2009009 (Refugee)

[2021] AATA 2925

2009009 (Refugee) [2021] AATA 2925 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009009

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:9 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2021 at 9:50am

CATCHWORDS
REFUGEE – protection visa – cancellation – Iran – incorrect information – stateless Faili Kurd claims – claims relied on brother’s presence in Iran – brother in Australia at time of protection claims – mental health – length of time in Australia – applicant not taken responsibility for actions – protection grant based on false information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101-107, 109(1)
Migration Regulations 1994, Schedule 2

CASES

Ibrahim v MHA [2019] FCAFC 89

MIAC v Khadgi (2010) 190 FCR 248

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Iran, born [date]. He was granted the Class XA Protection visa on 7 April 2011. On 5 March 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant may not have complied with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 29 May 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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, 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.

5. 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.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. He arrived in Australia as an irregular maritime arrival [in] September 2010 and in November 2010 made a request for a refugee status assessment. He provided a statement in support of that request and in that statement the applicant made the following claims:

   a.In June 2009 he was arrested by the Basij and imprisoned because of his participation in demonstrations against the government

   b.The applicant was required to provide a guarantor for his bail and his brother [Mr A] arranged a friend in the government to be his guarantor. The applicant was released after 8 days.

   c.Another friend was sentenced to eight years in prison and upon hearing of this, the applicant made arrangements to depart Iran on false documents.

   d.After arriving in Australia, the applicant heard from his brother that he was summonsed to appear before the Islamic Revolutionary Court and the guarantor was later arrested by the authorities.

   e.The applicant claimed he would be killed if he returns to Iran and he fears persecution because of his political views and his Kurdish ethnicity.

10. On 5 April 2011 the applicant made an application for the protection visa. He completed the application form 866B in which he gave the following answers

    a.At Question 11 the applicant stated that his brother [Mr A] was living in Tehran.

    b.At Questions 42-46, which sought information about his claims to be a refugee, the applicant referred to his request for the refugee status assessment.

    c.At Question 49 the applicant stated that he left illegally using a false passport as he suspected his name was on the blacklist.

11. The applicant was granted the protection visa on 7 April 2011. In June 2015 the applicant made the application for the Australian citizenship and in November 2016 he attended an interview. At that interview the applicant stated that is brother [Mr A] was residing in Tehran but had moved to another region. The applicant denied that his brother was in Australia prior to his own arrival in Australia. In December 2016 the applicant attended another interview in which he confirmed that his brother was in Australia. The primary decision record refers to Departmental records, which show that [Mr A] departed Iran in September 2009 and arrived in Australia [in] October 2009.

12. During his interview in November 2016 the delegate discussed with the applicant his claim that he had used a false passport to depart Iran, stating that the passport was obtained by a people smuggler using his own photo but a different name. The applicant did not deny or correct that claim. The delegate notes the stringent passport checks which are conducted at the airport, noting that these include a comparison of a traveller’s passport with the details on the computer screen which shows a photo and personal details of the traveller. The delegate concluded that it would be very unlikely that the applicant would have been able to depart the airport using a false passport.

13. In his response to the NOICC the applicant concedes that he provided incorrect information about his brother’s whereabouts, stating his brother was in Australia and not in Iran. The applicant claims he acted on advice of his siblings as they did not include him in their own visa application. The applicant states that otherwise his claims had been truthful. However, the Tribunal does not accept that this is so. The Tribunal finds, as did the delegate, that the brother’s involvement in the applicant’s affairs had been of significance to the applicant’s own claims. The applicant claimed that it was his brother who arranged the guarantor after his imprisonment and that it was his brother who informed the applicant after his arrival in Australia that summons had been issued with respect to the applicant. The Tribunal is mindful that the applicant arrived in Australia in September 2010 and by that time, his brother was already in Australia. While the applicant claims that he was in touch with his brother who was in touch with family and friends in Iran, the Tribunal considers it unlikely that the applicant could have learned from his brother about the summons and the applicant’s evidence to the Tribunal is that it was his family and not his brother who received the summons. The applicant’s claim was different. The Tribunal is of the view that at least a part of the applicant’s claims had been falsified and, given the significance of the brother’s involvement to the applicant’s claims overall, the Tribunal is concerned that the other claims may also have been incorrect.

14. In oral evidence the applicant stated that at the time that he was detained and required a guarantor, his brother was in Iran and it was another two to three months before he left for Australia. His brother arranged for a friend of his to act as a guarantor. The applicant states that after he came to Australia, he was in detention but he was in touch with his brother who was in contact with his family and friends in Iran. The applicant states that at the time his brother did not want him to mention the brother’s presence in Australia. The applicant claimed that he was in touch with the brother in Iran because the brother did not want his presence in Australia mentioned. The applicant states that his Australian lawyer was aware of the correct information but told him to lie about the brother’s whereabouts so as not to affect the brother’s case and his own case.

