2101379 (Refugee)

[2022] AATA 3925

2101379 (Refugee) [2022] AATA 3925 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ahmad Vahedian Ghaffari (MARN: 1462882)

CASE NUMBER:  2101379

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Nicole Burns

DATE:15 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 15 September 2022 at 4:56pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – incorrect information in the visa application – race – religion – Faili Kurd – nationality – stateless – Iraqi citizenship – satisfied as to the applicant’s identity – family citizenship status – education – impact on Australian citizen family – best interests of the children – indefinite detention – obtaining Iraqi documents – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 107, 109, 116, 119, 140, 195, 197,198
Migration Regulations 1994, r 2.41; Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

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

statement of decision and reasons

application for review

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 (Cth) (the Act).

2. On 2 February 2021 the delegate cancelled the applicant’s protection visa on the basis that they concluded the applicant had provided incorrect answers in certain respects in relation to his protection visa application in breach of s 101 of the Act. 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. The applicant is [an age]-year-old man originally from Tehran, Iran. According to Departmental records he arrived in Australia as an unauthorised maritime arrival (UMA) [in] November 2009 having left Iran earlier (via [specified countries]).  He was granted a protection visa on 10 February 2010 (having applied on 4 February 2010) based on his alleged status as a stateless Faili Kurd who did not have Iranian or Iraqi nationality. 

4. The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments about the issues in his case. The Tribunal also received oral evidence from his partner, [Ms A] (over the telephone), his brother, [[Brother B], and his brother’s wife, [Ms C] (in person). The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Non disclosure certificate

7. As a preliminary matter the Tribunal notes it has before it the applicant’s Departmental file relating to the cancellation of his protection visa.[1] The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing a certificate under s 438 of the Act dated 1 March 2021. That section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. The Tribunal is satisfied that it states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. Accordingly, the Tribunal considers the certificate valid. As such, the information to which it is subject cannot be disclosed in any detail. 

   [1] [File number]

8. Broadly, the information to which the certificate is subject relates to findings about the applicant’s identity in the form of an identity assessment report dated 20 August 2015 undertaken by a Departmental officer, and information contained in a Departmental cancellation referral checklist pertaining to possible cancellation grounds. Aspects of that information has been set out in two separate Notices of Intention to Consider Cancellation (NOICC) the Department sent to the applicant: the first dated 4 July 2018 advising that his protection visa may be cancelled under s 116(1AA) due to concerns with his claimed identity, and the second dated 18 February 2019 advising his protection visa may be cancelled under s 109 of the Act due to concerns about the provision of incorrect information at the protection visa stage (the subject of this review). Ultimately the applicant’s visa was cancelled under s 109 (not s 116(1AA)). The applicant and his representative have provided responses to these notices to the Department. Before the Tribunal the applicant acknowledged that he provided incorrect information in certain respects at the protection visa stage as set out in the NOICC, for example about his mother and sister’s citizenship status at the time. These factors are considered in more detail below. In these circumstances, the Tribunal considers the restriction of the material subject to the non-disclosure certificate does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.[2]

   [2] Minister for Immigration and Border Protection v CQZ15 [2017]FCAFC 194 at 72

9. The information also includes details about financial transfers to several recipients in Iran.  However, the applicant is not included in the names of either the senders or recipients and it is unclear to the Tribunal how they relate to the applicant’s case. The Tribunal therefore gives this information no weight.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

12. On the Departmental file is a copy of a NOICC dated 18 February 2019 which advised the applicant that his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) of the Act. He was advised to respond in writing. The applicant’s representative provided a written response dated 15 March 2019.

13. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107, and that the notice issued under s 107 complied with the statutory requirements.

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

14. 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.

    Background and NOICC particulars

15. The non-compliance identified and particularised in the s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application in certain respects. Specifically, the notice recounts that on 12 December 2009 the applicant lodged a request with the Department for a Refugee Status Assessment (RSA) and as part of that assessment submitted a statement of claims. He lodged a protection visa application (Part B and Part C of Form 866) on 4 February 2010. In that application he answered several questions about his identity, citizenship status, family composition, reasons for leaving Iran and fears upon return there, among other things. 

