1514049 (Refugee)

[2016] AATA 4243

1514049 (Refugee) [2016] AATA 4243 (1 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514049

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Rea Hearn Mackinnon

DATE:1 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 01 August 2016 at 5:48pm

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 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act which provides that “a non-citizen must fill in his or her application form in such a way that no incorrect answers are given”. 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 26 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.   Extracts of the Act relevant to this case are attached to this decision.

   Background

8. The applicant arrived in Australia [in] June 2010 as an irregular maritime arrival. He made a Refugee Status Request (RSA) [in] September 2010 which included a statement setting out his claims. He was found to be a refugee [in] January 2011. He made a protection visa application [in] April 2011 and was granted a protection visa [in] April 2011.

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

9. There is a question as to whether the notice issued by the Minister’s delegate complied with s.107. 

10. The non-compliance identified and particularised by the delegate in the s.107 notice was “incorrect information in the RSA request lodged [in] September 2010 and at [several specified questions] of your protection visa application form because you made claims in relation to being a refugee and that you would not be able to return to Iraq for fear of persecution at the hands of the authorities in Iraq”.

11. The basis for the delegate’s finding that there had been non-compliance with s.101 was that the applicant had “freely entered Iraq on three separate occasions for long periods living with his spouse and [number] children,” which led the delegate to the view that his claims that he would be harmed and killed by extremists if he returned home to Iraq “are false or misleading given you have returned to Iraq voluntarily and engaged with Iraqi authorities upon your entry and exit in Iraq”.

12. Whilst the RSA request form and statement of claims is not an application form for the purposes of s.46 of the Act as required by s.101 of the Act, the content of the RSA request was adopted by the applicant in his subsequent 866 Protection Visa application form made [in] April 2011 and therefore appears to fall within the ambit of ss.99 and 101.

13. The applicant made a number of claims in his RSA request including that he was arrested in 1997, convicted of membership of [a political party][1] and jailed for two years in [a specified] prison; that he went to [another country] in 2002 to seek protection and registered with the UNHCR but returned to Iraq after the fall of Saddam Hussein because he thought it would be safe; that he joined [a security agency] in 2004 and worked in the [specified] office in charge of protecting [another government agency]; that militias were active in his area and targeted [security officers] who worked for the government; that he was targeted and on one occasion militias [attacked] at his house to intimidate him; that in 2010 he saw people he suspected to be militia members unloading weapons into a neighbouring house; that he could not report this to the police as many militia members were in the police and security forces and a [work] friend of his had been killed by the Mahdi Army in 2006 after reporting a similar activity; that he told a trusted supervisor; that [a different security group] arrested the men who were members of the Al Haq group[2]; and that his supervisor told him that his name was on the file and that Al Haq and Mahdi Army members knew he had reported them and advised him to leave to save his life. The applicant claimed to fear harm from the Al Haq group, the Mahdi Army and the [specified] tribe (to which the arrested men belonged) because they knew he had reported the men who were arrested. He stated that the militias were able to uncover his identity because they had infiltrated [his security agency]; and that if he moved to another area, he would have to register with the mukhtar (mayor) and his identity and association with [his agency] could be passed on to the local militias.  

    [1] [Deleted.]

    [2] Asa’ib Ahl Al Haq (the League of the Righteous), established in 2004 as an elite militia within the Mahdi Army, a Shia insurgency group founded by Islamic cleric Muqtada Al-Sadr in 2003 known for committing severe violence

14. The s.107 notice does not identify which parts of the information in the RSA request are incorrect or why they are incorrect.  It may be surmised that the delegate considers the information that the applicant feared harm from Al Haq, the Mahdi Army or the [specified] tribe to be incorrect based on the applicant’s subsequent return to Iraq however this has not been specified. Rather, there has been a blanket reference to “the information in the RSA request” without any particulars of the aspects of the applicant’s claims set out above which the delegate considers to be incorrect or false and misleading. The s.107 notice must be sufficient to fairly inform the applicant of the basis upon which cancellation is being considered.[3] This seems particularly necessary given that the claims above have previously been found to give rise to an objectively well-founded fear of harm.

    [3] Zhao v MIMA [2000] FCA1235

15. Nor does the s.107 notice set out particulars of why the delegate considers the answers to [the several specified questions] of the applicant’s protection visa application form are incorrect.

16. For these reasons, the Tribunal finds that the notice was not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise. It follows that the delegate’s decision to cancel the visa must be set aside.

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

17. Whilst not necessary given that the Tribunal has found the s.107 notice to be deficient, the Tribunal has made a separate and independent finding in relation to whether there was non-compliance with the s.107 notice in the manner described in the notice, and if so, whether the visa should be cancelled.

18. The delegate found that the applicant provided incorrect answers on his protection visa application because his travel back to Iraq on three occasions for extended periods (July-November 2011, April-October 2012 and June 2013-February 2014) was compelling evidence he did not fear harm in Iraq for reasons described in his RSA request adding to the likelihood that he did not hold the profile he claimed; because he would have had to show identity documents when he entered and exited Iraq; and because it was highly likely he would have encountered persons who asked him for identity documents or recognised him whilst he was in Iraq.

19. The applicant provided information about his reasons for returning to Iraq and his circumstances whilst in Iraq in his response to the s.107 notice, in an ITOA process and at the hearing. Having considered all of the evidence provided by the applicant, the Tribunal is satisfied that he travelled to Iraq on Australian  travel papers; that he returned to assist his family when his [family members] needed hospitalisation and medical treatment; that he stayed on in 2013-14 because he hoped he could return to Australia with his family; that he did not return to his home area of [Town 1] during these visits; that he stayed with his [Relative A] who lives just north of Baghdad and in hotels in Baghdad; that he also stayed with his [family member] in hospital for periods of time; that his wife and children have been living with her family in [another town] since 2010 because militia members set fire to their home in [Town 1] when they learnt of the applicant’s role in the arrest of the militia members; and that his wife and children stayed with him at his [Relative A’s] house and in hotels.  

