2203297 (Refugee)

[2022] AATA 3638

2203297 (Refugee) [2022] AATA 3638 (26 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Marta Mamarot

CASE NUMBER:  2203297

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Rodger Shanahan

DATE:26 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Statement made on 26 July 2022 at 3:04pm

CATCHWORDS  
REFUGEE – cancellation – protection visa – Iraq – ground for cancellation – convicted of an offence – armed with intent to commit indictable offence – assault occasioning actual bodily harm – destroy or damage property – subject of an AVO – consideration of discretion – seriousness of the visa holder’s criminal offending – non-refoulement obligations – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), s 116 
Migration Regulations 1994 (Cth), r 2.43 

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 25 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the visa-holder had been convicted against a law of the State of New South Wales. 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 8 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   consideration of Claims and evidence

5. 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)(g). 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.

   Does the ground for cancellation exist?

   s 116(1)(g) - prescribed ground

6. A visa may be cancelled under s 116(1) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

7. That Regulation essentially states that a temporary visa may be cancelled if the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed [if any]). The applicant stated that he had been convicted of three offences since being in Australia.

8. The visa holder never responded to the Notice of Intention to cancel his visa and therefore a response cannot be taken into account. During the hearing he claimed that he had been convicted of three offences but had no prior convictions. I do not accept this account and rely on the records provided by the Department. Given his record I am satisfied that the prescribed ground for the cancellation of his visa exists.

9. For this reason, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. 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

10. The Tribunal has had regard to lawful government policy and to other relevant considerations. Those considerations are dealt with from paragraph ?????? I am satisfied that the applicant had a meaningful opportunity to present arguments and give evidence in respect of the guidelines and other relevant considerations.

11. The Tribunal has also 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’.

    AAT Hearing

12. The applicant was advised about a s 375A certificate and was advised that it was valid and that the information was relevant and would be referred to later during the hearing. The applicant and was asked if he received the notification to cancel his visa and declined to respond. He said that he was in jail and wasn’t aware and nobody explained anything to him. He claimed that he wasn’t provided with an interpreter even though he asked for one. Asked how he dealt with other legal correspondence to do with his other legal matters, he said that the lawyer would call him with an interpreter.

13. He was asked if he spoke to his lawyer about the cancellation notice he received and he claimed the lawyer said he only dealt with criminal, not migration matters. Asked if he requested a migration lawyer his criminal lawyer could recommend, he said that he didn’t. Asked if he already had a migration agent, he said he had one but she asked for money and he didn’t have any so she left. Asked when she left, he claimed that it was three weeks ago – he had her from 2020. Asked if he had a migration agent when he received his approval in 2016, he said he didn’t but he had a case manager and that person provided an interpreter who told him he had been granted a protection visa.  

14. Asked how he found his migration agent in 2020, he said a friend had given him the agent’s number when he went into detention. Asked if he had any friends in prison or friends outside who could have recommended him a migration agent, he claimed that he didn’t as he trusted nobody. He didn’t trust anyone in prison and didn’t mix with anyone.

15. Asked if he tried to speak to his legal representative once he received the notification, he said that he did but they all asked for money and he had none. It was put to him that his visa had been cancelled under s 116 of the Act and the grounds were explained to him. He stated that he had been convicted of three offences and had an AVO taken out against him. He had no convictions prior to these.

16. He was asked if he had any family members in Australia and said he had a maternal uncle but hadn’t spoken to him since he was imprisoned. He hadn’t spoken to him since 2017 and didn’t get along with him. Prior to his arrest he lived in Sydney with his cousin. His cousin had returned to Iraq about three months prior. Asked if his cousin was on a visa, he said he was on a protection visa. Asked if his cousin’s claim had been accepted and was a citizen, the applicant said that the visa was approved but his cousin wasn’t an Australian citizen.