15. With respect to his departure, the applicant claims that there is economic corruption and the officials were bribed to allow him to depart Australia. The Tribunal discussed with the applicant country information suggesting that there are stringent controls at the points of departure which would have made it difficult for him to leave the country if he was of adverse interest and the applicant stated that he is guessing. The applicant states that he was able to obtain a false passport by paying $10,000 and anything could be done in Iran with money. The Tribunal makes no findings on the veracity of the applicant’s evidence concerning his departure from Iran for the purpose of establishing the breach.

16. In his submission to the Tribunal of 6 June 2021 the applicant concedes that  he had provided incorrect answer on the application form in relation to his family composition and that there are grounds for cancelling his visa.

17. The Tribunal finds that when completing the protection visa application form, the applicant stated that his brother lived in Iran. That information was not true because by that time his brother lived in Australia. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that there was non-compliance with s. 101 in a way described in the Notice.

    Should the visa be cancelled?

18. 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).

19. 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 r.2.41 of the Regulations. They are:

    The correct information

20. The correct information is that the applicant’s brother was in Australia by the time the applicant made the application for the protection visa and not in Iran as claimed. Further, the applicant informed the Tribunal that it was his family and not his brother who received the summons and that information in his protection visa application was also incorrect.

    The content of the genuine document (if any)

21. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

22. The applicant’s claims in his protection visa application, which are summarised above, indicated that he was arrested, that his brother arranged for a guarantor and after his arrival in Australia, the applicant learned from his brother that he was summonsed. As the brother was in Australia, the Tribunal considers it implausible that the applicant’s version of events was truthful and the applicant told the Tribunal that it was his family and not his brother who received the summons. Thus, even if the applicant’s claims about the summons were correct, the applicant heard from his brother in Australia and not from his brother in Iran about the summons. The circumstances about the summons and the applicant’s knowledge of the summons formed part of his claims and of the delegate’s decision. The Tribunal is also of the view that if the decision-maker was aware that the brother was in Australia, this would have been relevant to the assessment of the applicant’s credibility and the truthfulness of his overall claims.

23. The applicant states in his response to the NOICC and evidence to the Tribunal that the decision to grant the visa was not wholly based on incorrect information. In his submission to the Tribunal of 6 June 2021 the applicant also states that the information other than about his family composition was correct (he concedes he had several siblings in Australia who were not mentioned in his protection visa application). The representative submits that during the various interviews prior to the visa grant, the applicant gave detailed evidence about his political activities and his imprisonment and the delegate confirmed the veracity of his claims on the basis of the applicant’s consistent account of this incident.

24. The Tribunal accepts that the decision to grant the visa was not wholly based on incorrect information. However, the applicant’s claims specifically mentioned the brother’s involvement and, in particular, in relation to the summons. The incorrect information was therefore relevant to the assessment of the actual claims on which the assessment was based and also relevant to the assessment of the applicant’s credibility, which would have also been important in the assessment of whether he was owed protection obligations. The Tribunal finds that the decision to grant the visa was based, in part but to a significant extent, on incorrect information. This weighs heavily in favour of the cancellation.

    The circumstances in which the non-compliance occurred

25. The applicant explains in his response to the NOICC that his siblings asked him not to provide their details in his application as they did not include his details in their own applications for the visas. In oral evidence the applicant states that he told his lawyer the correct information and the lawyer also told him not to mention the brother in Australia. He states that he only gave incorrect information because he was under pressure from his family and there was no other reason for him to lie. The applicant informed the Tribunal that his siblings sought visas on the basis of being stateless (providing false claims), which was not consistent with his own claims, so his siblings asked him not to mention their presence in Australia. The applicant claims that his family believed the disclosure of the information would amount to family betrayal and he acted under duress from his siblings and his mother.

26. The Tribunal finds the applicant’s evidence problematic. The issue here is not the applicant’s failure to mention his brother [Mr A] in his visa application but rather the provision of deliberately false information about the brother’s whereabouts. The applicant stated on the application form that the brother was in Iran when the brother was in Australia and the brother’s involvement in his own case was significant to the applicant‘s claims. The applicant explained to the Tribunal that it was his family in Iran who received the summons and not his brother in Australia. Thus, it appears that the applicant had deliberately falsified the information about his brother’s whereabouts to support his claims and he also failed to mention other siblings in Australia.

