2107214 (Migration)

[2021] AATA 5463

2107214 (Migration) [2021] AATA 5463 (29 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107214

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 10:59am

CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–applicant had given incorrect information – applicant’s claimed status as a stateless person was not supported by the information provided by the Iraqi officials – applicant is a national of Iraq – 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 – best interests of the children – mental health – 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 claims to be a stateless person, born in Iran. He was granted a 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) as the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 27 May 2021. 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.

   Primary decision

8. 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 he stated that

   ·he was a stateless Faili Kurd born in Iran,

   ·his parents were born in Iraq and were deported to Iran in 1973. After his eldest brother was born, they were deported back to Iraq and when his mother was pregnant with him, the Iraqi government again deported the family to Iran,

   ·he held a Green Card, which was later replaced with a White Card, which he did not renew after he turned 18 and he holds no other identity documents. He attempted to renew his White card but he was not issued one by the Iranian authorities,

   ·he had no right to education, employment or freedom of movement as a stateless Faili Kurd. He was denied access to health insurance and was unable to obtain a driver’s license,

   ·his relatives were denied rights in Iraq as they were considered to be Iranians. Iraq considered him to be in infidel and Iran considers him to be Kurdish,

   ·he was married to an Iranian citizen under Sharia law but their marriage certificate is not legally recognised and is not official due to his status as a stateless Faili Kurd. He had to pay a sum of money to get married, which is normally free of charge,

   ·he left Iran with the assistance of people smugglers using a false Iraqi travel document. He cannot go back to Iran because he is not recognised as a citizen and no longer holds a White card. He cannot go to Iraq because his family were deported to Iran on two occasions.

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

   ·he is not entitled to a citizenship or residence in any country and is stateless,

   ·he was issued with a Green card that was cancelled in 2003 by the Iranian authorities and replaced with a White card, which was used for identification purposes and to access certain services. Even though he was born in Iran, he is listed as an Iraqi citizen on the card,

   ·some of his siblings were born in Iraq and others in Iran. Several of his siblings were resident in Australia and his parents were living in an UNHCR camp in [Country 1] and were approved as refugees, as were some of his siblings,

   ·his wife is an Iranian citizen but they were unable to register the marriage with the Iranian authorities because he is an undocumented, stateless person,

   ·he completed only three years of primary school and stopped going to school when he was [age]. He worked with his father and later as [an occupation]. When he worked as a [occupation], his goods were seized by the council and he was fined,

   ·he left Iran because he is an undocumented stateless Faili Kurd and was not permitted basic rights such as education and employment. He was required to pay for medical treatment and was denied access to medical insurance as a stateless person,

   ·he fears returning to Iran as he would be detained at the airport due to being undocumented and he would be beaten and may be deported or killed. There is no place in Iran where he would be safe.

10. On 9 December 2010 the applicant was found to be a person to whom Australia owed protection obligations.

11. On 24 May 2011 the applicant made an application for a protection visa. The applicant gave his name and outlined his family composition. The applicant claimed that he was stateless and had no right to enter and reside in any country. The applicant referred to the statutory declaration he previously submitted in support of the RSA request. The applicant was granted the protection visa on 25 May 2011.

12. On 26 May 2015 the applicant made an application for the Australian citizenship. In October 2015 the applicant 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 the applicant’s claimed identity was not supported and, in particular, the Department did not accept that the applicant was a stateless person, as claimed. The primary decision record sets out the following information,

    ·the applicant’s mother and two siblings were interviewed separately and their evidence contradicts the information provided by the applicant in relation to his claims to being stateless,

    ·the applicant claimed that due to his status as a Faili Kurd, he was unable to obtain identity documents issued to Iraqi citizens. The applicant claimed that his father attempted to obtain Iraqi documents in 2005 but was not successful. The applicant states that he returned to Iraq for religious pilgrimage but did not attempt to obtain the Iraqi documents. The delegate notes that this evidence contradicts the evidence given by the applicant’s brother [Mr A], who was able to obtain the Iraqi citizenship certificate.

