1700787 (Refugee)

[2017] AATA 771

1700787 (Refugee) [2017] AATA 771 (6 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700787

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:David McCulloch

DATE:6 April 2017

PLACE OF DECISION:  Sydney

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 06 April 2017 at 3:58pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Nigeria – Particular social group – Homosexuals – Incorrect answers in protection visa application – Applicant made other applications claiming female partner – Strong evidence of homosexuality

LEGISLATION
Migration Act 1958, ss 5, 101(b), 107, 109(1)

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 had provided incorrect answers on his application form for the Protection visa in breach of s.101(b) of the Act.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 4 April 2017 by video link to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

6. 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

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

9. 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.

   Delegate’s grounds for cancellation

10. The applicant provided to the Tribunal a copy of the decision to cancel the visa dated [in] January 2017.

11. The delegate determined that the applicant breached s.101(b) of the Act in providing incorrect answers in the application form for the Protection visa. The decision indicates that the Protection visa was granted [in] December 2013.

12. The non-compliance identified and particularised in the s.107 notice (the Notice of Intention to Consider Cancellation sent [in] May 2016) was non-compliance with s.101(b) of the Act in the following respects: answers to questions 42, 43, 44, 45, 46, 47, 48 in the application form for the Protection visa in terms of the applicant claiming that he was homosexual, including his desire to relocate to Australia as a result of his sexuality, the potential for ostracism and harm in Nigeria, reference to losing a friend who was homosexual in a mob killing, and the prohibition against homosexuality in Nigeria. The delegate also referred to claims of the applicant’s homosexuality in a Statutory Declaration dated [in] October 2012 provided as part of the application. It is noted that, in the application form, at question 60, the applicant signs, such as to declare that information supplied in the form is complete, correct, and up-to-date in every detail.

13. The Tribunal notes that the Statutory Declaration provided as part of the application gives details of the applicant growing up gay in Nigeria, details of three homosexual relationships in Nigeria and two homosexual relationships in Australia, and the applicant keeping his sexuality secret from his family and friends in Nigeria.

14. The basis on which the delegate concluded that there were incorrect answers in the application form for the Protection visa was as follows. Departmental records indicate that [in] November 2014 the applicant lodged an application for a [Visa 1]. The applicant provided a Form 80 ‘Personal particulars for assessment’ including a character assessment as part of the application. In question 43 of the form the applicant was asked if he had a partner. The applicant answered ‘yes’. He provided the name of his partner as [Ms A] and indicated that she was female. Her country of current residence was Nigeria. The form indicates that she is not migrating with the applicant at the moment but there is an intention that this will happen in the future.

15. This application was refused [in] January 2015. [In] February 2015 the applicant lodged another application for the same [Visa 1]. He provided the same details as in the previous application as to a partner in a Form 80 provided as part of that application.

16. The delegate noted that, [in] May 2015, the applicant wrote to the Department indicating that his relationship with [Ms A] started around January 2014 after his [brother] introduced him to her on the phone and they exchanged numbers. They engaged by telephone after six months into the relationship. In that same letter the applicant indicated that the relationship had now ended at the instigation of [Ms A].

17. The delegate noted that the applicant’s Statutory Declaration provided as part of the application for the Protection visa indicates that the applicant never had any interest in girls and never had a girlfriend. He indicates that he was not interested in girls in a sexual way at all.

18. The delegate considered that the applicant’s subsequent lodgements for another permanent visa by indicating that the applicant was engaged and in an ongoing relationship with a woman in Nigeria cast significant doubt over the Protection visa claims and that he was wanting to pursue a homosexual life in Australia and had never had any interest in females.

    Response to the s.107 notice and other adverse information put by the Department

19. Various submissions and supporting documents were provided by the applicant and his representative in response to s.107 notice. Relevant submissions were also provided by the applicant in response to a Department letter dated [in] July 2015 asking for comment in relation to the [Visa 1] application, particularly seeking comment on the inconsistency as to the applicant’s claimed relationship and claims as part of the Protection visa application to have been homosexual.

20. The various submissions indicate that the reason why the applicant made another application for permanent residency on a different basis, and including a female partner, was due to pressure by the applicant’s family in Nigeria as to how exactly it was he had obtained permanent residence which the applicant’s family learned about after the Protection visa application was granted. The applicant said that he was evasive to his family, but said that it was through the [Visa 1] migration program. The applicant’s mother challenged this and said that she had information that he was granted a Protection visa on the basis of being gay. Prior to this, there were suspicions about the applicant’s sexuality based on [social media] pictures. The applicant believed that someone may have given his mother copy of the Protection visa application based on specific dates she mentioned regarding the application. The applicant denied to his mother that he had made an application for a Protection visa.  His mother asked for the visa grant letter or other documents to prove that he had achieved permanent residency through the [Visa 1] migration program. The applicant indicated that he would send through this evidence.

