Background
Background to the litigation
For the reasons set out below the Tribunal has concluded that the decision to cancel the visa-holder’s visa should be set aside and a decision substituted not to cancel the visa.VISA-HOLDER’S BACKGROUND The visa-holder claims that he belonged to the Afro-Arabic ethnic group. He worked as [an occupation] in Libya in [Town 2], before coming to Australia for [studies] in [a subject]. According to the Departmental decision record, his father passed away when he was [age] years old and the family moved from [Town 1] to [Town 2].OVERVIEW OF LAW 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. 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. THE SECTION 107 NOTICE The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act. Section 101 provides that:A non-citizen must fill in or complete his or her application form in such a way that:b) no incorrect answers are given or provided. The non-compliance referred to in the section 107 notice, referred to answers in form Part C of 866, “Application for a Protection (Class XA) Visa” (the application). In particular the following questions and answers are referred to:“5. In response to question 42 of the application which asks “Why did you leave that country?” the visa holder responded: “I originally left Libya to undergo [studies] in Australia. While in Australia the wildly publicised uprising unfolded in Libya. The subsactance(sic) removal of Gaddafi has now put me in a minority group. It appears my minority group is subject to persecusion and discrimination.” 6. In response to question 43 of the application which asks “What do you fear may happen to you if you go back to that country?” the visa holder responded:“It has been revealed to me by reliable sources in Libya that my minority group is subject to ill treatment hence my reluctance to go back to Libya. Since the removal of Gaddafi there remaince (sic) an ideological divide between anti-Gaddafi and pro-Gaddafi supporters. However, my ethnicity is deemed pro-Gaddafi and belong to the minority. So, in all likelihood I will be the victim of perscusion upon returning to Libya. To compound the problem there exists an ethnic divide.” 7. In response to question 44 of the application which asks “Who do you think may harm / mistreat you if you go back?” the visa holder responded: “The militias who considered themselves as “rebels”. There is no doubt some of them have relatives who were killed by Gaddafi forces but that does not given them right to abduct and kill people under this cover. Unfortunately my group is black and considered as Gaddafi marseners (sic) who came Africa to support him. Therefore, I will be targeted by anti-Gaddafi people.” 8. In response to question 45 of the application which asks “Why do you think this will happen to you if you go back?” the visa holder responded: “It is widely publicised both nationally and internationally that the people who have assumed the authority have repeatedly shown contempt toward the perscusion and discrimination of my group or Gaddafi supporters especially in [Town 3] and down south where the largest Gaddafi supporters live. Personally I have [number] brothers were with Gaddafi’s forces who I haven’t heard any news about them and I believed they are dead. Also the militia who is running the area believes the Gaddafi regime sent me to here to educate me to work for them when I come back. Another fact that will put my life in danger if I go back, is that I am a member of an organisation [details deleted], this makes the militia put my name in their black list to find me and other members especially who fight with Gaddafi or have relatives who did so.” 9. In response to question 46 of the application which asks “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the visa holder responded: “The authorities in Libya may not be able to protect me because there is no strong government in the country especially in the area where I am living. Also, the militia or who considered themselves as rebels refuse to give their weapons to the weak government and running the area under complete control. Because of my dark skin colour and accent I can be easily distinguished and targeted even if I would go and hide to big cities my documents such as ID and passport will the problem because of the place of issue them. The strongest evidence for this what is happening right now to the people from [Town 3] who have been forced to leave their city after destroying their houses and let them live in schools and others building in Tripoli and Benghazi and the government doesn’t and will not do anything because considered us as green families as Gaddafi named his regime and revolution the green revolution.”
