Assi (Migration)

[2022] AATA 3674

Assi (Migration) [2022] AATA 3674 (8 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Assi

REPRESENTATIVE:  Dr Mohamed AL Jabiri (MARN: 9803754)

CASE NUMBER:  2204940

HOME AFFAIRS REFERENCE(S):          BCC2021/1445246

MEMBER:Kira Raif

DATE:8 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 08 September 2022 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – applicant’s New Zealand passport is a bogus document –– grounds for cancellation exist – hardship to the applicant – applicant’s parents and siblings live in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of New Zealand. He was most recently granted the Special Category visa on 5 February 2020. The applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) in December 2021 because the delegate formed the view that he did not comply with ss. 101 and 103 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss. 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

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

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss. 102 and 103 of the Act.

   Primary decision

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant last entered Australia on 5 February 2020, and on arrival, he completed an Incoming Passenger Card (IPC) in which he gave his date of birth as 11 March 1987. The applicant also presented his New Zealand passport, issued in January 2020, with the same date of birth. The applicant was assessed as meeting the requirements for the grant of the Special Category visa and he was granted that visa.

9. The primary decision record indicates that the Department holds the applicant’s Iraqi passport issued in July 2011 which shows his name as Abduallah Assi Ezran Al Ezran with the date of birth as 16 November 1984.

10. It is recorded that the applicant was interviewed by an officer of the Immigration Department in October 2013. In the course of that interview, the applicant is reported to have

    -confirmed the existence of two passports, an Iraqi one and a New Zealand one, containing his photographs,

    -stated that he had formally changed his name in New Zealand out of fear,

    -stated that his name at birth was Abduallah Assi Ezran Al Ezran and that his date of birth was 11 March 1987. He then said that he was born on 16 November 1984 but had changed his date of birth.

11. On the following day the applicant attended a further interview with an Immigration officer and retracted what he previously stated. The applicant stated that the photograph in the Iraqi passport was not his but belonged to a friend. The applicant explained that he was holding his friend’s passport to get the Australian visa for him.

12. The primary decision record indicates that an examination of the applicant’s addresses in Australia suggested that his father and siblings also lived in Australia. The applicant denied that, stating that only his wife and daughter lived in Australia. However, the suspected father’s records show that he had a son Abdullah Issey Al Ezran born in Kuwait on 16 November 1984. The delegate also notes that the applicant presented his AFP certificate showing several names he had been known by, including the name Abdullah Assi Ezran Al Ezran and Abdullah Essey Ezran, born on 16 November 1984.

13. The primary decision record indicates that in August 2020 the applicant applied for a Skilled visa and submitted Form 80. In that form, in response to a question whether he had a different date of birth, the applicant stated 16 November 1984.

14. The delegate concluded that the applicant gave incorrect information about his date of birth in the IPC and that his date of birth is incorrectly recorded in the NZ passport. The delegate found that the New Zealand passport is a bogus document because it was obtained because of a false or misleading statement concerning his date of birth. The delegate formed the view that the applicant had given incorrect date of birth to the UNHCR and the NZ authorities when first applying for residence to give the impression he was a minor and he continued to provide incorrect information to the Department, supported by a fraudulently obtained NZ passport, to gain immigration benefits in Australia to which he may not have been entitled (the primary decision record does not specify what benefits the applicant had obtained in Australia by potentially mis-stating his date of birth). The delegate found that the applicant

    -did not comply with s. 102(b) of the Act because he gave an incorrect date of birth on his IPC,

    -did not comply with s. 103 of the Act because he provided a bogus document to the Department, on each occasion he presented his fraudulently obtained NZ passport to the Department staff.

15. The delegate also noted that the applicant is likely to have provided the same ‘fraudulent information’ to other Australian government agencies.