16. In his statement of claims (as set out in the NOICC) the applicant said his parents were born in Baghdad, Iraq and were expelled from Iraq to Iran in 1980 as Kurdish Failis. Also, that his family faced many problems during their stay in Iran; for example, they could not formally marry and could not hold government jobs, could only engage in unofficial employment, could not study in public schools (without identity documents) and could not travel freely without being targeted by the Iranian authorities, who they could not complain to. The applicant also states that over the past few years he was arrested and detained many times by the Basij paramilitary simply as a Kurdish Faili and because he did not have legal documents to reside in Iran. He was hit most of the time, and one time they broke his nose. 

17. The applicant identified the Iranian authorities as those he thinks would harm or mistreat him if he returned to Iran in his protection visa application. As well, he stated in his written statement that both the Iranian and Iraqi governments do not think he belongs to their country as a Kurdish Faili and for this reason neither country wants him.

18. Based on this information the delegate at the time accepted the applicant was stateless and that he faced a real chance of persecution by the authorities in Iran because of his Kurdish race and/or nationality on return there.  He was granted a protection visa on 10 February 2010.

19. However subsequently, questions appear to have arisen at the Departmental level about the applicant’s (and his family members) alleged nationality (or lack of) following his application for Australian citizenship in 2015 and related assessment as to his identity (including when interviewed by the Department at an identity assessment interview on 23 July 2015).  This resulted (as set out in the s 107 notice) in the applicant being sent a s 119 notice dated 4 July 2018 advising him that the delegate was considering cancelling his visa, because they were not satisfied as to his identity pursuant to s 116(1AA) of the Act. 

20. The NOICC records that the applicant responded to the s 119 notice on 4 August 2018, advising as follows:

    a.His father’s name is [Mr D] not [Alias] as he indicated in his protection visa application;

    b.His father was stateless at birth and not given Iraqi nationality in Iraq. He became an Iraqi citizen and was issued an Iraqi passport [in] upon the recommendation of the Islamic Supreme Council of Iraq;

    c.The applicant’s mother – [Ms E] - was born in Iraq and is a citizen of Iran since birth who holds a shenasnameh[3]

    d.His sister, [Sister F], was stateless at birth and became an Iranian citizen [in] 2006. 

    [3] An Iranian birth certificate/identity booklet.

21. The NOICC records that with his response to the s 119 notice, the applicant provided to the Department scans of his mother’s and [Sister F’s] shenasnameh and his father’s Iraqi passport.  The Department then enquired with the Iraqi authorities who advised that the applicant’s father, mother and sister ([Sister F]) were all Iraqi citizens since birth. This led the delegate to conclude the applicant was also an Iraqi citizen at the time he applied for protection, given he would have acquired Iraqi citizenship by operation of law (Article 4(1) of the Iraqi Nationality Law of 1963 and Article 2 of Iraqi Nationality Law 26 of 2006) based on his father being an Iraqi citizen, whether he had been born inside or outside Iraq. 

22. The NOICC indicates that the delegate therefore concluded the applicant had provided incorrect answers to several questions in his protection visa application (and in his statement of claims) in the following respects:

    ·By describing his parents’, sister’s and his own citizenship status as ‘illegal’ in answer to question 11 in Form 866 Part B of the protection visa application;

    ·In stating his citizenship at birth is ‘illegal’ in answer to question 19 of Form 866 Part C of the protection visa application;

    ·In recording ‘N/A’ in answer to question 20 of Form 866 Part C of the protection visa application, which asked the applicant’s current citizenship (if different to at birth);

    ·In answering ‘No’ when asked at question 21 of Form 866 Part C of the protection visa application if he holds any other citizenship or is a national of any other country;

    ·In stating he was born ‘stateless’ in answer to question 23 of Form 866 Part C of the protection visa application when asked if he is stateless, and how, when and why he lost his citizenship;

    ·By referring to his RSA statement in answer to question 46 of Form 866 Part C of the protection visa application about if he thinks the authorities of that country can and will protect him if goes back. In it he states: ‘I am Kurdish Faili. Both Iranian and Iraqi governments do not think that I belong in their country and for this reason neither country wants me’.

