1934546 (Refugee)

1934546 (Refugee) [2022] AATA 2289 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Shahid Nadeem (MARN: 0851112)
CASE NUMBER: 1934546

COUNTRY OF REFERENCE: Iraq
MEMBER:Antoinette Younes
DATE:5 May 2022
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 5 May 2022 at 1:25 PM
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information in visa application – identity details – previous visa applications – family composition – fear of removal from Australia – divorced woman – sexual abuse – best interests of the Australian citizen children – removing the children without the father’s consent – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 36, 46, 99, 101, 107, 109, 140, 189, 197, 198
Migration Regulations 1994, r 2.41
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
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

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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in the application for a protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review.
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
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.
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.
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?
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 s 101(b) of the Act.
Section 101 provides:
Visa 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.
The Act does not define the term “incorrect”. However, s 100 provides that 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”.
Section 99 provides:
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.
BACKGROUND
Application for a protection visa
The delegate’s decision record, a copy of which the applicant provided to the Tribunal indicates that [in] December 2011, the applicant arrived at Christmas Island and claimed to be a refugee. On 21 March 2012, a delegate was not satisfied that the applicant was a person to whom Australia has protection obligations. The refusal was referred to the Independent Protection Assessment (IPA). On 4 October 2012, the IPA recommended that the applicant be recognised as a person to whom Australia has protection obligations. Consequently, on 7 November 2012, the applicant lodged a Protection (Subclass 866) visa application which was granted on 14 November 2012.
As part of the visa application, the applicant provided a Form 866 – Application for a Protection (Class XA) Visa. In responses to questions 1, 3, and 12 of the Form 866 B, the applicant indicated that “[the applicant], [DOB 1]” is included in the application, that she had not previously made any other type of application to the Department (including a Parent visa) and that she does not have close relatives who are in Australia at the time of application.
As part of the application, the applicant provided a Part C of the Form 866. In responses to questions 1, 4 and 8 of Part C of Form 866, the applicant gave her full name as [the applicant], that she has not been known by any other name, and that her date of birth is “[DOB 1]…[age] years.” At question 67 of Part C of Form 866, the applicant declared “I [name] of [Address 1] do solemnly declare the information I have supplied or caused to be supplied on or with this Part C of the form 866 is complete, correct and up to date in every detail.”
Forensic facial comparison
The delegate’s decision record indicates that on 27 March 2018, the Department completed a forensic Facial Image Comparison Report (FICR) which considered photographs from an application for a Global Special Humanitarian (Subclass 202) visa application lodged on 23 July 2007, and the applicant’s photograph provided with the Protection (Subclass 866) visa application, lodged 7 November 2012. The FICR revealed:
·The images compared were for applicants whose identities were declared as [the applicant] ([DOB 1]) and [Alias A] ([DOB 2]). This indicated that [the applicant] and [Alias A] are the same person.
·[Alias A] applied for an offshore Global Special Humanitarian visa on 23 July 2007. The proposer was her claimed sister in Australia, [Sister B] ([DOB 3).
·Iraqi Identity card number [IC 1] issued [in] 2005 bearing the applicant’s photograph was included, issued in the name of [Alias A], born [DOB 2]. [Alias A] claimed to be divorced and that her parents passed away in 2004. She subsequently claimed her sister and proposer is her only living family member. However, on checking her sister’s own Global Special Humanitarian (Subclass 202) visa application lodged in 2006, the Department noted that [Sister B] had claimed her parents were alive and residing in Iraq.
·[In] February 2008, the Tehran Post initiated integrity checks against the death certificates [Alias A] provided for her parents, both dated [in] November 2004. [In] May 2008 the checks concluded that the death certificates provided were counterfeit. The application was refused on 7 November 2008 as the delegate was not satisfied that [Alias A] met the criteria for the grant of the Humanitarian Visa.
·On 8 December 2009, [Alias A] ([DOB 2]) lodged an offshore Global Special Humanitarian visa. Her claimed sister [Sister B] sponsored [Alias A]. Iraqi Identity card number [IC 2] issued [in] April 2008 bearing the applicant’s photograph was included, issued in the name of [Alias A], born [DOB 2]. The application was refused on 11 May 2010.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/NOTICE) and RESPONSE
On 12 August 2019, the Department sent to the applicant a Notice to which the applicant responded on 20 September 2019. The Notice referred to, among other things, the requirements of s 101 and to the information summarised above indicating that there had been non-compliance with that provision. The Notice specifically referred to the findings of the FICR and indicated to the applicant that the ground for cancellation appears to arise.