16. The Tribunal considers some of the above findings problematic. Whether or not the applicant had provided ‘fraudulent information’ to any government agency other than in relation to a visa application is entirely irrelevant to determining whether the applicant had complied with the provisions of the Migration Act and whether there are grounds to cancel his visa. Neither is it relevant to the present decision if the applicant misled the New Zealand authorities in order to obtain a benefit.

    Applicant’s evidence

17. In his response to the NOICC the applicant notes that his documents, including the passport, were legally issued in New Zealand after his visa was granted. The applicant states that all the documents he submitted to New Zealand on his arrival and the subsequent passport and citizenship were genuine, which means the NZ government was satisfied of his identify and nationality. (The Tribunal does not accept that argument because the NZ authorities may not have necessarily had the full information when issuing the passport, including the discrepancies in the applicant’s dates of birth.) The applicant suggests that he is being singled out in a discriminative way, but the Tribunal considers that suggestion unhelpful. It is clear that there are some discrepancies in the applicant’s stated dates of birth, and he now concedes he had provided incorrect information when obtaining the New Zealand passport and on the IPCs, so the concerns raised by the delegate were entirely legitimate.

18. The applicant claims in his submission to the delegate that the Iraqi authorities estimated dates of birth of the deported Bedoons and for that reason, the passport he gained from Iraq had a different date of birth which is not his original date of birth. That is the reason he did not give his passport and the date ‘any respect or consideration’ as that information was irrelevant and incorrect.

19. The applicant states that the issue of the NZ passport is the responsibility of New Zealand and the Department can communicate with the NZ authorities to get the information. The applicant states that he changed his name in New Zealand in 2015 and evidence of that was presented to the Department. The applicant also notes that in all his past dealings with the Department, these issues have not been raised.

20. In his written statement to the Tribunal the applicant states that he was born in Kuwait of Bidoon origin in November 1984 and his family live in Australia. The applicant refers to the persecution he and his family had experienced in Kuwait and Iraq. (The Tribunal acknowledges that evidence but does not consider it justifies the provision of incorrect information in the applicant’s dealings with the Australian immigration authorities, when the applicant was already a New Zealand citizen and not subject to any persecution). The applicant states that he arrived in New Zealand in 2005 and in 2009 decided to travel to Australia to seek work. The applicant states that his passport identified their neighbour, and family friend Uday as his father and the applicant refers to being ‘adopted’ by Mr Uday, so he carried his name. The applicant states that he later found out that his father and brother were living in Australia and his father applied for ‘family reunion’ for the whole family. The applicant states that he had to decide whether to keep the name of Uday or return to his family and his clan in Australia, especially as the community knew his father and knew that he was his father’s son. He decided to change his name back to his ‘real name’ and approached the New Zealand consulate in Sydney in 2015. He was issued with the new passport in his correct name of Abdullah Assi and there was no ‘confusion or forgery’. The applicant notes that the New Zealand authorities accepted his change of name application and did not doubt him, so the Australian authorities should not ‘intervene’. The applicant states that all the information he provided to the Department was true, including his date of birth.

21. The applicant’s representative also provided a submission outlining the applicant’s background and circumstances. He also states that the applicant was born stateless in Kuwait and his family were deported to Iraq. He was adopted by his neighbours and included in their application to UNHCR. They resettled in New Zealand where the applicant continued to live with that family, and he came to Australia in 2009 after being granted the New Zealand citizenship. After a few years he met his biological family and in 2015 he decided to change his name back to reflect his biological father, which was done through the New Zealand embassy in Australia.

22. The applicant’s representative submits that he has been honest and had never intentionally provided bogus documents or incorrect answers. The applicant states that during the October 2013 interview, he answered all the questions correctly and when applying for the Skilled visa, he also mentioned the different date of birth. The applicant states that he has been living lawfully in Australia, working and is of good character. 

