1723990 (Refugee)

1723990 (Refugee) [2019] AATA 698 (25 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723990
COUNTRY OF REFERENCE:                  Other
MEMBER:Tania Flood
DATE:25 March 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 25 March 2019 at 11:47am

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – incorrect information in protection application and applicant’s return trip to Iraq – non-compliant under s107 – Tribunal not persuaded applicant is stateless – Bidoon – political opinion – applicant threatened by Badr forces – well-founded fear of persecution by Iraqi militia groups – risk of serious harm if returned to Iraq – relocation in home country not reasonable – applicant has young family – best interests of children – decision under review set aside and substituted with decision not to cancel visa
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 424aa
Migration Regulations 1994 (Cth) Schedule 2, r 2.41
CASES
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 15 July 2016 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. On 9 August 2016 the applicant responded to this notice through his representative. Attached to the response were various supporting documents.
An International Treaties Obligations Assessment (ITOA) was initiated and concluded on 26 July 2017.
On 18 September 2017 the applicant’s Subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109 of the Act. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his application for protection. The delegate concluded that the applicant was not at risk of harm due to his stateless status or of any adverse interest to militia groups at the time of his protection visa application as he is an Iraqi citizen.
The applicant sought review of the decision on 4 October 2017 and provided a copy of the decision to cancel his visa.
The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
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 Notice of Intention to Consider Cancellation
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
The applicant arrived in Australia as an illegal Maritime Arrival (IMA) [in] January 2010.
He requested a Refugee Status Assessment on 18 October 2010. He was assessed as not being a refugee, and was notified of this decision on 9 December 2010. He applied for an Independent Merits Review of this decision on 5 January 2011, and was found to meet the criterion for a protection visa and was recognised as a person to whom Australia has protection obligations on 7 October 2011.
On 3 November 2011 the applicant provided an application form 866C which led to the grant of his subclass 866 (Protection) visa on 9 November 2011.
On the application form 866C, for question 20 which states “Your citizenship” he answered “Stateless”.
For question 21 where it states “Do you hold any other citizenship or are you a national of any country?” he answered “No”.
For question 44 where it states “Who do you think may harm/mistreat you if you go back?” he answered “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 18 October 2010 and my interview of 18 October 2010, and all my documents submitted in support of my application for independent merits review, and my independent merits review hearing.”
In support of his application, and as stated in question 44 in his application form 866C he provided a Statutory Declaration, dated 18 October 2010. In this declaration he made the following statement:
“I cannot return back to Iraq because my life is in danger. I would not be safe in Iraq. There are many militia groups operating in Al Basra and now that they think I am working for the international forces, I fear that members of the militia, such as the Badr forces, will capture me and torture me. They have not believed me when I explained I am not an [Occupation 1] and if I am tortured, I may be forced to say that I am an [Occupation 1] or that I do work for the international forces because a person will say anything to stop the torture. I think that they will kill me because they think I am working as an [Occupation 1]. I will not be safe anywhere in Iraq.”
He also made the following statement on the Statutory Declaration:
“In 1991 my family moved to Al Naserieh [in] Iraq. We were granted Iraqi civil status cards but this is not the same thing as citizenship. I was very young when we arrived to Iraq. I barely remember where we lived.”
During an Independent Merits Review interview he provided information that he does not hold any citizenship, and that he would face serious harm if he were to return to Iraq.
On the basis of the claims made the applicant was granted a subclass 866 (Protection) visa on 9 November 2011 on the grounds that there is a real chance he will suffer serious harm if he returns to Iraq for reason of imputed political opinion ([Occupation 1] working for ‘friendly sides’).
The notice states that Departmental movement records indicate that the applicant departed Australia [in] May 2012 and returned to Australia [in] July 2012. On his arrival passenger card to Australia [in] July 2012 for the question “Country where you spent most time abroad” his answer was “Iraq”.
The notices also states that Departmental movement records indicate that he departed Australia again [in] February 2015 and returned to Australia [in] April 2015. On his arrival passenger card to Australia dated [April] 2015 for the question “Country where you spent most time abroad” his answer was “Iraq”.
