1911469 (Refugee)

[2023] AATA 994

1911469 (Refugee) [2023] AATA 994 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

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

CASE NUMBER:  1911469

COUNTRY OF REFERENCE:                   Stateless

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 applicant’s Subclass 866 (Protection) visa.

Statement made on 08 February 2023 at 12:53pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – 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 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the 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 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review.

4. 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

5. 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.

6. 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.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

8. 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:

9. The delegate found that the applicant had not complied with s. 101(a) because the applicant used a different name in her Iranian passport which she used to apply for UK visas in 2007 and found that this different name was her real name. The delegate found the applicant was an Iranian citizen because her parents were and that she could have obtained Iraqi citizenship through her husband who is an Iraqi citizen. The delegate went on to find the applicant had given incorrect information and therefore not complied with s. 101(b) by incorrectly answering questions in relation to her citizenship and claims for protection in relation to being stateless and claims she could not return to Iran or Iraq.

10. In relation to the use of a different name, the applicant has admitted to using a false Iranian passport to apply for a UK visa in 2007. She initially said that this was in her name, and when provided with the different name she said that this was what was on the false passport, and she had not used this name in any other context.

11. With regards to the nationality of the applicant’s father, the delegate reasoned that the father would have been able to maintain or re-gain Iranian nationality and found that it was likely and feasible that he had done so. Further, the applicant had stated that one of her sisters’ husband was her paternal cousin and was Iranian and therefore her uncle was Iranian and therefore her father was Iranian. The delegate concluded that the applicant was therefore an Iranian national by descent.

12. In relation to the finding that her husband was an Iraqi citizen and therefore that the applicant could have obtained Iraqi citizenship the delegate found that she could provide proof of her Iraqi citizenship by virtue of her marriage to an Iraqi citizen and an Iraqi citizen child born in Iraq to an Iraqi father. The delegate found it was implausible she would not have exercised her rights to apply for citizenship in Iraq.

13. The delegate decided the applicant had answered questions incorrectly when she had stated she was stateless, on the basis of the reasoning above.

14. The delegate decided the applicant had answered questions incorrectly about her claims she could not return to Iran or Iraq. The delegate noted that they had found the applicant not to be stateless, and the claims of the applicant to fear harm in these countries was predicated on her claimed statelessness. Further, the applicant had returned to Iraq and Iran for a considerable period of time, which the delegate decided was indicative that the applicant did not hold the claimed fears.

15. The applicant responded to the s. 107 notice maintaining that there had not been non-compliance. The delegate concluded that the applicant had not complied with s. 101(a) and (b) in the ways particularised in the s. 107 notice.

16. The applicant did not concede that there had been non-compliance in the ways particularised in the s. 107 notice. She has conceded that there was a different name used in the passport with which she applied for a UK visa in 2007. The applicant does not however concede that this is her true name, nor that that Iranian passport was a genuine passport, as was found by the delegate.

17. A statutory power, such as the power to cancel a visa, requires the existence of provable facts to ground such power.[1] 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 just cancel the visa ‘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.’[2]  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.[3] This is particularly the case in cancellation cases such as these where a former delegate accepted the claims of the applicant including their claimed nationality at that time.

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

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

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

18. 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 name the applicant has been associated with in the Iranian passport she used when applying for the UK 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 her protection application.

19. However, the other potential non-compliance does not reach the level of satisfaction required to ground the power. It is not disputed that the applicant provided inconsistent information about her life in Iran and Iraq. But these inconsistencies alone do not rise to the level required. They do not establish the non-compliance. It should also be borne in mind that the interviews with the applicant occurred many years after the events she was questioned about. Detailed questions about her father’s level of documentation at various times 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.[4] Much of the discussion of the potential pathways to Iranian citizenship that the applicant or her father might have taken up is general in nature. Such information may be 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, as noted below.

    [4] 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.

20. The information about the applicant’s father’s ability to maintain or re-gain Iranian citizenship after the family was expelled from Iraq rests on a long and, to my mind, tenuous chain – that the father maintained a green or white card, and/or was able to provide some documentary proof to Iranian authorities of his Iranian descent, and was subsequently able to prove and re-gain Iranian citizenship, or that the father was able to maintain Iranian citizenship despite their expulsion from Iraq under the Baathist regime. The delegate’s reasoning here is difficult to follow as they also introduce into this paragraph the possibility that the applicant held Iranian identity documentation. The reasoning here rests on a series of assumptions about what the applicant and her family would or should have done, what they were likely to have done, and on country information which appears to me not to be as definitive as the delegate seems to view it, noting only that those with documentary evidence have been able to obtain Iranian citizenship – this does not indicate that all or even many people in such situations have been able to obtain them. The information about the applicant’s brother in law and first cousin also does not appear to take into account other possibilities – that the uncle could have maintained Iranian documentation when the applicant’s father did not, or that the uncle had acquired Iranian citizenship by the applicant’s father had not. There is not a sufficiently clear evidentiary basis to establish that the applicant did hold Iranian citizenship at any point.