In submissions dated 20 September 2019 and in response to the Notice, the representative contended that:
·The applicant “in the broader sense accepts, subject to the submissions made in later paragraphs, to not having complied with section 101 (a) and section 101 (b) of the Migration Act 1984…” Despite the non-compliance, the applicant’s visa should not be cancelled.
·As claimed in her application for a protection visa, the applicant has had a terrible and miserable life in Iran and Iraq prior to coming to Australia. The applicant faced sexual assaults and sexual abuse as a child and as a teenager by “many individuals, including her husband, stepbrother, constant sexual abuse by her stepfather, both in Iraq and Iran”. The applicant was born in Iraq in or about [year] and her parents were forced to separate by government forces prior to her birth. Her biological father fled to Iran for fear of persecution at the hands of Iraqi forces and he remarried in Iran. The applicant was raised by her maternal grandparents.
·The applicant was forcibly married to [an age]-year-old man when she was about nine years old. During the [number] years marriage, she was sexually abused by her husband. In about 2003, she managed to divorce her husband. In 2006, she left Iraq and moved to Iran where she was again sexually assaulted in a hotel room by the supervisor of the hotel. In 2007, she got engaged to an Iranian Kurdish man who the applicant subsequently discovered was already married. The applicant fell pregnant and was forced by that man to have a termination of the pregnancy. In July 2007, she lodged the Global Special Humanitarian (Subclass 202) visa. She did not complete the application and she does not remember signing the application. As far as she is aware, she told the case officer during her interview that she did not complete or sign the application form. The applicant admits to noticing the misspelling of her name on one of the pages of correspondence she received from the Department but she did not consider that to be a legal issue. During an interview with her case officer, she did not raise the issue of misspelling of her name out of fear and ignorance.
In relation to the second Global Special Humanitarian (Subclass 202) visa which was lodged on 8 December 2008, the applicant’s knowledge does not go beyond the information that an application was lodged. The applicant did not sign or complete the application and she did not have knowledge of its contents. In 2011, the applicant risked her life and came to Australia by boat with the help of people smugglers. On arrival in Australia [in] December 2011, she lived in a detention centre until or about March 2012.
[In] September 2013, the applicant entered a religious marriage with her partner, [Mr C] who is an Australian citizen by birth. Their marriage has not been registered in Australia and hence they are “in a de facto relationship”. The couple has three daughters born on [specified dates] (birth certificate attached). The applicant is a stay-at-home mother who provides full-time care to her three children. All three children are Australian citizens by birth. The children live with the applicant and her partner. Cancellation of the applicant’s visa would not be in the interest of the three children. The applicant continues to fear harm and she relies on the same claims that she made in her application for a protection visa.
The applicant is associated with a community organisation known as the [Community Organisation 1]. She is an active member of the organisation and supports its activities (letter of support provided).
The delegate considered the response and the supporting documents and decided that the ground for cancellation exists and that the visa should be cancelled.
The Tribunal’s review
In support of the application for review, the applicant provided written submissions by her representative, essentially reiterating the submissions made in response to the NOICC. She also provided documents in support including an Islamic Marriage Certificate indicating that the couple married in the Islamic tradition [in] September 2013, a Relationship Certificate showing registration of the couple’s relationship in January 2020, birth certificates for the three children, utility bills, certificates and awards for the children, and a statement from the applicant’s partner.
During the hearing, the applicant confirmed that she had provided incorrect information as outlined earlier. She apologised and stated that she was frightened that she would be removed. She stated she was frightened of being deported but she is not happy with herself. The applicant stated that she did not know the law at the time and others coached her about what to say and not to say. She stated that now she is aware and acknowledges the importance of complying with the law. She stated that she is ashamed that this is happened. She stated she feels bad and again apologised for what she has done.
The applicant gave evidence that she was born in Iraq in [year] and that now she is [age] years of age. She stated that she went to Iran when she was very young to be with her father who was in Iran at the time. She stated that she has one full sibling who lives in Australia, [a number of] half-siblings on her mother’s side, and [more] half-siblings on her father’s side. She gave evidence that she met her partner in about 2013 and they married in the same year.
