1715285 (Refugee)

[2020] AATA 663

1715285 (Refugee) [2020] AATA 663 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715285

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Nathan Goetz

DATE:17 January 2020

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 17 January 2020 at 12:11pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless Bidoon – Kuwait – incorrect information in visa application – multiple trips and extended stays in home country with no harm – passport and driver licence cannot be obtained by undocumented Bidoons – claimed to have obtained by corrupt payments – discretion to cancel visa – factors for and against cancellation – partner and Australian citizen child – best interests of the child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

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

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).

   BACKGROUND

2. The applicant was born in [Kuwait] in [Year].

3. [In] April 2012 the applicant arrived on the Australian territory of Christmas Island as an Irregular Maritime Arrival and claimed to be a stateless undocumented Bidoun (also spelt Bidoon) living in Kuwait.

4. On 13 July 2012 the applicant lodged a protection visa application. This application was refused on 19 December 2012 by a delegate.

5. On 4 January 2013 the applicant applied to the Refugee Review Tribunal (RRT) for a review of the refusal decision.

6. On 19 March 2013 the applicant appeared before the RRT to give evidence and present arguments.

7. On 24 April 2014 the RRT remitted the decision to the department with a direction that the applicant met criteria for the grant of the protection visa.

8. On 31 March 2017 the applicant was given a Notice of Intention to Consider Cancellation (NOICC) of the protection visa under s.109 of the Act. The applicant responded to the NOICC by way of submission from his migration agent, and attached documents in support of those submissions.

9. On 12 July 2017 the delegate decided to cancel the protection visa. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection visa application form.

10. On 16 July 2017 the applicant applied to the Tribunal for a review of the cancellation decision. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

11. On 2 August 2019 the applicant appeared before the Tribunal regarding the cancellation decision and was represented by his registered migration [agent] MARN [number].

12. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    PRELIMINARY ISSUE – NON DISCLOSURE CERTIFICATE – S.438 OF THE ACT

13. The delegate issued a non-disclosure certificate to cover the information contained in Folio 13 to 24 (inclusive) of the department cancellation file, citing that it would be contrary to the public interest to disclose that information. It was contended that this information related to the department’s operational procedures and lists names of department staff.

14. The Tribunal’s view is that the certificate is invalid. The certificate does not identify the harm that would be caused by the disclosure of the information. The information is a document examination report of the applicant’s Kuwait passport which provided a chronology of the entry and exit stamps for the period of travel between [June] 2014 and a copy of the name page of the passport. The information does not disclose any findings about the genuineness of stamps or the passport, but merely acts as an aide-memoire to ascertain the applicant’s travel history in a logical fashion. The information was relied upon by the delegate to provide the applicant with clear particulars of his travel in the cancellation notice. So far as the disclosure of the name of the officer who examined the document and provided the chronology, that information can be redacted if the document were to be released to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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.

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

17. The NOICC provided the following information to the applicant:

18. At Question 42 of the protection visa application form, the applicant answered ‘Kuwait’ to the question ‘I am seeking protection in Australia so that I do not have to go back to’.

19. At Question 45 of the protection visa application form, the applicant answered ‘Refer to statement of claims’ to the question ‘What do you fear may happen to you if you go back to that country?’

20. At Question 46 of the protection visa application form, the applicant answered ‘Refer to statement of claims’ to the question ‘Who do you think may harm/mistreat you if you go back?’

21. At Question 47 of the protection visa application form, the applicant answered ‘Refer to statement of claims’ to the question ‘Why do you think this will happen to you if you go back?’

22. At Question 48 of the protection visa application form, the applicant ticked the box ‘No’ to the question ‘Do you think the authorities of that country can and will protect you if you go back?’ In the field below that question asking for details, the applicant responded ‘Refer to statement of claims’.

23. In the statement of claims dated 14 July 2012 that was submitted in support of the protection visa application, the applicant wrote:

24. “I am considered stateless and if I return I will continue to live without any rights and without state protection.

25. The Kuwait Government persecute Bidouns. The stateless Bidouns who protested were beaten, put in jail and dehumanised. This is the way they treat Bidouns and Kuwaiti Government do not want to give us any rights even though I was born in Kuwait and my father was born in Kuwait. I fear that as a Bidoun who left the country illegally I will be subjected to physical harmed(sic) if returned to Kuwait.

26. If I return to Kuwait I will be forced to live without human dignity. I have live this way for many years and I do not want this life for my son.

27. As a stateless Bidoun, I will suffer harm no matter where I live in Kuwait.

28. The NOICC then provided the applicant with the following information:

29. Following the grant of the protection visa, the department became aware that the applicant had made seven trips to Kuwait during the following periods while the applicant was offshore:

30. Departed Australia [in] December 2013 and returned [in] May 2015:

    a.Entered Kuwait [in] December 2013 and exited Kuwait [in] June 2014. During this time, the applicant was issued a tourist visa in Kuwait [in] June 2014 to travel to [Country 1].

    b.Entered Kuwait [in] July 2014 and departed Kuwait [in] August 2014. During this time, the applicant was issued a tourist visa in Kuwait [in] July 2014 in Kuwait to travel to [Country 1].

    c.Entered Kuwait [later in] August 2014 and departed Kuwait [in] September 2014.

    d.Entered Kuwait [later in] September 2014 and departed Kuwait [in] October 2014. During this time, the applicant was issued a tourist visa in Kuwait on[in] September 2014 to travel to [Country 1].

    e.Entered Kuwait [later in] October 2014 and departed Kuwait [in] November 2014

    f.Entered Kuwait [in] November 2014 and departed Kuwait [in] May 2015. During this time, the applicant was issued a tourist visa in Kuwait [in] January 2015 to travel to [Country 1].