13. The primary decision record indicates that the Department holds an Iraqi citizenship certificate and an Iraqi marriage certificate issued to the applicant’s brother [Mr A]. The Iraqi citizenship certificate lists the same parents as those listed by the applicant. The document shows that [Mr A] obtained his Iraqi citizenship pursuant to Article 3 of the Iraqi Nationality Law, which relevantly states that a person is considered Iraqi if they are born to an Iraqi father or mother. This would indicate that the applicant’s parents were citizens of Iraq.

14. The delegate notes that the applicant’s mother stated in her identity interview that all the family obtained the Iraqi identity documents prior to their departure from Iran in 2008. The applicant’s mother [stated] that

    ·she and her children are Iraqi citizens. She outlined details of the steps taken by her husband to obtain the Iraqi citizenship for the family (including the applicant),

    ·her husband registered the applicant and all his siblings with the Iraqi authorities,

    ·all documents were officially and genuinely issued by the Iraqi authorities.

15. In November 2020 an official from the Iraqi Ministry of Interior, Civil Status Directorate, confirmed that based on their records, the applicant is a registered Iraqi citizen and had been issued with Iraqi identity documents from the proper directorates in Iraq. The Iraqi officials confirmed that the applicant and his immediate family members are Iraqi citizens by birth and there was no records that the applicant had lost his Iraqi citizenship, as he claimed in his protection visa application. The delegate noted that the applicant’s claimed status as a stateless person was not supported by the information provided by the Iraqi officials, as well as the Iraqi citizenship / marriage certificates held by his brother and the evidence of his mother, including the mother’s statement in her identity interview that the applicant was a documented citizen of Iraq prior to his departure from Iran in 2008.

16. In his response to the NOICC the applicant repeated the claims he made in his protection visa application and upon arrival. The applicant states that he was born in a refugee camp [and] that his parents were twice expelled from Iraq. The applicant states that he was a holder of a White card but was denied access to education and employment. The applicant states that he was not aware that he held Iraqi identity documents until receiving the NOICC and did not hold genuine Iraqi citizenship documents when he applied for the protection visa. The applicant’s father provided a statement in which he stated that he travelled to Iraq in 2006 and obtained the Iraqi citizenship for his children by bribing Iraqi officials but he did not tell his children that he had obtained Iraqi citizenship for them because the documents he received had errors in relation to their dates of birth and places of birth and he did not know if the documents would be considered genuine. The applicant states that he would need an Iraqi Nationality Certificate to have full rights in Iraq and an Iraqi ID does not afford the same rights. The applicant states that his father told him he obtained the Iraqi Nationality Certificate for him in 2012 by bribing the Iraqi officials but the applicant was not aware of it until he received the NOICC. The applicant notes that in 2011 when he travelled to Iraq, he used his Australian travel document and applied for a visa to travel, which confirms that he was not aware of the Iraqi documents.

17. The applicant states that his father obtained the Nationality Certificate in 2012, after he was granted the protection visa and that document incorrectly records his date and place of birth. The applicant refer this Green Card which refers to his place of birth as Iran and he claims that he cannot be an Iraqi citizen by birth. The applicant states that the Iraqi documents had been obtained through bribing Iraqi officials and are therefore of no value. The applicant claims these documents would not provide him with any safety or protection in Iraq, particularly as he was not born in Iraq and he claims the Iraqi government does not uphold basic human rights.

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

18. 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.