21. The information in relation to the applicant’s husband’s Iraqi citizenship and the applicant’s consequential Iraqi citizenship is tenuous. It is not disputed that the applicant’s husband was able to gain an Iraqi passport in 2012. But it is not clear that this demonstrates he was an Iraqi citizen prior to this time, and indeed his use of his Australian travel document before this might suggest he was not. The reasoning here appears to conflate the situation generally in the country information with the specific situation of the applicant’s husband. Specific to the applicant, the delegate appears to assume that the applicant would automatically be granted Iraqi citizenship. This is not the case. Art. 12 of the Iraqi Nationality Law has requirements including periods of residence for certain classes of persons seeking to gain nationality via marriage, and requires such a person to make an application for citizenship.[5] I have also noted and had regard to the fact that the applicant states she has never applied for Iraqi citizenship.[6]

    [5]         Law No. (46) of 1963 - Iraqi Nationality [],   1963, available at:

    [6] See para 18, statutory declaration of [the applicant], 3/02/2023

22. The information in relation to the applicant’s claimed statelessness rests on the above reasoning of the delegate. I have noted the points made in the most recent submission that the delegate failed to address the apparent inconsistency with whether the applicant could have been a dual Iranian and Iraqi national when the nationality laws of Iran at least appear to prohibit dual nationality. I have also had regard to the submission which notes that the independent reviewer had found the applicant to be stateless. As I have noted above, in this context, significant, probative evidence should be put forward to ground the cancellation power. The delegate, in my view, has failed to bring forward such evidence to support the assertion that the applicant is not stateless, particularly in the context where the reviewer found she was.

23. In relation to the name used in the claimed false Iranian passport which was provided to facilitate her UK visa application in 2007, I accept that the applicant may not have associated this name with her identity, and may not have thought to include it in her application for protection in Australia. However, this does not remove the fact that this name was associated with her, and that she was required to disclose this in her protection application. Incorrect answers remain incorrect regardless of whether the person was aware they were incorrect. However, this fact does go to weighing the discretion.

24. The delegate decision goes on to analyse the applicant’s return trips to Iraq and Iran after the grant of her protection visa. Such return visits certainly raise concerns that the applicant may not have been truthful about her claims to fear harm if returned 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] Many people may legitimately fear harm in their country of origin but may be unable to depart that country. Further, there is a significant difference between a person being returned to live permanently in their home country with the situation of a person returning to that country with a passport or TDV of a receiving country for a temporary visit. 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] To second guess a protection finding made by a delegate requires significant evidence that the claims are not true, rather than the more generalised information here that the applicant has returned. I have also had regard to the submissions and most recent statutory declaration of the applicant in which she states that on both occasions she travelled on an Australian TDV, and that this provided some protection, as did the fact that they were there on relatively short visits.

    [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,

25. The information set out in the delegate’s analysis is largely suggestive. It suggests that the applicant was not truthful or entirely truthful in her claims about her nationality or nationalities at the relevant poinst 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 she made her protection application, were not genuine.

26. I find that there is no non-compliance in relation to the applicant’s nationality, that of her family, nor of her claimed fear of harm if returned to Iran or Iraq established by the information in the s. 107 notice that reaches the level required to ground the power to cancel the visa.

27. I do accept that the applicant has been known by the other name particularised in the s. 107 notice, that used in the Iranian passport which she acquired in order to apply for a visa to travel to the UK. 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.

28. For these reasons, 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). The prescribed circumstances are set out in reg 2.41 of the Regulations.

    the correct information

31. The correct information is that the applicant was known, at least in the application for a UK visa, by another name. Her answers that she had not been known by any other names, and failure to provide this name were incorrect and ground the cancellation.

32. However, having considered her responses about this to the Department, and the information in her statutory declaration and the submission, I accept the applicant’s evidence that she did not provide this name because she was not associated with the name in any meaningful way apart from the application for the UK visa. I note that there is no other information before me that this name has been used by her 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. 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)

33. 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

34. 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 UK 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.

