MUTHAFAR (Migration)

[2019] AATA 6079

MUTHAFAR (Migration) [2019] AATA 6079 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mikdad Muthafar
Mrs Fatimah Mahmood Abdulabari Al-hameed
Master Shakir Al-Muthafar
Miss Yasmin Al-Muthafar

CASE NUMBER:  1811970

DIBP REFERENCE(S):  BCC2013/1127607 OSF2011/027563

MEMBER:Kira Raif

DATE:8 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass (155) (Five Year Resident Return) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 October 2019 at 5:22pm

CATCHWORDS
MIGRATION – cancellation – Residence (Return) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in visa application – in application for refugee and humanitarian visa (sponsored by mother), claimed not to be married or have dependents – in wife’s application for prospective marriage visa, she claimed to be widowed – bogus documents relating to her first husband, herself and son – in wife’s application for partner visa (sponsored by applicant), claimed to have married before applicant’s refugee visa application – marriage kept secret from mother for cultural reasons – older brother not married yet – birth of son not reported to department – other incorrect information not corrected – discretion to cancel visa – factors for and against cancellation – effect of incorrect information on refugee visa decision – eligibility for refugee visa not limited to persecution or harm, but also to family circumstances – at the time of the application for refugee visa as secondary applicant, was not a member of the immediate family of the primary applicant – inconsistent evidence as to whether mother unaware of marriage, or aware but chose not to include it – best interests of children, including two Australian citizens – applicant an Iraqi citizen who left at age one and a half, with no right of return to Iran – non-refoulement obligations – family’s life in Australia, including children’s schooling – entire family in Australia, and siblings are Australian citizens – mother’s health and applicant’s carer obligations – failure to inform Centrelink of cancellation of visa – decision under review affirmed with regard to first applicant, no jurisdiction with regard to other applicants

LEGISLATION

Migration Act 1958 (Cth), ss 101, 104, 107, 109(1), 140(1), (2), 359A

Migration Regulations 1994 (Cth), r 1.12AA, Schedule 2, cl 200.311

CASE

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 Immigration to cancel the first named applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a national of Iraq, born in June 1979. He was granted the Class BB Resident Return visa on 24 July 2012. On 12 February 2014 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided his response and the visa was cancelled on 3 April 2014.

3. The applicants sought review of the delegate’s decision. In August 2014 the Tribunal (differently constituted) affirmed the decision under review. The applicants sought judicial review and in April 2018 the matter was remitted to the Tribunal for reconsideration.

4. The applicant provided a submission and extensive supporting evidence to the Tribunal on the late evening of 1 October 2019. As the hearing was scheduled for 8.30 am on 2 October 2019, such late provision of arguments and supporting material was less than helpful. No explanation is offered by the applicant’s representative for the extremely late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the applicant was represented by the same agency since April 2018 and, in the Tribunal’s view, the representative had ample time to provide written submissions and evidence earlier than the night before the hearing. The applicant was represented by Turner Coulson Immigration Lawyers.

5. It is unclear from the evidence before the Tribunal whether the visas of the applicant’s spouse and child were cancelled under s.140(1) or s.140(2). If the visas were cancelled under s.140(1), the Tribunal notes that this would involve automatic cancellations and as a consequence of that cancellation by force of the operation of s.140(1) of the Act and not a decision. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants. If such cancellations occurred under s.140(2), the Tribunal notes that the applicant’s spouse and child have separate applications for review before the Tribunal.  

6. The applicants appeared before the Tribunal on 2 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

7. 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.

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

   Did the notice comply with the requirements in s.107? 

9. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

10. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

12. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant and his siblings made an application for a Class XB Refugee and Humanitarian visa in April 2006. They claimed to be members of the family unit of Zainab Mithafar who was the primary applicant. They were sponsored by the applicant’s mother Ms Salwa Al Khersan, who entered Australia in February 2000 and held a permanent visa.

    b.The applicant completed Form 842 and in that form, he gave the following answers

    i.In response to a question about his marital status, the applicant stated ‘never married’

    ii.In response to Question 11 ‘do you have a husband, wife, de facto or any dependents who normally live with you but who is not applying to enter Australia?” the applicant stated ‘no’.

    iii.The applicant signed the Declaration at Question 51, stating that the information he supplied on the form was complete, correct and up to date in every detail.

    c.The applicant also completed Form 80, which he signed and dated on 20 September 2006.

    i.In response to a question about his marital status, the applicant stated ‘never married’.

    ii.In response to Question 14 about his spouse, the applicant stated ‘n/a’

    iii.The applicant signed the Declaration at Question 34 stating that the information he supplied in the form was correct in every detail. The applicant also declared that he had read and understood the information supplied by him.

    d.The applicant was granted the Subclass 200 visa on 24 April 2007 and arrived in Australia on 23 August 2007. Since that time and before the NOICC was issued, the applicant made six trips in and out of Australia between March 2008 and October 2012.

    e.On 29 September 2008 Ms Fatmah Abdulbary made an application for a Prospective Marriage visa, sponsored by the applicant. Included in that application was Ms Abdulbary’s son Hamed Shaker born in January 2006.

    f.In her application, Ms Abdulbary stated that she met the applicant in June 2006 and they became engaged. Ms Abdulbary claimed that her first husband was deceased. She provided a number of personal and identity documents. A document examination report prepared by the Department found that the death certificate for Ms Abdulbary’s husband, her and the child’s national ID cards were counterfeit and that the custody document for the son was based on the counterfeit death certificate. Her application was refused in March 2010.

    g.In March 2011 Ms Abdulbary, using the name of Fatmah Mahmood Al-Hameed, lodged an application for a Partner visa in Subclass 309, sponsored by the applicant. The application included Ms Abdulbary’s child Hamed Shaker, using the name of Shakir Al-Mudhafar.

    h.In the Partner visa application, Ms Al-Hameed gave the following answers:

    i.In response to Question 66 ‘when and where did you and your fiancé or partner first meet?’, Ms Al-Hameed stated ‘12 June 2002 in Iran’.

    ii.In response to Question 67 ‘how long after you met did you and your fiancé or partner begin a relationship?’ Ms Al-Hameed stated ‘one week’.

    iii.In response to Question 68 ‘when did you and your fiancé or partner make the decision that you both wanted to commit to a long term…relationship or intended to marry each other?’ Ms Al-Hameed stated ‘14 July 2002’.

    iv.In response to Question 69 ‘when and where did you begin a married or de facto relationship with your fiancé or partner?’ Ms Al-Hameed stated ‘26 September 2002 in Iran’.

    v.In response to Question 74 ‘if applying on the grounds of marriage, give details of marriage’, Ms Al-Hameed stated ‘6 July 2005 in Iraq’.

    i.Ms Al-Hameed’s application was accompanied by a sponsorship from the applicant. When completing the sponsorship form, the applicant gave the following answers:

    i.In response to Question 9 ‘when and where did you and your fiancé and partner first meet?’, the applicant stated ‘12 June 2002’.

    ii.In response to Question 11 ‘how long after you met did you and your fiancé or partner began a relationship?’ the applicant stated ‘one week’.

    iii.In response to Question 12 ‘when did you and your fiancé or partner make the decision that you both wanted to commit to a long term… relationship or intended to marry each other?’, the applicant stated ‘14 July 2002’.

    iv.In response to Question 13 ‘when and where did you begin a married or de facto relationship with your partner?’ the applicant stated ‘26 September 2002’.

    v.In response to Question 14 ‘the person you are sponsoring is your…’, the applicant stated ‘spouse’. The applicant stated that they married on ‘6 July 2005 in Iraq’.

    j.Ms Al-Hameed included with her application a marriage contract issued in Iraq on 6 July 2005 showing the marriage between the applicant and Ms Fatmah Al-Hameed (aka Fatmah Abdulbary).

    k.In support of the application:

    i.The applicant’s mother provided a statutory declaration dated 14 October 2010. In that declaration, she referred to the applicant’s marriage to Ms Fatmah Al-Hameed and the birth of their son.

    ii.Ms Al-Hameed provided a statement dated 16 January 2011 detailing her marriage to the applicant on 26 September 2002.

    iii.Ms Al-Hameed provided a copy of her personal identity card dated 17 July 2005 which refers to her marriage to Mikdad Shakir Abdulghani, a name the applicant is also known by.

    iv.The applicant submitted a written statement dated 20 February 2011 detailing his relationship with Ms Al-Hameed and their marriage in September 2002.

    l.Ms Al-Hameed was granted the Spouse visa in September 2012 and her son Shakir Al-Mudhafar was granted the visa as a member of her family unit.

