1703813 (Refugee)

[2018] AATA 5123

1703813 (Refugee) [2018] AATA 5123 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703813

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Irene O'Connell

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2018 at 12:22pm

CATCHWORDS

REFUGEE – cancellation – Protection visa – stateless – an irregular maritime arrival – Arab ethnicity– incorrect information provided to the department – whether the applicant held Iranian citizenship when he arrived in Australia – failure to issue a valid notice – decision under review set aside

PRACTICE AND PROCEDURE –s375A certificate not valid

LEGISLATION

Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 140,375A

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 a review of a decision made by a delegate of the Minister for Immigration on 22 February 2017 to cancel the first named applicant’s Subclass 866 Protection (Class XA) visa under s.109(1) of the Migration Act 1958 (the Act).

2. Subsection 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.

3. 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. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Section 107 states that:

(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; …

4. The applicant was issued with a notice of intention to consider cancellation (NOICC) (dated 21 October 2016) and invited to respond to this notice. In his response of 10 November 2016 the applicant argued that the notice did not comply with s.107(1)(a) as it did not adequately particularise the possible non-compliance and as such he was unable to make a meaningful response to the NOICC. He sought further particulars in order to do so.

5.  No further particulars were provided and the delegate proceeded to cancel the applicant’s visa on the basis that the applicant did not complete his protection visa application in such a way that no incorrect answers were given.  In cancelling the visa the delegate found that there were no compelling reasons to not cancel the visa that would outweigh the grounds for cancellation.

6. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is in respect of the first named applicant, [(the applicant)]. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

7.  The applicant was represented in relation to the review by [his] registered migration agent.  The applicant provided to the Tribunal a copy of the NOICC and the decision record of the delegate cancelling his visa. He also made written submissions to the Tribunal dated 17 August 2018 and 15 November 2018. He gave oral evidence to the Tribunal at a hearing held on 22 November 2018 which was conducted with the assistance of an interpreter.

8. In his oral and written evidence to the Tribunal the applicant maintained that the NOICC did not comply with s.107(1)(a) as it did not particularise the possible non-compliance and as such he was unable to make a meaningful response to the NOICC.

Does the NOICC comply with the requirements of s.107(1)(a)?

9.    The NOICC of 21 October 2016 issued by the delegate is detailed and lengthy. As its validity is at issue the Tribunal sets out a large section of it as follows:

[In] May 2012 you arrived on Christmas Island as an Irregular Maritime Arrival (IMA).

On 7 July 2012 you lodged a Form 866 - Application for a Protection (Class XA) visa…

Attached to the Form 80, you provided the names and details of all your family members including your mother, [and] [father]. You listed both your mother's and father's citizenship as Iraqi. You also listed all your siblings including your sister, [who] is listed as being born in Iraq and her citizenship is listed as Stateless. Refer to attached Appendix 1, 'Family Composition'.

At question 1 of part B and C of the Form 866, and at question 1 of the Form 80, your name is listed on the application as [Name 1].

On page 14 and 15 of the Form 866 at question 65 you signed a declaration on 7 July 2012 that stated '[Name 1] , [do] solemnly declare; the information I have supplied or caused to be supplied on or with this  Part C of the form 866 is complete, correct and up-to-date in every detail.' and 'I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.'

In support of your application for a Protection visa, you provided a Statutory Declaration dated 7 July 2012. Your claims in summary are set out below:

You were born in Iraq in [year] and fled to Iran with your mother and siblings at the age of [age] after your father disappeared in the Iran-Iraq War. You have remained in Iran illegally since then and hold no right to citizenship in either country. You are Stateless and do not hold any documentation attesting to your birth or citizenship status in Iraq or Iran. You fear returning to Iraq and Iran.

You fear returning to Iraq due to the advice you received from your brother about the ongoing violence and instability in Iraq. You have no documents to prove citizenship in Iraq or social support to assist or facilitate your resettlement if you were to return. You fear that if you were to return to Iraq you would be physically harmed or killed as the Iraqi authorities are unable- to protect their citizens from extreme violence throughout Iraq.

You fear returning to Iran because you may be detained, tortured or killed in Iran by the Iranian authorities or specifically, the Basij. You have no legal right to reside in Iran. In Iran you, and your family, are discriminated against due to your Arabic ethnicity and Statelessness. In particular, as an undocumented Arab residing in the Ahwaz region of Iran, you are generally targeted and treated worse by the Iranian authorities more so than undocumented people who are not of Arabic ethnicity. You were not permitted access to education equivalent to that which is provided to Iranian citizen children. Your son and nephew are also denied education due to being undocumented in Iran. You were able to enrol your son in school through bribery however, your son experienced discrimination by teachers and was teased on a daily basis by other pupils at the school.

