1711932 (Refugee)

[2020] AATA 1798

1711932 (Refugee) [2020] AATA 1798 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711932

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Rodger Shanahan

DATE:19 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 19 February 2020 at 10:48am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – multiple return visits to Iraq – imputed political opinion – supplier to Coalition forces – attacks from Islamic extremists – death certificate for wife – undisclosed children in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 46, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

9. The visa holder entered Australia as an illegal maritime arrival [in] October 2010 claiming to be an Iraqi seeking asylum in Australia.  He made a request for a refugee status assessment on 21 November 2010 and on 5 May 2011 he applied for an Independent Merits Review.  In support of the application the visa holder provided a Statutory Declaration dated 21 November 2010.

10. On 4 January 2011, the visa holder lodged an “Application for a Protection (Class XA) visa”, which incorporated forms 866B and 866C. In response to several questions listed within form 866C, he provided the following information:

11. Question 42 asks: “Why did you leave that country”.  The visa holder answered: “Please see my attached statement”

12. Question 43 asks: “What do you fear may happen to you if you go back to that country?”  The visa holder answered: “Please see my attached statement”

13. Question 44 asks: “Who do you think may harm/mistreat you if you go back?”  The visa holder answered: “Please see my attached statement”

14. Question 45 asks: “Why do you think this will happen to you if you go back?”  The visa holder answered: “Please see my attached statement”

15. Question 46 asks: Do you think the authorities of that country can and will protect you if you go back? If not, why not?  The visa holder answered: “Please see my attached statement”

16. At question 65, the visa holder signed the declaration which states:  “I do solemnly declare that the information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.”

17. The visa holder provided his statement within which he outlined his protection claims as follows:

    a.The visa holder arrived in Australia [in] August 2010 to visit his daughter who lives in [city in Australia]. He left behind his wife and [other children]. The visa holder’s wife died in a terrorist attack in his house [in] September 2010.  After the 2003 invasion the visa holder became a supplier of [products] to the occupying [coalition] Forces in 2007. As a result he encountered threats and hostility from neighbours and armed Islamist extremists.

    b.He was regarded by the fundamentalist Islamists as an infidel and a non-believer who has assisted the [coalition forces] and refused to obey fundamentalist Islamic teachings.  He belonged to a group of Iraqis who have collaborated with coalition forces which has led the extremists to consider him to be opposed to their beliefs and an enemy collaborator

18. Based on this information and meeting all other relevant criteria the visa holder was granted a class XA subclass 866 Protection visa on 31 March 2011 due to a well-founded fear of persecution in Iraq from Islamist extremists.

19. On 30 May 2011, the visa holder was issued a Titre de Voyage [number 1] by the Australian government.  [In] August 2011 the visa holder used Titre de Voyage [number 1] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.

20. His Iraqi passport [number 2] issued to him [in] 2010, confirms that he entered Iraq [in] August 2011, four months after the grant of his Protection visa. Iraqi passport [number 2], confirms that he departed Iraq [in] December 2011.  The visa holder returned to Australia [the next day], using his Titre de Voyage number [number 2]. The incoming passenger card he completed on re-entering Australia indicates that the country where he spent most time abroad is Iraq.  Between [August] 2011 and [December] 2011 the visa holder spent approximately 4 months in Iraq.

21. [In] February 2012, the visa holder used Titre de Voyage [number 1] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.  The visa holder’s Iraqi passport [number 2] confirms that he entered Iraq on [the next day] and departed Iraq [in] May 2012.  The visa holder returned to Australia on [the next day], using his Titre de Voyage [number 1]. The incoming passenger card he completed on re-entering Australia indicates that the country where he spent most time abroad is Iraq.

22. [In] August 2012, the visa holder used Titre de Voyage [number 1] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.  The visa holder’s Iraqi passport [number 2] confirms that he entered Iraq on [the next day] and departed Iraq [in] September 2012. This is also confirmed by him in his outgoing and incoming passenger cards.  The visa holder returned to Australia [days later] using his Titre de Voyage [number 1].

23. [In] January 2013, the visa holder used Titre de Voyage [number 3] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.  The visa holder’s Iraqi passport [number 2] confirms that he entered Iraq on [date] January 2013 and departed Iraq [in] April 2013. This is also confirmed by him in his outgoing and incoming passenger cards.  The visa holder returned to Australia on [date] April 2013 using his Titre de Voyage number [number 3].

24. [In] March 2015, the visa holder used Titre de Voyage [number 4] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.  The visa holder returned to Australia [in] April 2015 using his Titre de Voyage [number 4]. The incoming passenger card he completed on re-entering Australia indicates that the country where he spent most time abroad is Iraq.

25. [In] October 2015, the visa holder used Titre de Voyage [number 4] to depart Australia. The outgoing passenger card he completed indicates that the country where he will spend most time abroad is Iraq.  The visa holder returned to Australia [in] March 2016 using his Titre de Voyage [number 4]. The incoming passenger card he completed on re-entering Australia indicates that the country where he spent most time abroad is Iraq.

