Tanveer and Minister for Immigration and Multi-Cultural and Indigenous Affairs

[2005] AATA 17

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/297

GENERAL ADMINISTRATIVE DIVISION		)
Re		CAROL ANN TANVEER

Applicant

And MINISTER FOR IMMIGRATION AND MULTI-CULTURAL AND INDIGENOUS AFFAIRS  

Respondent

DECISION

Tribunal Deputy President Don Muller

Date10 January 2005

PlaceBrisbane

Decision The Tribunal affirms the decision to refuse to grant to Mohammed Tanveer a Partner (Provisional) (Class UF), subclass 100 visa.   

..............SIGNED................................

D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS

Immigration – Spouse/partner visa – False information supplied – marriage a sham – decision to reject application for visa affirmed.

Migration Act 1958 s.501(1) (6) (c) (ii).

REASONS FOR DECISION

10 January 2005 Deputy President Don Muller        

1.On 14 November 2002, Carol Ann Hall (as she then was), the Review Applicant, purported to marry Mohammed Tanveer, the Visa Applicant, in Rawalpindi, Pakistan. 

2.On 17 February 2003, Carol and Mohammed applied for a Visa to allow Mohammed to enter Australia.  The visa sought was a Partner (Provisional) (Class UF), subclass 100 visa. 

3.On 7 April 2004, a delegate of the Respondent decided to refuse to grant the Visa on the ground that Mohammed did not satisfy the delegate that he passed the character test pursuant to s.501(6)(c)(ii) of the Migration Act 1958 (the Act). The relevant provisions of s.501 of the Act are:

“501 Refusal or cancellation of visa on character grounds

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. 

Note: Character test is defined by subsection (6).

Character Test

(6)       For the purpose of this section, a person does not pass the character test if:

(c) Having regard to either or both of the following:

(i)  …..

(ii) the person’s past and present general conduct; the person is not of good character.”

4.In particular the delegate of the Respondent found that:

(i) Prior to the “wedding ceremony” in Rawalpindi, Mohammed falsely represented to Carol that his then wife, Rehana, had died;

(ii)  Mohammed later produced a false death certificate in relation to Rehana; and

(iii)  Rehana was alive and well, and living with Mohammed and their three daughters at Mohammed’s home after he had purportedly married Carol.

5.Carol and Mohammed seek review of the decision to reject the application for the Visa. 

6.At the hearing Carol was assisted by her friend Doreen McQueen, and the Respondent was represented by Mr. Mark Steele. 

7.The documents placed before the Tribunal reveal that:

(a)  Carol was born Carol Ann Ridley, at Coledale, New South Wales, on 6 April 1946.  She is an Australian citizen.  She became Carol Morton when she married Robert John Morton on 6 November 1963 (later divorced on 9 May 1969).  She became Carol Hall on 15 September 1978 when she married Kenneth Anthony Hall (later divorced on 28 July 2000). 

(b)  Mohammed is a citizen of Pakistan having been born in Pakistan in December 1967.  He married Rehana in Gujrat, Pakistan on 2 April 1993.  There are three daughters of the marriage, born respectively on 16 January 1994, 10 September 1996 and 5 February 2002.

8.Carol gave evidence to the Tribunal to the following effect:

(a) She is now 58 years of age.

(b) She has various physical disabilities and receives a social security disability support pension.

(c)  She “met” Mohammed by way of internet contact in October 2001.  Thereafter they contacted each other by way of email, ordinary mail and by telephone.  Mohammed can not speak, read or write English.  He had a friend translate and type for him.

(d)  Mohammed initially told Carol that he had a wife and children.

(e)  In April 2002, Mohammed told Carol that his wife had left him. 

(f)  In June 2002, Mohammed told Carol that his wife had died.  He later told Carol that his brother-in-law (Rehana’s brother) had told him to pick up the death certificate, and he had done so. 

(g)  In September 2002, Mohammed asked Carol to marry her.  She accepted.

(h)  She told Mohammed that she did not have the funds to travel to Pakistan.

(i)  Mohammed told her that he had borrowed money to purchase an airline ticked for her to travel to Pakistan to get married.

(j)  She left Australia on 12 November 2002 and arrived in Islamabad airport on 13 November 2002.  It was the first time that she had ever been on a plane.  She was met at the airport by Mohammed and a man he introduced as his cousin.  The three of them went to a motel in Islamabad where they had a lengthy conversation.  Mohammed’s cousin left the motel.  Carol and Mohammed stayed at the motel.