21. After discussing the issue with his brother in [Country 1], who knew about the applicant’s sexuality, the applicant decided that the only way to fix the dilemma was to apply for [Visa 1] and, when it was granted, he could show it to his family in Nigeria and they would not disown him or be ashamed. The applicant received legal advice in relation to the application. The applicant’s brother had advised him to add a female as a partner to provide evidence that the applicant was not gay. [Ms A’s] parents were friends of his brothers back in Nigeria. [Ms A] did not know that she was being put on the application. The applicant never had any intention of sponsoring [Ms A].  He had no intention of forming any kind of relationship with her. The applicant’s brother in [Country 1], in order to convince his parents that the applicant was not gay, told them that the applicant was talking with [Ms A].  The applicant’s mother then informed [Ms A’s] parents.  They then all realised that the applicant did not know this girl and this caused them to suspect that the applicant was gay and trying to cover everything up.

22. The applicant maintains that he is gay and the [Visa 1] applications were acts of desperation to prove to his family that he was not gay.

23. In further submissions the applicant states that unknown persons have sent recorded clips of his homosexual relationships and other materials to his relatives in Nigeria. The applicant indicates that his family’s suspicions in Nigeria resulted in an intention to call a family meeting to decide whether to formally report the applicant to authorities and ostracise him as a result, as a means of protecting themselves against the law and community stigma.

24. The applicant’s representative submits that the fact of the applicant being driven by fear in relation to the [Visa 1] application is demonstrated by the ludicrousness of the applicant applying for another permanent residency application while he was already a permanent resident.

25. Evidence is provided of the applicant’s utilisation of gay dating sites. Provided is a Transaction History of membership of ‘[Website 1]’ for username ‘[specified]’, which is indicated to be the applicant’s username. It shows relevant purchase dates for 90 day subscriptions at a cost of $[amount] each. The first membership was acquired [in] May 2012. The Tribunal takes as particularly relevant evidence of membership after the applicant was granted the Protection visa [in] December 2013 and before the date of questions being raised by the Department relating to the [Visa 1] application, namely [in] July 2015. The Transaction History shows the first subscription being [in] May 2012 and that the last 90 day subscription prior to the applicant being granted the Protection visa [in] November 2013. The next subscription was [in] February 2014 followed by [dates in] May 2014, [in] August 2014, [in] November 2014, [in] February 2015 and [in] May 2015. That is the last transaction.

26. Information from the gay dating app ‘[website]’ indicates that the applicant’s profile was created [in] March 2013. The applicant indicates that, whilst he subscribed in the past, he decided not to continue the subscription because it does not offer much more than ordinary membership. As a result, the applicant is only an ordinary member. The applicant has been in and out of the app because it offers the same men only all the time due to the small nature of [his location]. The applicant can reopen it while he is interstate on holiday.

27. The applicant provided a report from [a] Clinical Psychologist, dated [in] November 2015. It refers to an assessment of the applicant [in] October 2015. The report indicates that the assessment was requested to document: the applicant’s struggles with his sexuality; his history of same sex relationships; gay networks and attendance at gay bars and events; and the impact of the applicant’s family’s attitude towards his sexuality and attempts to appease his family about his sexuality.

28. The document essentially reports the applicant’s claims as to his sexuality and gay activity. The report indicates the applicant agreeing with one of his brothers to enter into an arranged marriage for the sake of his safety and maintaining family harmony.

29. The applicant provided a letter dated [in] June 2016 from [a doctor] indicating the applicant has been attending the clinic since [a date in] March 2012 for sexual health checkups required for men having sex with men. Information is provided on the applicant being started on [a treatment] based on unsafe sex occurring [in] May 2016. There is additional information from [that named clinic] indicating that the applicant attended the clinic on the following dates: [date] March 2012 [to] [date] June 2016.

    Reports and statements to the Tribunal

30. A further psychologist’s report of [a psychologist] dated [in] March 2017 was provided to the Tribunal in advance of the hearing.  [The psychologist] is a fully Registered Psychologist. The psychologist conducted psychometric testing in the form of the Personality Assessment Inventory which indicates that the applicant is a person used to telling the truth.

