2008901 (Refugee)

[2021] AATA 1009

2008901 (Refugee) [2021] AATA 1009 (30 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008901

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:David McCulloch

DATE:30 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 30 March 2021 at 10:48am

CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – identity – two applications for protection under different names and with different details and claims – refusal of first application affirmed by tribunal and courts – second application, made while court appeal for first application in progress, successful – both applications included entering Australia under assumed identity – application for citizenship – facial image comparison – documentation for each name – credibility – inconsistent claims and evidence – discretion to cancel visa – long residence, work and community activities – family’s Australian citizenship – best interests of children – wife’s and child’s health – cancellation of wife’s spouse visa subject to separate application for review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1AA), (3)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 May 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant (the applicant)’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to the applicant’s identity. 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. A separate visa, a Subclass 100 (Spouse) of the second named applicant (‘the applicant wife’) has been cancelled on the basis of the cancellation of the applicant’s visa. The applicant wife has made her own separate review to the Tribunal in relation to the cancellation of that visa (case number [Number]). That matter is being dealt separately as part of that review and is the subject of a separate decision of the Tribunal, by the same Member who was constituted this review. Evidence by the applicant wife as part of her cancellation and review, including evidence given in her Tribunal hearing, has been considered as part of this review. The Tribunal has no jurisdiction with respect to the applicant wife as part of this application as it is a duplicate application.

4. The applicant appeared before the Tribunal on 16 March 2021 at 9:30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

9. The following background and relevant information is contained in the decision of the delegate to cancel the visa dated 21 May 2020. This includes information that was contained in the Notice of Intention to Consider Cancellation (NOICC) dated 3 March 2020.

   PART B:         CONSIDERATION OF VISA CANCELLATION

   Particulars of the ground for cancellation:

   Section 116. Power to cancel

   116(1AA)         Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

   (2)      The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)      If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   Date notified of intention to consider cancellation:         3 March 2020

   Method of response specified in Notice:          In writing

   A response to the Notice was received on 21 March 2020.

   Particulars of the ground(s) for cancellation and information indicating the ground(s) for cancellation appear to exist:

   The visa holder lodged an application for a Protection (subclass 866) visa on 8 November 2007. In his application he claimed that he arrived in Australia [in] September 2007 as the holder of a fake [Country 1] passport in the name of [Alias 1], with [a Country 2] [man]. The visa holder claimed that he did not know what visa he held but that he was advised to state that he was transiting Australia on his way to [Country 3]. The visa holder further stated that the [Country 2] man returned his proper passport and took the fake one back, advising him that he was in Australia and he had left him at the airport. The visa holder stated that he could not remember the name of the airline on which he travelled or the flight number and that his boarding pass was taken by the [Country 2] man.

   In support of his visa application the visa holder provided a Statutory Declaration in which he claimed that his name is [the applicant] born on [Date 1] in [Town], Eastern Province of Sri Lanka and that he was an only child of both his parents. The visa holder stated that his father [was] a Tamil, and in 1991 he left the visa holder’s mother who was a Muslim and joined the LTTE (Liberation Tigers of Tamil Eelam)1 because there were problems between the LTTE and Muslims. The visa holder claimed that from 1997 onwards he was arrested by the Sri Lankan government on multiple occasions because of his father’s involvement with this group but he was later released and in 2007 obtained a Sri Lankan passport through a friend, following which he fled Sri Lanka. The visa holder stated that he obtained a visa for [Country 1] and travelled to that country [in] July 2007 and remained there until he arrived in [Country 2] [in] September 2007 travelling to Australia the same day.

   The visa holder also provided a Sri Lankan identification card bearing the name [the applicant] with date of birth [Date 1].

   The visa holder was assessed and found to be owed protection obligations and after meeting all relevant criteria he was granted a Protection (subclass 866) visa on 30 April 2008.

   Departmental records indicate that since the grant of the Protection visa the visa holder departed Australia [in] June 2009 for fifteen days and [in] June 2011 for eleven days. On each occasion he declared in his incoming passenger cards that he had spent most of his time in [Country 1].

   The visa holder sponsored his fiancé, who is now his wife [Ms B] for a combined Partner (subclass 309/100) visa which she lodged offshore on 25 August 2010.

   In his statement (Statutory declaration) in support of that application the visa holder declared that he was engaged to his fiancé on 6 June 2010. He stated that according to Sri Lankan culture the parents and family get involved and find a (life) partner for their children.

   The visa holder added that his parents found a life partner for him and arranged a marriage registration ceremony at his family’s home in [City 1], Sri Lanka. The visa holder added that both of the couple’s parents and families attended the ceremony which took place through Skype. The visa holder’s Skype name used to communicate with [Ms B] during the processing of her application was ‘[User name]’.

   The visa holder and [Ms B] subsequently travelled to and met in [Country 1] in June 2011 and registered their marriage with the [State/Province] Islamic Family Law Office on [Date] June 2011. The Provisional Partner (subclass 309) visa was granted on 16 September 2011. [Ms B] arrived in Australia [in] September 2011 and her permanent Partner (subclass 100) visa was granted [in] November 2012.