23. The applicant’s oral evidence to the Tribunal was substantially different (and seems to contradict the information contained in the submissions made by his representative). The applicant told the Tribunal that he was born in November 1984. The applicant states that in 2000 he spoke to his neighbour about leaving the country due to political issues. He was about 16 at the time. He went to Jordan with the neighbour and lived there until 2005 and then they moved to New Zealand. The applicant states that at the time when he left Iraq around 2000, he was included as part of the neighbour’s family. He did not have any Iraqi documents when he left Iraq, and once they arrived in Jordan, they registered with the UN. The applicant states that he does not know what information his neighbour wrote but he thought the neighbour gave him a different name (Mizyad) and the 1987 date of birth when registering with the UNHCR. He did not question his neighbour and was not concerned about it at the time because he was only worried about his safety. The applicant states that in 2005 he travelled to New Zealand. The neighbour used the UN documents to get the New Zealand identity documents for him in the name Myzyad and using the 1987 date of birth.

24. The applicant states that he obtained permanent residence in 2009 and straight away he travelled to Australia. In 2015 he had formally changed his name. The applicant states that he could not change his name to the real name and date of birth while living in New Zealand because he had no documents other than his UNHCR document. He changed the name in 2015 because his children were born, and he made an effort because he wanted his children to know the real name of their father.

25. The applicant states that in 2011 he travelled to Syria to marry and at around that time he obtained the Iraqi passport. To get the passport he used his birth certificate which was issued in Iraq when he was very young. He believes the birth certificate had his correct name of Abdullah Assi and the correct date of birth of 1984. The applicant states that he could not use the correct name and date of birth in New Zealand because the neighbour had already given different information and he did not want to be inconsistent with the information that was already given, and he did not want to cause trouble for the neighbour.

26. The Tribunal finds, on the basis of the applicant’s evidence to the Tribunal, that he was born in 1984. The applicant admits that in obtaining the New Zealand passport, he claimed (on the basis of his UNHCR registration) that he was born in 1987. That date of birth is incorrect. The Tribunal finds that the New Zealand passport was obtained because of a false or misleading statement about the applicant’s date of birth. The Tribunal finds that the applicant’s New Zealand passport is a bogus document within the meaning of s. 5(c) of the Act. The Tribunal finds that the applicant did not comply with s. 103 of the Act each time he presented the bogus New Zealand passport to the Australian authorities.

27. The information in the primary decision record indicates that when completing the IPC in 2020, the applicant stated that his date of birth was 1987. He admits that his correct date of birth is 1984. The Tribunal finds that the applicant gave the incorrect answer on the IPC in 2020 when he claimed his date of birth was 1987 and not 1984 which he now concedes is his correct date of birth. The Tribunal finds that here was non-compliance with s. 102 of the Act.

28. For these reasons, the Tribunal finds that there was non-compliance with ss. 102 and 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

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

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

    The correct information

31. The correct answer on the IPC would have a different date of birth for the applicant.

    The content of the genuine document (if any)

32. The genuine New Zealand passport would show a different name and date of birth for the applicant.

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

33. The non-compliance relates to the provision of incorrect date of birth on the IPC and the presentation of a bogus NZ passport which has been found to contain incorrect name and date of birth. However, it is not in dispute that the applicant is a national of New Zealand. There is no suggestion that there are any concerns about his character. It appears that the applicant would have qualified for the grant of the Special Category visa whatever his date of birth and name at birth.

34. However, the Tribunal is also mindful that in granting the applicant the visa, and when deciding whether to immigration clear him, the immigration officer would have assessed the applicant’s identity and that includes consideration of the applicant’s name and date of birth. His proof of identity was the New Zealand passport, which had the incorrect date of birth and incorrect name. The Tribunal considers that the applicant’s identity would have been relevant to the decision to grant him the visa and to immigration clear the applicant. Thus, while the applicant may have been granted the visa even if the correct information was known, and even if he would have been immigration cleared, the Tribunal has formed the view that the decisions to grant him the Special Category visa and to immigration clear the applicant were based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

35. The applicant explained to the Tribunal that when he travelled to New Zealand, he relied on the information in the UNHCR document (which had the incorrect name and date of birth) to obtain the New Zealand identity documents and he continued to use that incorrect name and date of birth in his subsequent interactions with the authorities because he was either scared or did not want the discrepancies to be known and did not want to cause trouble to his neighbour. The applicant claims he could not do anything. The Tribunal does not accept that evidence. The applicant was in his mid-20s when he obtained the New Zealand passport in 2009 and, as an adult, he was responsible for the content of his application and his interactions with the New Zealand authorities.

