1911351 (Refugee)

[2023] AATA 734

1911351 (Refugee) [2023] AATA 734 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Bill Gerogiannis (Law Soc No: 10420)

CASE NUMBER:  1911351

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Sean Baker

DATE:8 February 2023

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 February 2023 at 12:53pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect information in the visa application – identity details – nationality – Iranian citizenship – Iraqi citizenship – false passport – return trips to Iraq and Iran – non-compliance characterised as inadvertence – mental health issues – best interests of the children – indefinite detention – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140, 197
Migration Regulations 1994, r 2.41

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
MIAC v Khadgi (2010) 190 FCR 248
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA [1994] FCA 1534
Wan v MIMA (2001) 107 FCR 133
Zhao v MIMA [2000] FCA 1235

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 Home Affairs to cancel the first named applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) had not complied with s. 101(a) and (b) in the manner particularised in the s. 107 notice and the delegate found the reasons for not cancelling did not outweigh the breach. The second and third named applicants’ visas were consequentially cancelled by operation of law. The issue in the present case is, in relation to the first named applicant, whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants. I further note that the third named applicant is now an Australian citizen and therefore the Act has no operation upon [this applicant].

4. The applicants were represented in relation to the review.

5. I note the second named applicant’s email which corrected the spelling of the names of herself, her father and her [siblings]. Because the Tribunal must use the names supplied in Department systems so that the decision can be properly facilitated, these have not been altered on Tribunal systems, but I have noted her email and the correct spellings.

6. 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

7. 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.

8. 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.

9. 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.

   Section 438 certificate

10. The Department decision contains a purported s. 438 certificate. This certificate purports to cover the entirety of the identity investigation document on that file, a document prepared by the identity resolution area of the department and provided to the cancellation delegate.

11. The certification claims that this information was given to an officer of the Department in confidence, with the explanation that the Department considers the document should not be disclosed to the applicant or the applicant's representative because it contains investigative tools and methods used by the Department and is an internal working document.

12. There are several difficulties with the certification. The document, or at least the scanned copy the Department has provided to me, is not signed and is therefore invalid.[1]

    [1] El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840.

13. More fundamentally, I have considered the reasons given for the non-disclosure. The certification is purported to have been issued under s. 438(1)(b). I would be concerned if the Department were to argue that documents provided by one part of the Department to another could be said to have been given to an officer of the Department in confidence. In my view, s 438(1)(b) is clearly intended to protect the identity of third party sources who provide information in confidence to the Department. I do not accept that this provision can encompass the situation here where a document is provided from one part of the Department to another. Further, the document itself does not state that it has been provided in confidence, only stating that it has the protected level of ‘sensitive: personal’ and a footer stating: ‘This document may be subject to FOI exemptions under Section 47C of the Freedom of Information Act 1982 Deliberative process (Internal working) documents.’ This is not, I find, a requirement or request for the document being treated as in confidence or the desire to protect the identity of the author.

14. For these reasons I find that the certificate is invalid. However, I have not found it necessary to provide the information in the document to the applicants or their representative. The material information has been provided to the applicants in the s. 107 notice and decision.

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

15. 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 s. 101(a) and (b) in the following respects:

16. The delegate thought it likely the applicant held or could reapply for an Iraqi passport and was an Iraqi citizen, and could have attained an Iranian citizenship because he had held an Iranian passport to travel to [Country 1] which the delegate considered may have been a genuine document. The delegate concluded the applicant did not provide an answer to the question about his current citizenship and when his citizenship was granted as part of his RSA.

17. The delegate found the applicant had not answered a question in his Form 866 which asked about any other names the applicant had been known by, because in the applicant’s application for a [Country 1] visa and other contexts he had used a variety of names with differing dates of birth.

18. The delegate found the applicant had not complied with s. 101(b). The applicant had answered n/a when asked if he was known by any other names, when the delegate found the applicant was known by several other names.

19. The delegate found that the applicant did not answer questions about his citizenship correctly, specifically by answering n/a when asked about his current citizenship, how his citizenship was acquired, where the delegate considered the applicant was a documented Iraqi citizen, as it was highly likely he re-acquired Iraqi citizenship in 2003, and it was highly likely the applicant acquired Iranian citizenship as he obtained an Iranian passport. The delegate went on to find that the visa holder answered incorrectly when he stated n/a to the question in his Form 80 which asks if he is a dual citizen or had ever held any other citizenship and answered no to the question about a right to enter and reside where indications are that he acquired Iranian citizenship. The delegate found the applicant could have held Iranian and Iraqi citizenship.

