2106937 (Migration)

[2023] AATA 2224

2106937 (Migration) [2023] AATA 2224 (16 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rabiah Khawaja

CASE NUMBER:  2106937

MEMBER:Sean Baker

DATE:16 January 2023

PLACE OF DECISION:  Melbourne

DECISION: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.

Statement made on 16 January 2023 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in protection visa application – spelling of name – country of citizenship – consideration of discretion – grant of visa based partly on incorrect information – circumstances in which the non-compliance occurred – fear of persecution – indefinite immigration detention – mental health condition – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that there was non-compliance in the way described in the s 107 notice and decided that the visa should be cancelled. 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 was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. Extracts of the Act relevant to this case are attached to this decision.

7. 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?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss. 101(a) and (b) in the following respects, as set out in the decision of the delegate:

9. The applicant did not respond to questions in his protection application about whether he was known by any other names (the information that should have been provided, as conceded by the applicant, is that he is known as [applicant name] in his Pakistan identity documents, rather than [applicant name variant]), and he did not answer the question about his current citizenship (the information that should have been provided, as conceded by the applicant, is that his true country of citizenship is Pakistan).

10. The applicant provided incorrect information in his protection application where he stated that he left Afghanistan in 1980 due to a family feud in which his paternal uncle killed the applicant’s father, the applicant’s mother was consequently forced to leave the area with her brother, taking the applicant and his siblings with her to Iran. The applicant claimed he was subsequently deported from Iran in 1990 to Afghanistan where he remained for three days before relocating to Quetta, in Pakistan, where he resided illegally until his departure in 2009. The applicant conceded this information was incorrect because the applicant is a citizen of Pakistan as evidenced by his Pakistani CNIC and his Pakistani passport when read in conjunction with his Statutory Declaration dated 29 January 2020 where the applicant declared that he is a Pakistani national and not an Afghan national, he did not have any other identities and what was stated in his Pakistani Identity card is correct, that he had never been to Afghanistan and was born in Pakistan, Quetta.

11. I have carefully considered the information before me, and I find that there was relevant non-compliance as set out in the s. 107 notice. In making this finding I have had regard to the notice, to the applicant’s protection application, and to the information provided by the applicant in response to the s. 107 notice - in particular his statutory declaration which, when read with his Pakistani identity documents, which he has conceded are genuine, demonstrates that each of the matters particularised in the s. 107 notice are as set out in that notice.

12. 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.

    Should the visa be cancelled?

13. 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).

14. 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.

15. 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.

16. In addition to the information that the applicant provided to the Department during the cancellation process, I have before me more up to date information about the changes in the applicant’s circumstances. This information includes:

    ·An updated submission of the representative;

    ·A 12 January 2023 statutory declaration of the applicant;

    ·Updated country information;

    ·Evidence of medication;

    ·Letter from the Victorian [named] society dated 19 December 2022;

    ·Letter from [a named] Community Centre;

    ·Letter from [Dr A] dated 22 November 2022.

    the correct information

17. In this case, it has been conceded by the applicant, and accepted, that the correct information is that the applicant is and was a Pakistani citizen at the time of his Protection application, his correct name is [applicant name], and he was born in Pakistan and has not travelled to or lived in Afghanistan. In the response to the s 107 notice, the applicant said that he had provided the incorrect information because he was afraid of returning to Pakistan.

18. Whilst I appreciate the reasons the applicant decided to provide incorrect information, I consider that the provision of incorrect information is a serious matter, as the applicant himself averted to, and therefore I give no weight towards the visa not being cancelled in relation to this factor.

    the content of the genuine document (if any)

19. Not relevant in this 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

20. This factor is relevant to the Protection visa which the applicant held prior to the 155 visa.

21. The applicant has claimed that his Hazara ethnicity and Shia faith, and his life in Pakistan, all of which are not in dispute, were the basis on which his Protection visa was cancelled.

