2201592 (Migration)

[2022] AATA 5271

2201592 (Migration) [2022] AATA 5271 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2201592

DEPUTY PRESIDENT:  Antoinette Younes

DATE:13 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

I, Deputy President Antoinette Younes, certify that this is

the Tribunal’s statement of decision and reasons.

 

 

Statement made on 13 May 2022 at 12:10 PM

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – identity – different information given in original tourist visa application and later applications and interviews – names, dates of birth, family relationships and documents – tourist visa cancelled and application for protection visa made while in immigration detention – conversion to Christianity, land dispute and homosexuality – fingerprint check – travel to and residence, work contrary to visa condition and criminal history in two other countries – unsuccessful application for protection and removal from first country and outstanding warrant in second country – request for ministerial intervention and current visa granted – discretion to cancel visa – concessions and apologies – continued claim of fear of harm – study, work, friendships and community ties – mental health and treatment – non-refoulement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 116(1AA), 119, 375A, 417

CASES

Ibrahim v MHA [2019] FCAFC 89

Singh v MIBP [2020] FCA 783

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 dated 18 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(AA) as the delegate was not satisfied of the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 13 April 2022 to give evidence and present arguments.  The Tribunal received documents from the applicant post-hearing; the latest was received on 6 May 2022.

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

   Section 375A Certificate

5. During the hearing, the Tribunal advised the applicant of the existence of a s 375A Certificate.

6. Under s 375A, the Secretary of the Department of Home Affairs (Department) may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certification is that the Tribunal is prohibited from disclosing the document and/or information in it to the applicant. In Singh v MIBP[1], the Federal Court found that where the obligations in ss 359A and 375A come into conflict, s 375A is the leading provision but that the aims of both ss 375A and 359A can usually be served without conflict. 

   [1] Singh v MIBP [2020] FCA 783 at [56].

7. The grounds identified in the Certificate are that disclosure would:

   disclose, or enable a person to ascertain the existence or identity of, a confidential source of information

   disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods

8. The Tribunal advised the applicant that the information contained in the material subject to the Certificate relates to internal methods of investigation and that the material has essentially been dealt with in the delegate’s decision record.  The Tribunal indicated that the Tribunal considered the Certificate to be valid for the reasons outlined in the Certificate.

9. Although the applicant initially expressed concerns stating that the Department has conducted extensive investigations and fairness meant that he should know about the documents, he subsequently accepted the Tribunal’s assessment and reasons relating to the validity of the Certificate.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    BACKGROUND

11. This matter has had a long history, commencing in February 2009. 

12. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, refers to the following, as discussed with the applicant in the course of the hearing.

    Tourist visa application

    a)On 5 February 2009, the applicant applied for a Tourist visa (Subclass 676) in [Country 1].  He lodged the visa application 48R – Application to visit Australia for tourism (Tourist visa application/48R application).  In response to questions 4, 5, 7, and 9 of the 48R application, the applicant indicated that his full name is [the applicant – AB], that he has also been known by [C], his date of birth is [Date 1][2], he is married, and that his Nigerian passport number is [Number 1].  In response to question 18, the applicant indicated that his wife [Ms D] ([date of birth]) and son [Mr E] ([date of birth]), who live in Lagos, will not be travelling with him. 

    [2] The delegate’s decision record incorrectly refers to [another date], whereas the recorded date in the application is [Date 1].

    b)In response to question 23 of the Tourist visa application, the applicant indicated that in the last five years neither he, nor any child included in the application had visited or lived outside of their country for longer than three consecutive months.  In response to question 29 of the Tourist visa application, the applicant indicated that neither he, nor any child included in the application has ever been convicted of a crime or offence in any country (including any conviction which is now removed from the records), that neither he, nor any child included in the application has ever been charged with any offence awaiting legal action, that neither he, nor any child included in the application has ever been removed or deported from any country, including Australia.

    c)At the time of the Tourist visa application, the applicant declared that his wife is [Ms D] ([DOB]), and that his three children are [Mr E] ([DOB]), [Mr F] ([DOB]) and [Mr G] ([DOB]).  

    d)The applicant provided the following documents:

    ·Nigerian passport, document [number], for [Ms D], [DOB];

    ·Nigerian birth certificate, document [number] for [Mr F], [DOB], whose mother’s name is [Ms D] and father’s name is [AB];

    ·Nigerian birth certificate, document [number] for [Mr G], [DOB], whose mother’s name is [Ms D], and father’s name is [AB];

    ·Nigerian passport, document [number 1] for [AB] ([DOB 1]);

    ·Nigerian birth certificate, document [number] for [AB] ([DOB 1]), whose father’s name is [Mr H] and mother’s name is [Ms I];

    ·Affidavit of Loss of Business Registration Certificate issued in Nigeria to [ABC] [in] July 2007;

    ·Nigerian Income Tax Clearance Certificates for the years 2004-2008 issued to [AB].

13. Based on the information provided by the applicant in the Tourist visa application, including the supporting documents, on 6 February 2009, the applicant was granted the Tourist visa. 

    Arrival in Australia

14. The applicant arrived at Melbourne Airport [in] March 2009 on the Nigerian passport issued in the name [AB] ([DOB 1]). 

15. The delegate’s decision record indicates that:

    ·On arrival to Australia, the applicant was interviewed by a Departmental officer having expressed fear for his safety in Nigeria, claiming that he was subject to persecution.

    ·During the interview, the applicant stated that his real name was [BC] ([DOB 2]) and that he used his brother’s passport to travel to Australia.  The applicant produced a Nigerian driver’s licence in the name of [CB] ([DOB 3]), [licence number 1], to support his new claimed identity.

    ·On arrival to Australia, the applicant was accompanied by [Mr G] ([DOB]) and [Mr F] ([DOB]).  In the Tourist visa application, the applicant claimed they were his children but during the interview, the applicant advised that that they were his half-brother’s and not his children as he had originally claimed.

    ·At the conclusion of the interview, the applicant’s Tourist visa was cancelled at Melbourne Airport. The applicant was determined not to be a genuine visitor.  He was refused immigration clearance and detained as an unlawful non-citizen.