20. The delegate also considered the voluntary return of the applicant on several occasions to Iraq indicated that his claimed fear of returning to Iran and the events he claimed happened to him did not happen or had been exaggerated and therefore he had answered incorrectly questions about his fear of return and reasons for not being able to return.

21. The applicant responded to the s. 107 notice and maintained that there had not been non-compliance.

22. The delegate decided there had been, reasoning that the ability of the applicant to obtain an Iraqi passport in 2012 (after the protection application and grant) indicated the applicant could have obtained identity documents earlier and had not adequately addressed the reasons he was unable to obtain an Iraqi passport earlier.

23. The delegate appears to accept that the applicant was not an Iranian citizen at the time of applying for protection.

24. The delegate notes the applicant voluntarily returned twice to Iraq after the grant of the protection visa. The delegate found the applicant’s extended stay in Iraq in 2012 and again in 2013 indicates he did not hold the alleged adverse profile claimed in his protection application.

25. The delegate noted that the applicant’s Australian Titre de Voyage did not include an Iraqi visa.

26. The delegate concluded that the applicant had not complied with s. 101(a) and (b) in the ways particularised in the s. 107 notice.

27. The applicant did not concede that there had been non-compliance in the ways particularised in the s. 107 notice. He did however acknowledge that he has used the several different names particularised in the s. 107 notice, including the name on the claimed fraudulent Iranian passport with which he had attempted to gain a visa to [Country 1].

28. A statutory power, such as the power to cancel a visa, requires the existence of provable facts to ground such power.[2] The delegate must reach a state of satisfaction that these facts exist, a real state of satisfaction, as the Court explained in Zhao, must be reached on consideration of available material, and ‘cannot simply be cancelled because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.’[3]  While it is the case that administrative law does not readily lend itself to a concept of the onus or standard of proof, such concepts are not irrelevant. That is to say, where a statutory power requires the satisfaction of the relevant delegate of that power, and where that power potentially has a profound impact on the lives of those affected, as does a cancellation of a permanent visa, then it appears to me that a consideration of the gravity of the consequences should be borne in mind when deciding what level of satisfaction the delegate should reach in order to ground the power.[4] This is particularly the case in cancellation cases such as these where a former delegate accepted the claims of the applicant including his claimed nationality at that time.

    [2] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14].

    [3] Zhao v MIMA [2000] FCA 1235 at [25] and [32].

    [4] Briginshaw v Briginshaw (1938) 60 CLR 336.

29. In this case, I am not satisfied that the particularised non-compliance in the s. 107 notice has been made out, except for the differing names the applicant has been associated with, in particular that used in his Iranian passport when applying for [Country 1] visa. It is very clear from the information before me and the concession of the applicant that this was a name used by the applicant during this process and should have been disclosed in his protection application.

30. However, the other potential non-compliance does not reach the level of satisfaction required to ground the power.

31. The information about the applicant’s potential Iraqi and Iranian citizenship at the time he made his visa application is based almost entirely on the speculation of the delegate and other officers of the Department. This is clearly shown in the decision, by the use of words including ‘likely’ and ‘could have’ when discussing the situation of the applicant as regarding his potential nationality at the relevant point in time, being when he made his protection application.

32. The information includes a consideration of his evidence at his identity interview. Whilst it is clear that he provided many unsatisfactory and inconsistent answers, these rise only to the level of concerns, they do not establish the non-compliance. It should also be borne in mind that the identity interview occurred many years after the events he was questioned about. Detailed questions about his exit from Iran for example appear to me to have little evidentiary value so long after the claimed events, given the strong body of evidence that memories degrade over time.[5] The information includes general country information about the general situation for those potentially expelled or who left Iraq during Saddam’s regime and resided in Iran, the situation in relation to passport controls when departing Iran, as well as the situation for those who returned to Iraq and were able to re-acquire citizenship. Such information is helpful but does not establish that this generalised situation can be particularised to the applicant when all of the country information indicates that there are exceptions – for example, that it is generally speaking hard to obtain a fraudulent document clearly admits of the possibility that one could still at that time, obtain a fraudulent document.