27. The applicant claims, essentially, that the provision of incorrect answers was not intentional because he was under pressure from his family. The applicant also states that his lawyer told him to lie. The applicant refers to the pressure and his poor mental state that resulted in the provision of incorrect answers and states that he acted under duress and pressure from the family. The Tribunal is mindful, however, the applicant was responsible for the content of his application and even if he was pressured by others and felt compelled to provide incorrect information, the Tribunal considers that the veracity of his claims always remained the applicant’s own responsibility. The Tribunal also notes that in this case, the applicant chose to provide incorrect information about the presence of his siblings in Australia because he knew they provided deliberately false information (about being stateless Faili Kurds) in their own visa applications and the applicant did not wish to jeopardise their visas.

28. The Tribunal finds that the applicant had deliberately falsified evidence that was a significant part of his claims and contributed to the decision to grant him the visa. The Tribunal finds that this weighs heavily in favour of the cancellation.

    The present circumstances of the visa holder

29. In his response to the NOICC the applicant refers to his medical conditions and he provided a medical report. In his evidence to the Tribunal the application states that he suffers from severe asthma and depression. Following the hearing the applicant provided to the Tribunal a psychological report and the Tribunal accepts the professional opinion contained in that report. The Tribunal accepts that the applicant suffers from a number of ailments. The applicant stated that his condition prevents him from maintaining employment and impacts on his daily living. The Tribunal is prepared to accept that evidence. 

30. In oral evidence the applicant states that his family in Australia has disowned him because of the events and his disclosure of information to the Department and he has only limited contact with one of his brothers. The applicant suggests that his brothers have ‘disowned’ him because he told the truth about their circumstances. The applicant claims that he cannot sleep out of concern over his future and being returned to Iran. This information is consistent with the information in the psychological report (which appears to have been recorded on the basis of the applicant’s own evidence) and the Tribunal accepts the applicant’s evidence. The applicant told the Tribunal that he has been suffering from asthma and the Tribunal accepts this evidence. The Tribunal also accepts the applicant’s evidence about his poor mental state.

31. The applicant told the Tribunal that he wants to get a job and he wants to get married. In the Tribunal’s view the applicant desire to get married is not dependent on his visa status. The applicant told the Tribunal that he worked for a few months in the past but has not been able to get a job. He had been receiving disability payments but since his visa was cancelled, he had relied on support from friends. The Tribunal accepts that if the applicant’s visa is cancelled, he would be unable to receive financial support from Centrelink and work in Australia and that may cause financial hardship to the applicant. The Tribunal also accepts that the concerns about the visa and his future are causing mental strain for the applicant. These are circumstances that weigh against the cancellation.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. The primary decision indicates that the applicant had not corrected the incorrect answers, as required by s. 105 of the Act. The applicant confirmed that he was under pressure from the family but had provided correct answers in his citizenship interview. The Tribunal is mindful that according to the primary decision record, the applicant did not disclose the correct information in his first citizenship interview and insisted that his brother [Mr A] lived in Iran but in a different location and it was not until the second interview that the applicant disclosed the correct information, once that  information was already before the Department. In these circumstances, the Tribunal does not consider the disclose of the correct information is indicative of the applicant’s willingness to be truthful and to correct the incorrect answers. The applicant’s subsequent behaviour weighs in favour of the cancellation.

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

2. The applicant told the Tribunal that he has three brothers in Australia and that he had not mentioned these siblings in his own protection visa application. That also suggests a breach of s. 101 of the Act.

   The time that has elapsed since the non-compliance

3. The application for the protection visa was made in April 2011 and a little over ten years passed since the non-compliance. The Tribunal acknowledges that it is a lengthy period and this weighs against the cancellation.

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

4. There are no known breaches of the law

   Any contribution made by the holder to the community.

5. The applicant told the Tribunal that due to his poor health, he has not been able to contribute and he has not been asked to do that.

6. 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.

7. There are no persons who would be subject to consequential 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.

8. There are no children who would be affected by the cancellation of the applicant’s visa.

9. The applicant’s three siblings are in Australia, which may suggest that the principles of family unity require his presence in this country, but the Tribunal is mindful of his evidence that the applicant has little contact with his siblings. The applicant’s mother is overseas.

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

10. The phrase '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.

11. The applicant claims that the incidents he described in his protection visa application did happen in Iran and that he did spend 8 days in prison. The applicant states that if he returns to Iran, he may be arrested and tortured and there are other people who had been recently executed due to their political activities. He claims that anything can happen and he is worried about his future there and people are known for being detained and mistreated upon entry to Australia and he may be beaten or imprisoned as there is a file against him. The applicant states that his life would be in danger. For the reasons that follow, the Tribunal does not accept the applicant’s claims.