17. His cousin returned to Iraq because he had been in detention - he had returned to Iraq permanently. His cousin had the same charges – the same problem. In Iraq the visa-holder had his parents, brothers ([number]) and sisters ([number]). The names of his brothers were gone through. All but [Brother A] lived in Nassiriyah – he lived in Basra. His sisters still lived in Nassiriyah.

18. [Brother A] lived with his relatives in Basra because they had problems and had to leave Nassiriyah – he had been there since around 2011. The other brothers worked in a hairdressing shop. In Basra, he didn’t know what [Brother A] did. He was just in contact with his mother – the others were too busy and there was a time difference. It was put to him that plenty of people worked through the time difference, he said his mother was enough for him.

19. She didn’t talk about [Brother A] over the phone as [Brother A] had problems with the parties there. His mother thought the phones were tapped. Asked why he didn’t speak to her on WhatsApp or an encrypted device, he said he didn’t know.

20. Since the applicant had been in Australia he had been looking for work but was not employed. He got money from Red Cross but after he became a citizen (the Tribunal assumes he meant after his visa was approved) he got benefits. The applicant had not worked but had tried to. Asked where his cousin went, he said he went to Nassiriyah but thought he may have gone to [Country 1] subsequently. The applicant had spoken to his mother but she wasn’t very clear.    

21. He was asked if there was anyone in Australia who would be adversely affected if his visa was cancelled, and he said he had a girlfriend who lived with her mother in Sydney. She was an Australian citizen. He claimed that she had been his girlfriend since he had been in prison and detention, he said she did when he was in prison and now they spoke over the phone. He also had friends. His girlfriend didn’t speak English but spoke to him in it. He said he didn’t speak much English – asked how they communicated over the phone and in prison for five years if neither spoke the other’s language, he said he didn’t speak well, but he could speak it ‘maybe 50 per cent’. He met her at a club in [location] – he didn’t know the name of it.

22. Asked if they e-mailed each other he said they didn’t and just spoke over the phone and sent each other texts. Asked if he had copies of these he said that the officers took his phone but he had them. He Google translated the texts. Asked why he didn’t use Google translate to find out what his notification said – he claimed they were given nothing like a computer in prison.

23. Asked if he felt he had made a contribution to Australian society since being here, he said no Asked why his visa should not be cancelled, he said he had admitted he made a mistake and had problems waiting for him in Iraq and should have the visa re-instated.

24. Asked what the problems in Iraq were, he said that anything could happen, he had been kidnapped and his brother was in Basra and he didn’t want to go back there. Asked why he couldn’t go to Basra as his brother had been there for more than 10 years without a problem, he claimed that he wanted to feel safe, not fearful.

25. It was put to him that when he applied for protection in Australia, he claimed that he had no family anywhere else in Iraq and couldn’t relocate because there was violence and insecurity everywhere in Iraq. Yet he had said that [Brother A] had been living in Basra with members of his family for the last 10-11 years. The Tribunal had concerns that he wasn’t truthful when he claimed he had no family elsewhere and that it was possible to live elsewhere safely given his brother had done so for more than a decade.

26. He claimed that there was nowhere safe. The relatives [Brother A] lived with were distant and he was continuously moving. It was put to him that he had not mentioned that his brother was constantly moving previously, and the Tribunal had concerns he wasn’t truthful. It was put to him that the relatives must have been close enough to give his brother shelter for more than a decade, so they could conceivably do it for the visa-holder. He said he wanted to live a secure, safe life. Asked why his cousin went back to Nassiriya if he didn’t feel safe in Iraq, he claimed he had no idea about his cousin.

27. Asked how the rest of his family were able to live safely in Iraq from the Shi’a militias. The militias could have killed or kidnapped any of them in order to force he or his brother to return, yet they didn’t. He claimed that he had tattoos all over and had had a tattoo burnt off his body previously in Iraq. Asked if he had medical evidence of this, he claimed that the medical staff at Christmas Island confirmed this and he had burns on both arms and the sides of his chest – they were from iron rods. He wasn’t burn anywhere else. It was put to him that in his claim he said he had been burnt on his arms and buttocks by a cigarette. His brother had a hot iron put on his legs. He was asked why there was a difference in his accounts, and he claimed he said iron rods, not cigarettes.