(k)  On 14 November 2002 Carol and Mohammed were married in Rawalpindi City.  She noted that the Marriage Certificate (which was registered on 15 November 2002) contained a number of questions and answers which had been filled in.  In particular, she noted question 21 and the answer thereto:

“If the bridegroom has a wife already.  If so, has he got permission vide rules: No 8, 10 of the Muslim family ordinance of 1961, to have a second wife from arbitrary Council”.

The answer filled in was, “First wife has already been expired”. 

(l)  Mohammed’s cousin had returned to act as witness to the marriage.

(m)  After the ceremony Carol and Mohammed went back to the hotel where they had lunch and were alone again.  That night they both went to dinner together.  Mohammed stayed at the hotel with Carol overnight. 

(n)  On the morning of 16 November 2002, Carol awoke feeling extremely ill.  She began to vomit and suffered diarrhoea.  She suspected that she was suffering from food poisoning.  Mohammed took her to a local hospital where she was given “several bottle of glucose”.  She remained in hospital until the following day, 17 November.  Mohammed had remained by her side over night. 

(o)  On 17 November, Mohammed took Carol to the home of one of his cousins in Gujrat.  He did not take her to his own home. 

(p)  Carol decided that she wanted to return to Australia because of her illness.  She believed that her doctor in Australia would be better able to care for her. 

(q)  Mohammed arranged for a friend who owned a taxi to take Carol to Lahore Airport.  She departed from Pakistan on 18 November 2002, and has not seen Mohammed since. 

(r)  Since November 2002, Carol and Mohammed have kept up contact by the internet, phone and letters, through the interpreter.  She is “in love” with Mohammed, and if necessary will move to Pakistan to be with him. 

(s)  Carol would be “devastated” if she had to leave Australia to be with Mohammed because she has a daughter and a grandson in Australia. 

(t)  It was not until 10 December 2003 that she discovered that Mohammed’s wife, Rehana, was alive, when Mohammed told her:

(i)       He had wanted to tell Carol of his discovery that Rehana was alive, but put it off because he was afraid Carol would “leave him”;

(ii)       Government authorities had been to his home and discovered Rehana there, but Rehana was at the home solely to visit the children and to collect her belongings. 

(u)  She had produced a number of hand written letters to the Respondent, said to have been sent by her to Mohammed over the last few years.  She denied that the letters had been manufactured as self-serving evidence for the purpose of applying for the Visa.  She gave evidence that they were genuine. 

9.Mohammed Tanveer gave evidence by telephone from Gujrat, with the aid of an interpreter in the hearing room.  He affirmed most of what Carol had said in her evidence.  He also said that:

(a)  He did not know Rehana was alive when he married Carol.

(b)  Rehana had left his house in April 2002.

(c)  He has since divorced Rehana, and the divorce papers he has produced to the Respondent are genuine.

(d)  He denied the allegation that he had paid money to Carol to marry him.

(e)  He did not arrange for his children to go to Rehana’s funeral because he though her family would kill him.

10.On 17 March 2003, Mohammed sent a bundle of documents to the Australian High Commission, Islamabad.  Among those documents was a “Death Certificate” in relation to Rehana.  The details on the certificate show that:

(a)  Rehana died on 16 June 2002.

(b)  She died from a heart attack.

(c)  She had been ill for two days before she died.

(d)  She died at Gali No 8, Sardar Pura Gujrat (which is also the residential address of Mohammed).

(e)  The name of the doctor or hospital who gave the last treatment to the deceased was “Aziz Bhahi Hospital, Gujrat”.

(f)  The death was notified to the authorities on 1 February 2003 and registered on 3 February 2003.

11.The section 37 documents include (at folios 148, 149) a National Identity Card Form for the Government of Pakistan’s National Data Base and Registration Authority, registered by Mohammed on 19 June 2002, in which he declared the composition of his family, specifically including his new daughter Sitwat who was born on 5 February 2002.  Rehana is named on the form as the mother of the children of the family.  There is no notification on the form to the authorities that Rehana had died three days earlier. 

12.On 9 December 2003, two compliance officers of the Australian High Commission Islamabad visited the home of Mohammed in Gujrat.  The following statement by one of the officers, Rajab Ali Sheikh was tendered in evidence. 