    The applicant’s response to the NOICC

23. In their submission provided to the Department in response to the NOICC the representative argued that the applicant did not provide ‘wrong’ information about his nationality at birth and that of his father and sister. He submits that given the applicant arrived in Australia in 2009 and his father’s Iraqi nationality was established in 2011, it is plausible to accept he was not aware of the new law at the time he arrived in Australia.  With respect to his [Sister F], the representative confirmed that she was born in Iraq and obtained Iranian citizenship through marrying an Iranian husband but has never had in her possession Iraqi documents despite having lived in Iran since she was around [age] years old.

24. Additionally, the representative noted the delegate had referred to the information received from the Iraqi authorities confirming that the applicant’s parents and [Sister F] were Iraqi citizens since birth. The applicant’s [Brother B], was also born in Iraq, but it appears only [Sister F], and his parents were reported as Iraqi citizens. This suggests that the Iraqi authorities do not have the applicant’s other siblings’ names recorded in their system and therefore their citizenship needs to be established, a process which may take several years, he submitted.

    Decision to cancel

25. On 2 February 2021 the delegate decided to cancel the applicant’s protection visa. In the decision record, the delegate noted the matters set out in the NOICC, and the applicant’s response, but ultimately did not accept the applicant’s evidence. The delegate stated they were satisfied the applicant provided incorrect information in his protection visa application and statement of claims as detailed in the NOICC and set out earlier (paragraph 22). She was satisfied the grounds for cancellation of the visa under s 109 were established.

26. Having found the grounds for cancellation existed, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the representative’s submission submitted in response to the NOICC but stated that, having weighed up all the relevant factors, she was satisfied that the grounds for cancellation outweighed the reasons not to cancel the visa.

    Review and findings on non-compliance

27. In a written submission provided to the Tribunal on review, the applicant’s representative stated that the applicant acknowledges he provided incorrect information at the protection visa stage as alleged in the NOICC. The submission then focuses on the discretionary factors in reg 2.41 of the Regulations to argue why the Tribunal should exercise its discretion not to cancel the visa and provided several supporting documents, considered below where relevant. 

28. At hearing the applicant acknowledged he provided incorrect information at the protection visa application stage by indicating his mother and sister’s citizenship status was ‘illegal’, whereas they both were Iranian (and Iraqi) nationals at the time. He said his mother, who was born in Iraq and expelled to Iran (along with his father and [Sister F] and [Brother B]) in around 1980, was able to obtain Iranian nationality through her parents and/or grandparents (he was not entirely sure) in Iran several years later. [Sister F] obtained Iranian citizenship when she married her Iranian husband, in 2006. The applicant said at the time he applied for protection he knew this was the case but was advised by his then agent and an interpreter in detention not to tell the Department as such. On this basis, as well as based on evidence of the applicant’s mother and sister’s Iranian citizenship in the form of their shenasnameh provided to the Department, the Tribunal accepts his mother and sister [Sister F] are Iranian citizens and were at the time he applied for protection in 2010. Based on advice from the Iraqi authorities, the Tribunal also accepts his mother and sister were Iraqi citizens at that time. Accordingly, it accepts he provided incorrect information in his protection visa application by describing their citizenship status as ‘illegal.’ 

29. With respect to the applicant’s father’s (and therefore his own) citizenship status at the time he applied for protection, the applicant claims he was not aware of the changes to the Iraqi Nationality Law in 2006 which meant his father (and, by extension, himself) was considered an Iraqi citizen by operation of law. He claims his father re-availed himself of Iraqi citizenship – which he had been in effect stripped of in 1980 when expelled from Iraq – in 2011 and obtained an Iraqi passport. He also claims he was unaware of the effect of the changes to the law from 2006, when he applied for protection in 2010. As noted, in his response to the NOICC the representative submits that it is not reasonable to expect the applicant, who had resided in Iran his entire life, to be aware of the provisions of the Iraqi Nationality Law which had come into effect several years before he departed to Australia in 2009. Whilst that may have been the case, as discussed at hearing, s 100 of the Act makes it clear that an answer to a question is incorrect even if the person who gave it, or caused it to be given, did not know that it was incorrect.  

