2015625 (Migration)

[2021] AATA 5299

2015625 (Migration) [2021] AATA 5299 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2015625

MEMBER:Kira Raif

DATE:3 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 3 August 2021 at 1:19pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visas – Subclass 202 (Global Special Humanitarian) – incorrect answers in the visa application – Armenian citizenship and passports – assessment of gross violation of human rights – integration into the Australian community – mental health issues – armed conflict in Syria and Armenia – best interests of the child – non-refoulment obligations – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 99, 101-105, 107, 109, 140, 197, 198
Migration Regulations 1994, Schedule 2, cl 202.211; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55   

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicants claim to be nationals of Syria. They were granted the Global Special Humanitarian visas in September 2016. In March 2020 the applicants were issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the first named applicant (‘the applicant’) did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled, as well as the visas held by the applicant’s spouse and children. 

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 3 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Armenian and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

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

7. 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.

8. 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?

9. 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.

10. The applicant provided  to the Tribunal a copy of the primary decision. It indicates that the applicant made the application for the Global Special Humanitarian (GSH) (subclass 202) visa in May 2016 as the primary applicant. The application included his spouse and two children. As part of the application, the applicant completed the application form 842 in which he gave the following answers

    a.In response to Questions 2 and 3, the applicant gave names and dates of birth for himself, his spouse and two children and stated that all were citizens of Syria.

    b.In response to question 25, the applicant stated that he feared living in, or returning to, Syria.

    c.At Question 49 the applicant signed a declaration confirming the information he provided on the form was complete, correct and up to date.

11. The applicant attended an interview at the Australian embassy in August 2016. In that interview, the applicant stated that

    a.he and his spouse did not have a passport or visa allowing them to live in any country other than Syria,

    b.he and his family members had not applied for resettlement in any other country.

12. The applicant and his family were granted the visas on 23 September 2016 and arrived in Australia [in] December 2016.

13. The primary decision record indicates that in August 2019 the Department received information that

    a.The applicant is an Armenian citizen and was issued with an Armenian passport in [2013]

    b.The applicant’s spouse is an Armenian citizen and was issued with an Armenian passport and ID card

    c.There was no evidence of citizenship for the applicant’s two children.

14. The primary decision record indicates that according to Armenian citizenship laws, children under the age of 14 whose parents acquire Armenian citizenship also acquire the same citizenship and any child whose parent is an Armenian citizen at the time of child’s birth also acquires Armenian citizenship. The delegate concluded that the applicant’s two children are also citizens of Armenia and such citizenship was acquired either at the time of their birth or when the parents acquired the Armenian citizenship.

15. The delegate concluded that the applicant gave incorrect answers by declaring to be a citizen of Syria and not a citizen of any other country and by stating at the interview that he and his partner had no right to live in any other country.

16. In his response to the NOICC the applicant confirmed that his grandfather was born in Armenia but moved to Syria and his parents did not have the Armenian citizenship or passports. The applicant’s evidence is that he travelled to Armenia to seek medical treatment and was ‘forcefully’ issued with the Armenian passports but not the Armenian citizenship certificates. The applicant states that he did not believe he genuinely held the Armenian citizenship because the process by which the passports were issued was ‘illegitimate’ and did not require any documents. (In his subsequent submission of 2 August 2021 the applicant clarified that he had presented the Armenian baptism certificate as evidence of his Armenian identity, as well as passport photographs.) The applicant states that he has no connections to Armenia and did not believe he was entitled to the Armenian citizenship but also states that all people of Armenian ethnicity in Syria sought Armenian documents due to the war. The applicant notes that he did declare his ancestry on the application form, so he did not have the intention to deceive.

17. In his oral evidence to the Tribunal the applicant also stated that when he attended the interview at the Australian embassy in Lebanon, he was asked whether he held any other passport. He understood from that question that he was asked about third countries and not Armenia as he did declare his Armenian background in the application.

18. The Tribunal has addressed these submissions below when considering the circumstances in which the non-compliance occurred. However, for the purpose of establishing whether there was non-compliance, the Tribunal finds that the issuance of the Armenian passports to the applicant and his partner is prima facie evidence that they had been granted Armenian citizenship, whether or not they held any other documentation such as citizenship certificates. In particular, there is nothing to support the applicant’s claim that the process by which the passports were issued was illegitimate which may render the grant of the Armenian citizenship void. The information cited in the primary decision indicates that the acquisition of Armenian citizenship is automatic by a child whose parent is an Armenian citizen. The applicant’s evidence is that his grandfather held Armenian citizenship which would suggest that the applicant and his parent were also entitled to it. There does not appear to be anything illegitimate about the issuance of passports in circumstances where the applicant was entitled to hold Armenian citizenship.