You were unable to gain formal or stable employment in Iran due to your Statelessness and had no rights to complain about wages or conditions of your [employment]. Iranian Authorities would discover you working illegally then confiscate your merchandise and force you to move on. Your employer would then withhold your pay to cover the cost of the confiscated goods. Your work was irregular and you were not permitted social security during times of unemployment. You were unable to provide food for your family during periods of unemployment.

You have been stopped and harassed by the Basij on two separate occasions. You were targeted by the Basij because you are of Arab ethnicity and subsequently told to 'return to your country' when they discovered you are undocumented. Members of your family have also experienced persecution by the Basij and were arrested and tortured due to their Arab ethnicity. You are not permitted to wear traditional Arab clothing and Iranian authorities regularly intimidate, persecute or execute Ahwazi Arabs on the basis of fabricated charges. As a child, you have personally witnessed the atrocities committed against Arab people, in particular, kidnapping and ransom and have seen the remains of executed people.

The Iranian authorities have effective control throughout Iran and therefore there is nowhere in Iran that you and your family would be safe. The Iranian authorities will continue to_ consider you as an undocumented person of Arabic ethnicity and therefore unable or unwilling to provide you effective protection in Iran.

At question 20 of part 'C' of the Form 866, which asks “Your citizenship at birth??" you answered, "Iraq".

At question 21 of part 'C' of the Form 866, which asks "Your current citizenship?" you answered, "Stateless" and "Date acquired" you answered "[date]".

At question 22 in part 'C' of the Form 886 asks "Do you hold any other citizenship or are you a national of any other country?" you indicated your answer by placing a tick in the relevant- check box which listed "No".

At question 23 in part 'C' of the Form 886 asks "Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?" you answered  "No".

At question 24 in part 'C' of the Form 886 asks "If you are stateless, how, when and why did you lose your citizenship?" you answered, "I believe I was born a citizen of Iraq, but we fled that country when I was [age] years old. I do not have any Iraqi documents, and have since lost my Iraqi citizenship".

At question 42 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 answered, "Iran and/or Iraq".

As part of your application for a Protection visa you provided a Statutory Declaration dated 7 July 2012 (referenced above). You referred to this Statutory Declaration in your application for a Protection visa in the below listed questions at part C of the Form 866.

At question 43 of part 'C' of the Form 866, which states "Why did you leave that   country?" you answered, "Please refer to my statutory declaration (attached to this application)".

At question 44 of part 'C' of the Form 866, which states "Have you experienced harm in that country?" you answered, "Please refer to my statutory declaration (attached to this application)".

At question 45 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 answered, "Please refer to my statutory declaration (attached to this application)".

At question 46 of part 'C' of the Form 866, which states 'Who do you think may harm/mistreat you if you go back?" you answered, "Please refer to my statutory declaration (attached to this application)".

At question 47 of part 'C' of the Form 866, which states "Why do you think this will happen  to you if you go back?" you answered, "Please refer to my statutory declaration (attached to this application)".

At question 48 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?" you indicated your answer by placing a tick in the relevant check box which listed  "No” and; "why not?” you  answered, "Please refer   to my statutory declaration (attached to this  application)".

It was on the basis of your claims of being of Arab ethnicity and an undocumented, Stateless person requiring the protection of Australia that the XA subclass 866 Protection visa was granted to you on 20 February 2013.

As listed in Appendix 1, you provided details about your close family members in your application. Attached to the Form 80, you provided the names and details of all your family members including your mother, [and] [father]. You listed both your mother's and father's citizenship as Iraqi. You also listed all your siblings including your sister, [who] is listed as being born in Iraq and her citizenship is listed as Stateless. 

According to Iranian citizenship laws, Iranian citizenship is acquired through the paternal    line and therefore if either you, or your siblings, are citizens of Iran, this would have been acquired through your father [at] birth. Consequently, both you and your children, and; your siblings would be citizens of Iran. As a citizen of Iran, your wife (if not   a citizen of Iran) would also acquire Iranian citizenship through marriage.

The department holds information that you are a citizen of Iran. (Emphasis added.) According to Iranian citizenship laws, you acquired your Iranian citizenship at birth through your [father].

The Department has reasonable information which suggests that your biological father was an Iranian citizen and not Iraqi as you claimed.

It appears your father was an Iranian citizen and therefore you and your siblings (as listed in the attached Appendix 1) are Iranian citizens by virtue of birth. (Emphasis added.)

This is in accordance with Article 976 of the Iranian Nationality Law that stipulates children born to Iranian national fathers are by virtue of birth are Iranian  citizens.