30. Accordingly, the Tribunal is satisfied the applicant provided incorrect information in his protection visa application by stating that his citizenship at birth was illegal; recording ‘N/A’ when asked about his current citizenship; in stating he was born stateless; answering ‘No’ when asked if he holds any other citizenship or is a national of any other country; and by indicating that the Iraqi government does not think he belongs to their country, does not want him, and therefore will not protect him.  Also, by indicating his fathers’ citizenship status was ‘illegal’ whereas he held Iraqi citizenship by operation of law from 2006, even if he did not obtain his Iraqi passport until 2011.

31. The Tribunal notes (as did the delegate in the NOICC and cancellation decision record) that according to Article 3 of Iraq’s Nationality Law (Law No.26 of 2006) dated 7 March 2006 (superseding Law No. 46 of 1963), a person shall be considered Iraqi if:

    a. he/ she is born to an Iraqi father or an Iraqi mother;

    b. he/ she is born in Iraq to unknown parents. A foundling found in Iraq shall, in the

    absence of proof to the contrary, be considered to have been born therein.

32. Furthermore, under Iraq’s Nationality law, the acquisition of nationality from an Iraqi father is automatic at birth (ex lege) via paternal jus sanguinis, irrespective if the child was born inside or outside of Iraq, as in the applicant’s case.[4]  

    [4] Iraqi Nationality Law [Iraq], Law 26 of 2006, 7 March 2006, type="1">

33. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice in those respects.

    Should the visa be cancelled?

34. 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).

35. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations, as follows.

36. The correct information: was that the applicant was a citizen of Iraq (by operation of law) at the time he applied for protection, as was his parents and sister, [Sister F].  His mother and [Sister F] also held Iranian nationality. They were therefore not stateless or ‘illegal’.

37. The content of the genuine document (if any): This prescribed circumstance is not relevant in this case because the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).

38. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The representative submits that the applicant was granted protection on the basis of being stateless; he was not aware he was an Iraqi citizen by virtue of Article 2 of the Iraqi Nationality Law No. 26 of 2006 when he sought protection; he lived his whole life in Iran and never had an Iraqi document; and he was only issued a midwife birth card and Iranian residence permit in Iran. Had he been aware of his Iraqi citizenship, he would have provided reasons for not being able to return to Iraq, he contends.

39. In 2010 the RSA delegate[5] found the applicant had a well-founded fear of persecution in Iran based on his Kurdish race or nationality. They accepted he was a Faili Kurd born in Iran to Iraqi nationals who were expelled from Iraq in 1980; who lived without documentation or any legal status in Iran; and whose situation impacted on their basic rights such as an ability to obtain an education, seek medical care, or earn a living. The RSA delegate also accepted they feared approaching the Iranian authorities because they were stateless.

    [5] As set out in their decision record, a copy of which is on the Departmental file with respect to the applicant’s cancellation matter.

40. Before the Tribunal, the applicant claims that his account about his background and circumstances that led him to leave Iran in 2009 were true. Although his mother was able to obtain Iranian citizenship some years after his parents were expelled from Iraq, this did not translate to himself, his siblings or his father obtaining Iranian citizenship (and related rights and benefits) when they were growing up in Iran. Therefore, life was hard, they faced discrimination, and he was targeted by the Basij at times as he had indicated at the protection visa stage. He claims this is why he left Iran. At hearing he noted that is why his mother’s shenasnameh does not record her children. He claimed when he was born the hospital gave his parents a document as a record of his birth, but it was not a birth certificate. He (and his family) had green cards and then white cards, which were issued to Iraqi refugees.

41. The applicant’s oral evidence about these matters was generally consistent with his earlier evidence before the Department and corroborated by [Brother A’s] oral evidence to the Tribunal about their family history and circumstances. The Tribunal therefore accepts that even if the applicant was not stateless when he applied for protection in 2009, his experiences growing up in Iran without Iranian nationality (or his father having Iranian nationality) were, at times, difficult. If this had been accepted by the delegate at the time, it is arguable they may have granted him a protection visa even if the correct information – that he was an Iraqi citizen by operation of law, and his mother and sister were Iranian citizens – had been known.  However, given the test for refugee status is a forward looking one, if the correct information had been known, it is possible the delegate may not have granted the applicant protection, being of the view that the applicant could obtain Iraqi citizenship based on his father’s Iraqi citizenship status (from birth, even if revoked temporarily under Saddam Hussein’s rule).