19. The Tribunal thus finds that the applicant and his partner had the citizenship of another country and therefore a right to reside in another country.

20. The Tribunal finds that the applicant gave incorrect answers when he stated at the interview (which is taken to be an answer on the application form pursuant to s. 99 of the Act) that he and his partner did not have passports or visas allowing them to live in any country other than Syria. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer had been given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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

23. The correct information is that the applicant and his spouse held Armenian citizenship when they made the application for the Global Special Humanitarian visas. They therefore had a right to enter and reside in Armenia. The applicant states that he did not consider living in Armenia because friends who spoke Armenian and who went to live there told him that they were not considered to be Armenian and most of his friends had left the country and migrated elsewhere. As noted elsewhere, however, the issue here is not the applicant’s view about residing in Armenia but his entitlement to do so by virtue of holding the Armenian citizenship.

    The content of the genuine document (if any)

24. 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

25. Clause 202.211 required an assessment whether the applicant was facing substantial discrimination, amounting to gross violation of human rights in his home country. A home country is defined as the country of which a person is a citizen or the country of usual residence. The applicant claimed that his country of citizenship (which was relevant to determining his home country) was Syria. If it was known that the applicant was also a citizen of Armenia, his home country could have been considered to be Armenia and the assessment of the applicant’s circumstances could have been taken with respect to that  country. The applicant claimed to be a national of Syria and failed to declare his Armenian nationality and that information was very significant to the assessment of his eligibility for the visa.

26. The applicant claims that he did not believe the Armenian nationality would have prevented the visa grant. It is not for this Tribunal to make that determination. That assessment was never made because the applicant never indicated that he held Armenian citizenship and that information was not known to the decision-maker. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

27. The applicant provided detailed information in his response to the NOICC and further evidence to the Tribunal. The applicant states that he had visited Armenia only a few times for medical treatment and the authorities did not let him leave without obtaining a passport. He did not consider himself and his family to be legitimate citizens of Armenia and for that reason did not declare the Armenian citizenship. The applicant explains that he thought the question on the form related to countries other than Armenia and Syria.

28. The applicant notes that both he and his spouse did declare in the application form that they were of Armenian heritage but did not declare the Armenian citizenship. This is because they had declared their Armenian ethnicity and they did not believe they ‘truly held’ the Armenian citizenship because they had no citizenship certificates while the passports were issued ‘by force’. The applicant states that he and his wife do not have the citizenship certificates or any other rightfully obtained legal documents while his children cannot obtain the Armenian citizenship. The applicant explains that his English was not good and the papers were completed by another person and the non-disclosure was not deliberate and he did not think the Armenian citizenship would have prevented him from being granted the visa. The applicant also explained to the Tribunal that he believed the question at the interview was about other countries, not Armenia.

29. The Tribunal has considered the applicant’s explanation but finds these unpersuasive. The questions on the form requiring the applicant to state his citizenship. The question at the interview related to the actual fact of having another citizenship, not the manner in which it was acquired, nor the applicant’s personal beliefs about his eligibility for the citizenship and its benefits. It is irrelevant, in the Tribunal’s view, that the applicant did not have the citizenship certificate, that he was “forced” to acquire the citizenship by the officials, that  he had lost his passport or that the Armenian citizenship was of little benefit to him as he did not live in or visit Armenia often. Either the applicant did have the citizenship of another country, however acquired, or he did not. The fact that the applicant disapproved of the way he acquired the Armenian citizenship and passport does not detract from the fact that he did acquire that citizenship and was well aware that he was the holder of an Armenian passport which enabled him to enter Armenia twice without visas. The applicant had the obligation to declare that information when asked about his citizenship.

30. The Tribunal is also of the view that  there is no obvious reason why the applicant would think that the questions on the form related to citizenship other than Syrian and Armenian citizenship. The question on the form and at the interview simply asked the applicant to state his country of citizenship and he referred to Syria. The applicant made no reference to Armenia, and could not have assumed that the decision-maker would be aware of that citizenship simply because the applicant had declared his Armenian heritage. There was no reasonable basis for the applicant’s claimed belief that the form referred to other countries excluding Syria and Armenia. Neither does the Tribunal accept that the applicant’s English was insufficient to provide the correct answer, given that the applicant was able to complete the form and give evidence at the interview (which is likely to have been conducted with the help of an interpreter). Importantly, the applicant attended an interview in which he presented his evidence and that cannot be explained by another person completing the forms.

