicant] been excluded from or asked to leave any country (including Australia?);

    ·On her Subclass 186 visa application, the Applicant had answered ‘no’ to the question: “Is this applicant currently, or have they ever been known by any other names?’;

    ·Also on her Subclass 186 visa application, the visa holder had answered ‘no’ to the question “Does this applicant have other current passports?”

    ·Biometric (face-matching) data possessed by the Department had revealed that the Applicant now known as Rita Shahi Rana had previously entered Australia under the name Asha Sherchan, as an accompanying spouse on a Subclass 572 visa and, whilst in Australia had been granted a Subclass 573 (continuing student) visa, and had remained in Australia for more than 28 days after the expiration of that Subclass 573 visa.  In consequence, the ‘No’ answers given by the Applicant on both her Subclass 457 and Subclass 186 visa applications were not correct answers.

13. The matters specified in the proceeding paragraph were put to the Applicant for comment by the Department by means of the NOICC dated 28 June 2022. The Applicant submitted a response to the NOICC on 12 July 2022. No challenge was made to the validity of the NOICC in terms of its conformity with the requirements of s.107, and the Applicant admitted that she was in breach of s.101(b) of the Act, in the manner particularised by way of the NOICC.

14. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the Applicant, and in the manner described in the NOICC.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the manner described in the NOICC, 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).

16. In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the NOICC about her non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, these 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.

17. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered as relevant, in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to 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 other relevant matters.

    The circumstances in which the non-compliance occurred

18. In her NOICC response, the Applicant, who is a thrice married Nepalese woman, explains that she is currently married to Mr Roven Rana, and was listed on his Subclass 186 visa application as a dependent spouse.  Previously, the Applicant had been married to another Nepalese man, and was known at that time as Asha Sherchan and had travelled to Australia in that name as the Dependent spouse of her former husband, initially arriving in this country on a Subclass 472 visa before being granted a follow-on Subclass 473 visa also in the name Asha Sherchan, whilst already in Australia.

19. The Applicant was born in Butwal Nepal, and her birth name is Gita Gauchan.  The Applicant was born at home in impoverished circumstances, and has neither a birth certificate or any other identity documents in her birth name. 

20. When the Applicant was aged approximately 12 years, her mother passed away.  Then, when the Applicant was about 14, her father also passed away.  The Applicant has older brothers in Nepal and, when she was aged about 17, arrangements were made by her brothers for her to be married to her first husband, who chose the name for her of Asha Sherchan.  The Applicant’s first husband then used his own identity documents to obtain a passport for the Applicant on the basis of her being his wife. 

21. The Applicant specifies that her first husband was an incredibly violent and controlling man, and she was subject to regular beatings and verbal abuse, and that her husband had also maintained a second wife throughout the majority of their marriage.  In consequence, the Applicant left her first husband, before meeting and marrying her second husband, Nabin Chaulagain, with whom she had travelled to Australia in 2008, named as a dependent spouse on his Subclass 572 visa.  The Applicant also says that her brothers in Nepal had by this stage completely disowned her, for having brought disrepute and shame upon them by reason of her failure to remain in her first marriage.

22. Unfortunately, the Applicant’s second husband also proved to be abusive, yet this was not a matter that became apparent to the Applicant until after they were already in Australia.  The Applicant says that she did not seek to report any domestic violence by her second husband to the Australian authorities, by reason that her second husband constantly threatened to have her deported. 

23. The Applicant now admits that she had remained in Australia illegally beyond the date of expiration of her Subclass 573 visa, however the Applicant also says that her visa and passport were documents held under the tight control of her second husband, who had refused to share important information with her, such that initially the Applicant was completely unaware that she had overstayed her visa.  When the Applicant did become aware of that, she immediately contacted the Immigration Department and requested that she be allowed to stay in Australia at least for sufficient further time to arrange her orderly departure.  In May 2012 the Applicant returned to Nepal, and also left her second husband Nabin Chaulagain, who destroyed her passport in the name Asha Sherchan.   

24. By this stage back living in Nepal, the Applicant says that she was unable to obtain a new passport in her married name of Asha Shercan as to do so would have required her husband to participate in the application process, yet this was not really a practical option as she had left him, and remained fearful of what he might do to her in the event that she tried to contact him again.  The Applicant also says that she was fearful of the stigma attaching to divorced women in Nepalese culture and was unable to turn to her brothers for any assistance, by reason that they had also disowned her and had turned their backs on her after she had left her first husband. 