42. The Tribunal notes this is speculative however, and it is difficult to draw a clear conclusion. Nonetheless it considers the RSA delegate’s findings that the applicant was stateless, along with his parents, and would be upon return to Iran, was key to their decision that Australia owed him protection.  Accordingly, the Tribunal is satisfied the decision to grant the applicant a protection visa was based partly on incorrect information.  The Tribunal gives this factor some weight towards cancelling his visa.

43. The circumstances in which the non-compliance occurred: it has been submitted that when the applicant arrived in Australia in 2009, he was unaware of the current Iraqi Nationality Law which came into effect on 7 March 2006. Therefore, he did not intentionally provide incorrect information about his parents (and [Sister A’s]) Iraqi citizenship status, which he thought they had lost when forced to leave Iraq during Saddam Hussein’s Baathist regime. The applicant acknowledges, however that his mother was an Iranian citizen when he lodged the protection visa application, and at hearing acknowledged he was also aware that [Sister F] was an Iranian citizen at that time. At hearing he explained he did not reveal this information at that time based on advice from an agent and interpreter whilst in detention.  

44. The Tribunal is willing to accept the applicant may not have been aware of changes to the Iraqi Nationality Law from 2006, which meant that he was Iraqi citizens by operation of law based on his father’s Iraqi citizenship when he arrived in Australia and applied of protection, or that his mother and sister were also Iraqi citizens. Nonetheless he has acknowledged that he deliberately provided incorrect information in the protection visa application about his mother and sister’s Iranian citizenship status, presumably to increase his chance of obtaining protection. The Tribunal gives this factor some weight towards cancelling the applicant’s visa. 

45. The present circumstances of the visa holder: are that the applicant has been a resident in Australia for around 13 years. Presently he lives with his partner, [Ms A], and her [children], who attend [school]. [Ms A’s] eldest daughter was born in Iraq, and her youngest in Australia. [All] are Australian citizens, evidenced by copies of their Australian citizen certificates provided to the Tribunal. At the time of hearing [Ms A] was pregnant (with the applicant’s child), due to give birth on [date] according to a letter provided from her GP dated 2 September 2022. 

46. At hearing the applicant said he met [Ms A] in around 2016 and they started a relationship (and moved in together) in mid-2019. Originally from Iraq, she moved to Australia several years ago, sponsored by her former husband. However, their marriage broke down due to family violence, and she was granted full custody of their children thereafter, according to the applicant. The applicant said [Ms A’s] husband died in an ‘accident’ a couple of years ago. [Details deleted].[6] 

    [6] [Source deleted]

47. The applicant told the Tribunal that [Ms A]’s daughters – who he considers his own – have nothing to do with their father’s relatives. In her oral evidence to the Tribunal, [Ms A] described the applicant as her and her daughters’ ‘everything’; her daughters call him ‘daddy’ (of their own accord); and they would be devastated if he left. She said he is her only family in Australia, as she has no contact with her former husband’s family, and her family reside in Iraq. She added that she is close to the applicant’s [Brother B] and his wife, [Ms C], which the Tribunal accepts.

48. The applicant said he runs a [business] through which he financially supports [Ms A], and their daughters (he provided tax information to the Tribunal as evidence). [Ms A] has studied [a course] but presently does not work, awaiting the arrival of her [child]. 

49. The Tribunal notes the applicant failed to mention [Ms A] and her daughters in his response to the NOICC. However, given his evidence that their relationship only started in mid-2019, after the NOICC (and his response to it), this is not surprising. The applicant’s evidence about the inception and development of his relationship with [Ms A] was reasonably consistent with her oral evidence to the Tribunal and corroborated by his brother and sister-in-law’s oral evidence. The Tribunal accepts the applicant’s evidence about his and his family’s current circumstances. It gives these factors – particularly his role as a father to a newborn and to two still young daughters (all Australian citizens) who are financially and emotionally dependent on him, and who have lost their biological father in traumatic circumstances (and who have no other relatives here, apart from their mother) - substantial weight as reasons not to cancel the visa.

50. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: In response to the NOICC, the representative disagreed with the alleged non-compliance, contending the applicant was not aware when he arrived in Australia about changes to the Iraqi Nationality Law, and therefore could not have given wrong information about his father’s and sister’s citizenship.  Before the Tribunal the applicant acknowledges he did provide incorrect information about his and his parents and sister [Sister F’s] citizenship status when he applied for protection: some aspects of which he was aware of, and others not, as discussed.

