1823470 (Refugee)

[2020] AATA 3825

1823470 (Refugee) [2020] AATA 3825 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823470

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Meena Sripathy

DATE:10 September 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 10 September 2020 at 10:39am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – religion – Chaldean Christian – particular social group – widowed woman with no family in home country – fear of harm from late husband’s family – incorrect information given in visa application – name, date of birth and migration history – identity assessment and facial image comparison – residence and protection in third country now expired – mental health – criminal charges relating to false documents and statements – parents and siblings in Australia and parents’ health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 48A, 101, 103, 104, 105, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Ali v MHA [2020] FCAFC 109
MIAC v Khadgi (2010) 190 FCR 248
MZXLT v Minister for Immigration and Citizenship [2007] FMCA 799

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled.

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

4. The applicant appeared before the Tribunal on 28 August 2020 by video conference to give evidence and present arguments. The Tribunal also received oral evidence from members of the applicant’s family, including her mother, father and three of her siblings.  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 her registered migration agent.

5. 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

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

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

   Notice of intention to consider cancellation under s.107 

8. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 27 June 2018.  The notice indicates that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information in the protection visa application Form 866 she lodged on 4 April 2011 under the name [Ms A] (DOB [Date 1]).

9. The notice provided particulars of the following allegedly incorrect information given by the applicant in her Form Part C of the protection visa application:

   ·Q4 What other names have you been known by – she responded “N/A”

   This was considered to be incorrect because the results of a facial image comparison report dated 15 December 2015 indicates the applicant is also known as [Ms B] (DOB [Date 2]).

   ·Q 7 Date of Birth – she responded [Date 1].

   This was considered to be incorrect because the results of a facial image comparison report dated 15 December 2015 indicates the applicant is also known as [Ms B] who travelled to Australia on a [Tourist] visa using [Country 1] Travel document which indicated a date of birth [Date 2]).

   ·Q 22 Do you have a right to enter and reside in, whether temporarily or permanently, any country other than your country of nationality… she responded “No”

   This was considered to be incorrect because the results of a facial image comparison report dated 15 December 2015 indicates the applicant is also known as [Ms B], who was a [Country 1] permanent resident at the time of lodgement of the protection visa application.

   ·Q 56 Did you ever apply to migrate to any other country other than Australia – she responded “No”

   This was considered incorrect because Departmental evidence indicates she was a permanent resident in [Country 1] and had been issued with a [Country 1] protection visa travel document.

   ·Q 57 Have you ever applied for refugee status in any other country other than Australia – she responded “No”

   This was considered incorrect because Departmental evidence indicates she was a permanent resident in [Country 1] and had been issued with a [Country 1] protection visa travel document.

   ·Q65 She signed the declaration declaring that the information supplied on Part C of Form 866 is complete, correct and up to date in every detail. 

   This was considered to be incorrect because of her incorrect answers to the above questions.

10. The NOICC set out the evidence on which the allegations of incorrect information was based:

    ·Departmental records of the arrival in Australia of [Ms B] (DOB [Date 2]) as the holder of a [Tourist] visa [in] February 2011 using  [Country 1] Protection visa Travel Document

    ·Application for a Protection visa on 4 April 2011 in the name of [Ms A] (DOB [Date 1]) containing the responses detailed above.

    ·Application for Australian citizenship on 6 May 2015 which triggered an identity assessment.

    ·Facial comparison conducted by the Department of images held by it of [Ms A] and images publicly available on social media of [Ms B] confirmed that they were the same person.

11. On 24 and 26 July 2018 the applicant, through her representative provided a response to the NOICC. The response referred to information contained in an Affidavit by the applicant setting out details of her background and circumstances.  Specifically, that she was a child of a Christian family brought up in Iraq and escaped from there in 1996 to [Country 2] and subsequently to [Country 3] in 2001.  Her parents and siblings migrated to Australia in 2002 and she migrated to [Country 1] with her husband where she obtained permanent residency. She was a victim of domestic violence and returned to Iraq, from where she escaped a situation of domestic violence at the hands of her husband in 2010 by taking on the name of [Ms A]. She returned to [Country 1] under her previous name of [Ms B] and from there came to Australia in 2011.  She assumed the name [Ms A] after coming to Australia to remove herself from her past and prevent her husband’s family finding her. Further details of why there was non compliance was provided in a Psychological Report of [Mr C] dated 30 May 2018.

