1711300 (Migration)
[2020] AATA 1832
•6 March 2020
1711300 (Migration) [2020] AATA 1832 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711300
MEMBER:Meena Sripathy
DATE:6 March 2020
PLACE OF DECISION: Sydney
DECISIONS: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 06 March 2020 at 12:03pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visas – Subclass 202 (Global Special Humanitarian) – incorrect answers in the visa application – expiry of Lebanese passport – Lebanese citizenship – previous visit to Australia – fear of arrest – physical assault – military service obligations in Syria – Assyrian Christians – contributions to the community – regional insecurity – impact of decision on children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101, 107, 109, 114, 140, 375A
Migration Regulations 1994 (Cth), rr 2.41, 2.43CASES
MHA v CSH18 [2019] FCAFC 80
MIAC v Khadgi (2010) 190 FCR 248Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [named], and sons, [Child A] and [Child B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.
At the commencement of the hearing the Tribunal discussed with the applicant that the Department’s advice that the relevant delegate who made the cancellation decision was not properly delegated at that time and the implications of this on the Tribunal’s scope and power of the Tribunal to review the decision. It explained that following a judgement of the Full Federal Court in MHA v CSH18 [2019] FCAFC 80, this issue has been resolved and the court has clarified that the Tribunal has jurisdiction and power to merits review a decision in these circumstances. On this basis the Tribunal conducted a merits review of the decision.
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
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.
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.
Notice of intention to consider cancellation under s.107
A notice of intention to consider cancellation (NOICC) was sent to the applicant on 18 December 2017. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa application. The notice provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect. Specifically the notice particularised the non-compliance as follows:
That he provided the following incorrect answers on his application for a Class XB Subclass 202 Special Global Humanitarian visa:
- His response to Q13 that his parents were living in Syria and were Syrian citizens
- His responses to Q25-27 regarding the country he feared returning to and why. He responded Syria because he owned and ran a small business in [Town 1], Syria and was arrested by Syrian security forces, was accused of being a member of the rebel forces, and was beaten and detained for 20 days. He was tortured and threatened with death if he did not provide information to the Syrian security forces. He claimed his house was destroyed and business was ransacked and he escaped from Syria as a result. At Q26 he claimed he left Syria [in] June 2012. He claimed to fear death upon return to Syria.
- At Q30 and 31 he claimed that he feared harm from the Syrian security forces who previously imprisoned him and that he cannot be safe in Syria.
- At Q5 of Form 80 he responded no to whether he has been known by any other names including different spellings of his name.
- At Q7 & 8 of Form 80 he stated that he has only ever held Syrian citizenship.
- At Q10 & 12 of form 80 he stated he had no current passport or travel document or ay previous ones.
- At Q18 of Form 80 he stated he lived in Syria from [year] until August 2014
- At Q20 he stated he worked in Syria from [year] to 2012.
- At Q36 he stated he had not been to Australia before.
- At Q45 he stated his father and mother were Syrian citizens and residing in Syria.
The NOICC sets out the evidence before the Department including:
- The applicant’s application for a Class XB Subclass 202 Special Global Humanitarian visa made [in] August 2013 and Form 80 Personal Particulars for assessment including character assessment.
- Application for a [Visitor] visa made by the applicant [in] October 2008, sponsored by his sister, using the name [applicant’s name variant].
- Documents submitted in support of the visitor visa application including, Lebanese passport [number] on which the applicant travelled to and departed Australia between [November] 2008 and [January] 2009; Family Extract of Civil Status showing applicant, his parents and sister and their respective birthplaces and dates of birth; employment letter dated 25 September 2008, relating to the applicant’s employment in Beirut for the past [number] years.
- Country information regarding decree No 5247/1994 regarding Lebanon’s code of nationality relating to a decree of nationalisation for foreigners residing permanently in Lebanon.
- Department records showing that the applicant’s parents were granted a [visitor] visa [in] January 2001 stating they were Lebanese citizens and entered and departed Australia between February and July 2001 using Lebanese passports. The applicant’s mother made [number] subsequent trips to Australia using a Lebanese passport.
