1713801 (Refugee)

1713801 (Refugee) [2019] AATA 6487 (14 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713801
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nathan Goetz
DATE:14 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 14 January 2020 at 9:59am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – Kuwait – incorrect information in visa application – ethnicity/statelessness – Kuwaiti Bidoon – political opinion – opposition to government policies – voluntary travel to home country – grandmother’s illness – possession of Kuwaiti passport and marriage certificate – credibility – ‘documented Bidoon’, not stateless – continued assertion of incorrect information – discretion to cancel visa – integrity of family unit – wife not aware of or involved in applicant’s incorrect information, and entered Australia lawfully – best interest of children, one of whom an Australian citizen – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 438
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v Khadgi (2010) 190 FCR 248
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

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).
On 6 July 2012 the applicant was granted a protection visa. On 6 March 2017 the delegate sent to the applicant a Notice of Intention to Consider Cancellation of the visa under s.109 of the Act. On 30 March 2017 the applicant responded to the notice through his migration agent. Attached to the response were various supporting documents.
On 27 June 2017 the applicant’s protection visa was cancelled by a delegate. The delegate cancelled the visa on the basis that the applicant had provided incorrect information is his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 28 June 2017 the applicant lodged an application for review of the cancellation decision with the Tribunal.
On 30 July 2019 the applicant appeared at the Tribunal to give evidence and present arguments. The Tribunal also obtained oral evidence from the applicant’s wife.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure certificate – s.438 of the Act
The delegate had issued a non-disclosure certificate citing s.438(1)(b) of the Act in respect to information contained in folios 49-51, 59, 66, 116-117 department file [number]. The certificate cited that the information was given to an officer of the department in confidence, and that the information should not be disclosed because it contained information regarding departmental investigative methods and practices. The Tribunal considered whether this certificate was valid. The applicant contended that it was not and the Tribunal reach the same conclusion. The Tribunal has done so for the following reason.
The information contained in the folios relates to emails within the department about the grounds for cancellation of the applicant’s protection visa application, the decision to cancel the visa, a caseload assessment form and one page of a three page document that relates to a referral to operational integrity for visa cancellation consideration. This information could not be described as information that was given in confidence because the information is a public record of correspondence between departmental officers, and in the case of the priority case load assessment and referral to operational integrity documents, they form the basis of the decision to cancel. There is nothing to suggest that the release of that information would have a detrimental effect on an individual.
The information contained in the folios neither helps nor harms the applicant’s claims that he has not provided incorrect information in his protection visa application. Therefore, the Tribunal has treated that information as it would any other piece of information on the department file, namely, it the Tribunal was to rely upon it adversely to the applicant, it would put the information to the applicant and invite his comment and consider his response before relying on that information.
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.
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. The Tribunal was not persuaded by the arguments presented by the applicant that the notice was not valid because it did not provide particulars of the alleged non-compliance.
The Notice of Intention to Consider Cancellation
The notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or if they do exist, allows the visa holder to put forward reasons why the discretion to cancel should not be exercised.
In this case, the delegate provided the following information in the notice.
[In] December 2011 the applicant arrived on Christmas Island claiming to be an undocumented Kuwaiti Bidoon seeking asylum in Australia.
On 13 April 2012 he lodged an application for a protection visa based on him being an stateless Bidoon from Kuwait. As part of the application the applicant submitted Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee – which was dated 5 April 2012. This application contained a number of questions, including the following:
Question 43 – Form 866C which asks ‘Why did you leave that country?’ The applicant stated ‘Refer to statement of claims’. In the subsequent statement of claims, the applicant stated that he was a Bidoon, which in English meant that he was deprived of all basic human rights. He had no right to get a passport, medical treatment, education, own a property, get a driver licence, or register a marriage. He wrote that he had faced this discrimination and persecution from Kuwati authorities his whole life.
Question 45 – Form 866C which asks ‘What do you fear may happen if you go back to that country?’ The applicant stated ‘Refer to statement of claims’. In the statement of claims the applicant stated that he would be arrested and killed.