31. The applicant told the Tribunal that he had lost his passport and could not concentrate at the time as his only concern was to save his family. The Tribunal does not accept that  the applicant was too nervous at the interview to recall that he held the nationality of another country, particularly given his capacity to answer other questions coherently. Further, the Tribunal notes that considerable time had passed from the time the application was made, to the time the applicant was interviewed and ultimately granted the visa. The applicant had ample time to prepare for the interview but even if he had difficulty answering questions at the interview, he had the opportunity to correct the information at any time subsequent to the interview. There is no evidence that the applicant had done that and the Tribunal does not accept that  the applicant failed to mention his Armenian citizenship at the interview due to his nervousness.

32. The applicant also submits that he did declare his Armenian ancestry. However, in the Tribunal’s view, that is not sufficient. It is not for the decision-maker to determine the citizenship laws of each country and whether the applicant could have been entitled to the citizenship of another country by virtue of his ancestry. It is for the applicant to fully and truthfully answer the questions on the application form. In this case, the applicant was expressly asked on the form to declare his citizenship (he referred to Syria but not Armenia) and in the interview the applicant was expressly asked about the right to enter and reside in another country and he failed to mention Armenia, despite holding the passport of that country. In the Tribunal’s view, the applicant had deliberately withheld that  information so as to improve his chances of obtaining the visa.

33. The applicant indicates that there has been incorrect information on form 842 because another person completed the form on their behalf and they are remorseful for the mistake. The Tribunal acknowledges that evidence although it is of the view that  the applicants had the responsibility for the content of the application even if they received assistance in completing the forms. The Tribunal also notes that the issue here is the information the applicant gave in his interview – which he attended in person – and not the information on the forms.

34. The applicant told the Tribunal that he had lost his Armenian passport and therefore thought his citizenship may have expired. Even if the applicant did not hold his passport, the Tribunal is mindful that nationality is not lost with the loss or expiry of a passport. The Tribunal does not accept the applicant genuinely believed he had lost the Armenian citizenship because he had lost the passport or because it had expired. The applicant also states that he had never lived in Armenia and did not own property there and while the Tribunal accepts that may be the case, that does not define citizenship.

1. The applicant submits that he had misunderstood the question at the interview and did not lie and did not intend to lie. The Tribunal does not accept that explanation because the question was very simple – whether he had the nationality of any other country. The applicant had been issued with the passport and used it to enter Armenia twice without applying for the visas and the Tribunal is of the view that the applicant was aware that he held the citizenship of that  country. The Tribunal does not accept the applicant had misunderstood what was asked of him. The Tribunal has formed the view that the applicant had either deliberately withheld information about the Armenian citizenship or he was recklessly indifferent about the truth.

   The present circumstances of the visa holder

2. in his response to the NOICC the applicant states that the family have settled in Australia and treat Australia as their home. His children have settled into school and university and have formed close ties with the community in Australia. The applicant states that his elder son completed high school and is undertaking study at TAFE. His younger son is studying at college and speaks only ‘broken Armenian’. The applicant refers to his own employment and the recent purchase of a house.

3. The applicant provided in his response to the NOICC a number of documents concerning his family’s present circumstances. The Tribunal accepts that evidence and accepts that the family have integrated into the Australian community, have engaged in study and employment and have formed social and employment ties.

4. The applicant provided additional evidence to the Tribunal. This includes evidence of his younger son’s schooling and a statement of support from the school principal, as well as evidence of the second child’s enrolment at TAFE. There is a statement of support from the Diocese of the Armenian church, evidence of the applicant’s and his wife’s employment (including payslips and taxation records) and character references from the  employers and members of the community. There are several letters of support from members of the community and a number of organisations. The Tribunal accepts the evidence in these documents.

5. The applicant told the Tribunal that he works in a [business] and does [another job] in the afternoons. His wife works in a [business] and learns how to operate a [specified] business which they wish to buy in the future. His eldest son is [a trade] apprentice and attends TAFE and he has a good standing with his employer. His youngest son attends school speaks English as if he was born here. The applicant presented evidence of property ownership. The Tribunal accepts that evidence and accepts the family have settled in Australia.

6. The Tribunal has also had regard to the medical evidence relating to the applicant’s spouse, which refers to her suffering from severe anxiety. The applicant told the Tribunal that the children are under a lot of pressure because of their present situation. The Tribunal accepts that evidence.