31. Departed Australia [in] December 2015 and returned [in] March 2016:

    a.Entered Kuwait [later in] December 2015 and departed Kuwait [in] February 2016. During this time, the applicant was issued a tourist visa in Kuwait [in] January 2016 to travel to [Country 2].

32. The NOICC stated that when the applicant departed Australia [in] December 2015 (his second departure from Australia) he was found to be in possession of a Kuwait Article 17 passport which had been issued to him in Kuwait [in] 2014. The applicant advised Australian Border Force officers that he had never travelled to Kuwait since the grant of the protection visa and that this passport contained counterfeit Kuwait immigration stamps. ABF officers also found in the applicant’s possession a Kuwaiti Driver licence which recorded the applicant’s nationality as ‘Non-Kuwaiti’.

33. The NOICC further advises that when the applicant returned to Australia [in] March 2016 he was interviewed again by ABF officers. He stated that he travelled to Kuwait between [December] 2015 and [February] 2016.

34. From the applicant’s responses to the protection visa application form, and the information outlined regarding the applicant’s travel to Kuwait, the possession of a Kuwait passport, and the possession of a Kuwait driver licence, the delegate concluded that:

35. As the applicant’s protection visa was granted on the grounds that he faced a real chance of serious harm by the Kuwaiti Government for reasons of being an undocumented stateless Bidoun in Kuwait, including a claim that he had no rights to obtain a driver licence, by making seven voluntary trips back to Kuwait for a significant period of time totalling approximately 18 months residence, the delegate concluded that the applicant provided incorrect answers to questions 42, 45, 46, 47 and 48 in his protection visa form.

36. The delegate went on to detail each of the questions and demonstrate how the applicant’s responses were undermined by certain information.

37. In relation to Question 42, the delegate noted that the applicant stated that he did not want to return to Kuwait due to his alleged undocumented status in Kuwait and political opposition. The delegate considered this information to be incorrect as the applicant returned to Kuwait soon (four and a half months) after being granted a protection visa. Given that the applicant voluntarily made several trips back to Kuwait which totalled 18 months without any apparent issue, the delegate concluded that the applicant did not have a real fear of harm, persecution or imprisonment from the Kuwaiti authorities. The delegate noted that the applicant returned from Kuwait to Australia after prolonged trips without apparent harm. Therefore the delegate considered that the applicant did not hold the claimed adverse profile as detailed in his protection visa application form.

38. In relation to Question 45, the delegate noted that the applicant claimed that he feared he would be beaten and imprisoned if he returned to Kuwait. The applicant had stated that he feared harm that ‘as a Bidoun who left the country illegally, I would be subjected to physically harmed(sic) if I returned to Kuwait’. The delegate considered this information incorrect because the applicant voluntarily returned to Kuwait soon after (four and a half months) being granted a protection visa, and had made seven trips to Kuwait for prolonged periods totalling approximately eighteen months. The applicant had returned from Kuwait to Australia without apparent issue from the Kuwaiti authorities following the seven trips. The delegate considered that it was not plausible that the applicant would voluntarily travel seven times to a country where he feared harm from Kuwaiti authorities. The delegate therefore concluded that the applicant did not hold the adverse profile as claimed in the protection visa application form.

39. In relation to Question 46, the applicant stated that if he returned to Kuwait the Kuwait Government may harm him because of his status as a stateless Bidoon in Kuwait. The delegate considered this information incorrect because the applicant made his first trip back to Kuwait approximately four and a half months after being granted the protection visa, and the applicant had spent a total of approximately eighteen months cumulatively in Kuwait. The delegate considered that this travel meant that it was incorrect that the applicant feared harm or mistreatment from the Kuwaiti Government authorities. The applicant returned to Australia from Kuwait without apparent issue following seven trips to Kuwait. Therefore, the delegate considered that the applicant did not hold the adverse profile as claimed in the protection visa application.

40. In relation to Question 47, the applicant stated that the Kuwati Government persecutes Bidouns and that if the applicant was to return to Kuwait, he would be forced to live without human dignity. The delegate considered this information to be incorrect as the applicant made several trips back to Kuwait for approximately 18 months in total shortly after the grant of the protection visa. The applicant returned to Australia from Kuwait without any apparent issue following these trips. Therefore, the delegate concluded that the applicant did not hold the claimed adverse profile provided in the protection visa application form.

41. In relation to Question 48, the applicant stated that he feared harm by the Kuwaiti Government. The delegate considered that this information was incorrect because the applicant voluntarily engaged with the Kuwaiti Government by applying for a Kuwaiti passport, thus altering the Kuwaiti authorities to his intended travel, followed by his voluntary return to Kuwait seven times for approximately eighteen months in total. The applicant returned from Kuwait to Australia without apparent issue following seven trips to Kuwait of prolonged and significant duration. The delegate therefore considered that the applicant did not hold the adverse profile as claimed in the protection visa application.

42. The delegate summarised that the applicant had provided incorrect information in the protection visa application at Questions 42, 45, 46, 47 and 48 in view of the applicant’s actions following the grant of the protection visa. Consequently, the applicant had not complied with s.101(b) of the Act and his protection visa was liable for cancellation.

43. From the reasoning provided by the delegate in the NOICC, the Tribunal is satisfied that the delegate reached to requisite state of mind to issue the NOICC because, on the information available to the delegate, the applicant had provided incorrect information in light of the applicant’s travel to Kuwait and ability to obtain both a Kuwait passport and a Kuwait driver licence.

44. The NOICC advised the applicant of his statutory entitlement to provide a written response as to why the protection visa should not be cancelled. The applicant responded by way of submission and supporting documentation. The delegate considered these responses but concluded that the applicant did not comply with s.101(b) of the Act. After considering the relevant factors in the exercise of the discretion to cancel the visa, the delegate ultimately concluded that the protection visa should be cancelled.

