1921531 (Migration)

[2021] AATA 5544

1921531 (Migration) [2021] AATA 5544 (17 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921531

MEMBER:Senior Member Dr N Manetta

DATE:17 August 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a new decision that the applicant’s visa not be cancelled under s 109 of the Migration Act, 1958.

Statement made on 17 August 2021 at 4:55pm

CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–applicant had given incorrect information – applicant lied in protection visa application – lengthy time the applicant has spent in Australia – ongoing practical support he provides to family overseas – decision under review set aside

LEGISLATION
Migration Act 1958, s 109
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 August 2019 to cancel the applicant’s, Mr [A]’s, subclass 155 Return (Residence) (Class BB) visa under s 109 of the Migration Act 1958 (the Act).

2. In cancelling the visa, the delegate took two decisions.  First, he or she concluded that [Mr A] lied in his application for a protection visa in 2011, and that he did not genuinely fear return to Iraq, the country of his birth.  Secondly, the delegate then weighed the exercise of his or her discretion to cancel [Mr A]’s visa and decided to cancel it. 

3. The issues in the application before me are, similarly, whether a ground for cancellation exists, and, secondly, if so, whether [Mr A]’s visa should be cancelled in the exercise of my discretion. 

4. [Mr A] appeared before the Tribunal to give evidence and to make submissions. He was assisted by Ms Hamdan, his legal representative. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   BACKGROUND

5. The background to the application to this Tribunal is as follows.  [Mr A] left Iraq and arrived in Australia as an “irregular maritime arrival” in 2010, aged [age].  He made an application for a protection visa as a refugee on 7 June 2011, and it was granted on 9 June 2011.   In his application for this visa, [Mr A] stated that he had fled the country of his birth, Iraq, because he feared for his life.  He said that his father had been shot and killed in Iraq.  His father, who [Mr A] said worked as [an occupation] for a Minister in the Iraqi Government, had been outside the family home when [Mr A] heard the sound of gunfire.  [Mr A] did not investigate, however.  He subsequently received what he then believed was a call from a hospital advising him that his father had been shot and had died.  [Mr A] also asserted in his application that his brother, who also worked for the Iraqi Government, simply disappeared one day.  He had apparently been kidnapped and was presumed murdered.  [Mr A] said that on [date] October 2010, he received a death threat, and he fled for Australia, fearing for his life, given the fate his father and brother had met.

6. [Mr A] returned to Iraq, however, in October 2011, travelling on an Australian-issued Titre de Voyage.  [Mr A]’s outgoing passenger card advised that he intended to spend three months abroad with the majority of his time to be spent in Iraq. His travel document of the time apparently bore a stamp showing that he had entered Iraq.  He returned on [date] February 2012.  On [date] August 2013, [Mr A] departed Australia, returning on [date] November 2013.  His incoming passenger card indicated that he had spent the majority of his time in Iraq.    

7. On 15 December 2014 an offshore application for a refugee and humanitarian visa was lodged by [Mr A]’s mother, and it included claims for [Mr A]’s deceased father and brother (that is, the brother who was kidnapped and was thought to be dead).  [Mr A] was listed as the proposer.

8. The delegate considered that [Mr A]’s application for a protection visa in 2011 had been dishonest.  The father, who had been shot, was in fact very much alive, and the brother who had gone missing was also alive.  Moreover, [Mr A] had apparently felt confident enough to spend many months in Iraq vising family in 2011 and 2013.  All this suggested to the delegate that [Mr A] had fabricated a version of events with which to bolster his application for a protection visa and thereby his chances of remaining in Australia.

9. The process envisaged under s 107 of the Act was set in train, including the giving of a statutory notice to [Mr A] calling for his comment.  The delegate found, after considering [Mr A]’s response to the notice, that [Mr A] had deliberately included incorrect information in his application for a protection visa contrary to s 101 of the Act.  The delegate decided in his or her discretion that [Mr A]’s present visa should be cancelled, a course that was open given the provisions in s 107A.

   DECISION

10. I have decided to set aside the decision under review and substitute a new decision that [Mr A]’s visa not be cancelled.  My reasons follow.

    Did [Mr A] lie in his protection visa application?

11. I must first consider whether the precondition for the exercise of the discretion to cancel the visa arose in this case; namely, whether [Mr A] lied in his protection visa application. I agree with the delegate’s finding that [Mr A] lied in his visa application form. 

12. [Mr A] gave evidence before the Tribunal, and I did not find his evidence convincing in this regard.  Despite having been rung from what he took at the time to be a hospital with the terrible news of his father’s murder, neither [Mr A] nor anyone else in the family immediately attended the hospital in order to identify [Mr A]’s father’s corpse or to retrieve the body for burial.  That is a very odd situation indeed, and it is not adequately explained in my opinion by any safety concerns.  Moreover, [Mr A] gave evidence that he only discovered his father had been kidnapped (rather than murdered) when his father was released from captivity some considerable time later.  On [Mr A]’s evidence, his father was kidnapped, but no ransom was ever demanded.  The kidnappers chose, rather, to ring [Mr A], impersonate hospital staff, and inform him his father had been shot and had died.  Moreover, the kidnappers kept [Mr A]’s father alive for approximately four years− for what reason they would have decided to do this is not clear− before he was finally liberated in 2013 without a ransom ever having been demanded.  This is an entirely implausible story in my opinion.