    [5] This article provides a helpful overview - Lacy JW, Stark CEL. The neuroscience of memory: implications for the courtroom. Nat Rev Neurosci. 2013 Sep;14(9):649-658. doi: 10.1038/nrn3563. Epub 2013 Aug 14. PMID: 23942467; PMCID: PMC4183265.

33. The information includes a detailed analysis of the applicant’s family situation vis Iran and Iraq, but again, this is based on a general situation and cannot be particularised to the applicant.

34. The information includes that the applicant was able to acquire an Iraqi passport in 2012. This is significant in demonstrating that the applicant was, in 2012, eligible for a passport and was able to establish his Iraqi citizenship at that time. Other information, including that he appears to have travelled on an Australian TDV and his gaining of Iranian visas in that TDV would suggest he did not hold an Iraqi or Iranian passport prior to this time.

35. The information includes a detailed social media analysis of the applicant. This is, in my view, one of the most problematic aspects of the analysis. Social media is notorious for the level of social deception people engage in on such sites as Facebook.[6] While it is convenient to use social media as an investigative tool, the research indicates that it should be given very little evidentiary weight, absent strong correlating evidence, in establishing facts that cannot be independently verified.

    [6] Michelle Drouin, Daniel Miller, Shaun M.J. Wehle, Elisa Hernandez, Why do people lie online? “Because everyone lies on the internet”, Computers in Human Behavior, Volume 64, 2016, Pages 134-142,

36. The delegate decision goes on to analyse the applicant’s return trips to Iraq and Iran after the grant of his protection visa. Such return visits certainly raise concerns that the applicant may not have been truthful about his claims to fear harm on return to Iraq/Iran. But they are not determinative. Most of the world’s forcibly displaced persons are internally displaced in their country of origin rather than having crossed a border and become refugees.[7] This demonstrates that many people may legitimately fear harm in their country of origin but may be unable to depart that country. Return to a country of feared harm therefore does not automatically mean that that fear is not genuine or even well founded. Further, as has often been noted, the international protection regime must protect the foolhardy as well as the sensible.[8] And in this case the applicant has suggested that his return may have been against his own interests but compelled by compassionate grounds of assisting his unwell and elderly mother. To second guess a protection finding made by a delegate seems to me to require significant evidence that the claims are not true, rather than the more generalised information here that the applicant has returned twice.

    [7] UNHCR - Figures at a Glance

    [8] See Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, per Gaudron J at [22]; Judicial Analysis on Qualification for International Protection (Directive 2011/95/EU), 2^nd. Ed. EUAA Judicial Publications for members of courts and tribunals, 2023,

37. The information so far set out in the analysis is largely suggestive. It suggests that the applicant was not truthful or entirely truthful in his claims about his nationality at the relevant point in time. It does not establish that the applicant held either Iranian or Iraqi nationalities, as is demonstrated by the delegate’s use of the phrases ‘likely’ or ‘could’, nor that the applicant’s claimed fear of harm at the time he made his protection application, nor the claimed incidents leading to that fear, were not genuine.

38. I find that there is no non-compliance in relation to the applicant’s nationality, that of his family, nor of his claimed fear of harm nor claimed incidents which led to that fear established by the information in the s. 107 notice that reaches the level required to ground the power to cancel the visa.

39. I do accept that the applicant has been known by the other names particularised in the s. 107 notice, in particular that used in the Iranian passport which he acquired in order to apply for a visa to travel to [Country 1]. I find that in relation to this and this alone, I find that there was non-compliance with s. 101(a) and (b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

40. 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).

41. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.

    the correct information

1. The correct information is that the applicant was identified by, at least in the application for a [Country 1] visa, another name. His answers that he had not been known by any other names, and failure to provide this name were incorrect and ground the cancellation.

