2108796 (Migration)

[2021] AATA 5013

2108796 (Migration) [2021] AATA 5013 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108796

MEMBER:Kira Raif

DATE:6 December 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 06 December 2021 at 11:27am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – citizenship – not stateless Faili Kurd but Iraqi citizen – father registered family in Iraq shortly before applicant departed from Iran – registration confirmed by Iraqi authorities – discretion to cancel visa – application completed by sister and applicant claims to have been unaware of citizenship – study, work and family and community ties – Australian citizen wife and child – cannot apply for partner visa onshore – wife’s mental health and treatment – best interests of child – primary caregiver and close relationship – non-refoulement and possibility of indefinite detention – has never lived in country of citizenship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 107(1), 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASE
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 claimed to be a stateless person, born in February 1985. He was granted the Resident Return visa (RRV) in June 2018. In June 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with s.101 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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 [in] March 2010. On 4 April 2010 the applicant participated in an entry interview in which he stated that

   -he was a stateless Faili Kurd born in Iran,

   -he left Iran because he had no rights to education, employment, property ownership or freedom of movement as a stateless Faili Kurd,

   -he was attacked by an off-duty police officer and stabbed when trying to defend himself. On another occasion he was assaulted and arrested for talking to a girl and had to pay a bribe to be released,

   -he is not recognised as a citizen of Iran because he is a stateless Faili Kurd. He is considered to be Iraqi and he was told to leave Iran,

   -he never attempted to obtain identity documents from Iraq but his parents may have tried to get identity documents from Iraq and Iran. He is not sure what the outcome was,

   -he no longer holds a White Card and is not recognised as a citizen, so he has no legal rights in Iran,

   -he cannot go to Iran as he fears for his safety.

10. On 15 May 2010 the applicant made a request for Refugee Status Assessment. He provided a statutory declaration dated 8 May 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,

    -as a Faili Kurd, he was denied basic rights such as healthcare, employment and identification, which affected his life. He did not have a stable place to live and could not rent property. He could only attend school for a few years and suffered discrimination. The authorities mistreated him with impunity. Faili Kurds are considered to be Iraqis and are exploited by employers as they have no right to work. he worked on a casual basis and experienced hardship,

    -he was required to remain in his district because he had no documents and could not move freely within Iran. There would be serious consequences if he came to the attention of the police.

    -The applicant described occasions when he was stabbed by a police officer and another attack. 

11. On 26 July 2010 the applicant was found to be a person to whom Australia owed protection obligations. He made an application for the protection visa on 2 November 2010. In that  application 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 3 November 2010.

12. On 18 November 2015 the applicant made an application for the Australian citizenship. 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.

13. The delegate notes that the applicant’s mother stated in her identity interview 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.

14. 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 and had been issued with Iraqi identity documents from the proper directorates in Iraq. There was no record that the applicant had lost his Iraqi citizenship, as the applicant 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.

15. In his response to the NOICC the applicant concedes that he had not complied with s. 101 of the Act. The applicant stated that the application was made by his sister as the primary applicant and the sister submitted all the claims on his behalf. The applicant states that he was born in Iran as a stateless Kurd and his parents did not disclose his Iraqi citizenship. The applicant states that his father obtained the Iraqi citizenship but did not inform his children about it because he thought the documents may be non-genuine. This evidence is supported by a statement from the applicant’s father.

16. In his submission to the Tribunal of 1 December 2021 the applicant submits that he answered the questions at the interview to the best of his knowledge. The applicant states that he entered Australia without identity documents and his family did not give him information concerning his Iraqi citizenship. The applicant states that in 2021 he contacted his father for proof of Iraqi citizenship, which he needed in support of his Australian citizenship application and his father gave him the Iraqi citizenship document which contained errors. The applicant states that he has no recollection of being told he was a citizen of Iraq as he was born in Iran and visited Iraq once a child.

17. In his oral evidence, the applicant states that he was very young when he arrived in Australia and did not know anything. At the time of his interview, he spoke to his parents and his parents told him that he was stateless and he did not know that his father obtained the Iraqi citizenship. The applicant could not explain why his brother knew about the Iraqi nationality. He suggested that as a youngest one in the family, nobody shared anything with him.