12. The applicant’s representative submitted that having regard to the reasons for the non compliance, the visa should not be cancelled because if so she would be deported to a place she has no family members and would be exposed to real danger of being located and seriously harmed by her late husband’s relatives. It was also submitted on her behalf that the incorrect information was not motivated by deception for financial gain, but rather appeared to be premised on a perceived fear of serious physical harm.  She was, at the time, according to paragraph 29 of the psychological report, suffering from PTSD and depression.  Reference is made to the psychologist’s professional opinion, at paragraph 27 of the report, that she “made a rational decision to falsify her identity on the basis of an irrational belief she, and her family, would be located and suffer serious harm or death.” and at paragraph 28, the applicant’s offending “is directly reflective of her past traumatic experiences, resulting in PTSD and the impact upon her functioning and decision making process.”

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

13. 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.

14. On 8 August 2017 a delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.

    Evidence before the Tribunal

15. Information on Departmental file [number] provided to the Tribunal indicated that the applicant had been charged with various counts of false documents and making false statements under various Acts, including the Migration Act 1958, Citizenship Act 2007, Criminal Code 2002, Passports Act 2005 and Statutory Declarations Act 1959, to which she had pleaded guilty and was due to be sentenced [in] August 2018.

16. On 2 March 2020 the Tribunal requested from the applicant information relating to the outcome of the criminal charges and inviting further submissions in support of the review.

17. On 30 March 2020 the Tribunal received the following in response to the Tribunal’s correspondence:

    ·A submission from her representative arguing that the applicant’s visa not be cancelled on the basis that the reasons for not cancelling it outweigh the reasons for cancelling. The submissions address each of the prescribed matters set out in r.2.41 and other considerations referred to in departmental policy.

    ·Combined Statutory Declaration of [Ms D] and [Ms E] (applicant’s sisters) dated 16 March 2020.

    ·Statutory Declaration of [Ms F] (applicant’s sister) dated 16 March 2020

    ·Forensic Psychologist Report by [Mr C] dated 29 March 2020, and his Expert Certificate and CV

    ·Attachments to [Mr C’s] report (X4)

    ·AFP Certificate in the name of [Ms A] DOB [Date 1] issued 8 August 2019

    ·Court attendance notices offences Seq 1-10 issued [October] 2017 in the name of [Ms B]

    ·Order and Recognizance [Court 1] in the name of [Ms B]

    ·Notice of Penalty dated [September] 2018 in the name of [Ms B]

    ·Time to pay notice [Court 1], in the name of [Ms B] issued [October] 2018; and receipts issued by [Court 1] dated [October] 2018, [November] 2018, [December] 2018, [January] 2019.

18. On 16 April and 1 May 2020 the applicant’s representative provided to the Tribunal documents produced during the criminal proceedings, including a Statement of Facts, Report of Forensic Psychologist [Mr C] dated 30 May 2018 and Affidavit of applicant,  and the transcript of proceedings before [a Magistrate] [in] September 2018 on which date the applicant was sentenced in relation to the offences.

19. On 21 August 2020 the representative provided a supplementary submission providing further evidence and submissions relating to matters prescribed in r.2.41:

    ·Statutory Declarations from applicant’s mother and father dated 18 and 19 August 2020

    ·Letters from [Dr G] dated 13 August 2020, [A/Prof. H] dated 22 July 2020, and [Dr I] dated 13 July 2020  all relating to the  applicant’s father and a current health condition he suffers from

    ·Australian Citizenship Certificates for applicant’s parents and siblings and Australian birth certificates for applicant’s nieces and nephews

    ·Photos of the applicant and her family members

    ·Payslips (X2) of the applicant.

20. The further submissions from the representative address additional evidence about the applicant’s experiences of domestic violence in the past provided in her parent’s Statutory Declarations; and the issue of whether the applicant has a right to enter and reside in a third country for the purposes of s36(3) of the Migration Act. It is submitted that she does not have a current right to enter [Country 1] as at the time of the AAT’s decision. If the Tribunal finds that s36(3) does apply it is submitted that the applicant fears return to [Country 1] because her deceased husband’s family reside there and hold her responsible for his death and will seek revenge by harming her and also she will not have the means to support herself there. Should the Tribunal find that the applicant has a current right to enter and reside but that right may cease before the applicant is removed, the representative requests an opportunity to provide information to support the applicant’s claims regarding fear of return to Iraq.

