Saeed (Migration)

[2023] AATA 1166

Saeed (Migration) [2023] AATA 1166 (10 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waqas Saeed

REPRESENTATIVE:  Dr Nazir Daawar

CASE NUMBER:  2207098

HOME AFFAIRS REFERENCE(S):          BCC2020/2328633

MEMBER:Kira Raif

DATE:10 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2023 at 8:47am

CATCHWORDS
MIGRATION – Cancellation – Subclass 100 (Spouse) visa –applicant provided incorrect information – applicant’s failure to mention his marriage to Neelam Shahzadi in the application form – insufficient evidence to make a positive finding that the applicant and Ms Shahzadi had a relationship of a nature that was required to be declared on the application form – there was no non-compliance by the applicant in the way described in the s.107 notice ––decision under review set aside

LEGISLATION
Marriage Act 1961, s 88D
Migration Act 1958, ss 101, 107, 109

CASES
Zhao v MIMA [2000] FCA 1235

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 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Pakistan, born in December 1992. He was granted the Spouse (Migrant) visa in June 2019. In February 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 13 May 2022. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 September 2022 and 28 February 2023 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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.

6. 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?

7. 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 of the Act.

   Primary decision

8. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. He made the application for the Partner visa on 3 April 2017, sponsored by Mr Maria Noor. The applicant stated on the application form that he and Ms Noor married on 28 January 2017 in Pakistan and that he had not had any previous relationships with persons other than the sponsor. The applicant completed a declaration that the information on the form was complete and correct. In support of his visa application the applicant provided a marriage registration certificate issued on 28 January 2017 which referred to the applicant’s marital status as ‘unmarried’.

9. On 24 February 2018 the applicant was granted the Partner visa and he arrived in Australia in June 2018. He was granted the Partner (Migrant) visa on 8 June 2019.

10. The primary decision record indicates that in November 2020 the Australian High Commission in Islamabad conducted integrity checks which revealed that in May 2015 the applicant was married to Ms Neelam Shahzadi and the marriage was registered on the Civil Registration Management System (CRMS). The delegate noted that as the applicant was legally married to Ms Neelam Shahzadi at the time of his marriage to Ms Maria Noor, his marriage to Ms Noor would not have been recognised in Australia as valid under s. 88D of the Marriage Act 1961 and the applicant would not have met the definition of ‘spouse’ at the time of visa grant.

11. In his response to the NOICC the applicant denies that he was married to Ms Shahzadi and that he had provided incorrect answers in his visa application. The applicant states that

    -the allegations and fake documents had been produced due to the animosity towards him from Maria Noor’s family and her brother. The applicant states that the marriage certificate evidencing his marriage to Ms Shahzadi is ‘fake’ and he does not know anyone by that name and believes that person does not exist,

    -he was able to obtain a copy of that document which has incorrect number (number 20 evidencing marriage in 2020 and not in 2015 as claimed) and on the date listed as the date of the marriage certificate registration – 21 July 2020 – he was in Australia,

    -the Marriage Certificate does not list Ms Shahzadi’s National ID card number, which proves that she does not exist, as everyone in Pakistan has an ID number and he states that his Pakistani address on the marriage certificate is incorrect,

    -he had not informed the Pakistani authorities of his divorce with Ms Maria Noor, which took place in Australia, so he could not register any marriage on the system in 2020 since he was already registered as being married to Ms Noor in 2017,

    -the Union Council office where the marriage is registered is located far away from his residential home but close to the address of Maria Noor’s sister and husband,

    -his family and Ms Noor’s family were close for many years and they would have been aware of his marriage, if he was previously married. They agreed to the marriage because they knew he was not married,

    -he had initiated proceedings for issuing a fake marriage certificate under his name and raised it with the Pakistani Consulate-General in Sydney. The applicant states that his name and ID number had been corruptly misused.