In relation to her three children, [ages specified], she stated that she is fully responsible for the children’s daily care because her husband works full time. They bought a house together and they live in that property currently.
The Tribunal asked her why she could not return to either Iraq or Iran and she stated she could not return to either country and she would not want to leave her children in Australia. She confirmed that the three children do not speak Arabic or Farsi but English.
The applicant’s partner gave evidence about their relationship. There was a minor discrepancy between his evidence and that of the applicant but the Tribunal has formed the view that it would be unreasonable to use the minor inconsistency in an adverse manner.
The applicant does not dispute that she has provided incorrect information. Although she has claimed that she did not complete or sign the forms, she does acknowledge that incorrect information has been provided. The Tribunal explained to the applicant that there does not have to be an actual intention or knowledge for breach to occur. The applicant continued to apologise.
The Tribunal is not persuaded by the applicant’s explanations. However, the Tribunal need not make a finding that the applicant had intended to provide or had known about the provision of the incorrect information. As noted previously, s 100 provides that 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”.
On the evidence before it, the Tribunal finds that the applicant had breached s 101 of the Act in that, she provided incorrect answers to questions 1, 3, and 12 of the Form 866 B, when indicating that “[the applicant], [DOB 1]” had not previously made any other type of application to the Department (including a Parent visa) and that she does not have close relatives who are in Australia at the time of application. The applicant also provided incorrect answers to questions 1, 4 and 8 of Part C of Form 866, when she gave her full name as [the applicant], that she has not been known by any other name, and that her date of birth is “[DOB 1]…[age] years.” The declaration at question 67 of Part C of Form 866 is incorrect; she declared “I [name] of [Address 1] do solemnly declare the information I have supplied or caused to be supplied on or with this Part C of the form 866 is complete, correct and up to date in every detail”.
For these reasons, the Tribunal finds that there was non-compliance with s 101(a) and s 101(b) of the Act by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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. Briefly, they are:
The correct information
The applicant has accepted that she has provided incorrect information as specified in the NOICC.
The correct information is that the applicant has previously applied for two Global Special Humanitarian (Subclass 202) visas to Australia, in 2007 and in 2009. She applied for those visas under the identity of [Alias A].
As discussed in the course of the hearing, the Tribunal takes a very serious view of the provision of incorrect information as it goes to the integrity of the migration program. The Tribunal considers the provision of incorrect information in this case to be significant and designed for the gain of advantages in the visa program.
The Tribunal gives this consideration significant weight in favour of cancellation.
The content of the genuine document (if any)
This consideration is not relevant.
The Tribunal gives this aspect neutral weight.
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
The applicant has maintained that she has protection claims and that she fears being removed from Australia due to fear of persecution.
The applicant was granted the protection visa on the basis of her claimed identity and claims of harm. Among other things, she was granted the protection visa on the basis of being a single divorced woman who had never applied for any kind of visa in Australia, and who had no relatives in Australia. She made claims of sexual abuse and other type of abuse. The fact that the applicant has provided incorrect information in the application for the protection visa as outlined above, raises serious doubts about the claims she has made in the application for a protection visa.
In any event, the Tribunal is satisfied that had the delegate been aware that the applicant had previously applied on two occasions for an Australian visa namely, Global Special Humanitarian (Subclass 202) visas to Australia, it is likely that the delegate would have concluded that questions were to be raised about her claims for protection given the refusals of those two visas. Essentially, the delegate most likely would have concluded that the applicant is making unsubstantiated claims for the purpose of migration and not because those claims are genuine.

In those circumstances, the Tribunal is satisfied that the protection visa was granted based wholly or partly on the incorrect information which the applicant provided.
The Tribunal gives this aspect weight in favour of cancellation.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant provided incorrect answers to questions in the application for a protection visa. The applicant provided incorrect answers by not disclosing the two previous Global Special Humanitarian (Subclass 202) visas to Australia in the name of [Alias A] and that she had a sister in Australia.
The non-compliance also occurred when the applicant made a declaration in the application for a protection visa that the information she had provided in the application is complete and correct.
The applicant has provided explanations such as not knowing the law, being coached by others, fearing being deported, and having protection claims. As outlined previously, to find breach in ss 101(a) and 101(b), there need not be actual knowledge that information is incorrect or that it was unintended. The Tribunal however was not persuaded by the applicant’s explanations. However, the Tribunal observes that once the breach was discovered and the applicant was sent the NOICC, she conceded that she had provided incorrect information as outlined in the Notice. She reiterated her concession before the Tribunal and apologised for her conduct, albeit continuing to claim that this was unintentional.