    Protection visa application

16. The delegate’s decision record refers to the following:

    a)On 18 March 2009, while in immigration detention, the applicant lodged an application for a Protection (Subclass 866) visa.  As part of the application, on Part B of the Form 866, the applicant indicated at Question 1 that there were three applicants included, namely, [BC] (Applicant 1 - [DOB 2]), [Mr J] (Applicant 2 - [DOB] - Relationship to applicant 1: Half-brother), and [Mr G] (Applicant 3 - [DOB], Relationship to applicant 1: Half-brother).

    b)At Question 6 of Part B of the Form 866 – Application for a Protection (Class XA) visa, asking if any person named in Question 1 has ever committed, or been convicted of a crime or offence in any country (including conviction which is now removed from official records), the applicant indicated “No”. 

    c)The applicant responded “No” to the question asking if any person named in Question 1 has been charged with any offence that is currently awaiting legal action.  He responded “No” to the question asking if any person named in Question 1 has been removed or deported from any country (including Australia).  At Question 9 of Part B of the Form 866 asking, “Are there any members of the family unit who are NOT in Australia at the time of application?” the applicant indicated “No”.

    d)In response to Question 11 of Part B of the Form 866 which asks, “Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?” the applicant indicated “Yes”; he referred to his adopted brother [AB], [date of birth 1], born in Nigeria, and a Nigerian citizen. 

    e)In response to Question 1 of Part C of the Form 866, the applicant gave his name as [BC].  In response to questions 4, 7, 14, and 32 of Part C of the Form 866, the applicant indicated that he has been known by another name - “[AB]”, [date of birth 2], never married, and that he used a false Nigerian passport, in the name of [BC], which has been destroyed.  In response to Question 33 of Part C of the Form 866 which asks, “Did you ever travel outside your home country or country of residence before your current journey to Australia?” the applicant answered “no”.

    f)In the Protection visa application, the applicant claimed that his half-brothers have the same mother but different fathers, indicating that he was the half-brother of [Mr F] ([DOB]) and [Mr G] ([DOB]).  He provided their birth certificates, noting that their parents are [Mr J] and [Ms L], inconsistent with the information and birth certificates he provided in his Tourist visa application.  The applicant claimed that he had been initiated by ritual into [a Yoruba cult], leaving him with scarring on his skin.

    g)The applicant claimed that his father was [Mr H] who died in 1990, shortly after he commenced at [University 1, Nigeria], and that soon after his father’s death, [Mr J] married the applicant’s mother and became his stepfather. The applicant claimed that [AB] ([DOB 1]) was his adopted brother. 

    h)The applicant claimed that he and his immediate family converted to Christianity in October 2008, denying the cult, and that the conversion led to a broader dispute over inheritance of land within the family. He claimed that his immediate family were threatened and his mother and stepfather were killed in an arson attack on 25 December 2008 due to their conversion to Christianity.  The applicant provided death certificates for his mother and stepfather.  The applicant claimed that after the arson attack, he and his half-brothers went into hiding.

    i)In support of the Protection visa application, the applicant provided another Nigerian driver’s licence in the name of [CB – different spelling of B] ([DOB 2]), [licence number 2]. This Nigerian driver’s licence and the Nigerian driver’s licence in the name of [CB] ([DOB 3], [licence number 1]), were issued within a month of each other with different names, addresses and biodata. He also provided a scanned copy of a Nigerian Birth Certificate, in the name of [BC] ([DOB 2]).

17. On 1 May 2009 the Protection visa application was refused on the basis that his claimed fears of harm from members of a religious cult, and because of his claimed homosexuality, were not well-founded.

    Application for review at the Refugee Review Tribunal (RRT) and appeal to the Federal Magistrates Court (FMC)

18. The delegate’s decision record indicates that on 13 May 2009, the applicant lodged an application for review with the RRT of the decision to refuse the Protection visa.  During the RRT hearing on 22 June 2009, the applicant claimed that in about 1960, his mother, [Ms L], adopted [AB] after the death of [A]’s mother. 

19. On 18 August 2009, the RRT affirmed the delegate’s decision to refuse the applicant a Protection visa.  On 17 September 2009, the applicant lodged an appeal of the RRT’s decision with the FMC, however, he withdrew the application on 15 January 2010.

    Request for Ministerial Intervention

20. The delegate’s decision record indicates that on 4 December 2009, the applicant made his first request under s 417 of the Act, and on 19 March 2010, the Minister declined to intervene. 

21. On 8 December 2009, the applicant made a request under s 48b of the Act requesting to be allowed to lodge another Protection visa application.  The Minister declined to intervene on 25 February 2010, and as a consequence, the applicant’s request to lodge a second Protection visa application was declined.

    Subsequent events - fingerprints

22. The delegate’s decision record refers to the following events:

    i)On 30 April 2010, during an interview with an officer from the Identity Verification Team (IVT), the applicant agreed to have his fingerprints taken at Villawood Immigration Detention Facility as part of an identity verification process.

    ii)The applicant claimed that he had provided incorrect information to the Department in relation to his identity since his initial arrival at Melbourne Airport [in] March 2009. He also claimed that the three passports he and his half-brothers used to enter Australia were bogus. This included the Nigerian passport, document [number 1], in the name [AB] ([DOB 1]).

    iii)In the same interview, the applicant initially claimed that the passport, document [number 1], belonged to him and had his photo, however, the name and date of birth were that of his brother, [AB] ([DOB 1]). The applicant claimed that he had previously used this passport for travel to [Country 2] prior to his travel to Australia.

    iv)However, the applicant later claimed that he and [AB] ([DOB 1]) are the same person.

    v)On 7 May 2010, the applicant’s fingerprint sample was referred to the relevant authorities of four cooperating countries for the cross-referencing of biographic information. 

    vi)On 13 May 2010, the applicant provided to an officer from the IVT another Nigerian passport, document [number 2], for [BC] ([DOB 2]).  On 24 May 2010, the outcome of fingerprint checks resulted in a positive match between the applicant’s fingerprints taken by the Department and [Country 2] fingerprint records.

    [Country 2] history

    vii)  On 24 May 2010, the outcome of fingerprint checks resulted in a positive match between the applicant’s fingerprints taken by the Department and [Country 2] fingerprint records.

    viii) The fingerprint checks revealed that:

    ·     The applicant’s fingerprints matched the recorded identity of [LM] ([DOB 4]) alias [BAC], who was recorded as [a Country 3] national, indicating that the applicant had used the following aliases in [Country 2]: [LM] ([DOB 4]) and [BAC], who was recorded as [a Country 3] national.

    ·     The applicant was arrested on 15 February 2006 for driving without insurance and for not having a valid visa.  When interviewed by [Police], he revealed scarring [which] was claimed to be due to being tortured in [Country 3].

    ·     [LM] applied for asylum in [Country 2].  While being interviewed by the [Country 2] authorities, [LM] stated that he had obtained employment with a [Workplace] in [Suburb] using a photograph substituted Nigerian passport in the name of [ABC] ([DOB 1]), document [number 3].

    ·     On 17 February 2006, [LM] was convicted in [Country 2] for driving a vehicle while uninsured and driving otherwise than in accordance with a licence. 

    ·     On 30 June 2006, [LM] was convicted of obtaining pecuniary advantage by deception and sentenced to eight months’ imprisonment.

    ·     On 14 September 2006, [LM]’s application for asylum was refused and he was removed from [Country 2] [in] July 2007.

    [Country 4] history

    ix)   On 4 June 2010, the outcome of fingerprint checks resulted in positive matches between the applicant's fingerprints taken by the Department and [Country 4] fingerprint records. The outcome of the fingerprint match provided the following information:

    ·     The applicant’s fingerprints matched with the recorded identity of [AB] ([DOB 1]), indicating that the applicant used this alias while in [Country 4].