12. The primary decision record sets out the delegate’s reasoning in relation to the above claims. The delegate notes that

    -the ‘fake’ marriage certificate shows as being issued on 21 July 2020, more than 18 months before the NOICC was issued, contrary to the applicant’s claim that he obtained the document after receiving the NOIC,

    -with respect to the dates of marriage and divorce, the delegate notes that religious marriages are recognised in Pakistan, so it is possible to have the marriage registered years after the wedding occurred and when the marriage is registered at the Union Council, it can also be recorded in the National Database for the marriage certificate to be issued but that is not required by law. It is therefore plausible, the delegate concluded, that the applicant’s marriage to Ms Shahzadi took place in May 2015 and registered with the Union Council much later,

    -with respect to the applicant’s claim that he would not have been able to register marriage in 2020 if there was already a record of his marriage in 2017, the delegate notes that the Pakistani law allows for multiple marriages to be recognised if permission is obtained from the Arbitration Council. As the applicant had already divorced Ms Maria Noor at the time of the registration, it is plausible that his marriage to Ms Shahzadi could have been registered with the appropriate permission,

    -with respect to Ms Shahzadi not holding an ID card, the delegate notes that eligible Pakistani citizens are able to obtain an ID card at the age of 18 but there is no evidence that having an ID card is a prerequisite for getting married or obtaining a marriage certificate,

    -in relation to the applicant’s claim that the address listed on his marriage certificate is fraudulent and incorrect, the delegate notes that the applicant’s residential addresses listed on the two marriage certificates are very similar and appears to have different transliteration,

    -as for the applicant’s claims that Ms Maria Noor’s family would not have agreed to the marriage if he was previously married, the delegate noted that it was plausible that they were not aware of his previous marriage.

13. The delegate was not satisfied the marriage registration certificate evidencing the applicant’s marriage to Ms Shahzadi was a bogus document. The delegate found the document represents a genuine marriage between the applicant and Ms Shahzadi which took place on 5 May 2015. The delegate concluded that the applicant provided incorrect answers on the application form when applying for the Partner visa.

    Evidence before the Tribunal

14. In his submission to the Tribunal of 14 September 2022 the applicant presented copies of his application to the court in Pakistan to have the marriage declared invalid and a copy of the court’s judgment to that effect. The applicant provided copies and translations of his marriage certificate to his present partner and of what he claims to be a ‘fake’ marriage certificate in relation to Neelam Shahzadi. The applicant presented a copy of the summons, a ‘certificate of cancellation’ of the marriage certificate relating to his marriage with Ms Shahzadi and a copy of a direction issued by the local authority to cancel the marriage registration certificate between the applicant and Ms Shahzadi.

15. The Tribunal sought verification of these documents through the overseas post. In April 2023 the Tribunal received the following advice from the overseas post, in response to the Tribunal’s request for verification of the documents presented the applicant.

    Marriage Certificate Verification.
    Issued Marriage Certificate Under CRMS Number M301207-20-19854 was issued by Field Office 70 Ajodhya Purr Johar Town Lahore dated 23/07/2020.

    Islamabad post contacted our source at UC 2 Gujranwala office at 3016122627.
    Source provided copy of the UC record which clearly states that marriage of Waqas Saeed was registered on 21/07/2020 his marital status was unmarried.
    UC record shows that bride name is registered as Neelam Shahzadi D/o Muhammad Ilyas.
    Date of marriage recorded is 05/05/2015.
    Source verified that marriage was registered in UC and provided record is pasted below.

    Further checks conducted with our unofficial source at NADRA Islamabad.
    Source stated that WAQAS status under CNIC 3640269548303 is active in NADRA. Marital status of the client is unmarried till 2017 and last activity was updated when he applied for NICOP card. No other activity was found since 2017 and he is still unmarried according to NADRA system.

