Reshadati (Migration)

[2020] AATA 1472

Reshadati (Migration) [2020] AATA 1472 (9 April 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zahra Reshadati

CASE NUMBER:  1924919

DIBP REFERENCE(S):  BCC2019/3101455

MEMBER:Brendan Darcy

DATE:9 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 116 (Carer) visa.

Statement made on 09 April 2020 at 3:14pm

CATCHWORDS
MIGRATION – cancellation – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – incorrect information in visa application – sponsor with severe medical condition – applicant’s unwillingness to provide care at the time of applying – delayed departure after visa granted – return and long stay within months of arrival – care from other relatives during this time – discretion to cancel visa – other relatives now unable or unwilling to provide care – no attempt to access government or community assistance – sponsor’s health care needs – improvement under applicant’s care – hardship if applicant’s visa remains cancelled – decision under review set aside

LEGISLATION
Migrataion Act 1958 (Cth), ss 99, 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 1.15AA(e), Schedule 2, cl 116.211

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 Immigration to cancel the applicant’s Subclass 116 (Carer) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the then visa holder had provided incorrect information pursuant to s.109. 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 first appeared before the Tribunal om 7 February 2020 and then\ in a resumed hearing on 12 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor of this visa under review, Ozra Reshadati and the applciant’s daughters Lisa and Nazila Neamati. The Tribunal hearings were conducted with the assistance of interpreters in the Farsi (Persian) and English languages.

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

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. 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.

   Section 101 Visa applications to be correct

9. A non-citizen must fill in or complete his or her application form in such away that: (b) no incorrect answers are given or provided.

10. By operation of s99 of the Migration Act, 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.

    Was there non-compliance as described in the s.107 notice?

11. 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.101(b) in the following respects:

12. On 30 May 2012, the visa holder applied for a Carer (subclass 116) visa by submitting Form 470F — Application for migration to Australia by other family members.

13. On page 13 of the application form, under Part G — Details of other family members in response to Question 57 which asked "Give details of all your other family members, not listed on this form", the visa holder provided the following information:

    Parents:

Full Name	Date of birth	Country of current residence
Abdollah Reshadati	-	Deceased
Batoul Amiri	8 August 1933	Iran

Your brothers and sisters:

Full Name	Date of birth	Country of current residence
Seifollah Reshadati	16 August 1952	Iran
Asdollah Reshadati	-	Deceased
Naser Reshadati	15 March 1965	Iran
Mansour Reshadati	5 April 1967	Canada
Nasrin Reshadati	15 June 1969	Iran
Ozra Reshadati	13 October 1959	Australia
Maryam Reshadati	12 April 1962	Australia

14.   On page 17 of the application form, Part L - Carer, in response to Question 65 which asked "Give details of the relative(s) in Australia who need your care" the visa holder provided the following information:

1.  Full name of relative: Ozra Reshadati

Date of birth:               13 October 1959
Relationship to you: Sister

1. On page 17 in response to Question 67 which asked "What medical condition led to your relative needing your assistance?" the visa holder provided the following answer:

   "My sister has severe diffuse scleroderma since 1999, leading to severe skin disease with marked hand deformities, pulmonary fibrosis, chronic gastrophaegeal reflux, recurrent chest infections, and marked general fatigue. Due to her very poor hand functions she is unable to prepare food, needs assistance with showering."

2. On page 17 in response to Question 68 which asked "What assistance will you provide to your relative, and for what period will you provide that assistance?" the visa holder answered:

   "I can provide daily assistance to my sister in preparing food, showering her, self-grooming and per2. sonal activities for her daily living. I will be available for her 24/7, as much as she needs me to assist her."

3. On page 17 in response to Question 69 which asked "Does the relative requiring care have any other relatives in Australia not previously listed in this form?" the visa holder answered "Yes" and provided the following information:

   "Lisa Asal Neamati (DOB: 01/10/1991), Nazila Neamati (DOB: 15/12/1993) both are my nieces. They were helping Ozra before enrolling universities. They are not able to assist Ozra any longer.