Question 46 – Form 866C which asks ‘Who do you think may harm/mistreat you if you go back? The applicant wrote ‘Refer to statement of claims.’ In the statement of claims he stated that he believed that if he returned to Kuwait he would face a real chance of being seriously harmed and/or killed by state actors for the following reasons: his ethnicity as a Bidoon; his lack of nationality; his actual political opinion of being opposed to the policies of the government of Kuwait.
Question 48 – Form 866C which asks ‘Do you think the authorities of that country can and will protect you if you go back?’ The applicant wrote ‘Refer to statement of claims’. In the statement of claims the applicant stated that ‘the authorities in Kuwait will not protect me as it is the government authorities who have persecuted me’.
The delegate noted that the applicant’s protection visa application had been assessed based on the applicant being an undocumented stateless Kuwaiti Bidoon facing serious harm from the Kuwaiti Government if he returned to Kuwait, and that it was on this basis that the applicant was found to be a person who engaged Australia’s protection obligations.
The notice particularises that this information was incorrect for the following reasons:
Although the notice makes reference to the applicant travelling offshore three times since the grant of the protection visa, it is clear that the notice is concerned about the applicant’s travel to Kuwait while he was absent from Australia between [date 1] January 2015 and [June] 2015. Upon the applicant’s return in Australia [in] June 2015 the applicant was found to be in possession of Kuwait passport that had been issued under Article 17 of the Kuwaiti Nationality Law. That passport showed a Kuwaiti immigration arrival stamp dated [date 2] January 2015 and a departure stamp dated [May] 2015.
On 12 October 2015 the applicant lodged [a partner] visa form to sponsor his wife [Ms A] to migrate to Australia. In association with that application, he submitted a General Authority for Civil Information 20, signed – marriage contract between the applicant and his wife which was dated [April] 2015. This marriage contract identified that the applicant was a ‘non-Kuwaiti’.
The notice states that given the applicant had travelled back to, and resided in Kuwait for a period of four months and that the grant of the protection visa was assessed on the grounds that he faced serious harm from the Government of Kuwait if he returned because he was an undocumented Bidoon, the delegate considered that the applicant had provided incorrect information in response to Questions 43, 45, 46 and 48 of his protection visa application form.
The notice contends that the answer provided to Question 43 of the applicant’s protection visa form was incorrect because it appeared that the Kuwaiti Government had recognised the applicant and had issued him with official documentation including a Kuwaiti passport, a and a marriage certificate.
The notice contends that answers provided to Question 45 was incorrect because he travelled back to Kuwait and remained there for four months, and he obtained a Kuwaiti passport which was provided from the authorities without any apparent issue.
The notice contends that the answer provided to Question 46 of the protection visa form was incorrect because only Kuwaiti Bidoons who hold valid civil identification documents can be issued with a Kuwaiti passport under Article 17 of the Kuwaiti Nationality Law. As the applicant had returned to Kuwait for a period of four months and provided his documentation to the Kuwaiti authorities without any apparent issue. The notice contends that the applicant did not face a real chance of being seriously harmed or killed by Kuwaiti authorities and therefore did not hold the adverse profile as claimed in the protection visa application.
The notice contends that the answer provided to Question 48 of the protection visa form was incorrect because only Kuwait Bidoons who hold valid civil identification documents can be issued with a Kuwait passport under Article 17 of the Kuwaiti Nationality Law. The notice drew attention to the fact that Kuwaiti Bidoons are not at risk of persecution from the Kuwait Government, and therefore the delegate considered that the applicant did not hold the adverse provide as claimed in the protection visa application.
By providing this incorrect information in the protection visa application, the applicant was stated to have breached section 101(b) of the Migration Act and that he would be liable to cancellation under section 109 of the Migration Act.
Was the s.107 notice valid?
The migration agent contended that the s.107 notice was invalid because it ‘contained critical error that deals with the main purpose of deciding to cancel the applicant’s visa.’ This was contained in the written submission in Folio 79 of the Tribunal file. It was contended that this was the case because the delegate failed to consider relevant country information and therefore put in a ‘notice of wrong particulars’. The complaint is that the delegate ‘failed to link the existence of an ‘identity number’ and the applicant’s claim of being an undocumented Bidoon. The Tribunal does not accept that this invalidates the notice.