    ·     There is an outstanding warrant for the applicant relating to larceny.  The applicant does not have a criminal conviction, but he is wanted by [Country 4] authorities to stand trial for the outstanding larceny charges.

    Ministerial Intervention

    x)    On 8 October 2010, the applicant made a second request under s 417 of the Act and on 11 October 2010, the Minister decided to intervene and the applicant was granted a Global Special Humanitarian (Subclass 202) visa on the same day.

    xi)   On 29 February 2012, the applicant sponsored his wife, [Ms N] for a Combined Partner (Subclass 820/801) visa, which was granted on 27 May 2014.

    Citizenship application

23. The delegate’s decision record indicates that:

    ·On 3 November 2014, the applicant lodged an application for Australian Citizenship by conferral.  In support, on 2 April 2015, the applicant provided a [Country 2] Criminality Certificate issued on 10 February 2015. The certificate stated [ABC] ([DOB 1]) was the holder of a Nigerian passport, document [number 1]. The [Country 2] Criminality Certificate states that the applicant has been convicted of driving a vehicle uninsured (one day sentence, six-month disqualification), driving without a licence, and obtaining pecuniary advantage by deception – identity fraud (sentenced to eight months’ imprisonment, however the 134 days in custody was considered as time spent.)

    ·On 21 June 2017, the applicant was interviewed in relation to his Australian Citizenship application, by an officer of the Department’s Identity Unit and an officer from the Citizenship section.  During this identity interview, the applicant was presented with scanned copies of two Nigerian driver’s licences, namely, Nigerian driver’s licence [number 1], in the name of [CB] ([DOB 3]), which he provided when he arrived at Melbourne Airport, and the Nigerian driver’s licence [number 2], in the name of [CB – different spelling of B] ([DOB 2]), which he provided in support of his Protection visa application.

    ·During that interview, the applicant stated that he had lost his licence but was unable to explain how he had provided the scanned copy of the lost licence.  Furthermore, the applicant denied knowing [Ms D] or ever being married to anyone by that name. He was questioned about the Nigerian passport and birth certificate issued in the name of [Ms D] ([DOB]) and the fraudulent birth certificates indicating his half-brothers were his children with [Ms D] ([DOB]). He said that he never married [Ms D], that she did not exist and that the documents had been acquired by an agent in Nigeria for the applicant.

    ·At the interview, the applicant claimed, “When I applied for the [Tourist] visa I had to make my brothers seem like my kids because if I claimed that they were my brothers there was no way we were going to get a visa here…”.  The applicant was presented with a copy of the Nigerian Birth Certificate he provided in support of the Tourist visa in [Country 1] on 05 February 2009. The birth certificate was in the name [AB] ([DOB 1]). The applicant acknowledged that the birth certificate contained fraudulent information and did not reflect his true identity. He claimed that his true date of birth is [Date 2].

    ·When asked why the Department should accept that his date of birth is [Date 2], the applicant indicated that he used the other date of birth “because of the situation back home in Nigeria and to protect myself and so that I would not be easily identifiable.”  The applicant indicated that [AB] ([DOB 1]) did not exist and that he has no other siblings aside from his half-brothers. The applicant could not remember the names of any of his parents’ siblings or any of his relatives.  However, he was able to identify [Ms O] as his stepmother when her name was mentioned during the identity interview.

    ·In the citizenship application, the applicant named two female parents, [Ms O] ([DOB]) and [Ms L] ([DOB]), but no male parent. This indicates that the applicant has named three mothers, [Ms I], [Ms O] and [Ms L], and two fathers, both named [Mr H], in documents and applications provided to the Department.

    ·At the identity interview, the applicant was presented with information that was received by the Department from a reliable third party indicating that his mother, [Ms L], was alive in 2017 and his half-brothers have been in contact with this person, which indicates that the death certificate and the consequent Protection visa claims were fraudulent. In response, he claimed he did not know anything about his half-brothers contacting a person named [Ms L].

    ·At the identity interview, the applicant was questioned about the inconsistency between claiming to be heterosexual in his Tourist visa application, claiming to be homosexual in Nigeria for his Protection visa application, claiming to be heterosexual while in [Country 2], and claiming to be married in Australia since 2014. In response, he claimed to be bisexual.  The identity officer noted that the applicant had a number of different identities in Australia, [Country 2] and [Country 4].

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) & RESPONSE

1. On 28 February 2019, the Department sent to the applicant a NOICC (or Notice), to which the applicant responded on 29 March 2019.

2. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 119 and that the Notice issued under s 119 complied with the statutory requirements. 

3. The Tribunal has considered the validity of the Notice. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues raised in the Notice.

4. The applicant responded to the NOICC as follows:

   a)He concedes that taken as a whole, the information “does present a confusing (and internally inconsistent) picture of me (and my half-brothers) immigration history in Australia and creates some uncertainty as to my true identity”.

   b)He recognises that the Department’s lack of clarity about his identity was “initially generated by myself, as my two younger half-brothers (please note they are not my ‘step’-brothers as stated in several places in your letter) and I fled to Australia from Nigeria using identity documents that were not our own”. 

   c)They arrived at Melbourne Airport [in] March 2009.  Due to their haste to leave Nigeria and as a result of his desire “to conceal our real identities” from those in Nigeria who might cause them harm, he travelled on a passport issued in the name of [AB], [DOB 1].  At the first interview with a Departmental officer in Melbourne, he conceded that the passport was not his and that his true identity is [BAC].  He chooses to be called ‘[A]’ as his given name is difficult to pronounce.  There are official documents that support his claim to be [BAC], including his academic records at [University 2, Country 2] and a transcript of the hearing at [a court Country 2] in 2006.

   d)During the Citizenship interview held on 21 June 2017, he was very nervous and did “not represent myself well. However, despite making foolish errors and misleading the Department in 2009, including by claiming that my half- brothers were my ‘sons’ (in order to advance their claims for protection, given their very difficult family history) I have been consistent since first arriving in Australia ten years ago that my true identity is as stated above”. For a number of years, he has been suffering from Post-Traumatic Stress Disorder (PTSD) following the persecution of his family in Nigeria. This modelled his thought processes, which led him to provide inconsistent statements, some of which are reflected in the transcript of the citizenship interview. He is currently under the care of a consultant psychiatrist.

   e)The question about his and his half-brothers’ identities was canvassed in the Department’s submission prepared in September/October 2010 by [Mr O] ([Job title]) and presented to the then Minister for Immigration and now Shadow Treasurer[3].  This submission addressed the identity issues and recommended intervention. If questions concerning their identities were settled to [Mr O’s] satisfaction in 2010, then his conclusions should be persuasive. 

   f)His circumstances have not changed since 2009 and he has conceded that “I have at times presented confusing evidence, which [Mr O] was prepared to overlook in his report in the interests of fulfilling Australia’s obligations to offer protection to my half-brothers and me”.