The applicant responded to the notice on 10 January 2018 with the following information and supporting documents:
- That he was born in Lebanon and his wife was born in Syria, contrary to the delegate’s conclusions.
- That he and his family all hold Syrian passports and Syrian ID and suffered in Syria and that is why he was granted a humanitarian visa.
- The reason he responded that he had not been to Australia before at Q36 of Form 80 was because he understood that to be asking whether he had applied for migration to Australia previously.
- He has not lived in Lebanon since 1990 as concluded by the delegate because he did his military service in Syria from [specified year] to [year].
- As holders of Syrian citizenship, he is unable to return to Lebanon because he fears his sons [Child A] and [Child B] will be required to serve military service in Syria and will be detained and sent back to Syria to do that.
- People with Lebanese identity can lose it. He can provide evidence of this.
- He was working in [Town 1] Syria and can provide evidence about this employment and this area is now under the control of ISIS.
- He has personally visited Lebanon to visit a lawyer there who had compassion for him and his family. They are Assyrians from Syria, Christians and have suffered in the past until they came to Australia.
- His son [Child A] is employed and completing his apprenticeship and his son [Child B] is completing [grade] at school and the [other] children are in primary school. They are integrated with their family in the community.
- He did not personally complete the application for humanitarian visa and therefore any errors may be the result of misunderstanding of the questions.
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.
Evidence before the Tribunal
The Tribunal has before it Departmental files [three file numbers]. Certificates under s375A were issues in respect of each of the Department files. The Tribunal discussed the existence of the certificates with the applicant at hearing, gave him copies and invited his submissions. Ultimately, the Tribunal finds the certificates issued in respect of each of the files to be of questionable validity on the basis that they do not provide valid public interest reasons. The certificate in respect of [one file number] does not specify accurately what information in the folios would be contrary to the public interest to disclose. To the extent the certificates issued in respect of files [the other file numbers] refer to documents that disclose the Department’s deliberative processes in considering cancellation processes the Tribunal finds these certificates are also invalid.
At the hearing the applicant provided the following evidence. He is presently living in [Suburb 1] with his wife and [children]. Another young woman is also living with them at present because she has nowhere else to live due to circumstances of domestic violence in her family. She is a friend of his son, [Child A], who asked the family to offer her refuge.
The applicant is working full time as [an Occupation 1]. He recently started his own business and employs one other person. His wife is not working. His eldest son [Child A] is completing the final year of his [apprenticeship]. His son [Child B] wanted to be [an Occupation 2] and commenced a course following school, but had to cease because of the cancellation of his visa. He has more recently been studying at [a college]. He has no permission to work and the applicant supports him financially. The youngest [children] attend primary school in [Suburb 1].
The applicant provided evidence about other family members. He has a sister who lives in Australia, and [specified family members] who live in [Country 1]. His sister migrated to Australia on a [specified] visa over two decades ago. His brothers [migrated] to [Country 1] through marriage. His parents obtained their [permanent residence there] about 4 years ago, after being sponsored by their sons 7 or 8 years ago.
The applicant arrived in Australia [in] July 2015. He had travelled to Australia previously in 2008 to visit his sister. He acknowledged that he travelled on that occasion on a Lebanese passport. He said he obtained Lebanese citizenship in 1995 through his parents. After this passport expired, he never applied for another one in Lebanon because he had no need for a passport. The only other country he travelled to was Syria, and he frequently travelled between Syria and Lebanon. At the time he applied for the visitor visa in 2008 he and his family lived in Syria. He acknowledged that he provided incorrect information in that application stating that he lived in Lebanon at that time with his family. When asked why, he said he would not have been granted a visitor visa at that time if he disclosed their residence in Syria. He worked at this time for a man in Lebanon [named] who agreed to help him get this visa. He was working on and off for this man from 1996 until his death in 2010 or 2011.