Evidence
Evidence Before The Court
The delegate also noted that he said that he was told to arrive in Tripoli on [date] April 2014 to be driven over the border. However, the stamps on his Libyan passport indicate that he departed Libya [in] April 2014 and arrived back in Australia [in] April 2014.EVIDENCE PROVIDED BY VISA-HOLDER AT TRIBUNAL HEARING The visa-holder provided the following evidence at hearing:· He confirmed that all the answers he gave in his application to the Department were true and correct;· He was born in [Town 1], but from the age of [age] lived in [Town 2], Southern Libya. His father has passed away. His father had [children] from his first wife, and [children] including the visa-holder from the second wife. The applicant has [brothers], but currently he does not know where they are. He has [married] sisters who live about [number] km from [Town 2]. His mother is living in [Town 2]. The last time he saw his brothers was [in] February 2011 when he visited his family. After this, his brothers were in Tripoli, fighting for Gaddafi’s forces. His mother’s health was adversely affected because of the lack of news. She tried to trace them a few times but no-one was able to find out any news about them. Some people say they are in prison, or dead, but these are rumours only;· His family supported Gaddafi because they are originally African, and all the African Libyans supported Gaddafi. Since he was born, the only leader was Gaddafi and they had only known him, so supported him. His brothers were in the Revolutionary Guards which supported the regime. There was some suggestion that the visa-holder join, but he did not want to do so because he wanted to study. His father and mother were born in Libya and he does not know where in Africa they came from originally. His mother was [of a certain] ethnicity. He finished high school in [Town 2]. He then studied [a subject] at [an institute] for [number] years; · He had no political involvement in Libya, but was part of the student association which supported the ideology of Gaddafi. He was also involved in [Organisation 1]. This organisation [details deleted];· When he graduated he worked as [an occupation] [and] during this time he was getting the paperwork ready to come to Australia;· [Town 2] is currently under the control of militias. There is no authority. Most people from that area were supporters of Gaddafi. His mother and sisters are treated like second class citizens, they are not able to get services. The militias know the names of his brothers who were in the pro-Gaddafi forces. His family have suffered verbal mistreatment, but other people have been subject to physical mistreatment. People who are black and pro-Gaddafi in his area, do not move around, they stay home. The jails are full in [City 2], he himself knows someone in prison;· He was asked about Question 42 in his application to the Department. In that question he was asked why he left, and he said that he left to undertake [studies], however while in Australia, the uprising unfolded and the removal of Gaddafi put him in a minority group which is subject to persecution and discrimination. He confirmed that this answer was correct; · The visa-holder was asked about Question 43 in his application when he was asked “what do you fear may happen to you if you go back?” He had answered that in all likelihood he would be the victim of persecution upon returning to Libya, based on his ethnicity which was deemed to be pro-Gaddafi. He was asked why he thought at the time he answered the question that he would be the victim of persecution based on his ethnicity. He said that his town was under fire from militias. People in his town were told to go back to their countries of origin, that they were not Libyans;· The visa-holder was asked about Question 44 of the application. He was asked in that question who he thought would harm him, and he answered it would be the militias who considered themselves as rebels. He said that he is black and they were considered as Gaddafi supporters. He was asked why at the time he answered the questions he thought that these militias would harm him. He said that, firstly, he was given the scholarship and students who had the opportunity to study overseas were regarded as pro-Gaddafi. Secondly, his colour made people think that he was pro-Gaddafi, particularly because of the area he came from;· The visa-holder was asked about Question 45 of the application. He answered in that question, that it had been widely publicised that those who assumed the authority had shown contempt towards Gaddafi supporters. He had [brothers] who were with Gaddafi forces who he believed are dead. When he answered the question, it was his view that these factors would contribute to his persecution. Every person who had anything to do with the previous regime could be affected. People lost their jobs if it was proved that you were a supporter; · The visa-holder was asked about Question 46 of the application. He had been asked why he thought that the authorities of that country could and would not protect him if he went back. He said that at the time there was not a strong government. During that time they could not protect even ministers of state. There were many kidnappings and he did not feel he would be