1731861 (Migration)

[2018] AATA 5889

1731861 (Migration) [2018] AATA 5889 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731861

MEMBER:Antoinette Younes

DATE:8 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 202 (Global Special Humanitarian) visas.

Statement made on 08 November 2018 at 4:14pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – stateless – Kuwaiti Bidoon – religion – Sunni Muslim – sponsor's visa cancelled – identity issues – inconsistent evidence – credibility issues – best interests of child – children assimilated into community – death of child – circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109, 116, 140

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicants’ Subclass 202 (Global Special Humanitarian) visas under s.140(2) of the Migration Act 1958 (the Act), on the basis that the protection visa of the first named applicant’s spouse was cancelled on 14 December 2017, pursuant to s.116(1AA) of the Act.

2. The first-named applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

3. The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicants’ visas should be set aside.

   BACKGROUND

5. Mr [A] is the first named applicant’s husband and father of all other named applicants.  On 14 December 2017, a delegate of the Minister cancelled Mr [A]’s Subclass 866 (Protection) visa under s.116 of the Act. 

6. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied of Mr [A]’s identity. Mr [A] has lodged a review with the Tribunal which has now been finalised.

7. Under s.140 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.140(2). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

8. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

   ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

   ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

9. In the current matter, the applicants’ visas were cancelled under s.140(2) because they were sponsored by a person whose visa was cancelled, Mr [A].

   Cancellation of Mr [A]’s protection visa and Tribunal decision on review

10. Mr [A]’s protection visa was cancelled under s.116(1AA) because the Minister was not satisfied of his identity.

    Protection and identity claims made by Mr [A]

11. [In] June 2009, Mr [A] arrived on Christmas Island as an unauthorised maritime arrival claiming to be a stateless Kuwaiti Bidoon who lived in Iraq illegally.  On arrival, he attended an entry interview with a Departmental officer and during this interview, he stated “I have no citizenship so I have no legal papers in Kuwait, Iraq or Syria. All I had was a real birth certificate from Kuwait.”  On 14 September 2009, he lodged an application for a protection visa in the name of [Mr B] with a date of birth of [Date 1]. As part of this application, he provided a Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee.  Question 1 of Form 866C asks “What is your full name?”, he stated “[Mr B]”. Question 4 of the Form 866C asks “What other names have you been known by?”, he did not provide a response to the question. 

12. In support of the protection visa application, Mr [A] provided a signed Statutory Declaration dated 9 July 2009 in which he declared, amongst other things, “… I also got false Iraqi documents, being a false military book and a false ID card… My wife and I had children together. We now have [a number of] sons and [daughters]. Our children do not have any identity documents or any access to education. My children and I are stateless… Couldn’t go back to Kuwait or Iraq because I have no citizenship in either place… My mother and father have no citizenship. I have no citizenship. My children have no citizenship. We are all stateless.”  [In] September 2009, Mr [A] was granted a protection visa in the name of [Mr B].

13. On 9 November 2009, Mr [A] completed and signed Form 681 Refugee and special humanitarian proposal in support of his wife who is the first-named applicant, [Ms C] and their [children], [named], for Class XB subclass 202 Refugee and Humanitarian visas. With this application, Mr [A] provided a translated copy of his marriage certificate, dated [in] August 1996, containing the name of [Mr D] in reference to Mr [A].

14. On 12 December 2010, Mr [A] was interviewed in relation to the subclass 202 application and during this interview, he stated that he used an Iraqi identification card in the name of [Mr E] during his time in Iraq. He claimed this was the identity of a deceased person and that his children had Iraqi identity documents issued when he held that identity. The Iraqi identification cards provided to the Department on 20 January 2011 to support the children’s identity, all listed their surnames as [specified]. The Iraqi identification card contains name details [Mr F] and refers to the place of birth as Thi Qar, Iraq. The first-named applicant and the children were all granted subclass 202 visas on 14 June 2011 based on this information.