The applicant acknowledged that his parents also travelled to Australia previously. His mother visited many times on a visitor visa and his father on one occasion. They travelled here on their Lebanese passports. They were living in Lebanon since 1990 until they left for [Country 1] recently. His mother had a property she owned in Beirut.
The Tribunal discussed with the applicant his Subclass 202 application. He was born in Beirut in [year] but his parents were living in Syria at that time. His mother came to Lebanon only for the childbirth and they returned to Syria when he was around one month old. He lived in various addresses in Syria until 2012, moving from his wife’s village [named] to Damascus in around 2006 to get better work. They left Syria for Lebanon in 2012 after the war started because of the incident that occurred at that time. He recounted that he had a [business] selling [products] in [Town 1]. One night a group of Syrian Intelligence officers came barging at the door and took him away for 15 days. They accused him of being anti-government and questioned him at length. Eventually they released him and apologised. When asked why they came for him, he said he believed it was because outside his [business] young people would gather giving an impression that they were anti-government and they imputed that he was also. After this incident, when he returned home, his house and whole area had been ransacked. His family had gone to his [relative’s] place. He realised he could no longer stay in Syria and brought the family to Lebanon. They remained there until they came to Australia in 2015.
The Tribunal discussed with the applicant the NOICC issued on 6 February 2017. It went through the alleged incorrect information he provided in his Form 842 and Form 80. The applicant acknowledged that he incorrectly stated in his Form 842 that his parents resided in Syria when they were in fact living in Lebanon. He also acknowledged that he incorrectly omitted reference to his Lebanese citizenship at question 8 in his Form 80. However he denied the response in question 10 was incorrect as he did not hold a current passport from either country at that time. The Tribunal asked the applicant about the Syrian passports he brought with him to the Tribunal. He said he applied for these at the Syrian Embassy in Beirut in 2015. They were granted and they used the passport to return to Syria and re-enter Lebanon because he was told to do this. When questioned further about the reasons for obtaining the Syrian passport at that time he admitted it was for the purposes of securing his Australian visa only. He needed it to depart Lebanon since he could not depart on a Lebanese passport because he had not mentioned it in his application. The applicant also acknowledged that he provided an incorrect answer at question 36 by answering no to whether he has been to Australia before.
The Tribunal put to the applicant in light of his evidence it would appear there has been non compliance in the manner described in the NOICC. He agreed that he provided incorrect answers to questions about his nationality, past travel to Australia and parents residence but denies that the information provided about why and when he left Syria was incorrect.
The Tribunal noted that for the ground of cancellation to be made out only one instance of non compliance is necessary and therefore his admission regarding the issue of his Lebanese nationality is sufficient to make out the ground. The Tribunal would now consider the matters relating to the exercise of its discretion to cancel the visa.
The applicant provided evidence relating to the exercise of the discretion, details of which are discussed under the relevant headings below.
Evidence from witnesses
The Tribunal heard oral evidence from the applicant’s wife, and sons, [Child B] and [Child A].
[Child B] told the Tribunal he worked very hard through high school and had a dream and ambition to become [an Occupation 2]. After finishing Year 12 he was offered, and started, a course at [University 1] in [Subject 1], but after two months he had to discontinue because of his visa situation. He was unable to afford the fees for the course and he has no permission to work. The witness was clearly, and genuinely visibly distressed and emotional giving this evidence. He said despite this he did not want to stop trying and he has been attending [a college] and doing courses. He has completed a [course] and has applied for [another] course. The situation has also affected him mentally. He saw counsellors at school and has seen a psychologist.
He told the Tribunal if he returns to Lebanon he is afraid of dying. Every day when he thinks about this he feels very depressed. He cannot imagine functioning without his family. He is only [age] years old now. He was [age range] when he left Lebanon and he does not know how he will cope if he returned there.