13. [Mr A] also said his brother had been kidnapped in 2009.  He also worked for the Iraqi Government.  His brother was released, luckily, from captivity in 2011.  This story is also implausible.

14. Like the delegate, I have also found [Mr A]’s return to Iraq for an aggregate period of some seven months to be inconsistent with the fear for his safety that [Mr A] raised in his protection-visa application.  The first trip occurred not long after [Mr A]’s protection visa was granted.  I find it very strange, indeed, that [Mr A], who so feared for his life that he took the large step of undertaking a journey to Australia, would return so quickly to Iraq for an extended period of time.  I take into account that he had a new-born son he had not seen and he wished to see family, but I still find that it is incongruous that he should have returned to such a dangerous country for such lengthy periods of time.

15. I have given [Mr A] the benefit of all reasonable doubt, but all in all, I am satisfied that [Mr A] lied in his application for a protection visa and lied before me in his evidence. I find that the precondition for the exercise of the power to cancel his visa exists.

    Re-exercising the discretion

16. I now turn to consider the re-exercise of the discretion to revoke the visa that [Mr A] currently has. I bear in mind that I am required to weigh up, amongst other things, the so-called “prescribed circumstances”: see s 109(1)(c). These are set out in the Regulations and are referred to in the departmental file. I shall not set these out, but I have considered them.

17. This has not been an easy case. I take into account, and weigh very carefully, the deliberate lies that [Mr A] included in his visa application. He also persisted in this false version of events before me.  Those are very serious matters for me to weigh up.  Moreover, I accept that the protection visa which [Mr A] was granted would not have been granted but for the lies that he told. It can be said, therefore, that the lies were decisive in the determination of his application for a protection visa.

18. I bear in mind also, however, that [Mr A] chose to enter Australia unlawfully at a relatively young age of [age]. I do not doubt that his circumstances in Iraq were difficult at the time and, like many, he seized an opportunity− albeit an opportunity that involved him in the commission of offences against Australian law− to enter Australia under a pretext. I take into account also that in one sense, having begun with a lie, [Mr A] would have felt himself to be in something of a predicament when it came to giving evidence to the Department and the Tribunal. Should he tell the truth and risk removal from Australia or should he persist in the lie in the hope that it would help him remain in Australia? That said, I must take into account the fact, and do so, that [Mr A] has chosen to lie to the Department and to this Tribunal in respect of the true situation he faced in Iraq.

19. There are, however, other circumstances that I believe I should weigh in this case. First, [Mr A] has been in Australia for well over a decade. He has established himself here. He first worked as a [occupations].  He has no criminal record in Australia.  [Mr A] is presently engaged as a self-employed [occupation] making a living which has proved sufficient to enable him to support himself and family members overseas.  He is now making his own way in Australia as a law-abiding resident.  This is a positive feature of his life in Australia.  

20. The passage of time in this case is important.  The cancellation of [Mr A]’s visa will entail his repatriation to Iraq because he will have no lawful right to remain in Australia. That result would, of course, have followed automatically had [Mr A]’s lies been discovered at the time his visa application fell to be considered, or shortly thereafter. The longer the passage of time between the lie and its discovery, however, the more the visa-holder becomes established in the community, and the greater the impact, potentially, upon him or her of a visa cancellation.  That has proved true in [Mr A]’s case.

21. I note also that [Mr A] gave evidence that he is sending money overseas to support his family, namely, a wife, a son, a daughter, and parents. I have been very cautious in accepting [Mr A]’s evidence in this regard given the lies he has told.  On the other hand, it would be surprising if [Mr A] were not sending money to his family, which, as I have said, includes a wife and two children.  I accept his evidence that he is sending approximately $1,200 per month to them.  Accordingly, [Mr A]’s removal to Iraq would mean, at a practical level, a cessation of his financial support for family members.  That is a matter that I should also take into account, in my opinion, when deciding whether or not to cancel [Mr A]’s visa.

22. Like the delegate, I am not persuaded that [Mr A] would face any serious threat to his safety as a Shia Muslim man returning to Iraq, and I take that into account as well.

23. The weighing of the discretion in this case has caused me a great deal of difficulty. The lies told to the Department and [Mr A]’s persistence in the lies before this Tribunal are matters that do weigh heavily in favour of affirming the delegate’s decision.  I have, however, decided to set aside the delegate’s decision.  In my view, the correct or preferable exercise of the discretion in this case requires me to have regard to the lengthy time [Mr A] has spent in Australia and the ongoing practical support he provides to family overseas, although I am not persuaded that he is necessarily the only support they have.  I should add that I do not believe that this is the only way the discretion could be properly exercised in this case; but it does seem to me to be the correct or preferable exercise of the discretion on the basis of all the evidence before me.

    FORMAL DECISION

24. My formal decision will be to set aside the decision that [Mr A]’s visa be cancelled and to substitute a new decision that his visa not be cancelled under s 109 of the Act.

    Dr N Manetta
    

    Senior Member