28. It was put to him that the information in the s 375A certificate related to identity documents he presented to authorities when he arrived in Australia. It said that his Iraqi ID document was a legitimate document that had been altered and that his citizenship certificate was counterfeit. This raised questions in the Tribunal’s mind about his willingness to provide false information. It was accepted that he was Iraqi, but his name and age was suspect. He claimed that he only had these documents and could provide no others.

29. Asked who he travelled to Australia on the boat with, he said that it was with his maternal uncle and his two children, [Mr B] and [Mr C]. One of these people was the cousin with whom he shared a house in Sydney. Asked how he would support himself if he was to return to Iraq, he claimed he had nothing and couldn’t support himself. Asked how [Brother A] supported himself, or [Mr B] (cousin who returned to Iraq) did, he said that he didn’t know.

30. Asked how he would support himself if he stayed in Australia. He claimed that the government here would help him. If released he would work but life here was better than Iraq. It was put to him that the Tribunal had problems with his documentation when he came to Australia, there were inconsistencies in his claim about having tattoos burnt off, his claim not to be able to relocate seemed at odds with [Brother A]’s decade-long relocation with relatives, and had at least nine members of his family living without problems in Nassiriyah and his cousin had also recently returned there which would indicate that life there was okay. He said he had no idea how they were living. It was put to him that he surely would have enquired of them through his mother given his visa had been cancelled – he said that he didn’t ask.

31. Country information was put to him that tattoos were relatively popular amongst youth in Iraq, and he was asked why he would have any problems if he were to return to Iraq with tattoos. He said he had had problems in Iraq for a long time. A man could get killed every second day in Iraq.

32. Asked if there were any other issues that he wished to raise with respect to his visa cancellation, he said that there weren’t. Asked if he wanted more time to provide any evidence such as the texts between him and his girlfriend, he claimed he could provide this but three managers had not given his phone to him. He was advised he would be given a week to provide the texts.

    Discussion and Considerations

33. The applicant acknowledged receipt of the Notice of Intention to Consider Cancellation his visa however no response was received to it. The applicant claimed that he was unable to read or understand it because it was written in English and there was no translator available in prison. Whilst I acknowledge that responding to the Notice from prison may have presented some difficulties, it was by no means impossible to address the issues raised.

34. He was in contact with a lawyer who would speak to him through a translator on the phone. The applicant claimed that this person could not help him as he was a criminal lawyer, yet the applicant never asked his criminal lawyer if he could assist with finding, or recommend a migration lawyer. I also note that the applicant claimed that he was able to communicate from prison with his non-Arabic speaking girlfriend by translating text messages, so it is also possible he could have done the same with the Notice by asking someone to text the subject of the letter that would have at least alerted him to the seriousness of the subject.

35. Regardless, I am satisfied that the applicant was advised of the notification and failed to respond to the issues raised, even though it was within his power to do so.

36. The Tribunal has taken into consideration matters raised by the applicant as to why the visa should not be cancelled, as well as lawful government policy and other relevant considerations. The Tribunal is satisfied that the prescribed grounds for cancellation exist, and has taken the following matters into account when considering whether the cancellation of the visa is justified:

    a.Purpose of the visa-holder’s travel to and stay in Australia:

    The visa-holder arrived at Christmas Island [in] April 2012 as an IMA and sought protection. He was granted a Temporary Protection visa (subclass 785) on 25 July 2016. This was granted on the basis that his claim to fear serious harm in Iraq was accepted.

    I have considered the fact that he was granted a 785 visa previously and have given this some weight in the visa-holder’s favour

    b.The extent of their compliance with their visa conditions:

    The visa-holder had the conditions 8503[1], 8565[2] and 8570[3] attached to his visa. There is no evidence before the Tribunal that indicates that the visa-holder did not comply with these visa conditions. As a consequence I have given this some weight in the visa-holder’s favour.