   g)He accepts that the Department “may be able to point to certain inconsistencies in my record of statements and evidence since my arrival in Australia in 2009, and that this may cause Department officers to doubt my true identity, [Mr O], after extensive research and interviews, accepted in his report that my true identity is [B] ‘[A]’ [C]”.

   h)He attributes the factual inconsistency and identity ambiguity to his exhaustion, stress, loss of memory and mental anguish following his and his half-brothers’ escape from Nigeria. His half-brothers were teenage boys at the time of their escape and both of them have grown into fine young men contributing to Australian life. Since the grant of protection, he has added to his [Subject 1] academic qualifications gained at [University 2] by continuing to study at [University 3, Australia]. He has recently commenced a postgraduate program (Master of [Subject 2]) at [University 4, Australia]. He has a particular interest in [Work specialisation 1], and in [Country 2], he worked at the world-famous [Workplace], [doing a Job task with Specified people]. He believes he can contribute a great deal to Australia, especially in the area of [Work specialisation 1] where there is a short supply of [Occupation]s.

   i)He travelled to Australia to seek protection because he has a well-founded fear of persecution in Nigeria. He has complied with all his visa conditions since 2010. In case of cancellation, he would suffer hardship. He has a settled life in Australia and he cannot return to Nigeria. There is no third country to which he could travel with real prospects of establishing a new life. He has always been respectful of the Department and detention officers and he has attended all the required interviews. He has two half-brothers who have been granted visas on their own merits and he understands that he would be the only person impacted by a cancellation decision. If his visa is cancelled, he could be detained and deported, which would be in breach of Australia’s non-refoulment obligations.

   [3] The applicant is referring to a Departmental internal document dated 8 October 2010, being submissions/report concerning the applicant’s request for Ministerial Intervention, signed by [Mr O], [Job title].  He provided a copy of this document to the Tribunal.

5. The delegate considered the material cumulatively, including the applicant’s response to the NOICC and decided that the ground for cancellation under s 116(1AA) exists and that the visa should be cancelled.

   The Tribunal’s review

   Jurisdictional issues

6. The application for review has had jurisdictional issues but those are no longer relevant to the review as the Tribunal is satisfied that it has jurisdiction to review the matter. 

7. For multiple reasons which are not relevant, the Tribunal had initially determined that it did not have jurisdiction to review the matter.  

   The applicant’s contentions before the Tribunal

8. In matter number 1910374, the applicant provided a number of documents and submissions relating to the Tribunal’s assessment of no jurisdiction.

9. On 28 May 2019, and in response to the Tribunal’s no jurisdiction assessment, the Tribunal received correspondence from [Ms P] attaching a number of documents which were sent to the Department to support the request for Ministerial Intervention.  The documents included submissions dated 26 July 2010 by [Mr P], Executive Director of [Institute], raising concerns relating to the Departmental handling of the applicant’s matter alleging unfairness, cursory assessment of the issues and forming conclusions without credible basis. Among other things, the submissions took issue with the Departmental comments relating to the parents’ “alleged death”. The submissions contended that the three applicants “fled their hometown following advice that their house had been burnt down and their parents bodies incinerated”.  Other documents provided include a statement and submissions by [Mr Q], Principal, [Firm] to support the request for Ministerial Intervention. The statement and submissions (dated 24 December 2009) reiterate the applicant’s and his half-brothers’ fear of ill-treatment and death at the hands of family members should they be forced to return to Nigeria. [Mr Q] in essence argued that all three applicants ought to be found to be credible. [Mr Q] referred to the applicant’s original claim that he feared persecution in Nigeria also on the ground of his homosexual orientation.

10. In the current matter, the applicant provided a number of relevant documents, including: a psychological report dated March 2022; letter of postgraduate offer dated 6 April 2022 in the Master of [Subject 3] at [University 5, Australia], commencing in semester 2; report from [Ms R], psychologist at STARTTS dated 24 March 2022; personal statement of the applicant; Master of [Subject 4] degree from [University 1] dated 23 September 1998 in the name of [BC]; Diploma of [Subject 5] from [University 6, Country 2] in the name of [BAC], dated 1 October 2005; [University 3] student card in the name of [BAC]; [University 4] student card in the name of [AC]; a change of name certificate dated 25 January 2012 in the registered name of [BAC]; DNA test results dated 15 June 2010, which essentially confirm that [Mr F] and [Mr G] are full siblings and that they are the applicant’s half siblings; report of [Mr O] ([Job title]) recommending the grant of the Subclass 202 visa; ACT card; GP mental health care plan; and ACT identity card. 

11. Post-hearing up until 6 May 2022, the Tribunal received correspondence from [Ms S] who expressed the opinion that the applicant is a “good person” and that she is wiling to provide him with help and support to “get back on his feet”. 

12. [Ms S] noted that she had worked with the applicant as [an Occupation] and that he “exhibited humility, dedication and professionalism while we worked in a team together.  He is a good person of exemplary character with moral values. He is a professional colleague of myself and a family friend”.

    Statement of the applicant dated 29 March 2022

13. In this statement, the applicant indicated that he has worked very hard to become a better person by continuing his tertiary studies and that until the cancellation of his visa, he was enrolled in a Master of [Subject 2] degree at [University 4]. He stated that he has worked in the [Work] sector in the areas of [Work specialisations 2 and 3] and in the last 10 years, he has called Australia home. He indicated that he subscribes to the Australian values, and that he has developed deep and significant emotional ties and connections to Australia and Australians. He contended that he fully subscribes to the Australian values.

14. The applicant noted that he takes full responsibility for the “conflicting information I provided to the Department of immigration in 2009 in regard to my identity and I fully apologise for making such a terrible mistake. I wish I could turn the time back and make amends… I am not a perfect person and I have made stupid mistakes in my life. Since arriving in Australia in 2009, I have learned the importance of honesty, good mannerisms, hard work, social values and good virtues. All these qualities I try to understand and ascribe to at all times. I fully understand that it is a privilege for me to be granted Visa to remain in Australia in 2010 and in future.”

15. He fears for his safety and asks to be given the benefit of the doubt about his identity. He indicated that the only proof he has to substantiate his identity is the DNA test of 2010.

    Report of [Ms R], psychologist at STARTTS dated 24 March 2022

16. [Ms R] indicated that the applicant had reported experiencing PTSD, anxiety and mood disorders including, but not limited to: depressed mood, frustration, uncertainty for the future, rumination, feelings of dehumanisation and overwhelm, nightmares, sleep disturbance, lack of motivation, lethargy, intrusive traumatic memories, poor appetite, racing thoughts, loneliness, hopelessness for the future, restlessness, hyperarousal and avoidance of past traumatic memories.