31. The report repeats claims by the applicant that, after the granting of the Protection visa, his family became aware of his homosexual activities and that his mother began an incessant period of berating and humiliating the applicant. This caused the applicant to be fearful of his ongoing relationship with his family, who he loved. He was also fearful of what the Nigerian authorities may do to members of his family should they discover his gay activities in Australia. His mother questioned him about the grounds on which he had obtained permanent residency. It is indicated that the applicant’s traits of sensitivity, hypervigilance and feelings of persecution were highlighted by the events and caused his [condition] to worsen. His brother was the person who introduced him to [Ms A].  They had a small number of telephone calls but never met in person. In order to deflect the tensions, the applicant then told his mother that he had a ‘girlfriend’.  The applicant’s mother, however, insisted on documentary evidence of his immigration status. The applicant brother in [Country 1] than advised to that the applicant should apply for a [Visa 1] and include [Ms A] as a person with whom he was in a relationship. It is assessed that the applicant’s trauma related traits of persecution and non-support appear evident as motivators for the applicant’s actions as he feels ‘hunted’ or ‘pursued’ by his mother and family.

32. A further Statutory Declaration of the applicant dated 3 April 2017 was provided to the Tribunal on the day of the hearing. It repeats and expands on prior statements and submissions that the applicant felt compelled to make the application for [Visa 1] nominating a partner, as a means of hiding his true sexuality.

    Hearing

33. In the Tribunal hearing, the applicant expanded on the various written statements and submissions outlined above, and answered questions of the Tribunal. The applicant spoke of his love for his family and his desperate attempts to both persuade them that he was not homosexual, and to provide information to them that they could show to community members in Nigeria who suspected that the applicant had travelled to Australia to lead a gay lifestyle. The applicant emphasised the conservative values of his family and the extreme opprobrium of the community to homosexuals. The applicant indicated that his family in Nigeria could suffer harm if the community thought that they were supporting the applicant’s gay lifestyle.

34. The Tribunal put it the applicant that it did not make sense in this context that his family would report him to the police, as he had claimed, as that might disseminate knowledge of the applicant being gay. The applicant responded that his family might be forced to do this if it was widely known that he was gay in order to distance the family from the applicant, so as to lessen the harmful reaction from the community.

35. The Tribunal also put to the applicant that it did not make sense that the applicant would be able to convince his family that he was not gay if, as he claims, his mother had obtained specific information concerning the Protection visa application and that explicit evidence of his sexuality had been provided to his family in Nigeria. The applicant responded that his intention was simply to deny that he was gay and to do everything he could to disprove it.

36. In the hearing, the applicant indicated that he began communicating with [Ms A] in about late January 2014, after the conversation with his brother in [Country 1]. The intention of the applicant in the conversations was to try and establish a relationship with [Ms A] which he could then use to demonstrate to his family that he was not gay. At a certain point, however, [Ms A] indicated that she was in another relationship and that the phone relationship between herself and the applicant was at an end. They applicant was of the view that, over time, [Ms A] could see that the applicant was not a person with whom she could be in a relationship. The Tribunal understood the applicant to be effectively saying that [Ms A] picked up signals that the applicant was gay, or at least, that he was not really interested in a relationship.

37. The Tribunal noted to the applicant information he had provided to the Department that his family realised at a certain point that he did not know [Ms A], and that this caused them to suspect again that he was gay. The Tribunal noted that this seemed inconsistent with more recent claims that he had had regular phone conversations with [Ms A].  The applicant said that he meant he did not know [Ms A] in any real sense other than through phone conversations. For example, he indicated that he had never even seen a picture of her.

38. The breaking off by [Ms A] of the phone relationship occurred at around the time the applicant received a request from the Department in May 2015 to provide further evidence of the relationship. The applicant responded to that request by indicating that the relationship had ended.

39. The Tribunal questioned the applicant as to the point of then proceeding with the [Visa 1] application given that it would not evidence that the applicant was in a relationship. The applicant indicated that there was still a need to establish the basis on which he obtained permanent residence.

40. The applicant agreed that this was not entirely logical since he had informed his family some time previously of him obtaining permanent residence soon after he was granted the Protection visa. Therefore, the grant of permanent residence many months later would not explain the basis on which permanent residence had previously been granted. However, the applicant indicated that a second motivation was to provide a basis on which his family could demonstrate to others in the community in Nigeria that the he had not obtained permanent residence based on the granting of a Protection visa on the grounds that he was homosexual.  