22. However, it is true that, as the applicant conceded, he decided to provide incorrect information about his country of origin and harm that he and his family had suffered and would suffer on return to Afghanistan. He also noted that in Pakistan he had suffered as an unlawful asylum seeker. All of this is incorrect. The protection visa was granted to the applicant after an assessment of his claims against Afghanistan as his country of reference. Even where events in Pakistan were considered, this was ancillary to the question of whether he would face a real chance of persecution on being returned to Afghanistan. The information that the applicant is a Pakistan citizen, and therefore that Pakistan may be the country of reference is directly relevant to the consideration. I find therefore that the decision to grant the applicant his Protection visa was based at least partly on the incorrect information that he was an Afghan citizen with no right to enter and remain in any third country and was living in Pakistan unlawfully.

23. I therefore give this consideration no weight in favour of the visa not being cancelled.

    the circumstances in which the non-compliance occurred

24. The applicant states that the spelling of his name and his birth date were innocent mistakes. He says that he claimed to have been born and lived in Afghanistan because he was very vulnerable when he arrived in Australia and he was told by the people smuggler and other asylum seekers to claim he was Afghan to strengthen his claims for protection. He states that his motivation to do so was because of his fear of being persecuted if he was returned to Pakistan.

25. It is relevant that the country information supports his claim to fear harm on return to Pakistan as a Hazara Shia.[1]

    [1] See DFAT Country Information Report Pakistan, 25 January 2022, and previous DFAT reports, which indicate the high levels of sectarian attacks directed towards Hazara in Pakistan and the difficult situation for those living in the Quetta enclaves.

26. I accept that the applicant would have felt himself in a very difficult situation and may have felt compelled to attempt to strengthen his claims by being untruthful. I accept that his fear of return to Pakistan, which on the country information is plausible, would have aced strongly on the applicant to accept the advice he was given by others at that time to provide the applicant to provide the incorrect information.

27. This does not excuse the very serious nature of the applicant having provided incorrect information. It does however provide what I consider to be a compelling context within which the non-compliance occurred. Although the case turned on other matters and was in the context of a s. 501 decision, I do find helpful O’Bryan J’s helpful summation of morality and character being a spectrum, and in particular that:

    The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.[2]

    [2] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [72].

28. I give this factor some weight towards the visa not being cancelled.

    the present circumstances of the visa holder

29. The applicant has now been living in Australia for 13 years. It would be fair to say that he is living in difficult circumstances. He was diagnosed with depression and anxiety in 2017 and his condition has gotten worse since his daughter passed away in 2019. He is medicated for depression, blood pressure and cholesterol. He states that when he remembers his daughter he cries a lot and gets very emotional and frustrated.

30. His wife and remaining children had applied for a partner visa to join him in Australia. This was refused in 2022 because the applicant was no longer a permanent resident.

31. Because of his visa situation and his fear of returning to Pakistan he was not able to travel to Pakistan for his mother’s or his daughter’s funeral.

32. His wife is also becoming depressed.

33. From the information before me the cancellation has had a profound impact on the applicant’s life. He speaks movingly of the things which have befallen him but also of his remorse for having not told the truth in his application.

34. The applicant has ties to Australia. He continues to be a member of the [named] Society Centre and the [named community] centre. He has made many friends through these activities.

35. the situation of the applicant appears to me to be acute. He has had to face difficult decisions about remaining in Australia despite the death of a child. His mental health has, I accept, worsened, partly because of these life events but also, I accept, as a result of the cancellation. He has some ties to Australia. The present circumstances of the applicant, given their significant compassionate elements and his significant mental health problems, do weigh against the visa remaining cancelled.

36. I therefore give this factor some weight in favour of the visa not being cancelled.

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

37. In his response to the s 107 notice the applicant disclosed the true information and at that time and since has, it appears to me, expressed genuine remorse for providing the incorrect information.

38. I give this factor a little weight in favour of the visa not being cancelled.

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

39. There are no other instances of non-compliance that I am aware of, and I give this factor a little weight in favour of the visa not being cancelled.

    the time that has elapsed since the non-compliance

40. The non-compliance occurred 13 years ago. It occurred in the context discussed above. As also discussed above, the applicant has expressed genuine remorse for his non-compliance. He has lived his life in Australia without causing detriment to the community and has engaged some ties with the community.

41. Given the period of time that has elapsed, and his behaviour in that span of time, I give this factor a little weight in favour of the visa not being cancelled.