Upon return to Australia [in] April 2015 the applicant was found to be carrying a letter from the Iraqi Consulate General in [Australia], issued [in] February 2015, confirming that he is an Iraqi citizen.
In the notice the delegate put it to the applicant that he has not complied with s.101(b) of the Act given his recent travel back to Iraq indicates his fear of militia groups such as the Badr forces and his claim that he will not be safe in any part of Iraq appear unsupported. Further, the delegate put it to the applicant that if the letter from the Iraqi Consulate General in [Australia] confirming he is an Iraqi citizen was correctly declared at the time of his protection visa application it might have resulted in a different migration outcome.
The delegate put it to the applicant that it appears he provided incorrect answers to the following questions in his application for a protection visa:
At question 20 of Part C of the Form 866 which states “Your current citizenship” you answered “Stateless” as you are an Iraqi citizen and were so at the time of your RSA/protection visa interview.
At question 21 of Part C of the Form 866 which states “Do you hold any other citizenship or are you a national of any other country/” you answered “No” as you hold Iraqi citizenship.
At question 44 of Part C of the Form 866 which states “Who do you think may harm/mistreat you if you go back?” you answered “Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 18 October 2010 and my interview of 18 October 2010, and all my documents submitted in support of my application for independent merits review, and my independent merits review hearing” as the evidence available indicates that you are an Iraqi citizen and have returned to Iraq within a short period of time after being granted your visa and on another occasion in 2015. This indicates that your claims of being stateless and unsafe in any part of Iraq are unfounded and incorrect.
The delegate put it to the applicant that it appears he has not complied with section 101(b) of the Act in relation to the Statutory Declaration described above in which he claims he needs protection in Iraq because he has an adverse profile in Iraq and does not hold Iraqi citizenship because the evidence available indicates he is an Iraqi citizen and has returned to Iraq within a short period of time after being granted a visa and on another occasion in 2015. This indicates that his claims of being stateless and unsafe in any part of Iraq are unfounded and incorrect.
The delegate also put it to the applicant that it appears he has not complied with s.101(b) of the Act in relation to his interview regarding the Independent Merits Review decision on 1 September 2011. During this interview he provided information that he does not hold any citizenship and that he would face serious harm if he were to return to Iraq. The evidence available indicates that he is an Iraqi citizen and has returned to Iraq within a short period of time after being granted a visa and on another occasion in 2015. This indicates that his claims of being stateless and unsafe in any other part of Iraq are unfounded and incorrect.
The applicant was advised that he could comment on the possible non-compliance and also give a written response as to why his visa should not be cancelled. He was advised he should provide reasons as to why he thought he had complied, or why he had not complied with s.101(b) of the Act. The notice set out the time period within which to provide a response, relevant legislation provisions and a summary of matters to be considered in relation to a protection visa cancellation.
The delegate also invited the applicant to give reasons as to why the visa should not be cancelled, taking into account the matters in Regulation 2.41 of the Migration Regulations 1994, on the basis that notwithstanding his submissions on non-compliance, the delegate may find that he did not comply with s.101(b) and he should address the discretionary issues.
Response to the notice
On 9 August 2016 the applicant’s representative provided a response on his behalf.
As to his claimed arrival as an IMA on [in] January 2010 the applicant states that this is incorrect as he arrived in September 2010.
The applicant maintains that he held an Iraqi Civil Status Certificate which is not the same thing as citizenship. His birth certificate and immunisation card confirm he was born in Kuwait. The Civil Status Certificate incorrectly shows his birth place as [a town].
As to his travel outside of Australia [in] May 2012 the applicant states that he declared the correct information on his arrival passenger card. He entered Iraq through the international airport. At the time the militia didn’t know who was arriving in Iraq. If they saw him in Iraq he would be in danger of being killed. He did not advise anybody he was going back to Iraq other than his immediate [family]. [Details deleted]. At the time he had married in Iraq. His family arranged the marriage and he went discretely and spent his days hiding indoors so the militia would not know he was back in Iraq. He was in hiding at his wife’s uncle’s [house]. A few days before the wedding his other family members of around 15 were invited to the wedding. They were surprised to hear he was back in Iraq. They attended the wedding. What should have been a time of celebration was spent in fear. Another outing was when they went to a theme park. He was scared but took his chances. He was picked up by his wife’s uncle. He disguised himself with glasses and her uncle drove into the yard of the house where he was hiding to pick him up.