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

45. 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.

46. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

47. The applicant returned to Kuwait on seven occasions, the first of which occurred four and a half months after being granted the protection visa, which undermined his claim that he would suffer harm if he returned to Kuwait.

48. The applicant was able to obtain a Kuwait passport, which undermined his claim that he had no rights in Kuwait.

49. The applicant was able to obtain a Kuwait driver licence, which undermined his claim that he had no rights in Kuwait.

50. The applicant was not harmed during his travel to Kuwait and was able to travel to and from Kuwait without incident, despite the claim that he would be subjected to physical harm because he left Kuwait illegally as an undocumented Bidoun. This undermined his claim that he would suffer harm if he returned to Kuwait.

51. The Tribunal has considered all the material that the applicant provided to address the question of whether the applicant provided incorrect information in his protection visa application form, including the oral evidence he provided at hearing.

    Written submission in response to NOICC

52. In a submission addressed to the delegate in response to the NOICC, the applicant that he was a stateless person who lived his life in Kuwait. His parents are stateless people despite being born in Kuwait and continuing to live there.

53. The applicant paid money to obtain an Article 17 passport and got the passport in 2012. The passport was not issued via the normal administrative procedures in Kuwait. He used this passport to leave Kuwait in January 2012 and that this passport has handed to [Country 3] smuggler, who handed the passport back to the person who obtained the passport for the applicant. This related to the time when the applicant arrived in Australia as an unlawful maritime arrival.

54. The applicant travelled to Kuwait during the two trips out of Australia and landed in Kuwait airports, but the applicant spent most of his time in [Country 1].

55. The first time the applicant travelled to Kuwait was to see his mother who was suffering from [a medical condition]. The applicant travelled out of Australia using an Australian travel document which was issued in 2013. Prior to the applicant’s departure from Kuwait, he made contact with a friend who had introduced him to the person who obtained his original Article 17 passport in 2012. The friend provided a contact for this person and the applicant sought this person’s assistance to go through the airport. This was secured through the payment of a fee. The applicant did this because he was fearful that the Kuwait authorities would see his Australian travel document and they would think that he had applied for refugee status in Australia. This would be considered an insult to Kuwait. [In] 2014 this person managed to get the applicant a new Article 17 passport through the payment of a fee.

56. The applicant’s mother travelled to [Country 1] accompanied by a neighbour who was a Kuwaiti citizen. The applicant’s siblings and father were not able to leave Kuwait because they were not able to obtain an Article 17 passport and were not able to pay money to the person who obtained the applicant’s Article 17 passport because of their financial situation, given their finances had been directed towards the applicant’s mothers medical treatment.

57. [In] January 2014 the applicant’s mother travelled to [Country 1] for medical treatment. The applicant did not accompany his mother because he was trying to collect donations to assist with medical costs. The applicant approached humanitarian institutions in Kuwait and people who could assist, so he was able to join his mother in [Country 1] [in] June 2014.

1. All subsequent entry and exits in Kuwait were facilitated due to the payment of a fee on each occasion.

2. The applicant admitted that he lied to ABF officers about his previous travel to Kuwait.

3. The obtaining of visas to [Country 1] and [Country 2] were also obtained through the person who provided him with both of his Article 17 passports.

4. The applicant stated that he obtained his driver licence in 2014 through payment of money to another person.

5. The applicant maintained that he did not provide any incorrect information in his application for the protection visa, and that he only went to Kuwait for compelling reasons. He maintained that his trips to [Country 1] were to be with his mother.

6. The applicant wrote that he remains an undocumented Bidoon and as such, he has no rights to acquire any identification nor document from Kuwait and that the system in Kuwait is corrupt so it was easy to pay money to facilitate his affairs in Kuwait. He stated that corruption at Kuwaiti airports is well documented. The applicant maintained that he still has a well-founded fear of persecution in Kuwait due to his statelessness and that he risked his life just to be with his mother, who subsequently passed away.

   Documents submitted in response to NOICC

7. A document in Arabic with an accompanied English translation of an ‘Appeal for Help’. This document was written by the applicant seeking donations to assist in his mother’s medical treatment. The document makes reference to an attached certificate from [a] Hospital in [Country 1] where the applicant’s mother was being treated and a copy of the applicant’s birth certificate.

8. A document in Arabic with an accompanied English translation of a death certificate issued by the Ministry for Public Health – Central Register for Births and Deaths stating that the applicant’s mother died [in] December 2015 [with] a cause of death being [deleted].

9. A document in Arabic with an accompanied English translation of a ‘Form of estimation of age for those who do not have citizenship or passport for the applicant’s mother.

10. A medical [report] concerning the applicant’s mother from [the] Hospital dated [November] 2014 which notes her [diagnosis] and treatment.

11. A letter from [the] Hospital dated [April] 2014 certifying that the applicant’s mother was receiving medical treatment through that hospital.

12. A letter from [the] Hospital dated [January] 2014 regarding the applciant’s mother’s proposed medical treatment at that hospital.

13. A letter from [the] Hospital dated [June] 2014 certifying the applicant’s mother was receiving treatment at that hospital.

14. A letter from [the] Hospital dated [August] 2014 certifying the applicant’s mother was receiving medical treatment at that hospital since [January] 2014.

    Documents submitted to the Tribunal

15. On 26 July 2019 the applicant submitted a seven page written submission and attached a report of the International Council Supporting Fair Trial and Human Rights titled ‘Complaint about human rights situation in Kuwait: Attack on Bidoon minorities, an article by Human Rights Watch titled ‘Kuwait: Activists Arrested for Peaceful Sit-In’, an article from Amnesty International titled ‘Kuwait: Authorities crackdown on protesters demanding citizenship rights and a copy of the passport of [Child], who was born on [Date] in Australia and is an Australian citizen. She is identified as the daughter of the applicant.