12. The Tribunal finds the applicant’s evidence problematic. The Tribunal has found that the applicant had provided incorrect answers in his application and has formed the view that the applicant is not a person of credibility. The Tribunal is not satisfied that the applicant had provided a truthful account of circumstances in his protection visa application, given that he had lied about some aspects of his claims and the Tribunal is not satisfied that the applicant’s lack of candour only related to his family composition and not to other aspects of his claims. Thus, the fact that the applicant was granted the protection visa is not necessarily an indication, in the Tribunal’s view, that the applicant is, or was, owed protection or that the claims he had made previously and that had been accepted by the decision-maker should be accepted as being truthful now, as his representative suggests.

13. The Tribunal discussed with the applicant his ability to depart Iran if he was of interest. The applicant told the Tribunal that when he was imprisoned, he was told by the authorities that he was blacklisted until his appearance in court. However, the primary decision record indicates that in his protection visa application in response to Question 49 the applicant stated that he ‘suspected’ he was on the blacklist. In the Tribunal’s view, that contradicts the applicant’s oral evidence to the Tribunal that he was formally told by the authorities that he was on the blacklist and had to arrange a false passport to depart for that reason. When asked to comment on that discrepancy, the applicant suggested a mistake was made by the interpreter and he did not understand it when the information on the form was read back to him. The Tribunal does not accept that explanation. The Tribunal is mindful that the completion of the application form implies questions from the person who assisted the applicant and his responses being recorded. There is no reason why there should be a reference to be applicant ‘suspecting’ of being on the blacklist when he now claims he knew that for certain. The Tribunal also does not accept that the applicant misunderstood the interpreter when that information was read back to him before he signed the forms, given the brevity of that answer and the significance of being blacklisted to the applicant’s claims. The Tribunal is also mindful that the information about the applicant ‘suspecting’ of being on the blacklist was part of the primary decision record in relation to the cancellation decision and at least since receiving the primary decision, the applicant was aware of that claim being made in his protection visa application, yet he made no indication that this information was incorrect or inaccurate. The Tribunal has formed the view that the applicant has not been truthful in his claims.

14. The Tribunal asked the applicant about the outcome of the court proceedings, given that he did not respond to the summons. He stated that he did not know. In the Tribunal’s view, if the applicant’s evidence about the summons and of the authorities’ interest in him was correct, the applicant would take greater interest in the outcome of the proceedings and would have some knowledge of the matter. Again, the Tribunal has found the applicant’s evidence unpersuasive and likely untruthful.

15. The Tribunal has formed the view that the applicant is not a person of credibility, having regard to these deficiencies and the applicant’s willingness to provide incorrect information (for whatever reason) on the protection visa application form and in his first citizenship interview. The Tribunal is not satisfied that the applicant had provided truthful claims in his protection visa application that formed the basis of the protection visa grant. He admits to having provided incorrect answers in the application form in relation to his family’s whereabouts and he also told the Tribunal that it was his family and not his brother who received the summons. The Tribunal has formed the view that the applicant has not been truthful in relation to his claim of being told that he was blacklisted. The Tribunal has formed the view that the applicant is not a person of credibility and that he is willing to provide false information when he believes it better suits his circumstances.

16. The applicant told the Tribunal that he would not have left Iran and his mother if he had no issues in that country. The Tribunal does not find that argument persuasive as people leave their countries of residence for a variety of reasons and not only those that would give rise to non-refoulement obligations.

17. The applicant stated in his evidence to the Tribunal that he has not been involved in any political activities since departing Iran and his claims are based purely on his involvement before his departure from Iran. The Tribunal has formed the view that the applicant’s representation of those events was not truthful. As the applicant has not engaged in any political activities since his departure from Iran, the Tribunal has formed the view that the applicant would not be of any adverse interests to the Iranian authorities, if he was to return to his home country.  

18. The applicant told the Tribunal there was no other basis due to which he was fearful of harm. The Tribunal has formed the view that non-refoulement obligations do not arise in this case. The Tribunal considers this factor to be neutral in weighing the discretionary considerations.

    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.

19. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia. These matters weigh somewhat against the cancellation.