13. In his written response to the NOICC dated 4 March 2014 the applicant states that he submitted the form as the main applicant and not as a secondary applicant and met the primary criteria for visa grant. The applicant states that he would have been granted the visa regardless of his marital status and the outcome of the application would not have been affected and he could have included his wife and child in the application. In oral evidence to the present Tribunal the applicant confirmed that he did not apply in his own right but was included as a member of the family unit in an application made by another person. The applicant said that it was his representative who provided his response to the NOICC and he was not aware that the information contained in that response was incorrect.

14. The applicant submitted that he chose not to disclose that information for cultural reasons and to avoid displeasing his mother. The applicant refers to the hardships his mother experienced and states that she developed a psychological condition and her children were concerned for her health and tried to please her. The applicant refers to the Partner application in which he claimed that they kept his marriage secret from his mother and he only confessed to his mother after his son was born. The applicant states that for this reason and in good faith he did not mention his marriage when he made the application and he apologised for providing incorrect answers, stating that he acted in good faith and did not intend to mislead the Australian government.

15. In his oral evidence to the first Tribunal and present Tribunal the applicant concedes that he provided incorrect answers in his application form. The applicant provided a declaration to the present Tribunal in which he refers to his responsibilities towards his mother and the cultural expectations. The applicant explained that they had a religious marriage in 2003 but he knew his mother would not accept it because his elder brother has not been married yet. When his wife learned she was pregnant, they had to register the marriage because giving birth outside of marriage was not acceptable.

16. The Tribunal is prepared to accept that the applicant did not wish to disclose his marriage to his mother. However, the Tribunal does not consider that the applicant’s obligations to his mother outweigh his obligations under the Migration Act or justify the provision of incorrect answers when completing the forms.

17. The Tribunal finds that the applicant completed his April 2006 application form in a way that incorrect answers were given in relation to his marital status by stating that he was never married and did not have a partner. The Tribunal finds that by the time the forms were completed, the applicant did have a partner and had been married. The Tribunal finds that the applicant failed to comply with s.101 of the Act in the way described in the s.107 notice. The Tribunal finds there are grounds for cancelling his visa.

    Should the visa be cancelled?

18. 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).

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

    The correct information

20. The marriage papers show that the applicant met his wife in 2002 and married in a religious ceremony in 2002. In his oral evidence to the present Tribunal the applicant said it was impossible for them to have met in 2002 and they actually met in 2003. In oral evidence to the present Tribunal the applicant confirmed that he met his wife in 2003 and they married under the Islamic law in 2003 and legally registered their marriage in 2005. The correct information is that the applicant did have a spouse at the time he completed the application forms in 2006.

    The content of the genuine document (if any)

21. This is not relevant in this case.

    The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

22. In his response to the NOICC the applicant states that he obtained the visa as the primary applicant and would have met the requirements for the grant of the visa irrespective of his marital status. The applicant states that in his application, he relied on humanitarian grounds because his father was threatened and he was subjected to persecution and if he indicated his marital status as married, he would have been granted the visa due to the serious harm he would have encountered in his home country. The applicant submits that the incorrect information is not serious enough to cancel the visa. However, an assessment of the applicant’s eligibility for the visa was not limited to an assessment in relation to harm or persecution. The applicant’s marital status and the family composition, the circumstances of his family and their residential arrangements may have been relevant to the assessment of such harm as these are significant factors affecting the applicant’s daily life. The presence of any dependants or other members of the family unit may have also been relevant in determining whether the applicant met the health criteria for the grant of the visa.