19. In his submission to the Tribunal dated 22 November 2021 the applicant states that the information he provided in his protection visa application was correct to the best of his knowledge and understanding. The applicant states that he was born in a refugee camp [and] lived in Iran for over 30 years before travelling to Australia. He was unaware that his father obtained the Iraqi identity documents until receiving the NOICC, he then approached his father and was informed by his father that he had obtained the Iraqi identity documents for the family by bribing the authorities. The applicant relies on the statement from his father which was submitted in response to the NOICC. The applicant also confirms that his father had obtained the Iraqi nationality certificate for him in 2012 by bribing the Iraqi officials but claims he was only made aware of this upon receipt of NOICC. The applicant states that he has never used these documents for any purpose, such as obtaining the Iraqi passport, and during his visit to Iraq in 2011 he used the Australian travel document and obtained the Iraqi visa (which he would not have done if he was aware of the Iraqi documents). The applicant submits that the circumstances of his travel to Iraq in 2011 is strong evidence that he was not aware of his status in Iraq at the time of the travel and to the best of his knowledge he did not provide incorrect information when applying for the protection visa.

20. The applicant states that obtaining the Iraqi citizenship through bribery is consistent with the country information and given the process, it is plausible that the Iraqi identity documents would reflect genuine details of Iraqi citizens. The applicant submits it is plausible that the Iraqi documents were fraudulently obtained and that does not contradict the information given by the Iraqi officials to the Department showing that he has been issued with the Iraqi identity documents by the proper authorities. The applicant submits that the Iraqi Nationality Certificate is not conclusive evidence that prior to the grant of the protection visa he was an Iraqi citizen. The applicant refers to another Tribunal decision in which the Tribunal found that the ground for cancellation did not arise because it could not be definitively stated that the applicant gave incorrect answers. The applicant confirms that he was a stateless Faili Kurd during the processing of his protection visa application.

21. The Tribunal finds the applicant’s evidence problematic. Firstly, the applicant claims that he did not know that his father obtained the Iraqi citizenship prior to the receipt of the NOICC and that his father did not tell anyone about obtaining documents, yet his mother and brother both indicated previously that they did have such citizenship, with the applicant’s mother claiming it was obtained in 2008 before their departure from Iran. The fact the applicant’s relatives were aware of the Iraqi nationality and claimed they were Iraqi nationals is strong evidence, in the Tribunal’s view, that the applicant would have been given the same information by his father. Secondly, the applicant claims the father bribed the officials and the Iraqi citizenship is not valid (or ineffective), yet the information in the primary decision record indicates that it was confirmed by the Iraqi officials. Not only was the fact of citizenship confirmed for the family including the applicant, but it was also noted that there was no record of the family losing their citizenship in the past, contrary to the applicant’s claims. Thus, if the applicant’s explanation is to be accepted, the father would have needed to bribe the officials to grant the citizenship to the family and also bribe the officials to alter their record to erase the past termination of the citizenship. The Tribunal considers it unlikely. Thirdly, and importantly, the primary decision record indicates that the applicant’s mother consistently stated that she and her children, including the applicant, were Iraqi citizens. In his declaration in response to the NOICC the applicant states that his mother is mistaken (his wife states in her declaration that this information is ‘entirely false’) and the family were deported from Iraq on two occasions but the applicant does not offer a meaningful explanation as to why his mother would be mistaken about the family’s status as Iraqi nationals other than by referring to his mother’s poor mental health. However, the Tribunal does not accept that the mere existence of health issues, including mental health, necessarily means that the applicant’s mother would make erroneous claims about the family’s citizenship. The primary decision record suggests that such claims were made in a meaningful and coherent way (i.e. that her husband travelled to Iraq, obtained the documents and requested the children to also travel to Iraq to obtain their own documents). The Tribunal is not prepared to dismiss such evidence on the basis of the applicant’s claim (which is accepted) that his mother is unwell.

22. It is also doubtful, in the Tribunal’s view, that the applicant claims he travelled to Iraq following the fall of Saddam Hussain to obtain Iraqi identity documents but was unable to obtain such documents, while his father seems to have been able to obtain the Iraqi documents in 2008 for the entire family.