15. [In] January 2014, Mr [A] changed his name by deed poll to [Mr A].  On 10 June 2014, Mr [A] lodged an application for Australian citizenship in the name of [Mr A] including his [children]. As part of the application, he completed and signed Form 1290 - Application for Australian Citizenship Other Situations. As part of this process, he was referred for an identity assessment as a consequence of the number of names he had provided to the Department since his initial arrival [in] June 2009.

16. On 29 May 2015, Mr [A] was interviewed by the Identity Assessment Officer to confirm his true identity. The identity assessment was completed on 15 July 2015 and concluded that Mr [A]’s identity was not supported. It was concluded that he had not provided genuine or reliable identification documents to support his claims that he was known as [Mr B] at the time of the protection visa application. 

17. The identity assessment determined Mr [A] had been known by a number of names such as [Mr B] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Mr F] (date of birth [Date 2] – Iraqi national), [Mr A] (date of birth [Date 1] – stateless Kuwaiti Bidoon), [Mr G] (date of birth [Date 3] – Iraqi citizen), [Mr H] (unknown date of birth – stateless Kuwaiti Bidoon), [Mr D] (unknown date of birth – Iraqi national), [Mr E] (unknown date of birth – Iraqi national). The identity officer concluded that Mr [A] and his children had always access to legitimate Iraqi citizenship. The fact that Mr [A] married an Iraqi citizen in 1996 means that he might have been eligible to obtain Iraqi citizenship through the marriage. Mr [A] presented at the entry interview and protection visa application as being an undocumented stateless person but later provided Iraqi identification documents for himself and his children at the time of the application to migrate to Australia.

18. Mr [A] provided a number of explanations and submissions.  He attended a hearing before the Tribunal on 23 October 2018.  He continued to contend that he is a stateless Bidoon who did not acquire Iraqi citizenship.   

19. In relation to Mr [A], the central issue before the Tribunal related to his identity.  For the stated reasons, the Tribunal did not find Mr [A] to be credible.  There were many inconsistencies in the material before the Tribunal which the Tribunal could not resolve. However, in consideration of the evidence as a whole and on the basis of the available information, the Tribunal was satisfied that it is plausible that Mr [A] was born a stateless Kuwaiti Bidoon in about [year], and that he went to Iraq to build a life and family. On the evidence before it, the Tribunal was not satisfied of Mr [A’s] true identity or that his real name is [Mr H]. 

20. On the evidence before it, the Tribunal was satisfied that although it is plausible that he was born a stateless Kuwaiti Bidoon, he has acquired Iraqi citizenship and that at the time of lodging the application for a protection visa, he was an Iraqi national.However given the many different names before the Tribunal, the credibility concerns, and on balance of the evidence before the Tribunal in totality, the Tribunal was not satisfied of Mr [A’s] true identity and consequently the Tribunal found that the ground for cancellation in s.116(1AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal considered whether the visa should be cancelled.

21. In summary, the Tribunal concluded that although some considerations weighing in favour of Mr [A] when considered in isolation may not warrant the favourable exercise of discretion, when considered cumulatively and on balance of the evidence before the Tribunal, the Tribunal was satisfied that the correct and preferable decision is not to cancel his visa.

22. Given the Tribunal’s findings in relation to Mr [A’s] visa cancellation, the Tribunal finds that the condition precedent in subsection 140(2) of the Act no longer applies to the applicants; the applicants’ visas were cancelled under s.140(2) because they were sponsored by a person whose visa was cancelled, Mr [A]. The Tribunal decided and for the stated reasons to set aside the decision to cancel Mr [A’s] visa. In light of that decision, the Tribunal need not consider discretionary factors in this case, for completeness sake, the Tribunal has however decided to show its assessment of those factors.