26. The evidence above indicates that since being granted a protection visa on 31 March 2011 the visa holder has travelled to Iraq on six occasions, using his Iraqi passport to enter and depart that country. The first occasion he entered Iraq was [in] August 2011 which was four months after being granted a protection visa.  He has spent approximately 18 months in Iraq since being granted a protection visa on 24 January 2011.

27. Taking into account his voluntary travel back to Iraq, totalling approximately 18 months from 2011 to 2016, without apparent issue or impediment, suggests the visa holder’s claims provided on the Protection visa application, relating to holding an adverse profile and fear of the armed Islamist extremists that he would face harm if he were to return to Iraq, is incorrect.

28. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 in the following respects regarding his application for a protection visa (detailed discussion of the issues and findings relating to the applicant’s responses follows):

29. At question 41 of the Form 866, where the visa holder claimed to fear returning to Iraq, this is incorrect as he has voluntarily returned to Iraq on six occasions totalling a period of 18 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application nor was he of adverse interest to the [named] tribe.

30. At question 42 of the Form 866, as referred to in a separate statement, that the visa holder was forced to leave Iraq because he faced certain death from Islamic militants due to a profile as a collaborator with [coalition] forces is incorrect as he has voluntarily returned to Iraq, the first travel shortly after the grant of his protection visa, on six occasions totalling a period of 18 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.

31. At question 43 of the Form 866, as referred to in a separate statement, that he feared being killed by Islamic militants if he returned to Iraq is incorrect as he has voluntarily returned to Iraq on three occasions totalling a period of 18 months without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.

32. At question 44 of the Form 866, as referred to in a separate statement, that the visa holder risked facing serious harm from Islamic militants if he returned to Iraq, is incorrect as he has returned to Iraq on six occasions totalling a period of 18 months, without incident. This suggests that he did not hold the claimed adverse profile he stated in his protection visa application.

33. At question 45 of the Form 866, as referred to in a separate statement, where the visa holder claimed it was too dangerous for him to return to Iraq as he would have a real chance of being killed due to his profile as a ‘collaborator’ with [coalition] forces, is incorrect as he has returned to Iraq on six occasions totalling a period of 18 months, without incident. I note that the visa holder travelled back to Iraq shortly after the grant of his visa (four months). The visa holder’s return to Iraq under an identity he claimed is of adverse interest, without issue suggests that he did not hold the claimed adverse profile he stated in his protection visa application.

34. At question 46 of the Form 866, as referred to in a separate statement, where the visa holder noted that shortly after arriving in Australia a terrorist group broke into his house in Iraq and killed his wife which implied that the Iraqi government cannot protect him, is incorrect as he has returned to Iraq on six occasions totalling a period of 18 months without incident.

    Discussion at Hearing

35. The visa holder’s adviser noted that in relation to a letter sent by the Tribunal prior to the hearing requesting information about individuals who may be his undeclared sons and allegedly deceased wife  and that gave the visa holder until 4 February to reply, the visa holder had been advised not to answer any questions about what had been put to him in the letter or about any issues relating to that question, as he wished to avail himself of the time given to him (that is, until 4 February).

36. It was put to him that the visa holder had been asked this question previously and had not answered it, so the Tribunal would be asking the visa holder why he had not previously answered this question.  The adviser said that the visa holder would not be answering that question and the adviser was told that the Tribunal may or may not draw an adverse conclusion from that refusal to answer.  The Tribunal would ask the visa holder why he had previously failed to answer the same question, but would wait until the 4 February for the answer to the question asked in the letter.

37. The visa holder was asked if he was known by any other names and he said that he wasn’t – his name was not recorded differently on any Iraqi government documentation.  The information on pages 1 and 2 of the ‘Notice of Intention to Consider Cancellation’ (essentially questions 42 to 46 and 65 of his visa application) was put to the visa holder  He was asked if all the statements he had made were true and correct and were at the time he made them and he said that they were.

38. He was asked what serious harm that he feared when he left Iraq in 2010 and he said that when he was in Iraq he worked with the [coalition] forces in his shop in [location] and used to speak English.  Asked if this was at [location 1], he claimed that the [coalition] personnel received a letter saying they should not receive any [such products] from Iraqis but they would come to him and said they hated the [products] provided to them ([named forces]) and wanted him to [supply] to them – this was in 2003-2007 he wasn’t sure which but they would always come to his house as they liked his house.

39. When he left Iraq in 2010 they were striking his building and his family and his family would tell him not to return home as there was fighting there.  He believed that they were going to kill him and they killed his wife and he had no one left in Iraq.  One [relative] who had been there had died.  The Muslims were going to kill him because they knew he had been recruited by the [Coalition].  Asked who would kill him, he said they were the Muslims who aligned with Iran.  Asked to be more specific, he claimed they were [group name].

40. It was put to him that after receiving an Australian travel document he had travelled to Iraq on six occasions; he was asked why he returned six times despite claiming to fear being killed by [this group].  He claimed he only went o Erbil when he went to Iraq, not Baghdad except for the last time when he sold his property and was told he had to be there to sign the document.  He was asked to confirm that the last time was the only time he went to Baghdad and had never landed in Erbil and then travelled to Baghdad.  He said that he hadn’t because he was scared.