[Child A] told the Tribunal that he is presently studying and working as an apprentice [occupation]. He studied intensive English when he arrived in Australia. He has been able to continue with his apprenticeship despite the cancellation but he finds it difficult to get the work experience placements that he needs because of his visa situation. The cancellation decision has affected him greatly because he has started his life here and wants to be able to continue it. He would like to help his father in his new business. He is afraid if he is returned to Lebanon he may be called up to serve in the military in Syria.
[Child A] told the Tribunal about the young woman friend who is living with their family. He met her and wanted to see her but she told him she had problems at home. Her [relative] threatened her at work and she had to get an AVO. She had nowhere to live so he asked his father if she could stay with them. The Tribunal asked if she would be prepared to provide a statement. He said he will ask her to do that.
The applicant’s wife, [named] told the Tribunal that this cancellation decision has been like having a gun at her head. She has felt a lot of pressure and stress because of it. At times it has been overwhelming and she has felt dizzy and short of breath. It led her to be taken to hospital a couple of times. She has discussed it with her doctor who told her it was stress related. The Tribunal asked her if she was aware of what led to the cancellation decision. She said they did what they did for the sake of the children. She confirmed that she has proposed her sister ([details of relationship]) for the same kind of visa because she is in the same situation as they were in. She is aware they were not granted the visa and they eventually went to [Country 2].
Following the hearing the following further evidence was provided by the applicant in support of his case:
·Letter from [Ms A], who has been residing in their home;
·Letter from [a community organisation];
·Letter from [another community organisation];
·Letter from applicant’s employee, [named];
·Letter from [name], applicant’s neighbour;
·Letter from [another name], applicant’s neighbour;
·Letter from [a named doctor], applicant’s wife’s GP and Hospital Discharge Summary relating to the applicant’s wife, dated December 2019;
·Education documents relating to applicant’s son, [Child A]
·Education documents, including letter of offer from [University 1] for [Subject 1 course] and his application to discontinue the course [in] April 2019, relating to applicant’s son, [Child B];
·Evidence relating to applicant’s business and qualifications in Australia, including Contractor’s licence, [business name].
·Copies of [Country 1 passport] of [name], applicant’s brother, issued [in] 2014, and [Country 1] permanent residence cards relating to applicant’s parents, [named], indicating their residence since [October] 2012. The cards are valid to [dates in] 2022 respectively.
Was there non-compliance as described in the s.107 notice?
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 s101 as described in paragraph 9 above.
The applicant acknowledged at the hearing that he is a Lebanese citizen and omitted reference to this in his application. He also acknowledged to the Tribunal that he provided incorrect information about whether he had been to Australia and about his parents residence in Syria.
On the basis of the applicant’s admissions and the evidence before it including copies of his Lebanese passport and family extract of civil status record provided with his visitor visa application, the Tribunal finds that the applicant provided incorrect answers to question 13 of Form 842 and questions 8, 36 and 45 of Form 80 lodged with his Subclass 202 application.
For these reasons it finds there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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 Tribunal below discusses the prescribed circumstances as set out in r.2.41 of the Regulations and the applicant’s evidence and submissions relating to these matters provided at and following the hearing.
· the correct information
The correct information is that the applicant is, and was at the time of making the application, a Lebanese citizen. He had previously travelled to Australia on his Lebanese passport. His parents were residing in Lebanon as Lebanese citizens.
· the content of the genuine document (if any)
Not applicable as there is no allegation of a bogus document.
· 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 interview report relating to the application indicates that there were no long term settlement options to remain permanently in Lebanon because of no access to sustainable, secure legal employment and permanent residency. Therefore it appears the decision to grant the visa was based on the incorrect information about the applicant’s true legal status in Lebanon. The applicant acknowledged that he was aware that if he provided the correct information the application would have been refused. He sought to explain that he did it to save his sons from the prospect of being sent to Syria for military service, and possible death (see further below) and that his sole motivation was to save his sons.
The applicant’s knowledge of the favourable consequence for his visa application of providing the incorrect information, leads the Tribunal to give this factor significant weight in favour of cancellation of the visa.