    Tribunal hearing 28 August 2020

21. At the Tribunal hearing, the applicant gave evidence about her current circumstance including family composition, the circumstances that gave rise to the non compliance and answered the Tribunal’s questions on matters arising from the material. Details of relevant evidence she gave is included in the discussion below.

22. The Tribunal also heard from family members of the applicant who gave evidence as witnesses in support of her application. The applicant’s sisters [Ms F] and [Ms D] referred to their desire for the applicant to stay here and the dependency of their parents on her for assistance and support.

23. The applicant’s father [Mr J] told the Tribunal the applicant was included in the original visa application he made for his family and he removed her name when she married.  Now she is here and he does not want to lose her again. He referred to having deferred his heart surgery on multiple occasions because he needs to know she will be allowed to stay here before he has his surgery.  She sees him every day and provides support and assistance to him.  He is so grateful for the comfort and safety that Australia has given to refugee families and implores the Tribunal to allow her to remain. 

24. The applicant’s brother [Mr K] spoke of his parents’ frail health and aged circumstances and that the applicant is needed here to help them.  He stated that she was forced to do what she did to stay alive.  He is able to support the applicant here in Australia but he cannot support her if she is overseas.  His parents need her, and his children are very attached to her.

25. The applicant’s mother, [Ms L] asked the Tribunal to be merciful to the applicant.  She was repressed before and now she is with her family and, as her mother, she does not want to lose her. The applicant has no one to look after her.  She has no husband or children.  She will die if she is taken away from them.

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

26. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101 of the Act as set out above.

27. The applicant acknowledged and conceded the non compliance in her response to the NOICC and this concession is confirmed in her representative’s submissions to the Tribunal and her oral testimony to the Tribunal at the hearing.  She acknowledged that she gave a false name and identity when she made her protection visa application and failed to declare her [Country 1] residency and refugee status and that this was wrong.  She said she did it because she was fleeing from [Country 1] and cannot go back to Iraq for fear of being killed.

28. On the basis of the evidence before it and the applicant’s concession, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

29. 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).

30. 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).

31. The Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward on behalf of the applicant:

    ·     the correct information

32. The correct information is that the applicant’s true identity is [Ms B], and she applied for and obtained refugee status in [Country 1] and had permanent residence status there at the time she came to Australia and applied for the protection visa.

    ·     the content of the genuine document (if any)

33. This is not relevant in the present 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

34. The delegate found that the applicant did not have residency rights in any safe third country and the decision to grant the applicant a visa was largely on the basis of her Chaldean Christian religion and the risk to her of persecution in Iraq for this reason. Had the correct information about the applicant’s [Country 1] residency status at that time been known, the delegate would likely have found that she had effective protection in [Country 1] and that under s36(3) Australia did not owe her protection obligations.

35. The submissions made by the applicant’s representative dated 30 March 2020 argued that while she had residency rights in [Country 1] in 2011 there is no evidence that she holds that right now, at the time of the Tribunal’s consideration of the matter. In subsequent submissions dated 21 August 2020, the representative conceded that the decision to grant the visa was based wholly or partly on the incorrect information given that she was the holder of a permanent residency with refugee status in [Country 1] at the time of the delegate’s decision and on that basis she would have been unlikely to engage Australia’s protection obligations under s36(3) of the Act in 2011. However the submissions go on to argue that, consistent with Departmental policy and applicable judicial authorities relating to s36(3), a right to enter and reside must be current and enforceable. It was pointed out that there is no evidence before the Tribunal that the applicant has a current right to enter and reside in [Country 1], and she cannot be required to undertake steps to reinstate her [Country 1] residency. The submission argues that the law requires the right be current, existing and enforceable, and refers to the judgement in MZXLT v Minister for Immigration and Citizenship [2007]FMCA 799 which found the Israel Law of Return did not amount to a right to enter and reside for the purposes of s36(3) because a number of preparatory steps were involved. In the present case the applicant has indicated her [Country 1] travel document has expired and she has no desire to apply to the [Country 1] authorities to obtain a new travel document or resume her residency right due to her fear of her late husband’s family there.

1. The Tribunal has considered these submissions and the applicant’s evidence on this matter.  It finds, as conceded by the applicant, that the incorrect information was a material basis for the decision to grant her a protection visa in 2011.