41. Asked why he went to Erbil, he said that he spoke to his [specified family members] when they came to him at Erbil.  Asked why he couldn’t meet them, outside Iraq, he said it was difficult and no one told him he couldn’t travel to Iraq.  He was asked if he got his family to travel to Erbil from [March] to [April] and he said he couldn’t remember but he went to Baghdad.  It was put to him that this was his fifth visit to Iraq and he had said that he only went to Baghdad on the last (sixth) occasion.  He said he couldn’t remember the date but he only went to Baghdad once.

42. It was put to him that it was very dangerous to expose his [family members] to a dangerous land route from Baghdad to Erbil during periods when Islamic State for example were very active in parts of Iraq.  He was asked why he didn’t meet them in Iran or Dubai for example and preferred to expose them to the danger of traveling by car.  He claimed that [the relatives] were skilled drivers.  They only drove between 2010 and 2014 when Islamic State weren’t strong – it was too dangerous after. 

43. It was put to him that he was also in Iraq from [April] to [March] 2015 when Islamic State were very active and he claimed that his [family members] didn’t come to see him in Erbil as it was too dangerous.  Asked what he was doing in Erbil during this period he claimed that he had many friendships in Erbil and his sister ([a specified] citizen).  Asked again what he was doing in Erbil, he claimed that he was close to them and spoke to them over the phone and went there for his house and his work.  It was put to him that his house was in Baghdad and he said it was much easier to manage form Erbil. 

44. It was put to him that he could speak to his children and manage his house from Australia and was asked again what he was doing in Erbil.  He claimed his sister and friends were in Erbil.  He also got his friends in Baghdad to come to Erbil and would talk to him about property prices and information.  He was asked why they would take such a risk to talk about things that could have been spoken about over the phone. 

45. He claimed that his [relative] who died had [children] and they were close to his heart and he wouldn’t expose them to danger and he knew his [relatives] were skilled drivers and they checked the roads were safe before coming.  He was asked why he didn’t meet them outside the country rather than running the risk of them traveling by a land route.  He claimed that [Country 1] was very expensive and it was very difficult for them to get a visa as they only began giving visas to Iraqis last year. 

46. It was put to him that Iran was close, cheap, easy to get to and the member believed was visa-free.  He claimed that when he came to Australia the country would never approve of Iran so he didn’t go.  It was put to him that the member travelled to Iran and Australians could get visas on arrival so it was strange that he thought Australia wouldn’t approve.

47. He was advised about s 424AA and it was put to him that one of his flight passenger cards for an exit from Australia [in] March 2015 said that he would spend most time away in Iraq – Baghdad and this was inconsistent with his claim that he had only ever been to Baghdad on the last trip to Iraq (2016).  It could raise issues to do with his credibility and also call into question the number of times he had actually been to Baghdad when he went to Iraq.

48. The adviser asked if he could consult with the visa holder, but the latter continued to answer.  The visa holder said he had only been to Baghdad once to sign the document but he couldn’t remember the date.  He was asked why he had to go back to sign a property deal given he had a [relative] who was a [professional] and his sister (a [professional]) in Erbil and could have gotten a power of attorney and allowed them to sign on his behalf.  He claimed that no one could sell their house except him and everyone who had sold their house from Australia had lost their money or gotten much less than it was worth.

1. He was asked to confirm that one could get power of attorney in Iraq and he said that he could trust no one in Iraq to sell his house and even he got less than it was worth.  It was put to him that he trusted his sister and [specified family members] with the lives of his [other relatives] and yet he wouldn’t give them power of attorney.  He claimed that his sister would be too scared to go to Baghdad and he didn’t trust [the other relative] in financial matters. 

2. It was put to him that it was strange he would trust his skilled [professional] [relative] to drive his [family members] through dangerous territory but not entrust him with a power-of-attorney.  This appeared strange.  He claimed they were good people but he could not trust them with financial matters.  It was put to him that the visa holder could conduct the negotiations – the power-of-attorney holder simply needed to sign the document.  He claimed that all Iraqis who used the power of attorney had lost a lot of money.

3. Asked why he came to Australia in 2010, he claimed his daughter told him to come as it was safe here and people treated each other humanely.  Asked if there was a specific reason, he claimed that she was scared for his safety.  Asked if there was a medical reason for him to come he said there wasn’t.  He was asked if she invited her mother or [siblings] and he claimed that [another relative] was invited here.  Asked again if she had a medical procedure she brought him here for, he claimed that she had a miscarriage and brought him here as she wasn’t well. 

4. It was put to him that it would be normal for a woman who had undergone a miscarriage to seek support from their mother who had experience of pregnancy, or her sisters for emotional support.  It seemed very strange that she would want her father to come in preference to a close female relative like her mother or a sister.  The adviser interjected and told the visa holder not to answer that question.  The visa holder did not respond when he was asked on several occasions as to why he would not answer the question put to him.

5. It was put to him under s 424AA that in his protection visa interview he was asked why his daughter needed her father here, and he claimed that her mother was sick and was unable to come.  In his statement of 20 March 2010 he said that her mother refused to leave Iraq because of the presence of her [other children] in Iraq and her fear of terrorist attack occurring in Iraq.  There was an inconsistency in what he had put in his statement and what he had told the Department as to the reason why his wife did not come to Australia to look after her daughter after she had a miscarriage and this could go to issues of his credibility and adverse conclusions about his motivations coming to Australia may be drawn.