   Maryam Reshadati (DOB: 12/04/1962), she is our sister. She is a nurse and working time as a nurse. Maryam lives in Pascoe Vale. She is living not close to Ozra to assist her in daily life.

4. On page 17 in response to Question 70 which asked: “Are any relatives in Australia (other than yourself if you are applying onshore) reasonably able to provide assistance required” the visa holder answered “No”.

5. On page 18 in response to Question 71 whch asked “Has anyone sought assistance from any Australian welfare organization, doctor or health professional, hospital, nursing home or other community services to assist your relative?”, the visa holder answered “Yes” and provided the following information:

   1.       Name of organisation:   City of Borrondara

   Is your relative obtain long-term assistance from this organization " No”

   2.     Name of organisation: A/Prof Laurence Clemens

   Can your relative obtain long-term assistance from this organisation" No

   "Before Lisa and Nazila enrolled to universities they were providing assistance to Ozra (their mother). Since they became full time student they won't be able to assist their mother. Ozra needs full time carer. Maryam also is busy with her life, she works as a nurse. Before she moved to Pascoe Vale she used to assist Ozra, since she is living far from Ozra she is not able to assist Ozra any longer in her daily life."

6. On page 22 of the application form the visa holder declared the following:

   ·“I declare the information that I have supplied in this application is complete, correct and up-to-date in every detail”;

   ·I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.”

7. On 15 March 2013, the Department refused the visa holder's application for a Carer (subclass 116) visa because the delegate was not satisfied that the assistance required by her sister Ozra Reshadati cannot be reasonably obtained either from another relative in Australia or from welfare, hospital, nursing or community services in Australia.

8. Based on the information the visa holder provided on her Carer (subclass 116) visa application, the delegate accepted that the visa holder's relatives may have their own lives to live, are busy working or studying and have their own personal aspirations and interests, but did not accept that it was unreasonable for them to provide assistance to the sponsor, Ozra Reshadati either individually or collectively.

9. The delegate also noted evidence was submitted in the form of letters from Advocacy Disability Ethnicity Community (ADEC) and Ozra Reshadati's doctor advising that she needed intensive assistance but no such ongoing intensive 24 hours service were available for_. her in Australia.

10. The application refused to grant the visa on the basis that there was no corroborating evidence to support that the sponsor’s claims to attempted to obtain assistance from welfare and community services. The sponsor appealed the decision to the Tribunal, differently constituted, to review this decision. The sponsor was successful with the Tribunal remitting the matter on 2 September 2014.

    Consideration of the relevant evidence

11. The holder of a Class 116 carer visa was granted a visa to provide care for the sponsor with serious health complications on 21 October 2015 . The grant of the visa was premised on the sponsor being unable to obtain assistance from other relatives in Australia and/or from Australian welfare and community support services.

12. It was in this way the applicant’s visa application satisfied cl.116.211 and regulation 1.15AA.

13. Under section 108 of the Migration Act, a delegate on behalf of the Minister can consider that any written given by a visa holder in this way required by section 107(1)(b).

14. The delegate in the cancellation decision states that the visa holder agreed there was non-compliance.

15. The delegate further found the travel history of the visa holder did not arrive in Australia for approximately seven months after the grant of the visa on 21 October 2015 and that she had not been in Australia for a significant period of time after she departed Australia on 20 August 2016 for 25 months. 

16. In this matter, this travel history is not in dispute.

17. The delegate was invited to consider that the absence of the visa holder for such a significant amount of time that the visa holder was not required to provide daily care for her sister. He was further invited to consider that the visa holder’s answers on page 17 of the application form to question 68 amounted to non-compliance with section 101(b) of the Migration Act. That is because the applicant at the time of application indicated that the applicant was willing to provide daily assistance to the sponsor (identified in question 65 of the same application) and that she was not available for her on a 24/7 basis as much as the sponsor needs the visa applicant to assist her sister. By not being available to the sponsor, the delegate concluded incorrect information by the applicant at the time of application had been provided and that the grounds for cancellation existed.