   The Department was notified on 29 October 2010 by RMS (Roads and Maritime Services) NSW that their systems have identified two images of the same person with different identities holding different driver’s licences, in the names [Alias 2] (dob: [Date 2]) and [the applicant] (dob: [Date 1]).

   The visa holder applied for Australian citizenship on 9 March 2012. Given the information provided by RMS, the Department undertook a comparative facial image analysis conducted by the Department's Identity Resolution Centre on 26 June 2012. The visa holder’s photograph from his application for Australian citizenship, together with his photograph from his Protection visa application and from the Partner visa application lodged by [Ms B] were compared to the facial image of [Alias 2] held by the Department. The result of the findings indicate that it is highly likely the persons depicted in all images represent the same person.

   The Department sent the visa holder a letter on 31 July 2012 regarding these findings. The visa holder wrote back to the Department on 29 August 2012 advising that he had not had a chance to reply to the letter because his wife had given birth to a baby. A further letter was received from the visa holder by the Department dated 3 September 2012 in which he raised concerns that he was not previously informed of any prior issues with his identity and mentioned concerns he allegedly had with a fraud alert related to his bank account. The visa holder attended an interview with the Department on 14 January 2013 and discussed the information in the previous correspondence raising questions about how another person could have taken on his identity.

   The Department wrote to the visa holder regarding all these findings including his responses in respect of his Australian Citizenship application, however the application was refused on 28 November 2013 because the Department was not satisfied as to his identity.

   Departmental records indicate [Alias 2] (dob:[Date 2]) arrived in Australia [in] February 2001 as the holder of Sri Lankan passport [number] with a Visitor (subclass 676) visa and has never since travelled. On his incoming passenger card he listed his name as [Alias 3] (dob: [Date 3]). The Department holds a copy of the passport of [Alias 3] which includes a one-month Visitor visa label as well as a copy of his Sri Lankan identification (ID) card however the facial images of the passport bio-data page and ID card are not clear.

   [Alias 2] lodged an application for a Temporary Protection (subclass 785) visa on 6 March 2001. In support of his application [Alias 2] also provided a Statutory Declaration and a copy of an extract of a birth certificate issued by the Additional District Registrar in [City 1], Sri Lanka [in] August 2001. His birth certificate translation states that he was born on [Date 2] in [City 1], Sri Lanka and his name is [Alias 2], his father [Mr C] (dob: [Date]) and mother [Ms D] (dob:[Date]) who were also born in [City 1].

   In his Statutory Declaration [Alias 2] claimed that he had a brother [Alias 3 name] (dob: [Date 3]) residing in [Country 4]. He also claimed that he had another brother and two sisters at the time who were all resident in Sri Lanka. [Alias 2] also claimed that his father was deceased at the time and had passed away in October 1998. The visa holder claimed in his Protection visa application that he was targeted by Sri Lankan police in 1999 because they believed that he was associated with the LTTE. He further claimed that he fled Sri Lanka and travelled to [Country 4] and remained there for fourteen months with his brother [Alias 3 name] and whilst there he lost his Sri Lankan passport. He added that since he believed that he could not seek asylum in [Country 4], his brother [Alias 3 name] suggested he travel to Australia using his [brother’s] passport.

   [Alias 2]’s application for a Temporary Protection visa was refused on 31 May 2001. He lodged an application for a review of the decision on 8 June 2001 however the Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 8 April 2003.

   He subsequently lodged an application for a judicial review of the refusal with the Federal Court [in] May 2003. The Federal Court affirmed the decision [in] June 2005 and he lodged a further review with the FCC (Federal Circuit Court) [in] May 2006. A decision was made [in] August 2006 to affirm the Department’s refusal decision. However he further lodged an application for review [in] November 2007. The decision was affirmed [in] March 2008. A further application for a judicial review was made [in] April 2008 and the Department’s decision was affirmed [in] June 2008. [Alias 2] held a succession of Bridging C, then Bridging E visas while he was awaiting the outcome of these reviews.

   At the same time, the visa holder was awaiting the outcome of his Protection visa application lodged on 8 November 2007. That application was decided on 30 April 2008 and he was granted a Protection visa in the identity of [the applicant]. Following this decision, [Alias 2] did not pursue any further reviews of his Protection visa application and he disengaged from the Department.

   I consider that based on all the above information, it appears the visa holder has been known as [the applicant] as well as the name of [Alias 2] ([Date 2]) and [Alias 3] ([Date 3]).

   Given this information, it appears the visa holder initially arrived in Australia [in] February 2001 using the name [Alias 3]. He applied for a Protection visa on 6 March 2001 in the name [Alias 2] and he notified the Department he had arrived under his brother’s identity because he had lost his Sri Lankan passport. His Protection visa application was finally determined on 30 June 2008.