6. The adviser told the visa holder that he should ask for more time and not to answer the question.  The visa holder said he didn’t know the question and it was repeated to him.  He claimed that he was [age] and was [age] when he came to Australia.  He claimed that he had never ever lied about this issue and he forgot because of his age.  It was put to him that his statement was 10 years ago and his interview nine years ago so he wasn’t [age] when he gave these answers. 

7. He said that in Iraq since October 2019 there had been killing.  He was asked to answer the question put to him and he asked if the Tribunal was going to send back [an age] year old as this wasn’t humane.  He was asked whether he was going to answer the question put to him and he claimed that he didn’t give two different answers.

8. It was put to him that in his statement he claimed that he used to provide [products] for 2,000 soldiers and that this was a lot of soldiers to [supply].  He was asked if he had a shop in [location 1] and he agreed that he did.  It was put to him that the member had been to [location 1] on several occasions during his military service and couldn’t recall an Iraqi contractor providing [products] for 2,000 personnel as [these products] were provided in [contracted services], and it was implausible that his [products] was preferred because of fears held by the coalition that the [local products] may be [sabotaged].  This claim appeared implausible to the member based on his personal experience.  He was asked which 2,000 people he [supplied] and where they were.

9. He claimed that the total soldiers was 2,000 but he didn’t [supply] this amount of [products] as many were outside on duty.  The soldiers were told not to [purchase] from Iraqis but they would disobey the order and [use products discreetly].  [Details deleted].

10. Asked about the photos he had provided and if they related to the ferocious battle in 2007 that he had referred to, he said they did.  It was put to him that based on the member’s personal experience of operational service and familiarity with battle damage assessment, the photos looked nothing like the aftermath of battle between [coalition] forces and armed groups on his roof.  Even if it was a [coalition] foot patrol engaged, there would have been HE rounds used – the photos looked nothing like a ferocious battle had occurred. 

11. He claimed that in one instance the [coalition] soldiers had come to their building suspecting that people on the top of the roof were firing at them and they broke doors had a look on the roof but there wasn’t anyone there.  It was put to him that his statement claimed there was a ferocious battle involving armed groups on his roof.  He swore that he was telling the truth and would bring all the photos to show the truth.

12. Under s 424AA it was put to him that he was previously given information that his wife was not dead and that she was living in Australia under the name [Alias A] and two sons [named] he had not mentioned who had lived in the same Baghdad and [Australian] addresses as him.  There were concerns that his wife was not dead and he had two sons that he had never mentioned previously.  This was raised by the AAT to him and he had said that he would reply by 4 February as requested. 

13. He had also been asked to respond to these concerns by the Department but had failed to do so.  His inability to respond to the Department’s concerns previously could adversely impact on his credibility.  He asked for more time and was asked why he required more time to answer given that it was a very straightforward question.  He said that he needed more time to respond and was asked why he needed more time given he had previously been asked this question but did not provide a response to the Department. 

14. He claimed that his sons when they came were under age – very young.  This was why he had not mentioned them and they didn’t mention him.  He had come here as a refugee.  He was asked why he never responded to the Department when they asked the question and he claimed that when he spoke to the Department they had a different case to his so he didn’t want to mention them.

15. It was also put to him that the Tribunal had to take into account the circumstances in which the non-compliance occurred.  He was asked if worked in Australia and said he wasn’t and that he had never worked in Australia.  He received the pension.  Asked what Centrelink benefits he was receiving, he said he didn’t know.  He was asked if he had advised Centrelink of his property and business holdings in Iraq and he said he hadn’t.  When asked why, he claimed that it had nothing to do with what he had in Iraq. 

16. Asked if his business and property in Iraq was producing income, he claimed that he was.  He said he was in debt so all of his income went to repay this debt.  Asked about the profit from the sale of the property, he claimed that he started a business with his sister in Erbil 2012.  It was put to him that he didn’t sell the property until 2016 and he said that his sister started the company and he joined after he sold the house.  In 2019 they lost money.  Asked if he told Centrelink about the property, its sale and the investment in the new business he said they didn’t.  Asked if he enquired from Centrelink whether his income would impact on the money he was given by the Australian government, he claimed that he never did but he never made any profit.

17. He was asked why, if it was so dangerous in Iraq and his house had been attacked that he was happy to leave his wife in Iraq.  He claimed that she didn’t stay at home but stayed with her sister or her family.  It was put to him that she was killed in their house and asked to confirm this.  The adviser told the applicant not to answer this as it would be covered by the 4 February response but it was put to the applicant that this was a different question to that asked in the Tribunal’s letter and that if he didn’t answer then the Tribunal may draw an adverse conclusion from his failure to respond.

18. It was put to the applicant that according to his statement his wife was killed in their house and the adviser told the applicant not to answer this question.  The applicant remained mute and would not answer the question put to him.  He was then asked why he left his wife and children in Iraq if it was so dangerous situation and his adviser told him not to answer the question.  He failed to answer the question.