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

7. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

8. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

9. The application for the GSH visas were made by the applicant in May 2016. A little over 5 years passed since the non-compliance. The Tribunal does not consider this to be a significant period.

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

10. There are no known breaches of the law.

    Any contribution made by the holder to the community

11. The applicant told the Tribunal the family attends church every Sunday and had done voluntary work at [an organisation]. The applicant also referred to providing care to an elderly person prior to the lock-down.

12. 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.

13. The visas held by the applicant’s spouse and two children are subject to the consequential cancellation and have also been cancelled.

    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.

14. The applicant has one minor child who is directly affected by the cancellation as his visa was consequentially cancelled.

15. In his response to the NOICC the applicant states that his children have never visited Armenia, speak very little Armenian (and use a different dialect to what is used in Armenia) and would not be able to lead normal lives in Armenia. The applicant submits his children would discrimination at school and in the workforce based on them being Syrian, which would affect their lives. In his submission to the Tribunal the applicant indicates that his eldest son did travel to Armenia in [year].

16. The applicant told the Tribunal that his son is happy with his school and his friends. His English is excellent and he has forgotten his Arabic and his Armenian is diminishing. The Tribunal acknowledges that evidence but if true, the child’s ability to learn English quickly might indicate his ability to improve his Arabic or Armenian, should he be required to leave Australia. The applicant states that friends are important to his son and the Tribunal accepts that to be the case. The Tribunal accepts that the child has formed close friendships and links to Australia and prefers to remain in Australia. However, the Tribunal is mindful that he has travelled to different countries in the past and had given up his links and friendships and despite that, has been able to form new friendships in Australia. The Tribunal is of the view that he will be able to do the same in the future, despite being older.

17. The applicant suggested that his son’s mental health would be affected if the visa is cancelled – as would the health of the entire family. The Tribunal accepts there is evidence in relation to the applicant’s spouse but no evidence concerning any mental health issues relating to other members of the family including the minor child. The Tribunal is not prepared to accept the applicant’s assertions without probative evidence such as a report from a health professional. The Tribunal does not accept the child’s mental health would be adversely affected as a result of the cancellation.

18. The Tribunal has formed the view that it is in the best interests of the child to remain in the care of both parents. Normally, the Tribunal would consider that this can be done in any country and not necessarily in Australia. However, the circumstances of this case are distinguishable. This is because the two countries of which the applicant is a citizen – Syria and Armenia – presently experience some forms of armed conflict and the Tribunal accepts that the situation in these countries is unsafe. The Tribunal also acknowledges the statement from the child’s school principal which supports the child remaining in an Australian environment and continuing his education in Australia and maintaining his bonds in Australia, particularly given his past experience of living in a war-torn country. The child’s circumstances must be considered in light of his personal background, which includes living through the armed conflict in Syria and being affected by that conflict, as noted in the principal’s report. Overall, the Tribunal accepts that in these particular circumstances, it is in the best interests of the child not to return to either Armenia or Syria and therefore that his visa should not be cancelled. The Tribunal finds that the cancellation of the applicant’s visa would not be in the best interests of his minor child.

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

19. The Tribunal has considered whether Australia’s non-refoulment obligations arise in this case. Other than CROC, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

20. The applicant submits that his family would face discrimination in Armenia on the basis of being Syrian, they would be denied government financial assistance and would be unable to subsist. They would be denied medical treatment and employment on the basis of being Syrian. The applicant refers to the poor living conditions in Armenia and states that the authorities would not assist them. The applicant told the Tribunal that explosions continue to Syria, that there is no safety or security and the situation is not safe. He was living in Aleppo before he left for Lebanon. The applicant states that Syrian Armenians are not considered to be Armenians and face discrimination and many have left the country. The applicant states that Armenia is at war at present and the family would not be safe there. The applicant states that when he moved to Lebanon, initially he could live there on the Syrian passport but later on he faced deportation if he did not have a ‘sponsor’.

21. At the outset, the Tribunal notes that the applicant may be prevented from making a valid application for a Protection visa in Australia in the future due to his dual citizenship.

22. The applicant spoke about the ongoing conflict in Syria and the emerging conflict in Armenia and its borders. The Country of Origin Information Report on Syria, issued in July 2021, refers to the worsening security situation, ongoing conflict and the poor socio-economic situation affecting the country’s citizens. The Tribunal is mindful that general conflict – whether in Syria or in Armenia – may not give rise to Australia’s protection obligations.