23. The applicant’s evidence to the present Tribunal is that he was included as a secondary applicant and met the secondary criteria for the visa grant and that the information contained in his written response to the NOICC was incorrect. The Tribunal finds, on the basis of the applicant’s own evidence, that the applicant met the visa criteria as a secondary applicant and not as a primary applicant. As such, the applicant would have been required to meet the secondary criteria for visa grant.

24. The Tribunal finds that the applicant would not have met r.1.12AA and that he was not a member of the immediate family of the primary visa applicant because he was not the spouse, dependent child of a parent of the primary visa applicant. To meet the requirements of r.1.12, the applicant would have to establish, in accordance with r.1.12(1)(e), that he had never married or is widowed, divorced or separated. If the applicant did not establish that he was a member of the family unit of the primary visa applicant or a member of the immediate family of the primary visa applicant, the applicant would have been unable to meet cl.200.311. The Tribunal finds that the correct information about the applicant’s marital status could have resulted in the applicant not being able to meet the criteria for visa grant.

    The circumstances in which the non-compliance occurred

1. In his response to the NOICC and his evidence to the Tribunal the applicant stated that he kept his marriage secret from his mother and that is the reason he did not disclose it in his visa application. The applicant referred to his mother’s poor health and his desire to protect his mother. The applicant repeated these claims in his evidence to the Tribunal and he provided various statements concerning his obligations to his mother. In his written submission to the Tribunal of 1 October 2019 the applicant states that it was his mother who completed the forms and she did not know about his marriage. The Tribunal finds that evidence problematic. The applicant had an obligation to provide correct answers and truthful information in his visa application. The applicant’s relationship with his mother, and his claimed desire to protect his mother, do not override such obligations. The Tribunal does not accept that the applicant had a legitimate reason (or that he genuinely believed he had a legitimate reason) to be providing incorrect answers in his migration application because of his relationship with his mother.

2. The Tribunal also notes that the applicant’s evidence to the first Tribunal was somewhat different. The applicant told the first Tribunal that his mother was against his marriage because she wanted to bring the family together. The applicant told the first Tribunal that his mother may have realised that his marriage may affect his eligibility for the visa but he claims he was not aware of that. However, as the Tribunal noted in its s.359A letter to the applicant, his wife attended an interview with the Department on 18 April 2011 in relation to the Spouse visa application and she is recorded to have stated in that interview that the reason the applicant’s mother did not want the applicant to marry was because she was pursuing the migration application. The applicant’s wife is recorded to have told the Department that the applicant did not declare his marriage because he was afraid his visa would be refused and his siblings’ visas may also be affected. (The applicant denies that information was given at the interview by his wife.) That contradicts the applicant’s evidence that he did not declare his marriage in the visa application because his mother was unaware of the marriage. That evidence suggests that the failure to disclose the marriage was intentional and deliberate to enable the applicant to obtain the visa. The applicant responded to the Tribunal’s letter but he stated that he had no knowledge of the immigration laws and could have included his wife and child if he was the main applicant.  In oral evidence to the Tribunal the applicant also denied that his wife would have given that information in her interview and the applicant said that his wife knew that his mother did not approve of the marriage.

3. In his oral evidence to the present Tribunal the applicant stated that he did not complete any forms and he was only asked to sign the forms. He had no experience with migration matters and was uneducated and trusted whoever filled in the forms. The applicant stated that it is normal in his country and he only signed without checking because that is what he has always done. The applicant states that he was uneducated and ignorant and not responsible for the forms. The Tribunal is mindful, however, that the applicant was aged 26 at the time the application was made and was a mature adult. He was not a minor. Whether the applicant completed the forms himself or another person completed the forms on his behalf, the Tribunal is of the view that the applicant had the responsibility of checking the content of the application form, even if the forms were completed by another person. The Tribunal is also mindful that the applicant signed two declarations stating that the information he provided was correct and that he understood the information. Neither does the Tribunal accept that the applicant was uneducated and ignorant of the process as this was his first application. The Tribunal does not consider that any significant level of education or specialist knowledge of immigration laws is required for the applicant to understand that he must familiarise himself with the content of any document that he signs. The Tribunal finds that the applicant had the responsibility of checking the content of the documents before signing the forms or having the forms submitted on his behalf.

