2107213 (Migration)

[2021] AATA 5460

2107213 (Migration) [2021] AATA 5460 (29 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107213

MEMBER:Kira Raif

DATE:29 November 2021

PLACE OF DECISION:  Sydney

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 29 November 2021 at 5:42pm

CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information – applicant was aware of her husband’s Iraqi nationality – non-compliance was intentional – two minor children are Australian citizens – strong family, social, financial and other ties in Australia – over 11 years passed since the non-compliance – cancellation of the husband’s visa has been set aside – best interests of the children – decision under review set aside

LEGISLATION
Migration Act 1958, ss 100, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

CASES
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 (the Act).

2. The applicant is a national of Iran, born in [year]. She was granted the protection visa in May 2011 and a Resident Return visa (RRV) in November 2016. In March 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in relation to the review. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications 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.

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

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

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

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

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

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant arrived in Australia as an irregular maritime arrival on [date] June 2010. On 16 August 2010 the applicant participated in an entry interview in which she stated that

   -she was a citizen of Iran born in Ahwaz,

   -her husband is a stateless Faili Kurd who was undocumented and was persecuted as an undocumented stateless person,

   -her husband was not recognised as a citizen of Iraq or Iran, was denied an Iraqi birth certificate and had no right to work or study in Iran. His travel within Iran was restricted,

   -she cannot return to Iran because she would be persecuted under Sharia law on the basis of being a mother due to her unregistered marriage to her husband, who is a stateless person,

   -her husband would also be stateless due to her husband’s status as a stateless person.

10. On 27 August 2010 the applicant made a request for Refugee Status Assessment. She provided a statutory declaration dated 27 August 2010 in which she reiterated the claims set out above. Essentially, the applicant stated that

    -she is a citizen of Iran by birth,

    -she married her husband in a religious ceremony only as he is an undocumented Faili Kurd and they were unable to register the marriage as her husband does not hold a birth certificate,

    -she left Iran because her husband has no identity documents and their child would also be stateless if born in Iran. The child would have limited education and employment prospects in Iran,

    -she and her husband rarely ventured out due to the possibility that they could not stopped and asked for evidence of marriage by the Basij,

    -if she returns to Iran, she would be considered an unmarried mother by the authority and other people. She would experience discrimination and persecution as an unmarried mother under the Sharia law. She would not be safe anywhere in Iran.

11. On 9 December 2010 the applicant was found to be a person to whom Australia owed protection obligations. On 23 May 2011 the applicant made an application for a protection visa. The applicant referred to her partner and indicated that he was stateless. The applicant referred to the statutory declaration she previously submitted in support of the RSA request. The applicant was granted the protection visa on 25 May 2011.

12. The primary decision record indites that on 26 May 2015 the applicant’s spouse [Mr A] made an application for the Australian citizenship. In October 2015 [Mr A] attended an identity interview and was asked questions about his status in Iran and other information. The Department completed an Identity Integrity Assessment and concluded that his claimed identity was not supported. In particular, the Department did not accept that [Mr A] was a statement person, as claimed. The primary decision record indicates that in November 2020 Iraqi officials of the Iraqi Ministry of Interior, Civil Status directorate confirmed that based on their records, [Mr A] is registered as an Iraqi citizen and had been issued with Iraqi identity documents from the proper directorates in Iraq. It is noted that there is no record of [Mr A] losing his Iraqi citizenship. This would suggest that the applicant’s spouse was a citizen of Iraq when she made the application for the protection visa.

13. The primary decision record also indicates that under Article 3 of the Iraqi Nationality Law, a person is considered Iraqi if born to an Iraqi mother or father. This would contradict the applicant’s claim that her child would be stateless due to her husband being stateless.

14. In her response to the NOICC the applicant states that she and her husband were unaware that he holds Iraqi citizenship until receiving the NOICC. The applicant provided a statement from her father-in-law confirming that he obtained Iraqi citizenship for his children (including the applicant’s husband) when he travelled to Iraq in 2006 but did not tell his children about it because the identity documents contained errors and he was not sure if these would be considered genuine. The applicant sates that her husband did not have Iraqi documents at the time of their marriage in 2009 and they were not able to register the marriage so she is still considered single by the Iranian authorities. The applicant provided a copy of her birth certificate which does not refer to her marriage. The applicant states that when she provided answers in her protection visa application, these were correct to the best of her knowledge.