51. Accordingly, the Tribunal is satisfied the applicant responded to the NOICC by making an incorrect statement in certain respects. It gives this factor some weight towards cancelling the visa.

52. Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal is not aware of any other instances of non-compliance by the applicant.

53. The time that has elapsed since the non-compliance: the non-compliance took place when the applicant applied for a protection visa on 4 February 2010, which is over 12 years ago. The Tribunal considers this is a significant amount of time and gives this factor considerable weight in favour of not cancelling the visa.

54. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance.

55. Any contribution made by the holder to the community: there has been no submissions made in this respect in response to the NOICC, or to the Tribunal.  At hearing the applicant said his time is spent working and helping care for his children, and partner. The Tribunal accepts his evidence in this regard, but does not consider this a factor for, or against, cancelling the visa. 

    Other factors: Departmental guidelines

56. While these factors in reg 2.41 of the Regulations 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 government policy,[7] considered below.

    [7] PAM3 ‘General visa cancellation powers.

57. Whether there are persons in Australia whose visas would, or may, be cancelled under s 140: There are no consequential cancellations in this case.

58. Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[8]

    Best interests of the applicant’s children

    [8] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).

59. As a signatory to the Convention on the Rights of the Child (CRC), Australia has certain obligations, including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CRC also includes integrated but wider considerations including education[9] and health and disability considerations[10] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[11]

    [9] Article 28.

    [10] Articles 23 and 24.

    [11] Article 22.

60. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship.[12]

    [12] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122.

61. As noted, the applicant has two Australian citizen stepdaughters, who live with him and their mother, [Ms A] and are dependent upon him financially. At the time of the hearing [Ms A] was due to give birth to their child, who will also be an Australian citizen given [Ms A] is an Australian citizen. 

62. In his submission to the Tribunal the representative argues that the cancellation of the applicant’s visa would significantly affect the wellbeing of his (Australian citizen) children, and that case law requires the Tribunal to contemplate the best interests of his children as a primary consideration. He contends the applicant is in a stable relationship with [Ms A] and has a strong bond with his stepchildren. Cancellation can potentially cause the applicant to be separated from his family, which will significantly affect his children’s wellbeing who are emotionally and financially dependent on him as their father, and the only main breadwinner, it is submitted.

63. The representative also submitted that, according to the applicant his children would have better prospects in Australia than Iraq; their safety, freedom, education, and health care would be significantly compromised as a result of the current ongoing and unstable situation and civil war in Iraq; and a return to Iraq will be detrimental to the children’s prospects of life. 

64. The Tribunal accepts the applicant’s stepdaughters - the youngest who was born in Australia and the other who has lived here from a young age - are Australian citizens. It accepts they attend [school], and that the applicant has been a father figure in their lives since mid-2019. It accepts the applicant cares for them financially and helps care for them emotionally (along with their mother), who they rely on for financial, emotional, and other support. It accepts, based on the applicant’s and [Ms A’s] oral evidence to the Tribunal, that they are close to the applicant and consider him their father. It accepts their own father died in March 2020 in traumatic circumstances and they have nothing to do with his family. It accepts they have developed a bond with the applicant, and they would be adversely impacted if they had to leave Australia.

65. The Tribunal accepts in the second stepdaughter’s case (aged [age]) having spent her entire life in Australia, and in the eldest stepdaughter’s case since a young age (now aged [age]), the applicant’s daughters are well integrated into the Australian community, and they may face significant challenges resettling in Iraq, particularly with no family support on the applicant’s side (and given the applicant has never been there and there may be obstacles in him obtaining identity documents and employment, among other things). Whilst they have the support of their mother’s side of the family in Iraq – at hearing [Ms A] said she has a large extended family there, whom she is close to - doing so would be disruptive to their education (and their lives) to some extent. Additionally, the Tribunal accepts there are certain risks of gender-based violence for women and girls in Iraq, which is considered common, as well as limited education and other opportunities, and ongoing security concerns[13].   

    [13] DFAT Country Information Report, Iraq 17 August 2020 at 3.122 – 3.132; and UK Home Office, Country Policy and Information Note, ‘Iraq: Humanitarian situation’, August 2022.