36. The applicant (and his representative) seem to suggest that because the applicant did not wish to make trouble for his neighbour, he could not disclose truthful information. The Tribunal does not consider that the applicant’s desire not to cause trouble to others justify the provision of false information, and the failure to correct untruthful information, in the applicant’s dealing with the immigration authorities.

37. The applicant also claims he was scared of not getting the visa and being separated from his family. That evidence suggests that the applicant put his personal interests and his desire to live in Australia above his obligations to comply with the Australian laws.

1. As for the incorrect date of birth on the IPCs, the applicant states that he wanted to be consistent with the official documents. With respect to the date of birth on the IPC, the applicant told the Tribunal that when completing the IPC, he put down the date of birth recorded in his New Zealand passport (1987) and not his correct date of birth because he was relying on the New Zealand passport and did not want to cause any confusion.

2. The applicant states that he had no chance to explain his circumstances when getting the visa as it was granted automatically. He states that he “did not think it was a big deal at the time” and all he wanted to do was to live with his children peacefully. The Tribunal does not accept the applicant’s claims that he had no option and no opportunity to explain his situation. He had ample time during his residence in New Zealand to explain that his UNHCR documents had incorrect information and had time and opportunity to engage with the New Zealand immigration authorities and also with the Australian immigration authorities during more than ten years of his residence in Australia. Not only did the applicant fail to do that but he continued to provide false information in his various dealings with the Immigration Department (as noted below).

   The present circumstances of the visa holder

3. The applicant presented very little documentary evidence about his  present circumstances. The applicant states that he has been living in Australia since 2009 and wants to settle here and stay here with his parents and siblings. The applicant states that he has a good relationship with his family. The Tribunal is prepared to accept that evidence.

4. The applicant told the Tribunal that he married his wife in 2011 and in 2013 his wife came to Australia holding a subclass 461 visa. They family lived in Australia until 2018 and had three children, who are New Zealand citizens. He applied for a permanent Skilled visa in 2018 but could not include his wife and children, so they returned to Iraq. The Department told them it would take three months for them to come back but ‘nothing happened’. The applicant told the Tribunal that his application for the Skilled visa is still ongoing.

5. The applicant states that he does not want to live in New Zealand and bring his wife and children to New Zealand because there is no work there and he cannot support his family. The applicant presented no evidence to support his claim that he would be unable to find suitable employment, nor is there evidence before the Tribunal that the applicant recently sought employment and was denied suitable employment. The Tribunal does not accept the applicant’s claim that if he was to return to New Zealand, he would be unable to find employment to support his family.

6. The applicant refers to his employment in Australia in the security industry, stating that he works in a hospital. The Tribunal accepts that evidence.

7. The applicant told the Tribunal that he is mentally distressed and worried because of his separation with his wife and children and that is affecting his mental health. The applicant’s claims are unsupported by any probative evidence, for example, from health professionals.

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

8. Nothing adverse is known about the applicant’s behaviour, although the Tribunal notes the applicant had not been truthful in his other dealings with Immigration and the Tribunal, as set out below.

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

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

   The time that has elapsed since the non-compliance

10. The last IPC was completed in 2020 and approximately two years passed since the non-compliance with s. 102 of the Act. In terms of non-compliance with s. 103 of the Act, these occurred on each occasion when the applicant entered Australia between 2009 and 2020.