15. In her written submission to the Tribunal of 24 November 2021 the applicant also states, essentially, that she was unaware of her husband’s Iraqi nationality until the receipt of the NOICC and it was only at that time that her father-in-law told them about acquiring the Iraqi papers. The applicant submits that to the best of her knowledge, her husband was a stateless Faili Kurd.

16. The circumstances relating to the applicant’s husband and his nationality, and the Tribunal’s reasoning with respect to the couple’s claims, are set out in a separate Tribunal decision relating to the applicant’s husband and need not be repeated here. Essentially, the Tribunal has formed the view that the applicant’s husband was a national of Iraq and was aware of his Iraqi nationality because that information was confirmed not only by the Iraqi authorities but also by [Mr A]’s mother and brother. The Tribunal is thus of the view that the applicant was aware at the time she completed the application form that her husband was a national of Iraq.

17. The Tribunal also notes that under s. 100 of the Act, 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.

18. The Tribunal finds that [Mr A] was a national of Iraq when the application was made. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given or provided in relation to [Mr A]’s nationality and the various claims that arose from his claimed stateless status. 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?

19. 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).

20. 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

21. The correct information is that [Mr A] was a national of Iraq when the application was made. That would mean the applicant’s child would not be stateless.

    The content of the genuine document (if any)

22. 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

23. The applicant’s claims were based, essentially, on the fact that her partner was a stateless person. The applicant refers to experiencing various forms of discrimination, such as inability to register her marriage, to move outside freely with her husband, the fact that their child would be considered stateless, and others. However, the Tribunal has formed the view that the applicant’s husband was an Iraqi national and therefore not a stateless person. The Tribunal finds that the decision to grant the visa was based, in part but to a significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

24. The applicant submits that neither she nor her husband were aware of his Iraqi nationality before receiving the NOICC and believed they provided truthful information in their applications. For the reasons set out in the related decision with respect to the applicant’s husband, the Tribunal has rejected that evidence. The Tribunal has formed the view that [Mr A] was informed of his nationality by his father, as both his brother and mother were aware of it. The Tribunal thus finds that  the applicant’s husband, and in all likelihood, the applicant were aware of these circumstances when applying for the protection visa. The Tribunal has formed the view that they provided incorrect answers knowingly.

    The present circumstances of the visa holder

25. The applicant addressed her present circumstances in her response to the NOICC and her written submission to the Tribunal.

26. The applicant’s two minor children are Australian citizens and evidence of their citizenship is before the Tribunal. the applicant refers to providing emotional, physical and financial support to the children and the Tribunal accepts that evidence. The applicant states that if her visa is cancelled, she would not be able to support her children. the applicant also states that she has not been able to work after the cancellation of her visa and relies on relatives for financial support but such support cannot continue indefinitely.

27. The applicant refers to the purchase of land and states that the family planned to build a family home. The applicant provided to the Tribunal evidence relating to her past employment and several statements of support from work colleagues and others. the Tribunal accepts that evidence and accepts that the applicant is well regarded by others.

28. The applicant refers to the length of her residence in Australia. The Tribunal accepts that the applicant is well settled in the community and has strong family, social, financial and other ties in Australia. The Tribunal also acknowledges that the applicant’s parents and siblings live in Australia and is mindful that the cancellation of her husband’s visa was set aside. Generally, the Tribunal accepts that considerable hardship would be caused to the applicant and her family if her visa is cancelled. The Tribunal acknowledges the applicant’s submission that hardship would also be caused to her parents due to possible separation from the grandchildren.

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

29. Nothing adverse is known about the applicant’s conduct.

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

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

    The time that has elapsed since the non-compliance

31. The application was made in May 2011 and approximately eleven and a half years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

32. There are no known breaches of the law.

    Any contribution made by the holder to the community.

33. The applicant refers to her study and employment as [an occupation], stating that she wishes to operate her own business. The applicant provided a number of statements from colleagues and university lecturers relating to her various community activities. the Tribunal accepts, having regard to that evidence, that the applicant has made a contribution to the community.

34. 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.

35. There are no persons whose visas would be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

36. The applicant has two minor children who are Australian citizens. In her submission the applicant outlined the factors which she considers to be relevant to the present assessment. The applicant states that the children depend on her for financial, emotional and practical support. The applicant notes that she would not be able to care for the children if she does not hold an Australian visa. At present she relies on relatives for financial support, and such support cannot extend indefinitely. The applicant notes that if her and her husband’s visas are cancelled, the children would have to leave Australia due to their ages and would be unable to take advantage of their Australian citizenship.

