Ul Islam (Migration)

[2018] AATA 1797

Ul Islam (Migration) [2018] AATA 1797 (20 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Noor Ul Islam

CASE NUMBER:  1724292

DIBP REFERENCE(S):  BCC2016/3297244 OSF2012/000663

MEMBER:Kira Raif

DATE:20 April 2018

PLACE OF DECISION:  Melbourne

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 20 April 2018 at 11:37am

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Incorrect information in application – Whether the Notice of Intention to Consider Cancellation was valid – Notice complied with statutory requirements – Whether there was non-compliance as described in s. 107 notice – Failure to update Department of change in circumstance – Where applicant became engaged - Whether the visa should be cancelled – Decision to grant visa based wholly or partly on incorrect information – Lack of awareness of visa requirements does not justify non-compliance – Where cancellation would cause significant hardship – Best interests of the child – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 48A, 104, 107, 109
Migration Regulations 1994 (Cth), rr 1.12, 2.41, Schedule 2, cls 309.311, 309.321

CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan born in June 1987. He was granted a Partner visa as a member of the family unit of his father in July 2014 and entered Australia in August 2014. In September 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Act because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided his response and his visa was cancelled on 4 October 2017. The applicant seeks review of that decision.

3. The applicant appeared before the Tribunal on 20 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father. The applicant was represented in relation to the review by his registered migration agent. 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.

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

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

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 104.

10. The applicant provided to the Tribunal  a copy of the primary decision record, which contains the following information.

    a.The applicant made the application for the Partner visa on 11 September 2012 on the basis of being a dependent on Mubashir Ahmed, who was the primary visa applicant. The applicant claimed to be a member of the family unit of the primary visa applicant for the purpose of cl. 309.311 and cl. 309.321.

    b.The applicant was granted the Class BC Partner visa on 22 July 2014 on the basis of being a dependent of Mubashir Ahmed. The applicant entered Australia and was immigration cleared on 16 August 2014.

    c.On 22 December 2014 Ms Qurrat Ul Ain made an application for a Prospective Marriage visa with the applicant as her sponsor.

    d.Ms Ain stated on the application form that

    i.She was engaged and intended to be married on 14 June 2015.

    ii.She and the sponsor (the applicant in the present application) were engaged on 12 June 2014.

    iii.She and the sponsor committed to a shared life together to the exclusion of all others on 12 June 2014.

    iv.The information she provided was complete and correct in every detail.

    e.Ms Ain’s application was accompanied by the sponsorship form in which the applicant provided the following information

    i.He was engaged and intended to be married on 14 June 2014

    ii.He and the visa applicant committed to a shared life together to the exclusion of all others on 12 June 2014. 

    iii.That the information he has given on the form was complete, correct and up to date.

    f.    Also included in Ms Ain’s visa application was a declaration made by the applicant. In that declaration the applicant outlined the history of his relationship with Ms Ain. The applicant refers to their activities and their love for each other and their decision to get engaged. The applicant stated that on 21 June 2014 he and his fiancé committed to a shard life together with consent of their families when they were in Karachi.

11. The delegate notes that the definition of the ‘member of the family unit’ in r. 1.12 relevantly provides that a child must be a dependent child other than a child who is engaged to be married or has a spouse or de facto partner.

12. The applicant provided a written response to the NOICC and additional evidence to the Tribunal. In his submission to the delegate of 26 September 2017 the applicant conceded that he did not inform the Department about the change in his circumstances, namely his engagement with Ms Ain. The applicant claims he was not aware that he was required to advise the Department and is remorseful for not doing so. The applicant claims that under his cultural and religious norms, a person continues to be a member of the family unit until marriage and the family needs to consent to any contact with his prospective partner. The applicant claims that it was not until the Nikkah occurs that the marriage is formalised and in this case this was done in October 2016 and the wedding ceremony took place in October 2016. The applicant claims that he believed he remained a member of the family unit until the Nikkah.

13. The applicant provided a written submission to the Tribunal on 19 April, the day before the Tribunal hearing. No explanation is offered by the applicant’s representative for the late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters.

14. In his submission to the Tribunal the applicant concedes that he failed to advise the Department about his engagement and expressed remorse for doing so. The applicant states that he was unaware of his obligation and considered himself to be a member of the family unit prior to the marriage in October 2016.