What is required of the notice is a clear set of particulars to give the applicant a reasonable opportunity to respond to those particulars. It is clear from the notice that the delegate reached the requisite state of mind that the applicant had provided incorrect information on the basis that the applicant returned to Kuwait, and was able to obtain a passport as well as register a marriage. It then became a matter for the applicant to argue that there was no non-compliance as described in the notice, and he did so by drawing a distinction between a civil identification number and the issue of the security card in his written submissions.
In the Tribunal’s view, the s.107 notice is clear and provided the applicant with the opportunity to mount his argument that there was no non-compliance as described. The abundance of material that was filed by the applicant is testimony to that.
The agent also contended that the decision to cancel the visa was invalid because the delegate had no considered the applicant’s response to the s.107 notice. The Tribunal does not accept that this is the case, noting that in the delegate decision at pages 6 and 7 notes the applicant’s written response to the s.107 notice. It is clear that the material provided by the applicant was considered by the delegate when determining whether there was non-compliance as described in the earlier notice. Merely because the delegate was not persuaded by the applicant’s response does not invalidate the notice.
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 section 101(b) of the Act.
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 and to notify the department of any incorrect information of which they become aware and of any relevant changes in their 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 used that does not comply with the requirements in s.107, the power to cancel does not arise. In the present case, the Tribunal is satisfied that the delegate has reached the necessary state of mind to engage in s.107 and that the notice issued under s.107 complied with the statutory requirements.
The Tribunal has had regard to the applicant’s written submission that was provided to the delegate in response to the notice of intention to consider cancelling the protection visa. This was prepared by the applicant’s migration agent. In summary, the submission addresses the concerns raised in the notice as follows:
The Kuwait passport that was issued [in] 2014 was obtained through his father who bribed a person in the passports office to obtain the passport, This was done because the applicant thought he would not be able to enter Kuwait on an Australian travel document (Titres de Voyage) as it would alert authorities to the fact that the applicant had applied for protection in Australia and this would be perceived as damaging Kuwait’s reputation. Further, the applicant’s father arranged a person at the Kuwait airport to facilitate his secure passage, and the person who did this was arrested in 2016 and was imprisoned for 5 years in gaol.
The reason for the travel was because the applicant’s grandmother was ill.
The marriage certificate that was used for the partner visa was issued 2 months after the marriage and this was obtained by the applicant’s wife because she was not happy with the religious marriage certificate that he been obtained before. There was a delay with the issue of the marriage certificate because government officials needed to refer the matter to the Central System to Resolve Illegal Residents’ Status, which resolves Bidoon cases so a reference number for the marriage certificate could be provided. In the end, because the applicant’s wife is a [Country 1] citizen, the Government of Kuwait issued the marriage certificate as the government is cautious when dealing with citizens of European countries. The submission noted that the marriage certificate does not demonstrate any identification card numbers for the applicant, while his wife’s details are complete.
The applicant maintained that he did not provide incorrect answers in his protection visa application, that he still has a well-founded fear of being persecuted in Kuwait due to his statelessness, and that he only returned to Kuwait for compelling reasons.
At the Tribunal hearing, both the applicant and his wife [Ms A], who is now in Australia, gave evidence in support of the review application. Their [child] [Child 1] (who is noted by the department as being born on [date] and is an Australian citizen) was also present. At the hearing, the applicant’s wife also disclosed to the Tribunal that she was pregnant with a second child who is due to be [born].
The oral evidence provided by the applicant at the hearing was consistent with his written response to the delegate and he provided the following additional information.
The applicant was asked why it was necessary for his father to arrange safe passage through the Kuwait airport if he had obtained a Kuwait passport. The applicant responded that the passport did not provide legal protection for him and that as he was on a ‘Wanted List’ when he entered Kuwait he was in need of this assistance. He stated that his entry into Kuwait was not recorded. He stated that although his Kuwait passport was stamped, it was not ‘entered onto the system’. He confirmed that nothing happened to him in Kuwait because he was ‘not recorded in the system’. The passport that he used to enter Kuwait was brought to the applicant in Australia by a friend and this occurred in around May 2014.