As to his travel outside of Australia [in] February 2015 the applicant states that his mother was very sick and he had to go to see her. He entered Iraq through the international airport. At the airport there was a lot of security and he was not in danger at the airport. The militia did not know he was travelling to Iraq. If they knew they would have taken him and tortured him and killed him. He spent most of his days indoors with his mother. He had a very bad scare about his mother’s health. There is no way he would have gone back again and put himself in danger if his mother wasn’t sick.
As to being in possession of a letter from the Iraqi Consulate General in [Australia] the applicant reiterates that he is not an Iraqi citizen. If he was an Iraqi citizen the embassy would not state his Australian document number on their letter and say he is a citizen. The embassy issues passports to their citizens not letters. The letter was written for his daughter to enter Iraq with her Australian passport. He provided his Civil Status Identification to the Iraqi Embassy to provide his identity and the Embassy wrote the statement. He does not have an Australian passport or an Iraqi passport. If he was a citizen of Iraq the Embassy would not write such a statement but would have requested he apply for an Iraqi passport. He went to the Iraqi Embassy to register the birth of his baby and to get her a citizenship certificate. He was told his daughter could not be an Iraqi citizen because he is not an Iraqi citizen. Only his wife is an Iraqi citizen and children born to fathers of non-Iraq nationals cannot be Iraqi citizens. He insisted they give him something in writing. They were hesitant and asked for his Civil Status Certificate. They took it into a room and they only wrote that his daughter is an Iraq citizen for the airport. He is not an Iraqi citizen and his daughter and son are both born in Australia and are Australian citizens. They cannot obtain Iraqi citizenship. He is stateless, his wife is an Iraqi citizen.
It is submitted that there was no condition on the applicant’s visa stating he could not travel overseas.
It is submitted that the applicant has complied with s.101(b) of the Act in relation to the Statutory Declaration. He was in need of protection in Iraq. The militia went to the family home asking the whereabouts of the applicant and took his brother instead. The applicant’s mother found a letter in their home and it states that the militia knew the applicant was working as an [Occupation 1] (which he was not) and there was a drawing of a dead body and two bullets with the letter. The applicant’s mother told him to stay away from home but he did not listen to his mother and went home to see the letter. He realised the seriousness of the threat when he saw the letter. He decided to leave Iraq. He was a temporary resident of Iraq not a citizen.
It is submitted that the visa should not be cancelled because the applicant cannot live in Iraq with fear that the militia will find out he is in Iraq and will torture and kill him. The applicant has been living in Australia since September 2010, has a wife and [a number of] Australian born citizen children. The children only know Australia as home and if he returns to Iraq he will be killed, his wife will be a widow and his children will have lost their father. Studies indicate that children experience major depression, mental health problems and substance abuse when they lose a parent.
Attached to the submission are the following documents:
-    The applicant’s birth certificate
-    The accommodation licence of the applicant’s father (issued in Kuwait)
-    The applicant’s Civil Status Identification (with incorrect place of birth)
-    The applicant’s Red Cross Card
-    An Iraq Citizenship Certificate of [name].
-    Temporary Citizenship dated [in] July 1991 – after three months he was issued an Iraq Civil Status Certificate.
-    Civil Status Identification of [name]
-    Marriage Certificate
-    Confirmation of mother’s illness
-    Birth Certificates of [children]
-    Australian passport of child
-    Character reference from [a] Medical Centre
-    Article on loss of parent
Evidence to the Tribunal
On 25 January 2009 the applicant’s representative provided a submission to the Tribunal which states:
The applicant is a stateless person and has provided consistent oral and written evidence in regards to his residential status in both Kuwait and Iraq. Though born in Kuwait he was deported from his country due to his Bidoon ethnicity. He was never officially recognised as a citizen of Kuwait and is unable to return to Kuwait following the circumstances surrounding his family’s deportation. The applicant never gained citizenship in Iraq; he and his family were only able to obtain Iraqi civil status cards. It is submitted that this is not equivalent to citizenship and hence the applicant is stateless.
