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
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).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) which requires a non-citizen to fill in or complete the application form in such a way that no incorrect answers are given or provided. 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 6 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…
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
1705088 (Refugee) [2017] AATA 1288
Case
[2017] AATA 1288
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of an applicant whose protection visa was cancelled. The dispute arose from allegations that the applicant had provided incorrect information during his visa application process, specifically concerning his claimed status as a stateless Bidoon and his lack of Iraqi citizenship. The Tribunal was tasked with determining whether the cancellation decision was justified.
The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the Migration Act 1958, specifically section 101(b) which mandates that no incorrect answers be given in a visa application. The Tribunal also had to consider the validity of the notice issued under section 107 of the Act, which initiates the cancellation process, and whether the circumstances of the non-compliance, the applicant's present circumstances, and his subsequent behaviour warranted the cancellation of his visa.
The Tribunal found that the applicant had indeed provided incorrect information, as evidenced by his subsequent applications for partner visas for his wife and children, where they were identified as Iraqi nationals with Iraqi passports and identity cards. This contradicted his earlier claims of being stateless and lacking Iraqi citizenship, which formed a basis for the grant of his protection visa. The Tribunal also noted that the applicant had travelled to Iraq twice after being granted his protection visa, which it considered indicative that he did not fear harm as claimed. While acknowledging the applicant's health and the explanation for his travel, the Tribunal concluded that the cumulative weight of the incorrect information provided, particularly regarding his and his family's nationality, and his subsequent behaviour, justified the cancellation of his visa.
Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 866 (Protection) visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE 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 applicant’s representative has made submissions arguing that the s.107 notice is invalid. As discussed in the course of the hearing and for the reasons explained below, 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. The Tribunal advised the applicant that there is a s.438(1)(a) certificate placed on Departmental Partner visa application file. The Tribunal indicated that it considered the certificate to be invalid and noted that the Tribunal would discuss any relevant information contained in those documents. Was there non-compliance as described in the s.107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). Essentially when seeking protection, the applicant has claimed that he is a stateless Bidoon[1] who was born in Kuwait, that he had resided in Iraq since [date], that he did not obtain Iraqi citizenship, and that he held a personal status card for Iraq. He claimed that he had departed Iraq in 2010 using a genuine Iraqi passport for which he had paid in order to get it fast tracked. [1] Bidoon or Bidoun is an Arabic word meaning without nationality – to be distinguished from Bedouins – the nomads In the course of the hearing, the Tribunal discussed with the applicant the summary of his protection claims and responses in the application for a protection visa as noted by the delegate in the decision which the applicant provided in support of the application for review. Relevantly, the delegate’s decision record refers to the following matters:a.[In] January 2011, the applicant arrived in Australia as an irregular maritime arrival and he made claims of being a refugee. [In] February 2011, the applicant made a request for a Refugee Status Assessment (RSA) and [in] May 2011, the delegate of the Minister found that the applicant is a “stateless Bidoon, and habitually resides in Iraq… I find that the claimant does not have a well-founded fear of harm and that there is not a real chance of persecution occurring on the grounds of religion, imputed political opinion or particular social group”.b.[In] June 2011, the applicant applied for an Independent Merits Review (IMR) and the applicant made claims that:The treatment we received as Kuwaiti born Bidoons is very different to that of Iraqi citizens. We are treated differently in education, employment, health. This is because of the militia who control everything in Iraq.I am informed that the case officer said in her decision that the Mehdi Army was no longer active after the election. In fact the opposite is true, it’s just that the media was not talking about it. Especially in the south, the Mehdi army are the ones controlling everything. I can’t go back to Iraq. They have people everywhere: in airports and government departments. If I returned, they would know about it, and I would be executed straightaway.If I was sent back, the first thing that would happen is I would be interviewed at the airport. I would be accused of being a spy and the information about my refugee application would be found out. I don’t know if the passport I had was genuine or not. I got it from Baghdad and I paid $[amount] for it. As I don’t have a passport, I cannot return to Iraq anyway. I am not a citizen and cannot get a passport.c.