   It also appears that given the visa holder was unsuccessful in obtaining residence in Australia as [Alias 2], he lodged a new application for a Protection visa as [the applicant] on 8 November 2007, claiming he had arrived under a false identity to conceal any movement records because he had not left Australia since his arrival in 2001. It further appears the visa holder obtained the passport and identification card in the name [the applicant], copies of which were provided by his migration agent in support of his application in order to present another identity for the purposes of lodging a new Protection visa with new claims. Included on the visas holder’ passport is an entry stamp to [Country 1] dated [July] 2007 however no exit date stamp is present. It is noted that the facial images in the copy of the ID card and passport are unclear.

   The original documents were not presented to the Department for a face-to-photo match, or for assessment to examine whether there have been any alterations, and I have concerns that these were not issued to the visa holder but to another individual. It also appears the visa holder’s claims for protection for his current visa were tailored as the visa holder having entered [Country 1], subsequently travelling to [Country 2] and then to Australia.

   The visa holder’s claims for his current Protection visa were based on his identity as [the applicant] born in [Town] which is in Eastern Province of Sri Lanka. In that application the visa holder stated that his father left him and his mother, and went to join the LTTE. He stated that his mother went to reside in [City 2] south eastern Sri Lanka.

   It is noted that the visa holder’s claims for his Temporary Protection visa in 2001 lodged under the identity [Alias 2] ([Date 2]) were based on him having been born and raised in [City 1] which is where he claimed in the Partner visa application is his family home and where he had his marriage celebration with both his own and his wife’s family, friends and neighbours present. [City 1] is also very close to [City 3] where the visa holder’s wife’s family lives.

   These factors suggest the visa holder has never lived in Eastern Province and that he is from the [City 1] region of Sri Lanka. Given both his and his wife’s families were involved in finding one another a ‘life partner’, this also suggests that they would have been known in their community for a significant period of time.

   It is noted the visa holder has provided a birth certificate in the name [Alias 2] however not in the name of [the applicant].

   Given all the above findings, I am not satisfied as to the visa holder’s true identity.

   A delegate may cancel a visa under 116 (1AA) if they are not satisfied as to the holder’s identity, such as in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is not known.

   Therefore, based on all the information before me, it appears that there is a ground under section 116(1AA) of the Migration Act 1958 to consider cancelling the visa holder’s Protection (subclass 866) visa as I, a delegate of the Minister, am not satisfied as to his identity.

   PART C:         GROUNDS FOR CANCELLATION

   Does the visa holder agree that there are grounds for cancellation?       No

   If no, reasons why grounds do not exist:

   The visa holder is represented by a registered migration agent. In support of his response the visa holder provided the following documentation:

   ·Statement dated 21 March 2020 prepared by the visa holder

   ·Statement dated 21 March 2020 prepared by the visa holder’s spouse [Ms B]

   In his statement, the visa holder admitted he provided incorrect information and bogus documents regarding his identity as [Alias 2] and has apologised for doing so.

   The visa holder claimed that his true identity is [the applicant] and the details he provided in his application for his Protection visa are his real circumstances. He claimed that he does not know the whereabouts of his father, however his mother passed away in 2014.

   The visa holder stated his reasons for providing incorrect information about his identity was because he believed that if he notified the Department of his earlier identity his application would be refused and he would be returned to Sri Lanka. He claimed that the information he provided on his earlier application in 2001 had been prepared by people smugglers and their agents and he was desperate to obtain protection in Australia as he claimed that he was forced to leave Sri Lanka because he had been persecuted in that country.

   The visa holder stated he is a person of good character and is neither a risk nor a danger to any person, nor has he ever harmed anyone or broken any laws in Australia. He added that he works full time and contributes to Australian society. He has claimed that he considers Australia his home, his children who were born here are Australian citizens, and his wife is a permanent resident who does volunteer work within the community whilst caring for their children.

   The visa holder stated that the people smugglers who arranged his trip to Australia advised him to trust them and follow their instructions and include family members as brothers and sisters in order to later bring them to Australia. He further stated that he was ‘stuck’ with the ‘lies’ given by the people smugglers and he had to pursue his claims by various legal venues.

   The visa holder claimed that a friend subsequently advised him that what he had done is not correct and was the reason his application was rejected and he should lodge a Protection visa under his correct name. He also claimed that his friend advised him not to notify the Department about his different identity as this could have a negative impact on the outcome of his application as he would have been found to have lied and could be sent back to Sri Lanka.

   In her statement [Ms B] stated that she wishes to express remorse on behalf of her husband. She further stated that she was unaware of her husband’s previous situation however she is now well aware and apologises. She confirmed the visa holder’s identity as [the applicant] and stated his family details in his Protection visa claims regarding his father’s departure and alleged association with the LTTE are correct, and acknowledges his circumstances and the non-compliance he previously committed. She stated that despite these circumstances, her husband is a trustworthy and good person.

   Tribunal hearing and assessment

1. Including based below on the responses below by the applicant to the adverse credibility issues put to him in the hearing, the Tribunal considers that the evidence overwhelmingly demonstrates that the applicant is not [the applicant]. The credibility concerns outlined below are severely damaging to the applicant’s overall credibility, including claims as to harm that has faced him in Sri Lanka. The credibility concerns follow.