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

11. There are no known breaches of the law and the applicant claims he was always law-abiding.

    Any contribution made by the holder to the community

12. The applicant states that he works as a security guard in a hospital, and he helps the elderly and he also acts as a volunteer security guard for community activities. The applicant presented no evidence of these activities, but the Tribunal is prepared to accept the applicant has made some contribution to the community.

13. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

14. There are no persons whose visas would be subject to consequential cancellation. The applicant claims that if his visa is cancelled, others would be affected, including his children, but whether or not that is the case, there is nothing to suggest there would be any consequential cancellations if the applicant’s visa is cancelled.

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

15. The applicant told the Tribunal that his three children were born in Australia and are New Zealand citizens. The applicant states that his children are used to lives in Australia and have better opportunities in Australia. The applicant states that he knows the environment in New Zealand and the environment is better for them to live in Australia where it is safer, and they have the extended family.

16. The applicant presented no evidence to support his claims. As noted above, there is no evidence before the Tribunal, and the Tribunal does not accept, that the applicant would be unable to find suitable employment in New Zealand and support his family. The applicant has not satisfied the Tribunal that his children would have more limited opportunities in New Zealand compared to Australia. The applicant has not satisfied the Tribunal that the New Zealand environment is not suitable for his children. While he claims his children are used to living in Australia, the Tribunal is mindful that they have been living in Iraq for a number of years and the applicant has not provided evidence to establish that his children have not been able to get used to life in a foreign country. As for their connection to the extended family in Australia, the Tribunal is of the view that the applicant will be able to maintain contact with the family in Australia by electronic means, as they have done during their residence in Iraq.

17. Overall, the applicant has not satisfied the Tribunal that the best interests of his children would be adversely affected if his visa is cancelled.

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

18. The applicant states that if his visa is cancelled and he has to return to New Zealand, he may be stopped and questioned at the airport and there would be nobody to support him. The Tribunal does not consider that these events give rise to Australia’s non-refoulement obligations.

19. The applicant states that he is worried he may not be able to bring his wife and children to New Zealand if his visa is cancelled. The Tribunal is mindful that the applicant’s children are New Zealand citizens and can enter New Zealand at any time. As a New Zealand citizen, the applicant may be eligible to sponsor his wife for a New Zealand visa. The Tribunal does not consider these claims give rise to Australia’s protection obligations.

20. In terms of family unity, the applicant’s parents and siblings live in Australia while his wife and children live in Iraq. He can be reunited with his wife and children at any time if he returns to New Zealand. The Tribunal does not consider that the principles of family unity would be breached if the applicant’s visa is cancelled.

21. The Tribunal has formed the view that non-refoulement obligations do not arise in this case. The Tribunal is also mindful that the applicant is able to seek protection in Australia, should he believe that non-refoulement obligations arise in his circumstances.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

22. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and would be subject to detention and removal from Australia. There is no suggestion the applicant would be detained indefinitely. The applicant would have limited options of seeking other visas in Australia due to the operation of s. 48 and would be subject to an exclusion period in relation to some offshore visa applications.

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

23. The applicant states that if his visa is cancelled, it would affect him mentally. The applicant states that he does not know what would happen in the future and he is worried his family cannot come to New Zealand. As noted above, the children are New Zealand citizen and can freely enter New Zealand, the applicant himself can live in New Zealand as a citizen and, in all likelihood, his wife can seek a New Zealand visa on the basis of her relationship with the applicant.

24. As for the applicant’s claims that he would be ‘investigated’ in New Zealand, the Tribunal is of the view that as a New Zealand citizen, the applicant and his children can remain in New Zealand indefinitely whatever ‘investigations’ are carried out and there is nothing before the Tribunal to indicate that there is any intention to cancel the applicant’s New Zealand’s citizenship.

25. The applicant claims that if his visa is cancelled, he may lose his job, but he also told the Tribunal that since his visa was cancelled, he has been working on a bridging visa. The Tribunal accepts that if the applicant was to leave Australia, as a result of his Special Category visa being cancelled (and there is little information as to whether he is entitled to a Bridging visa on the basis of his ongoing Skilled visa application), the applicant may be unable to maintain his employment in Australia.