23. In his response to the NOICC the applicant provided his wife’s document which does not record her marital status. He claims this is evidence that the marriage was not accepted. The Tribunal does not accept that submission as the failure to refer to the marriage on the document may be due to any number of factors and not necessarily the fact that the marriage was not recognised by the Iranian authorities due to the applicant’s stateless status. The applicant also claims in his evidence to the Tribunal that when he travelled to Iraq, he used the Australian travel document and obtained a visa, which he would not have done if he held the Iraqi nationality. Again, the Tribunal is of the view that there may have been any number of reasons why the applicant considered it preferable to use the Australian travel document to travel to Iraq and that evidence is not conclusive in establishing that the applicant did not hold the Iraqi citizenship. The Tribunal prefers other evidence outlined above, indicating that he did.

1. Ultimately, the Tribunal places greater weight on the information supplied by the Iraqi authorities which confirms that the applicant is a national of Iraq and is considered as such by the authorities. The Tribunal is unpersuaded by the applicant’s claims that the information is incorrect, or that the recognition of citizenship would be withdrawn, even if it was obtained through a bribe (a claim the Tribunal does not necessarily accept). The Tribunal also places weight on the evidence of the applicant’s mother and brother, as set out in the primary decision record, which confirms the applicant’s status as an Iraqi citizen. The Tribunal acknowledges the statement from the applicant’s father, provided in response to the NOICC, but considers that statement to have been provided to support the applicant’s visa issues. The Tribunal prefers the evidence of the applicant’s mother as there appears to have been no benefit for her to claim at that time that the family held the Iraqi citizenship. That is, the earlier statement is, in the Tribunal’s view, more truthful while the latter was provided to assist the applicant with the visa issues. 

2. The Tribunal finds that the applicant was a national of Iraq at the time he completed the application form and gave the answers on the application form. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. For the sake of completeness, the Tribunal notes that even if it was to accept the applicant’s evidence that he was unaware of his father’s actions and of his Iraqi citizenship, s. 100 of the Act provides that 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. The Tribunal finds that the applicant completed the form in a way that incorrect answers were given or provided and that there was non-compliance with s. 101 of the Act.

3. 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?

4. 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).

5. 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

6. The Tribunal has formed the view, for the reasons stated above, that the applicant was a national of Iraq and therefore, not a stateless Faili Kurd. This brings into question the basis of the applicant’s application for protection, including the hardship and discrimination he had experienced as a stateless person in Iran.

   The content of the genuine document (if any)

7. 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

8. The applicant stated in his application that he was a stateless Faili Kurd, that he was unable to obtain citizenship documents in Iraq or Iran and that as a result of his stateless status, he experienced various forms of harassment and discrimination, including limited opportunities for employment, education, healthcare and others. However, the Tribunal has formed the view, for the reasons set out above, that the applicant was a national of Iraq and therefore not a stateless person. Thus, the very basis of the applicant’s claims was untrue. The applicant did not merely claim that he experienced harm as a Faili Kurd living in Iran but rather that he experienced harm and discrimination as a stateless person. The stateless status was central to the applicant’s claims. The Tribunal finds that  the decision to grant the visa was based, in part but to a very significant extent, on incorrect information.

   The circumstances in which the non-compliance occurred

9. The applicant states in his response to the NOICC and written submission to the Tribunal that he was unaware of his Iraqi citizenship documents (or entitlement) and that the Iraqi nationality documents are invalid or ineffective because they were obtained through a bribe. The applicant claims that his father failed to inform him about obtaining the documents and he was unaware of these until receiving the NOICC. For the reasons set out above, the Tribunal does not accept that evidence. The Tribunal places greater weight on the fact that in their dealings with the Department, the applicant’s mother and brother both confirmed their status as Iraqi nationals, that the applicant’s brother presented his Iraqi nationality documents (and was therefore aware of his Iraqi nationality contrary to the applicant’s claims that none of his siblings knew) and his mother confirmed that in 2008 her husband obtained the Iraqi documents for the whole family, including the children.