2. The Tribunal accepts that the applicant’s [Country 1] travel document on which she entered Australia in 2011 has since expired and that her [Country 1] permanent residency on the basis of her refugee status would have expired as a result of her prolonged absence from the country.[1] The applicant told the Tribunal she has not since been in contact with the [Country 1] authorities to seek to renew her travel document or residence status.  

   [1] [Citation deleted], citing [Country 1 legislation] regarding termination of lawful residence 6 months after departure from the [territory]

3. Notes in the Department’s file[2] also indicate that information obtained by them from [Country 1] authorities suggested that there is no guarantee that the applicant would be entitled to resume her residence in [Country 1] now, given the lapse of time since her departure.  The information indicates that she would have to apply to the [Country 1] Embassy who would make a legal decision about her status and determine whether to issue a travel document. The further residence status would be assessed in [Country 1] once she presents in person.  Other independent information considered by the Tribunal also suggests that the issue of the applicant’s right of residence in [Country 1] may be complicated and uncertain.[3] 

   [2] [Number], fol 120-121

   [3] [Citation deleted].

4. Therefore, on the evidence and information before it, the Tribunal accepts that the applicant does not have a current right to enter and reside in [Country 1].  However, as conceded by the applicant’s representative, she did have such a right at the time the protection visa application was being assessed and the decision to grant the visa was based on incorrect information about her right of residence in [Country 1].   

5. The Tribunal considers the fact that the decision to grant the visa was based on the incorrect information is a factor which weighs in favour of cancelling the visa. 

   ·     the circumstances in which the non-compliance occurred

6. The applicant’s representative submits that the applicant’s entire life history is relevant to the consideration of this matter. It is submitted she has suffered a lifetime of displacement, familial separation and domestic violence which culminated in her changing her identity , firstly to avoid detection from her in laws and secondly, to be re-united with her family. Reference was made to the applicant’s Affidavit setting out her story, statutory declarations from her family members and the psychological reports of [Mr C] dated in 2018 and 2020.  

7. The Tribunal accepts the historical background of the applicant’s early life as set out in her Affidavit and supporting Statutory Declarations of family members.  It accepts she is Chaldean Christian, was born in Iraq and her family composition is as claimed.  It accepts that the family left Iraq in 1996 for [Country 4] due to problems they faced as Christians and later settled in [Country 3]. It accepts that she met her husband and married him in [Country 3] and they subsequently went to [Country 1] where she applied for and was granted refugee status.  This background information has been relayed consistently by the applicant in various documents before the Tribunal, is generally plausible and consistent with country information and there is no information before the Tribunal that contradicts or throws doubt on any of these matters. 

8. Where the Tribunal had concerns with aspects of the applicant’s claims regarding past circumstances, these were discussed with her at the hearing. For example, she outlined in her Affidavit that she decided to leave her husband after he forced her to return to Iraq in 2010 and she was exposed to terrorist and violent incidents including a bombing of a church on 31 October 2010.  She said, after this incident, she managed to locate her passport that had been taken by her husband, sold jewellery to pay for documents in the name of [Ms A] and fled to [Country 1].  After being in [Country 1] for 7-10 days she encountered her brother in law who said her husband was looking for her.  She said her visa for Australia was issued in February 2011 and she fled to Australia and assumed the name [Ms A] using papers she had obtained in Iraq.   She claimed that the reason for making the protection visa application in the false name was due to her fear of being sent back to Iraq and she believed that she needed to make a stronger case to ensure she wouldn’t be sent there.  

9. The Tribunal questioned the applicant about the timing of her decision to leave her husband and come to Australia. Her claim was that she only decided to leave her husband after he took her back to Iraq from [Country 1] and exposed her to many horrible things there including terrorist acts and violence. When queried about why she obtained the documents in the name of [Ms A] she said that she was afraid she would be discovered trying to depart the country.  When pressed the applicant acknowledged that she departed Iraq for [Country 1] using her own documents (in the name of [Ms B]).  She also used her own documents to travel to Australia. She acknowledged she only used the false documents in the name of [Ms A] after she came to Australia.  The Tribunal noted that she had applied for a visitor visa for Australia in August 2010, prior to going to Iraq and this was granted on 16 September 2010.  The applicant confirmed this, stating that at that time her intention was to come for a visit to her family and spend Christmas with them.  She did not then have an intention to leave her husband. She decided that only after he forced her to return to Iraq after August. The Tribunal questioned the applicant about her declaration on the August 2010 visitor visa application that she was divorced and had no family in Australia. She said that she had been separated from him and divorced in the past but they had got back together since then, but were still divorced on the record.  She said she could not recall why she stated she had no family or relatives in that application. 