18. The Tribunal finds the applicant’s explanations unpersuasive. This is because according to the information in the primary decision record, the applicant’s brother did claim to be a citizen of Iraq, which contradicts the applicant’s evidence that his father never told the family about the Iraqi citizenship. It is also significant, in the Tribunal’s view, that the applicant’s mother in her citizenship interview also confirmed that the family held Iraqi citizenship and she appeared to be familiar with the steps her husband had taken to register the family. The applicant’s mother indicated that the Iraqi nationality papers were officially and genuinely issued, again contradicting the applicant’s (and his father’s) evidence that due to errors, they believed the documents to be non-genuine. The Tribunal also places weight on the fact that  the applicant’s Iraqi nationality had been confirmed by the Iraqi authorities. On the basis of all that evidence, the Tribunal finds that the applicant was a national of Iraq at the time he made the application for the protection visa. The Tribunal thus finds that the applicant gave an incorrect answer on the application form (and attached statements) when he claimed to be stateless.

19. The Tribunal acknowledges the applicant’s evidence that his sister completed the forms and made the claims on his behalf but under s. 98 of the Act the applicant is taken to have completed the form even if it was completed on his behalf. The applicant also claims that he was unaware of the Iraqi nationality and completed the forms to the best of his knowledge. The Tribunal does not accept that the applicant was unaware of the Iraqi nationality, having regard to his brother [Mr A]’s apparent knowledge of it, as well as his mother’s familiarity with the process. In any case, s. 100 confirms that an answer may be incorrect even if the person who gave it did not know it was incorrect.

20. The Tribunal has found that the applicant was a national of Iraq when he completed the application form. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. 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?

21. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

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

    The correct information

23. The correct information is that the applicant was a citizen of Iraq. He was therefore not stateless when applying for the protection visa.

    The content of the genuine document (if any)

24. This is not relevant to the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

25. The applicant’s country of nationality was central to the assessment whether he was entitled to the protection visa. In this case, the applicant’s claims were specifically in relation to his status as a stateless person. The applicant claimed that he suffered various forms of discrimination and hardship as a result of his statelessness and he claimed he had no right to live in any other country. That is, the applicant’s statelessness was central to his claims. The Tribunal has found that the applicant was not a stateless person, although his mother’s evidence suggests that the father registered the family in Iraq in 2008 and if true, that would suggest that the applicant may have lived in Iran as a stateless person until shortly before his departure from Iran. Nevertheless, the Tribunal is satisfied that by the time the applicant made his application for the protection visa, he was a national of Iraq and therefore had a right to enter and reside in Iraq. That would have been highly significant to the decision to grant him the visa. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant degree, on incorrect information.

    The circumstances in which the non-compliance occurred

26. The applicant submits that the application was made by his sister. The applicant submits that he was not aware that he held Iraqi citizenship and his father did not tell him that he had obtained the Iraqi citizenship. The applicant submits that as the youngest person in the family, nobody told him anything and he was not told about the Iraqi citizenship. The applicant concedes that while he did provide false information to the Department, he was not aware of it as he believed he had no citizenship since he was a child in Iran. For the reasons stated above, the Tribunal does not accept that  by the time the application for the protection visa was made, the applicant was unaware of his Iraqi nationality.

27. The applicant claims he was too young to understand what was going on and did not understand the Australian laws. The Tribunal does not accept that at the age of [Age 1], when the applicant made the application for the visa, he was too young to understand the concept of nationality. Neither does the Tribunal consider that the applicant’s claimed lack of knowledge of the Australian law justifies the breach. The issue here is not the Australian laws but the applicant’s personal circumstances such as his nationality. The Tribunal does not consider that  any knowledge of the law is required to appreciate the need for truthful answers when applying for a visa.