16. The written submission provided the historical background of the Bidoun of Kuwait and identified the present challenges faced by the Bidoun in Kuwait. The submission did not further advance the applicant’s claims that he had not provided incorrect information, save for submitting that it would not be in the best interests of the child for the Tribunal to exercise its discretion to cancel the applicant’s visa, noting the Convention on the Rights of a Child to which Australia is a signatory provides that:

17. In all actions concerning children, the best interests of the child shall be the primary consideration: Article 3

18. No one shall be subjected to arbitrary or unlawful interference with his…family..: Article 16(1).

19. The submission also noted that the International Convention on Civil and Political Rights provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State: Article 23(1).

20. The applicant also submitted a letter from [TAFE] dated [December 2016 confirming that he was enrolled in [courses], his [qualifications], a copy of his current Australian passport which was issued [in] 2017, medical notes from the Kuwaiti Ministry of Health and a document from the Kuwait [health organisation] (which the applicant identified as relating to his father who has a [health] condition), a New South Wales birth certificate extract for [Child] which records her father as the applicant, a National Police Certificate indicating that there are no disclosable court outcomes in respect of the applicant, and Kuwait identity documentation for his [father], his [brother], his [sister], and his [second brother].

21. Subsequent to the hearing, the applicant submitted the following documents:

22. A statutory declaration from [Ms A] who is the mother of [Child] and currently lives in [Suburb]. She indicated that she and the applicant met in July 2017 and formed a relationship which resulted in the birth of their daughter. They are not married and they are in a very good relationship.

23. A statutory declaration from Alaa Mansouri who identified himself as a friend of [Ms A] and confirmed that Ms [A] had a daughter with the applicant.

24. A statutory declaration from [Ms G] who identified that the applicant was her carer from [October] 2018 to date. He cares for her on a daily basis by ensuring that she takes her medication, cleans her house, washes her dishes, makes her bed, ensures she is safe in moving around her house, and takes her out for walks and to do her shopping. Ms [G] describes the applicant as very kind and caring and indicated her satisfaction about the level of care provided by the applicant.

25. These statutory declarations were accompanied by a two page submission from the applicant’s migration agent which claimed that the applicant is and continues to be an undocumented Bidoun, his entries and departures from Kuwait were for the purpose of providing care for his mother as the eldest son (which also required travel to [Country 1]) and that his actions are not attributes of a person that seeks to deceive and manipulate immigration processes. It submitted that as an undocumented Bidoon, he would face an uncertain future without any legal basis or right, and would be doomed to live stateless and in poverty for eternity. The submission also reiterated that he was in a committed relationship with his current partner, with whom he has a child.

    Relevant oral evidence given by the applicant to the Tribunal

26. The applicant confirmed to the Tribunal that when he first returned to Kuwait after being granted the protection, he left Australian on an Australian travel document.

27. While he was in Kuwait, he kept moving ‘all the time’ and would stay at a friend’s house 20 minutes away from the family home or his aunt’s house which was 25 minutes away from the family home.

28. His mother was unable to obtain ongoing medical treatment in Kuwait because his family are Bidoun and that is why she was treated in [Country 1]. The person who organised the applicant’s Article 17 passport also organised an Article 17 passport for his mother so she could travel to [Country 1].

29. In Kuwait, the applicant collected money to pay for the medical expenses by typing up the ‘Appeal letter’, getting it printed and having friends distribut the pamphlet. This raised funds for treatment. The applicant received money from benefactors who contacted the applicant on his telephone number and attended on the applicant’s auntie’s house to give money to assist in the medical treatment.

30. The applicant needed to obtain a driver licence so he could drive his mother to a private clinic when she was in Kuwait. This clinic was 30 minutes from home. The applicant said that he did not have anyone else to drive his mother as everyone was busy with their families and his father had a [health] condition.

31. The applicant did not tell the ABF about his initial travel to Kuwait and instead told them that his Article 17 passport contained counterfeit immigration stamps because the person who organised his Article 17 passport had made a threat against the applicant and his family.

32. The applicant had left his mother in [Country 1] for the first visit there in the company of a relative who was able to travel to [Country 1] because he was a citizen of Kuwait. The relative remained in [Country 1] with the applicant’s mother.

33. His mother’s sister and her son, who are Kuwaiti citizens came to [Country 1] to visit his mother during her treatment.

34. The applicant never came to the attention of the authorities of Kuwait during his return trips.

35. Based on the fact that the applicant was in possession of a Kuwait driver licence, had a Kuwait passport, and was able to travel in and out of Kuwait, the Tribunal put to the applicant its view that he may in fact not be a stateless undocumented Kuwait Bidoun, but in fact a documented Kuwait Bidoun. This distinction is important because:

36. There is a distinction between documented and undocumented Bidoon. Put simply, documented Bidoon have legal rights in Kuwait and undocumented Bidoon do not.[1]

    [1] UK Home Office Report, Country Information and Guidance – Kuwaiti Bidoon – 3 February 2014 at paragraph 11.

37. An Executive Committee for Illegal Residents (ECIR) was established in 1993 to regularise the Bidoun status. It categorised them into two groups.