18. In the applicant’s response to the NOICC validly issued on 18 June, she stated the following:

    ·The visa holder was advised she must enter Australia before 17 July 2016

    ·The visa holder submitted she sought three months annual leave from her employment in Iran to facilitate travel to Australia and did not see any problems with delays in her arrival;

    ·Prior to departing Australia in August 2016, arrangements were made with other family members to care for the sponsor;

    ·The visa holder did not anticipate her return to Iran would take up as much as 25 months; and that she was unaware of any conditions imposed on her or that she could not depart and return on multiple occasions while holding a permanent visa;

    ·The visa holder did not conceal her departure from Centrelink as a recipient of Carer Payment by informing it of her travel;

    ·The visa holder had not finalised her affairs in Iran to organise a permanent move to Australia in the seven-month period between the grant of the visa and her arrival in Australia.

    ·The visa holder had to return to fulfil her obligations according to her employment contract as she was subjected to ‘an employment bond, arguing her employer would not accept her resignation and that she agreed to completing the final year of her employment contract;

    ·The visa holder disclosed she was earning the equivalent of 400 AUD per month in Iran which was less beneficial than Carer Payment. This it was argued proved she was required to remain in Iran;

    ·The visa holder was also in a relationship with a family friend prior to her departure in 2016 and that travelled to Australia to satisfy the entry requirement before retuning to explore the possibility of reconciling the relationship and the opportunity of marriage;

    ·The visa holder maintained contact with the sponsor who advised her that the absence from Australia was difficult for the sponsor and others in Australia, prompting her to return to Australia;

    ·Since returning, the visa holder had been a full time carer for the sponsor. 

19. The delegate was not satisfied by these responses that the applicant as the grant fo the visa had to be demonstrate that there was no ability for the sponsor to obtain the required daily care from other relatives or any other Australian welfare support networks. The applicant did not demonstrate this by her long absence when she was supposed to be a committed full time carer but instead the applicant’s family members in Australia provided that care for a substantial period of time.  Furthermore, the delegate noted that the daughters of the sponsor were unable to provide care at the time of application because of their full time studies, however they were able to provide care, with other family members, for a 25 month period.

20. The delegate then proceeded to find that he grounds for cancellation were made out. Having also assessed the mandatory and other considerations for cancellation, the delegate proceeded to cancel the applicant’s visa on 2 September 2019.

    Evidence before the Tribunal

21. At the Tribunal’s scheduled hearings, the review applicant reiterated her reasons for long absence from Australia since the grant of the visa.

22. Overall, the Tribunal found the reasons unconvincing. Firstly, the applicant was unable demonstrate to the Tribunal the need to return to Iran due to ‘an employment bond’ for which she was being paid less than she would be in receiving Carer Payments through Australia’s social security system. The employment was with ‘Tourism Bank’ and that she worked directly to the CEO who was subject to some scandal (which was vaguely articulated). When the CEO changed, she was unexpectedly subjected to ‘an employment bond. She added she would be prevented from leaving Iran if the issue was not resolved. Secondly, she was unable to provide any country information about ‘employment bonds’ or ‘blank cheques’ or any harm arising from such arrangements. She provided media reports and copies of her employment contract. These documents, as discussed, did not indicate she was held under suspicion or that she had any onerous provisions in her employment conditions. When the Tribunal enquired into the reasons these specific aspects of her claims were not advanced in the NOICC’s response, the applicant just said she feared she would be held in Iran. The Tribunal does not accept this late and unsubstantiated explanation for her absence.

23. Thirdly, the applicant unable to provide a convincing reason that she required so much time to resolve these issues since the grant of the visa. The applicant did disclose that if she worked up to a certain point she would be entitled to a bigger pension. This appears to the Tribunal to be the real motivation to delay her arrival to Australia (which she states was just to meet the requirements of the visa and not out of any urgency for the sponsor’s wellbeing). It further indicates that the applicant intended to be absent for a long period of time and not a short interval as claimed.