17. [Ms R] indicated that the applicant had been diagnosed with PTSD and bipolar disorder by his treating psychiatrist prior to him being detained and that he was engaging in regular therapy sessions as well as taking medication to manage his mental health prior to detention. She noted that the applicant had explained to her that he has not been prescribed medication for the treatment of bipolar disorder since being in detention and that he has not had access to regular psychiatric reviews which, as well as detention, have exacerbated his mental health symptoms.

18. [Ms R] indicated that the applicant would continue counselling to further address the symptoms of PTSD, anxiety, and mood disorders. She expressed the opinion that “resolution of [the applicant]’s immigration status and access to community supports for his mental health would be of considerable benefit to his recovery”.

    [Mr O’s] report – dated 8 October 2010

19. The applicant has relied on [Mr O’s] report to essentially argue that the report settled his identity with the Department.

20. It is therefore important to summarise the essential elements of the report, as follows.  The report notes:

    ·The applicant has been known to the Department by the name of [AB] and also by the alias of [BAC], which is the applicant’s preferred name and the one used by his representative. The Department’s formal recognition of the applicant is, however, by the name of [AB] and consequently “I will refer to him by that name in this submission for the sake of consistency”.

    ·Statutory declarations from [Mrs P] and [Mr Q] show efforts to contact persons in Nigeria who might have been familiar with the circumstances surrounding the death of the parents and the consequences for the brothers. On 29 April 2010, [Mrs P] received an email from a [Mr T], Christian evangelist, who was aware of the fate of the family in December 2008.  They also contacted a former schoolteacher of [name deleted] who advised them that the three brothers were justified in fearing their cult relatives in Nigeria and that they would be at risk if they returned.

    ·In its previous assessments of the claims, the Department placed considerable weight on the perceived lack of credibility of the applicant.  The assessment:

    flowed through to the considerations of the refugee review Tribunal (RRT). [Mr and Mrs P] and [Mr Q] believe that the case of the younger boys has been conflated with and jeopardised by the negative assessment of the character of the older brother… It is not disputed that [Mr B] was less than truthful in his early statements to the Department and the RRT when he was pursuing his claims for protection. Under the close guidance of [Mr Q], however, [Mr B] has provided a full and truthful account of his background and history… The Department’s previous advice to the Minister indicated that [Mr B] had committed serious offences of “larceny” in [Country 4] and “fraud” in [Country 2]. There was at the time no advice to the Minister on the nature of the offences. Subsequent investigations by [Mr Q] indicates that the larceny charges in [Country 4] relate to unpaid traffic fires. While he entered [Country 2] lawfully, the fraud charges relate to working without a valid visa. Both offences are at the low end of the criminality spectrum… Further, the department’s previous advice to the Minister also indicated that [Mr B] served an eight months prison sentence in [Country 2] in relation to the fraud charges. The transcript of the court proceedings obtained subsequently by [Mr Q] indicates that, while the charges carried a maximum sentence of eight months, the judge took into account the 134 days [the applicant] had spent in immigration detention and released him without further penalty. It is also noteworthy that the transcript contains references to [Mr B] is otherwise being of good character.

    ·In reference to the two half-brothers, [Mr O] noted that despite:

    any character flaws the older brother may have, they have relied on his unwavering support and protection since the death of their parents… This case raises issues which may invoke Australia’s protection as a signatory to the CROC. Were the younger boys to remain in the country on a permanent basis, it would be in their best interest for the older brother, [Mr B] to also remain with them as their guardian, in loco parentis. He was responsible for taking them out of Nigeria to safety and the younger boys have relied on him for psychological and emotional support ever since. It would be detrimental for them to now be separated. I consider it appropriate to also intervene in the case of [Mr B].

21. During the hearing and in response to the Tribunal’s discussions of the applicant’s history as outlined above, the applicant stated that he takes responsibility for misleading the Department.  He stated that at the time of the Tourist visa application, he provided inconsistent information because he was desperate to leave Nigeria. He stated that when they arrived in Australia, the three of them continued to fear persecution and they felt that as they could be identified, false information was provided.  He stated that during the citizenship interview, he never intended to mislead or misguide. He said he has learnt from his “stupid mistakes” and that he understands that this has reflected negatively on his character.  He reiterated that he was fearful and confused but he did not intend to mislead.  He stated that he is a reformed person.

22. He stated that he is not proud of his conduct but he aspires to be a better person, and he wants to contribute to Australian society.  He stated that he has strong ties and friendships. He wants to continue his passion in [Work sector].  The Tribunal asked the applicant about his half-brothers and he stated that they do not stay in touch any longer. He said the relationship has been severed but he is aware that the older brother is in Melbourne.

23. The Tribunal asked the applicant about his sexual orientation, specifically about the claim of being homosexual.  The applicant did not respond directly to the question relating to the claim of homosexuality. He, however, stated that he used to believe he was bisexual but he is now attracted to members of the LGBTQI community. He referred to a transgender person by the name of [name deleted], whom he met in [Country 2], and who was his only partner. He stated that he found it hard to assert himself as a gay person because of the negative impact from the Nigerian and African community in Australia. He reiterated that he is essentially attracted to transgender persons and that his former wife [Ms N] was transgender. 

24. The applicant gave evidence that there have been two attempts to involuntarily remove him from Australia and that on one occasion officers grabbed him to restrain him on the plane. He again acknowledged providing inconsistent information and failing to declare a conviction but contended that he has been honest and he is now a reformed person who appreciates the importance of honesty.

    FINDINGS AND REASONS

25. The applicant’s visa was cancelled under s 116(1AA).

26. As is evident from above, the applicant has used a number of names, dates and places of birth. 

27. The applicant entered Australia [in] March 2009 claiming to be [AB] ([DOB 1]) born in Nigeria; in the 48R visa application, he indicated that his full name is [AB], that he has also been known by [C], and that his date of birth is [Date 1].   He declared that his wife as [Ms D] ([DOB]) and his three children are [Mr E] ([DOB]), [Mr F] ([DOB]) and [Mr G] ([DOB]).

28. The applicant arrived at Melbourne Airport [in] March 2009 on the Nigerian passport issued in the name [AB] ([DOB 1]).  He was interviewed and he now claimed to be [BC] ([DOB 2]) and that he used his brother’s passport to travel to Australia.  He was accompanied by [Mr G] ([DOB]) and [Mr F] ([DOB]). In the 48R application, the applicant claimed they were his children but during the interview, he said that they were his half-brothers and not his children as he had originally claimed.

29. In the Protection visa application lodged on 18 March 2009, the applicant claimed to be [BC] ([DOB 2]), and that [Mr J] ([DOB]) and [Mr G] ([DOB]) are his half-brothers.  He claimed that his brother [AB] ([DOB 1]) had organised the passports for him and his half-brothers to facilitate the grant of the Tourist (Subclass 676) visa.  During the RRT hearing on 22 June 2009, the applicant claimed that in about 1960, his mother [Ms L] had adopted [AB] after the death of [A]’s mother.

