1621155 (Refugee)

[2017] AATA 1015

1621155 (Refugee) [2017] AATA 1015 (26 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621155

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Rea Hearn Mackinnon

DATE:26 May 2017

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 26 May 2017 at 5:23pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Iraq – Incorrect answers in protection visa application – Incorrect information not identified in cancellation notice – Invalid notice – No power to cancel

LEGISLATION

Migration Act 1958, ss. 5(1), 101-105, 107, 109

Migration Regulations 1994, Schedule 2

CASES

Zhao v MIMA [2000] FCA1235

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 provided incorrect answers to various questions on his Form 866. 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. 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

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

   Background

6. The applicant entered Australia in April 2010 as an irregular maritime arrival called [Name 1], born on [date] [in] southern Iraq. He claimed to have lived most of his life in Basrah in southern Iraq. He made a refugee status application (RSA) and was determined to be a refugee by a delegate of the Minister [in] September 2010. The applicant subsequently lodged a Form 866 Protection visa application and was granted a Protection visa [in] June 2011.

7. Since being granted a protection visa, the applicant has changed his name twice. [In] August 2012, he changed his name from [Name 1] to [Name 2] and [in] December 2013, he changed his name from [Name 2] to [Name 3].

8. Since being granted a protection visa, the applicant has travelled out of Australia on three occasions, stating each time on his passenger card that he was travelling to Iraq. He travelled to Iraq [in] November 2012 until [date] December 2012 (as [Name 2]), [in] January 2014 until [date] February 2014 (as [Name 3]) and [in] March 2014 to [date] May 2014 (as [Name 3]).

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

10. In the present case, there is a question as to whether the notice issued by the Minister’s delegate [in] November 2015 complied with s.107.

11. The particulars of the incorrect answers as set out in the Notice are:

    As noted above, based on your travels outside Australia and information you have provided on your passenger card it would appear that you have not complied with section 101(b) of the Act as you have provided incorrect answers to the following questions in your application for a protection visa:

    -    at question 41 of part C of the Form 866 which states “I am seeking protection in Australia so that I do not have to go back to”, you stated Iraq;

    -    at question 42 of part C of the Form 866 which states “why did you leave that country” you stated “please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form”;

    -    at question 43 of part C of the Form 866 which states “what do you fear may happen to you if you go back to that country” you stated “please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form”;

    -    at question 44 of part C of the Form 866 which states “who do you think may harm/mistreat you if you go back” you stated “please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form”;

    -    at question 45 of part C of the Form 866 which states “why do you think this will happen to you if you go back” you stated “please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form”;

    -    at question 46 of part C of the Form 866 which states “do you think the authorities of that country can and will protect you if you go back? If not why not” you stated “please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form”.

    Based on your departures from Australia [in] November 2012, [in] January 2014, [in] March 2014 and the information that you provided on your passenger card, it would appear that you have voluntarily returned back to Iraq on three occasions which may suggest that you do not hold the adverse profile in Iraq that you have claimed to have. It would also appear that you have stayed in Iraq from a minimum of several days to several weeks. Therefore, it would appear that you have provided incorrect answers to questions 41, 42, 43, 44, 45 and 46 of part C of the Form 866.

12. Whilst the RSA application 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 RSA application and statement of claims was adopted by the applicant in his subsequent 866 Protection Visa application Form 866 and therefore appears to fall within the ambit of ss.99 and 101.

13. The applicant made a number of claims in his RSA statement of claims including that:

    ·He and his family are Sunni Muslims;

    ·His father was [an officer] in the Iraqi Army under Saddam Hussain and a member of the Baath Party;

    ·After Saddam’s fall, there were conflict and revenge killings between the different political and religious groups. It was like genocide against the Baath party and the Sunnis;

    ·His [brother] was kidnapped in 2008. His brother went to work as a [occupation] and never returned. His brother’s employer found [his vehicle] but no trace of his brother;

    ·His father was shot dead by four men in December 2009. His father told him to run away as the men approached. He heard the gunshots. He ran back and saw his father bleeding on the ground. He lost consciousness and woke up the next day;

    ·His mother concluded the family was being targeted and determined to protect the applicant;

    ·He would be killed if he returned to Iraq. He couldn’t practice his religion or attend mosque as it was too dangerous;

    ·The government couldn’t protect him as it was not in control. The Shia militias were controlling the south. There was no order in the country. Different religious and political groups do as they please;

    ·He feared he would be seriously harmed if he returned to Iraq because of his religious and imputed political beliefs.

14. A cancellation under s.109(1) is predicated on the provision of incorrect information and the s.107 notice must fairly inform the applicant of the incorrect information upon which the cancellation is being considered so the applicant is adequately equipped to provide relevant material in response. [1] The s.107 Notice in this case does not identify which information the applicant provided in his RSA statement of claims the delegate considered to be incorrect. It is not sufficient for the delegate to say the applicant’s travel to Iraq on three occasions (some years after his claims were determined) “may suggest [he] does not hold the adverse profile in Iraq that he claims” and that because he stayed in Iraq for several days to several weeks “it would appear [he] provided incorrect answers to questions 41, 42, 43, 44, 45 and 46” without providing particulars of the aspects of the applicant’s answers which the delegate considers to be incorrect.

    [1] Zhao v MIMA [2000] FCA1235

15. For these reasons, the Tribunal finds 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.

    CONCLUSION

16. The Tribunal has considered the information before it and has found that the notice purportedly issued under s.107 of the Act was not a valid notice. As a valid s.107 notice is a precondition to the exercise of the power under s.109, there was no power to cancel the visa. It follows that the delegate’s decision to cancel the visa must be set aside.

    DECISION

17. 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.