24. With regard to her developing romantic relationship as an explanation for absence, the Tribunal accepts that this and her return would be reasonable for a short period of time.  As discussed in the hearing, the relationship broke in August 2018 after she returned to Iran and that she was never engaged. The Tribunal enquired into the reasons it took almost two years to find out that the relationship was unable to proceed or develop. She claimed that there was a disagreement about the union as the man’s parents did not want the suitor to live in Australia. In the context of the applicant’s sponsor requiring ongoing full-time care, the Tribunal found this response to lack credibility. The relationship indicates an unwillingness by the applicant to be a full-time carer on a long term basis. 

25. In the context of these weak responses, the applicant’s delay arrival to Australia since the grant of the visa and her departure of a short period of stay in Australia to deal which followed a long absence strongly infers to the Tribunal that the applicant did not seriously take her full time responsibilities towards the sponsor of this visa and that she was unwilling to do so at the time of lodgement – contrary to the information provided in the abovementioned question 68 . This also further indicates that assistance for the sponsor was obtainable from relatives in Australia at the time of application in the abovementioned question 69.

26. The Tribunal notes that the applicant’s representative had argued that there was no incorrect information provided as outline by the section 107 notice because at the time of application in May 2012 the situation of the visa applicant and the family in Australia were different to those at the grant of the carer visa in October 2015. It was argued that there is no clear proof to establish a false document or answer was provided. He reminded the Tribunal that the Australian law requires a high standard of satisfaction in finding that the facts relied on in a ss.109 cancellation exists.

27. This is differs to the response the visa holder provided to the Department according to decision record for cancellation.

28. It is nonetheless accepted that the visa applicant and the sponsor’s family in 2012 had different circumstances to those in 2015. However, the arrangements made by the family while the applicant was not in Australia but was otherwise available to care for the sponsor were indicative of the family’s overall capacity to provide full time care in 2010. The applicant’s sister, Maryam, who was on maternity leave for twins and the sponsor’s daughters all provided care for the sponsor over a cumulative period of 32 months since the grant of the visa. This was including during a period in which the sponsor’s daughters were adults with full time study commitments.

1. Even accounting for the daughters’ psychological barriers in providing assistance, they and the sponsor’s Australian sister clearly had some capacity not just after the grant of the visa but in the period of the visa being lodged in 2012 and its grant. As outlined below, the sponsor’s daughters provided some shallow reasons for not having the capacity to provide care, that can be reasonably characterised as callous.  The Tribunal finds that these claims about psychological barriers in providing assistance at the time of application have been exaggerated.

2. When cumulatively considering the evidence, the Tribunal finds that it is reasonable to assess that the circumstances and capacity of the sponsor’s family in Australia were not so different between the lodgement of the application of this carer visa in 2012 and to that periods of time where the same family members in Australia provided to the sponsor while the visa holder designated for full time care responsibilities was absent. In this regard, the otherwise weak reasons, some of which lack credibility, for the visa holder’s substantial absences is not as critical in determining non-compliance with section 101 as it is assessing whether the applicant’s care for the sponsor could not be assistance reasonably obtained from provided by any other relative in Australia or obtained from welfare, hospital, nursing or community services in Australia as outlined by regulation 1.15AA(e)(i) and (ii).

3. In this regard, this presiding Tribunal Member notes that it is bound to uphold the same finding of facts by a previous Tribunal Member who was satisfied that assistance was not reasonably obtainable at the time of application in 2015.

4. The Tribunal is satisfied that the applicant provided incorrect information in questions 68, 69 and 70 and on page 22 when then the visa holder declared she had not provided false or misleading information. The then visa holder of this carer visa did not intend and was unwilling to provide ongoing full-time care for Ozra Reshadati and that the sponsor did have available assistance that could be reasonably provided by other relatives of the sponsor, who were Australian citizens at the time of application. The visa holder knowingly provided false and misleading information.

5. For these reasons, the Tribunal finds that there was non-compliance with the requirement of s.101(b) by the applicant in the way described in the s.107 notice.

   SHOULD THE VISA BE CANCELLED?

6. 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).

7. 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

   ·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.