19. The applicant was told that he had been sent a copy of the ITAO report and that the Department wasn’t satisfied that he would not have a real chance of suffering significant harm if he were returned to Iraq and was asked if he had any comments regarding this and he said he had none.  Asked if he disagreed with the letter he then asked what was written in the letter, the adviser said that it wasn’t certain that he had seen the letter.  He claimed that [Adviser A] had previously handled the file and he had no response on file.

20. The applicant was then told that the Department believed that there was not a real chance that he would suffer significant harm if he was returned to Iraq and he said he disagreed with this.  Asked why he disagreed with this, he claimed that one only needed to see on the news what happened top people in Iraq.  No one was safe.  Asked why he in particular would be harmed, he claimed that Islamic groups knew about him and as soon as he arrived they would kill him.  It was put to him that it had been 10 years since he left, he had a few shops in [location 1] and no indication he had collaborated and was asked why they would harm him as he didn’t appear to have a profile.

21. He claimed they knew him really well.  He had no one there – he only had a daughter and she had died.  It was put to him that country information indicated the prevalence of fraudulent documents in Iraq and the Tribunal would have to consider whether the death certificates of his wife and daughter were valid documents.  For example his wife’s death certificate indicated she was killed by a terrorist attack which appeared strange for an autopsy which would be expected to only note the cause of death (gunshot wound, heart attack for example).  He claimed that in Iraq they didn’t use the same rules and conventions.

22. Under s 4242AA it was put to him that in an April 2016 statement he made in response to a Notification of Intention to Cancel Visa he claimed he and his wife travelled to Erbil where it was safe and there were no militias. He claimed he didn’t recall this statement. He claimed that he never wrote a statement in 2016, and he was asked who wrote it.  It was put to him there was a covering letter from [Adviser A] and he was told that the question would be put to him and that if he believed that a response had been given in his name without him knowing about it then the Tribunal would expect the appropriate action to be taken by the applicant against [Adviser A].

23. It was put to him that the statement said he and his wife went to Erbil and that when he came to Australia his wife went to Baghdad to live in their house.  It was put to him that he had claimed his wife didn’t stay at their house but moved around which was inconsistent with this statement and he had previously claimed it was too dangerous to be in Baghdad yet when he came to Australia his wife immediately returned to the very house in Baghdad that he claimed had been attacked previously.

24. The applicant claimed the writing was wrong and he never made the statement.  He claimed that it was correct for 2006 but not that she went back in 2016.  It was put to him that if he had never made this statement then it was a serious accusation against [Adviser A] and the Tribunal expected this to be followed through.  He claimed that he didn’t accuse [Adviser A] of being fraudulent but that what the Tribunal said was incorrect.  He was asked why he claimed this was incorrect because they occurred in 2006 not 2016.  It was put to him that he had left Iraq for Australia in 2010, not 2006. It was put to him that she had returned to Baghdad when he left for Australia (in 2010) when he said it was very dangerous.   He claimed that she couldn’t stay in Erbil a long time and had to go to her house.  That’s what one did in Iraq, stay in your house until it was not safe and then move around.

    Analysis

25. Overall, I found the applicant to lack credibility as a witness.  I found that he has variously fabricated the death of his wife and failed to declare the existence of two sons who have entered Australia, and embellished and fabricated his relationship with [coalition] forces during their occupation of Iraq.  This, along with the implausibility and inconsistency of other aspects of his actions with respect to returning to Iraq all mean that I did not find him to be a reliable, credible or truthful witness.

26. A number of issues emerged from the hearing, and it is best to summarise them under some sub-headings:

    a.Fabrication of wife’s death and existence of undeclared sons.  During the visa cancellation process, he was asked to respond to adverse information that he had two sons who had entered Australia ([names and alias]) and that his wife had entered and was living in Australia with him under the name [Alias A] (folio 140-42).  Despite being given the opportunity to respond to these concerns he failed to do so.

    b.As part of the Tribunal hearing the applicant was again given the opportunity by letter to address concerns that his wife was alive and that she and two sons were currently living in Australia.  He was also asked to bring the three people in question to the Tribunal the Tribunal hearing as witnesses along with all the documentation relating to their visa/citizenship.

    c.The applicant generally refused to answer questions relating to this issue on advice of his counsel, who said that a response would be given in accordance with the Tribunal letter’s requested date (4 February).  The response (folio 120), when received again failed to address these concerns.  I do note though that during the hearing the applicant did state that his sons came to Australia ‘when they were very young’  but they had different claims so he never mentioned them.  Given the applicant’s unwillingness to answer straightforward questions about his wife and sons, and his admission that he had sons in Australia, I am satisfied that he has not been truthful regarding his family composition. 

    d.I have taken into account the death certificate he provided that he claimed proved his wife was dead.  It is a photocopy, country information[1] indicates that fraudulent documents are commonly and cheaply available in Iraq and it still doesn’t explain why he has refused to answer questions relating to his relationship with [Alias A] with whom he shared common residential address(es).