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

   the circumstances in which the non-compliance occurred

2. 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

3. I have had regard to the submissions and statements of the applicant and her children provided to me. I note and accept the following:

4. The applicant 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.

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

5. I also consider that the situation for the applicant’s children is relevant to her present circumstances:

6. The applicant’s 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.  

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

8. 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 starting school in [year]. She is an Australian citizen.

9. 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).  [Dr A] confirms that various members of the family are suffering from depression, anxiety and sleep disturbances.[10]  

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

10. 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 visa. 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

11. The applicant engaged with the Department and was available for interviews, response to the s. 107 notice and was also telephoned at her home. At the Tribunal stage she has engaged with the process fully. Given her cooperation I give this factors some little weight towards the visa not being cancelled.

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

12. 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

13. The non-compliance took place in 2010, over 12 years ago. This is a significant period of time in which the applicant and her family have spent in Australia. This is significant because in this time the applicant’s children have now spent the majority 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 her family have been absorbed into the Australian community, at least until the cancellation decision. 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

14. 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.

15. 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, including the voluntary work that the applicant did there, and the contribution of the applicant towards raising her [children] and supporting them in their education, and the effect of the cancellation on the applicant’s eldest child who was unable to take up an offered place at university due to the cancellation of her visa and her inability to study. Taking all of these 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.

16. 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.

17. In relation to the applicant, there were no consequential cancellations. I have addressed the consequential cancellation of the two elder children in the applicant husband’s decision. In relation to the applicant this factor is not directly relevant and I therefore give it no weight.

    Best interests of the child

18. 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].

19. The applicant has three children. Her eldest daughter is an adult and is married. Her [other children] were born in Australia. The second and third [children] are Australian citizens.

20. 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.

21. 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 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.

22. I have also had regard to the documents provided which demonstrate the educational achievements of the [second child], who has excelled in [NAPLAN tests]. I note in this regard as well that the eldest daughter was offered a place at university in Science/Medical sciences 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.

23. The cancellation of the applicant’s visa, and that of her husband, has already had a significant negative impact on the family and the children.

24. 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 her children to study, and so that the children and their mother can remain within the community.

25. 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.

26. 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 her 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 her removal, there being an intervening step.

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

27. 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.

28. 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.

29. 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.

    whether there are mandatory legal consequences.

30. If the visa remains cancelled, the applicant would be unlawful. As noted in the delegate’s decision, she would be barred from making any other visa applications. She would be liable to immigration detention, and it is therefore a highly likely consequence. As noted above, she would not face removal as an immediate consequence, there being an assessment prior to removal.

31. The question then arises – would the applicant depart to Iran, her country of habitual residence, and therefore not remain in detention? Her evidence is and has consistently been that she would not. There may also be practical barriers to her return to Iran. To do so may also lead to a breach of family unity obligations by effecting the removal of the mother of young children who are Australian citizens. I accept that the applicant would not voluntarily return.

32. I accept therefore that she faces the very real prospect of ongoing, indefinite 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 further exacerbate the applicant’s significant mental health challenges and distress. The continued cancellation therefore would lead to indefinite 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).

33. I give this factor very 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).

34. The cancellation has seriously impacted the applicant and her family. The eldest daughter has been unable to study Science/Medical sciences 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.

35. I have had regard to the report of [Dr A], Clinical Psychologist, who declares that the applicant’s mental health has deteriorated since the cancellation suffering anxiety and major depression. The Doctor noted that the applicant 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 second child of the applicant who reported symptoms of anxiety and stress and expressed a fear [of staying] in Australia if [the] parents were removed.

36. Having regard to the information before me I find that the applicant has experienced significant hardship in terms of her mental health deterioration. Her children have suffered significant hardship, in the eldest daughter’s case she has had to give up on a promising education and career, the second child is doing exceptionally well in school given [the identified] anxiety and stress, but this has no doubt [had an impact]. The applicant’s husband has been unable to work. They have withdrawn somewhat from the Hussaineyat.

37. If the visa and the visas of the applicant’s husband and second child remain cancelled, these harms would remain and be compounded, causing what I consider significant hardship to the applicant and her family. Therefore, I give this factor significant weight towards the visa not being cancelled.

    Consideration and conclusion

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

39. In this case, the significant hardship faced by the applicant, the likelihood that she would face long term, indefinite detention and the best interests of her children weigh most strongly against cancellation. When considered with her mental health and how this would be impacted if she were to be detained this factor alone weighs strongly against cancellation because the effects on the applicant of detention for a prolonged period would likely be profoundly adverse.

40. 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.

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

42. 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.

43. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    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.