The applicant has consistently submitted evidence as to the discrimination he faced in Iraq. He has previously provided to the Department statements as to his attempts to become a member of [an organisation] in Basra and further explained how his application was rejected due to his not being recognised as a citizen of Iraq. He faced further discrimination at school and in employment.
The applicant has consistently claimed that he has a well-founded fear of persecution for reasons of being imputed with a political opinion. In his protection visa interview he explained the course of events that led to his being suspected of being a collaborator for the ‘friendly sides’. He described how he was threatened by the Badr forces and how his family were intimidated by them.
It is submitted that the applicant is still a refugee. Beyond the widespread and systematic discrimination of Bidoon peoples, the Badr forces are still active members of Iraqi political and militant structures. In addition, he may be subject to a greater threat of harm now through his membership of a particular social group, returned asylum seeker from a country closely associated with the ‘friendly sides’ the Badr forces were so opposed to.

It is acknowledged that the applicant returned to Iraq. His account of his interactions and associations while in Iraq are all consistent with his claims for seeking refuge. He remains at risk of serious harm should he be forced to depart Australia and return to Iraq. He will not be able to escape the harm through relocation to other areas of Iraq.
Furthermore, his visa should not be cancelled due to his intimate ties with Australia. He has [a number of] children, all of whom were born in Australia and are under the age of [number]. The forcible removal of the applicant from Australia would be against the better interests of his Australian citizen children. Since Australia ratified the Convention on the Rights of the Child in 1990 it has a duty to ensure that all children in Australia enjoy the rights set out in the Treaty. In particular the right to know and be cared for by his or her parents and to not be separated from his or her parents against their will except in circumstances when such separation is necessary for the best interests of the child. The young age of the children is noted and it is submitted that the consequences of cancelling their father’s visa at this early stage of their development would be catastrophic. Denial of the right of the children to know and be cared for by their father would be unjust and against their better interests. The forcible removal of the applicant would also have an adverse impact on the mother of the Australian citizen children.
The applicant provided oral evidence to the Tribunal on 28 February 2019 regarding his citizenship, his return visits to Iraq, the reasons for his return and the details of what he did when he was there. The Tribunal found his oral evidence to be consistent with the submissions outlined above.
Post-hearing submissions
On 13 March 2019 additional documents were provided for consideration by the Tribunal including a letter from [an employment service], a letter from [a] Medical Centre, a statement from the applicant’s wife and various photographs of the applicant and his family.
In her statement the applicant’s wife states that if her husband’s visa is cancelled she will be faced with either returning to Iraq with her children and raising them in an unsafe environment or remaining in Australia with them and thereby separating them from their father.
Was there non-compliance as described in the s.107 notice
During the hearing, the Tribunal discussed with the applicant the fact that he has previously claimed to be a stateless person in Iraq. Pursuant to the requirements at s.424aa of the Act the Tribunal put it to the applicant that with his consent the Iraqi Consulate in [Australia] was contacted [in] November 2018 to request confirmation of his citizenship in light of the letter found in his possession on his arrival in Australia in 2015. The Tribunal advised the applicant that [in] December 2018 the Iraqi Consulate replied to the request stating that they can confirm he is indeed an Iraqi citizen. Furthermore, the Tribunal put it to the applicant that an Independent Merits Review decision which led to the grant of his protection visa indicates that he said that due to his status in Iraq, should he marry his marriage wouldn’t be registered and he would not gain a marriage certificate, even if married to an Iraqi citizen. The Tribunal put it to him that despite claiming this he has since produced proof of his marriage in the form of a marriage certificate. The Tribunal informed the applicant that this information would, subject to his comments on, or response to it, be the reason or part of a reason for affirming the decision which is under review. The Tribunal put it to the applicant that the information is relevant because it appears to contradict his claim to be stateless. The Tribunal advised the applicant that if it were to rely on the information it may find that he has provided incorrect information as part of his application for a protection visa and find that there are grounds for cancellation of his protection visa.