26. The applicant states that if his visa is cancelled, he may not be able to see his parents and siblings as he may not be able to re-enter Australia. The Tribunal acknowledges that the applicant would be subject to an exclusion period before he can return to Australia if his visa is cancelled, but he will be able to seek  other Australian visas in the future, after the exclusion period ends. The Tribunal thus does not accept the applicant’s evidence that he would not be able to see his family in Australia, even if there is a period of separation. The applicant also states that his children will not be able to see their extended family. The Tribunal notes that as New Zealand citizens, the children can re-enter Australia freely and while the Tribunal acknowledges that due to their age, they cannot travel independently, there may be options for them to visit the family in Australia, either by the family bringing them to Australia or when the applicant is able to re-enter Australia in the future, if he is granted another visa.

27. The Tribunal acknowledges that if the applicant’s visa is cancelled, there is a real possibility that the applicant will have to leave Australia and that it may be several years before he is able to return to Australia. The Tribunal acknowledges that it may practically mean that his wife and children cannot travel to Australia in the immediate future (leading to separation from his family in Australia) but as noted above, the applicant will be able to seek visas in the future once the exclusion period ends.

28. The Tribunal places considerable weight on the fact that the applicant has not been truthful in his dealings with the Department in the past. There are significant inconsistencies in his evidence as noted below:

    a.The applicant told the Tribunal that his real date of birth is November 1984 and that is consistent with his evidence that he was about 16 when he left Iraq in 2000. However, in his response to the NOICC he states that the November 1984 date of birth was incorrectly recorded by the Iraqi authorities and he did not pay attention to that date. That response indicates that the November 1984 was not his correct date of birth, contradicting the applicant’s oral evidence to the Tribunal. The applicant explained to the Tribunal that there was inconsistency between his Iraqi passport and his New Zealand passport, and he did not know which to use. He claims he did not want to confuse anyone and was only worried about being able to live in Australia. while that may be the case, the Tribunal finds that the applicant had provided incorrect information in his response to the NOICC.

    b.It is recorded in the primary decision record that in the 2013 interview, the applicant stated that he had formally changed his name in New Zealand out of fear. His evidence to the Tribunal is that he had changed his name to the genuine name (having used a false name when registering with UNHCR and upon arrival in New Zealand) because he wanted his children to use the genuine name.

    c.In his 2013 interview the applicant is recorded to have initially stated that he was born in March 1987 before claiming he was born in November 1984 while the applicant now claims he was born in 1984 and not in 1987. It is also recorded that in the second interview in 2013 the applicant claimed the Iraqi passport was not his but belonged to a friend. He admits that information was untrue. The applicant explained to the Tribunal that he was scared and confused and did not know what to do and wanted to stay in Australia. As noted elsewhere, the Tribunal does not consider that the applicant’s desire to remain in Australia justifies the provision of incorrect answers.

    d.In his written submission to the Tribunal made in August 2022 the applicant claims (through his representative) that he answered all questions in the 2013 interview correctly. That is the clearly not the case because the applicant admits to having lied in the second 2013 interview, when he claimed his Iraqi passport was not his but belonged to a friend. The applicant’s representative submits that he has made a ‘mistake’ but the matter is not important, but the Tribunal does not consider the provision of incorrect evidence to the Tribunal to be ‘not important’.

29. It is of significant concern to the Tribunal that the applicant continued to be untruthful in his 2013 interview and as recently as in his response to the NOICC and his August 2022 submission to the Tribunal. On each of these occasions the applicant provided incorrect information to the immigration officer or the Tribunal. He claims he was scared he would not be allowed to see his family, but the applicant’s persistent lack of candour shows, in the Tribunal’s view, his general disregard for the law. These matters weigh in favour of the cancellation.