[In] January 2012, based on the applicant’s claims of being a stateless Bidoon, imputed political opinion, and his Sunni Muslim faith, the reviewer of the IMR found that the applicant met the definition of a refugee and subsequently [in] May 2012, the applicant lodged an application for a protection visa, subclass 866. As part of that application, the applicant completed the form 866B – Persons included in this application and family composition. In response to question 11 of the form asking “Are there any members of the same family unit who are not in Australia at the time of the application?”, the applicant ticked “yes” and stated “See Attachment”. In that attachment, the applicant provided details relating to the names of his wife[and children] and indicated their citizenship to be Stateless.d.The applicant also completed a form 866C in which he responded to a number of questions. In response to question 20 asking “Your citizenship at birth?”, the applicant responded “Stateless”. At question 22 asking “Do you hold any other citizenship or are you a national of any other country?”, the applicant ticked “No”. At question 23 asking “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?”, the applicant ticked “No”. e.At question 42, asking “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries), the applicant responded “Kuwait and Iraq”. At question 47 asking “Why do you think this will happen to you if you go back?”, the applicant stated “Please refer to all information provided in support of my request for Refugee Status Assessment including but not limited to my Statutory Declaration made on 20 February 2011 and my RSA interview and all information provided in support of the Independent Merits Review of the RSA”.f.In the Statutory Declaration of 20 February 2011, the applicant made the following claims:I am a stateless Bidoon of Arab ethnicity and of Sunni Muslim faith…My life and my kids’ lives have been threatened because I am Sunni and because I do not support a political party. The authorities are unable to protect me because many of them are members of the Shia political party that is persecuting me. I do not have citizenship to this country.…When I arrived in Iraq the government issued me with a personal status card and a residence card. These documents allowed access to hospital and schools. It did not give any other rights and we did not have a right to stay in the country. I was scared because at any time the Iraqi government might force me out of the country.… In 2006 and 2007 my sons [Mr A] and [Mr B] were working in a [foreign] Company in [a workplace]. The Thaar Alah party started to threaten me and required me to make my son’s to leave their jobs. Taar Alah is a Shia extremist political party…The threat was that if they did not give up their jobs my sons would be killed.… After this another problems started in March 2010 by the Al Mahdi Army party. They were a Shia party. They had wanted me to vote for their party but I refused to… They threatened to kill us and our children. This happened because I am Sunni.… After the constant threatening of my life I had to flee Iraq for my safety… If I was returned to Iraq I fear I would continue to be threatened and potentially killed by the Al Mahdi party and other Shia extremists. It will also be a problem for me because I have sought asylum in a Western country. The Shia extremists would consider me a traitor by seeking the protection of an enemy country.g.The applicant was granted the protection visa [in] July 2012 and [in] June 2013, he lodged a sponsorship application form 40SP for his wife [including] their [children] for an offshore Partner visa. At question 8 of the form 40SP titled Sponsorship for a partner to migrate to Australia, asking Which citizenship do you hold? The applicant stated Iraqi. h.At question 11 of forms 47A Details of child or other dependent family member aged 18 years or over, asking “Dependent’s country of current residence”, the applicant’s adult children [Mr B], [name] and [Mr C] responded “Iraq”. In addition, the applicant’s spouse and [children] provided copies of their Iraqi passports and Iraqi identity cards.i.Departmental records and incoming passenger card show that the applicant had travelled to Iraq on two occasions since the grant of his protection visa, for three months between [January] 2013 to [April] 2013, for about 2 ½ months from [March] 2014 until [May] 2014.
Decision
Reasons for decision
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. The Tribunal has had regard to all the relevant circumstances, independently and cumulatively. On balance, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.Antoinette YounesSenior MemberATTACHMENT – 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.
Ratio Decidendi
Legal Principle Established
On the basis of the available information, the Tribunal is satisfied that the family members’ Iraqi passports and Iraqi identity documents, are genuine documents containing accurate information in relation to their nationality. · whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document Throughout the protection visa application process, the applicant claimed that he and members of his family are stateless Bidoon. The applicant was granted the protection visa on the basis of the independent reviewer’s findings, amongst other things, that the applicant is stateless and his “lack of Iraqi citizenship”[12]. [12] At paragraph 64 of IMR 's decision dated [January] 2012 On the evidence before it, the Tribunal is satisfied that the decision to grant the protection visa was based, wholly or partly, on the incorrect information provided by the applicant. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled. · the circumstances in which the non-compliance occurred As outlined earlier, subsequent to the grant of the protection visa [in] July 2012, the applicant returned to Iraq for the first time [in] January 2013. On the evidence before it and for the reasons explained above, the Tribunal is satisfied that his returns to Iraq indicate that he did not fear harm as claimed. His returns also support the findings that the applicant has provided incorrect information about his nationality and his claims of harm. The applicant has explained his returns on the basis of his mother’s illness and the Tribunal gives this some weight in his favour. The applicant’s spouse in Iraq lodged an application for a Partner visa, sponsored by the applicant. The spouse and the children provided copies of Iraqi passports and identity cards indicating that they are Iraqi nationals, contrary to his protection claims that they are stateless. The Tribunal gives this aspect significant weight in deciding that the visa should be cancelled.· the present circumstances of the visa holder The applicant does not have close family members in Australia. He gave evidence that his wife and children, all of whom are adults, are in [location] which is [distance] km away from Basra, Iraq. The Tribunal asked him about their situation and he stated they are not working. The Tribunal asked him if he has any relatives in Kuwait and he stated that he has [siblings] all of whom are married and live in Kuwait with their families. The Tribunal has considered the applicant’s physical and mental health, as well as his personal situation very carefully. The Tribunal gives the applicant’s health weight in his favour, however, the Tribunal gives the totality of his personal circumstances weight in deciding that the visa should be cancelled.· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act