protected;· The Tribunal asked him what he meant when he answered the questions by saying that he would be persecuted. He said that supporters had been attacked and kicked out of their homes as they were scared to go home. He said that he feared being killed, imprisoned with hard conditions and torture, being insulted, and that anything could happen;· [In] September 2013 he returned to Libya, two months after he was granted the protection visa in Australia, and he stayed for [number] months. The Tribunal put to him that it is not consistent with genuine fear of serious harm that a person would return to the place where the source of the fear of death or serious harm is. He responded that his sister told him that his mother had [an illness], and she was crying on the phone, when she was telling him about his mother. Two months after he was granted the visa he wanted to visit his brother who was studying in [Country 1]. He was planning to surprise his mother by calling her by phone from [Country 1]. His mother answered when he phoned. He spoke to his sister. He said that his sister told him that his mother was not feeling well. Asked what his sister said was wrong, she just said she is between life and death. His mother tried to speak to him, but was crying. She said that she would like to see him before she died. He thought he just had to go to Libya because this was his mother. Asked when his sister told him that his mother had [an illness], he said that it was in this same discussion when she said she was between life and death. Then afterwards, when he travelled to Libya, he found out that she had [an illness]; · The Tribunal asked him why, if he had a great fear of returning to Libya, he would not have questioned his sister about the nature of his mother’s illness before returning to Libya. He said that he would risk anything to go and see his mother. The Tribunal put to him that he had been out of Libya for a long time before he risked returning, so would he have not tried to find out if it was a serious or minor illness. He said that his mother would not tell the truth, but she said that she would like to see him before she died, so he knew it was serious. Asked if he could not question his sister about the nature of the illness, he said that she was crying. He returned because of his mother, who means everything to him. His father had passed away when he was [age] years old, and he had no photograph of his father. He was asked why he did not mention to the Department in his Response to the Notice of Application, that he had spoken to his sister, or that his mother had [an illness], important matters relevant to his return. He said that he was shocked at the decision to cancel his visa, and tried to write the statement six times and could not write everything as he wished. He also had no proof of the [illness]. Asked why there was no medical evidence of the [illness], he said that he has tried to get medical reports but the telephones and internet are not working properly. No-one has been able to help him get the records from the hospital;· He was asked how, if he suggested in Question 43 of the application that he would be persecuted if he returned, he was not persecuted when he did actually return. In fact, he was able to live in Libya for [number] months. He had defined persecuted as being killed, harmed or imprisoned or otherwise harmed but this did not happen to him. He said that he did not enjoy being in Libya. He did not stay with his mother. He was hiding most of the time and did not go to areas where the rebels were present. He tried to leave three months earlier than he actually did, but he could not leave the country because the rebels had overrun the airport, so he had to leave by paying money to a smuggler to leave by land;· He was asked about discrepancies in his accounts of the logistics about his return which indicate that he did not intend to go to [Country 1] but really intended to go to Libya. He said to the Department that he travelled to [Country 1] to spend a month with his brother, then impulsively decided to travel to Libya after they jointly spoke to his mother on a Friday while she was home for Friday prayer. They called from his brother’s number and she was very emotional. He then arranged his entry to Libya so that he would arrive at a certain time and meet a certain individual who would be able to allow him to bypass customs. The Tribunal asked him how he was able to make these detailed arrangements when only in [Country 1] for two days. He said that at university he knew students from all over Libya. At Tripoli airport there were militia from the Zentan tribe. He had had students from Zentan boarding with him in the past. So he spoke to a Zentan friend whom he knew, and he told him that he wanted to enter and depart Libya, without being known. His friend knew a high ranking official at the airport. When he arrived at the airport, this friend was there along with the official. He was in the last line, and the friend and an officer took his Libyan passport and had it stamped. There were no official government personnel there, everything was controlled by militias. He used a Libyan passport because he would have been in trouble if they had seen his Australian travel documents, as he would have been