8. 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.

   the correct information

9. In this matter, there was considerable incorrect information provided to the Department by the review applicant at the time of application, as outlined above in the Tribunal’s adverse credibility findings. For this reason, the Tribunal places considerable weight on this serious non-compliance in favour of the visa remaining cancelled.

   the content of the genuine document (if any)

10. This case involves the applicant having provided incorrect answers on her visa application. Therefore this factor is not relevant in this case and it is given no weight.

    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

11. In this matter, the grant of the visa to the review applicant was based wholly on incorrect information about the capacity of the applicant’s family to provide care for Ozra Reshadati as the sponsor. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelled

    the circumstances in which the non-compliance occurred

12. When the applicant applied for an offshore carer visa in 2012, the sponsor did genuinely require a level of care due to the deteriorating and debilitating effects of her disease. Her two daughters, then adults, did have genuine psychological problems such as anxieties which was at least attributable to their roles as carers conflicting with their educational and other gaols in life. However, it is the Tribunal’s estimate that their treatable psychological were not so severe or significant that their caring responsibilities towards the visa applicant as their biological mother were mutually excluded. The sponsor was in a position to reasonably obtain assistance from other with other family members in Australia. In this regard, this presiding Tribunal Member notes that it is bound to uphold the same finding of facts by a previous Tribunal Member who was satisfied that assistance was not reasonably obtainable at the time of application in 2015.

13. Furthermore, the Tribunal assesses that the visa applicant had been an understandable reluctance and willingness to care for the sponsor, who was her biological sister.  She had an enviable career in Iran and was still considering romantic or marital arrangements. This is discernible from the evidence she has provided about the weak reasons she delayed arriving to Australia as a carer after the grant of the visa for seven months and some far-fetched reasons lacking credibility about her 25-month return stay in Iran after arriving and then departing Australia after a mere three months.

14. As outlined above, the family members of the sponsor who were residing in Australia found the capacity to care for her while the applicant was absent. The visa applicant was not only unwilling to assist her sister on a full-time basis at the time of the visa’s grant and the period subsequently. Her unwillingness existed at the time of this carer visa was lodged for assessment. In this regard, this factor at the time of non-compliance weights somewhat against the visa not remaining cancelled.

15. However, the provision of incorrect information at the time of lodgement does not diminish the salient issue that the sponsor did require full-time care for her actual disabilities and related symptoms. The sponsor genuinely required a great deal of attention in avoid infections, preparing specific nutritional requirements and medication.

16. Neither does it diminish the medical evidence that the daughters of the sponsor did have some genuine psychological or mental health problems; nor does it lessen the fact that Iran under its ongoing authoritarian regime contributes the deteriorating social and economic conditions at the time of non-compliance. Since 2009, Iran has experienced great unrest and economic challenges which encourages Iranian citizens, such as the review applicant, to emigrate and to apply for visa categories offered by developed countries whose criteria they frequently do not satisfy. In this case, the review applicant applied for a visa category to be a full time carer of a family member but she did not have the appropriate level of willingness to carry out those duties when the non-compliance occurred.

17. Therefore there are a number of relevant circumstances in which the non-compliance occurred that were understandable and somewhat compelling.

18. When considering all the relevant circumstances at the time of non-compliances, the Tribunal only places notable weight arising from the compelling circumstances in favour of the visa not remaining cancelled.

    the present circumstances of the visa holder

19. The Tribunal had the opportunity to discuss in detail with the sponsor and the visa applicant about the sponsor’s health care needs on a daily basis. It has also considered the medical evidence provided by the sponsor’s treating medical professionals over a period of time.

20. The sponsor’s most recent medical reports:

    Ozra Reshadati, aged 59yrs, 10mths, has severe, deforming, debilitating Scleroderma.

    This [is] chronic  rheumatic, mutli-system connective tissue disorder.

    She has deformed fingers limiting their use and is awaiting hand surgery. This condition also affects other tissues including her skin, joints, gasto-intestinal and respiratory systems. This is a chromic and permanent condition requiring full-time care, supervision and assistance. She requires full-time and permanent care.