10. The Tribunal is of the view that the applicant was aware of his Iraqi nationality at the time he made the application for the protection visa. The Tribunal therefore finds that the applicant had deliberately provided incorrect answers in his application and made claims about his stateless status to improve his chances of obtaining the visa. The Tribunal finds that the non-compliance was intentional and done knowingly. This weighs heavily in favour of the cancellation.

    The present circumstances of the visa holder

11. The applicant has two children born in [year] and [year]. The applicant’s partner and children reside in Australia (although his partner’s visa has also been cancelled).

12. The applicant refers in his declaration in response to the NOICC and his submission to the Tribunal to his various health issues including mental health issues. In his evidence to the Tribunal the applicant also refers to the medical reports and states that he has been diagnosed with a number of conditions including [medical conditions] and is receiving treatment. The applicant states that the cancellation of the visa would adversely affect his mental state and functioning and would affect his family and there would be hardship caused to him if he cannot access the relevant services in Australia. The applicant provided to the Tribunal a number of medical reports and the Tribunal accepts the professional opinions contained in these reports.

13. The applicant refers to the existence of extended family in Australia, including his parents and siblings, as well as his partner’s parents and siblings and claims that significant hardship would be caused to the extended family by the cancellation of his visa. In his submission to the Tribunal the applicant confirms that he has been living in Australia for over 11 years and has a spouse and two children, who were born in Australia and are Australian citizens. The Tribunal accepts that 11 years is a lengthy period and that the applicant has formed strong family, community and other ties in this country. The Tribunal accepts that the applicant and his family are well settled in Australia. The Tribunal also accepts that the applicant and spouse provide each other with various forms of support and share care responsibility for their children.

14. The applicant states that he cannot work due to the cancellation of the visa and relies on family members for financial support, causing him further hardship. The Tribunal is prepared to accept that evidence.  

15. Overall, the Tribunal accepts that the applicant has spent considerable time in Australia, that his immediate family live in Australia and that the applicant has not established residence in Iraq, despite being a national of that country. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the cancellation of the visa were to lead to the applicant having to depart Australia.

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

16. Nothing adverse is known about the ap ‘s behaviour concerning his obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

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

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

19. There are no known breaches of the law.

    Any contribution made by the holder to the community.

20. The applicant refers to his voluntary work for [Organisation 1] and he presented a supporting statement in response to the NOICC. In his submission to the Tribunal the applicant states that he has been a long term community member of [Organisation 2] and he provided a supporting statement to the Tribunal confirming his contribution. The applicant refers to his voluntary work at [a workplace] and presented to the Tribunal a statement from that organisation. The applicant also provided evidence of his involvement with [another] Organisation. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community through voluntary work and other community activities.

21. 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.

22. 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.

23. The applicant has two minor children who are Australian citizens. In his submission the applicant outlined the factors which he considers to be relevant to the present assessment. The applicant states that he bonded with his two children since their birth and they depend on him for financial, emotional and practical support. The applicant notes that he would not be able to care for his children if he does not hold an Australian visa. At present he has no right to work in Australia and is relying on relatives for financial support, and such support cannot extend indefinitely. The applicant notes that if his and his wife’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.

24. 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 his partner 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, there are particular difficulties in this case. The applicant’s evidence is that he has no right to return to Iran, where he lived prior to his travel to Australia and he has been found to be a citizen of Iraq, rather than Iran. If the applicant’s visa is cancelled, the family may have to live in Iraq, where the applicant had never established residence previously.

25. The applicant provided to the Tribunal country reports concerning the situation in Iraq. The 2020 DFAT report in Iraq states that

    The security situation in Iraq, while varying according to location, is highly unstable and fluid. Security incidents occur often and without warning, including rocket attacks, mortar attacks, attacks with improvised explosive devices (IEDs), grenade attacks, small arms fire, assassinations and kidnapping for ransom. Targets include government security forces, government offices, diplomatic missions, coalition and Iraqi military facilities, checkpoints, police stations, recruiting centres, airports and public transport centres, places of worship and religious gatherings, markets, non-government organisations, schools and universities, and civilian infrastructure.