15. The Tribunal is mindful, however, that the applicant’s application was made under the Australian immigration laws and not the applicant’s own cultural and religious norms. The relevant definition relating to being a member of the family unit in r. 1.12 expressly excludes children who are engaged. Whatever the applicant believed his status to be, he was required to comply with the requirements of the Australia migration legislation and, given the questions on the application form concerning his marital / engagement status and the requirement to provide true and up to date information, the Tribunal does not accept that the applicant was entirely unaware of the need to inform the Department about the changes in his circumstances.

16. The Tribunal finds, having regard to the information the applicant and Ms Ain gave in her Prospective Marriage visa application, that the applicant and Ms Ain were engaged in June 2014 before the applicant was immigration cleared. The Tribunal finds that upon engagement, the applicant’s circumstances changed so that an answer to a question on the applicant’s application form, concerning his relationship status, became incorrect in the new circumstance. The Tribunal find that the applicant did not inform an officer in writing of the new circumstance and of the correct answer. The Tribunal finds that the applicant failed to comply with s. 104(1) of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

17. 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).

18. 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

19. The correct information is that before the applicant was immigration cleared, he had been engaged to Ms Ain.

20. In his written response to the NOICC and his submission to the Tribunal, the applicant claims that he continued to be dependent on his father and, culturally, he was considered to be part of the father’s family until the formal marriage in late 2016. The Tribunal accepts that this may have been the case, but the Tribunal is mindful that the definition of being a member of the family unit is not limited to dependence but also takes account of one’s relationship status. It expressly refers to engagement, rather than formal marriage.

    The content of the genuine document (if any)

21. This is not relevant in this case.

    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

22. As noted elsewhere, the applicant was granted the permanent visa on the basis of being a member of the family unit of his father and part of that assessment required the applicant to satisfy the decision-maker that he was not engaged to be married. The applicant states in his submission to the Tribunal that he was financially supported by his parents for basic needs and he did not commence working until the end of 2015. The Tribunal is mindful, however, that the definition of ‘member of the family unit’ is not limited to financial dependence and establishing financial dependence for basic needs would not have been sufficient for the applicant to be granted the visa. Significantly, being engaged would have rendered the applicant incapable of meeting the definition of dependent child in r. 1.12, whether or not the applicant remained dependent on his parents. That would indicate that the applicant would not have been granted the visa if his engagement was disclosed.

23. The Tribunal finds that the information to grant the visa or immigration clear the applicant was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

24. The applicant claims that he was not involved in the visa process and relied on his parents for visa issues and it is plausible that he was unaware of the requirement to notify the Department about the changes in his circumstances. The applicant claims he did not intend to mislead. In his submission to the Tribunal the applicant objects to the delegate’s findings and notes that the visa process is complex and that he relied on others to assist him with the forms. The applicant told the Tribunal that the engagement was not a religious engagement and did not change anything in their lifestyle, so he did not feel he had to inform the Department because nothing practically had changed. The applicant also said that they did not get any legal advice when completing the forms and their English was limited and he did realise he had to inform.

25. However, as noted above, the Tribunal notes that the applicant did sign a form in which he confirmed that the provided information was correct and up to date. That included information about his relationship status. That should have put the applicant on notice that if the information was no longer correct and up to date, there as an obligation to inform the Department. The Tribunal also notes that Question 95 of the application form requires the applicant to inform the Department about the changes in his circumstances, so the applicant was made aware of his obligation to inform. The applicant was also capable of making enquiries as to what his obligations may be.

26. The Tribunal has formed the view that the applicant should have been aware of his obligations to inform, given the specific question on the form about his marital status and a requirement on the form to inform about the changes in his circumstances. Further, the Tribunal does not consider that the claimed lack of knowledge of the law justifies non-compliance with it.