38. Documented Bidoon: only those Bidoon who registered by the June 2000 deadline could begin the process under which they could be documented as citizens (having proof of their presence, or their parents / grandparents presence, in Kuwait in 1965). Although many do not have the same rights as Kuwaiti citizens (such as free education and health care), they are treated similarly to registered foreign migrant workers. They are entitled to medical treatment on payment of the mandatory health insurance fee of KD5 per month, and they have access to private education…Children of Bidoon fathers and Kuwaiti mothers no longer inherit Kuwaiti nationality, though this is not unique to them: the same rule applies to children of Kuwaiti mothers and other non-Kuwaiti fathers.[2]

39. Further, evidence related to the documented Bidoon does not show that they are at real risk of persecution or breach of their protected human rights.[3]

40. Documented Bidoun are those two hold a security card.[4] A security card is officially known as a review card[5], commonly called a green card[6]. This card allows them to obtain an Article 17 passport and a driver licence.[7]

41. Undocumented Bidoon: In 2002 the Kuwait Government announced that any Bidoun who had not registered by June 2000 and did not either disclose their ‘true nationality’ or provide proof of their right to citizenship would be subject to deportation. In practice, this has not happened, although the government has brought charges against several Bidoun who allegedly obtained false documents in an attempt to prove their claim to Kuwaiti nationality. The Government states that the majority of undocumented Bidoon are concealing their true nationality, and that they or their forebears entered Kuwait illegally. It encouraged them to come forward with nationality evidence, whereupon they will be used with residency permits like any other foreigner residing in Kuwait. The problem for some second or third generation Bidoon is that their forebears may not have had any citizenship documents or many have destroyed them long ago. These people are faced with the choice of acquiring the nationality of a third country and legalising their residency in Kuwait, or of living in the country without rights as an illegal alien.[8]

42. The applicant denied that he was a documented Bidoun from Kuwait and maintained that he was an undocumented Bidoun in accordance with his original protection visa claims.

    FINDINGS ABOUT WHETHER THE APPLICANT PROVIDED INCORRECT INFORMATION

    [2] UK Home Office Report, Country Information and Guidance – Kuwaiti Bidoon – 3 February 2014 at paragraph 12.

    [3] UK Home Office Report, Country Information and Guidance – Kuwait: Bidoons – July 2016 at paragraph 2.3.3

    [4] UK Home Office Report, Country Information and Guidance – Kuwaiti Bidoon – 3 February 2014 at paragraph 1.1.16

    [5] UK Home Office Report, Country Information and Guidance –Kuwait: Bidoons – July 2016 at paragraph 2.3.4

    [6] Canada: Immigration and Refugee Board of Canada, KWT105484.E, 18 March 2016 at paragraph 1.

    [7] RRT Country Advice 2010, Country Advice KWT37495, 8 October

    [8] UK Home Office Report, Country Information and Guidance – Kuwaiti Bidoon – 3 February 2014 at paragraph 13 and 14.

100.   On all the available material as discussed in this decision, the Tribunal is satisfied that the applicant provided incorrect information in response to some of the questions asked in the protection visa application form.

101.   Question 42 : I am seeking protection in Australia so that I do not have to go back to:

Kuwait

102.   The Tribunal is not satisfied that this information is incorrect. The question only acts as a country of reference point. It is not contended that Kuwait is an incorrect answer. While the delegate may reason that that the subsequent travel to Kuwait may suggest that the applicant did not have any fear in returning to that country, that is not what the question asks. The question is a straight forward one and premised on the applicant lodging a protection visa application (which he did). The purpose of lodging the protection visa application was so that the applicant was not required to go back to Kuwait.

103.   Question 45: What do you fear may happen to you if you go back to that country?

As a Bidoun who left the country illegally, I will be subjected to physical harm if I returned to Kuwait

104.   The Tribunal is satisfied that this information is incorrect. The fact that the applicant returned to Kuwait on multiple occasions and for extended periods of time is inconsistent with his claimed to have left the country illegally and that he would be subject to physical harm upon his return.

105.   Question 46: Who do you think may harm/mistreat you if you go back?

106.   The delegate referred to the applicant’s statement at paragraph 25 where he wrote:

The Kuwait Government persecute Bidouns. The stateless Bidouns who protested were beaten, put in jail and dehumanised. This is the way they treat Bidouns and Kuwaiti Government do not want to give us any rights even though I was born in Kuwait and my father was born in Kuwait. I fear that as a Bidoun who left the country illegally I will be subjected to physical harmed if I returned to Kuwait.

107.   The delegate summarised this as the applicant claiming that if he returned to Kuwait the Kuwaiti Government may harm him because of his status as a stateless Bidoon in Kuwait.

108.   This is a particularly confusing question for the Tribunal to resolve. Is it incorrect information that the Kuwait Government persecutes Bidouns? Is it incorrect that stateless Bidouns who protested were beaten, put in jail and dehumanised? Is it incorrect information that the Kuwait Government does not want to give Bidouns any rights, even if a Bidoun is born in Kuwait and has parents who are born in Kuwait? The answer to all of those questions is no. The applicant may genuinely feel that the Kuwait Government persecutes Bidouns (even documented ones) because they have not all been given citizenship and enjoy the same rights and privileges as Kuwaiti citizens. Further, there have been, and continue to be, protests by Bidoon people in Kuwait demanding that the Kuwait Government give them rights. Whether the Kuwait Government does not want to give Bidouns people rights is a matter of argument depending on how a person views country information. In the Tribunal’s view, it cannot be argued that what the applicant wrote, save for the reference to fearing that he would be physically harmed if he returned to Kuwait because he was a Bidoun who left Kuwait illegally, is incorrect.

109.   However, the applicant’s response that he feared that he would be harmed or mistreated by the Kuwait Government because he left the country illegally is incorrect given his return to Kuwait on a number of occasions for the reasons as noted under the heading ‘Conclusions’ in this section of the decision.

110.   Question 47: Why do you think this will happen to you if you go back?

The delegate relied upon the following extracts from the applicant’s statutory declaration: “the Kuwait Government persecute Bidouns’ and that ‘If I return to Kuwait I will be forced to live without human dignity’ as detailed in the NOICC. Again, the Tribunal struggles to understand how this information is incorrect. Is the delegate saying that it is incorrect that the Kuwait Government persecutes Bidouns? Further, what does the statement ‘live without human dignity’ actually mean, and how is it incorrect? Being forced to live without human dignity is a matter of interpretation, and could cover all manner of factors. For example, people who are homeless may be considered living without human dignity, but they are in no sense persecuted. Further, a person may feel that they are living without human dignity, despite there being no objective basis for considering this to be the case. The Tribunal is not satisfied that the applicant provided incorrect information in relation to this question, as particularised by the delegate.