25. At around this time the Applicant met and married her current husband Roven Rana and, upon their marriage took the name Rita Shahi Rana, and then later applied for a Nepalese passport in her new married name, before again applying to travel to Australia on a Subclass 457 visa as the dependent spouse of Roven Rana.  Later, when already in Australia, the Applicant applied for a Subclass 186 visa, again as the dependent spouse of her husband Roven Rana.

26. The Applicant states that she did not declare the fact of her having been previously known by the name Asha Sherchan, or of her having previously had a passport in that name, or of her having previously overstayed her Subclass 573 visa by reason of her subjective fear that she would not be allowed to remain in Australia with her husband and child.  Similarly, the Applicant felt a sense of shame and stigma about what she describes as her ‘complicated identity issues’.

    The present circumstances of the visa holder

27. The Applicant is now aged 40 and has stable employment in Australia working as a cleaner in an aged care facility and has now been in Australia as Rita Shana Rana for approximately 7 years.  The Applicant’s husband works as a store manager for Aldi.  The Applicant and her husband have one child, a son now aged 9 years, who has lived continuously in Australia since his first arrival at the age of two.

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

28. No other instances of non-conformity by the Applicant with her obligations arising under Subdivision C of Division 3 of Part 2 of the Act have been drawn to the attention of the Tribunal by the Department. This is a factor attracting weight against visa cancellation.

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

29. No other instances of non-compliance by the Applicant as may be known to the Minister have been brought to the attention of the Tribunal.  This is a further factor attracting weight against visa cancellation.

    The time that has elapsed since the non-compliance

30. Nearly seven years have transpired since the Applicant provided inaccurate information.  During that time the Applicant and her family have settled into a pattern of domesticity in Australia with sound connections into the Australian community.  This is a further factor attracting weight against visa cancellation.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

31. There is no information before the Tribunal regarding any breaches of Australian law by the Applicant. This is a further factor attracting weight against visa cancellation.

    Any contribution made by the holder to the community.

32. The Applicant and her husband and son have now lived in Australia continuously for several years.  As well as her employment in the aged care sector the Applicant is an active member of a Nepalese community-based soccer club, the ‘Brigade Ghurkas’ Club.  The Applicant’s husband is a retail manager for Aldi, and acts as coach for a junior soccer team in Sydney.  There are a number of community and employment references and letters of support for the Applicant.  All of these factors attract further weight against visa cancellation.

    Further Considerations

33. The Tribunal considers that the best interests of the Applicant’s nine year old son Rehan are best served by now allowing the Applicant to remain in Australia.  The Applicant’s son left Nepal at the very young age of two, and has not since returned to Nepal at any time.  Rehan only speaks English, and has little cultural connection with Nepal and has now already commenced his education in the Australian schooling system.  In the event that the Applicant were to be required to return to Nepal, the family unit comprising Rehan and his mother and father would be torn apart, and this is clearly not in Rehan’s best interests as a primary school aged child living in Australia.  The Tribunal notes the evidence before it indicating that both the Applicant and her husband would have considerable difficulty securing employment in Nepal and the Applicant’s Husband’s financially supporting his own elderly parents in Nepal, such that it seems most probable that the Applicant’s husband would continue to remain in Australia, with Rehan, thus jeopardising the continuity of the Applicant’s marriage to her husband, and the family unit, as a whole.

34. The Tribunal further notes DFAT Country information referable to Nepal that notes the risk of violence and social stigma directed towards divorced women, in Nepal.  In those circumstances the Applicant faces particularly bleak employment and social prospects if now required to return to Nepal, such that this now becomes a factor attracting further weight against visa cancellation.

35. Departmental records indicate that there are no dependant family members whose visa may be consequentially cancelled, in the event that the Applicant’s visa remains cancelled.  In the circumstances, this factor attracts no particular weight against visa cancellation, however the risk of negative impact on the family unit, as already described in preceding paragraphs does become a factor attracting weight against visa cancellation.

36. If the Applicant’s visa is to be cancelled, the Applicant will then become an unlawful non-citizen and may be liable to detention under s.189 as well as forced removal under s.198 as well as become impacted by the visa bar in s.48 and in Public Interest Criteria 4013.  These adverse consequences must attract at least some further weight against visa cancellation. 

37. The Tribunal has decided that there was non-compliance by the Applicant arising in the manner described in the NOICC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    decision

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 -  Employer Nomination Scheme visa.

    Andrew McLean Williams
    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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.