    The present circumstances of the visa holder

27. The applicant has been living in Australia since August 2014 and in that period, he has made two trips to Pakistan, one for his wedding and one for the birth of his child. He states in his submission to the delegate that he has completed an English course, a Certificate III in Warehousing Operations and obtained a forklift license and subsequently enrolled in the Certificate IV in Justice. He has been working for a warehouse and for Uber and he also worked at a BP Service station and has been saving money to provide for his wife and daughter. The applicant told the Tribunal that he works for Uber on a full-time basis and has other jobs from time to time. The applicant claims that his employment indicates his commitment to contribute to the Australian economy, although the Tribunal is mindful that it may equally be indicative of his commitment to financially support his family. Nevertheless, the Tribunal accepts that the applicant considers Australia to be his home.

28. The applicant states that his parents live with him and he provides them with support. The applicant told the Tribunal that one of his siblings is working and the other is studying but because he is the eldest child, he thinks it is his responsibility to take care of the family. The Tribunal accepts that the applicant has purchased a property and contributes to the mortgage repayments as well as the financial support for his parents. The Tribunal accepts that there are likely to be financial implications if the visa is cancelled and the applicant cannot work in Australia.

29. The applicant states that his mother is unwell and he is required to provide support and care to his mother. The applicant states that his mother would face severe detriment if her son, who provides her with emotional support, cannot remain in Australia and he presented medical evidence to the Tribunal. He also has a strong relationship with father and siblings and also provides support to them. The Tribunal is prepared to accept that evidence but the Tribunal is not convinced that emotional support can only be provided if the parties reside under the same roof. Whether the applicant resides in Australia or any other country, the Tribunal is not satisfied that such support need to cease as the applicant will be able to maintain regular contact with his family by electronic means. The Tribunal is prepared to accept that the applicant has a close relationship with his family and both provides and receives support to his parents and siblings and the Tribunal accepts that hardship may be caused to the entire family if the visa is cancelled but the Tribunal does not consider that any emotional support that is provided would no longer be available.

30. The applicant refers to the family having a difficult life in Pakistan as they belonged to a religious minority. The Tribunal is prepared to accept that evidence for the purpose of this review.

31. The applicant states that he has been living away from his wife since the marriage in October 2016. His wife and child belong to the Ahmadiyya Muslim community and continue to reside in Pakistan and he has concerns for their safety and well-being. The Tribunal accepts that if the applicant’s visa is cancelled, he cannot continue to sponsor his partner and child, although the Tribunal is also mindful that if the applicant was to depart Australia, he would be reunited with his partner and child.

32. The applicant claims that even if he were to apply for, and be granted the Protection visa, it will take time and the process will be very stressful. The applicant states that in the meantime he will be unable to visit or look after his family or bring his wife and child to Australia.

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

33. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations.

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

34. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

35. The applicant was immigration cleared in August 2014. Close to four years have passed since the non-compliance.

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

36. The Tribunal is not aware of any beaches of the law since the non-compliance although the applicant referred to traffic fines.

    Any contribution made by the holder to the community.

37. The applicant refers to his employment in Australia, family and community links. He claims that his integration and assimilation into the Australian community weighs strongly in favour of not cancelling the visa.

38. The applicant claims that religion is important to him and he has taken part in community work through his religious community the applicant provided evidence of his various voluntary activities. The applicant told the Tribunal that he holds various positions in the mosque and is involved in a number of voluntary activities. The Tribunal accepts that evidence and accepts that the applicant has contributed to the community.  

1. 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.

   Whether there are mandatory legal consequences

2. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

3. The applicant told the Tribunal that he had sponsored his partner and child but the application was refused and subsequently remitted by the Tribunal and at present, remains with the Department. The Tribunal acknowledges that the applicant cannot act as a sponsor for his partner and child if the visa remains cancelled.

   Whether there would be consequential cancellations under s.140

4. There are no persons in Australia whose visas may be cancelled under s. 140 of the Act.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

5. The applicant claims he is a member of the Ahmadiyya community and he refers to the persecution of Ahmadiyya in Pakistan. He claims he was compelled to return to Pakistan for his marriage and to support his wife for the birth of the child but the security situation continued to worsen and he had to limit his movements. The applicant provided country reports relating to the situation in Pakistan. The Tribunal accepts the applicant’s evidence, for the purpose of this review, that he is a member of the Ahmadiyya community and, again for the purpose of this review, the Tribunal is prepared to accept that there may be persecution of the Ahmadiyya in Pakistan. 