4. The applicant’s mother gave oral evidence to the Tribunal about the hardships she and her family suffered in Iraq and Iran and the circumstances of her arrival in Australia. The Tribunal is prepared to accept that evidence but the Tribunal is mindful that the issue here is the applicant’s non-compliance in relation to his own visa application in 2006 and not the family’s circumstances prior to that application.

   The present circumstances of the visa holder

5. In his written response to the NOICC the applicant provided his taxation records and evidence of his employment.

6. The applicant stated in his submission to the delegate that he is a carer for his mother and he provided evidence of being in receipt of a carer allowance. The applicant refers to his mother’s condition and states that he is the caregiver for his mother. The applicant told the Tribunal that he used to work between 2008 and 2011 but stopped working then became a carer for his mother.

7. The applicant provided evidence of his children’s schooling. The applicant provided further evidence of his circumstances to the Tribunal. The applicant refers to having three children, born in 2006, 2013 and 2015. The younger two children are Australian citizens. The applicant states that although his eldest son was born overseas, he does not understand much Arabic. The applicant refers to the best interests of his children. These are addressed below.

8. The Tribunal accepts that considerable hardship would be caused by the cancellation of the visa.

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

9. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.

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

10. The applicant told the Tribunal that his son was born in 2006, before he was granted the visa, but he did not inform Immigration about the changes in his circumstances. The Tribunal is mindful that under s.104 the applicant had an obligation to inform about changes in his circumstances and the applicant appears to have failed to comply with s.104 of the Act.

    The time that has elapsed since the non-compliance

11. The application for the visa was made in 2006. More than 13 has years passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

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

12. The applicant told the Tribunal that he has been supporting himself through carer payments since 2011. The applicant’s visa was cancelled in 2014 and he has not been a permanent resident of Australia since that time. The applicant informed the Tribunal that he did not know he had to inform Centrelink that he is no longer a permanent resident of Australia and he would have informed Centrelink if he knew of his obligation. The Tribunal does not accept that the applicant was unaware that he had to inform Centrelink about the changes in his circumstances but even if that was the case, the Tribunal does not consider that the applicant’s claimed lack of understanding or knowledge of the Australian laws regarding Centrelink entitlements justifies the applicant’s failure to provide the information to Centrelink.

    Any contribution made by the holder to the community.

13. The applicant provided to the delegate his taxation records. The applicant also provided statements from Hussaineyat Ale Yassin, Iraqi Renaissance and Australian Ahl Albait Islamic which refer to his voluntary work. The Tribunal accepts that the applicant has made a contribution to the community through the payment of taxes when he was employed and through his voluntary activities.

14. 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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

15. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The cancellation of the applicant’s visa would also affect the visas held by his partner and child. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements he may have acquired as an Australian permanent resident.

    Whether there would be consequential cancellations under s.140

16. In his written response to the NOICC the applicant states that if his visa is cancelled, the visas held by his wife and two children will be consequently cancelled and they will be affected if forced to return to Iraq. The Tribunal notes that the visas held by the applicant’s spouse and son have been cancelled and it appears that such cancellations occurred under s.140(2) rather than consequentially cancelled under s.140(1).  Such cancellations would require consideration of their circumstances. The applicant’s two younger children are Australian citizens and are not holders of any visas.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

17. The applicant told the Tribunal that he cannot return to Iran because he has no visa and no right to return to Iran. The applicant states that he was born in Iraq and was one-and-a-half years old when he left Iraq and he is not certain whether he could return to Iraq. He said he approached the Iraqi Consulate in Australia and was asked to provide additional evidence of his Iraqi nationality, which he could not do, so he was denied the passport. It is unclear from the applicant’s evidence if he claims he cannot obtain the Iraqi citizenship documents because he is stateless or because he cannot provide supporting documents to obtain the Iraqi passport. The Tribunal notes that the applicant was born in Iraq. There is no evidence that he was denied Iraqi citizenship or that he had renounced his Iraqi citizenship, even if he does not have evidence of it. The applicant’s representative confirmed that there is no claim that the applicant is stateless and the applicant would be treated as an Iraqi citizen.

