1711147 (Refugee) - [2020] AATA 1537

1711147 (Refugee) [2020] AATA 1537 (22 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711147
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Josephine Kelly
DATE:22 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 22 January 2020 at 11:24am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – imputed political opinion – employment with international forces – particular social group – race – Bidoon – three return visits to Iraq – militia opposing foreign forces – compassionate family visits – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 46, 48, 65
Migration Regulations 1994, Schedule 2
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
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

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 (Cth) (the Act).
The delegate cancelled the visa on the basis that that applicant provided incorrect information in his XA-866 Protection visa application, specifically Questions 46 and 48 of Form 866C. The issues in the present case are whether the notice issued by the Minister’s delegate complied with the requirements in s 107, whether the specified ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 July 2017 and 19 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearings and provided written submissions.
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…

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 1711147 (Refugee)

Details

AGLC: 1711147 (Refugee) [2020] AATA 1537
Case: [2020] AATA 1537
Decision Date: 22 January 2020

CaseChat Overview and Summary

This matter concerned the affirmation of a decision to cancel the applicant’s Subclass 866 (Protection) visa. The applicant had been granted the visa based on claims of persecution in Iraq due to assisting Australian and US forces, and a lack of legal status and protection from authorities there. The Minister’s delegate initiated cancellation proceedings under section 109 of the *Migration Act 1958* (Cth), alleging the applicant had provided incorrect information in their visa application, specifically in response to questions about who might harm them if they returned to Iraq and whether authorities could protect them. This allegation was based on evidence of the applicant making three return visits to Iraq, totalling approximately one year, without apparent incident.

The legal issues before the Tribunal were whether the notice of intention to cancel the visa complied with the requirements of section 107 of the Act, and if not, whether the cancellation decision was valid. The applicant argued that the delegate had not properly formed the requisite state of mind to issue the notice and that the notice failed to particularise the alleged non-compliance as required by section 107(1)(a). The Tribunal was also required to consider whether the applicant had indeed failed to comply with section 101(b) of the Act by providing incorrect answers, given their voluntary returns to Iraq.

The Tribunal found that the notice issued by the Minister’s delegate did comply with the requirements of section 107 of the Act. It determined that the applicant had provided incorrect answers to questions 46 and 48 of their protection visa application, contrary to section 101(b) of the Act, as their subsequent voluntary returns to Iraq for significant periods suggested they did not hold the claimed adverse political profile. The Tribunal reasoned that section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect. Having found non-compliance, and considering all relevant circumstances, the Tribunal concluded that the visa cancellation was appropriate. The Tribunal affirmed the decision to cancel the applicant’s 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. Did the notice comply with the requirements in s.107? In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The applicant’s representative made oral and written submissions to the following effect:-The delegate of the Minister had not concluded that the applicant had not complied with one of the sections or subsections set out in s 107(1) and therefore had not reached the state of mind required to engage s 107(1) and permit notice to be given under that section (Zhong v Minister for Immigration and Citizenship [2008] FCA 507 (1 April 2008) at [72] to [77]). -The notice failed to particularise the applicant’s non-compliance as required by s 107(1)(a) (Zhong at [79] – [82]). The notice of intention to consider cancellation dated 2 December 2016 given to the Applicant included the following:On 8 March 2013 you lodged an application for a Protection visa, Form 866C – Application for a Protection (Class XA) visa. In that application you were asked the following questions in relation to your protection claims:Questions 46 and 48 you stated:‘Please refer to my attached statement of claims’Question 46. Who do you think may harm/mistreat you if you go back?Question 48. Do you think the authorities of that country can and will protect you if you go back?In response to Questions 46 and 48 you made the following statement:‘I lived most of my life in Iraq and I fear returning there because I have no legal status in Iraq and I can expect no protection from the Authorities. When I lived in Iraq I had worked with the US forces and many people who did that received threats. Previously I had worked with Australian troops and I fear retributions from the Militia who are against all foreign forces intrusion in Iraq and against all who assisted them. If I was able to return to Iraq I would be treated badly because I am stateless and because I had assisted US and Australian forces. On 12 March 2013 based on the information you provided, as well as meeting other relevant criteria you were granted a XA-866 Protection (Permanent) visa.[In] January 2014 you departed Australia and stated on your outgoing passenger card that you intend to spend most time abroad in Iraq.[In] April 2014 you arrived in Australia after spending three months away.[In] January 2015 you departed Australia and stated on your outgoing passenger card that you intend to spend most time abroad in Iraq.[In] June 2015 you arrived in Australia after spending five months away. On your incoming passenger card you stated that you had spent most of your time abroad in Iraq.[In] April 2016 you departed Australia and indicated on your outgoing passenger card that you intend to spend most time abroad in Iraq.[In] August 2016 you arrived in Australia after spending four months overseas. On your incoming passenger card you indicated that you spent most time abroad in Iraq.Your Titre de voyage … was examined on arrival which had the following Iraqi arrival and departure stamps in it:[August] 2016 – Departure – Republic of Iraq – Al Basrah International Airport[April] 2016 – Entry – Republic of Iraq – Al Basrah International Airport[June] 2015 – Departure – Republic of Ira – Al Basrah International Airport[January] 2015 – Entry – Republic of Iraq – Al Basrah International AirportThe Iraqi entry and departure dates confirm that you have spent approximately nine months living in Iraq from [January] 2015 – [August] 2016. Additionally departmental movement records confirm that you spent approximately three months outside of Australia ([January] 2014 – [April] 2014) and your passenger cards for that trip indicate that this period was spent living in Iraq.Therefore it appears that you have spent approximately one year in total living in Iraq since the grant of your XA-866 protection visa.Your Protection visa was granted on the basis that you satisfied the minister that you engaged Australia’s protection obligations under the Refugees Convention. These obligations were based upon your claimed adverse political profile where you have consistently maintained that you will be persecuted in Iraq because you have assisted Australia and US forces in Iraq.It appears that you have provided incorrect answers/information in your application for a protection visa at questions 46 and 48 (see above) as voluntary return back to Iraq for significant periods of time without issues suggests that you did not hold the claimed adverse profile in your Protection visa application. Question 46 I consider that you have not complied with section 101(b) because it appears that you have lived for approximately one year (in total) in Iraq since the grant of your Protection visa without any apparent Protection related issues.Question 48I consider that you have not complied with section 101(b) because it appears that you have spent approximately one year (in total) living in Iraq since the grant of our Protection visa without any apparent Protection related issue.If you did not comply with section 101(b) of the Migration Act 1958, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply as stipulated in s 100 described above. Possible reassessment of non-refoulement obligationsThe response you provide to the information/observations made and put to you in this Notice may be used to re-assess Australia’s non-refoulement obligations in relation to you.Your response to the following additional information will also be considered:. I note that you have returned to Iraq for a cumulative period of 337 days since the grant of your Protection visa. Your actions appear to be in contradiction with your claims that you would be persecuted if you returned to Iraq. Your voluntary re-entry to Iraq without incident on a number of occasions may lead to a finding that Australia does not have non-refoulement obligations in relation to you.

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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.Josephine KellySenior MemberATTACHMENT – Migration Act 1958 (extracts)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.108Decision 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.109Cancellation 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 Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.Josephine KellySenior MemberATTACHMENT – Migration Act 1958 (extracts)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.108Decision 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.109Cancellation 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.