    [1] DFAT Country Information Report – Iraq, 9 October 2018

    e.Because it will be relevant later on in this finding, I also do not accept that the applicant’s daughter who remains in Iraq has died.  He has provided some medical test reports that show nothing untoward (folios 96-105) and then a photocopy of a death certificate.  Given the country information previously noted regarding the prevalence of fraudulent documents in Iraq and the willingness of the applicant to fraudulently claim his wife has died on the basis of a fake death certificate, I am satisfied that he has fabricated his daughter’s death. 

    f.Embellished and Fabricated Role in Assisting Coalition Forces and Interest from Islamist Groups.  Although he has only given three photocopied letters of appreciation that refer to a generic ‘[name]’ or ‘[name] shop’ from some [coalition] units based [near location 1] I am willing to accept that he may have operated a small concession at [location 1] in Baghdad.  I do not accept that he used to supply [products] from [Baghdad] for more than 2,000 soldiers because they couldn’t have [these products] from anyone other than the applicant out of fear of being [sabotaged] (folio 64).  The member visited [Location 1] several times between 2005-07 and his claim to bring in [products] for 2,000 personnel (or even several hundred) from [Baghdad] completely lacks credibility.  [Details deleted.].[2]

    [2] [Deleted.]

    g.Given the security situation in Baghdad during the period in question and his minor contact with [coalition] forces [near location 1] I also find it implausible that [coalition] soldiers and officers would regularly enter his house in Baghdad to sit with him and his family and that Iranian-backed militias came to know about this.  Again there is no photographic evidence that would support such a claim, nor any reason why they couldn’t talk to him while he was at [location 1] rather than raise his profile by entering his house with three or four armoured vehicles standing watch outside.

    h.I also do not accept that there was any ‘ferocious bloody battle’ between [Coalition]/Iraqi forces and armed groups that had taken up positions on the roof of his residential building.  This relies on his credibility as a witness which I have found to be lacking, and photos (folios 1-3) that I lend little weight to.  Given 26 years in the army and four operational tours the member is experienced in the effect of battles on buildings.  The building in photo 1 is pristine with no evidence of any fighting; no shrapnel marks, no indication of the effects of high explosive (HE) impacts from grenades or other HE ammunition, nor is a single cartridge case from any weapon visible.  The holes in some glass panes (photos 2-3) could have been taken from anywhere and are not evidence of any pitched battle at the residence.

    i.Because he had only a minor role in running a shop [near a] coalition base in Baghdad and the fact I have not accepted that there were any visits of [coalition] forces to his house or any gun battle between insurgents and [Coalition]/Iraqi forces at his house it follows that he does not have a profile that has, or would elicit any interest in him on the part of Islamic militants.

    j.Willingness to leave wife in Iraq and return multiple times.  His travels to Australia and his wife’s to Baghdad are also inconsistent with the degree of danger he claimed he and his family were in.  To begin with it appears inconsistent that he and his wife would travel to Erbil for their safety (folio 64), that he would leave for Australia in August 2010 and then his wife would return to their house after he left (folio 65).  If they were safe in Erbil it makes no sense that his wife would then return alone to their house in Baghdad when the applicant left.

    k.There are also inconsistencies and implausibilities regarding his reason for coming to Australia.  If the daughter in Australia had miscarried it is reasonable to assume that she would seek emotional support from a close female relative who had gone through a pregnancy such as her mother, or even her sister.  Yet she allegedly chose her father to provide her with post-miscarriage emotional support.  It is equally implausible that if the situation was as dangerous as he claimed that the father would leave his wife behind to face these dangers alone.  Lastly, he was also inconsistent when answering why his wife didn’t travel to Australia to assist her daughter.  When he was asked in his protection visa interview he claimed that his wife was sick and unable to come but in his statement of March 2010 he claimed that she wouldn’t leave Iraq because of her [other children] there and her fear of a terrorist attack in Iraq.

    l.His willingness to return to Iraq on six occasions is also not indicative of someone who fears serious harm if they were to return to Iraq. To begin with he claimed that he only went to Erbil except for the last occasion, when he allegedly had to go to Baghdad to finalise the sale of his property.  I note that he has not provided any evidence of the sale of his property nor of what happened to the proceeds of the sale.  I also note that he claimed that he only went to Baghdad on the sixth visit (October 2015-March 2016), yet he also stated during the hearing that he went to Baghdad during the visit [in] March 2015 and his passenger card from that time says that he would spend most time away in Baghdad. 

    m.I am not satisfied that he only went to Baghdad once and spent all the other times in Erbil.  Although he may have landed at Erbil, it is equally plausible that he may then have driven to Baghdad or taken a domestic flight there.  His reasons for going to Erbil appear to lack credibility.  He claimed that he wanted to see his family but this necessitated them driving through a country that he claimed was dangerous in order to see him, when he could have arranged to meet them in a neighbouring country such as Iran which is cheap.

    n.I also do not accept that he had to travel to Baghdad to sign papers to finalise the sale of his residence.  He could have negotiated the price himself over the phone or via skype and then used a power of attorney to get his [relative] to sign the documents. I do not accept that he wouldn’t trust his [relative] in financial matters given he entrusted them with the safety of his [other family members] and he noted that one of them was [a professional] which would indicate some level of intellectual ability.

    o.Another reason that I do not accept his claim regarding the sale of his home is that in his statement of April 2016 he claimed that his family said he had to return to Iraq to transfer the ownership of his properties to his daughters as they are his heiresses.  Yet he has two sons who would also be heirs but about whom he made no mention until confronted with their existence.  I do not accept that they are very young as he has provided no information regarding them and, given his age, and that of his wife and female children I am satisfied that the male children are also adults and would have been entitled to a share of the proceeds.     

    p.I also do not accept that the applicant never made any profit from his business(es) as the money all went to pay his debts and that the money from the sale of the house was put into a business he started with his sister in Erbil in 2016 but that they lost their money when the business went bust in 2019.  He made no mention of this investment in his April 2016 statement. Indeed, in that statement he claimed that his [relatives] told him to sell the properties so they wouldn’t be lost when he died, and that he sold part of his properties on his last visit and transferred the other half to his daughter who he claimed subsequently died.