    Consideration of discretion

23. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·     the purpose of the visa holders’ travel and stay in Australia, whether the visa holders have a compelling need to travel to or remain in Australia

24. Mr [A] arrived in Australia [in] June 2009 claiming to be a stateless Kuwaiti Bidoon and he was granted a protection visa [in] September 2009.  As mentioned, the Tribunal has concluded that although it is plausible that he was born a stateless Kuwaiti Bidoon, he acquired Iraqi citizenship and that at the time of lodging the application for a protection visa, he was an Iraqi national. 

25. On 14 June 2011, the applicants were granted subclass 202 visas. The family, including [the] children all currently live in Australia.  Their purpose to travel to Australia was to avoid harm.  They are Iraqi nationals of the Sunni faith.

26. The Department of Foreign Affairs and Trade (DFAT) Report on Iraq [1]refers to the treatment of Sunnis; the Report states that:

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

    3.35 After the removal of Saddam Hussein and the (Sunni dominated) Ba’ath Party from government, many Sunnis felt marginalised. This was exacerbated by the perception among the majority Shi’a population that the Sunni community was associated with ISIL, and by the government’s inability to assist Sunnis attempting to flee ISIL. While the government has worked hard to protect civilians in the fight against ISIL, it has at times failed to respond firmly to acts of retribution against Sunnis by the Iraqi security forces (ISF) or the PMF.  These factors have intensified tensions between Sunni and the Shi’a communities in Iraq.

    …

    3.37 DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections.

    27.   The Tribunal is satisfied that as Sunnis, it is plausible that the applicants could face harm which without more, may not amount to serious or significant harm.  However, the Tribunal is satisfied that it is a factor weighing in favour of the applicants in assessing their need to remain in Australia.

    ·     the extent of compliance with visa conditions

    28.   The subclass 202 visas granted to the applicants did not have any attached conditions. Accordingly the Tribunal does not give weight to this consideration

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    29.   The applicants travelled to Australia as the holders of subclass 202 visas [in] July 2011. The ages of the children range from [age] to [age]. The eldest [child] was granted [in] September 2017 Australian citizenship by conferral. The youngest child who was born in Australia is also an Australian citizen, due to the fact that the parents held permanent visas at the time of his birth.

    30.   There is evidence which the Tribunal accepts that the children are doing well at school and have significant academic aspirations. The Tribunal accepts the evidence that the children are no longer fluent in Arabic so if returned to Iraq, they would face educational challenges. The Tribunal does not necessarily see those challenges as being insurmountable, they are nevertheless important considerations for the Tribunal. The Tribunal is satisfied that the children have developed friendships and personal ties to Australia.

    31.   One of the children who was born on [date] died [in an incident] [in] April 2013.

    32.   There is substantial clinical evidence before the Tribunal that the family particularly the parents suffered and continue to suffer significant grief and depression as a result of the child’s death. The Tribunal observed that both parents became distressed when talking about the deceased child. The child is buried in [named] Cemetery and the Tribunal accepts the evidence that the family visits the cemetery regularly.

    33.   In her Statutory Declaration of 16 October 2018, Ms [C] describes her feelings about the incident; she states “After his death, I have suffered insurmountable amount of grief. I became extremely depressed. Until this day, I have problems with sleeping. I live in fear of everything… I cannot imagine the thought of going back to Iraq without having the ability to visit his grave at the cemetery. You cannot imagine the grief when I miss him and need to go visit his grave to seek relief. Everyone asks me why I go to the cemetery where there is only pain and heartbreak but when I go there I can remember him laughing and playing. I can feel that he is there with me. He was taken from me too soon and I feel as if I did not have enough time with him…”.  Those sentiments are observed and noted in a number of medical and psychological reports before the Tribunal.

    34.   In his Statutory Declaration of 18 October 2018, Mr [A] refers to the death of the child and how he had collapsed next to the grave at the funeral. He stated “My heart is still broken over the loss of my son. I know that the separation will send me back on a downward spiral”. Those sentiments are also noted in medical and psychological reports before the Tribunal.

    35.   The Tribunal has no reason to doubt that the family particularly the parents feel very strongly about leaving Australia in circumstances where they would be unlikely to ever be able to visit the cemetery.