1. On 30 April 2010, during the IVT interview, the applicant indicated that he had provided incorrect information to the Department in relation to his identity since his initial arrival at Melbourne Airport [in] March 2009. He indicated that the three passports he and his half-brothers used to enter Australia were bogus. This included the Nigerian passport, document [number 1], in the name [AB] ([DOB 1]).  In the interview, the applicant initially claimed that the passport, document [number 1], belonged to him and had his photo but the name and date of birth were that of his brother, [AB] ([DOB 1]), which he used for travel to [Country 2] prior to his travel to Australia.  However, the applicant later claimed that he and [AB] ([DOB 1]) are the same person.  The applicant provided to an officer from the IVT another Nigerian passport, document [number 2], for [BC] ([DOB 2]). 

2. The outcome of fingerprint checks resulted in a positive match between the applicant’s fingerprints taken by the Department, [Country 2] and [Country 4].  The applicant’s fingerprints in [Country 2] matched the recorded identity of [LM] ([DOB 4]), alias [BAC], who was recorded as [a Country 3] national.  [LM] was convicted in [Country 2] for driving a vehicle while uninsured and driving otherwise than in accordance with a licence.  [LM] was also convicted of obtaining pecuniary advantage by deception and sentenced to eight months’ imprisonment.  [LM] told the [Country 2] authorities that he had obtained employment with a [Workplace] in [Suburb] using a photograph substituted Nigerian passport in the name of [ABC] ([DOB 1]), document [number 3].  [LM]’s application for asylum was refused and he was removed from [Country 2] [in] July 2007.

3. In [Country 4], fingerprint checks matched the recorded identity of [AB] ([DOB 1]).  The checks revealed that there is an outstanding warrant for the applicant relating to larceny, and although the applicant does not have a criminal conviction, he is wanted by the [Country 4] authorities to stand trial for the outstanding larceny charges.

4. The applicant lodged an application for an Australian Citizenship by conferral and in support, he provided a [Country 2] Criminality Certificate issued on 10 February 2015. The certificate stated [ABC] ([DOB 1]) was the holder of a Nigerian passport, document [number 1].  The applicant was interviewed in relation to his Australian Citizenship application by an officer of the Department’s Identity Unit and an officer from the Citizenship section.  During this interview, the applicant was presented with scanned copies of two Nigerian driver’s licences, namely, Nigerian driver’s licence [number 1], in the name of [CB] ([DOB 3]), which he provided when he arrived at Melbourne Airport, and the Nigerian driver’s licence [number 2], in the name of [CB – different spelling of B] ([DOB 2]), which he provided in support of his Protection visa application.   During that interview, the applicant stated that he had lost his licence but was unable to explain how he was able to provide the scanned copy of the lost licence.  Furthermore, the applicant denied knowing [Ms D] or ever being married to anyone by that name. He was questioned about the Nigerian passport and birth certificate issued in the name of [Ms D] ([DOB]) and the fraudulent birth certificates indicating his half-brothers were his children with [Ms D] ([DOB]). He said that he never married [Ms D], that she did not exist and that the documents had been acquired by an agent in Nigeria for the applicant.

5. The applicant was presented with a copy of the Nigerian Birth Certificate he provided in support of the Tourist visa in [Country 1] on 05 February 2009, in the name [AB] ([DOB 1]). The applicant acknowledged that the birth certificate contained fraudulent information and did not reflect his true identity. He claimed that his true date of birth is [Date 2].   When asked why the Department should accept that his date of birth is [Date 2], the applicant indicated that he used the other date of birth “because of the situation back home in Nigeria and to protect myself and so that I would not be easily identifiable.”  The applicant indicated that [AB] ([DOB 1]) did not exist and that he has no other siblings aside from his half-brothers.   

6. In the citizenship application, the applicant named two female parents, [Ms O] ([DOB]) and [Ms L] ([DOB]), but no male parent, indicating that he has named three mothers, [Ms I], [Ms O] and [Ms L], and two fathers, both named [Mr H], in documents and applications provided to the Department.

7. At the identity interview, the applicant was presented with information that was received by the Department from a reliable third party indicating that his mother, [Ms L], was alive in 2017 and his half-brothers have been in contact with this person, which indicates that the death certificate and the consequent Protection visa claims were fraudulent. In response, he claimed he did not know anything about his half-brothers contacting a person named [Ms L].

8. The Tribunal is satisfied on the evidence that the applicant has been known in Australia, [Country 2] and [Country 4] under different names and identities.  He has provided documents, some of which, by his own account, were not genuine or contained incorrect information. 

9. The applicant’s visa was not cancelled on the basis of the provision of incorrect information or bogus documents but on identity issues.  In his response to the NOICC, the applicant conceded that the information he provided is confusing, internally inconsistent, and creates a degree of uncertainty about his true identity.  He recognised that the Department’s lack of clarity about his identity was “initially generated by myself, as my two younger half-brothers…and I fled to Australia from Nigeria using identity documents that were not our own”.  He claimed that due to their haste to leave Nigeria and as a result of his desire “to conceal our real identities” from those in Nigeria who might cause them harm, he travelled on a passport issued in the name of [AB], [DOB 1].  He conceded that the passport was not his and that his true identity is [BAC]. 

10. The applicant claimed that during the Citizenship interview held on 21 June 2017, he was very nervous and did not represent himself well. He claimed that despite making foolish errors and misleading the Department in 2009, he has been consistent since first arriving in Australia about his true identity.

11. The applicant further claimed that for a number of years, he has been suffering from PTSD following the persecution of his family in Nigeria, which led him to provide inconsistent statements, as reflected in the transcript of the citizenship interview.  He attributed the factual inconsistency and identity ambiguity to his exhaustion, stress, loss of memory and mental anguish following his and his half- brothers’ escape from Nigeria. His half-brothers were teenage boys at the time of their escape and both of them have grown into fine young men contributing to Australian life.

12. The applicant provided to the Tribunal a report from [Ms R] who  indicated that the applicant had reported experiencing symptoms of PTSD, anxiety and mood disorders including, but not limited to: depressed mood, frustration, uncertainty for the future, rumination, feelings of dehumanisation and overwhelm, nightmares, sleep disturbance, lack of motivation, lethargy, intrusive traumatic memories, poor appetite, racing thoughts, loneliness, hopelessness for the future, restlessness, hyperarousal and avoidance of past traumatic memories.

13. [Ms R] referred to the applicant’s diagnosis with PTSD and bipolar disorder by his treating psychiatrist prior to him being detained and that he was engaging in regular therapy sessions as well as taking medication to manage his mental health prior to detention.

14. The Tribunal accepts [Ms R]’s assessments that the applicant suffers from mental health issues and is vulnerable psychologically.  However, given the extent and seriousness of the applicant’s provision of incorrect information and documents containing incorrect details, the Tribunal is not persuaded that the applicant’s psychological vulnerabilities account for the provision of incorrect information. Moreover, the Tribunal is satisfied that those vulnerabilities did not impact the applicant’s ability to present his case in full before the Tribunal.