    The present circumstances of the visa holder

28. In his response to the NOICC and his evidence to the Tribunal the applicant states that he has been married since 2016 and has a [Age 2] year old child. (The applicant provided to the Tribunal a copy of his marriage certificate.) The applicant states that he is the primary carer for his daughter when she is at home, as his wife works, and the child is attached to him. The applicant states that his wife and daughter would suffer hardship if he is deported as they would have to close their business and lose their livelihood and he would not be able to contribute to the care of his daughter. The applicant states that his wife and daughter depend on him emotionally and mentally. The Tribunal is prepared to accept that evidence.

29. The applicant states that he had completed various courses (he presented evidence of these with his response to the NOICC) and has been an active member of the society. He and his wife manage a [shop] since 2018. The applicant provided to the Tribunal evidence of his employment, including his payslips and a reference from his employer. The Tribunal accepts that the applicant is employed and is well regarded by his employer.

30. In his evidence to the Tribunal the applicant refers to his community involvement and the Tribunal accepts that evidence. The applicant states that his siblings live in Australia and are Australian citizens or permanent residents in Australia but he has little contact with most of his family members.

31. The applicant provided to the Tribunal a letter from GP relating to his wife. The Tribunal is prepared to accept the professional opinion in that letter but in the Tribunal’s view, the doctor has gone much further than present his professional opinion, as he refers to the applicant’s qualities as husband and father and his work ethic. With respect, these are not matters to be determined by a health professional.

32. The applicant submits that due to his arrival as an IMA, he cannot apply for a Partner visa onshore and would have to make an application for the visa offshore. The applicant claims that an offshore application would cause him and his family hardship because it would result in him being separated from his family and such separation may be for a lengthy period due to the visa processing period. It would be difficult for his family to follow him because his daughter would start school next year and also because of their business commitment. The applicant states that his wife and daughter need him. The Tribunal accepts that if the applicant was to leave Australia in order to make the application for the Partner visa, this may result in a lengthy separation of the applicant and his partner and child. The Tribunal accepts that significant hardship would be caused to the applicant and his family if the visa is cancelled if the cancellation is to lead to the removal of the applicant from Australia or his voluntary departure.

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

1. Nothing adverse is known about the applicant‘s obligations under the Act.

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

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

   The time that has elapsed since the non-compliance

3. The application was made in November 2010. Eleven years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period and that the applicant has formed significant ties to this country.

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

4. There are no known breaches of the law and the applicant states that he has not committed any offences during his residence in Australia and when living in Iran and that he is a law abiding citizen.

   Any contribution made by the holder to the community.

5. The applicant refers to working as in interpreter in Arabic communities, helping refugees and others. The applicant refers to his voluntary food delivery during Covid lock-downs. The applicant provided to the Tribunal letters of support from a number of organisations and the Tribunal accepts that the applicant has made a contribution to the community through his involvement in these organisations. The applicant also refers to his employment at [Employer 1] and the contribution he has made to the business. The Tribunal accepts that  evidence.

6. 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.

7. 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.

8. The applicant has a minor child who is an Australian citizen. The applicant provided to the Tribunal a copy of his daughter’s Australian passport. The applicant states that if his visa is cancelled, he cannot apply for a Partner visa onshore due to the mode of his arrival, and he would have to make the application offshore, which may result in a lengthy separation from his child. The applicant states that his daughter needs him and he is the primary caregiver to his child, given his wife’s work commitments. This is consistent with the oral evidence of the applicant’s spouse. The Tribunal is prepared to accept that it is in the best interests of the child to be with both parents. The Tribunal accepts that the child’s mother is also an Australian citizen who has various commitments in Australia which would make it difficult for them to leave the country. The applicant refers to the unsafe conditions outside of Australia and states that he would not wish to subject his wife and daughter to such conditions. The applicant’s evidence is that  if his visa is cancelled, he may have to apply for a Partner visa offshore and that would result in him having to leave Australia, and be separated from his daughter, for a number of years. The Tribunal accepts that the applicant has a close relationship with his daughter and also accepts that due to a variety of factors, if the applicant was to leave Australia, his partner and child are unlikely to travel with him. That is, the cancellation of the present visa is likely to lead to separation between the applicant and his daughter. The Tribunal is of the view that it is in the best interests of the child not to be separated from her father and, therefore, 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.

9. Several of the applicant’s relatives, including his wife and child, as well as siblings, reside in Australia. In these circumstances, removal of the applicant may breach the principles of the family unity.