20. The Tribunal notes the inconsistencies in the applicant’s evidence regarding where he stayed in Iraq, as set out by the delegate. The Tribunal is satisfied that these inconsistencies have arisen through misunderstandings of the applicant’s evidence and possibly interpreting issues.

21. The applicant told the Tribunal that he was afraid for his safety during these visits but felt obligated to look after his family. He told the Tribunal that he took steps to protect himself during these visits by not returning to [Town 1]; by not moving around much; by wearing caps and a beard to hide his features; and by avoiding checkpoints where possible. He stated that he did pass through checkpoints and that a person’s ID is usually only checked if there is some suspicion about that person. He stated that the power of the militias had been curtailed during the period he was in Iraq. The Tribunal notes that the security situation in Iraq was relatively stable following the US withdrawal in late 2011 and that the militias had entered into an alliance with the Iraqi government. [4]

    [4] Expert advice provided to the Tribunal by Lydia Khalil, 7 December 2010

22. The Tribunal notes that the militias have resurged since 2014 and have been supporting the ISF against Daesh (IS). They have allegedly committed execution style killings and targeted assassinations, including in the south since mid-2013. Al Haq has reportedly remobilised (although some reports indicate that it never disarmed) and is regarded as one of the most powerful of the militias. [5] Its membership has been estimated to be between 1,000 and 20,000.[6]

    [5] DFAT, 2015, DFAT Country Report Iraq, 13 February

    [6] Morris L, 2014, ‘Shiite militias in Iraq begin to remobilise’, The Washington Post, 9 February

23. The Tribunal notes that the applicant travelled to Iraq on an Australian travel document and did not actually avail himself of the protection of Iraq during these visits. The Tribunal notes that the applicant did not claim to fear harm from the Iraqi authorities so dealing with the Iraqi authorities when he entered and exited Iraq is not adverse to his claim. His claim was that the Iraqi authorities would not be able to protect him because the militias had infiltrated the police and security forces. This claim is supported by country information which indicates that the militias had infiltrated every branch of the police.[7]

    [7] Cordesman. A, 2008, ‘Iraq’s Insurgency and the Road to Civil Conflict Vol 2’, Praeger Security International

24. The applicant’s claim that he had been targeted by militias because he was [from his security agency] and his fear that he would be killed because of his involvement in the arrest of militia members is also supported by country information. The UNHCR advised in 2012 that the militias were killing members of the ISF, particularly the police, on a daily basis during 2010 and 2011. Police stations were attacked, checkpoints were fired on by snipers and members of the ISF were targeted by car bombs and suicide bombers.[8]

    [8] DFAT, 2013, Country Information Report – Iraq, 29 November

25. The applicant’s claims regarding his employment with the [security agency] and the arrest of militia members in 2010 as a result of information provided by him have not been disproven by any information provided by the delegate. The applicant’s subjective fear of harm when he applied for refugee status is supported by the country information. His return to Iraq in 2011, 2012 and 2013 could indicate that he no longer feared harm, although he states that he did, but does not prove that the events he described in Iraq are untrue or that he did not have a subjective fear when he applied for refugee status.

26. That the applicant was not harmed when he returned to Iraq does not prove that the events he described in Iraq are not true or that he did not have a subjective fear when he applied for refugee status or that his fear was not well founded. A well-founded fear is based on a real chance of harm which is a chance that is not remote, not a certainty. The applicant took steps to minimise the chance of harm in Iraq. He stayed away from his home area where he was known and he was careful about where he identified himself. Australian case law makes clear that asylum seekers should not be expected to live in hiding to minimise the chance of harm to them.[9] 

    [9] Appellant S395 and S396 of 2002 v MIMA [2003] HCA 71

27. For the reasons above, the Tribunal is not satisfied that the applicant provided incorrect answers in his RSA request lodged [in] September 2010.

28. The delegate found that the applicant provided incorrect answers in his protection visa application form. The Tribunal has considered these answers below:

    ·In response to question [number], the applicant answered that he was an Iraqi citizen at birth. There is no evidence that the applicant was not an Iraqi citizen at birth and the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question [number], the applicant answered that he was a national of Iraq. There is no evidence that the applicant is a national of any country other than Iraq and the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question [number], the applicant answered that he has no right to enter or reside in any other country. There is no evidence that the applicant had a right to enter and reside in any country other than Iraq and the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question [number], the applicant answered that he travelled on a passport in his own name. There is no evidence that the applicant travelled on a passport other than an Iraqi passport issued in his own name and the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to question [number], the applicant answered that the country he feared returning to was Iraq. As the Tribunal is not satisfied that the applicant did not have a subjective fear of returning to Iraq when he applied for refugee status, the Tribunal is not satisfied that he provided an incorrect answer;

    ·In response to [several other questions] the applicant answered “Refer to request for refugee status assessment”. To the extent that these answers are incorporating the information in the RSA request, the Tribunal is not satisfied that the RSA information is incorrect and is therefore not satisfied that these answers are incorrect;

    ·Question [number] is a declaration that the information supplied on the form is complete, correct and up to date. As the Tribunal is not satisfied that the applicant has provided incorrect answers, it is not satisfied that this answer is incorrect.

29. For the reasons set out above, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the visa does not arise.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Rea Hearn Mackinnon
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.