    She also suffers with episodic dizziness for which she takes medication and requires supervision. [sic]

21. The medical issues arising from the sponsor’s scleroderma are considerable and grave. They have weighed heavily in the Tribunal’s deliberation.

22. The Tribunal also notes that the same medical report states since the review applicant has provided care on an ongoing basis for the last eighteen months, the sponsor’s physical and mental state has improved and that any change would be distressing and potentially harmful to her. He also mentioned that the review applicant communicates to the sponsor in first language, Farsi.

23. The Tribunal finds there is no evidence that the review applicant has not provided full time care on an ongoing basis since she returned to Australia. At the hearing, the review applicant demonstrated considerable knowledge into the sponsor’s health problems and detailed daily care routines in a convincingly manner. The Tribunal concurs with the medical advice that it would be in the best interest of the sponsor to maintain the present arrangement with the former visa holder as her carer.  Accordingly the Tribunal places considerable favourable weight on this beneficial relationship that has recently and presently developed between the sponsor and the review applicant given the sponsor’s debilitating medical profile and considerable care requirements.

24. It also accepts the applicant’s sister, Maryam, has limited capacity to provide care to the sponsor given she has two young children, including one with autism and a part time job. Accordingly it places some weight on his present circumstance in favour of the visa being reinstated.

25. Yet, there continues to be factors arising from the present circumstances of the sponsor’s daughters that has undermined these medical and care factors in favour of having this visa reinstated. The sponsor’s two adult children have failed to convince the Tribunal that they have psychological impediments to providing cared share for her mother. They have considerably advanced their studies. Despite the protestations during the hearing, neither have mental health disorders so severe that they have ever needed hospitalisation or regular medication; nor have they maintained regular or frequent counselling with the share psychologists. The Tribunal accepts that they have a degree of trauma caring for their mother from a young age and it is not desirable or welcomed for anyone to have their lives suspended as carers at the expense of their own life goals. However, as discussed it is possible for them to access income support and maintain their studies or engage with the labour market through Australia’s generous social security arrangements. Instead they have relied on this visa category to abrogate care responsibilities that many Australians without willing and capable relatives living offshore cannot access. Astonishingly, the adult daughters admitted having never provided any meaningful respite to the review applicant since she had been an ongoing carer and saw nothing unusual about this.

26. They admitted to never trying to access local government assistance which the Tribunal found curious and negligent.  The Tribunal accepts from the psychologist reports that they do have genuine issues with over-responsibility leading to anxiety or depression.

27. With little or no insight into their callous self-interest, the sponsor’s daughters prioritised their own educational, career and even romantic trajectories over witnessing their mother’s decline by relying on this visa category to abrogate their unenviable responsibilities. It has been particularly jarring to listen and read that the sponsor’s daughters found their mother highly erratic and emotional, given that would be expected given her circumstances and whereby she successfully raised her children with a disability as a sole parent in Australia.

28. The Tribunal is not satisfied the visa applicant would satisfy the criteria for a carer visa in the present circumstances based on the family’s overall current capacity to assist for the sponsor. The Tribunal does not accept that carer visas were intended for those present circumstances, even it is understandable. It places notable countervailing weight on these present circumstances in having the visa remain cancelled.  

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

29. As the review applicant has maintained the grounds for cancellation did not exist the Tribunal places some weight on this factor in favour of the visa remaining cancelled.

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

30. According to the Department, there are no further instances of non-compliance by the visa holder. The Tribunal places no weight on this factor in favour of the visa remaining cancelled.

    the time that has elapsed since the non-compliance

31. The non-compliance occurred when the then visa holder lodged her Subclass 116 care visa application on 2011. It is now 2020. This is a considerable amount of time.

32. Therefore, this factor should be given considerable weight in favour of the visa not being cancelled.

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

33. There is no evidence of any breaches of the law by the applicant and the Tribunal, therefore, gives this factor no weight towards the visa being cancelled.

    any contribution made by the holder to the community

34. The review applicant has genuinely cared for her sister who is an Australian citizen in the last eighteen months and has done so on a full-time basis. Given the seriousness of the sponsor’s debilitating disease and the benefits to the sponsor and her family’s wellbeing, the Tribunal places a notable amount of weight on this factor in favour of the visa not remaining cancelled.