The applicant opted to respond verbally to the information. He said that when he first arrived [in Australia] he provided his photo id which is not the same as a citizenship certificate. He said only his wife is an Iraqi citizen. He said that if the Iraqi Consulate maintains he is an Iraqi citizen then they should produce a citizenship certificate to this effect. He went on to explain that his daughter has an Australian passport and when he travelled to Iraq with his family he needed a document from the Iraqi Consulate to confirm he is the child’s father. He likened the letter he received from the Consulate to a visa. When asked for an explanation as to why the Iraqi Consulate would declare him a citizen if he is not he said he does not know.
The Tribunal also discussed with the applicant the fact that his Civil Status Certificate lists his place of birth as [a location] which is in Iraq. The applicant responded that his Kuwait birth certificate proves he was born in Kuwait. He said that his birth certificate was provided to the Iraqi’s when they settled there. He said the Iraqi’s said they would give them an estimated date of birth because they wouldn’t follow the Kuwaiti birth certificate.
The Tribunal also pointed out that his children’s birth certificates also list Al Basrah, Iraq as the father’s place of birth. The applicant stated that this is because his protection visa says he is Iraqi.
When asked how he was able to obtain a marriage certificate despite claiming he could not on account of being stateless, he said that his wife is an Iraqi citizen and while he could not get a certificate she was able to.
The Tribunal put it to the applicant that the weight of the evidence before it points to him being an Iraqi citizen. He requested a period of two weeks in order to go back to the Iraqi Consulate for further clarification of his status.
On 13 March 2019 the applicant’s representative advised that they are still waiting for an advice from the Iraqi Consulate. At the time of decision, no further information has been received and the Tribunal considers the applicant has been afforded more than the agreed two weeks to produce further evidence.
The Tribunal has considered the applicant’s responses in respect of his Iraqi status but is not persuaded, on the bulk of the information before it, that he is stateless. The Tribunal finds the applicant has not provided satisfactory or plausible explanations as to why the Iraqi Consulate would declare him a citizen if he is not, why his Civil Status Certificate indicates he was born in Iraq and why he himself lists his place of birth on his children’s Australian birth certificates as Al Basrah, Iraq. The Tribunal considers the correct information at the time he made his application for a protection visa is that he is an Iraqi citizen. Therefore the Tribunal considers he provided incorrect answers in his application form and accompanying declarations in respect of this matter.
For these reasons, in this respect the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the manner described in the s.107 notice.
The notice also suggests that the applicant’s return trips to Iraq also indicate that he provided incorrect information in respect of fearing militia groups such as the Badr forces because they believe he was working as an [Occupation 1] for the ‘friendly sides’. Having considered both his oral and written responses to this matter the Tribunal accepts the applicant returned to Iraq on the first occasion to get married and on the second occasion to visit his sick mother. The Tribunal accepts he limited his public exposure while in Iraq and that he remained in the country for relatively short periods of time on each occasion.
The Independent Merits Reviewer considered the applicant provided a credible account of his experiences with the militia in Iraq and that his detailed evidence was substantially consistent with the information provided at previous interviews and generally congruent with relevant country information.
The delegate’s decision to cancel the applicant’s visa was based in part on his return trips to Iraq without hindrance. The conclusion drawn is that the applicant does not fear harm from militia groups and does not hold the adverse profile he claimed in his protection application. The delegate found he provided incorrect information about his claimed experiences with the militia when he applied for his protection visa.
The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, having considered the individual circumstances of the case and the claims which were made the Tribunal is of the view that the applicant returning to Iraq on two occasions, in the circumstances described, does not mean that he provided incorrect information in this respect, as identified by the delegate, in his protection visa application. In forming this view the Tribunal notes and finds it significant that the applicant has not claimed to fear the authorities in Iraq or that he would be arrested if he returned to Iraq. The applicant claimed that he fears harm from militia groups and that the authorities could not protect him from his persecutors.
The applicant was unwise and reckless to return to Iraq as it placed him in the position where his visa could be cancelled. However, that he did return is not a persuasive reason to find that the information he provided in his application for a protection visa and accompanying statements about his fear of militia groups was incorrect. The Tribunal is not satisfied that the applicant provided incorrect answers to the question “Who do you think may harm/mistreat you if you go back?” in his protection visa application because he returned to Iraq in the circumstances described. In forming this view the Tribunal has had regard to its finding in respect of the applicant’s status in Iraq but does not find that his misrepresentation of this fact means that all the information he provided in his application for a protection visa is unable to be believed. Relevantly, the Tribunal notes the Independent Merits Reviewer found his evidence to be generally congruent with independent country information.