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

20. The applicant told the Tribunal that he has three siblings in Australia, all of whom claimed to be stateless Faili Kurds and that information was incorrect. Notably, the applicant told the Tribunal that he did not mention any of these family members in his own visa application. The applicant told the Tribunal that his siblings claimed to be stateless Faili Kurds and they were not stateless, so their claims were false. That is the reason they asked him not to mention their presence in Australia in his own application as he had presented his Iranian documents. It is not for this Tribunal to consider the circumstances of the applicant’s family members but the applicant’s evidence supports the Tribunal’s view that  the applicant had deliberately provided incorrect information about his family composition and the presence of his siblings in Australia.

21. The primary decision record indicates that when the applicant attended an identity interview, he did not correct the information about his brother’s whereabouts. Indeed, it is recorded that in his first citizenship interview the applicant expressly stated that his brother was living in Tehran but moved to a different area and the applicant confirmed in oral evidence to the Tribunal that at the time his brother was in Australia. The applicant claims that he did so in response to his brother’s request and that he was ‘terrified’ of being disowned by the family. The applicant notes that he did tell the truth in his second citizenship interview. The Tribunal is mindful that he did so only when faced with incontrovertible evidence of his brother’s presence in Australia. Until that time, the applicant appears to have been content to tell untruths. That is, the applicant continued to be untruthful in his dealings with the Department. He appears to consider that his own interests and the interests of his family are of greater import than his obligations under the Migration Act. The applicant told the Tribunal that the interviewing officer ‘mistreated’ him and told him to return to his home country and was racist, so he was scared. The applicant appears to have little insight into his conduct and no acknowledgement of his own responsibility in relation to his conduct.

22. The applicant told the Tribunal that his entire family is in Australia (he mentioned three siblings in Australia but he also states that there is little contact between them). The Tribunal accepts that if the applicant was required to depart Australia, that may lead to him being separated from his siblings.

23. The applicant referred to his medical condition and states that his mind has been very busy and he has been unable to sleep. As noted above, the Tribunal accepts the applicant’s evidence and the medical reports relating to his medical condition. The Tribunal acknowledges the psychologist’s opinion that the applicant had been affected by the cancellation of the visa and that his mental well-being may be affected as a result of the cancellation.

24. The Tribunal has found that the applicant completed his protection visa application form in a way that incorrect answers were given in relation to the whereabouts of his brother [Mr A] and that the applicant had not complied with s. 101 of the Act. The Tribunal has found that there are grounds for cancelling the visa.

25. The Tribunal considers that there are reasons why the visa should not be cancelled. In particular, the Tribunal acknowledges the length of time the applicant has spent in Australia and his settlement in this country and his links to the Australian community, including the presence of family here (although the applicant claims he has very limited contact with his siblings). The Tribunal acknowledges the evidence relating to the applicant’s health and the effect the cancellation of the visa may have on his mental health. The Tribunal accepts that considerable hardship may be caused to the applicant if his visa is cancelled and if the applicant was required to leave Australia. Hardship would also be caused by the fact that the applicant would lose any financial support and Centrelink entitlements if he is not a permanent resident of Australia. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled.

26. Nevertheless, the Tribunal has formed that the circumstances in which the non-compliance occurred and the fact that the visa grant was based, in part, on incorrect information outweigh other considerations. This is not the case where the incorrect information was not relevant to the basis of the applicant’s claims for protection. Thus, the applicant’s failure to mention siblings in Australia may not have been relevant to his own claims but in this case, the applicant made specific claims for protection that involved his brother so that the brother’s presence in Australia at the relevant time brings into question the veracity of such claims and, in the Tribunal’s view, the applicant’s evidence overall. For the reasons stated above, the Tribunal has formed the view that the applicant is not a person of credibility and that he may not have been truthful in other aspects of his protection claims.

27. The Tribunal has found that the applicant had deliberately provided false information because on his own evidence, he wanted to protect his siblings who were seeking the protection visas on the basis of false claims of being stateless Faili Kurds. He continued to provide incorrect information in his first Citizenship interview. The applicant claims that the first provision of incorrect answers was the result of the pressure from his family and the second provision of incorrect answers in the citizenship interview was partly due to him being ‘mistreated’ by the interviewing officer. The applicant does not appear to have taken responsibility for his actions, nor appreciated the significance of his conduct.

28. The Tribunal has found that the decision to grant the visa was based, in part, on incorrect information and, as noted above, the Tribunal has formed the view that the incorrect information about the brother’s whereabouts undermined other claims made by the applicant. The Tribunal has found that the breach was deliberate and that the applicant had knowingly and intentionally chose to be untruthful with the Department in order to support his family’s needs.

29. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the visa cancellations.

30. The Tribunal has formed the view that the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based, in part, on incorrect information, outweigh other considerations. 

31. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member