His grandmother who was ill, but still alive at the time of the hearing, was in the hospital for approximately a week after he arrived in Kuwait, and after that she was ‘in and out’ of hospital, and was living with his [aunty]. He visited his grandmother twice while she was in hospital (which was about 15 minutes from the family home) and then once or twice a week when his grandmother was at his aunt’s house (which was 5 minutes from the family home). He said that he used to visit his grandmother during the daytime. The Tribunal notes that the applicant has provided photographs of his grandmother in hospital.

He was married [in] February 2015 in a religious ceremony in Kuwait. He had been in a relationship with his now wife since 2014 and met her when he travelled to [Country 2]. The relationship continued after he came to Australia. He confirmed that the marriage was registered two months later by the civil authority after enquiries were made with the government department that is responsible for the status of Bidoons in Kuwait. A conduit was used to obtain the passport. This conduit was known to the applicant’s father. The applicant also knew this person when he previously lived in Kuwait.
The Tribunal queried why the applicant would be provided with a Kuwait passport that did not identify him as a Kuwait citizen. Given that the applicant’s father had used connections to obtain a passport that the applicant was, according to the answers given in his protection application, not entitled to, it was curious that the person who organised his passport would not provide him with a passport that would be given to a Kuwaiti citizen, and not a passport that was given to documented Bidoons. The applicant told the Tribunal that as he was a Bidoon, he could only obtain a passport that was issued to Bidoons.
The Tribunal has considered all the information before it and has come to the conclusion that there was non-compliance as described in the s.107 notice for the following reasons.
Firstly, in the Tribunal’s judgment, it is not believable that the applicant, who claims he is on a ‘Wanted List’, has previously been detained by the authorities in Kuwait (as claimed in his protection visa application), and who apparently has a high profile because he was interviewed on a TV programme in Kuwait about the suppression of the Bidoon, and has engaged in numerous protests in Kuwait, would take the risk to return to Kuwait, even if the applicant attempted to minimise that risk by securing, in effect, a fraudulent Kuwait passport and further securing safe passage to the airport. While the applicant may have had a desire to visit his ill grandmother, it is incredulous for the tribunal to accept that the applicant would put himself at such a risk in doing so, given that he claimed to fear that he would be arrested and killed if he returned to Kuwait. In the Tribunal’s assessment, the fact that the applicant travelled on a Kuwait government issued passport in his own name and date of birth undermines his claimed fears of what would happen to him if he returned to Kuwait. Further, if it were true that the applicant was able to secure a safe passage at the airport by his father bribing an authority figure, then to the Tribunal’s way of thinking, it would have been unnecessary for the applicant to be provided with the Kuwaiti passport, as he would have been able to secure that same passage using an Australian travel document.
Secondly, the length of time that the applicant remained in Kuwait is of significant concern to the Tribunal. While the applicant may have desired to visit his sick grandmother (and get married), the fact that the applicant remained for four months in a place where he claimed to have a well-founded fear of persecution is incredulous. The fact that the applicant was able to travel to visit his grandmother in hospital during those four months is not consistent with the applicant’s claimed fear of harm.
Thirdly, the applicant’s explanations about the provision of the civil marriage certificate are, in the Tribunal’s judgment, not consistent with the applicant’s claims of fearing harm from the Kuwait Government. In his explanations, the applicant said that his wife wanted to have a civil marriage and the applicant knew that the Kuwait ‘security departments’ had no connections to a civil marriage registry so he thought he would be safe. He told the Tribunal that he checked with a friend who was a journalist who told him he would not experience any trouble. Noting that the applicant claimed in his protection visa application that he would not be able to register a marriage, but the evidence was that he was able to do so, the Tribunal queried how this could occur. The applicant told the Tribunal that after the checks were done with the department that was in charge of the Bidoon, his marriage certificate was subsequently registered. The Tribunal has real trouble with this evidence. To the Tribunal’s way of thinking, if the applicant was genuinely fearful of the Kuwait Government, would not have that same authority register his marriage, particularly in circumstances where the applicant is in Kuwait in circumstances that are less than honest on a Kuwait passport that, according to him, has not been genuinely obtained. The registration of that marriage would clearly bring the applicant to the attention of the authorities. Further, the fact is that the applicant was able to register his marriage in complete conflict with what he had claimed in his protection visa application. The Tribunal does not accept the applicant’s explanation that the Kuwait Government, in effect, does not create issues where a foreign citizen (in this case, the applicant’s wife) seeks to register a marriage in Kuwait. Nothing persuasive, but way of independent country information, was put before the Tribunal to suggest that this is the case.