2. Firstly, the applicant’s initial response to the adverse information put to him was not that his genuine identity was that of [the applicant] and that he has used a previous identity.  Instead, as indicated in the delegate’s decision, when the adverse information was presented to the applicant for comment on 31 July 2012, he was not forthcoming and initially claimed that he had not had a chance to read the correspondence but subsequently stated that he had concerns his identity had been used by a another person.

3. It is telling to the Tribunal that the applicant did not initially admit that his true identity is [the applicant] and that he previously used a false identity. Instead the applicant claimed that he had concerns that his identity was used by another person.

4. At the Tribunal hearing in response to these issues adverse to the applicant, the applicant responded that he was in stress and panic in knowing how to respond and did not admit his previous false identity.

5. The failure by the applicant to initially indicate to the Department when the adverse information was put to him that he had previously used and claimed a false identity for the reasons now claimed is somewhat undermining of the  applicant’s credibility in terms of what he now claims, particularly in terms of his now claimed identity. This is not a major credibility concern, because the Tribunal accepts the potential for initial uncertainty in knowing how to respond. The matter is considered cumulatively together with more substantive credibility concerns.

6. Secondly, the protection visa application by [Alias 2] makes no mention of people smugglers being involved in his travel to Australia, contrary to claims now that people smugglers were involved and had advised him to provide false information in his 2001 protection visa application.

7. As discussed with the applicant in the hearing, Departmental records indicate that [Alias 2] arrived in Australia on a flight from [Country 4] using his claimed brother’s passport. No reference in the application was made to people smugglers.

8. In response to this issue at the Tribunal hearing, the applicant indicated that he did not know the laws in Australia and the smugglers had indicated that their involvement should not be revealed.

9. The failure by the applicant to mention the involvement of people smugglers in his 2001 protection application is given some limited adverse weight as to the applicant’s credibility as to the circumstances which caused him to adopt the claimed initial fraudulent identity. This too is not a significant credibility concern but is considered cumulatively with other matters.

10. Thirdly, the claims by the applicant as part of the protection visa application in 2007 as to his circumstances in Sri Lanka do not make sense as the applicant, in his claim forged identity, has been in Australia since 2001.

11. It was indicated to the applicant in the hearing that in his 2007 application for protection he claims that he was arrested, detained, beaten and tortured in 2000. He refers to thereafter remaining in Sri Lanka and following the peace agreement in early 2002, going to find his father but that he could not locate him. The applicant refers to events in 2004, the tsunami and when he and his mother moved to [City 2].  The applicant indicates that in 2006 he was again harassed by a political group and in 2007 had the opportunity to escape to Colombo.

12. It was indicated to the applicant in the hearing that the substance of these events (leading to the grant of his protection visa) cannot be accurate because the applicant was in fact in Australia from 2001.

13. In response the applicant claims that he had suffered harm in Sri Lanka before 2000 but admitted that the claims as to what had occurred in Sri Lanka from 2002 were not true. The applicant indicated that he felt forced to make untruthful claims to ensure being able to remain in Australia peacefully. The applicant indicates that he is sorry for these untruths.

14. This credibility concern is significantly undermining of the applicant’s credibility and the truth of the substance of his claims which resulted in him successfully being granted the protection visa.

15. Fourthly, the applicant’s passport in his current claimed identity has a 2007 [Country 1] entry stamp. As discussed with the applicant in the hearing this does not make sense because he was in fact in Australia at this time.

16. In response to this issue the applicant indicated that his mother in Sri Lanka, who had the passport, gave it to someone else who fraudulently used it to enter [Country 1] in 2007 and that this is why it has the entry stamp. The Tribunal considers that this is a fanciful and extremely unlikely explanation. Despite being a matter of relative detail, the existence of the stamp fundamentally undermines claims that the applicant is genuinely [the applicant].

17. Fifthly, the fact that the applicant’s wife is from [City 3], near the location south of Colombo [where] [Alias 2] is from (16 km away by car according to Google Maps), as compared to a quite distant location in Sri Lanka where it is claimed that [the applicant] is from is more consistent with the applicant actually being of that original identity.

18. In response to this issue in the hearing the applicant indicated that this is simply a coincidence.

19. While the Tribunal accepts that coincidences can occur is not satisfied that this is a mere coincidence, including in the context of many other credibility concerns identified. The Tribunal considers that the provenance of both the applicant in his first claimed identity and the applicant wife is more consistent with the applicant being of the first claimed identity.

20. This credibility concern is strongly reinforced by the fact that in the statement provided by the applicant in support of the application for the partner visa for the applicant wife the applicant stated that the marriage occurred (with the applicant via internet) in the hometown of his family in [City 1].

21. Sixthly, the applicant has a Skype name which has been used including to communicate with his now wife which is more consistent with the applicant in fact being [Alias 2] rather than [the applicant].  The Skype name is [User name].

22. In response to this issue in the hearing the applicant indicated that the Skype name was created to match his false identity.  This is a not implausible explanation and therefore this matter is not given adverse weight.