On balance, given the seriousness of the non-compliance and despite the apology, the Tribunal has decided to give this consideration weight in favour of cancellation.
The present circumstances of the visa holder
The applicant is in a relationship with an Australian citizen and they have three minor Australian daughters, aged [age], [age] and [age] years. The applicant’s partner works full time and provides financial support for his family. The applicant is a full-time mother. The oldest daughter, [Child D] is in [grade] and the second eldest is in preschool which she attends two days a week. The youngest is [age] years old and is at home with her mother. The family lives in a home which the couple purchased in November 2020.
At the time of purchasing the home, the couple contributed approximately $50,000 each and the applicant borrowed $46,080 from her mother in Iraq who helped the applicant purchase the home. The family is a close family and the children are attached to both parents.
The applicant’s partner is the breadwinner in the family and he is responsible for mortgage and other payments. The couple separated temporarily in about 2017 and the partner moved out of the family home and lived with his mother for some time. The couple reunited a few weeks prior to November 2017. During their separation however, the couple maintained contact and provided joint care to their child [Child D]. The applicant’s partner continued to provide financial and emotional support to the applicant despite their separation. The couple has registered their relationship.
The Tribunal is satisfied that cancelling the visa in these circumstances would cause significant hardship and instability to the family unit. The applicant’s children would be adversely impacted. Cancellation of the applicant’s visa could mean that a choice would need to be made either to take the children out of Australia or to separate the family so that the children could remain in Australia. It is also important to acknowledge that the applicant’s partner is an Australian citizen by birth and it would be harsh and unreasonable to suggest to him that he should depart Australia to live overseas, such as in Iraq, a country with which he has no cultural or identity connection (the applicant’s partner is an Australian of [specified] background).
In those circumstances, the Tribunal gives this consideration significant weight in the applicant’s favour.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Although acknowledging that incorrect information had been provided in the application for a protection visa, the applicant has continued to maintain that she had no knowledge or any intention to provide the incorrect information. The Tribunal for the above reasons has not been persuaded by those explanations. Moreover, the applicant never attempted to correct the record prior to the submissions she provided in response to the NOICC.
The Tribunal gives this consideration weight in favour of cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
When lodging the application for Australian citizenship on 3 January 2017, the applicant provided the name of [the applicant] born in [year]. She provided documents in support of that identity. She did not disclose that she had been known by any other name or that she had a different date of birth.
The Tribunal gives this consideration weight in favour of cancellation.
The time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged the application for a protection visa in 2012.
The applicant has lived in Australia for approximately 12 years. Since lodging the application, the applicant has formed a partner relationship with an Australian citizen and the couple has three Australian citizen children.
In submissions to the Tribunal, it was contended that the applicant has formed strong ties with Australia. The Tribunal accepts that given that the applicant has been in Australia for 12 years, it is reasonable to suggest that she has formed friendships, community connections, and other ties with the Australian community.
The Tribunal gives this consideration weight in the applicant’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of breach of any laws in Australia.
The Tribunal gives this aspect neutral weight.
Any contribution made by the holder to the community
In submissions to the Tribunal, it was noted that the applicant has been associated with the community organisation known as [Community Organisation 1] (evidence in support provided) and that she is an active member who supports the community by way of participating in its activities.
The Tribunal acknowledges the applicant’s contribution and gives this aspect weight in her favour.
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
In this case, there is no consequential cancellation under s 140.
The Tribunal gives this aspect weight in favour of cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa
Extensive submissions were made to the Tribunal relating to the best interests of the applicant’s three minor children.
As a signatory to the CROC, Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the child.
The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. The applicant has one child, Sebastian Chou. In submissions and supporting documents, it was argued that that Australia would be in breach of its international obligations relating to Sebastian whose interest is a primary consideration. The question for the Tribunal is what decision is in the best interest of the child, not what the child might do if the parents were required to cease living in Australia.[1]
[1] Wan v MIMA (2001) 107 FCR 133, at [27]–[28].
The evidence before the Tribunal is that the three children live with both their parents as a family. The children are fluent in English and not in any other language.