2. However, having considered his statutory declaration and his responses about this to the Department, I accept the applicant’s evidence that he did not provide this name because he did not think he was associated with the name in any meaningful way apart from the application for the [Country 1] visa. I note that there is no other information before me that this name has been used by him in any other context. I accept that the Iranian passport was fraudulently obtained. It follows that I do not accept that it can be concluded that the applicant did not provide this name for any malicious reason. I accept the evidence of the applicant that the other name put to him by the Department is a tribal name which does not form part of his name per se. Given my acceptance of these claims, whilst I have found this was an omission and provision of false information such as to ground the cancellation, I give this factor no weight given what I have accepted as extenuating circumstances. 

   the content of the genuine document (if any)

3. 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

4. In this case, given my findings and conclusions above, the only answers not provided and incorrect information provided which have been proven on the basis of the s. 107 notice and are able to ground the cancellation power relate to the name which the applicant was associated with in the [Country 1] visa application of 2007. This fact was before the reviewer and delegate when the decision was made to recommend lifting the bar and granting the visa. Having had regard to these decisions it is clear that the decisions were not based, wholly or partly, on the incorrect information. This is significant because it moves the breach here into a more technical and less substantive breach, one where, as above, I accept that the applicant did not intend to mislead or deceive.

5. Therefore, I give this factor some little weight towards the visa not being cancelled.

   the circumstances in which the non-compliance occurred

6. As above, I have accepted that the non-compliance here can be characterised as inadvertence rather than a conscious attempt to deceive or mislead. Given this I give this factor some little weight towards the visa not being cancelled.

   the present circumstances of the visa holder

7. I have had regard to the submissions and statements of the applicant and his family provided to me. I note and accept the following:

8. The applicant is experiencing loss of sleep, anxiety and persistent worry and concerns about the fate of his family, and in particular his daughters.

9. The second named applicant, the eldest child, is married to an Australian citizen but is unable to work or study.  She states that she speaks little or no Arabic and only basic Farsi.  She is also anxious and stressed about the future for her family and for the future with the husband. I have also had regard to the statement from her husband which supports this. 

10. I also consider that the situation for the applicants’ other family members is relevant to their present circumstances:

11. The applicant’s wife is receiving treatment for her depressed mood, sleep disturbance, fatigue, poor concentration and excessive apprehensiveness. She is undertaking cognitive behavioural therapy.[9] She is constantly worried about the future of her family and in particular her daughters. She has an application before me for review.

    [9] Report of [Doctor A] dated 18 December 2022

12. The applicant’s second child is now in [grade] at [a named] School.  [This child] was born in Australia and has only known life in Australia.  [This child] is an Australian citizen. 

13. The applicant’s third child is only [age] years old.  No statement has been obtained from her, but given her age she would likely be [in specified grade] in 2024. She is an Australian citizen.

14. It is submitted that the cancellation of the visas has adversely affected the whole family both mentally and in the conduct of their lives (for example the eldest child was unable to continue her studies after high school).  [Doctor A] confirms that various members of the family are suffering from depression, anxiety and sleep disturbances.[10]  

    [10] Report of [Doctor A] dated 18 December 2022

15. In my view it is clear that the cancellation of the visas for this family have had a profound effect on their welfare and on their ability to live their lives. This is despite my findings above that the breaches here are not egregious or malicious. It has also now been some considerable years since the decision to cancel the visas. In this time the effect on their lives has deepened. I give this factor significant weight towards 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

16. The applicant engaged with the Department and was available for interviews. The applicants responded fully to the s. 107 notice. At the Tribunal stage they have engaged with the process fully, and in particular I note that the second named applicant, the eldest child, has provided helpful and relevant information. Given their cooperation I give this factor some weight towards the visa not being cancelled.

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

17. No other instances of non-compliance are before me. I give this factor some little weight towards the visa not being cancelled.

    the time that has elapsed since the non-compliance

18. The non-compliance took place in 2010, over 12 years ago. This is a significant period that the applicants and their family have spent in Australia. This is significant because in this time the applicant’s children have now spent most of their lives in Australia, the applicant’s second and third children are Australian citizens, and the information provided in submissions is that the applicant and his family have been absorbed into the Australian community, at least until the cancellation decision, when understandably they withdrew somewhat, being unsure of their eventual status in the community. Given this, I give this factor significant weight toward the visa not being cancelled.

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

19. No instances of breach of the law since non compliance are before me. I give this factor some little weight towards the visa not being cancelled.

    any contribution made by the holder to the community.