23. It is also important to note that the cancelation of the applicant's visa in itself would not be in breach of any of Australia's non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia. An applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is 'irrelevant' to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person 'as soon as reasonably practicable.' However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

24. For this reason, the Tribunal does not consider that the cancellation of the visa would lead to a breach of Australia’s non-refoulement obligations.

25. The applicant has [specified relatives] in Australia. His wife has relatives overseas. The Tribunal does not consider that the principles of family unity would be breached as a result of the cancellation.

    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.

26. 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 without the Minister’s intervention although there are very limited types of visas he can apply for and the applicant may be subject to an exclusion period in relation to some visas if making an application offshore. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia.

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

27. This has been addressed above. Essentially, the applicant states that his family would experience discrimination in Armenia on the basis of being Syrian and would be denied access to health care, medical treatment, employment workforce and financial assistance and would be unable to subsist. The applicant’s evidence to the Tribunal is that he travelled to Armenia on a few occasions, predominantly for medical treatment but had never lived there.

28. The applicant refers to the close ties he and his family have formed in Australia, his children’s settlement in this country and stats that departing Australia would cause psychological, financial, emotional and physical hardship as they have nowhere to go. The applicant also refers to the existence of family ties to Australia. The Tribunal accepts that the family have relocated to Lebanon prior to entering Australia and severed the ties with their home country where they had not lived for a number of years (and may not have formed ties with Armenia). The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled, if it were to lead to the family’s departure from Australia.

29. The applicant states that his home and businesses have been destroyed in Syria (some photographs had been presented to the Tribunal at the commencement of  the hearing although it is impossible to determine if they relate to the applicant’s property) and they have nothing to go back to. They have no income and no assets in Syria while they have employment, a property and family support in Australia. The Tribunal accepts that the family would experience significant hardship if required to leave Australia. The applicant and his partner spoke about the mental health of second-named applicant and the Tribunal accepts the medical evidence that has been presented to the delegate and the Tribunal. The Tribunal accepts that the cancellation of the visa may adversely affect [the applicant’s wife’s] mental and overall health.

30. The Tribunal also accepts that if the cancellation of the visa will result in the family having to depart Australia, it would adversely affect the applicant’s eldest son who would be unable to complete his apprenticeship in Australia and pursue his chosen career. The Tribunal accepts, overall, that significant hardship would be caused to the family if the visa is cancelled.

31. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s. 101 of the Act and that there are grounds for cancelling his visa.

32. The Tribunal considers there are strong reasons why the visa should be cancelled. The Tribunal has formed the view that  the applicant had deliberately withheld information about the family’s Armenian citizenship when applying for the Humanitarian visa and the Tribunal has rejected the various explanations the applicant gave for the provision of incorrect answers. Essentially, the Tribunal does not accept the applicant did not believe he held the Armenian citizenship or that he was not obliged to declare it. The Tribunal considers it significant that the decision to grant the visa was based on incorrect information and that information played a significant part in the decision to grant the visa because the assessment of the applicant’s eligibility for the visa was made by reference of the applicant’s country of nationality. There is at least a possibility that the delegate would have formed a different decision if the correct information was known. These are strong reasons why the visa should be cancelled.

33. The Tribunal has considered other circumstances. The Tribunal accepts that the applicant and his family have formed strong ties to Australia, including family, employment and financial ties. They are engaged in study and employment and have made a contribution to the community. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visas are cancelled. This is particularly so because the situation in Syria remains unsafe and the Tribunal accepts the applicant’s evidence that they have nothing to go back to because they have lost everything in the war in Syria. The Tribunal also acknowledges the applicants’ evidence that they may experience discrimination in Armenia and would, in any case, find it difficult to live in that country where they had never lived previously. The applicant refers to the recent conflict in Nagorny Karabakh region in Armenia and the Tribunal accepts that the situation may be unsafe at least in some parts of Armenia. Although the Tribunal has formed the view that the cancellation of the visa would not result in the breach of Australia’s protection obligations, the Tribunal acknowledges that the humanitarian visas were granted on the basis of the situation in Syria and it does not appear that there has been a significant improvement in the security situation in that country.

34. The Tribunal has formed the view that it is in the best interests of the child to remain in Australia and that is a primary consideration. Despite strong reasons why the visa should be cancelled, the Tribunal has formed the view that the hardship that would be caused to the family if the visas are cancelled, the best interests of the child and the situation in the applicant’s home countries outweigh other considerations.

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

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

37. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member