23. Seventhly, the failure by the applicant to be successful in the application for the protection visa under his original claimed identity, and then to lodge a protection visa claim under a new claimed identity is more consistent with the second identity and those claims being concocted. If the applicant under his claimed true identity had protection claims that were ultimately successful, rather than the first unsuccessful application, it is more consistent with the true identity and the true claims being initially made, rather than using clearly inferior claims and a forged identity. 

24. In response to this issue in the hearing, the applicant maintained that the true claims are those that were presented in the second protection visa application using the new truthful identity.

25. As put to the applicant in the hearing, this is clearly not correct because the applicant admitted in the hearing that he had fabricated in his second protection visa application claims as to what had occurred in Sri Lanka from 2002 because he was in Australia during that period. In response, the applicant claimed that what he had indicated had happened in Sri Lanka between 1993 and 1999 was true and that he had admitted to lies from 2002 and was sorry for that.

26. The Tribunal maintains that the history of the matter in terms of the first unsuccessful protection visa application and then a new application under a new identity which was successful, is more consistent with the second successful claim and identity being fabricated.

27. Eighthly, the above is reinforced by the fact that the applicant did not make truthful claims under a truthful identity, soon after the delegate’s refusal of the visa but waited until initial Department and Tribunal decisions to refuse the protection visa had been appealed through multiple courts and a request for Ministerial intervention being made.

28. In response to this issue in the hearing the applicant indicated that he sought advice from friends as to what he should do when his first protection visa claim was initially rejected, but they advised him not to proceed with his genuine claims under his truthful identity because if he did so he would be deported and would therefore face harm in Sri Lanka.

29. The Tribunal considers that the delay in making the claimed truthful protection visa application in a new identity, after only getting to the end of pursuing review, appeal and intervention options in relation to the initial application is more consistent in the new claims being concocted rather than genuine. If they were genuine, particularly given that they were ultimately successful, the Tribunal considers that the claims would have been made at an earlier point in time.

30. Oral submissions that were made at hearing by the applicant’s migration agent have been considered in the above stated conclusions being drawn by the Tribunal. The migration agent repeated various matters having been claimed by the applicant and in doing so maintained that the applicant had originally concocted his original identity and claims.

31. Cumulatively considered, the various credibility concerns are extremely damaging to the genuineness of the applicant’s now claimed identity and the credibility of his 2007 claims for the protection visa and his credibility generally. The concerns considered together make it difficult to accept any key substantive claims made by the applicant. Some credibility concerns are not major, but others are particularly significant and adverse, particularly credibility concerns three and four. Cumulatively considered, the credibility concerns are overwhelmingly adverse to the applicant in terms of his current identity being his genuine identity and his credibility generally.

32. The Tribunal considers the significant weight of adverse matters identifed clearly suggest that the applicant’s identity as [the applicant] was fraudulently acquired by the applicant, together with false claims for the protection visa having been made at that point in time.

33. The Tribunal accepts the potential for [the applicant] having been a genuine identity, including noting birth documents for this individual having been provided to the Tribunal the day before the Tribunal hearing. ­However, for the cumulative reasons indicated, the Tribunal is not satisfied that this is the applicant’s true identity.

34. The Tribunal is therefore not satisfied as to the applicant’s identity pursuant to s.116(1AA) of the Act.

35. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion                  

36. There are no matters specified in the Act or the Migration Regulations 1994 that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

37. The applicant provided a written response to the NOICC which included the following relevant information in terms of discretionary factors as to whether the visa should be cancelled. The applicant indicates that Australia is his home now. His family lives here and they are Australian residents and citizens. Both the applicant’s children were born in Australia and are Australian citizens. The applicant wife does lots of volunteering work within the community while taking care of the children. She is a person of excellent character.

38. The applicant indicates that while in Sydney he has slowly understood the Australian way of life and admired the culture and spirit. He has worked very hard. The environment was peaceful compared to Sri Lanka. The applicant refers to working hard and paying tax. He loves his family and does not want his mistakes to affect his family. The applicant has embraced Australian values and wishes to get a second chance. The applicant indicates that he is not a danger in Australia. The applicant refers to not having the chance for a good childhood and for the opportunities that are now presented to his children. The applicant indicates that he will undertake no wrongdoing in the future.

39. In the applicant wife’s statement she indicates that her partner is a good person and she is happy living with him.  This is in spite of the wrong things he has done in the past. He is a great husband and was supportive to the applicant wife throughout her pregnancies. He did house work and cooked. She could not have dreamt of a better husband. He is hard-working. The applicant wife asks for forgiveness in relation to adverse conduct by the applicant. The applicant wife refers to her need for her husband in her life. It would be devastating for the family if the visa is cancelled. They are all dependent on the applicant.

