1703474 (Refugee) [2017] AATA 2985 (22 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1703474
COUNTRY OF REFERENCE: Iraq
MEMBERS:Jan Redfern (Presiding) Ann Brandon-Baker
DATE:22 December 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 22 December 2017 at 1:05 pm
CATCHWORDS Refugee – cancellation of protection visa under s 109 of the Migration Act 1958 (Cth) – alleged non-compliance with s 101 by providing incorrect information that applicant feared harm from extremist groups in Iraq and could not return – cancellation based on visa holder’s return to Iraq – identifying particulars of non-compliance described in notice of intention to consider cancellation – sufficiency of particulars - nature and scope of review – later return for limited purposes not inconsistent with original claim – no evidence to contradict earlier claims - non-compliance not established – power to cancel visa does not arise – cancellation set aside
Practice and Procedure – Administrative Appeals Tribunal – powers on review of s109 cancellation – fact-finding and sufficiency of evidence – no onus on applicant to satisfy Tribunal that statements are correct
LEGISLATION Migration Act 1958 (Cth), ss 101, 107, 108, 109
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that material information provided by the applicant to the Minister in order to obtain a protection visa was incorrect. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 15 August 2017 and 1 November 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who provided submissions and oral argument.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is an Australian permanent resident born in Baghdad in 1980. He first arrived in Australia as the holder of a sponsored family visitor visa [in] June 2011.
After his arrival in Australia [in] June 2011, the applicant lodged a protection visa application [in] July 2011. He was granted that visa [in] September 2012 on the basis that he was able to demonstrate to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1703474 (Refugee) [2017] AATA 2985
Case
[2017] AATA 2985
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's protection visa under section 109 of the *Migration Act 1958* (Cth). The applicant, born in Baghdad, was granted a protection visa in 2012 based on a well-founded fear of persecution due to his political opinion, ethnicity, and membership in a particular social group, stemming from threats and incidents related to his employment with a company servicing the US military in Iraq. The cancellation was initiated due to the applicant's subsequent return trips to Iraq, which the Minister considered to be inconsistent with his original claims of fear.
The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the *Migration Act*, which requires that all questions on a visa application form be answered and that no incorrect answers be given. Specifically, the Tribunal had to determine if the applicant's return to Iraq for limited purposes, such as visiting his ill mother and marrying his fiancé, constituted a material falsehood in his original protection visa application, thereby providing grounds for cancellation under section 109. The Tribunal also considered the scope of its review powers and the onus of proof in such matters.
The Tribunal reasoned that the applicant's return to Iraq for brief, specific purposes did not, in itself, demonstrate that his original claims of fear were false. The evidence presented, including a doctor's report confirming his mother's stroke and hospitalisation, supported his explanation for the first visit. Similarly, his marriage provided a plausible reason for the second visit. The Tribunal found no evidence to contradict the applicant's assertions that he maintained a low profile during these visits and that his circumstances had changed since he was employed by the company servicing the US military. Crucially, the Tribunal held that there was no onus on the applicant to satisfy it that his original statements were correct; rather, the onus was on the Minister to establish non-compliance.