· the circumstances in which the non-compliance occurred
While acknowledging that he failed to declare his Lebanese citizenship the applicant told the Tribunal he did so for the sake of his two sons who were aged [ages] at the time. He was fearful that on turning 18 years they would be sent back from Lebanon to do military service in Syria. He claimed that despite being Lebanese citizens, because of relations between Lebanon and Syria it was a regular occurrence that Syrian nationals are returned for military service and he wanted to save his sons from this fate. He knew that if he mentioned his Lebanese citizenship in the visa application it would be refused. The Tribunal noted that it was not aware of independent country information that supports his claim that Syrian nationals were being returned from Lebanon to undertake military service, and invited the applicant to provide evidence for his claim. It notes he has not provided any further information in support of this claim.
On information considered by the Tribunal, it accepts that dual citizenship is possible in Lebanon and Syria and that Syrians who were granted Lebanese citizenship under Lebanon’s Decree 5247 of 1994 retained their Syrian nationality.[1] The applicant’s parents’ family register document, provided by him to the Department with his visitor visa application, indicates that they were registered under this decree.[2] The Tribunal looked for, but was unable to find, independent information supporting the applicant’s claim that Syrians are returned from Lebanon to undertake military service.[3] Neither has he produced any such supporting information.
[1] Lebanon and the Arab Uprisings: In the eye of the hurricane', Felsch, M & Wahlisch, M (eds), Routledge, 2016, p.94, 20200122161930, 'COUNTRY REPORT: LEBANON', Melkar el-Khoury and Thibaut Jaulin, EUDO, September 2012, p.15, CIS24641
[2] See folios 36, 38 in [file number]
[3] A 2014 Department of Immigration’s Country of Origin Information Section Q& A response indicates no reports were found of Syrian forces (or pro-Assad supporters) targeting people in Lebanon who have been called up for Syrian national service nor were there any reports found of Syrians who have been called up for national service being forced to return to Syria : Lebanon: LBN43055 – Syrian Forces in northern Lebanon – People Imputed as Pro-Assad in northern Lebanon’, 14 February 2014, CR0596BBF332, 2; 5
However the Tribunal has considered, and accepts, country information that indicates military service is compulsory in Syria for all men and that since the outbreak of civil war in 2011 there has been a significant reduction in the Syrian army’s standing army and a large number of men have deserted or failed to attend for service. Consequently, there is information that indicates the authorities have invested considerable resources into finding and arresting deserters or evaders.[4] Given the background context of the ongoing critical situation in Syria and country information about the crisis facing the Syrian army, the Tribunal accepts as credible and plausible the applicant may have been genuinely fearful about the possible consequence of forced military conscription for his sons in Syria due to their Syrian citizenship, even if there was not necessarily an objective basis for it. It also accepts that the applicant and his family are Assyrian Christians, a vulnerable minority particularly in Syria, but also a minority Christian group in Lebanon. For this reason the Tribunal is prepared to give this factor some weight against cancellation of the visa.
·the present circumstances of the visa holder
[4] 'Syria: Reactions against deserters and draft evaders', Landinfo, 3 January 2018, p.5, CIS7B8394110564
The applicant gave evidence that since being in Australia he has been working consistently as [an Occupation 1] and supporting his family. He has recently established his own [service] business and employs a worker full time. His eldest son is completing an apprenticeship. His second son wanted to become [an Occupation 2] in this country. He studied hard and was offered a place at [University 1] in a [Subject 1] course, but had to discontinue after these cancellation proceedings commenced because he lost his visa status. The applicant told the Tribunal his wife is involved in local churches. They have very good relations with their neighbours and help them as much as they can. They are currently offering refuge to a young woman who had nowhere else to live.
In their evidence to the Tribunal, the applicant’s sons [Child A] and [Child B] gave direct evidence about their current circumstances and activities. Following the hearing, documentary evidence supporting this was provided. A support letter was also provided from [Ms A], the young woman given refuge by the applicant’s family, supporting the claims made at the hearing.