111.   Question 48: Do you think that the authorities of that country can and will protect you if you go back?

The applicant answered no to this question. The delegate particularised that the applicant had ‘stated that you fear harm by the Kuwaiti Government’ but had voluntarily engaged with the Kuwait Government to obtain a passport, alerting the authorities to the intended travel, and followed by a return to Kuwait on seven times for approximately 18 months in total. As the applicant returned from Australia to Kuwait without apparent issue following seven trips of prolonged and significant duration, the delegate considered that the applicant did not hold the ‘adverse profile’ as claimed in the protection visa application.

112.   There are some problems with this. What does the delegate mean by ‘adverse profile’? Is the delegate saying that the applicant’s claims of past harm in Kuwait (noting he cited specific instances of detention in his protection visa application form) did not occur? Or is the delegate saying that the applicant left Kuwait illegally but had no subjective fear about what would happen on the applicant’s return? These questions leave the Tribunal in a place of significant unease when trying to determine whether the applicant has provided incorrect information as detailed by the delegate for this particular question. Given this, the Tribunal cannot be satisfied that the applicant provided incorrect information in response to the question of whether he thought the authorities of Kuwait can and will protect him if he returned to Kuwait.

Conclusion

113.   The Tribunal has ultimately concluded that the applicant did not provide incorrect information in relation to Question 42, 47 and 48 as particularised by the delegate. However, for the reasons given, the Tribunal is satisfied that the applicant provided incorrect information in response to Questions 45 and (partially) 46 as particularised by the delegate for the following reasons:

114.   The applicant confirmed at the hearing he departed Australia on an Australian travel document and travelled to Kuwait. It was in Kuwait that he secured the Kuwait Article 17 passport and Kuwait Driver licence. He claimed this was done through others.

115.   According to the applicant’s Irregular Maritime Arrival Entry Interview (Folio 8 of original department file concerning the protection visa application), when he first left Kuwait , travelling to [Country 3] and subsequently by boat to Australia, he did so on an Article 17 passport that contained his name and his own photograph. It is incredulous for the Tribunal to believe that the applicant would return to Kuwait after the grant of his protection visa on an Australian travel document that contained the same name and same photograph as that contained in his original Article 17 passport when this passport had been obtained through another person by fraudulent means. This would clearly alert the authorities in Kuwait to his arrival in Kuwait.

116.   Given the applicant claimed that the reason for obtaining the Article 17 passport during his recent trip to Kuwait was because travelling on an Australian travel document would suggest to the authorities that he had claimed protection in Australia, putting him at risk of harm, it is incredulous for the Tribunal to accept that the applicant would initially travel to Kuwait on an Australian travel document. On the applicant’s explanation, it would be reasonable to conclude that he would have obtained an Article 17 passport before travelling out of Australia and used this document to return to Kuwait. Although the applicant told the Tribunal that he was able to secure his safe passage through the airport in Kuwait on the Australian travel document because the person who later arranged the Article 17 passport was able to secure his passage through the payment of a fee, the Tribunal does not accept that the applicant, who claimed to fear harm because he left Kuwait illegally, would take such a risk. Compounded with further travel in and out of Kuwait for long periods of time, on an Article 17 passport issued in the same name as his first Article 17 passport, together with a with the applicant’s photograph, satisfies the Tribunal that the applicant in fact did not fear harm from the Kuwait Government on account of departing Kuwait illegally and that he provided incorrect information that he was in fear of the Kuwait Government.

117.   The Tribunal cannot reconcile that the applicant would need to travel to Kuwait to visit his sick mother when there is evidence of other family members in Kuwait who would be in a position to provide this care. The Tribunal is satisfied that if the applicant genuinely feared harm if he returned to Kuwait, he would not have done so. The Tribunal does not accept the applicant’s explanations that he needed to do so because he was the eldest son or because his relatives were busy with their own families. Further, the Tribunal cannot understand why the applicant would not instead only travel to [Country 1] and care for his mother there, instead of travelling to Kuwait where he feared the authorities. The fact that the applicant published an ‘Appeal for Help’ to meet his mother’s medical costs which contained the applicant’s name, phone number and birth certificate allowing the applicant to be easily identified and contacted, is not consistent with the applicant claiming to fear harm from the Kuwait Government as this would draw attention to the applicant while he was in Kuwait. Further, driving his mother to a clinic in Kuwait is not the discrete type of behaviour that would be expected of the applicant if he genuinely feared harm from the Kuwait authorities on account of leaving the country illegally. He could have been stopped by authorities during these travels and brought to their attention. This behaviour is inconsistent with the applicant’s claims that he was in fact secretive during his time in Kuwait by living between the addresses of family and friends.

118.   Further, the fact that the applicant was previously dishonest in his dealings with the ABF, denying he travelled to Kuwait, demonstrates that the applicant has a flexible approach to the truth and that the Tribunal needs to be guarded when putting reliance on his evidence. While the Tribunal accepts that the applicant’s mother was sick, received treatment in [Country 1] and has subsequently passed away, based on the documents submitted, the Tribunal places no weight on the applicant’s evidence about the circumstances of obtaining the Article 17 passport or the driver licence. Nor does the Tribunal place any weight on the applicant’s evidence about how he was able to travel in and out of Kuwait without coming to the attention of the authorities. The Tribunal is satisfied that the reason that the applicant travelled out of Australian on an Australian travel document (instead of obtaining an Article 17 passport through the intermediary in Kuwait and having it sent to the applicant, and then travelling on that document) was to avoid the Australian authorities being alerted to the fact that the applicant was able to obtain such a document, in contrast to his protection claims which suggested that as an undocumented Bidoon, he had no rights to obtain such documentation.