The Tribunal notes that the applicant was granted a protection visa on the basis that he was a ‘stateless’ Bidoon and that there was no explicit consideration given to whether the applicant was an ‘undocumented Bidoon’ as opposed to a ‘documented Bidoon’. The Tribunal has regard to the following information as provided in the UK Home Office Country Information and Guidance Report of July 2016 which provides the following information:
All Kuwait Bidoon are classed as illegal residents by the Kuwait state. However, Bidoon who were registered with the Executive Committee (the state body in charge of Bidoon) and subsequently accepted by the government as Kuwaitis were given Kuwaiti citizenship. The numbers are small, but these individuals are not stateless.
In a conclusion of the UK Home Office (as noted in the Country Information and Guidance for Kuwaiti Bidoon from February 2014), it noted that undocumented Bidoon experience discrimination so severe that it amounts to persecution. In contrast, documented Bidoon are not at real risk of persecution or breach of their protected human rights due to their ethnicity. However, that report does go on to say that there are some circumstances where the state’s use of security flags or blocks may mean that a documented Bidoon does not receive access to public and social facilities in a manner that many amount to persecution. The crucial document for determining whether Bidoon are document is the ‘security card’. A range of benefits flow from possession of such a card. Without such a card, Bidoon are prevented from working and, with few exceptions, prevented from receiving the most basic of government services, denied rights to medical treatment, housing, documentation and driver licences.
In this case, the applicant has travelled back to Kuwait and stayed there for approximately four months. He has been able to obtain a marriage certificate and passport issued by the Government of Kuwait. The applicant had claimed that he could not return to Kuwait, was unable to register a marriage, and unable to obtain a passport. These claims were clearly false. The Tribunal is satisfied that the applicant is a Bidoon from Kuwait, but that he is in fact a documented Bidoon who is known to the Kuwait authorities and is not of any adverse interest to the authorities. The Tribunal is satisfied that he was able to register his marriage and obtain the passport because he held the necessary security card.
For these reasons, the Tribunal finds that there was non-compliance with s.109 by the applicant in the way described in the s.107 notice.
The Tribunal notes that the migration agent contended that the s.107 notice was invalid because it ‘contained critical error that deals with the main purpose of deciding to cancel the applicant’s visa.’ This was contained in the written submission contained in Folio 79 of the Tribunal file. It was contended that this was the case because the delegate failed to consider relevant country information and therefore put in a ‘notice of wrong particulars’. The complaint is that the delegate ‘failed to link the existence of an ‘identity number’ and the applicant’s claim of being an undocumented Bidoon. The Tribunal does not accept that this invalidates the notice.
What is required of the notice is a clear set of particulars to give the applicant a reasonable opportunity to respond to those particulars. It is clear from the notice that the delegate reached the requisite state of mind that the applicant had provided incorrect information on the basis that the applicant returned to Kuwait, and was able to obtain a passport as well as register a marriage. It then became a matter for the applicant to argue that there was not incorrect information as contained in the notice, which he did by drawing a distinction between the civil identification number and the issue of the security card.
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 prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     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
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has considered the prescribed circumstances and has come to the following conclusions.
The correct information is that the applicant is a documented Bidoon from Kuwait and that he does not fear harm from the authorities on the basis of his ethnicity, and he is not unable to register a marriage or obtain a passport because of his ethnicity. There is no information before the Tribunal to suggest that documented Bidoon face a real chance of serious harm. This is a considerable factor in deciding to exercise discretion to cancel the visa, because there is no real chance that the applicant would face serious harm upon his return to Kuwait.