    Conclusion on non-compliance

1. I am satisfied that the applicant fabricated his claims regarding the deaths of his wife and daughter, his role with supporting [coalition] forces in Iraq and being targeted by Islamic militias.   As a consequence I am satisfied that he was not of any interest to any Islamic militia at the time he left Iraq and when he made the claim for protection. 

2. The fact that he has returned to Iraq on six occasions for an extended period of time and faced no difficulties indicates that he is of no interest to the Islamic militias.  I do not accept that he was able to avoid persecution by staying in Erbil and that he only went to Baghdad once.  Not only does this rely on his oral evidence, which I have found to lack credibility, he has also been inconsistent with respect to his alleged number of trips to Baghdad.    

3. I do not accept that he was forced to return to Iraq so he could see his children or because he had to sign documents relating to the sale of his properties.  He could have arranged to meet his children in safer regional countries if he needed to see them, and he could have arranged the sale and then given one of his relatives power-of-attorney to sign the documents in Baghdad.  I do not accept that he failed to do so given it relies entirely on his oral testimony which I have found lacks credibility.  He said that he didn’t trust his [relatives] with financial matters, yet had deliberately hidden the fact that he had two sons in Iraq.  Given the findings above, it follows that the applicant’s claims regarding adverse interest being shown in him prior to seeking protection in Australia have been fabricated.

4. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant because the applicant provided incorrect answers in his supporting statements to questions 42 to 46 in Form 866C.

   Should the visa be cancelled?

5. 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).

6. 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

7. The correct information is that at the time of lodging the application for a protection visa, the applicant was not, and continues not to be wanted by any Islamic militias in Iraq.  The Tribunal considers the provision of incorrect information when applying for a protection visa to be serious and goes to the integrity of the migration program.  The Tribunal gives significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa.

   ·the content of the genuine document (if any)

   ·whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

8. The Tribunal is satisfied that the decision to grant the applicant a protection visa was based on findings that there was a real chance that the applicant would suffer serious harm because he was wanted by Islamic militias.

9. For the stated reasons, the Tribunal has found that the applicant is not, and never has been wanted by Islamic militias and is able to travel to and reside in Iraq without there being a real chance of suffering serious harm.  The Tribunal therefore finds that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa.

10. I have also found that as part of his claim the applicant provided a death certificate for his wife, knowing that it was fake.  I am satisfied that his wife is alive and well and living in Australia and that his willingness to provide a fake death certificate was deliberately deceitful and that the decision to grant the visa was based in part on this bogus document.

    ·     the circumstances in which the non-compliance occurred

11. The Tribunal considers that the applicant has knowingly provided incorrect information to the Department with respect to his fear of returning to Iraq as part of his protection visa application for the purpose of gaining a visa.  He continued to provide incorrect information when he responded to the Notice of Intention to Consider Cancellation and continued to assert that he feared serious harm from Islamic militias if he returned to Iraq.

    ·     the present circumstances of the visa holder

12. The applicant has family members here in Australia.  I am satisfied that he has two sons and his wife also reside in Australia although he has not acknowledged the existence of his allegedly dead wife, nor has he given any details regarding the status of his sons.  Regardless of her status, the applicant’s wife would be free to travel with him back to Iraq and, because I have found that he has fabricated the death of an Iraq-resident daughter, he also has at least one daughter resident in Iraq.

13. In his hearing and in one statement he notes that he has at least one sister (a [professional]) resident in Iraq (folio 110), and spoke of his friends in Erbil and that friends in Baghdad would drive to Erbil to visit him where they would talk to him about things such as the property market.   The applicant has never worked in Australia and the hearing was conducted in Arabic which would indicate that his English is limited and that he is most comfortable in the Arabic language. 

14. I do not accept that the applicant does not have any near relatives in Baghdad or elsewhere in Iraq who can support and accommodate him (folio 120).  By his own admission he has a sister in Erbil, and friends in Erbil and Baghdad.  And although he has claimed they are dead, I am satisfied that he has a daughter in Iraq and a wife currently living in Australia who could move with him back to Iraq.  On return to Iraq he would have sufficient family and friendship support and he would be in a cultural surround where he was fluent in the lingua franca.  He is past retirement age and would not need to work.  He has had (and may still have) property and business(es) in Iraq.  Although he has claimed that he sold them to pay debt and that a business went bust, this relies on his oral testimony which I have found lacks credibility.    

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

15. The applicant has maintained that he is wanted by Islamic militias in Iraq.

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

16. There is no evidence before the Tribunal in relation to any other instances of non-compliance known to the Minister.  The Tribunal gives this consideration some weight.