40. In terms of the applicant’s character, on the day before the Tribunal hearing the following references were provided:

    ·A letter of support of [an official] of [Organisation], not dated. The writer states that the applicant is actively involved in [Organisation] and actively participates in events and gatherings along with his family. The writer has worked alongside the applicant and witnessed his ‘commitment to the Australian community’, and finds the applicant to be pleasant, respectful and honest. The writer believes that the applicant is not a threat to the community, carries great pride in his role within the community, abides by Australian law, and provides full support and care for his two children who are Australian citizens, providing them with education. The writer believes the applicant has great integrity and is dedicated to his community and work. The writer asks for consideration of the applicant’s fear of returning to his country, the factors of community participation and good character. The letter concludes that the applicant is a compassionate and considerate gentleman, is community focused, thinks highly of the Australian way of life and intends only positive contribution.

    ·A letter from [a doctor], dated 11 March 2021, to certify that the applicant is a regular patient, attending the medical centre since October 2012, that the writer knows the family and the applicant is a pleasant person with good manners.

    ·A statutory declaration of [a] sessional academic staff at [a] University, dated 14 March 2021 stating that the writer has known the applicant for eight years. The writer has been associated with the applicant through a family friend for religious and social activities, and has known him to be a loyal, honest, considerate and very capable person to organise religious and cultural events with strong community ties and exemplary social skills.

    ·A statutory declaration of [a named person], dated 14 March 2021, stating that the writer has known the applicant for a period of ten years. The declaration states that applicant disclosed to the writer that the applicant had not disclosed the correct information to immigration as part of his visa application. The applicant explained to the writer that he felt forced to do so, as he believed that was the only choice, and has since accepted that lying was a mistake. The declaration concludes that the applicant is a good friend, always makes time to listen, provides all the help possible to ensure his friends are okay, is a helpful person in the community extending support, displays disciplined mannerisms and high moral values.

    ·A statutory declaration of [a named person] dated 14 March 2021, stating that the writer has known the applicant for a period of 15 years. The writer was introduced to the applicant by a friend and they have grown to be good friends. The writer is aware that the applicant provided conflicting details to the Immigration Department, the applicant explained to the writer that his situation had forced him to do so, and the applicant expressed regret, remorse, and that it was a mistake. The declaration states that the applicant is a kind person, always willing to help anyone, especially those new to the county, lends his support to anyone that he knows is in need without the slightest hesitation. The declaration concludes with a request that the Australian Government consider his way of life since being in Australia and that the applicant’s family and young children mean the world to him.

41. Discretionary factors were discussed in the hearing.

42. The Tribunal asked the applicant as to his purpose for travel to and stay in Australia. The applicant indicated that he fled Sri Lanka for his safety and to seek protection. The applicant referred to being detained by the Sri Lankan army and tortured in 1997 because the army were looking for his father who was a Tamil. The applicant indicated there was another detention in 1998 when he was tortured by the army. The applicant maintained these as the only two instances of harm.

43. The applicant strenuously and repeatedly maintained in the hearing that he and his family will be killed or otherwise harmed on return to Sri Lanka as a result of the authorities having a past adverse interest in the applicant.

44. This is relevant to discretionary factors as to whether the applicant is owed non-refoulement obligations by Australia, that is, protection obligations.

45. The Tribunal is not satisfied of this given the cumulative impact of the various credibility concerns identified in consideration as to whether the ground for cancellation is made out. The fact of the applicant not meeting protection criteria in his first protection visa application, in what the Tribunal considers is the applicant’s truthful identity, is significantly undermining of claims that the applicant faces a real chance of serious or significant harm in Sri Lanka as claimed.

1. In any event, the Tribunal is not satisfied that any credibility can be given to any of the applicant’s substantive claims over time given claimed prior false identities and claims, and the maintenance by the applicant that [the applicant] is his true identity, which the Tribunal clearly thinks is an untruthful claim.

2. The Tribunal is not satisfied that the applicant is owed non-refoulement obligations by Australia. The Tribunal is not satisfied that the purpose of the applicant’s travel to and stay in Australia was to escape a real chance of serious or significant harm in Sri Lanka.

3. The Tribunal is satisfied that the applicant has not breached visa conditions.

4. In terms of whether there are compelling or compassionate circumstances beyond the applicant’s control in relation to the ground for cancellation being made out, the applicant has not conceded in any way that the ground for cancellation is made out because he fervently maintains that he is genuinely [the applicant], and that it was his previous identity that was concocted. The applicant is therefore not claiming compelling or compassionate circumstances, although he has expressed contrition in relation to his initial claimed false identity and protection claims. As indicated, the Tribunal does not accept the applicant’s current identity is his true identity and that his original identity was forged.

5. The Tribunal accepts hardship to the applicant and his wife and two children if the visa remains cancelled. This entails the visa of the applicant wife also being cancelled which is a relevant discretionary factor. The applicant indicated in the hearing that his two Australian citizen children are [ages deleted].

6. In considering hardship, the Tribunal has taken into account evidence of the applicant wife in her Tribunal hearing as to whether her Subclass 100 (Spouse visa) should be cancelled.

7. The applicant and the family unit have been together in Australia for quite a number of years.

8. The Tribunal accepts disruption to the lives of the applicant and his family members in terms of them uprooting the lives they have made in Australia and having to return to Sri Lanka and not being able to progress with their lives in a developed country as opposed to a developing country.