37. The Tribunal accepts that the children are Australian citizens who have lived their entire lives in Australia and are used to the Australian way of life. While the Tribunal acknowledges the delegate’s reasoning that the cancellation of the applicant’s visa would not affect the children’s status, the Tribunal accepts that if the applicant and her husband do not hold Australian visas and cannot remain in Australia, the practical repercussion is that the children would have to leave Australia with their parents. In normal circumstances, the Tribunal would be of the view that it is in the best interests of a child to remain with their parent and that this need not occur in Australia. That is, as long as the family unit remains intact, the children can live in any country. However, the Tribunal notes that  in this case, the cancellation of the husband’s visa has been set aside by the Tribunal and in such circumstances, if the applicant’s visa remains cancelled, it may lead to the break-up of the family unit. The Tribunal also notes that  the applicant and her husband are nationals of different countries, which may lead to some difficulties in their resettlement in any country in the future.

38. The Tribunal accepts the applicant’s evidence that the children’s Arabic is limited at best, that they are used to the Australian education system and they may have limited access to other benefits such as healthcare, government financial support if they were to live in Iraq or Iran.

39. Overall, and having regard to the particular circumstances of this case, the Tribunal accepts that it is in the best interest of the children to remain in Australia and given their ages, the children will require the presence of their parents in the same country. That is, it is in the best interests of the children that the applicant be permitted to remain in Australia and that  the family unit remains intact. The Tribunal finds that it is in the best interests of the two children that the applicant’s visa is not cancelled. It is a primary consideration.

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

40. Several of the applicant’s relatives reside in Australia, her children are Australian citizens and her husband is a permanent resident of Australia. In these circumstances, removal of the applicant may breach the principles of the family unity.

41. For the reasons set out in the Tribunal matter 1901883, it may not be necessary for the Tribunal to determine whether protection obligations arise in this case as such matters would be considered, should consideration be given to the applicant’s removal from Australia. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation. However, the Tribunal acknowledges that these considerations are relevant to its decision, particularly in terms of hardship that may be caused to the family by the cancellation of the visa. These matters are addressed elsewhere in this decision.

    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.

1. If the applicant's visa is cancelled, and if she is not granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. The applicant can make applications for certain visas in Australia without the Ministerial intervention but she would have very limited opportunities to do so. (The Tribunal is mindful that many restrictions would arise due to the applicant's mode of arrival in Australia rather than due to the cancellation of her visa.) The applicant can make applications for visas offshore but he may be subject to an exclusion period in relation to some such applications. If the visa is cancelled, the applicant would lose some o6 the benefits and entitlements she had acquired 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).

2. These are addressed elsewhere in this decision. Essentially, the Tribunal accepts that considerable hardship would be caused to the applicant and her family if the visa is cancelled.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there was non-compliance with s. 101 of the Act and that there are grounds for cancelling her visa.

4. The Tribunal considers there are strong reasons in favour of the cancellation. In particular, the Tribunal has formed the view that the applicant was aware that her answers were incorrect and therefore, non-compliance was intentional. The Tribunal also considers it significant that the decision to grant the visa was based on incorrect information. These factors weigh in favour of the cancellation 

5. However, the Tribunal has determined that other factors warrant greater weight. In particular, the Tribunal has formed the view that cancellation of the visa would not be in the best interests of the applicant’s two children. This is because the children are Australian citizens whose preference is to remain in Australia and their father is a holder of a permanent visa. The applicant may be restricted from making other visa applications onshore due to the mode of her arrival, so that the cancellation of her visa may result in the breakup of the family unit. The Tribunal also considers the fact that the applicant and her husband are nationals of different countries may cause some hardship if they were required to establish residence in another country. The Tribunal accepts that considerable hardship would be caused to the applicant and her family by the cancellation of the visa. The Tribunal places weight on the fact that the applicant’s parents and siblings (as well as spouse and children) reside in Australia and on the contribution the applicant has made in Australia and her links to this country. All these factors weigh against the cancellation and, in the circumstances of this case, the Tribunal has determined that they outweigh other considerations.

6. 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 note cancelled.

   DECISION

7. 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.

   Kira Raif
   Senior Member