In submissions to the Tribunal, it was noted that the applicant lives with her partner who is not a dual citizen of Iraq. The applicant would not be able to take the children to Iraq without his consent or a court order to that effect. The representative noted that the delegate’s suggestion that the applicant could take the children out of Australia means that there would be legal proceedings between the applicant and her partner as well as the children not being able to maintain a regular and meaningful relationship with their father. The representative contended that if the applicant were to depart Australia without her children, she would not be able to maintain a meaningful relationship with her children and that either option would disadvantage the children and would mean separating from one of the parents, causing hardship and distress.
The representative referred to the notion of family unity which must be taken into consideration in the case of cancellation. The representative contended that cancelling the applicant’s visa would mean dividing the family and adversely impacting its unity in every possible way. The representative argued that Australia would be in breach of its international obligations in case of the visa cancellation.
The Tribunal is satisfied that forced separation from either parent would be traumatic and could have lasting impacts on the children who are young and would have difficulties in understanding the separation. It is reasonable to suggest that separation would put the children under severe stress and would mean that both parents are not involved in caring for the children and providing the continued emotional support that the children would need. The Tribunal is satisfied that the children’s best interests will be met by supporting the secure attachments to both parents. A disruption to this relationship is serious and means removing the children from one of their biological parents which could have a lasting and detrimental impact on their sense of security and stability. Moreover, it is reasonable to suggest that separating the children from either parent would put a considerable degree of stress on the ‘single’ parent which would ultimately impact that parent’s ability to care for the children. It is therefore in the children’s best interests to remain in Australia with both of their parents.
On the evidence, the Tribunal is satisfied that Australia would be in breach of its international obligations under the CROC in case of the cancellation.
The Tribunal gives this aspect significant weight in favour of the applicant.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:
·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.
The Tribunal has considered whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.
The applicant has been found to be owed Australia’s protection obligations and she was granted a temporary visa on that basis. However, for the reasons outlined above, the Tribunal has decided that the protection visa was granted based wholly or partly on the incorrect information which the applicant provided.
Moreover, the Tribunal observes that the cancellation of a visa is legally distinct from removal.[2] Section 198 is now subject to the provisions of the new ss 197C(3) and 197D of the Act. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (Amending Act) amends the Act, is designed to ensure, through ss 197C and 198 that a non-citizen will not be removed from Australia if found to engage protection obligations.
[2] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].
On balance, the Tribunal is satisfied that Australia would not be in breach of any of its non-refoulement obligations in the case of the cancellation.
However, as discussed above, the Tribunal is satisfied that in case of cancellation there would be a breach of the family unit obligations. Separating the children from either parent would have significant and adverse impacts on the three minor children as well as on the family as a unit. As such, the Tribunal gives this aspect some weight in the applicant’s favour.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The applicant would also be subject to Public Interest Criterion 4013 which would prevent the applicant from being granted a further visa for three years.
Although the Tribunal is of the view that those consequences are intended legislative consequences to give power to detention and removal from Australia, in the applicant’s case and given that she has three minor children for whom she cares, detention and removal would bring about a degree of hardship to the applicant personally and to her family.
The Tribunal gives this weight in favour of the applicant.
Any other matters
The Tribunal is not aware of any other matters that require consideration.
The Tribunal has carefully considered the applicant’s circumstances and her breach of ss 101(a) and 101(b). The Tribunal considers the applicant’s conduct to be serious however the cancellation scheme is not intended to be punitive, and the Tribunal is required to weigh up all the relevant considerations. The applicant’s three minor children would suffer significant hardship if the applicant were forced to depart Australia due to the cancellation. The Tribunal is of the view that it would be unreasonable and harsh to expect that the parents separate so that the applicant could take the three minor children with her, however, the children are Australian citizens, and they are not fluent in any other language apart from English. It could be suggested that the children are young enough and could adapt in another country and learn another language. That might be correct, however the applicant’s partner is an Australian citizen by birth. He is not of Iraqi or Iranian ethnicity. Moreover, his work is in Australia and he fully supports the family financially. So, if he had to leave Australia with his wife and three children, the Tribunal is satisfied that the applicant’s partner would suffer financial hardship as well.
The Tribunal has considered the material before it individually and cumulatively. There are limited aspects in the favour of cancellation, essentially relating to the breach. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.
On balance, the Tribunal considers that the matters in favour of the applicant outweigh the other aspects in favour of cancellation.
The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Antoinette Younes
Senior 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.

[2022] AATA 2289

5 May 2022

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