    36.   It is important to emphasise that the cancellation scheme is not intended to be punitive but rather a process by which the integrity of the migration program is maintained. The Tribunal is of the view that it would be harsh in the extreme to suggest that it would be acceptable for the family in these circumstances to leave Australia and not to accept this aspect as being a major consideration. The death of the child was an extreme event for the family and clearly beyond their control.

    37.   The Tribunal has accordingly given this aspect significant weight in favour of the applicants.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    38.   As noted, Mr [A] arrived undocumented in Australia on Christmas Island claiming to be a stateless Kuwaiti Bidoon who was seeking Australia’s protection.  As explained, the Tribunal has not been satisfied that he was stateless at the time he applied for protection. His visa was cancelled on the basis of s.116(1AA).

    39. The visas of the applicants were cancelled on the basis of s.140(2). The integrity of the migration program relies, amongst other things, on visa applicants providing accurate information when applying for Australian visas. The Tribunal is satisfied that this consideration weighs against the applicants.

    ·     past and present behaviour of the visa holder towards the department

    40.   There is no information before the Tribunal of concern in relation to this consideration.

    ·     whether there would be consequential cancellations under s.140

    41. The subclass 202 visas granted to the applicants have been cancelled pursuant to s.140(2). There is no evidence that the cancellations of their visas have consequential cancellations.

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

    42.    The cancellation of the visas means that the applicants could become unlawful non-citizens liable for detention and removal from Australia.  Although those are due to intended consequences of the legislation, in their case, there is a degree of hardship weighing against the visa cancellation.  The Tribunal acknowledges that although [a number] of the children are adults, the others are not.

    43.    The potential that the whole family could be detained including a number of the children is a consideration for the Tribunal warranting weight in favour of the applicants.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

    44.    As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the children, [a number] of whom are adults.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the child.

    45.    The CROC applies to children under 18 years of age.  The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

    46.    Article 3 of the CROC states:

    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.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

1. The Tribunal appreciates that Iraq recognises dual citizenship and that to a degree, it might be beneficial for the children to experience the Iraqi culture.  However, given their ages and the length of time the children have been in Australia, the Tribunal is satisfied that it is in their best interest to remain in Australia.

2. The Tribunal has therefore given this aspect significant weight in favour of the applicants.

3. The applicants are of the Sunni faith.  As discussed above, DFAT’s recent report[2] refers to the treatment of Sunnis; the Report states “…DFAT assesses that, outside areas recently controlled by ISIL, Sunnis face a low risk of societal violence on the basis of their religion. DFAT assesses that Sunnis face a moderate risk of official and societal discrimination in areas where they are a minority. The risk of discrimination varies according to an individual’s local influence and connections”.

   [2] DFAT Country Information Report, Iraq, 9 October 2018.

4. The Tribunal acknowledges that there is a level of insecurity in Iraq but it is the Tribunal’s task to consider whether there is a real chance or a real risk of serious or significant harm facing the applicants on their return; a generalised level of insecurity does not normally enliven protection.

5. The Tribunal has carefully considered the applicants’ circumstances and on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or a real risk of the applicants facing serious or significant harm, as contemplated by the Act if returned to Iraq. The Tribunal is however satisfied that as Mr [A] is a Sunni Bidoon, it is plausible that he could face harm and the family as a consequence.  The Tribunal has given some weight to those matters in favour of the applicants.

   ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

6. The subclass 202 visas are permanent and all applicants are in Australia. The Tribunal has given weight to this consideration in favour of the applicants.

   ·     any other relevant matters

7. There are no other matters warranting consideration.

8. In conclusion, the Tribunal is satisfied that considered cumulatively and on balance of the evidence, the correct and preferable decision is not to cancel the applicants’ visas.

9. Considering the circumstances as a whole, the Tribunal concludes that the visas should not  be cancelled

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 202 (Global Special Humanitarian) visas.

    Antoinette Younes

    
    Senior Member