6. Despite this, the Tribunal does not consider that the applicant will be refouled if his visa is cancelled because the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. The Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148 that cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. Thus, whether or not his present visa remains cancelled, the applicant’s claims for Australia’s protection can be considered through a separate process. For that reason, the Tribunal is not satisfied Australia’s non-refoulement obligations would be breached as a result of the visa being cancelled.

7. The applicant argues that if his visa is cancelled, he would be unable to sponsor his wife and child and because they are members of a religious minority, they will be unable to come to Australia and will be subjected to persecution. The applicant states that he has no family support in Pakistan, as his only sister plans to migrate to another country, and there is nobody available to support his wife and child. The Tribunal is mindful, however, that it is not the purpose of a Partner to remove those at risk of harm from their country of residence. There are other visas designed for this purpose. The Tribunal accepts the applicant’s evidence that if the visa is cancelled, he can no longer act as a sponsor and the applicant’s evidence is that even if he is granted a protection visa, that process may take a long time and in the meantime he cannot travel to Pakistan and visit his wife and child.

8. With respect to the best interests of his child, the applicant states that he only saw his daughter when she was born and she is now eight months old. If he does not have the visa, he cannot bring the daughter to Australia. The Tribunal accepts that it may be in the best interests of the child to be with both of her parents and while normally the Tribunal would form the view that the family unit can reside anywhere and such presence need not be in Australia, in the circumstances of this case, the Tribunal accepts that the family may be subjected to harm as a result of their religious beliefs in Pakistan. In the circumstances of this case, the Tribunal accepts that it may be in the best interests of the child to settle with family in Australia.

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

9. The applicant argues that his parents are Australian citizens or residents and most of his siblings reside in Australia. The applicant states that there are strong family connections and his family would suffer ‘severe detriment’ if his visa is cancelled. The applicant states that his mother’s health may be affected if his visa remains cancelled. The applicant provided to the Tribunal a medical certificate relating to his mother indicating her health has deteriorated as a result of her son’s visa situation and the Tribunal accepts that evidence. The Tribunal is prepared to accept that the applicant has strong family ties in Australia and accepts that the family would prefer to remain together and the Tribunal accepts the applicant has taken considerable steps to settle in Australia.

10. It is not apparent, though, that even if the applicant’s visa is cancelled, he intends to depart Australia, given that he has options to make applications for other visas. The Tribunal acknowledges that there can be no guarantee that such a visa would be granted and the Tribunal accepts that a considerable degree of hardship may be caused to the applicant and his family as a result of the visa being cancelled.

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant failed to comply with s. 104 of the Act by failing to inform about the changes in circumstances and there are grounds for cancelling his visa. However, the Tribunal accepts the applicant’s evidence that he did not consider the engagement to be of practical significance because it did not in any way change his relationship with Ms Ain and it was a mere formality. The couple did not live together and their relationship had not practically changed until the formal marriage in 2016. The Tribunal accepts that the applicant genuinely did not recognise the need to inform the Department about the changes in his circumstances, although as noted above, the Tribunal does consider it was the applicant’s responsibility to be cognisant of his legal obligations.

12. The Tribunal places significant weight that as a result of the engagement, the applicant would no longer meet the definition of the ‘member of the family unit’ and may not have been entitled to the grant of the visa. In the Tribunal’s view, that is a very significant consideration in favour of the cancellation.

13. However, there are other considerations that are important here. The Tribunal accepts the evidence that the applicant is settled in Australia, that he supports his parents and considers himself responsible to support his family as he is the eldest son. The Tribunal acknowledges the medical evidence and accepts that the applicant’s family has been adversely affected as a result of this process. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation because the applicant will be able to seek another visa but the Tribunal acknowledges that it may be in the best interests of the applicant’s child to be removed from Pakistan.

14. Significantly, the Tribunal considers that there is a real likelihood that the applicant would be granted another visa, given his religious beliefs and personal circumstances but accepts the applicant’s evidence that the process is a lengthy one and that he would be unable to visit or sponsor his wife and child while that application is being processed. These matters would cause significant hardship to the family and little purpose would be served by the cancellation if the applicant is ultimately permitted to remain in Australia.

15. 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. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

16. 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