The content of the genuine document is not an issue that arises in this case, as it is not claimed that any bogus document was produced in support of the application for a protection visa.
The decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information provided by the applicant. The applicant contended that he was unable to return to Kuwait, and that he was unable to obtain a passport or register a marriage. He claimed this in support of his contention that he was an undocumented Kuwaiti Bidoon. The Tribunal is satisfied that if the applicant’s claims were that he was a documented Bidoon from Kuwait, he would not have been granted the protection visa. This is a considerable factor in deciding to exercise the discretion to cancel the protection visa.
The circumstances in which the non-compliance occurred are serious. The applicant has provided, by way of a declaration, untruths to the answers to his protection visa application. There is an expectation that an applicant for a protection visa, or indeed any visa, will be truthful in their evidence and claims. This is a considerable factor in deciding to exercise discretion to cancel the applicant’s visa.
The present circumstances of the visa holder are compelling reasons to not cancel the visa. He is married, has been in Australia since 2011 and, at the time of the hearing, was caring for his first born [child] while his wife was studying. Subsequent to the hearing, as discussed further, he became the father of a second [child] and the Tribunal accepts that he has parental responsibilities towards his two children.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act is also a factor that the Tribunal considers should favour cancellation of the visa. The applicant persisted with his claims that he had not provided incorrect information, and sought to explain (unpersuasively) the reasons why he returned to Kuwait despite his claimed fear, and how he was able to register a marriage and obtain a Kuwait passport. The applicant demonstrated no contrition for providing the false information.
The lack of any other instances of non-compliance by the visa holder known to the Minister is not an issue in this case, as there is no evidence of such instances.
The time that has elapsed since the non-compliance is a factor that considerably weighs against cancellation of the protection visa. The applicant lodged his application for the visa which contained the incorrect information on 13 April 2012. The time between that event and the decision being made by the Tribunal is over 7 years.
The lack of any breaches of the law since the non-compliance and the seriousness of those breaches is a factor that considerable weighs against cancellation of the protection visa. There is nothing before the Tribunal to suggest that the applicant has engaged in criminal conduct during his time in Australia.
The contribution made by the visa holder to the community in this case is minimal. Although the applicant has [a Social media] account [username] which is apparently designed to promote [a cause] in Australia, the Tribunal does not accept that this is a meaningful contribution to the community. It is nothing more than social media and does not appear to result in any tangible benefits to the community. The Tribunal does also not accept that the applicant studying [subject] (which he stopped as a result of his visa being cancelled) is a meaningful contribution to the community. Such activity is designed for self-improvement and potential future contribution to the community through possible employment in the nursing sector. The Tribunal gives these factors no weight when considering whether to cancel the visa, but does give some weight to the applicant’s volunteer work with [an organisation], as outlined in the support letter. In this role, the applicant has been involved in [social, sporting and charitable activities].
Other relevant matters
The Tribunal has also considered the following additional relevant matters.
If the applicant’s protection visa were cancelled, it would result in him becoming an unlawful non-citizen and liable to immigration detention in the event that he was not granted a bridging visa on departure grounds. However, that would be purely speculative, as the Tribunal is not in a position to ascertain what the likely course of events would be in terms of the applicant remaining in the community pending his removal from Australia. There is nothing before the Tribunal to support a proposition that Kuwait would not accept the return of the applicant which may result in him remaining indefinitely in Australia’s immigration detention system.
In the event of cancellation of the applicant’s visa, his wife [Ms A] is liable to have her visa cancelled. She was sponsored by the applicant on a combined [(Temporary) Partner] and [(Permanent) Partner] visa. She remains in Australia on a bridging visa associated with this application. The Tribunal is aware that this bridging visa was cancelled by a delegate following the cancellation of the applicant’s protection visa, but that this cancellation was set aside by another member of the Tribunal. The Tribunal is satisfied that there will be immediate consequences for the applicant’s wife, requiring her to return to [Country 1], in the event of the applicant’s visa being cancelled. This is considerably persuasive as a reason not to cancel the visa, because there is nothing to suggest that the applicant’s wife, who has pursued a lawful path to migrate to Australia, was aware of or involved in the applicant providing incorrect information. In the Tribunal’s view, it would be manifestly unfair to the applicant’s wife to leave her in a state of uncertainty regarding her own future in Australia given that she has done nothing wrong.