    ·     the time that has elapsed since the non-compliance

17. The original non-compliance dates from January 2011.  The Tribunal does not consider this period to be of such significance to mean that the visa should not be cancelled.

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

18. See below.     His failure to acknowledge the existence of his wife in Australia and the fact that he has owned assets and received income without declaring them to Centrelink may constitute breaches of the law, although to date there is no evidence before the Tribunal in relation to any breaches of the law since the non-compliance.  The Tribunal gives this consideration some weight.

    ·     any contribution made by the holder to the community.

19. On the face of it, he has not contributed significantly to the Australian community.  He has never worked in Australia and has been in receipt of Centrelink benefits during that time.  Although outside the remit of the Tribunal there is obvious concern that he has been receiving Centrelink benefits while not disclosing assets and income in Iraq, and living with his wife in Australia for an undetermined number of years.  The circumstances in which he has claimed social welfare are worthy of further examination by the appropriate authorities to ensure no fraudulent behaviour has occurred in this regard.  Few people nor any Australian organisations will be disrupted as a consequence of his departure.

    ·whether there are mandatory legal consequences to a cancellation decision

    ·or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

20. The likely consequences of a decision to cancel the visa holder’s visa are as follows:

    a.He would become an unlawful non-citizen and liable to be detained and removed from Australia,

    b.He would be limited in the types of visas he could apply for,

    c.It is possible that other family members’ may be cancelled under s.140 of the Act.  Although he has refused to answer questions relating to them, I am satisfied that his wife is alive and not dead and he has two adult sons in Australia who he has never noted in his application.  Without knowing the circumstances of their arrival but given they appear to have arrived or lived here under different names it may be possible that administrative action is taken to cancel their visas if they have given incorrect answers on their visa applications.

21. I consider that the likely or possible consequences of the visa cancellation outlined above are reasonable, given these administrative sanctions are the consequence of obtaining a visa by fraud.  I therefore give little weight to the consequences of the visa cancellation decision.  I also note that the individual can avoid immigration detention by applying for a Bridging E visa or by voluntarily leaving Australia.

22. The Tribunal has not accepted that the applicant is wanted by Islamic militia in Iraq or that there is a real chance that he would face serious harm on return to Iraq.  An ITOA was completed, the applicant having been given the opportunity to submit information to inform the ITOA, and the assessment determined that there was not a real chance that the applicant would be persecuted by Islamist groups for collaborating with [coalition] forces if removed from Australia to Iraq. 

23. I note that the applicant has returned from Australia on six occasions to Iraq for a period of more than a year in total.  The applicant was willing to visit the country to see family members, had no difficulty entering or leaving the country and experienced no problems while he was there.  I do not accept that this was because he only stayed in Erbil except for one occasion when he went to Baghdad.  He has already indicated through his statements and his passenger card that he travelled to Baghdad twice, and his claim to have stayed in Erbil the other times relies entirely on his oral testimony which I have found lacks credibility. 

24. The ITOA was completed in February 2017 and found that non-refoulement obligations were not engaged in the applicant’s case.  I am satisfied that the findings of the ITOA remain current. I have taken into account the recent unrest caused by protests but note that the applicant has never indicated that he has protested in the past and at the age of [age] and with a walking stick I am satisfied that he is not going to suddenly become politically active on return to Iraq.

25. The post-hearing submission raised concerns regarding that [an age] year-old with health conditions would not be able to survive by himself in Iraq, that all of his children are in Australia, that he requires constant assistance with medication that would not be available to him in Iraq, has no assets or income there and that his mental health would be affected if he were to return to Iraq alone.

100.   I give little weight to these issues.  He has family members in Iraq (a sister and a daughter who he falsely claimed was dead) and a wife in Australia who he claimed was dead but is in fact alive and could return to Iraq with him.  The only indication of health concerns is a letter from a GP which doesn’t indicate any serious health concerns that couldn’t be addressed by the Iraqi health system, nor of any medications that would be unavailable in Iraq.  He is also in the fortunate position of having a sister who is a [professional].  He has indicated that she is in Erbil so she could assist his re-introduction into the Iraqi medical system on his return.  And even if she were no longer resident there, she could easily advise him.

101.   His claims to be bereft of property or income rely solely on his oral claims and, given I have found that he has knowingly fabricated the deaths of his wife and one daughter, I am not satisfied that he is impecunious as he claims to be.  There is no medical evidence to support the claim that his mental health would be affected by his returning to Iraq, and I have already noted the family and friendship support networks that he has in place there.  His wife, whose death he has fabricated is also available to support him.

102.   The Tribunal accepts that some family members may remain in Australia but exactly who and how many are involved is difficult to tell because of the applicant’s refusal to answer questions relating to information that his two sons and wife live in Australia.  Regardless, he will also be reunited with other family members when he returns to Iraq.

103.   The Tribunal considers that the applicant’s willingness to return to Iraq six times previously demonstrated that he does not have any subjective fear of harm about returning to Iraq.

CONCLUDING PARAGRAPHS

104.   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 be cancelled.

DECISION

105.   The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Rodger Shanahan
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.