“On 19 February 2003 a Spouse (Provisional) visa application was received at the Australian High Commission.  The Applicant was named as Mohammed Tanveer, born on 12 December 1967.  DIMIA received documentary evidence of the death of his ex-wife name Ms Rehana Tanveer.  This death had been registered with Union Council #46, Sardar Pura, Tehsil and District District Gujrat.  DIMIA initiated an investigation relating to Mr Tanveer’s application for a Spouse (Provisional) Visa and the death certificate of his former wife, Rehana Tanveer.

On 9 December 2003, I, Rajab Ali Sheikh, together with Amjad Ali, Visa Officer-Family Section, employed by the High Commission since 2002, visited Union Council No 46 Sardar Pura, Tehsil and District Gujrat at around 2.30pm.  We met the Area (local) Nazim Mr Bashir, who showed us the books where the death of Rehana Tanveer, wife of Mohammed Tanveer, was registered as per the orders of the District Health Officer.  The late entry of the death record was not authorised to be registered until the District Health Officer (DHO) ordered it to be registered.

Normally the DHO permits registration on the basis of documentary evidence provided at the time of requesting registration.  The DHO does not actually confirm the authenticity of supporting documents for registration of birth/death, but accepts them at face value.  We took a digital photo image of the register for our file records. 

I decided to make a surprise visit to Mr Tanveer’s residence to see who was living there apart from his parents.  While we looking for the Tanveer residence, we learnt from locals in the area that Mr Tanveer’s father, Abdul Rasheed, owned a ready-made garment shop nearby.  We also learnt that Mr Tanveer was living in the same house with his spouse and three children.  We visited Mr Abdul Rasheed’s shop and I asked him if I could see Mr Tanveer and his wife Rehana.  He advised that Mr Tanveer was currently in Gujranwala, so I asked Mr Rasheed if I could accompany him to visit his residence and talk to Mr Tanveer’s wife Rehana (local culture does not permit males to visit any house if no male is inside).

On the way to his house Amjad and I introduced ourselves and learnt that Rehana was at home with her children.  We entered his house with Mr Rasheed and ask him to call Rehana to talk to her.  He hesitated to call Tanveer’s spouse and her children, but confirmed that she was alive and living in the same house with her husband, Mr Tanveer.  Instead of Rehana, a sister-in-law, Shomaila, appeared. We introduced ourselves and said we had information that Rehana was living in the same house with her husband, Mr Tanveer.  She started to ask us not to disclose the fact that Mr Tanveer’s supposedly deceased wife was alive and living in the house.

Shomaila confirmed that Carol Ann and Mr Tanveer met on the internet.  Mr Tanveer bought her an air ticket and provided her with funds to visit Pakistan.  She married Mr Tanveer of her own free will and the marriage proposal was initiated by Carol Ann.   Shomaila said that Carol Ann advised Mr Tanveer on how to migrate and she also promised to help the family.  At his stage, Rehana, wife of Mr Tanveer appeared.  Rehana and Mr Tanveer have three children.  Sitwat is the youngest and stays at home.  The other two children of Rehana and Mr Tanveer are at school in Sardar Pura, Gujrat. 

I took digital images of the National Identity Cards of Mr Tanveer's parents, his wife Rehana and sister-in-law Shomaila.  I also took another digital image of all members in the same house for the file record.”

13.The photographs referred to in Mr Sheikh’s statement appear at folios 293 to 297 of the section 37 statement.  Rehana’s identification card was issued on 18 November 2001, and has apparently not been updated or changed since it was issued.

14.On 22 December 2003, Mr Sheikh and Mr Ali interviewed Mohammed and asked him to explain the presence of his wife at his home.  Mohammed told Mr Sheikh:

(a)He divorced Rehana on 7 July 2003 because of “misunderstandings” with each other.

(b)He had problems with Rehana’s family; they did not want him to divorce her so they lodged an application for the registration of her death with the local council.

(c)When he discovered that his wife was alive he divorced her.

(d)On the day of the visit by Mr Sheikh and Mr Ali to his home, Rehana was there to collect her baggage from the house.

15.The Tribunal also heard evidence by telephone (the same number as that used by Mohammed), through an interpreter, from Abdul Rashid (Mohammed’s father) and from Shomaila Yusof (Mohammed’s sister-in-law).

16.Mr. Rashid said that he remembered the day on which the compliance officers visited his shop in December 2003.  He said that:

(a)The compliance officers introduced themselves and asked if Mohammed Tanveer was at his shop.

(b)He told the officers that Mohammed was not at his shop.

(c)He closed his shop and took the officers to Mohammed’s house.