10. Having considered the evidence of the visitor visa application made in August 2020, the applicant’s use of travel documents in her own name up to the time she came to Australia, and her responses to matters raised with her at hearing, the Tribunal was left with some doubts about the true timing of her decision to come to Australia and motivation for making the application in the false name of [Ms A].  The fact that she used her true name and documents to exit Iraq, enter [Country 1], apply for benefits in [Country 1] when she returned in 2011 and travel to Australia and, as acknowledged at the hearing, continued to use social media accounts in her true name since being in Australia, is conduct that detracts from, and contradicts, her claimed fear of being located by her husband and his family. In the application to travel to Australia she made in August 2010, she stated she was divorced from her husband and failed to declare family contacts here. In the meantime she travelled to Iraq and arranged for documents in the false name.  All of this suggests to the Tribunal that the applicant’s true motivation in lodging the application in the false name was to obtain a protection visa in Australia to reunite with her family here which she could not get as the holder of [Country 1] residency, rather than fear of her husband and his family as claimed due to the history of domestic violence. While the Tribunal is prepared to accept she may have had a history of domestic violence and problems in her relationship with her husband, given her claim that he was subsequently killed in Iraq, the Tribunal does not necessarily accept all aspects of her claimed account of the circumstances. 

11. She has presented various reports and support letters from professionals and support workers consulted since her arrival in Australia in which she perpetuated the false claims with a view to obtaining further benefits, including housing and income support, despite the true circumstances of having substantial family support around her at that time adding to the Tribunal’s concerns about her motivations and the credibility of all of her claims. 

12. Having regard to these concerns, but also taking a holistic view of the material before it, the Tribunal makes the following findings with regard to the applicant’s claims of the circumstances in which the non compliance occurred.  It accepts she had a history of domestic violence at the hands of her former, late partner and that she suffered past traumatic experiences as a woman and as a member of a minority Christian community in her country of origin Iraq and experienced significant displacement since childhood as a result of her religious and community background. Given this history and background, it accepts that at the time of the non compliance she was motivated by a desire to remain in Australia with her family of origin.  It is also prepared to accept on the basis of the professional opinion and diagnoses of [Mr C], Forensic Psychologist, who assessed her in 2018 and again in 2020 and his professional opinion that she suffers from Post Traumatic Stress Disorder and Persistent Depressive Disorder with anxious distress, moderate severity and that these conditions may have impacted her decision making and functionality at the relevant times.

13. These findings about the circumstances in which the non compliance occurred, on balance, weigh in favour of not cancelling the visa. 

    ·     the present circumstances of the visa holder

14. It is submitted the applicant is presently completely dependent on her family of origin, who mostly all reside in Australia.  She has parents and four out of five siblings and has a close relationship with [nieces and nephews] all of whom reside in Australia and are citizens.  Evidence including Statutory Declarations from the family members, birth certificates and certificates of Australian citizenship, photos of her with family members and the children, and oral testimony of the witnesses at the hearing support these claims.

15. The applicant told the Tribunal that she has been living independently for the past 9 years in premises arranged for her by a women’s housing organisation.  She was previously receiving income support payments from Centrelink, but after the cancellation of her visa she was supported by her brother, family and Church community.  Recently she has started working casually as [an occupation] and now supports herself from her income. 

16. The Tribunal has considered the evidence before it regarding the applicant’s present circumstances, including information contained in Statutory Declarations from her family members, and their oral evidence to the Tribunal.

17. It accepts on the evidence, that the applicant is single, and has no children.  The majority of her immediate family is in Australia, and the applicant accepts that they have a close and mutually dependent relationship.  It accepts that she visits her parents daily and provides and receives emotional, psychological and practical support.   The Tribunal also accepts that the applicant has close relationships with a substantial number of nieces and nephews in Australia.  It accepts that she is established and settled in her life here, and has stable accommodation and, recently, income. 

18. The Tribunal is inclined to give the applicant’s present circumstances substantial weight in favour of not cancelling the visa.