18. The applicant refers to the poor and unsafe situation in Iraq and states that he could not survive there. The applicant refers to the harm and persecution he would experience in his home country. The applicant states that he has a well-founded fear of persecution in is country of original as his father opposed the Iraqi regime, which led to the family moving to Iran in 1982. The applicant states that he is unwilling to return to Iraq and it would be unreasonable to cancel his visa and remove him to Iraq where he could be subjected to serious harm. Without undertaking an assessment of the applicant’s circumstances, the Tribunal is prepared to give the applicant the benefit of the doubt and, for the purpose of this application, accepts that non-refoulement obligations may arise in this case.

19. The applicant’s three children live in Australia. In his response to the NOICC the applicant states that his son has commenced schooling in Australia and he cannot obtain the same education in Iraq. The applicant states that his daughter, who was born in November 2013, is eligible for the Australian citizenship but her citizenship may be cancelled if the applicant’s visa is cancelled. (This is not apparent to the Tribunal and the applicant confirmed in his evidence to the Tribunal that his two younger children are Australian citizens.) The Tribunal accepts that the applicant’s three minor children reside in Australia. While the two younger children may maintain their Australian citizenship, given their age, they cannot live independently and if the applicant’s visa is cancelled and if the applicant and his spouse are required to leave Australia, the children are likely to follow the parents. The visa of the applicant’s son may also be affected by the cancellation of the applicant’s visa. The Tribunal accepts that the family have settled in Australia and that the children attend schools and are used to life in Australia. The Tribunal is prepared to accept that they may not have the same opportunities in Iraq. The Tribunal accepts that the best interests of the children would be best served if the visas are not cancelled and if the family is permitted to remain in Australia.

20. The applicant told the Tribunal that he has four brothers and two sisters who are Australian citizens and his entire family is in Australia. The applicant’s children are in Australia although his wife’s and son’s visas have also been cancelled. The Tribunal accepts that the principles of family unit would be best served if the applicant was permitted to remain in Australia.

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

21. In his response to the NOICC the applicant refers to public interest considerations and states that there are unique and exceptional circumstances to be considered. The applicant states that he would face harm and continued hardship if he is returned to his country of citizenship. He states that his family and children may be harmed, and possibly kidnapped or killed. The applicant provided to the Tribunal a number of country reports and additional information has been provided to the Tribunal. As noted above, the Tribunal is prepared to give the applicant the benefit of the doubt, for the purpose of this application and without a full assessment of his claims.

22. The applicant provided to the delegate a number of character references and additional references have been provided to the Tribunal, including those in his post-haring submission of 4 October 2019. The Tribunal accepts that those who provided references believe the applicant to be a person of good character.

23. The applicant told the Tribunal that he is willing to take any punishment for his mistakes but his children should not be punished and he cannot leave his children without a father. The Tribunal accepts that the applicant’s primary goal is to protect his children.

24. The applicant states that he has no qualifications and no career and cannot survive in his home country. He told the Tribunal that prior to coming to Australia, he used to work in a factory on a casual basis because they were not allowed to be employed and could not get any state benefits. The applicant states that he left Iraq when he was less than two years of age and may not be accepted back. Even if he does return to Iraq, he has not lived there, has no qualifications and no family and nobody to help him. He cannot live in Iran because his residence permit has been cancelled. From 2002 his family in Australia had been supporting him. The applicant has not provided any evidence to indicate that his family cannot support him in the future, should he be required to leave Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled and if the applicant has to leave Australia.