15. As to the applicant’s explanation that the provision of the inconsistent information is related to having to flee Nigeria, the Tribunal is not persuaded or convinced.  As raised in the course of the hearing and in accordance with s 359AA, the Tribunal referred to the decision of the RRT affirming the delegate’s decision not to grant the applicant a protection visa. The Tribunal noted that for the reasons outlined in that decision, the RRT found him to lack credibility and his claims were essentially rejected on that basis.  [Mr O] in his report mentions the applicant’s credibility has had an adverse impact on the applicant’s case.  The Tribunal appreciates that its role is to form its own views and on the balance of the evidence before it, the Tribunal has formed the view that it is difficult to accept the applicant’s versions as they have changed over time, raising legitimate credibility concerns.  The inconsistent information means that the Tribunal cannot accept the applicant’s current claim of his true identity.

16. The applicant has claimed that the question about his and his half-brothers’ identities was canvassed in the Department’s submission prepared in September/October 2010 by [Mr O].  The applicant is of the view that the submission addressed the identity issues and contended that if questions concerning their identities were settled to [Mr O’s] satisfaction in 2010, then his conclusions should be persuasive.

17. The Tribunal discussed with the applicant the report of [Mr O] and indicated that in the Tribunal’s opinion, [Mr O] does not make a conclusive identity finding. The Tribunal indicated that [Mr O] refers to the different names and the Department’s formal recognition of the applicant by the name of [AB] and consequently “I will refer to him by that name in this submission for the sake of consistency”.  The Tribunal indicated to the applicant that the report does not make specific findings about his identity, but for the sake of consistency, he was referred to as [AB].  As mentioned above, [Mr O] noted that the applicant has been known to the Department by the name of [AB] and also by the alias of [BAC], which is the applicant’s preferred name and the one used by his representative. The Tribunal is satisfied that [Mr O] does not settle the applicant’s identity and does not assist the applicant in resolving the identity issue.

18. The applicant referred to official documents that support his claim to be [BAC], including his academic records at [University 2] and a transcript of the hearing at [a Court in Country 2] in 2006.  As mentioned above, the applicant provided a number of documents and submissions including a letter of postgraduate offer dated 6 April 2022 in the Master of [Subject 3] at [University 5] commencing in semester 2, Master of [Subject 4] degree from [University 1] dated 23 September 1998 in the name of [BC], Diploma of [Subject 5] from [University 6] in the name of [BAC], dated 1 October 2005, [University 3] student card in the name of [BAC], [University 4] student card in the name of [AC], a change of name certificate dated 25 January 2012 in the registered name of [BAC], and DNA test results dated 15 June 2010, ACT card, GP mental health care plan, and ACT identity card.

19. Among others, the Tribunal has before it a Nigerian passport [number 1] in the name of [AB] ([date of birth 1]), Nigerian passport [number 2] in the name of [BC] ([date of birth 2]), a Nigerian Birth Certificate in the name of [AB] ([date of birth 1]), a Nigerian Birth Certificate in the name of [BC] ([date of birth 2]), an Affidavit of Loss of Business Registration Certificate by [ABC]  (July 2007), Nigerian Income Tax Certificates for [AB] for 2004-2007, and Nigerian driver’s licences in the name of [CB] ([date of birth 3]) and [CB –  different spelling of B] ([date of birth 2]).  As is evident, the documents show different names and dates of birth.

20. During the interview on 30 April 2010 with the IVT, the applicant advised that the document [number 1] contained his brother’s details but was photo-substituted and that he had used it for travel previously.  He also claimed at the same interview that he had used the identity [AB], and that he and his claimed brother, [AB], are one and the same person.

21. Although during the hearing, the applicant accepted the provision of inconsistent information, he contended that the DNA test proves his identity. The Tribunal discussed with the applicant the DNA test results and indicated that the results demonstrate that he has two half-brothers and that the half-brothers are full siblings.  The Tribunal indicated that it did not consider the DNA test results to be conclusive evidence of the applicant’s identity – the results show familial association. The applicant stated that he knows he cannot prove his identity based on transcripts and certificates.  He stated that he could not have furthered his education had he not completed those claimed courses.  He referred to his admission last week to undertake the postgraduate course at [University 5].  The applicant indicated that he is pleading with the Tribunal to give him the benefit of the doubt.

22. The applicant told the Tribunal that he did not disclose the criminal history because he thought it would adversely impact his ability to obtain the visa.  Although such an admission could be viewed positively, in the sense of being frank, it gives no confidence to the Tribunal regarding the applicant’s ability to be truthful, but rather indicates that he will tailor versions of events for migration advantages. 

23. The Tribunal has carefully considered the material cumulatively, including all the documents provided by the applicant.  Given the applicant’s own admissions that a number of the documents he had provided did not contain truthful information, and given the credibility concerns, the Tribunal does not accept that the documents provided by the applicant have probative value to resolve the identity issue.  The Tribunal does not consider academic records, transcripts or certificates or student cards to be reliable identification documentation.  For example, it is difficult to see how the Diploma of [Subject 5] from [University 6] in the name of [BAC], dated 1 October 2005, could be probative in resolving identity, when there is also information from [Country 2], namely the applicant’s fingerprints in [Country 2], which matched the recorded identity of [LM] ([DOB 4]), who was recorded as [a Country 3] national.  [LM] claimed that he had obtained employment with a [Workplace] in [Suburb] using a photograph substituted Nigerian passport in the name of [ABC] ([DOB 1]), document [number 3].  [LM] was removed from [Country 2] [in] July 2007.  In [Country 4], he claimed to be [AB] ([DOB 1]) born in Nigeria.  The documents before the Tribunal contain significant inconsistent information and do not resolve the identity issue.

24. The Tribunal has carefully considered the applicant’s response to the Notice, submissions, and documents.  On balance, the Tribunal finds that the applicant has operated under a number of aliases and has used a range of inconsistent identity documentation in Australia, [Country 2], and [Country 4]. He has conceded that he has intentionally provided incorrect information and misrepresented his identity to facilitate favourable migration outcomes.  For example, the applicant claimed, “When I applied for the [Tourist] visa I had to make my brothers seem like my kids because if I claimed that they were my brothers there was no way we were going to get a visa here…”.  It is a very serious claim to make that his half-brothers are his sons.  His reasons are not persuasive or convincing. 

25. In reaching its findings, the Tribunal has given regard to the correspondence from [Ms P], particularly the submissions dated 26 July 2010 by [Mr P], contending that the three applicants “fled their hometown following advice that their house had been burnt down and their parents bodies incinerated” and the submissions by [Mr Q], referring to the applicant’s original claim that he feared persecution in Nigeria and on the ground of his homosexual orientation.  The Tribunal asked the applicant about his sexual orientation; in response, he did not say he was homosexual, or bisexual, but that he prefers persons from the LGBTQI community.  In any event, those claims have been explored previously by the delegate who determined the application for a protection visa, as well as the RRT.  The Tribunal has also considered [Ms S’s] opinions that the applicant is honest.  The Tribunal appreciates that [Ms S] does have a positive view of the applicant, but her views do not overcome the Tribunal’s concerns about the applicant’s credibility.