The Tribunal accepts on the basis of this evidence that the applicant has, since arriving in Australia, worked and contributed to the community and has been a provider for his family, and it considers that these circumstances weigh against cancelling the visa.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant told the Tribunal he proposed a [relative] for the same visa a year or so after he arrived, because [that relative] was in a similar situation to him. However his [relative] told the Department upfront that he was a Lebanese citizen and his application was refused on this basis. Therefore no visa was granted as a result of his proposal. The applicant told the Tribunal this [relative] is now residing in [Country 2]. His wife’s evidence to the Tribunal confirmed [the details of the family relationship] and she indicated she was the proposer for that application.
The applicant’s actions encouraging another family member to potentially mislead the Department in the same manner is a significant factor in favour of cancelling the visa.
·any other instances of non-compliance by the visa holder known to the Minister
The applicant acknowledged to the Tribunal that he provided incorrect information in his 2008 visitor visa application by failing to declare his residency and citizenship in Syria at that time, and declaring his family resided in Lebanon. He said he did this because he did not think he would get a visa if he disclosed his Syrian citizenship. He expressed his remorse for providing incorrect information at that time.
The Tribunal considers this history of non-compliance weighs in favour of cancellation.
·the time that has elapsed since the non-compliance
Almost 7 years has passed since the non-compliance now, which amounts to a significant amount of time in the context of the applicant’s young family and their lives. The Tribunal accepts that the applicant’s children, especially the two youngest, have spent the formative years of their lives in Australia, having arrived here aged [ages]. The Tribunal observed that the impact of the cancellation has been especially hard on the applicant’s [specified children], indicated by the genuine distress and emotion demonstrated by these family members in particular at the hearing. The Tribunal recognises the significance and consequences of the cancellation on all the family members, particularly given the passage of time since their arrival in Australia. Evidence in support of the extent of their integration into the community was provided, in the form of support letters from an employee, neighbours and community leaders.
The Tribunal considers the passage of significant time and the family’s integration into the community are factors that weigh against cancelling the visa.
·any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any other breaches of the law by the applicant since the non-compliance. This weighs against cancellation.
·any contribution made by the holder to the community.
The applicant referred to his stable and consistent employment since coming to Australia. He now has his own business and employs a young Australian citizen, who relies on this employment to support his own family. The applicant and his family are involved in their local church and community. They have made strong connections in their neighbourhood and are well regarding members of the local community. Following the hearing, various letters were provided to support these claims of community involvement and integration.
The Tribunal has considered the applicant’s evidence and accepts the applicant and his family have integrated into the community and have provided evidence that they are well supported. The Tribunal gives this factor weight against cancellation.
Other relevant considerations
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, including non refoulement, hardship to the applicant and any other relevant matters.
Consequential cancellations under s.140
The Tribunal notes the consequential cancellations under s.140 results in the applicant’s five dependent family members’ visas being cancelled by operation of law. None of these family members have a right of review of the cancellation and therefore the impact of the cancellation on them and their circumstances is left only to be considered in the context of the exercise of the discretion relating to the applicant’s cancellation decision.[5]
[5] A decision to set aside a cancellation has the effect, under s114 of the Act, never to have been cancelled and therefore there is no basis for a consequential cancellation under s140 of relevant family members.
The Tribunal has carefully considered the impact of cancellation and circumstances of the applicant’s family members, including his minor children, his wife and his now two young adult sons, and accepts that the impact on them is significant and adverse. The children have been here for the formative years of their lives, are established at school and in the community and are, not surprisingly, highly distressed about the prospects of being returned to Lebanon in light of current conditions there and in neighbouring Syria. As dual citizens of Syria and Lebanon, the adult sons are also understandably concerned about the prospects of being called up for military service in Syria.
The applicant’s provision of incorrect and misleading information in his application is a serious offence that he committed with full knowledge to achieve favourable visa outcomes for his family. The Tribunal considers this a grave matter and in no way condones what he did, which had the effect of taking limited places in the humanitarian program made available for the urgent needs of a substantial number of displaced Syrian refugees. However it also considers it unfair to blame his children for his actions, however misguided. Therefore, the Tribunal gives significant weight in its consideration of the discretion whether to cancel, of the impact of the decision on the children and their future.