25. The applicant states that he is the primary caregiver to his mother who requires his care as his siblings have other responsibilities and also his mother prefers him to be her carer. In his response to the NOICC the applicant states there is a ‘high chance’ that his mother’s condition could worsen if the applicant is returned to Iraq as she has a safe and peaceful country for her and the children. The applicant states that his mother is in ‘severe need of ongoing support and care attention’ which would not be possible without the care of the applicant. The Tribunal does not accept the totality of that evidence. The applicant presented very little evidence of the support and care he provides to his mother – other than the fact that he receives a carer allowance – and there is very little evidence to support his claim that other care would not be available to the mother if the applicant is not able to provide such care. The Tribunal considers it notable that in his evidence to the first Tribunal the applicant confirmed that his mother had made several trips overseas with other relatives and without him. That would suggest that at least some form of assistance was available from other sources or that the applicant’s mother was able to rely on others, at least in some circumstances, contrary to the applicant’s claim that he was the sole caregiver to his mother. Nevertheless, the Tribunal is prepared to accept that the applicant acts as a carer for his mother and that it is his mother’s wish that he, and not other relatives, act as her carer. The Tribunal also accepts that some degree of hardship would be caused to the applicant’s mother if the applicant was required to leave the country.

26. The primary decision record indicates that in support of the Partner visa application made by the applicant’s spouse, the applicant completed the Sponsorship Form 40SP in which he stated they met in June 2002 and committed to a relationship in July 2002. In his oral and written evidence to the present Tribunal the applicant stated that it is logically impossible for them to have met during Saddam Hussein’s rule and they met in 2003 and not 2002. The applicant stated that there may have been a mistake in the marriage contract and his migration agent advised that the information had to be consistent with the marriage certificate, and that is the reason they referred to 2002 on the application forms. The Tribunal is of the view that if the marriage certification was incorrect, it was open to the applicant to provide the correct dates and to indicate there was a mistake in the marriage certification. The applicant has not done that, instead referring to what he now claims to be an incorrect date as the date when they met and formed a relationship. The applicant told the Tribunal that he did not think it was important and what was important was the marriage certification and he followed the advice of his lawyer. Thus, the applicant appears to have decided for himself what was or was not important and he chose to provide incorrect information because he formed the view that it was unimportant. The Tribunal finds that the applicant deliberately and knowingly gave incorrect answers in the sponsorship form 40SP when sponsoring his wife for the Partner visa in relation to the dates when the couple met and formed the relationship.

1. The applicant also blames his agent for providing incorrect answers in the 2008 Fiancé visa application made by his spouse. The applicant claims that he told the agent about the information and the agent explained that they could only get the Fiancé visa by claiming his wife was previously married and her husband had died. The applicant’s evidence is that he obtained that advice from the agent in Australia and on advice of this agent, they made arrangements for his wife through his wife’s brother. That is, even though it was his wife who was the primary applicant in that application, it was the applicant who made arrangements to provide incorrect answers on the form and the bogus documents in relation to that application.

2. The applicant states that he has spent a lengthy period of time in Australia and that he and his family would be distraught if they were to leave Australia and separated from the family in Australia. The applicant states that his family would also be saddened by the separation and his children’s future would be affected. He has no skills and no business and cannot support his children overseas. His entire family is in Australia and he cannot leave his children. The Tribunal accepts that the applicant’s preference is to remain in Australia and the Tribunal is prepared to accept that the applicant and his family would be ‘saddened’ if the applicant was to depart Australia. The Tribunal also accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant had not complied with s.101 of the Act. 

4. The Tribunal accepts that the applicant has been living in Australia for a lengthy period and is settled in Australia. He has contributed to the community through his voluntary activities and the payment of taxes. The Tribunal accepts that the best interests of the children may be that the visa is not cancelled so that the applicant may remain in Australia with his family and the applicant’s wife’s and son’s visas are not affected by the consequential cancellation. The Tribunal accepts that the cancellation of the visa would also affect the applicant’s family. The Tribunal is also prepared to give the applicant the benefit of the doubt and finds that the applicant may be subjected to a risk of harm if he were to return to his home country, so that non-refoulement obligations may arise in this case. The Tribunal accept that considerable hardship would be caused to the applicant and his family if his visa is cancelled. The Tribunal accepts that the applicant would experience significant hardship if returned to his country, particularly if he was to return to Iraq where he has not lived since a very young age and where he claims he has no connections, opportunities or support. The Tribunal accepts that the applicant’s entire family are in Australia and that hardship would also be caused to the family if the visa is cancelled and the cancelation of the applicant’s visa may also lead to the cancellation of the visas held by others. The principles of family unity require the applicant’s presence in Australia.

