1711178 (Refugee)

[2019] AATA 5643

1711178 (Refugee) [2019] AATA 5643 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711178

COUNTRY OF REFERENCE:                   Uzbekistan

MEMBER:Josephine Kelly

DATE:19 December 2019

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 19 December 2019 at 2:13pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Uzbekistan – ground for cancellation – incorrect information in visa application – claimed adverse profile and fear of harm – voluntarily returned to Uzbekistan – father’s illness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 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).

2. The delegate cancelled the visa on the basis that the Applicant had provided incorrect information in response to questions 43-46 of the application for a class XA subclass 866 Protection Visa that he lodged on 21 December 2010. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 1 August 2017 and 16 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. In the present matter, 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.

   Was there non-compliance as described in the s.107 notice?

9. 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) of the Act in the following respects:

   At question 43, in response to which the visa holder stated that the authorities would put him in jail or possibly kill him. This is incorrect as the visa holder has since voluntarily returned to Uzbekistan, made himself known to authorities and has not experienced any significant issue or was harmed as he claimed.

   At question 44, in response to which the visa holder stated that the security service officers would harm him. The visa holder has since returned to Uzbekistan has not faced apparent harm from the authorities.

   At question 45, in response to which the visa holder stated that people did not understand his religion.

   At question 46, in response to which the visa holder stated that the authorities would not protect him, rather they would cause him harm due to the profile that he claimed to have held with the authorities. The visa holder’s actions in returning to Uzbekistan and making himself known to authorities without issue since the grant of his visa indicate that he is not of adverse interest to the state.  The reason for this appears to be that he did not hold the claimed adverse profile, which suggests that he is not an apostate.

   The visa holder has stated that he feared the authorities of Uzbekistan and that he could not return there, however, he has since voluntarily returned on two occasions, engaged with his claimed persecutors and obtained a new passport.  As this information was material to the determination that the visa holder was owed protection, it appears that the visa holder does not hold the adverse profile as he has claimed and that he may not have engaged Australia’s protection obligations.

   I therefore consider that the visa holder has not complied with section 101(b) of the Act because he has provided incorrect answers in his application for a class XA subclass 866 Protection Visa.

   The visa is therefore liable for cancellation.

10. The Tribunal has had the advantage of additional evidence which unfortunately was not provided in response to the Notice of Intention to Consider Cancellation under Section 109 of the Act (the NOIC). The Tribunal accepts that the applicant and his wife entrusted a lawyer with advising them about and responding on their behalf to the NOIC.

11. That response did not address directly the alleged non-compliance.  The only explanation was set out in an email dated 20 January 2017 which talked about making mistakes and misjudgements when in an extremely difficult situation and asking that the applicant’s case be considered from a humane and humanitarian point of view because the applicant’s children are settled here, his family were tax paying and honest residents, and he had a mortgage and employed an Australia citizen.

12. The Tribunal accepts the oral and written evidence of the applicant and the oral evidence of his wife, which was supported by documentary and audio-visual evidence, about the circumstances in which the applicant returned to Uzbekistan. There were inconsistencies in the evidence, but they did not cause the Tribunal to doubt the reliability of the evidence.

13. The Tribunal has taken into account that the first language of both the applicant and his wife is Tajik, their second language is Uzbek, and their third language is Russian.  The person who filled out the visa application for the applicant was not an English native speaker.  From observing and listening to the applicant during the hearing, it is apparent that his current grasp of English is limited. His wife’s English is better. Because the hearing went longer than anticipated, three different Russian interpreters assisted.  The first was in person and the other two were by telephone.  There were difficulties of interpretation, most noticeably with the first and second interpreter.  There were few if any difficulties with the third and final interpreter.     

14. In both 2012 and 2015, the applicant returned to Uzbekistan because his father was very ill; he suffered two strokes. Sadly, his father died in March 2019 which had resulted in the applicant being held responsible for his death by relatives because he did not return to look after him when he was ill and did not attend his funeral.  The applicant is very distressed by his father’s death and those surrounding circumstances.  He had a very close relationship with his father.

15. In 2012, the applicant paid $10,000 for protection for nine weeks.  He was met at the airport and taken through a VIP lounge to his father’s home where he remained until he left.  His wife and children also lived there.  He was there during winter when the days were very short.  No-one found out that he was there.  He also wanted to see his wife and children, but the reason he returned was his father’s illness.

16. The applicant’s wife and children came to Australia in 2014.

17. Having been able to avoid any trouble in 2012, and more than two years having elapsed, the applicant returned to Uzbekistan again in 2015 because of his father’s illness.  His family also went but travelled at different times from when the applicant travelled. While he was there, the family rented an apartment at some distance from his father’s home to ensure that neighbours did not know of his presence and alert the authorities.  He also bribed authorities, including to obtain a new passport which was issued following his attending the passport office after hours to have his photograph and fingerprints taken.   

18. A person in the area where they rented the apartment threatened the applicant and his wife.  Two related incidents were videoed.  The Tribunal was concerned about various aspects of the video evidence, but after very close questioning of both the applicant and his wife, was satisfied that the applicant was visible in both and that the evidence could not have been staged, and that he had come to the attention of authorities and was the subject of court proceedings. He left the country.

19. In 2017, the applicant’s wife returned to Uzbekistan when the applicant’s father suffered another bout of serious illness because the applicant did not dare.  She was prevented from departing Uzbekistan when she attended the airport because of a record of a court fine which had been imposed on her arising from the 2015 incident.  She was able to bribe officials to obtain a temporary removal of the travel limitation.

20. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

21. It was most regrettable that a legal issue arose in relation to the lack of delegation to the original decision-maker in this and a number of other cases which resulted in a lengthy delay before this matter could be decided.  The delay caused the applicant and his wife great distress.

    DECISION

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

    Josephine Kelly
    Senior Member

    
    

    ATTACHMENT – 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.

    97Interpretation

    In 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 application

    A 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 answer

    Any 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 answers

    For 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 correct

    A 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‑compliance

    The 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.