Consequently, the Tribunal was not satisfied that the applicant had failed to comply with section 101 of the *Migration Act* in the manner described in the notice of intention to consider cancellation. As such, the discretionary power to cancel the visa under section 109 did not arise. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. BACKGROUND The applicant is an Australian permanent resident born in Baghdad in 1980. He first arrived in Australia as the holder of a sponsored family visitor visa [in] June 2011. After his arrival in Australia [in] June 2011, the applicant lodged a protection visa application [in] July 2011. He was granted that visa [in] September 2012 on the basis that he was able to demonstrate to the Minister a well-founded fear of persecution on the basis of his political opinion, membership of a particular social group and ethnicity. In support of his application, the applicant provided a statement setting out the reasons why he was seeking protection. In summary, the applicant claimed that he was working as [Occupation 1] for [Company 1], a [company] providing services to the United States military in Baghdad under a contract with the Iraqi government. He managed a number of projects for [Company 1] which were sponsored by [the US Army]. He claimed that he received a letter from a group associated with al Qaeda in [2011] which threatened to kill him, burn his house down and kill his family unless he stopped working for the US Army. He further claimed that a few days later the house that he rented near his work was burned down and he was required to sell his home to pay compensation to his landlord. A few weeks later his company car was blown up and it was after this that he decided to leave Iraq as soon as possible. He complained to police but they took no action. A delegate of the Minister considered these claims and found them to be ‘plausible and credible’. Relevantly, the delegate found (at pp10 to 11 and at p12 of the Department of Immigration and Border Protection’s records) as follows:Reasons and Assessment In assessing whether the applicant has a well-founded fear of persecution if he returned to Iraq, I have considered independent country information, the testimony of the applicant at interview, and the claims made in his application for a Protection visa. The applicant was interviewed in relation to his Protection visa application [in] 01/2012 with the assistance of an accredited interpreter in Arabic. The applicant’s testimony concerning his circumstances during the Ba’ath regime in Iraq, was coherent, lacked any obvious exaggeration, and was consistent with his written submission.He states that the dangers that he faces - have already occurred, and the authorities are unable to protect him from extremist elements and groups. The applicant has submitted the relevant police reports he referred to in his statement; photos of the applicant at work as [Occupation 1], with American military soldiers, inspecting [work being carried out]; and photos of a burnt out building. While I cannot be sure that the building was his previous abode, the police reports and the letter of employment from [Company 1], and the photos with the American soldiers, appear to be credible.SummaryIn light of the independent country information regarding widespread and continuing sectarian and criminal violence and human right abuses in Iraq, and the Iraqi government’s inability to provide a reasonable level of state protection, I am satisfied that he has a real chance of being subject to harm amounting to persecution for a Convention reason in the foreseeable future if he returns to Iraq. Accordingly, I am satisfied that the applicant has a well-founded fear of persecution in Iraq for the Convention reason of his political opinion.
Evidence
Evidence Before The Court
We have formed a different view and our reasons follow.Outline of submissions and evidence provided by the applicant In his response to the NOICC, the applicant provided a number of documents, including the following:(1)A copy of an alleged threatening letter from ’The Public Relations Bureau of Alrashideen Army’, dated [in] 2011, along with its English translation. The threat identifies the applicant as one who works with the ‘forces of occupation’ and warns him to quit his job otherwise they will kill him and his family and burn his house; (2)An English translation of an Investigation Report from [Police Station 1] dated [in] 2011 of a complaint by the applicant that an unidentified terrorist group threatened him [in] 2011 through a written threat and on [later in] 2011 the same group set his house on fire;(3)An English translation of an Investigation Report dated [in] 2011 stating that the applicant attended the station [in] 2011 to testify against an unidentified terrorist group that threatened him on [in] 2011 through a written threat and that [later in] 2011 the same group set his house on fire;(4)An English translation of a Report from [Police Station 1] dated [in] 2011 of the applicant’s complaint [in] 2011 that an unidentified terrorist group attached an explosive device to his vehicle and detonated it. The report also notes that the applicant testified that he had been exposed to threats by the group. The Report states that an inspection of the explosion site was carried out and a Civil Defence Report/Explosion Unit was issued accordingly;(5)Copy of a letter from [Company 1] stating that the applicant began work with the company [in] March 2007 and has worked there continuously since that time. The letter states that the company agreed to give the applicant a paid vacation from [June] 2011 to [September] 2011 and to return to work at the end of the vacation. The letter is undated;(6)Documents relating to threats being made against the applicant’s brother in 2016; (7)Psychologist reports dated [May] 2016 and [August] 2016 about the applicant’s mental state; (8)Translation of an extract of a medical report from Afghanistan dated [in] October 2013 claimed to be a report of the applicant’s mother’s admission to hospital [in] October 2013;(9)Photographs of the applicant and his wife at their wedding ceremony; photographs of the applicant with military personnel said to be taken at various locations in Baghdad when the applicant worked with [Company 1]; and photographs of what the applicant claims is his bombed vehicle and burnt down home. These documents were also provided to the Tribunal. The applicant attended the hearing and gave evidence on both occasions. The following is an outline of the key aspects of that evidence, together with a summary of the further documents and submissions provided by the applicant. The applicant said that he travelled to Iraq in late 2013 to see his mother. She had a stroke and was very unwell. He believed she was going to die. He kept a low profile because he was concerned he could be harmed or killed. He claimed that while he was in Iraq he stayed with his mother in his brother’s apartment to look after his mother but attended family gatherings and small outings in their region because he believed these involved minimal risk. The applicant said that he did not go out alone and when he did he felt uncomfortable and scared. In support of this evidence, the applicant provided to the Tribunal a report from his mother’s doctor [in] July 2016 confirming that the applicant’s mother had an attack of hypertension leading to a stroke and that she had been admitted to hospital for two weeks commencing [in] October 2013 then a further 10 days [in] November 2013. The applicant also provided a translated version of an extract of a medical report confirming his mother’s hospital admission in 2013 from the Ministry for Health.