    Assessment

41. There is some evidence before the Tribunal that strongly suggest that the applicant is homosexual. The Tribunal considers that the applicant’s conduct between the period of him being informed of the granting of the Protection visa [in] December 2013 and questions being raised by the Department [in] July 2015 in relation to the [Visa 1] application, concerning inconsistent claims, is particularly important. This is because, during this period, there could be little suggestion that the applicant would have been engaging in conduct simply to establish what might be a false claims as to his sexuality.

1. The Tribunal notes that, during this period, the applicant had five appointments at [the named clinic], on [date] January 2014 [to] [date] November 2014.  Departmental files contain records of a number of those consultations. Those appointments themselves do not conclusively establish the applicant’s sexuality because they could relate to same or opposite sex activities. However, the records specifically indicate that in the consultation on [a date in] January 2014, the applicant reported having been the recipient of unprotected anal sex.

2. In addition, on Departmental files is a record of an admission at the Emergency Department of [a specified hospital] [in] August 2014 indicating the applicant advising that he had had unprotected anal sex with two males.

3. The Tribunal considers that these two reports are significantly probative in establishing the applicant’s sexuality. During this period, when the Protection visa application had been determined, and no concern had been raised in relation to the [Visa 1] application, there would be little incentive for the applicant to concoct claims to medical professionals to support untruthful claims of being homosexual.

4. Further, the Transaction History information relating to the applicant’s ‘[Website 1]’ account (a dating app for gay men) shows that he renewed ninety-day subscriptions [in] February 2014, [in] May 2014, [in] August 2014, [in] November 2014, [in] February 2015 and [in] May 2015. These, again, are all periods in which applicant would have little incentive to manufacture an appearance of gay activity. In the Tribunal hearing the applicant was able to spontaneously indicate the username of his account as indicated in written material.

5. The Tribunal has reviewed the file relating to the applicant’s claim for the Protection visa. The applicant provided a detailed Statutory Declaration outlining him growing up feeling different in Nigeria and recognising his sexuality. The Declaration provides details as to the applicant’s relationships with men both in Nigeria and in Australia. Provided is a Statutory Declaration from a person the applicant was in a relationship with in [his current location].

6. The Tribunal has listened to the recording of the interview between the applicant and the delegate of the Minister with respect to the Protection visa application. The Tribunal considers that the applicant was convincing in relation to claims and details as to his sexuality and sexual activity.

7. At face value, the claimed plan of the applicant to foster a romantic relationship with a female by telephone in Nigeria and nominate that person as a partner in a [Visa 1] application in order to demonstrate to his family that he was not gay appears convoluted with a significant chance of unravelling (as it did). The applicant’s actions have cast legitimate doubt as to his claim of being homosexual. For reasons canvassed, aspects of the plan seem illogical. However, it was illogical in the first place that the applicant would have made applications for permanent [Visa 1s] given that he already had permanent residence. That fact might tend to support the rationale advanced by the applicant as to why he made the applications.

8. The Tribunal accepts that independent information demonstrates the extreme hostility of Nigerian society to homosexuality. The Tribunal accepts that the applicant had a close and loving relationship with his family. 

9. Considering all of the evidence, including the direct third party evidence as to the applicant’s sexuality, the Tribunal is satisfied that the applicant is homosexual. As desperate and misguided as the plan was, the Tribunal accepts that the applications for [Visa 1s] nominating a female partner were designed as an attempt to persuade the applicant’s family in Nigeria that he was not homosexual. It was also designed as a means of providing evidence that his family could show to others in the community to demonstrate that the applicant was not gay, given that this would reflect badly on his family. Given the extreme negative reaction by Nigerian society to homosexuality, and the close relationship that the applicant had with his family, it accepts that he felt that he needed to take extreme measures to counter a belief or suspicion that the applicant was homosexual, and that he had obtained his permanent residency in Australia on that basis.

10. As outlined above, there is an apparent inconsistency between the applicant originally indicating that he did not know [Ms A] and later indicating that he was in regular phone contact with her. Considering all of the evidence, the Tribunal is persuaded by the applicant’s explanation that he indicated that he did not know [Ms A], in the sense that that contact was superficial and at a distance.

11. The Tribunal is satisfied that the applicant grew up homosexual and that he has engaged, both in Nigeria and Australia, in sexual and emotional relationships with men, and would continue to wish to do so.

12. The Tribunal is satisfied that the various responses to questions and other information as part of the Protection visa application, as set out in the s.107 notice, asserting that the applicant was homosexual, that he came to Australia to freely practise his sexuality, that he feared harm on return to Nigeria based on his sexuality, and surrounding issues relating to his sexuality, was all true.

13. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    David McCulloch
    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.