The discretion to either cancel or not cancel the protection visa is further complicated by the United Nations Convention on the Rights of the Child to which Australia is a signatory.[1] The preamble of the convention states that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, and that Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. Article 3 of that Convention requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’
[1] On 17 December 1990 Australia ratified the Convention on the Rights of the Child which had been adopted by the United Nations General Assembly only a little over one year earlier (20 November 1989): >
It is not controversial to say that a child’s best interest are, save for certain circumstances of parental neglect or incapacity, best served by being raised in a family and having a meaningful relationship with his or her parents who are a positive influence on the development of a child into an adult. In this present case, cancellation would result in the applicant’s [Child 1], a [age] year old being separated from [her/his] father, and potentially [her/his] mother. The delegate notes that [Child 1] is an Australian citizen, who is also a citizen of [Country 1] by virtue of the fact that she was born outside of [Country 1] to a mother who has [Country 1] citizenship. The Tribunal does not agree with the delegate’s analysis that [Child 1] would ‘routinely relocate with the parents in the event of the visa cancellation’. While it is true that [Child 1] spent three months in [Country 1] between [November] 2016 and [February] 2017 (when [age]) and that the applicant’s wife ‘would appear to have more familial support in [Country 1] than Australia’ (as her parents and siblings migrated there when she was [age] years of age), the Tribunal does not accept that an Australian citizen should be forced to live abroad, or relocate abroad, to have a relationship with the citizen’s mother. The situation is further complicated by the fact that there is nothing before the Tribunal to indicate that [Child 1]’s father would be able to relocate to [Country 1] to maintain the integrity of the family unit, or that the family unit would be able to likewise relocate to Kuwait. In the Tribunal’s view, it is unreasonable to expect an Australian citizen child to give up the opportunity to live in Australia to maintain the integrity of the family unit. Such a situation is clearly against the spirit of the Convention.

Further, at the time of the hearing, the applicant and his wife were expecting their second child. Their [Child 2] was born on [date] at [a] Hospital. That child, on the delegate’s reading, would also be a citizen of [Country 1]. As [Child 2] was not born in Australia to a permanent resident, [she/he] is not concurrently an Australian citizen. Nevertheless, the Tribunal does not consider that the Convention on the Rights of a Child is limited to children who are Australian citizens. In the Tribunal’s view, the convention applies to children within Australia’s jurisdiction. Even if the Tribunal was wrong about that, an Australian citizen child would be impacted as a result of the cancellation, because [Child 1] would likely find that [her/his] younger [sibling] was also removed from Australia as a result of the cancellation, as [Child 2] would have no lawful right to remain in Australia.
In addition, the degree of hardship that would be faced by the applicant and his family in Australia would be significant. The applicant and his family have clearly made a life for themselves in Australia, and uprooting them all, with the likely separation of the applicant from his wife and children, is considerable hardship. The applicant’s wife would find herself, as a mother with two young children, without the most important support of the children’s father, namely his presence in raising their children. While it is clear that the applicant’s wife is a woman of sound educational achievements and would be a desirable candidate for employment, it is inevitable that the family unit being separated would face inherent hardship of being a single parent.
The Tribunal makes this finding while acknowledging that there may be considerable disquiet in the community about allowing an applicant, whom the Tribunal is satisfied provided incorrect information in a protection visa application, to remain in Australia and benefit from the provision of that incorrect information. However, the Tribunal cannot ignore the Convention on the Rights of a Child, and cannot disregard the present circumstances of the applicant. If there are criticisms of allowing a person to remain in Australia despite providing false information, such criticism must be directed towards the legislation and Convention which have led to the inevitable conclusion that the applicant’s visa should not be cancelled. Any discretion must be exercised reasonably. In the circumstances of this matter, it would be unreasonable to do anything other than exercise the discretion in favour of the applicant.
CONCLUSION
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Nathan Goetz
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.

[2019] AATA 6487

14 January 2019

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