20. I have had regard to the information provided in attachments to the submission and note the summary of this provided in submissions which details their active engagement with their local Hussaineyat. I have had regard to the statements of the applicant and the person he was caring for and accept that the applicant cared for a disabled man, and has also donated blood, and I consider these to be significant contributions to the community.

21. Taking all of the information in relation to the first named applicant into account I find that the applicant has contributed to the community in these regards and give this some weight towards the visa not being cancelled.

22. 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.

    whether there would be consequential cancellations under s 140.

23. In this case the second and third named applicants had their visas consequentially cancelled. At this point, the third named applicant is an Australian citizen. The fate of the second named applicant is tied to her father’s visa outcome.

24. I have had regard to the information provided in relation to the second named applicant. This indicates that the cancellation has had the most profound effect upon her. She was an active and enthusiastic member of her school community, with a commendable record of awards and achievements. If the visa had not been cancelled, she would, I have no doubt, have continued her achievements at university and beyond. She contributes now as a homemaker and provides support for her husband and wider community.

25. The third named applicant is now an Australian citizen and the Migration Act no longer applies to [them]. Although I am unable to consider [the third named applicant’s] cases specifically, I note that despite the cancellation [this applicant] has achieved excellent results in [tests] and is a member of [the] school community. [This applicant] writes about [having] many friends and [enjoying] school and life in Australia.

26. The cancellation had a serious and significant effect upon the second and third named applicants, whose visas were consequentially cancelled. Whilst reinstatement will not put the eldest back in the position she was in prior to cancellation, it may ameliorate some of the effect cancellation has had and allow her and her [sibling] to grow and develop and learn with some certainty. I give this factor significant weight towards the visa not being cancelled.

    Are there children whose interests would affect the cancellation

27. I note in this regard that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

28. The applicant has three children. His eldest daughter is an adult and is married. His [other children] were born in Australia and both are Australian citizens.

29. I have had regard to the submissions. I appreciate that these submissions seek to bring in the eldest daughter, but I note that this consideration is confined to the best interest of children and that this is defined in both the CRC and under domestic law as people under 18. I have however considered the situation of the eldest daughter elsewhere.

30. In relation to the [second and third children] of the applicant, their situation is directly relevant to this factor. If the applicant’s visa remains cancelled, then the children would face the prospect of their father (and mother) being removed from Australia or detained indefinitely – see discussion below. Both children are Australian citizens. There would be the very real prospect of the family being split, a violation of the principles of family unity present in the CRC and domestic law, or of the Australian citizen children being forced to leave their country of citizenship and potentially having to renounce their Australian citizenship, arguably a violation of their civil, political and social rights as citizens. I have also had regard to and accept the country information provided in submissions that the situation for women and girls in both Iran and Iraq is poor. This extends to all domains of life – social, interactions with government services, education and health.

31. I have also had regard to the documents provided which demonstrate the educational achievements of the [second child], who has excelled in [tests]. I note in this regard as well that the eldest daughter was offered a place at university in [subject areas] but was unable to accept the place due to the cancellation decision. This indicates to me that the children have been supported by their parents and the Australian school system to achieve impressive results. In this regard the role of the applicant, as the parent of the children, cannot be discounted.

32. The cancellation of the applicant’s visa, and that of his wife, has already had a significant negative impact on the family and the children.

33. If the applicant’s visa were to remain cancelled, the children would continue to suffer the impact that they have already faced. The best interests of the child clearly weigh here in favour of the visa not being cancelled, so that family unity may be preserved, so that the applicant can continue to support his children to study, and so that the children and their parents can remain within the community.

34. I give this factor significant weight towards the visa not being cancelled.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

35. In relation to this factor I have had regard to the decision of the Tribunal (differently constituted) in 1901883.[11] That case helpfully discussed the amendments to the Act of ss. 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to him prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to his removal, there being an intervening step.

    [11] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

36. But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, the corollary of the view expressed above that the applicant would not as a consequence be removed, necessarily demonstrates that cancellation may lead to prolonged detention. I have discussed this in more detail below.

37. For the same reasons, family unity obligations would not be breached because the applicant would not as a consequence of the cancellation be removed. However, this is also relevant to the discussion below.