In respect of the applicant’s claims to fear harm from militia groups in Iraq on the basis of imputed political opinion, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act in one respect, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed in s.109(2) of the Act.
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about 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. 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 correct information
The applicant maintains that he has not provided any incorrect information. However, for the reasons discussed above the Tribunal considers the correct information in respect of his status in Iraq is that he is an Iraqi citizen and not stateless as is claimed.
The content of the genuine document (if any)
Not relevant in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Independent Merits Reviewer found in the decision which led to the grant of the protection visa that the applicant does not hold Iraqi citizenship and is stateless. The reviewer summarised his claims as twofold: fear of serious harm resulting from discrimination because of his unrecognised status in Iraq and fear of serious harm as a consequence of his imputed political opinion, as a supporter of the allied forces in Iraq. The reviewer went on to consider the latter claim and was satisfied on the available evidence and country information that the applicant has a well-founded fear of persecution by reason of his imputed political opinion. The reviewer did not proceed to consider the other claims made by the applicant.
In the Tribunal’s view the decision to grant the applicant a protection visa, while accepting he is stateless, was nevertheless based on his imputed political opinion as a supporter of the allied forces in Iraq. It appears that had the Independent Merits Reviewer been aware of the correct information in respect of the applicant’s citizenship at the time of the decision, it is likely he would still have been granted a protection visa.
For this reason the Tribunal affords this significant weight towards the visa not being cancelled.
The circumstances in which the non-compliance occurred
The applicant maintains there has been no non-compliance in respect of the information provided about his status in Iraq. The applicant claims to fear serious harm at the hands of militia groups in Iraq and as noted the Independent Merits Reviewer found his account of events to be credible. While the Tribunal does not condone the applicant providing incorrect information in his application for a protection visa it accepts he was scared for his safety in Iraq. The Tribunal accepts that applicant’s fleeing persecution in their home countries sometimes overstate or misrepresent aspects of their claims in order to strengthen their case. As noted, just because the applicant has lied about his status in Iraq in order to strengthen his claims for protection the Tribunal has not concluded that this means all of the information he provided in his application and accompanying statements is therefore incorrect.
For this reason the Tribunal gives this factor some weight towards the visa not being cancelled.
The present circumstances of the visa holder
The applicant married his Iraqi citizen wife in 2012. She later came to Australia and is now an Australian citizen. The applicant and his wife have [a number of] children, all born in Australia ([specified years]). [A number of the] children are Australian citizens and they are awaiting confirmation of citizenship of [another] child. The family all live together in rental accommodation. The applicant has been working in [a certain] industry as [an Occupation 2]. Recently he commenced a new job with a former employer [in] February 2019. He is intending to start his own business in the future. The applicant’s wife does not work; rather she is a full-time carer for their children. His wife [has a health condition].
The applicant has held steady employment and is the sole provider for his Australian citizen wife and children. The Tribunal has given this and other related factors outlined below some weight in favour of the visa not being cancelled.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Regrettably the applicant has maintained that he did not provide any incorrect information despite the bulk of the available evidence indicating that he is an Iraqi citizen. The Tribunal gives this factor some weight towards the visa being cancelled.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance and the Tribunal gives this little weight in favour of the visa not being cancelled.
The time that has elapsed since the non-compliance
The applicant’s protection visa was granted on 9 November 2011. His visa was cancelled almost six years later on 18 September 2017. In the intervening years the applicant appears to have integrated in the community, working and starting a young family. The Tribunal gives this some weight towards the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information that the applicant has breached the law in any way and the Tribunal gives this some weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community
The applicant stated at hearing that he and his wife sometimes donate to charities. His representative submitted that the applicant understated his work experience and is in fact a highly skilled [Occupation 2] who imparts his skills and experience to his co-workers and who is intending to start his own business in the future. The Tribunal gives this little weight towards the visa not being cancelled.