Decision
Reasons for decision
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Jan RedfernDeputy PresidentAnn Brandon-BakerMemberATTACHMENT – 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.Section 108 Decision about non-complianceThe Minister is to:(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b) decide whether there was non-compliance by the visa holder in the way described in the notice.Section 109 Cancellation of visa if information incorrect(1) The Minister, after:(a) deciding under section 108 that there was non-compliance by the holder of a visa; and(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Ratio Decidendi
Legal Principle Established
The applicant also claimed that his brother works in [a government agency] and that his brother is a [senior official] in [another section of the government]. The applicant claims that his brother was the subject of an attempt on his life in 2016 and he was forced to retire [from a government agency] after receiving threats. The applicant also referred to country reports from the Department of Foreign Affairs and Trade, which the applicant claims highlights the ongoing sectarian violence against Shi’as. The country information and the threats to the applicant’s brother are said to support the applicant’s claims that he cannot return to Baghdad or its surrounding areas other than for short periods and that Australia still owes the applicant protection. This submission was presumably directed to the exercise of discretion in the event the Tribunal found there were grounds to enliven the power of cancellation under s.109 of the Act. Consideration Based on the evidence provided by the applicant, the Tribunal is satisfied that he returned to Iraq in late 2013 to visit his mother who was ill. The applicant has provided documents that are consistent with his evidence. The applicant stayed in Iraq for just over two months and the Tribunal accepts his evidence that he kept a low profile. There is no evidence to the contrary and his evidence is plausible and credible. The Tribunal is also satisfied that the applicant returned to Iraq to marry his fiancé, who is now his wife. There is no evidence to the contrary and his evidence is plausible and credible and is supported by documentary evidence. The fact that extremist groups did not harm the applicant on either occasion when he returned to Iraq does not evidence that the applicant lied about his fears of persecution or the incidents that he said happened when he made his application for protection. As already noted, the applicant was not working for [Company 1] when he returned and he returned to Iraq for specific purposes. His first return was approximately two years and nine months after he left Iraq and the employ of [Company 1]. He claims, and there is no evidence to the contrary, that he spent most of his time caring for his mother and at family functions. Presumably by the time the applicant returned to Iraq he did not have a current or sufficiently adverse public profile to attract attention in any event. The second visit was approximately four years and nine months after the applicant left Iraq. He claims, and again there is no evidence to the contrary, that he returned to marry his wife, their wedding was low-key and he did not stay any longer than he needed. Given the length of time that had passed since the applicant left Iraq and the circumstances of his return, the fact the applicant returned on two occasions does not, of itself, ‘demonstrate’ (being the word used in the NOICC) that the applicant did not fear persecution from extremist groups at the time he lodged his application for protection. All this demonstrates is that by late 2013 and late 2015 the applicant was less concerned about his return. Relevantly, as noted by the applicant in his evidence, by the time of his return he was not working for [Company 1] and had not been working for the company for some time. Visiting Iraq for brief periods was different to living and working there from 2009 to 2011.