119.   The Tribunal is satisfied that the applicant did not depart Kuwait illegally when he first left and subsequently claimed protection in Australia. It is satisfied that the applicant left Kuwait on his own validly issued passport, and that the applicant was able to obtain a driver licence in Kuwait and another Article 17 passport not through another person, but because he was entitled to do so. His travel in and out of Kuwait on multiple occasions, in combination with these other matters, leave the Tribunal to be satisfied that the applicant provided incorrect information when he claimed that he would be subjected to physical harm if he returned to Kuwait as he had departed the country illegally.

120.   Although the Tribunal concedes that there is nowhere in the NOICC that states that as a result of the applicant being in possession of an Article 17 passport and Kuwait driver licence, and because of his return to Kuwait on multiple occasions, he is in fact a documented Bidoon from Kuwait, as opposed to an undocumented s Bidoun from Kuwait. It appears that is the inference contained in the NOICC that the delegate has drawn from the possession of those documents and the travel. In the Tribunal’s view such a conclusion, by inferential reasoning, is sound.

121.   For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

122. 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).

123. 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.

124.   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.

What is the correct information?

125.   The correct information is that the applicant does not fear harm from the Kuwait authorities on the basis that he was a stateless undocumented Bidoun who left Kuwait illegally. The correct information is that the applicant is a documented Bidoun from Kuwait who left Kuwait lawfully. The correct information is that the applicant, as a documented Bidoun is able to obtain an Article 17 passport and a Kuwait Government driver licence. As noted earlier, documented Bidoun are treated as foreign migrant workers and do not have the same rights and privileges as Kuwait citizens, but their treatment by Kuwait cannot be said to be persecution. This information weighs considerably in favour of cancellation of the protection visa.

The content of the genuine document (if any)?

126.   This issue does not arise as it was not alleged that the applicant provided a bogus document in support of his protection visa application.

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?

127.   The Tribunal has read the reasons that the RRT remitted the applicant’s protection visa and has read this in combination with the delegate’s NOICC where it confirmed that the applicant had claimed that he would be persecuted as a stateless Bidoun. The Tribunal is satisfied that a stateless Bidoun means an undocumented Bidoun.

128.   The RRT found that the applicant was an undocumented Bidoun who had departed Kuwait on a false passport and that, as a result of being a stateless undocumented Bidoun travelling on a fraudulent passport, he may not be permitted to return to Kuwait at all, and there was a real chance that he would be subjected to prolonged detention in Kuwait as a result.

129.   The Tribunal is satisfied that if the correct information was presented in the protection visa application form that the applicant was a documented Bidoun as opposed to a stateless undocumented Bidoun who was able to obtain a driver licence, passport and depart Kuwait lawfully, he would not have been granted the protection visa. This weighs heavily in favour of cancellation of the protection visa.

The circumstances in which the non-compliance occurred?

130.   The applicant’s non-compliance occurred through declaring untruths in his protection visa form. The non-compliance was not a momentary lapse of judgment, nor was there any subsequent attempt by the applicant to remedy the incorrect information. The applicant has demonstrated no contrition for his behaviour in providing incorrect information. This is a factor that weighs heavily in favour of cancellation of the visa.

The present circumstances of the applicant?

131.   The applicant is [an age] year old man who previously worked for [a] company and has completed TAFE courses. The Tribunal accepts that this is the case. The Tribunal accepts that the applicant is currently a carer for Ms [B] and is in receipt of a carers benefit and has done so for some time. He has a child who is an Australian citizen who he sees almost every day. He explained that he did not live with the child’s mother because of the uncertainty of his visa situation but told the Tribunal that they are in a relationship and that his child lives with her mother. The family did not want to be in a position where they lived together and found the applicant being removed from Australia. As noted, the applicant’s partner provided a letter to the Tribunal confirming their relationship. Both the applicant and his partner stated that her family were not supportive of the relationship. The applicant told the Tribunal that his partner is an Australian citizen. The Tribunal considers these factors as weighing considerably against cancellation of the visa, and it would remove an Australian citizen’s father from the country and hinder continued relationship between father and daughter. It would also hinder the relationship between an Australian citizen woman and render her a single mother through no choice of her own.

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

132.   The applicant has persisted in his claim that the evidence he provided was not incorrect information. The Tribunal has found that in respect of certain responses contained in the protection visa application form that information was indeed incorrect. The applicant has indicated no contrition for providing the incorrect information, or explained the reasons why he did so. In the Tribunal’s view, the applicant’s behaviour is a factor that weighs heavily in favour of cancellation of the protection visa.

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

133.   There is nothing before the Tribunal to suggest that the applicant has engaged in any other instances of non-compliance with his obligations under the Act. The Tribunal gives this factor some weight in favour of not cancelling the protection visa.

The time that has elapsed since the non-compliance?

134.   The non-compliance occurred on 13 July 2012 when the applicant lodged his protection visa application. This occurred nearly seven and a half years ago and during that time the applicant has clearly made a life for himself, his partner and child in Australia. The NOICC was issued some 12 months after the applicant last returned to Australia and the circumstances were present which gave rise to the NOICC. The Tribunal gives this factor considerable weight in favour of not cancelling the visa as the applicant has had this matter ‘hanging over his head’ for some time and experienced the uncertainty of his future pending the resolution of this matter.

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

135.   The applicant presented a National Police Certificate which identified that the applicant had no disclosable court outcomes. There is nothing to suggest that the applicant has engaged in any criminal conduct in Australia. The Tribunal gives this factor considerable weight in favour of not cancelling the visa.