The Tribunal has also considered the Departmental guidelines, which include the following relevant factors in this case:
Whether there are mandatory legal consequences, such as whether the 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.
The applicant would be barred from making further visa applications. He would be liable to detention. However, it would appear that he can obtain a passport or other travel document and return to Iraq and be admitted to the country. That said, he maintains he has a genuine and well-founded fear of persecution in Iraq. For reasons outlined below the Tribunal has not found it necessary to deal with concerns that might occur if he returns to Iraq in such circumstances.
Whether there would be consequential cancellations under s.140
The available evidence indicates that the applicant’s wife and [a number of] children are Australian citizens and that their [other] child is likely to soon be granted Australian citizenship. The Tribunal gives this little weight in favour of the visa not being cancelled.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulment obligations, family unity principles or the obligation to consider the best interests of the child
The Convention on the Rights of the Child[1] to which Australia is a party, relevantly provided 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” and further that “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being”[2]. The Convention also provides for what is understood to be a protection of family unity, contained in several articles and the preamble that provide the right of the child to be cared for by his or her parents[3], preservation of family relations[4] and that children are not separated from their parents against their will unless such separation is necessary for the best interests of the child[5].
[1] Article 3, Convention on the Rights of the Child
[3] Article 7, Convention on the Rights of the Child
[4] Article 8, Convention on the Rights of the Child
[5] Article 9, Convention on the Rights of the Child

As noted and accepted the available evidence indicates that the applicant’s wife and [a number of] children are Australian citizens and that their [other] child is likely to soon be granted Australian citizenship. During the hearing the Tribunal asked the applicant whether he and his wife have discussed what they will do in the event that his visa is cancelled and he is required to return to Iraq. The applicant responded that his wife would be left in a very bad situation because if he is deported she will have to go with him. He said that his wife and children will not want to leave Australia but it will be necessary for them to remain together. He submitted that his whole family should not be forced to return to an unsafe Iraq just because of his actions. He said they have an opportunity to be educated and raised in a safe country and their needs should be considered first and foremost.
The Tribunal considers the statement provided by the applicant’s wife post hearing provides a different perspective on what might happen in the event the applicant’s visa is cancelled. Understandably in the circumstances, she states that the situation is causing her much stress and sleepless nights as she grapples with what to do in the circumstances. On the one hand, she says she does not want to put her children in danger by returning with them to an unsafe Iraq and on the other hand she fears she will be blamed for separating her children from their father if she chooses to remain in Australia in the event he is deported. In the Tribunal’s view the statement raises a real possibility that she may decide to remain in Australia without her husband and the children’s father. For instance, she states “I do not think it is healthy or safe for my children if their father is sent to Iraq against his will and we do not go with my husband because I want my children to grow in a safe country and enjoy freedom. My children will never forgive me for not going with their father to Iraq when they grow up. Their father will be a stranger to the children”. Further, she states, “What will happen to me if I don’t join my husband, how can I look at my children knowing I have separated my children from their father?”.
On the available evidence the Tribunal considers the potential outcome of the applicant’s visa being cancelled and he returning to Iraq could result in the separation of the children from their father by them remaining in Australia with their mother. Non-compliance and the abuse of the visa system are serious matters, however, the Tribunal is required to take account, where relevant, of consideration of the best interests of the child and to give this a primary consideration. The Tribunal finds that the best interests of the applicant’s children would be for them to be cared for by both their parents and for them not to be separated from their father. The principle of family unity confirms that their father (and mother) should remain in Australia. To remove their father would lead to their best interests not being given a primary consideration and to the principle of family unity being breached.
The Tribunal has weighed the best interests of the child against the seriousness of the non-compliance. The Tribunal agrees that the applicant provided incorrect information about his status in Iraq but does not find that this means that all of the information he previously provided in respect of his claims for protection is unable to be believed. Indeed the Tribunal considers that had the Independent Merits Reviewer been aware of the correct information in respect of the applicant’s citizenship at the time of the decision, it is likely he would still have been granted a protection visa.
Notwithstanding the above, the Tribunal finds 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 and considerations 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.
Tania Flood
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 698

25 March 2019

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