66. Although [Ms A] had not given birth at the time of the hearing, the Tribunal has proceeded on the basis that the applicant is likely to have a newborn child, who is an Australian citizen. It would clearly be in this child’s best interest to be cared for by both parents, and not to be separated from their father.

67. For reasons explained further below, the Tribunal is also concerned that the cancellation of the applicant’s visa may lead to prolonged detention of the applicant, which would result in separation from his children.

68. Taking into account these considerations the Tribunal accepts it is in the best interests of the applicant’s children’s development to remain living in Australia with both parents, and that cancellation of the visa would breach Australia’s international legal obligations in this respect and related to family unity principles espoused in the CRC. The Tribunal gives this factor considerable weight towards not cancelling the visa.

    Australia’s non-refoulement obligations

69. The delegate’s decision record states that if the applicant’s protection visa is cancelled, an International Treaties Obligations Assessment would be undertaken before a decision to remove him from Australia is made, where the applicant’s fears of persecution in Iraq and Iran due to being Faili Kurd would be considered.  

70. The representative submitted to the Tribunal the applicant would be potentially subject to indefinite detention if his visa remains cancelled because he has no legal right to return to his family in Iran, and he does not have Iraqi documents.

71. The Tribunal notes that due to recent amendments to s 197C of the Act which now provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal, it is not necessary for the Tribunal to make findings about those matters in the context of this part of this cancellation decision. The effect of these amendments relevant to this case is considered below.

72. If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act and must be removed as soon as practicable (s 198 of the Act).

73. There has been a significant change to the law since the delegate’s decision. Amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c) none of the following apply:

    (i) the decision in which the protection finding was made has been quashed or set aside;

    (ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.

1. In this case the applicant made a valid application for a protection visa on 4 February 2010 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 9 February 2010. In these circumstances, s 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non‑citizen requests removal.

2. There is no indication that the decision to grant the applicant a protection visa has been quashed or set aside, nor has the applicant requested removal from Australia. Additionally, there is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

3. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

4. In such a scenario cancellation may lead to prolonged detention in the applicant’s case. The Tribunal gives this factor significant weight towards not cancelling the visa, particularly taking into account he is the father of three Australian citizen children, who are still young and are financially and emotionally dependent on him (among other things).  

5. Mandatory legal consequences to a cancellation decision: If the visa remains cancelled and the applicant exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen and may be detained under s 189 of the Act. He is then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made for him (in February 2010), the Act does not require or authorise his removal as per the recent amendments: s 197C(3), as noted above. This means he may face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant him a visa under s 195A of the Act, the Minister removes the bar, and he can apply for a further protection visa or he acquires a right to enter and reside in another country.

6. As it considers the prospect of indefinite detention likely in the applicant’s case, and the possible separation from his Australian citizen wife and dependent children, the Tribunal gives this factor significant weight against cancelling the applicant’s visa.

7. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): In his written submission to the Tribunal, the representative states that if the applicant has to return to Iraq – a country where he has never been and has no relatives, family or other support – it will be very difficult to find a job and earn a living, which will put him and his family in a very tough situation. The representative makes the following key points:

   ·It will be difficult for the applicant to obtain Iraqi documents and an Iraqi passport.  The fact he is an Iraqi citizen by operation of law does not mean he will be automatically issued Iraqi identity documents as he needs to prove he is an Iraqi national on the basis of his father’s Iraqi citizenship. Country information[14] indicates the various documents required to apply for an Iraqi passport, including a national ID (NID) card, Iraqi nationality certificate and proof of residence. Additionally, he states that in order to apply for an Iraqi travel document from the Iraqi Embassy, the applicant must submit a NID card and/or Iraqi nationality certificate which may not be possible because his details have not been registered in the family registry of the Iraqi government (as acknowledged by the delegate). 

   ·The process of establishing that the applicant is an Iraqi national is complex and may take several years. According to the applicant, it is unlikely for a person born outside of Iraq to establish his Iraqi nationality without being present in Iraq. Being eligible for Iraqi citizenship on the basis of one’s father is something, having established your Iraqi lineage in practice is something else, he notes, adding that it is a long process, requires a person to provide several documents, most of which have to be retrieved from government departments in Iraq, which may take several years, and requires him to be present in Iraq. Additionally, on a practical basis, it is unlikely the applicant would be issued Iraqi documents in Australia.