Any contribution made by the applicant to the community?

136.   The applicant did not put forward any evidence that he had made contributions to the community through voluntary work or other community service, save for his role as a paid carer which the Tribunal does not consider a contribution to the community. The Tribunal gives the absence of community contribution some weight in favour of cancelling the visa.

Additional policy considerations?

137.   In addition to the prescribed circumstances discussed above, the Tribunal needs to have regard to any lawful government policy. Departmental guidelines set out a number of matters that should be taken into account when exercising the discretion to cancel the visa, which cover such matters as:

·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, 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

·whether there would be consequential cancellations under s.140

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

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

138.   As the applicant was an illegal maritime arrival, if the protection visa was cancelled, the applicant would become an unlawful non-citizen and would be subject to s.46A(1) which prohibits him from making any further valid visa application. The applicant’s does not presently hold a bridging visa, nor is he in immigration detention. He remains an unlawful non-citizen in the community without any right to remain in Australia. Despite the applicant not being able to lodge a valid bridging visa application, the Minister is able to grant a bridging visa through Ministerial Intervention and the Tribunal understands that the applicant has written to the Minister requesting that this occur. This request was received in April 2019 by the department but no decision has yet been made about whether to grant the applicant a bridging visa, nor has the applicant been taken into immigration detention.

139.   The effect of a cancellation decision will mean that the applicant remains an unlawful non-citizen in Australia and will be taken into immigration detention. The question is whether indefinite detention is a possible consequence of cancellation. As the Tribunal is satisfied that the applicant is in fact a documented Bidoun in possession of an Article 17 passport, the Tribunal is not satisfied that the applicant would remain in immigration detention indefinitely and that he would be returned to Kuwait in the ordinary course of the removal of non-citizens from Australia. There is nothing before the Tribunal to suggest that Kuwait refuses to accept the return of documented Bidouns to that country. This is a factor that significantly weighs in favour of the decision to cancel the protection visa.

140.   Although the applicant declared in his protection visa application that was married and had a son in Kuwait, this relationship appears to now be over. He has now fathered a child with an Australian citizen and is in a relationship with the child’s mother. No other person was included in the applicant’s protection visa application, so no other person would have their visa cancelled as a consequence of cancelling the applicant’s visa. This is a considerable factor in favour of cancelling the visa because it would have no impact on the visa any other person.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation?

141.   At the time of the delegate decision to cancel the visa on 12 July 2017, the applicant had not fathered a child with his now partner (according to the material, the applicant and his partner met in July 2017). Consequently, the delegate did not consider the best interest of the child principles under the Convention on the Rights of a Child that Australia to which Australia is a signatory. As noted in the applicant’s submissions, this convention requires that the best interests of a child shall be a primary consideration in all actions which concern children. The evidence before the Tribunal is that the applicant has fathered an Australian citizen child. His evidence is that he has a meaningful relationship with his daughter. Despite not living with his daughter and her mother, he sees his child almost every day.

142.   It cannot be in the interests of an Australian citizen child to have the relationship with her father terminated with his removal to Kuwait. While there may be some occasions when it is preferable for a child to have no relationship with his or her parents, due to neglect or incapacity of a person to look after themselves, let alone a child, as a general principle a child is best served by having a meaningful and genuine relationship with its parents. There is nothing before the Tribunal to suggest that the applicant is the type of person who should not have a relationship with his child and that it would be in the child’s best interests for her father not to be involved in her life.

143.   There is no information before the Tribunal to suggest that the applicant’s child or partner  would be able to easily relocate to Kuwait to maintain a meaningful relationship as a family unit. But even if there was, in the Tribunal’s view it would be unreasonable to suggest that Australian citizens should be faced with a stark choice of either relocating overseas if they wished to maintain and continue to develop their relationship, or have no meaningful relationship at all by the family unit separating and being in two separate countries.

144.   The Tribunal is satisfied that it would be in the best interests of the applicant’s child that the applicant remains in Australia. This is a significant factor weighing in favour of the decision not to cancel the protection visa.

Hardship to family?

145.   Although not specified in r.2.41 or department policy, the effect on family members can be a relevant consideration in exercising the discretion to cancel a visa. In this case, cancellation of the protection visa would result in the applicant’s partner becoming a single mother and being forced to raise their daughter alone. The hardship faced by single parents is, in the Tribunal’s view, inherent. The applicant’s partner would have no means of the most important support that could be offered to her by the applicant to his partner, namely assistance in raising their daughter. This is a significant factor weighing in favour of not cancelling the protection visa.

Conclusion

146.   When the Tribunal considers all the factors weighing in favour of cancellation of the protection visa, against those factors weighing in favour of not cancelling the protection visa, the Tribunal has come to the ultimate conclusion that the protection visa should not be cancelled. The factors weighing in favour of not cancelling the protection visa outweigh the factors in favour of cancelling the protection visa. The Tribunal can well understand that there may be disquiet about allowing a person to remain in Australia who has provided incorrect information which has resulted in that person being granted a protection visa, and that the applicant, as a documented Bidoun from Kuwait who has travelled back there on a number of occasions, and been able to obtain an Article 17 passport and Kuwait driver licence, does not face a real chance of serious harm on account of his ethnicity as a documented Bidoun in Kuwait. However, the hardship likely to be suffered by the applicant’s partner, and the fact that it would be in the best interests of the applicant’s Australian citizen child for the applicant to remain in Australia, together with the absence of any other non-compliance or breach of Australia’s laws through criminal conduct, lead the Tribunal in a position where it must exercise its discretion in favour of the applicant. To exercise the discretion in favour of cancellation of the protection visa would, in the circumstances of the present case, be unreasonable.

DECISION

147.   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.

148.   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.