9. International obligations on Australia, particularly the need for the best interests of the Australian citizen children to be a primary consideration, need to be considered. As indicated, the applicant’s children are [age deleted]. The applicant’s migration agent agreed in the hearing that the children will be able to obtain Sri Lankan citizenship based on the citizenship of their parents. They will be dual Sri Lankan Australian citizens.

10. The applicant indicated in the hearing that his children principally speak English but do speak some Tamil at home. The Tribunal noted to the applicant that it would seem likely that the family would return as a unit to Sri Lanka and therefore the children will have the care and protection of their parents. In response, the applicant indicated that he and the family will be killed or harmed by Sri Lankan authorities as a result of their past targeting of him. As indicated, the Tribunal does not accept this.

11. The applicant wife gave evidence in her hearing that both her parents still live in the town where she is from and that she has four siblings, two sisters of whom are married. As is apparent and the Tribunal considers is the case from the applicant’s protection visa claim in his original identity, he has family members, including siblings in [City 1] 14km from where the applicant wife’s family is from. This all tends to suggest that there would be extended family support for the applicant and his family on return to Sri Lanka.

12. In submissions by the migration agent at the conclusion of the hearing of the Tribunal relating to the applicant wife, it was submitted that the agent had just been told that one of the children suffers from asthma and that this would be exacerbated on return to Sri Lanka due to higher pollution levels. A request was made that time be granted to be able to provide a medical report in relation to this condition. This request was granted.

13. In response, medical information was provided in relation to [Child 1].  A medical certificate is provided from his GP dated 18 March 2021 indicating that he is known to suffer from episodic asthma and is on medication. A report of a hospital admission between 21 March 2016 and 23 March 2016 is provided in relation to [Child 1] who at the time was [Age]. The admission was for a viral induced wheeze. This is stated to have followed one day of a cough and coryza.  The discharge report indicates successful weaning of oxygen and Ventolin. The follow-up is to continue on Ventolin and to progress with an asthma action plan with a follow-up with the GP. If further viral induced wheezing occurs it is recommended to consider commencing on Flixotide.

14. Also provided is a document from [a Hospital] indicating a presentation by [Child 1] at the emergency Department on 22 October 2012 when [Child 1] was [an infant].  He presented with fever, coughing and sneezing for the previous three days. He was commenced on medication and the parents were reluctant to have any more investigations.

15. The Tribunal accepts that [Child 1], suffers from episodic asthma, with a three-day hospitalisation for a viral induced wheeze five years ago. There is no evidence of more recent hospitalisation. [Child 1]’s GP does not indicate particular severity of the condition and indicates that he is on medication.

16. The Tribunal accepts that medical care may be superior in Australia to Sri Lanka.  However, the Tribunal is not satisfied that [Child 1] would not receive adequate medical care in Sri Lanka for the relatively common medical condition of asthma. There is no indication by [Child 1]’s GP that his condition is severe or acute, nor does he indicate that [Child 1]’s condition would be exacerbated in returning to Sri Lanka.

17. Medical documents following the hearing were also provided in relation to the applicant wife. A referral is provided from [a] Medical Centre dated 21 March 2021 with an overview of the medical history of the applicant wife. This includes the applicant wife having stress and anxiety, looking stressed, crying spells, not sleeping well, and loss of appetite.  There is an indication of a reference to counselling for six sessions. The referral is accompanied by a Better Access Mental Health Care Plan dated 21 March 2021 indicating depression and anxiety suffered by the applicant wife.

18. The Tribunal accepts based on the medical information that mental health conditions are suffered by the applicant wife including depression and anxiety. The Tribunal has some concerns as to this being a key problem for the applicant wife in terms of the visa being cancelled and having to return to Sri Lanka given that she had not previously raised this as a relevant discretionary factor either before the delegate or in her hearing. The Tribunal has some concerns in relation to the fact that the applicant wife’s referral under the Better Access program was made after the Tribunal hearing. The Tribunal would be more convinced as to the degree of the negative impact of the applicant wife’s mental health conditions if she had been seeking counselling previously.

19. Nevertheless, the Tribunal accepts some degree of mental health issues in relation to the applicant wife and also accepts that treatment for these conditions would be superior in Australia as compared to Sri Lanka.  The Tribunal can accept that uncertainty as to the applicant wife’s future and that of her family in Australia could well cause or exacerbate mental health conditions.

20. The fact of medical conditions suffered by the applicant wife and by [Child 1] is given some weight in the applicant’s favour in terms of discretionary factors.

21. The applicant’s migration agent made oral submissions including in relation to discretionary factors, particularly the hardship that would be caused by the cancellation. He submitted that the applicant wife and children will not be safe in Sri Lanka. As dual Australian citizens this will not entitle the children to protection in Sri Lanka. He submitted that the balancing of discretionary factors for the Tribunal is a very heavy task. The applicant urged consideration in relation to the applicant wife and children in terms of the Tribunal exercising its discretion in the applicant’s favour.