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

19. ‘Subsequent behaviour’ in this context means behaviour which took place after the non-compliance and ‘concerning’ denotes a real link with the subject matter which it qualifies, i.e. obligations under Subdivision C. Therefore, relevant subsequent behaviour would include a failure to notify relevant change in circumstances (s.104) or to correct the incorrect information (s.105): at [89]: MIAC v Khadgi (2010) 190 FCR 248 at [89].

20. In the submissions of 30 March 2020, the representative submitted that weight should be given to the applicant’s timely concession of the non compliance, notwithstanding that it was given only after she was issued with the s107 notice, as this is analogous to the weight given in criminal proceedings to pleas of guilty.

21. The Tribunal acknowledges that the applicant accepted the non-compliance once notified by the Department, and that she pleaded guilty to the criminal charges that followed relating to this matter.  She also acknowledged her wrongdoing and expressed contrition in her testimony before the Tribunal, although the Tribunal notes she has consistently sought to explain the reasons and context for her actions before the Department and Tribunal. 

22. However, it is also clear on the material before the Tribunal that the applicant only conceded the non compliance after she was formally notified by the Department and there is no indication in her conduct or actions after the protection application was made and granted that she would have come forward otherwise of her own accord. Specifically, there is no evidence she sought to correct the incorrect information prior to being notified of it. On the contrary, the evidence indicates she perpetuated the false identity by providing the same incorrect information in later applications to obtain further benefits including applications for travel documents and a citizenship application.  

23. The Tribunal considers this factor supports cancelling the visa in the present case.  

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

24. The delegate noted that the applicant provided a false National Certificate and Personal Identity card with her Citizenship application lodged on 6 May 2015 and these were the subject of criminal charges taken against the applicant.  

25. This indicates non compliance with s103 (bogus documents) and is a factor that supports cancelling the visa.

    ·     the time that has elapsed since the non-compliance

26. The applicant has resided in Australia since her arrival [in] February 2011.  She lodged her Protection visa application on 4 April 2011.  The applicant submits this is a significant period of time, over  9 years) and should be given weight in her favour.

27. The Tribunal agrees that this is a substantial period of time and this factor weighs in favour of not cancelling the visa.

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

28. The evidence before the Tribunal indicates that [in] October 2017 the applicant was issued with a Court Attendance Notice relating to ten counts of providing false information and documents to Australian government authorities, to which she pleaded guilty.  She was sentenced in relation to these offences [in] September 2018.  

29. The applicant’s representative submitted that the nature of these offences must be considered, and that essentially 8 of the 10 offences represent a repetition of the original falsehood made in her Protection application, being the false name and date of birth. Each offence is a repetition of the same false name and date of birth to different government authorities. The representative argued that, having been granted a Protection visa on the basis of this identity, the applicant was essentially trapped into continuing to maintain the same false identity in all her interactions with Australian government authorities. Reference is made to the opinion of the expert psychologist, who stated that the applicant’s offending was directly reflective of her past traumatic experiences resulting in PTSD and the impact upon her functioning and decision making process.

30. The Tribunal has considered these submissions and the supporting evidence referred to. It has also considered the transcript of the sentencing proceedings before [a Magistrate] which set out the Magistrate’s considerations in sentencing the applicant. The Tribunal notes that in sentencing the applicant the Magistrate took into account the related nature of the offences, but also that the offending continued over an extended period of time, and became particularly serious when the applicant presented false documents in her citizenship application.  For that reason the Magistrate was of the view that in respect of certain of the offences, a sentence of imprisonment was warranted to reflect the seriousness of the offending and deter her from future actions.  The Tribunal takes into consideration the sentences imposed, and her confirmation at the hearing that she has since then maintained good behaviour and not served any period of imprisonment. 

31. Having regard to this evidence, the Tribunal observes that the criminal charges relate to the non compliance identified in this matter, as well as other breaches before and after the application for the protection visa in April 2011.  Specifically she was charged with making false statements in her visitor visa application in August 2010, in applications for Centrelink benefits in 2011 and 2012, in applications for Travel Documents in 2012 and 2014 and for using forged documents in her citizenship application made in 2015. 

32. The Tribunal finds that the fact the applicant has had serious breaches of the law since the non compliance, that lead to criminal charges and convictions including terms of imprisonment (albeit not served but reflecting the seriousness of the offending) weighs in favour of cancelling the visa in this matter. 

    ·     any contribution made by the holder to the community.