The Tribunal has also considered current conditions in Lebanon and Syria, and the situation for Assyrian Christians in the region, which remains dire. In 2015, ISIS attacked the Khabour Valley, leading to the influx of hundreds of families into Lebanon,[6] they are now once again under threat of a Turkish intervention.[7] It has also considered independent information indicating that there have been challenges to the legality of Decree 5247/1994 since 2003, leading to withdrawals of nationality from a number of naturalised individuals, and a 2017 report stating the decree was currently under legal scrutiny.[8] Information also suggests naturalised Lebanese citizens may be vulnerable to losing their nationality on the basis of absence abroad by operation of law under Article 3 of the Lebanese Withdrawal of Nationality Law of 1962.[9]
[6] Dylan Collins, 11 April 2015, Al Jazeera, Fleeing ISIL, Assyrian refugees mark Easter in Lebanon Matthew Petti, The National Interest, October 11 2019, Christian Communities in Northeast Syria Are the Target of a Turkish Attack for the First Time in Over a Century
[8] ‘Invisible Citizens: Humiliation and a life in the shadows. A legal and policy study of statelessness in Lebanon', Frontiers Ruwad Association, 2011, pp.72-74, CISD9559B12577; 'COUNTRY REPORT: LEBANON', Melkar el-Khoury and Thibaut Jaulin, EUDO Citizenship Observatory, September 2012, pp.11-12, CIS24641 ; Manufacturing Precarious Nationality in Lebanon: The Naturalization Decree of 1994', The Legal Agenda, 08 February 2016, 20200122163553, 'Second-Class Citizenship: Lebanese Women Fight to Pass Nationality to Children and Spouses', Century Foundation (United States), 04 April 2017, 20200122164242
[9] Article 3 of the Lebanese Withdrawal of Nationality Law of 1962 states (in English translation):
Every foreigner naturalized Lebanese shall loose this nationality if he absents himself from Lebanon five consecutive years: Withdrawal of Nationality 1962', Lebanese Republic, 09 October 1962, CISEDB50AD7507
The Tribunal notes the applicant’s evidence that he has no remaining close family members in Lebanon, with his [siblings] and parents now residing in [Country 1], and his sister in Australia.
The Tribunal has carefully considered and weighed all of the above factors and evidence. In doing so, it concludes the factors against cancelling, on balance, outweigh those in favor of cancelling and the Tribunal therefore concludes the visa should not be cancelled.
In its assessment the Tribunal acknowledges that the applicant clearly gave incorrect information which led to the grant of the visas and these factors weigh strongly in favour of cancellation in this case, as does his subsequent involvement in a proposal of his wife’s sister’s application on the same basis (even though those visas were not eventually granted). However against these factors, the Tribunal has considered, and given weight, to the applicant’s explanation of the circumstances of the non compliance, being his genuinely held concern to protect his sons from Syrian military conscription obligations. It has also given substantial weight to the family’s present circumstances, contributions and integration in the community and the hardship of cancellation on the children of the family who have spent formative years of their lives here and cannot reasonably be expected to pay such a heavy price for the misguided and wrongful actions of their father. Apart from this non compliance, there is no other evidence of non compliance or breaches of the law by the applicant. Finally the Tribunal acknowledges, and takes account of, the circumstances of ongoing volatility and insecurity in the region that would face the applicants in the reasonably foreseeable future, as members of a persecuted minority.
For all the above reasons, 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.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.
The Tribunal has no jurisdiction with respect to the other applicant. However, it notes, as a consequence of setting aside the decision under s109 to cancel the visa, the visa is taken never to have been cancelled and therefore there is no basis for a consequential cancellation under s140 of relevant family members.
Meena Sripathy
MemberATTACHMENT – 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.
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Immigration
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Procedural Fairness
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