26. The Tribunal thus accepts that it may be more dangerous for the children (and the entire family) to live in Iraq than in Australia.

27. The Tribunal also 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.

28. 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, therefore, that his visa should not be 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.

29. Several of the applicant’s relatives reside in Australia and his children are Australian citizens. In these circumstances, removal of the applicant may breach the principles of the family unity.

30. 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.

31. If the applicant's visa is cancelled, and if he 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 he 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 his 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 of the benefits and entitlements he 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).

32. The applicant states in his submission to the delegate that he was born in a refugee camp in Iran and has lived his whole life in Iran before travelling to Australia. The applicant states that he has no connection to Iraq. The applicant’s residence in Iran – and lack of connections to Iraq – have not been questioned by the delegate, nor undermined by a finding that the applicant is a national of Iraq. Thus, the Tribunal accepts that the applicant would have little, if any, links to Iraq. In such circumstances, the Tribunal accepts that it would cause the applicant and his family considerable hardship if the family were required to relocate to Iraq as a result of the visa cancellation.

33. The applicant also refers to his poor mental health (and other health issues) and claims that prolonged detention that may be caused by the cancellation, or his removal to Iraq may cause him hardship. The Tribunal accepts the evidence in the medical reports which suggests that removal from Australia may cause deterioration in the applicant’s health.

34. The applicant outlined in his written submission to the Tribunal the various forms of hardship that he and his family would experience if they are unable to remain in Australia. While the cancellation of the visa is not equivalent to removal from Australia, the Tribunal accepts that the applicant and his partner and Australian citizen children would experience considerable hardship if the visa is cancelled.

35. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant was a national of Iraq and that he was aware that his father had obtained the Iraqi documents prior to his arrival in Australia. That is, the Tribunal has formed the view that the applicant had deliberately provided incorrect answers in his protection visa application when claiming to be stateless and he continued to provide same untruthful information in his subsequent dealings with the Department and the Tribunal. The Tribunal has formed the view that the applicant failed to comply with s. 101 and that the breach was intentional and occurred knowingly. These factors weigh very heavily in favour of the cancellation.

36. Also strongly in favour of the cancellation is the fact that the decision to grant the visa was based, to a significant extent, on incorrect information. The applicant’s country of nationality was central to any assessment of Australia’s non-refoulement obligations and in this case, the applicant’s claims were made on the basis that he was stateless and experienced harm and discrimination as a result of his stateless status. The Tribunal has formed the view that  this information was not true. The fact that  the decision to grant the visa was based on incorrect information is a very strong factor in favour of the cancellation.

37. However, in the circumstances of this case, the Tribunal has determined to place greater weight on other considerations. Firstly, the Tribunal has determined that it is in the best interests of the two Australian citizen children to remain in Australia and due to their age, they cannot do so without the presence of their parents. That is, it is in the best interests of the children that the visa should not be cancelled and that is a primary (albeit not determinative) consideration. Secondly, the Tribunal has formed the view that significant hardship would be caused to the applicant and his family if they were to leave Australia. This is because they have lived in Australia for over 11 years and have formed strong family and community ties in this country and, more significantly, because they have not lived in Iraq and have no connections to that country. In such circumstances, relocation of the family to a new country is likely to cause severe hardship to the family.

1. The Tribunal also acknowledges that the applicant has made a contribution to the community and the Tribunal places some weight on the medical evidence concerning the applicant, which might exacerbate the hardship that he would experience as a result of his visa being cancelled.

2. Overall, the Tribunal has decided, in the circumstances of this case, to place greatest weight on the best interests of the applicant’s two children and the hardship that would be caused by the cancellation of the visa.

3. 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

4. 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