33. No evidence or submissions have been provided regarding contributions made by the applicant to the community.  In the submissions dated 30 March 2020, the representative noted the applicant has been limited in her capacity to contribute to the broader Australian community due to her own mental health.  She was assessed as eligible for a Disability Support Pension in 2012 and evidence provided of her diagnosis with PTSD and depression since 2011 was referred to.

34. The Tribunal has considered the evidence relating to the applicant’s mental health diagnoses and conditions.  This factor is given no weight in the assessment of the exercise of the discretion. 

    Additional considerations

35. While the above 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.

36. It was noted in the delegate’s decision and conceded in the applicant’s representative’s submissions that there are no persons in Australia whose visas would automatically be affected by a cancellation.

    International Obligations including non refoulement obligations

37. The Tribunal observes that an International Treaties Obligations Assessment has not been completed in relation to the applicant.  The delegate referred to the applicant having residency status in [Country 1] and that therefore a decision to cancel the visa would not necessarily lead to her being returned to her country of origin in breach of Australia’s non refoulement obligations.  The delegate deferred consideration of this matter to an IOTA assessment that would be required to be undertaken were she to be removed. 

38. In the representative’s submissions of 30 March 2020, it was submitted that an ITOA assessment would highly likely find that the applicant is owed non refoulement obligations with respect to Iraq on the basis of her Christian faith and her status as a single woman without male protection or family protection.  It was further submitted that she fears return to [Country 1] because her in laws blame her for the death of her husband. In any event there is no evidence that the applicant has a current right to enter and reside in [Country 1] and therefore it is not open, on the available evidence, to conclude she can return to [Country 1].  In the supplementary submissions of 21 August 2020, it was argued that the right to enter and reside in a third country must be a current and enforceable right in existence at the time of decision, and not one that relies on the applicant taking any preparatory steps (see above, paragraph 35.)  It was further submitted that any positive ITOA assessment with regard to Iraq would have the effect of resulting in mandatory indefinite detention for the applicant, as she would be unable to be returned to Iraq.  The representative argued that given the importance of the assessment the Tribunal should await the completion of an ITOA before making its decision. 

1. The Tribunal disagrees with the representative’s view that it cannot proceed without waiting for an ITOA assessment to be completed by the Department.  Were there to be such as assessment before it, the Tribunal would consider it as relevant evidence.  In the absence of an ITOA assessment, the Tribunal must consider whether non-refoulement obligations would be breached as a result of the cancellation on the evidence before it.

2. With regard to whether she can be returned to [Country 1], the Tribunal accepts that she has no current right to enter and reside in [Country 1] (see above at paragraphs 36-39). It also accepts that while she may still have refugee status in [Country 1], whether she is entitled to or will be granted a travel document to enter the country and/or granted residency is uncertain and a matter of speculation. However, the Tribunal is not here considering the application of s36(3) to the applicant’s circumstances, as that is a provision that applies in the context of consideration of a protection visa application. The issue here arises in the Tribunal’s exercise of the discretion to cancel her protection visa and in this context the Tribunal considers it has more decisional freedom in the manner in which it considers the question.[4]  In this context the Tribunal accepts on the independent information before it (referred to above, paragraph 38, footnote 3), that it is far from certain that [Country 1] would issue her a travel document or reinstate her residency. It also takes into consideration the applicant’s evidence about why she has not approached the [Country 1] embassy to date (being that she no desire to return to [Country 1] because she has no one to support her and she is afraid of her in laws there).   Having regard to these matters, on the available material, there is no certainty the applicant can be removed from Australia to [Country 1], and therefore it must consider whether there are non refoulement obligations with regard to her country of nationality.

   [4] See discussion in Ali v MHA [2020] FCAFC109 on the consideration of non refoulment obligations in different statutory processes. While this judgement considered a decision not to revoke a cancellation under s501CA, the discussion on the approach to a consideration of non refoulment obligations in the context of the exercise of a discretion is relevant see at [107].

3. With regard to non refoulement obligations with regard to Iraq, the Tribunal accepts that a single woman living alone in Iraq without male or family protection would be at risk of harassment and violence,[5] and her circumstances are likely to be even more vulnerable as a member of a Christian minority.[6]  The Tribunal accepts that it is highly likely that Australia’s no refoulement obligations would be breached if the applicant was returned to Iraq as a result of a decision to cancel her visa. 