38. On the basis of the discussion above, neither removal in breach of Australia's non-refoulement obligations, nor family unity obligations would be directly engaged by the cancellation. I therefore give this factor no weight in favour of the visa not being cancelled because this factor does not impact on the situation of the applicant if the visa is cancelled or reinstated.

    Any mandatory legal consequences

39. If the visa remains cancelled, the applicant and second named applicant would be unlawful. As noted in the delegate’s decision, they would be barred from making many other visa applications, although I note and have had regard to the fact that the second named applicant may be able to apply for a partner visa, but I also note the considerable expense and strain that this would place her under. The first named applicant would be liable to immigration detention, and it is therefore a highly likely consequence. As noted above, he would not face removal as an immediate consequence, there being an assessment prior to removal.

40. The question then arises – would the applicant depart to Iraq, his country of nationality, and therefore not remain in detention? His evidence is and has consistently been that he would not do so voluntarily. To do so may also lead to a breach of family unity obligations by effecting the removal of the father (and mother) of young children who are Australian citizens. The applicant continues to assert his fears of harm on return to Iraq or Iran. This would need to be assessed before he was able to be removed, which would not be a quick process.

41. I accept therefore that he faces the very real prospect of ongoing, long term detention if the visa remains cancelled. I have had regard to a large body of research that indicates that prolonged detention has a serious impact on mental health, indicating that those detained suffer high levels of mental health problems, that these are higher than in non-detained asylum seeking populations, and that duration is positively associated with severity of mental symptoms.[12] I accept that prolonged detention would exacerbate the applicant’s mental health challenges. The continued cancellation therefore would lead to long term mandatory detention, which I accept would have a significant, serious impact on the applicant.

    [12] von Werthern, M., Robjant, K., Chui, Z. et al. The impact of immigration detention on mental health: a systematic review. BMC Psychiatry 18, 382 (2018).

42. I give this factor significant weight in favour of the visa not being cancelled.

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

43. The cancellation has seriously impacted the applicant and his family. The applicant has been unable to continue his valuable work of caring for [his named friend]. The second named applicant has been unable to study [the specified subjects] at University. The family have had their ability to work, interact with the community and study curtailed. In the submissions from the family, they all speak of how the cancellations have impacted their ability to live within the community and to enjoy the freedoms of life in Australia.

44. I have had regard to the report of [Doctor A], Clinical Psychologist, who declares that the applicant’s wife’s mental health has deteriorated since the cancellation, suffering anxiety and major depression. The Doctor noted that the applicant’s wife linked these symptoms to the cancellation and the doubts over her and her family’s future. The Doctor also notes that he has had one session with the third named applicant who reported symptoms of anxiety and stress and expressed a fear [of having] to stay in Australia if [the] parents were removed.

45. Having regard to the information before me I find that the applicant and his family have experienced significant hardship. The children have suffered significant hardship, in the second named applicant’s case she has had to give up on a promising education and career, the third named applicant is doing exceptionally well in school given [anxiety and stress], but this has no doubt [had impact]. The applicant’s wife has experienced significant mental ill health. She has withdrawn somewhat from the Hussaineyat.

46. If the visas of the first and second named applicant and the visa of the applicant’s wife remain cancelled, these harms would remain and be compounded, causing what I consider significant hardship to the applicant and his family. Therefore, I give this factor significant weight towards the visa not being cancelled.

    Consideration and conclusion

47. I have carefully assessed the applicant’s claims and his circumstances. I have set out above my considerations and explained why I have weighted the factors the way I have. I have had careful regard to the findings of the cancellation delegate.

48. In this case, the significant hardship faced by the applicant, the likelihood that he would face long term detention and the best interests of his children weigh most strongly against cancellation. When considered with the hardship the family and in particular the applicant’s wife and the second named applicant have suffered, these weigh strongly against cancellation.

49. The breach here has been, as I have found, inadvertent and not malicious. Whilst generally, not being truthful in visa applications weakens the visa regime and may, at its most extreme, impact on community support for migrants and those owed protection being able to come to and live in Australia, this is not such a case.

50. In this case the very serious impact that cancellation has had on the applicant and his family, and the impact continued cancellation would have on them overwhelmingly outweigh the decision to cancel.

51. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

2. The Tribunal has no jurisdiction with respect to the other applicants.

   Sean Baker
   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.