(d)He told the officers that Rehana was at the house to collect her clothes and jewellery.

17.Mrs. Shomaila Yusof said that she is married to Mohammed’s brother and she and her family live in the same house as Mohammed.  She said that her husband had left Pakistan to live in the USA about three years ago.  She also said:

(a)She remembers the day when the two immigration officials came to the house with her father-in-law.

(b)They asked, “Where is Rehana?”  She told them that she did not know, and that Rehana had been divorced.

(c)When Rehana appeared, Shomaila told the immigration officials that Rehana had just come to get jewellery and clothes.  The immigration officials told Shomaila that she was lying.  She denied she was lying.

(d)The immigration officials took photos of Rehana and her child.

(e)Rehana had arrived at the house just before 2.30pm.

(f)The immigration officials asked a lot of questions and left at about 4.30pm.

(g)She did not say that Rehana was living there.

(h)Rehana left that evening.

(i)She heard about Rehana’s death about two years ago.

(j)She is not sure when she discovered that Rehana was in fact alive.

18.The bundle of letters referred to by Carol in her evidence (see paragraph 8(u) above), appear on their face to have been written by her to Mohammed from about December 2001 onwards.  They contain a lot of personal expressions of love, and indeed lust, which one would think may not have been appropriate when it is considered that the material had to be translated for Mohammed by a third party.  They also have a ring of contrived artificiality about them.  For example a letter dated 1 August (presumably in 2002) starts with:

“I was so happy when you called me to come on line.  I’m glad you are okay now.  When you ask me to be your girlfriend I was so happy I didn’t have to think, do you remember what I said, I told you yes I would as I feel something special with you, my darling”. 

I believe that in these days of easy access to the telephone and e-mail, it would be most unlikely that a person would go to the trouble of reinforcing an email exchange with a lengthy letter to be sent by ordinary “snail mail”.

I also take the point made by Mr Steele for the Respondent.  The letters produced by Carol show no signs of creases – they appear to have never been folded for the purpose of putting in an envelope.   

19.I do not accept that the letters are genuine.  I accept the submission of Mr. Steele that they have been produced for the purpose of manufacturing evidence.

20.It is clear that the so called death certificate of Rehana was a false document.  It is also clear that when Mohammed produced it to the Respondent he knew that the details on the document of place of death, cause of death, treating hospital and length of illness were all false, irrespective of whether or not he believed she was dead.

21.I do not accept that Mohammed believed at any time that Rehana was dead.  His actions in organising a marriage to an Australian with a view to migrating to Australia, do not appear to me to be those of a husband whose wife had just died and left him to care for three daughters, one of whom was a baby. 

22.I accept the evidence produced by Mr. Sheikh that on the day of his visit to Mohammed’s house in December 2003, Rehana was there with her child, Sitwat, and that she did not immediately come forward to identify herself to Mr. Sheikh, when one might expect her to do so if there was nothing to hide.  I also accept his evidence that both Mr. Rashid and Mrs. Shomaila Yusof confirmed to him that Rehana was living at the house with her husband.

23.I do not accept that Rehana would have left behind her clothing and jewellery, if she had indeed left her husband in April 2002.

24.I do not accept that it was an amazing co-incidence that the officers of the Australian High Commission should visit Mohammed’s house in Gujrat on the very day that Rehana was calling, after she had been away for over 18 months, to collect her clothes, jewellery and luggage.

25.I find, on balance, that Rehana did not leave her husband at any time relevant to this review.

26.I find that Mohammed, with the aid of Carol, either knowingly or unwittingly, has attempted to engineer an entry into Australia by means of fraud and deception and that the purported marriage in Rawalpindi on 14 November 2002 was a sham.

27.The delegate was correct in finding that Mohammed Tanveer is not a person of good character within the meaning of the Act and not a person to whom a Visa should be granted.

28.In my view, the exercise of any discretion in favour of Mohammed Tanveer is out of the question.  He has engaged in serious fraudulent conduct in an attempt to circumvent Australia’s immigration laws.  He has used Carol to do so.  She may or may not be “devastated” by the decision to refuse the Visa but there are no compassionate grounds put forward which would outweigh the seriousness of the Visa Applicant’s behaviour.

29.The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
B. Hitchcock, Personal Asst

Date/s of Hearing  22 September 2004       
Date of Decision  10 January 2005
Applicant   Mrs. Tanveer and Ms. McQueen
Solicitor for the Respondent      Mr. M. Steele, Blake Dawson Waldron