   ·If deported to Iraq on an Australian temporary travel document, which requires the Iraqi government’s confirmation that he has permission to enter Iraq, the applicant will face significant difficulties for a long period to obtain a NID card, nationality certificate and proof of residence. An Iraqi NID is important for all contact with authorities, health care, social welfare services, and schools. Also, he does not have any relatives or family to support him on return to Iraq – where he has never lived, and where there are ongoing security problems.  If he had to return there, he and his family would face a very difficult situation, including difficulties in finding a job and earning a living. 

   [14] Landinfo, County of origin information centre, Report Iraq: Travel documents and other identity documents, 23 January 2014.

8. It has also been submitted that the applicant has in the past, and in some ways continues to experience some mental health problems. According to information contained in a letter from his treating psychologist [Dr G], dated 25 August 2022 provided to the Tribunal the applicant has reported anxiety and depression, and obsessive-compulsive disorder (OCD) symptoms. After some therapy sessions in August 2021 and more recently in July and August 2022, [Dr G] said they terminated therapy as he reported no progress. At hearing the applicant said he no longer sees the psychologist on a regular basis but will call her if he feels he needs to. He said he is trying to stay positive. The Tribunal accepts the applicant has experienced anxiety, depression and OCD in the past for which he obtained treatment. 

9. The Tribunal has had regard to these submissions and the applicant’s oral and written evidence (as well as the letters provided from his treating psychologist) when considering the level of possible hardship that may be caused to the applicant and his Australian citizen partner and children if the visa is cancelled. It accepts that if he leaves Australia without them (and/or is detained for an indefinite period) that would cause emotional and financial hardship for his partner and their three young children, as discussed earlier. Having lived in Australia for over 12 years, it is likely to be difficult for the applicant to leave and readjust to life in Iran and/or try and establish life in Iraq where he has never been and has no family or other support. If he leaves with his partner and their children, the Tribunal notes [Ms A’s] oral evidence that she has family members in Iraq whom she is close to and they could offer some support, at least initially. Nonetheless the adjustment for all of them is likely to be difficult and uncertain, particularly given the applicant has no work experience in Iraq (or contacts), along with ongoing security concerns, and the related humanitarian situation described as severe in many parts of the country.[15]

   [15] UK Home Office, Country Policy and Information Note, ‘Iraq: Humanitarian situation’, August 2022.

10. Having regard to these considerations the Tribunal accepts the cancellation of the applicant’s visa, resulting in the detention of their father or return to Iran/Iraq, is likely to cause the applicant and his partner and children severe hardship. Accordingly, the Tribunal gives these considerations significant weight towards not cancelling the visa.

    Exercise of discretion

11. The Tribunal has carefully considered the above factors, some of which are in favour of cancelling the visa, others against. The Tribunal has found the applicant provided incorrect information at the protection visa stage about his and his family members citizenship status and obtained a favourable migration outcome as a result. He partially maintained this in response to the NOICC. Although speculative to some degree, the Tribunal doubts the applicant would have been granted protection if the correct information had been known at the time.    

12. However, weighed against this (and other considerations) are the Tribunal’s findings that leaving his three young (Australian citizen) children in Australia and his (Australian citizen) partner would be in breach of the family unity principles as required in the CRC, or taking them to Iraq with him would not be in their best interests, as required in the CRC. As well, the applicant appears to have worked hard to establish his life in Australia for around 12 years, which is a significant period of time. For the past three years he has been a father figure to two young Australian citizen girls, who apart from their mother have no other family support in Australia. The Tribunal has also accepted the applicant could face significant difficulties and hardship on return to Iraq.

13. Additionally, prolonged detention may occur in the applicant’s case if his visa remains cancelled. This is of particular concern, given this would likely result in his separation for an indefinite period of time from his young (Australian citizen) children – including a newborn - who are financially and emotionally dependent on him. Also, his stepdaughters aged six and nine have already experienced traumatic loss of their biological father, in 2020.  

14. 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 not be cancelled.

    decision

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Nicole Burns
    Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)     stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)     requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)     having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.