    Post discussed the above with a source who clarified that getting marriage registered in UC is not an easy job. People handling NADRA SYSTEM at UC are responsible to attach/upload original Nikkah Name (copy of marriage certificate) along with bride, groom, their parents and witness CNICs. Therefore, record of 2015 from UC is considered as genuine but Waqas data about marriage was not uploaded by UC in the system and can be checked from relevant UC id required further.

    Therefore, based on above verification, it is verified that attached marriage certificate is genuine and exist in the record but Waqas marital status in NADRA is still unmarried.

    Court Order Verification.
    Our source who is the Court Associate(Almad) at Honourable Judge Rashid Afzal, Judge Family Court Lahore was contacted on his cell [phone]. Source provided below information.
    Family Suit NO 4153 OF Waqas Saeed vs Neelam Shahzadi is a genuine record and exist with same particulars.
    Case was decided on 22/05/2022 and Judgement was done ex-parte (other party not responded and without hearing their arguments ).
    Court observed that provided signatures does not match with signatures of Plaintiff Waqas.
    Court observed that provided addresses on Nikkah Nama are incomplete.
    Court observed that provided information for the Witness on Nikah Nama is missing.
    Based on the above findings, court concluded Nikah Nama and Null and Void.
    Please note: Decision was given by the Honourable court on 22/05/2022 and was one sided.
    Source also shared complete copy and record of the case processing in terms of PDF File and is attached with Email for CO Consideration.

    Conclusion:
    Both documents are found to be genuine.
    Marriage Certificate between Waqas Saeed and Neelam Shahzadi under CRMS: M301207-20-19854 is verified as genuine. MC record exist in relevant Union council, but it was not registered/data transferred to NADRA.

    Court Order Family law-suit 4153/22 between Waqas Saeed and Neelam Shahzadi signed by Rashid Afazal dated 26/05/2022 is a genuine record. Based on the ground of arguments (ex-parte/one sided), Court has declared Waqas Marriage certificate of 2015 as Null and Void. Therefore, Mr Saeeds marriage to Neelam Shahzadi cannot be considered to be lawful and valid under the law of  Pakistan.

16. The information in the above verification response indicates that while there was evidence of the applicant’s marriage with Neelam Shahzadi, that marriage could not be considered as lawful and valid under the laws of Pakistan, given the various discrepancies in the documents. That  is, it cannot be said that the applicant was validly and lawfully married to Ms Shahzadi prior to his marriage to the sponsor and it cannot be said that  his marriage to the sponsor was therefore invalid.

17. The basis of the cancellation set out in the NOICC is the applicant’s failure to mention his marriage to Neelam Shahzadi in the application form, as the delegate found that the applicant had completed the application form in a way that incorrect answers were given or provided with respect to that marriage. (There is no suggestion that any other question on the form was answered incorrectly.) The onus is not on the visa holder to establish that the visa should not be cancelled. In Zhao v MIMA [2000] FCA 1235 at [25] and [32] the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

18. While that case was concerned with cancellation under s 116, the Court’s comments would be equally applicable to s 109.

19. For the reasons set out above, the Tribunal cannot positively find that the applicant was validly married to Neelam Shahzadi or that  this marriage was recognised under the laws of Pakistan.

20. The applicant stated in his submission to the delegate that he did not know anyone by the name of Neelam Shahzadi. The Tribunal does not accept that evidence, given the verification of his marriage certificate to Ms Shahzadi as a genuine document (even though the marriage  was not registered with the authorities). However, in the Tribunal’s view, there is insufficient evidence to make a positive finding that  the applicant and Ms Shahzadi had a relationship of a nature that  was required to be declared on the application form. That is, there is insufficient evidence that the applicant’s answer on the form (when he claimed no past relationships) was incorrect.

21. Overall, the Tribunal cannot be positively satisfied that the applicant completed the application form in a way that incorrect answers were given or provided.

22. For these reasons, the Tribunal finds that there was no 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

23. 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

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

    Kira Raif
    Senior Member