    [1] Check visa details and conditions (homeaffairs.gov.au),

    [2] Check visa details and conditions (homeaffairs.gov.au)

    [3] Check visa details and conditions (homeaffairs.gov.au)

    c.The degree of hardship that may be caused to the visa-holder and any family members:

    The visa-holder entered Australia with a maternal uncle and two of his uncles’ sons. One of his cousins (with whom he used to live) had returned to Iraq a few months previously, while he claimed that he didn’t get along with his uncle and hadn’t spoken to him since 2017. He made no mention regarding his relationship with his other cousin. Given that of his three relatives who came to Australia with him, one has returned to Iraq, he is estranged from another and no mention was made of the third, I am satisfied that no hardship will be caused to his family members if his visa is cancelled. The visa-holder mentioned a long-term girlfriend however I found this claim to lack credibility, particularly given the language gap between them. He was offered the opportunity to provide evidence of their ongoing relationship post-hearing, however none was provided.

    The visa-holder has not been employed since being in Australia and has lived off benefits. He has not made a substantive contribution to Australian society since being here, does not speak English and has no family connections of any substance here. I note that he claimed he had nothing and couldn’t support himself. However, he has a large family in Iraq and would be back in an environment that is culturally and linguistically familiar to him While returning after a decade away would undoubtedly take some getting used to, he has a large support network available to him to re-settle. He would be able to seek work commensurate with his qualification and skill level

    I don’t believe that cancellation of his visa would cause him significant hardship and therefore I do not give this any weight in favour of the visa-holder, but give it some weight towards the decision to cancel the visa.

    d.The circumstances in which the cancellation arose (taken from the decision document attached to the applicant’s Application for Review) :

    On 14 September 2017 the visa-holder was convicted of three offences (armed with intent to commit indictable offence, assault occasioning actual bodily harm, destroy or damage property). He was sentenced to a total of 19 months gaol (the head sentence was reduced from 12 to 10 months on appeal). He was also the subject of an AVO against the individual who was the victim of the offences for which the visa-holder was charged. 

    He had previously been convicted of ‘custody of a knife in a public place’ (11 May 2017), ‘destroy or damage property’ (25 October 2016) and ‘possess prohibited drug’ (31 October 2016) for which he was variously sentenced to a good behaviour bond, convicted with no penalty or fined. No mitigating circumstances were offered for his offending and, given the number of offences over a relatively short period and the seriousness of the most recent ones that entailed a period of imprisonment, I give the visa-holder’s criminal behaviour significant weight in favour of cancelling the visa.

    e.The visa-holder’s past and present behaviour towards the department:

    The visa-holder never responded to his NOICC and hence I give this no consideration in the visa holder’s favour.

    f.Any consequential cancellations that may result:

    Given the visa-holder is the sole applicant on the visa, there are no consequential cancellations and hence I have not given consideration to this matter.

    g.Legal consequence of a decision to cancel the visa:

    On 25 July 2016, the visa holder was granted a temporary protection visa, and I accept that he must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of his protection status.

    I understand that should the visa holder’s visa be cancelled, he will be subject to ss46A and 48A of the Act which means that he will not be able to apply for another visa whilst in Australia, including a protection visa, unless the Minister lifts the relevant bars using his personal non-compellable powers under s46A(2) and s48B(1), respectively.

    Additionally, if the visa holder’s temporary protection visa is cancelled he will become an unlawful non-citizen and will be liable for immigration detention under s189 and removal under s198 of the Act. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    I am mindful that even if I cancel the visa holder’s visa, the Minister has a personal non-compellable power in s195A of the Act to grant a visa to him if he thinks it is in the public interest to do so. I am also mindful that if the Minister does not consider exercising that power, or does not exercise it in the visa holder’s favour, he will be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to Iraq, having regard to s197C.