10. The applicant has had a protection finding previously made in relation to him. For the reasons set out in the Tribunal’s decision 1901883, the Tribunal finds that it is unnecessary to consider this further in this case as the applicant would not be removed from Australia and therefore, Australia’s non-refoulement obligations would be breached. The Tribunal acknowledges other hardship – which may include lengthy detention – which may arise as a result of the cancellation and this has been 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.

11. If the applicant's visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and would be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia and offshore without the Minister's intervention although he may be subject to an exclusion period in relation to some visas and will have very limited opportunities to make visa applications onshore. If the applicant cannot be removed from Australia due to the previous assessment of the applicant being owed protection obligations, and if the applicant cannot be granted another visa due to his arrival as an IMA, the applicant may be subject to lengthy or even indefinite detention. The cancellation of a permanent visa would result in the applicant losing certain benefits that he had acquired and may have been entitled to as a permanent resident of Australia.

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

12. In his submission to the Tribunal the applicant refers to his wife’s poor mental health which has been affected by the cancellation of his visa. The applicant states that this wife has been seeing a psychologist and is prescribed medication for depression. The applicant states that his wife relies on him as a primary carer for their daughter. The applicant submits that his wife’s business and family would suffer if he is not present. They cannot relocate to another country and will have no income. Their child was born in Australia and has not lived in any other country and it would be detrimental on her development and well-being if she was required to leave Australia. The Tribunal is prepared to accept that evidence, although the Tribunal is mindful that there is no requirement for the child to leave Australia.

13. The applicant refers to the presence of his family in Australia, including his and his wife’s parents and siblings and other extended family. The applicant states that  it would be difficult for him to relocate and be away from his family and social connections. The Tribunal accepts that if the applicant was required to leave Australia, this may cause considerable hardship to him and his family.

14. The applicant told the Tribunal that he has no papers to remain in Iran and would have to return to Iraq where he has never lived and has no connections to this country. The Tribunal accepts that the applicant has no connections to Iraq, where he has never lived before, and the applicant claims he no longer has a right to live in Iraq. The Tribunal also acknowledges that the cancellation of the applicant’s visa may result in the applicant being detained in Australia for a lengthy period while an offshore application for a Partner visa may result in the applicant being separated from his wife and young child. The Tribunal accepts that these matters may cause considerable hardship to the applicant and his family.

15. The applicant’s partner has given evidence to the Tribunal about the close relationship they have and the support the applicant has provided to her and others in the community. She refers to the close relationship the child has with her father. The Tribunal accepts that evidence.

16. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has not complied with s. 101 of the Act and that there are grounds for cancelling the visa. The Tribunal has not accepted the applicant’s explanation that he did not know about the Iraqi nationality and considers it significant that the incorrect answer was central to the decision to grant him the visa. The Tribunal considers there are strong reasons why the visa should be cancelled.

17. However, in the circumstances of his case, the Tribunal has decided to place greater weight on other considerations. In particular, while the applicant has the option of seeking a Partner visa, he cannot make that application onshore and would have to leave the country. This would result in the applicant being separated from his wife and child, potentially for a number of years. The Tribunal acknowledges that it is in the best interests of the child not to be separated from her father and the Tribunal also accepts that considerable hardship would be caused to the family due to the various other commitments they have in Australia, including the business. The Tribunal also acknowledges the medical evidence in relation to the applicant’s spouse. The Tribunal acknowledges that the best interests of the child are a primary consideration.

18. The Tribunal also acknowledges that the cancellation of the visa may result in the applicant being detained, if the applicant does not leave Australia voluntarily, and there are other hardship that would be caused to the family. The applicant has strong family links in this country and has made a contribution to the community. The Tribunal is mindful that if the applicant did decide to leave Australia to seek the visa offshore, he would be required to return to a country where he has never lived and with which he has no connections. This would also cause considerable hardship to the applicant.

19. The Tribunal has determined that such matters, in particular, the best interests of the children and the hardship that would result from the cancellation should be given greater weight in the particular circumstances of this case.

20. 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

21. 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