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

42. There is no information before me that the applicant has breached the law since the non-compliance. I give this factor a little weight in favour of the visa not being cancelled.

    any contribution made by the holder to the community

43. As noted above, the applicant continues to be a member of the [named] Society Centre and the [named community] centre and makes contributions there. He has made many friends through these activities. I give this factor a little weight in favour of the visa not being cancelled.

44. 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.

45. Not relevant in this case.

    The best interests of any children

46. The applicant has four remaining children in Pakistan. While no information has been provided specifically about their interests, it is evident from other information provided that their best interests would be for their father, the applicant, to have his visa reinstated, and for them to have an opportunity to be reunited with him under another spouse visa application. I give this some weight towards the visa not being cancelled.

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

47. In relation to this factor I have had regard to the decision of the Tribunal (differently constituted) in 1901883.[3] That case helpfully discussed the amendments to the Act of ss 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to him prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to his removal, there being an intervening step.

    [3] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

48. But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, the corollary of the view expressed above that the applicant would not as a consequence be removed, necessarily indicates that cancellation may lead to prolonged detention. I have discussed this in more detail below.

49. Family unity has not been raised as a factor in this case, and cancellation would not affect any principle of family unity in relation to the applicant.

50. On the basis of the discussion above, neither removal in breach of Australia's non-refoulement obligations, nor family unity obligations would be directly engaged by the cancellation. I therefore give this factor no weight in favour of the visa not being cancelled because this factor does not impact on the situation of the applicant if the visa is cancelled or reinstated.

    whether there are mandatory legal consequences

51. If the visa remains cancelled, the applicant would be unlawful. As noted in the delegate’s decision, he is liable to s 46 and, as an Irregular Maritime Arrival, is barred under s 46A(1) from making an application for a further visa. He would be liable to immigration detention, and it is therefore a highly likely consequence. As noted above, he would not face removal as an immediate consequence, there being an assessment prior to removal.

52. The question then arises – would the applicant depart to Pakistan, and therefore not remain in detention? The country information referred to by his representative in both the response to the s. 107 notice and more updated information provided to me indicates that the applicant’s strong fear of return to Pakistan is founded on the available country information, including the assessment by DFAT.[4] I accept that this information means that the applicant would not voluntarily return, as he has demonstrated when he chose not to return for the funerals of his mother and child. I accept therefore that he faces the very real prospect of ongoing, indefinite detention if the visa remains cancelled. I have had regard to the position paper of the Royal Australian and New Zealand College of Psychiatrists on the serious mental health impacts of prolonged detention. I accept that prolonged detention would further exacerbate the applicant’s mental illness and distress. The continued cancellation therefore would lead to indefinite mandatory detention, which I accept would have a significant, serious impact on the applicant.

    [4] DFAT Country Information Report Pakistan, 25 January 2022, pp. 17 – 18.

1. I give this factor very significant weight in favour of the visa not being cancelled.

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

2. The applicant, as above, has suffered considerable hardship during and following the cancellation. Some of this hardship can be directly attributed to the cancellation, some can not. But it is clear from the information provided that the applicant has suffered. I give this factor significant weight in favour of the visa not being cancelled.

   Consideration

3. I have carefully assessed the applicant’s claims and his circumstances. I have set out above my considerations above and explained why I have weighted the factors. I have had careful regard to the findings of the cancellation delegate. However, the circumstances set out above differ in significant respects from those considered by the delegate.

4. The likelihood that the applicant would face long term, indefinite detention weighs most strongly against cancellation. When considered with his mental health this factor alone weighs so strongly against cancellation because the effects on the applicant of detention for a prolonged period would be, according to the information before me, profoundly adverse. Further weighing in favour of revocation is the compassionate circumstances of the applicant and the hardship he has experienced.

5. The reason for the breach here is serious. Generally, not being truthful in visa applications weakens the visa regime and may, at its most extreme, impact on community support for migrants and those owed protection being able to come to and live in Australia. I appreciate the importance.

6. However, in this case the very serious effect that continued cancellation would have on the applicant’s mental health, and the hardship he has and is experiencing, as well as the circumstances around his non-compliance as above overwhelmingly outweigh the decision to cancel.

   Conclusions

7. 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

8. 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.

   Sean Baker
   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.