Information held by the department together with Iran's citizenship laws is evidence that you are an Iranian citizen and were so at the time of your application for a Protection (class XA) Protection (subclass 866) visa.

I therefore consider that you are an Iranian citizen when you applied for protection, and are not Stateless as claimed in your application for a Protection (class XA) Protection (subclass 866) visa.

As a citizen of Iran, you are not Stateless and therefore, you do not hold the adverse profile as claimed in your application for a Protection (class XA) Protection (subclass 866)  visa.

Your claims of being an undocumented, Stateless person of Arab ethnicity in Iran were fundamental to the determination that you were a person to whom Australia has protection obligations.

On the basis of the above information, I therefore consider that you have not complied with Sections 101(b) of the Act because in support of your application and in order to satisfy the legislative requirements for grant of a visa, you provided incorrect information to the department.

This information is incorrect because as a citizen of Iran you are not Stateless as claimed in your application for a Protection visa. You therefore have effective protection in Iran, by the Iranian authorities, consistent with the level of protection afforded to all other Iranian citizens.

Consequently, I consider that you have not complied with section 101 of the Act as it appears that you have provided incorrect information to these questions in your subclass 866 Protection visa application.

10.  The applicant argues that the reference in the NOICC to the Department holding reasonable information without particularising this information means the applicant cannot make a meaningful response.  In the submission of 15 November 2018 the adviser sets this argument out as follows:

The lack of particulars for the view held by the delegate that the Department has reasonable information which suggests that your biological father was an Iranian citizen and not Iraqi as you claimed and the delegate’s clear reliance on this view amounts to a defect in the s.107 notice…

…

The delegate has merely particularised that the Department ‘holds information’ that would ‘appear’ to suggest that the visa holder’s father was an Iranian citizen. Such a vague allegation of non-compliance does not provide the visa holder with sufficient information to respond to the notice in an informed manner.

11. Section 107(1)(a) stipulates that particulars of non-compliance are to be given. There is no specific reference to the requirement that these particulars be adequate or sufficient. The notice is particularised in so far as the delegate provided a detailed identification and itemising of answers the applicant provided in his protection visa application which the delegate finds to be incorrect. However, while alleged incorrect answers are particularised there are limited particulars as to the information relied on by the delegate to determine that these responses are incorrect.

12.  There is reference in the NOICC to country information about how citizenship is derived through paternity and there is reference to the Department holding reasonable information about the citizenship of the applicant’s father but no particulars about information. 

13.  The Federal Magistrates Court in SZEEM v Minister for Immigration [2005] FMCA 27 at [38] has stated that the particulars should be stated in a manner that enables the applicant to respond to an allegation of non-compliance:

… the “particulars” referred to in s.107(1)(a) are not only particulars which “specify” (c.f. the language used in s.107A) the “possible non-compliances”, in the sense of identifying the statements made in documents or otherwise which are alleged to have been made incorrectly. Such a reading might on occasions provide sufficient notice of the allegations of falsity, but will not do so if the falsity is alleged to relate to a general statement such as “I fear persecution.” In relation to an allegation that a general statement was made falsely, the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.

14. The Tribunal is of the view that the failure to give the particulars of the basis for the alleged falsity as to the applicant’s nationality and to merely allude to the existence of such particulars is a failure to give particulars. It amounts to a failure to issue a valid notice as required by s.107(1)(a).

15.  The purpose of the NOICC and the provision of particulars as noted in SZEEM is to give the applicant “a real opportunity to understand and attempt to answer the non-compliance allegation.” Without the particulars of the reasonable information held by the Department the applicant’s capacity to respond is limited. In the process of conducting the review and reviewing the Department files it became apparent that the most likely basis for the delegate’s view that the applicant was an Iranian citizen and not stateless as he claimed was information the Department held in relation to the applicant’s sister. This information was that she returned to Iran on an Iranian travel document indicating that she was entitled to Iranian citizenship. This gave rise to the belief that she had obtained her citizenship through her father. If this was the case then the applicant also must be an Iranian citizen or at least entitled to it. As these particulars were not put to the applicant in the notice he was not in a position to provide this response to the NOICC.

16.  This information pertaining to the applicant’s sister was covered by a non- disclosure certificate issued under s.375A (which itself is invalid) but disclosed to the applicant through the FOI process following the cancellation of his visa. At the hearing the applicant claimed that his sister had married an Iranian citizen and obtained her citizenship in this manner. However his father was not an Iranian citizen and the applicant maintained that he had correctly stated in his protection visa application that he is stateless.

17. As the notice is not a valid notice for the purposes of s.107 and as a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa does not arise.

DECISION

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

19.  The Tribunal has no jurisdiction with respect to the other applicants.

Irene O'Connell

Deputy Division Head