35. The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.

    Discretionary considerations

36. The Tribunal has gone on to consider other factors where relevant on the material before me or as raised under policy.

    whether there would be consequential cancellations of other persons’ visas under s.140

37. There are no other persons whose visas may be cancelled as a consequence of the review applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder 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

38. Should the applicant’s subclass 116 visa remain cancelled, she would eligible to apply for a narrow number of other visas in Australia. If she becomes unlawful, the review applicant faces the strong possibility of being detained and then removed from Australia. She also faces a more remote risk of indefinite detention. Should the applicant be returned to Iran, it would be extremely difficult for her to return to see her sisters. During the hearing, the applicant stated that if she cannot remain lawfully in Australia she will return to Iran.

39. The Tribunal places some weight on these factors in her favour.

    Refoulement considerations

    Refugees Convention and complementary protection provisions

40. The applicant tepidly advanced fears about returning to Iran. Those fears included fears about difficulties in finding work due to her age. However, the applicant found a well-paying job in 2015. She has not considerably advanced in age since then. The review applicant obviously has many skills and networks in finding work in Iran. As she will be able to find employment, the Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm arising from her age or economic circumstances, if this visa remains cancelled.

41. While the Tribunal accepts the applicant’s gender will be a reason for her to encounter challenges in Iran, she did not advance any concerns. The Tribunal also considered the overall volatile political environment and economic challenges of Iran at this time are deeply concerning. However, Iran has an otherwise relatively security situation compared to its neighbours such as Iraq and Afghanistan.

42. The applicant has also returned to Iran for substantial period of time and departed for Australia on two occasions without being a person of interest to the authorities.

43. The Tribunal finds there are no substantial reasons for it to accept or believe the review applicant has a well-founded fear of persecution of any nexus reason or a real risk of significant harm if she were to return to Iran in the foreseeable future.

44. Furthermore the applicant has never applied for a protection visa. Should this visa be cancelled it is open to her to validly apply for it without being s.48 barred.

45. For the reasons outlined above, both individually and cumulatively, the Tribunal places very little weight in Australia’s obligations of non-refoulement in favour of the review applicant.

    Rights of the Child

46. One of these principles is that officers consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. As there are no children affected in this matter, this criterion is weighted neutrally.

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

47. There is no evidence the review applicant has broken any laws of Australian or that she ahs been charged.

    Summary

48. When considering the review applicant’s overall situation in the context of the sponsor’s care requirements, the Tribunal, does concede that there is a high degree of emotional and psychological hardship that will be caused to the sponsor if her visa remains cancelled.

49. The non-compliance at the time of application and which constituted the grounds for cancellation under s.109 in this matter is of serious concern; but it was also understandable.

1. The Tribunal remains insufficiently unmoved by any hardship caused by the sponsor’s adult children. There is a greater capacity within the sponsor’s family to provide more care than they have previously explained to the Department and the Tribunal. This includes at the time of non-compliance and in the present circumstances.

2. As the sponsor’s care and health requirements have been of primary consideration in this matter, the Tribunal finds the review applicant has credibly provided ongoing full time care of an Australian citizen who requires it. The review applicant has overcome her past unwillingness to carer for his sister and there exists a genuine sisterly bond between them that would be adversely affected to the detriment of the sponsor if this visa were to remain cancel.

3. The Tribunal has been mindful in this matter that that the mandatory and discretionary factors are not the same standards as the criteria for the grant of this category of visa.

4. Accordingly it is the correct or preferable decision on the evidence is to find there are more favourable factors in favour of reinstating this carer visa than those countervailing factors in having it remained cancelled.

   Conclusion

5. 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.

6. The review applicant and her family should be aware that the Tribunal only reached this decision marginally in her favour.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 116 (Carer) visa.

   Brendan Darcy
   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.