26. In light of the above, and given the inconsistent names and personal details, the Tribunal is not satisfied as to the applicant’s identity. Therefore, the Tribunal concludes that there are grounds to cancel the Global Special Humanitarian (Subclass 202) visa under s 116(1AA) of the Act. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

27. There are no matters specified in the Act or Migration Regulations 1994 (Cth) that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

28. The applicant arrived in Australia as the holder of a Tourist visa.  The purpose of that visa is to visit Australia temporarily.  He lodged an application for a protection visa, which was refused, and the RRT affirmed the delegate’s decision.  He withdrew the judicial appeal of the RRT’s decision.

29. Following Ministerial Intervention, he was granted the Global Special Humanitarian (Subclass 202) visa.  There is evidence that the applicant has given misleading information about his identity and other aspects of his claims for protection.

30. The applicant maintains that he continues to fear harm and that he requires Australia’s protection. He has studied and has plans to continue his studies in Australia.

31. The Tribunal is satisfied that the applicant’s travel to Australia is not consistent with the objectives of the Tourist visa he was granted.

32. Given that the applicant’s claims for protection have been exhausted, the Tribunal does not consider the applicant’s claimed fear of harm and plans to study to be compelling needs to remain in Australia.

33. The Tribunal gives this consideration weight in favour of cancellation.

    ·The extent of compliance with visa conditions

34. There is no evidence of non-compliance. 

35. The Tribunal gives this consideration weight in the applicant’s favour.

    ·Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

36. The applicant gave evidence that he is no longer in contact with his half-brothers, who are now adults.  He does not have any children. He told the Tribunal that he is no longer with his wife, [Ms N].  He said they are now separated.  He said he has strong ties, friends, and support.  He has a passion for [Work specialisations 1 and 3].  In response to the Notice, the applicant noted that he has developed a deep, personal, and professional commitment to Australia’s cultural values. 

1. The Tribunal accepts that since his initial arrival in Australia [in] March 2009, the applicant has formed close friendships and ties.  It accepts that he has worked in Australia and formed collegiate relationships such as that with [Ms S], and that he intends to further his education.

2. The Tribunal is satisfied that cancelling the visa in these circumstances would cause personal, educational, financial, and psychological hardships.

3. The Tribunal gives this consideration weight in the applicant’s favour.

   ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

4. The circumstances in which ground for cancellation arose are that the applicant has provided a number of inconsistent identity details since his arrival in Australia in 2009. The evidence before the Tribunal indicates that the applicant did not declare identities, he used in both [Country 2] and [Country 4]. The provision of inconsistent identity details has meant that it is difficult to accept the applicant’s current claimed identity. The applicant is not a credible witness and on his own acknowledgement, he has intentionally misrepresented and did not disclose his criminal history overseas.

5. The Tribunal acknowledges that the applicant has made concessions and apologised. However, the Tribunal is not persuaded that the concessions and apology outweigh his conduct and misrepresentations.

6. There is no evidence before the Tribunal that cancellation arose as a result of family violence or that the applicant’s conduct was beyond his control. On the contrary, the applicant has accepted that the misleading information provided has caused and contributed to the identity concerns.

7. The Tribunal gives this aspect weight in favour of cancellation.

   ·Past and present behaviour of the visa holder towards the Department

8. For the reasons outlined above, the Tribunal has found that the inconsistent identity information provided by the applicant has meant the identity question is not resolved; although the applicant has acknowledged that he did provide incorrect information, he has maintained that he is [BAC] ([date of birth 2]). The applicant has not provided probative evidence to support his claimed identity.

9. The Tribunal gives this aspect weight in favour of cancellation.

   ·Whether there would be consequential cancellations under s 140

10. The delegate’s decision record indicates that despite the applicant’s claim that his half-brothers were granted visas on their own merit and that there would not be consequential cancellation, there is evidence that [Mr G] was granted a visa on the basis of being a dependent on the global special humanitarian visa.

11. On that basis, the Tribunal gives this aspect weight in the applicant’s favour.

    ·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

12. In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act.  The applicant would also be subject to Public Interest Criterion 4013, which would prevent the applicant from being granted a further visa for three years.

101.   The Tribunal is of the view that although the applicant could be detained indefinitely and that he has mental health challenges, these potential consequences are intended legislative consequences and, in the applicant’s case do not outweigh the reasons to cancel the visa.

102.   The Tribunal gives this consideration neutral weight.

·Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation.

103.   Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

104.   Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

105.   The Tribunal has considered whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.

106.   The applicant has been found not to be owed Australia’s protection obligations. He was granted the Subclass 202 visa following a positive Ministerial Intervention.  However, the applicant has claimed that he has protection claims.  Given the credibility concerns and on the basis of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or a real risk of the applicant facing harm if returned to the claimed country of harm, Nigeria. 

107.   On balance, the Tribunal is satisfied that Australia would not be in breach of any of its non-refoulement obligations in the case of the cancellation.

108.   The Tribunal considers non-refoulement obligations to be serious and reflect Australia’s commitment to, and respect for international instruments to which Australia has chosen to be a signatory.  For the reasons explained above and given that there would not be breach of any of Australia’s non-refoulement obligations in the case of the cancellation, the Tribunal has decided not to give this aspect weight in the applicant’s favour.

·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

109.   The Subclass 202 visa is a permanent visa. As discussed earlier, the Tribunal has been satisfied that the applicant has formed strong ties with individuals in Australia and the community.

110.   The Tribunal gives this aspect weight in the applicant’s favour.

·Any other relevant matters

111.   There are no other matters warranting consideration.

112.   The Tribunal has carefully considered the applicant’s circumstances.   The Tribunal considers the applicant’s conduct to be serious, and his personal explanations do not outweigh that conduct, nor do they outweigh the reasons to cancel.

113.   The applicant has apologised and made concessions. However, he has also conceded his inability to provide probative documents relating to his identity. The Tribunal acknowledges the concessions and the apology. The cancellation scheme is not intended to be punitive in any way nor is it intended to be a simple, quantitative, and numerical consideration of the matters to be taken into account in the exercise of discretion.  Although there are aspects in the applicant’s favour, particularly relating to his own circumstances, overall, and on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.  The applicant has engaged in conduct that is serious; he provided incorrect information about his criminal history (whether serious or not) and information that is fundamentally inconsistent about his identity.  Despite apologising, he continues to maintain a position that is not credible.

114.    On balance, the Tribunal considers that the matters in favour of the applicant do not outweigh the other aspects in favour of cancellation.

115.   The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

116.   The Tribunal affirms the decision to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Antoinette Younes
Deputy President