1709285 (Refugee) - [2018] AATA 1513

1709285 (Refugee) [2018] AATA 1513 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1709285
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Josephine Kelly
DATE:11 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 11 May 2018 at 4:03pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Iraq – Ethnicity – Claims to be Stateless Bidoon from Kuwait – Bogus documents or incorrect information – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 107, 109, 140

CASES
Zhong v Minister for Immigration and Citizenship [2008] FCA 507

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 19 April 2017 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 visa had been granted on 2 June 2011 because the applicant was accepted as being a stateless Bidoon from Kuwait.

2. On 25 June 2013, the applicant’s wife lodged a partner visa application, including [several] children, and provided various Iraqi identity documents for herself and her children in support of the application.

3. The delegate cancelled the visa on the basis that the applicant claimed in his visa application that he and his immediate family were stateless and not entitled to citizenship of any country which was incorrect and concluded that the applicant was an Iraqi citizen.

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

5. The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The applicant provided further submissions after the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid…

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.

Continue reading 1709285 (Refugee)

Details

AGLC: 1709285 (Refugee) [2018] AATA 1513
Case: [2018] AATA 1513
Decision Date: 11 May 2018

CaseChat Overview and Summary

The applicant, a citizen of Iraq, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel their protection visa. The applicant claimed to be a stateless Bidoon from Kuwait and had provided documents to support this claim. The Minister's delegate had found that the applicant had provided bogus documents or incorrect information, leading to the cancellation of the visa. The Administrative Appeals Tribunal (AAT) affirmed the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant had established that they would be a person to whom the *1951 Convention relating to the Status of Refugees* and its *1967 Protocol* applied, such that they would be owed protection by Australia. This required the Tribunal to determine if the applicant's claims regarding their ethnicity, statelessness, and country of origin were credible, particularly in light of inconsistencies in their evidence and the presentation of documents that were found to be bogus or incorrect.

The Tribunal's reasoning focused on the applicant's inconsistent evidence regarding their identity, place of birth, and family history. It found that the applicant had failed to discharge the onus of proof resting upon them to establish their claims to the satisfaction of the Tribunal. The Tribunal considered the documentary evidence presented, including identity documents, and found them to be unreliable or indicative of incorrect information having been provided. Consequently, the Tribunal concluded that the applicant had not demonstrated that they were a person to whom Australia owed protection obligations under international law.

The Tribunal affirmed the decision of the Minister's delegate to cancel the applicant's protection visa.

Orders