22. The Tribunal has taken note of the views of these individuals as to the positive character of the applicant.

23. The applicant has variously claimed that he has been an honest and good citizen in Australia. In the circumstances of the applicant’s claims and use of multiple identities over time, the Tribunal is not satisfied of this. The applicant has fervently maintained that his current identity is his genuine identity. As indicated, the Tribunal is not satisfied of this which is significantly undermining that the applicant has behaved in a way that respects Australia’s laws. The Tribunal considers that the applicant has, in a sophisticated way, fraudulently assumed a new identity and claims after his original claims in his first identity were unsuccessful. In doing so he has cleverly indicated untrue circumstances of an arrival in Australia in 2007 when evidence from government systems would normally be able to establish the veracity of this. All of this is undermining of the integrity of the applicant and not insignificantly adverse discretionary factor, including considering the true circumstances in which the ground for cancellation is made out.

24. The Tribunal accepts that if the visa remains cancelled that the applicant could be an unlawful non-citizen. However, the Tribunal considers that there would remain eligibility to hold a bridging visa while arrangements are made to leave the country.

25. These, in the Tribunal’s view, are relevant discretionary factors, which the Tribunal balances.

26. The key issues in favour of exercising the discretion in the applicant’s favour is the adverse impact of cancellation decisions for both the applicant and the applicant wife and the children in terms of the family unit having to return to Sri Lanka after many years of making a life for themselves in Australia. This will create disruption and adjustment for the family unit, particularly the two children. Having said that, the children are relatively young and with their youth will have capacity to adjust to the new environment in Sri Lanka. The Tribunal also considers that the applicant and his family will have the support of their respective parents and siblings. The Tribunal considers the applicant and his wife’s extended families are from the same general area in Sri Lanka, and will be available to help in the integration of the applicant and his wife and children back to Sri Lanka. The Tribunal does not believe claims that the applicant and his family live a significant distance from the town of the applicant wife and her extended family in Sri Lanka. In addition the children will retain their Australian citizenship which provides not insignificant opportunities for them as they progress in their lives.

27. The Tribunal also accepts that medical care for the applicant wife and [Child 1] in relation to their health conditions may be superior in Australia to Sri Lanka. In relation to [Child 1], the Tribunal considers that there would be medical treatment available in Sri Lanka in relation to the relatively common condition of asthma, and, as indicated, there is no suggestion that the condition is severe or acute.

28. The Tribunal accepts more limited mental health treatment is available in Sri Lanka compared to Australia for the applicant wife. As indicated, the Tribunal has concerns however as to the severity of these conditions given that it was not a discretionary factor mentioned until documents were provided after the hearing and the applicant wife only sought referral to counselling after the hearing.

29. Balanced against the hardship to the applicant and the family unit if the visa remains cancelled in terms of reintegrating into Sri Lanka is the fact that the Tribunal does not consider that there are compelling circumstances beyond the applicant’s control for the ground for cancellation being made out. The Tribunal considers that the basis on which the ground for cancellation has been made out demonstrates concerted, quite sophisticated and deliberate fraudulent activity and claims by the applicant.

30. The Tribunal considers that given there are particularly strong grounds in terms of maintenance integrity of the Australian immigration system that the applicant’s sophisticated and significantly fraudulent conduct should not be rewarded with the ability of the applicant or his wife and children obtaining a permanent right to live in Australia. This is acknowledging that the children in this matter are blameless. While as set out in the Tribunal’s decision relating to the review of the cancellation of the visa of the applicant wife, the Tribunal has found that the applicant wife was not candid and aspects of her evidence regarding her knowledge of the applicant’s circumstances and fraud, the Tribunal accepts that the applicant wife was left with little option but to seek to maintain to the Tribunal the applicant’s untruthful claims. The Tribunal accepts the not insignificant adjustment to her life and having to return to Sri Lanka due mostly to circumstances beyond her control. Nevertheless, both the applicant wife and the children have obtained their permanent visas to Australia as a result of significant fraudulent conduct.

31. While the Tribunal accepts hardship to the applicant and his family unit if the visa remains cancelled, weighing all discretionary factors, the Tribunal considers that the balance must err on the side of exercising the discretion to cancel the visa, including considering the cumulative impact of the credibility issues considered when determining whether the ground for cancellation is made out. The Tribunal is clear in exercising its discretion in this way in relation to the applicant.  As further articulated in the decision relating to the applicant wife, the Tribunal as also determined that its discretion be exercised in favour of cancelling her visa, particularly considering the need to uphold the integrity of the Australian migration system.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

33. On the Department file relating to the applicant is a non-disclosure certificate under s.438 of the Act.  This relates to a Facial Image Comparison case note relating to the applicant and the person under his previously claimed identity. The document has been subject to the certification of non-disclosure on the basis that it contains information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

34. The document in question is irrelevant to the Tribunal’s conclusions in this matter because the applicant has admitted he is the person in the original claimed identity. The document is therefore not material which makes irrelevant to this decision that it has been subject to a non-disclosure certificate.

    DECISION

35. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 866 (Protection) visa.

36. The Tribunal has no jurisdiction with respect to the second named applicant.

    David McCulloch
    Member