   [5] DFAT Country Report on Iraq, August 2020, para 3.132, pp45-46, EASO Country of Origin Information Report - Iraq Key socio-economic indicators', European Asylum Support Office (EASO), 4 February 2019, p.46, 20190205091157; 'Life in Iraq: War Forces Women into Non-Traditional Roles', NBC News, 31 January 2016, 20190319105424; 'Multi-sector needs assessment, April 2015 - Kirkuk City/Iraq', CARE Australia, 14 April 2015, p.11, 20190319112733 

   [6] DFAT Country Report on Iraq, August 2020, para 3.51, p30

4. The Tribunal gives this factor substantial weight in favour of not cancelling the visa.

   Mandatory legal consequences

5. The applicant’s representative submitted mandatory legal consequences of cancelling the visa that may apply to the applicant include preclusion from applying for any other substantive visa pursuant to s48 and s48A; detention and removal if she is not granted any further bridging visa and potentially indefinite mandatory detention if she cannot be removed from Australia as a result of non refoulement obligations. 

6. The Tribunal accepts that these potential mandatory legal consequences weigh in favour of not cancelling the visa.

   Other relevant matters

7. The Tribunal is referred to the applicant’s psychologist’s opinion that her mental health circumstances make her particularly vulnerable if deported as she would be removed from her mental health and medical professionals who are providing her ongoing support. The psychologist also refers to the economic disadvantage she would be at if removed to [Country 1] as a result of her lack of education and employment skills;  the harm to her medical and psychological health if she is unable to access treatment; and her real fear of revenge at the hands of her ex husband’s family.

8. The Tribunal has considered these submissions and the opinions of the psychologist and accepts that the applicant’s mental and psychological conditions make her vulnerable to significant hardship if removed from Australia, particularly given that she has no immediate family members in Iraq or [Country 1] for support.  This is another factor that weighs heavily in favour of not cancelling the visa.

9. The Tribunal has also considered, arising from the evidence, the hardship to the visa applicant and her immediate and extended Australia resident family of her expulsion from Australia.  It acknowledges that a prime motivation for her non compliance was the desire to be in Australia with the majority of her family members and to be safe from harm.  The Tribunal has considered the written and oral  evidence of the applicant’s mother, father and siblings, expressing concern for her well being and desire for her to remain in Australia to support her and for her to support her parents in their old age.  The Tribunal takes into consideration the health circumstances of the applicant’s elderly father, and his concern for the applicant’s future.  It also takes into consideration the evidence of the applicant’s close relationship with her nieces and nephews in Australia and the hardship of taking the applicant away from them if her visa is cancelled and she is removed from the country.   

10. The Tribunal gives some weight to the impact of cancellation on the applicant’s family members residing in Australia as a factor in favour of not cancelling the visa. 

    CONCLUSION

11. The Tribunal has carefully considered and weighed all of the above factors and the evidence and material before it.  In doing so, it concludes, on balance,  the factors in favour of not cancelling the visa outweigh those in favor of cancelling it in the present case and the Tribunal therefore concludes the visa should not be cancelled.

12. In its assessment the Tribunal acknowledges that the applicant gave incorrect information about her identity, and refugee and residence status in [Country 1] in her protection visa application in February 2011, on which the decision to grant her the protection visa was based as s36(3) would likely have applied to her if the correct information about her status in [Country 1] had been known. This, together with her subsequent behaviour not correcting the information of her own volition and perpetuating the non compliance in subsequent applications for travel documents and a citizenship application and also providing incorrect information in an earlier visitor visa application, all weigh strongly in favour of cancellation of the visa.  However against these factors, the Tribunal has considered, and given weight to the detailed submissions and substantial and compelling evidence before it relating to the circumstances in which the non compliance occurred and the applicant’s personal current circumstances, being single, with a vulnerable mental health situation and having substantial close family ties in Australia and with long term Australian citizens. The Tribunal also gives substantial weight to the circumstances of lack of residence status in [Country 1] as at this point in time, and the real risk of serious harm for reasons of her religion and gender and circumstances that she would face if returned to Iraq now as a Chaldean Christian single woman with no male or family protection. The Tribunal also acknowledges that the applicant has been prosecuted for this non compliance, among other related offences, and sentenced in accordance with relevant principles under our criminal justice system and that apart from these matters there is no other evidence of breaches of the law before the Tribunal. 

13. For all the above reasons, 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, but having regard to all the relevant circumstances, the visa should not be cancelled.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Meena Sripathy
    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.