    The visa holder will also be subject to Public Interest Criterion 4013 for three years, if the visa is cancelled.

    As a consequence of the above I give this some weight in favour of the visa-holder.

    h.Australia’s international obligation:

    The visa holder was found to engage Australia’s protection obligations and was granted a Temporary Protection Visa on 25 July 2016.

    Accordingly, he remains a person in respect of whom Australia has protection obligations, subject to any reassessment of his protection claims. There is also no information available to indicate that Australia has other international obligations that may be impacted by cancellation of the visa holder’s visa.

    I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of the visa holder’s criminal offending in the making of my decision whether to cancel the visa holder’s temporary protection visa.    

    In order to do this I examined the circumstances of the applicant’s original claim for protection and subsequent events in Iraq relevant to his claim that have occurred since the visa-holder was granted a protection visa.

    To begin with, the applicant arrived in Australia with documents that after examination, were found to have either been altered (his Iraqi ID document) or was counterfeit (citizenship). This raised issues regarding his willingness to provide false information to further a migration outcome.

    Further concerns regarding his truthfulness were raised when describing the alleged situation of his brother [Brother A] in Iraq. During the hearing he claimed that [Brother A] had been forced to live with relatives in Basra since 2011. Yet in his protection visa application he claimed that he had no family anywhere in Iraq other than Nasiriyah and that as a result he couldn’t relocate.

    I do not accept that the relatives [Brother A] were staying with were only distant ones and that [Brother A] was constantly moving around. These claims were only made when the inconsistency with his previous evidence was pointed out to him.

    I am also not satisfied that his original claim to fear serious harm was truthful. He claimed at the time that Shi’a militia targeted him and [Brother A] because they opened a tattoo shop in Nasiriyah. Yet media reports from around that time showed that tattoos in Iraq were quite popular.[4] There were also inconsistencies in the visa-holder’s claims – at the hearing he claimed that the militia had burnt tattoos off his arms and chest using an iron rod. Yet in his claim for protection he claimed that he had been burnt on the arms and buttocks by militia using cigarettes.

    His family have lived in the same location in Nasiriyah for the past decade without problems from the Shi’a militia, and his cousin voluntarily and permanently left Australia and returned to Nasiriyah a few months previously. This would indicate that the visa-holder’s family is of no interest to the militia and at least one relative believes that it is safe to return.

    I do not accept that the applicant knows little about his family other than what his mother is doing. His claims regarding the reason for his ignorance – the time difference and the fact his mother believed the phones were tapped were unconvincing. Sydney is only seven hours ahead of Nasiriyah and the visa-holder has been unemployed for most of his time in Australia so he could have spoken to his family if he wished. He could also have spoken to his mother over an encrypted App if they were legitimately fearful that the phones were tapped.

    I do not accept that the applicant could be harmed because of his belief that ‘A man could get killed every second day in Iraq.’ No basis for this belief was given, and it appears to be inconsistent with his cousin’s willingness to voluntarily return to the area in Iraq from which he had come to Australia.

    I have not accepted that the applicant is, or was ever of interest to the Shi’a militia because he worked in a tattoo shop a decade ago I am satisfied that there was not a real chance of serious harm because of this at the time he left Iraq.

    Given that I do not accept that the applicant was of interest to the Shi’a militias in Iraq, or that they are currently interested in him or are likely to become interested in him,  that there was nowhere safe in Iraq, that he lacked relatives in Iraq other than in Nasiriyah, that he had tattoos burnt off his body, that he would have problems because he had tattoos, I am not satisfied that there would be any breach by Australia of its non-refoulement obligations if the applicant were returned to Iraq.

    As a consequence I gave this some weight in favour of the decision to cancel the applicant’s visa.

    i.Any other matters

    There are no other matters to consider.    

    [4] Mum, imam and Saddam: what daring young Iraqis are saying with tattoos | Iraq | The Guardian, accessed 4 July 2022.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   decision

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

   Rodger Shanahan
   Member