questioned about having a foreign passport;· He was asked why he took his Libyan passport with him when he went to [Country 1] if he was only intending to go to [Country 1]. He said that, when he was given his Australian travel document, he was told to take his Libyan passport with him when travelling, as some countries did not accept his Australian travel document. In fact, he said, this happened to him in [Country 2]. He also went through Tripoli airport when he first travelled to [Country 2], and his friends helped him again in the same way;· He was asked why this friend and official helped him, especially considering the information he had provided was that there was discrimination against black Libyans who were assumed to be pro-Gaddafi. He said the friend and he were like brothers and had spent four years together, so his friend wanted to support him. Social relations play an important role in their society;· He received the same assistance when he was departing Libya. He departed twice and returned once. The second time he left he was in contact with the officer directly. The reason he stayed [number] months in the country was because he could not leave safely through the airport, so had to take a risky journey by road through [Country 2]; · He departed Australia on a Sunday, [September] 2013. He would have arrived in [Country 1] on Monday [September]. He entered Libya on [date] October which is a Wednesday. Considering that he was not in [Country 1] on a Friday he was asked why he said they called her on a Friday as usual. He said that this interpretation was the result of a language issue, as he was writing in Arabic. He said that he tried to call his mother at the same time he usually called, which is 9pm, but not necessarily a Friday. At that time it is 1 o’ clock lunchtime which is prayer time for the ladies; and· While in Libya he was in [a district], which has [number] areas, and he moved from one place to another, and stayed with friends.
Decision
Reasons for decision
For these reasons the Tribunal is not satisfied that there was non-compliance by the visa-holder in the way described in the section 107 notice. It follows that the discretionary power to cancel his visa does not arise.Conclusions on non-compliance 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. Non-refoulment obligations The Tribunal notes that, had it found there was non-compliance, it would have found that the cancellation would lead to the visa-holder’s removal in breach of Australia’s non-refoulment obligations under relevant international agreements. In this regard the Tribunal notes that the Department had not carried out an International Treaties Obligations Assessment (ITOA) at the time of review. According to the most recent Department of Foreign Affairs and Trade Report on Libya, the current security situation in Libya is “dire”. The Report sets out the background to the current situation as follows. The removal of the Gaddafi state apparatus left a major power vacuum that no single group or personality has thus far been able to fill. Free parliamentary elections held in July 2012 resulted in a political deadlock between two rival blocs, loosely described as ‘Islamists’ and ‘nationalists’ but more accurately representing a broader complex mix of regional, tribal and familial loyalties. Further parliamentary elections in June 2014 resulted in a victory for the ‘nationalists’. However, the ‘Islamists’ refused to recognise the results and occupied much of Tripoli, leading to the ‘nationalists’ leaving the capital and basing themselves in the eastern city of Tobruk. Both sides declared themselves to be the legitimate government of Libya, and, in July 2014, large-scale fighting broke out between the rival administrations, drawing in additional tribal factions and militias. The breakdown of security across the country has also enabled extremist groups, particularly Islamic State in Iraq and the Levant (ISIL, aka Daesh), to consolidate their presence in Libya. The Tobruk-based administration, known as the House of Representatives (HoR), has been Libya’s internationally recognised government, although the Tripoli-based entity, the General National Congress (GNC), continues to occupy the capital. In December 2015, the UN-backed Presidential Council announced the creation of a third entity, the Government of National Accord (GNA), aimed at ending the political division. On 31 March 2016, seven senior GNA members arrived in Tripoli, including its Prime Minister-designate. However, while the GNA has secured strong international backing, neither administration have committed to cooperating with or supporting it, and it is too early to tell whether its creation will lead to significant political change in Libya. The lack of political stability since the outbreak of civil conflict in 2011, compounded by the resumption of conflict in 2014, has contributed to a situation where the rule of law as provided by a national government does not exist for the majority of Libyans.[12][12] DFAT Country Information Report: Libya, 4 April 2016
Ratio Decidendi
Legal Principle Established
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Jane MarquardMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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.