5. The Tribunal places significant weight that two of the applicant’s children are Australian citizens and so are his mother and other siblings. The Tribunal accepts that the applicant has carer responsibilities towards his mother and his children.

6. The Tribunal accepts that the applicant has spent considerable time in Australia and that over 13 years has passed since the non-compliance. The Tribunal considers there are strong reasons why the visa should not be cancelled.

7. However, the Tribunal has formed the view that other considerations outweigh those noted above.

8. The Tribunal places weight on the fact that the applicant had been dishonest in his dealings with the Department. His evidence to the Tribunal is that he obtained advice from an agent in Australia and based on that advice, they had sought bogus documents in support of his wife’s Fiancé application. The applicant also admits to providing incorrect information in the 2011 Partner application made by his wife by providing incorrect dates when the couple met and formed the commitment to the relationship. The applicant repeatedly blamed others for these mistakes, stating he acted on the advice of agents. In relation to the 2008 application, the applicant’s evidence indicates that it was the applicant who sought advice and arranged for his partner to act on that advice by providing the dishonest information in order to obtain the visa. Such information was central to the parties’ claims, as it was relevant to the assessment of the parties’ relationship and the child’s identity and paternity. The incorrect information in the 2011 application, which related to the length of the relationship, was also significant to the issues that arose in that application. The applicant’s willingness to provide untruthful information and bogus documents to the Department, or to arrange for such information and documents to be provided in relation to an application for which he was the sponsor, weighs heavily in favour of the cancellation and also suggests that the applicant is generally not a person of credibility.

9. The applicant also told the Tribunal that he failed to inform Centrelink about the changes in his circumstances and the fact that he is no longer the holder of a permanent visa. The Tribunal finds that the applicant has not been truthful with that agency as well.

10. There is another instance of non-compliance as the applicant failed to inform the Department about the birth of his child in 2006 before he travelled to Australia and was immigration cleared, which is in breach of s.104 of the Act.

11. The applicant expressed remorse for his actions but the Tribunal is not satisfied the applicant is genuinely remorseful for his past conduct. In his oral evidence to the present Tribunal the applicant repeatedly stated that he did not know what he signed when he made his own visa application and he simply signed the forms without reading these. In relation to the subsequent applications by his partner, the applicant states that he disclosed the relationship and the child in the 2011 application and because his wife’s visa was granted, he believed the Department accepted his claims. He claims he did not inform Centrelink because nobody told him that he should. The applicant appears to have no appreciation of the fact that he had some responsibly for the content of the forms which he had signed and other documents that were submitted with his application or his sponsorships. The applicant told the Tribunal that even if he knew about the content of the forms, he would not have mentioned the marriage because he did not want to upset his mother. That is, the applicant is willing to provide untruthful information if he determines that it better suits his circumstances. The applicant appears to have not accepted any responsibility for his actions. The Tribunal has formed the view that the applicant has no insight into his conduct.

12. The Tribunal finds that the applicant has been persistently untruthful in his dealings with Immigration and was involved in providing incorrect information or bogus documents in his own visa application and two applications made by his wife. These matters are strongly in favour of the cancellation.

13. The Tribunal also places significant weight on the fact that the incorrect information was either relevant to the decision to grant the visa to the applicant if the applicant met the primary criteria or, if the applicant relied on meeting the secondary criteria – which on his own evidence to the present Tribunal was the basis of his application – the correct information may have disqualified the applicant from the eligibility for the visa.  That is, the applicant may not have been granted the visa if the correct information was known. The Tribunal is of the view that this consideration outweighs other considerations that do not support the cancellation.

14. Overall, while the Tribunal accepts there are strong reasons why the visa should not be cancelled, the Tribunal finds that the applicant’s other breaches, his dishonest dealings with the Department and the significance of the incorrect information on his eligibility for the visa outweigh other considerations. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the first named applicant’s Subclass (155) (Five Year Resident Return) visa.

16. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member