30. The applicant claims that he has had many dealings with the Department, and nobody had ever raised any concerns with his documents in the past. The Tribunal is mindful that the applicant was interviewed in relation to his passport in 2013 so it is not correct to state that the issue has not been raised. In the Tribunal’s view, that fact that no action was taken to cancel the applicant’s visa in the past does not affect the possibility of the present proceedings.

31. The applicant’s representative refers to the applicant’s status as a Bedoon and the situation of Bedoons in Kuwait and Iraq. The representative refers to the situation of the family at the time the applicant left Iraq. The Tribunal acknowledges that evidence but the issue here is the applicant’s interactions with the Australian Department of Immigration, not the circumstances of his departure from Iraq. By the time the applicant entered Australia, the applicant was an adult, he was a New Zealand citizen and was not at any risk of harm or of deportation to Iraq.

32. The representative submits that the applicant could not disclose the truthful information to the authorities in New Zealand because it could jeopardise the situation of his ‘sponsor’. The representative submits that the applicant was obliged to put the same information to the New Zealand authorities as was on his UNHCR documents. The Tribunal does not accept this is so, as the applicant would have had an opportunity to explain his circumstances to the New Zealand authorities. To the extent the representative submits that it was permissible for the applicant to be untruthful in his dealings with Immigration because he was ‘protecting another person’, the Tribunal does not consider that such lack of candour was justified.

33. The representative claims that the applicant had ‘confessed’ and ‘come clean’ in 2020 and for that reason he should be showed leniency. It is not apparent to the Tribunal how the applicant had ‘come clean’ in 2020, given his consistent provision of false information in his response to the NOICC and to the Tribunal.

34. The representative submits that the New Zealand authority had granted the applicant the passport and the Australian authority should not question that. However, in determining whether there are grounds for cancelling the visa, it is imperative for this Tribunal to determine whether there the applicant had presented a bogus document (his New Zealand passport). A finding by this Tribunal that the applicant’s New Zealand passport is a bogus document does not affect the validity of the passport grant by the New Zealand authorities.

35. The representative repeatedly told the Tribunal that the applicant’s mental health would be affected if his visa is cancelled. The Tribunal does not accept that evidence in the absence of any probative evidence from health professionals.

36. The representative refers to another Tribunal decision where the Tribunal had set aside the cancellation of the visa and he refers to many other cases he has been involved in. The Tribunal does not consider these submissions to be helpful, as each decision is based on its own circumstances and the particular facts of the case.

37. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant has not complied with s. 102 and s. 103 of the Act and that there are grounds for cancelling his visa. The Tribunal has found that the breach was deliberate because the applicant knew his New Zealand passport contained incorrect information (name and date of birth) and he presented that document to the Australian authorities. He also knew that the date of birth he stated on the IPC was not his genuine date of birth. The Tribunal is unpersuaded by the applicant’s explanation that he wanted to be consistent or did not want to cause trouble to his ‘sponsor’ because the Tribunal is of the view that such matters do not justify the provision of incorrect answers. The Tribunal also places significant weight on the fact that the applicant had repeatedly provided incorrect information in his other dealings with Immigration, including the 2013 interview, his response to the NOICC and his written evidence to the Tribunal. All these factors weigh heavily in favour of the cancellation.

1. However, in the circumstances of this case, the Tribunal has decided to place greater weight on other factors. Most significantly, the Tribunal has formed the view that the applicant would have been entitled to the Special Category visa, and to be immigration cleared, irrespective of his name at birth and his date of birth, that is, if the correct information was known. The Tribunal also places weight on the fact that the applicant’s parents and siblings live in Australia and that he prefers his children to remain in Australia with the extended family. The Tribunal acknowledges that if the applicant’s visa is cancelled, that may result in his separation from his family in Australia and may cause some hardship to the applicant and his family, including loss of employment. These factors weigh against the cancellation.

2. In all the circumstances of this case, the Tribunal decided to place greater weight on the factors that weigh against the cancellation.

3. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   decision

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

   Kira Raif
   Senior Member