1712580 (Refugee) - [2020] AATA 713

1712580 (Refugee) [2020] AATA 713 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712580
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Nicole Burns
DATE:11 March 2020
PLACE OF DECISION:  Melbourne
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.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 11 March 2020 at 5:39pm

CATCHWORDS
REFUGEE – cancellation – Protection visa – Iraq – incorrect information provided in protection application – applicant was not the holder of an Iranian passport – applicant is an Iraqi citizen –voluntary return to Iran – medical condition of daughter – significant disruption to daughter’s care – likely to cause substantial hardship – no jurisdiction with respect to the second, third and fourth named applicants – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101,107,109, 116, 140
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Saleem v Migration Review Tribunal [2004] FCA 234
SZEEM v Minister for Immigration [2005] FMCA 27
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 first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa because they were satisfied that the applicant provided incorrect answers on her protection visa application in breach of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The second, third and fourth named applicants’ 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 second, third and fourth named applicants.
The first, second and fourth named applicants appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A], who is a friend of the applicant’s. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel…

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 1712580 (Refugee)

Details

AGLC: 1712580 (Refugee) [2020] AATA 713
Case: [2020] AATA 713
Decision Date: 11 March 2020

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the visa of the applicant, an Iraqi citizen residing in Australia. The dispute arose from allegations that the applicant had provided incorrect information in her protection visa application and during an interview, specifically concerning her husband's citizenship and their circumstances in Iran. The case was heard by the Tribunal.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect information in her visa application and subsequent interview. If non-compliance was established, the Tribunal then had to consider whether the visa should be cancelled, taking into account the circumstances of the non-compliance and the potential hardship to the applicant and her family.

The Tribunal found that while the applicant may have provided information that was not accepted by the initial decision-maker, this information was not determinative of her protection claims. Specifically, the Tribunal was satisfied that even if the correct information regarding her husband's citizenship had been known, the applicant would still have been found to engage Australia's protection obligations. Furthermore, the Tribunal considered the significant hardship that would be caused to the applicant and her two daughters if the visa were cancelled, particularly concerning the ongoing care needs of one daughter with a profound medical condition. The Tribunal also noted the adverse impact on the applicant's extended family in Australia.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal exercised its discretion in favour of the applicant, finding that the non-compliance did not result in any benefit to her and that the hardship occasioned by cancellation would be substantial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 11 July 2016, which advised the applicant that her visa may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (visa applications to be correct) of the Act. She was advised to respond in writing. The applicant’s then representative provided a written response dated 28 July 2016 and supporting documents. 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? 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: s.101 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 … The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to her protection visa application, and information she had provided at interview with an interpreter as part of a Protection Obligations Determination (POD) on 18 April 2011, which set out her background, experiences in Iran and Iraq, and specific protection claims and future fears. These included in summary that:·The applicant was an Iraqi citizen who moved to Iran when young and lived in Iran as a refugee, without identity documents and access to services and resources.·Her family resided in Qom (Iran) as refugees; her father was given a Green Card and later a White Card. He did not have permission to work, and worked illegally. ·She and her family faced discrimination from the authorities and public in Iran as refugees and Arabs.·She married her first husband – an Iraqi refugee in Iran – in 1994. He was abusive and violent and belonged to an Islamic extremist group (Hawza group). They divorced not long after they married.·The applicant married her second husband and, fearful of her ex-husband (who continued to threaten her), they moved to Iraq in 2006. After [a number of] weeks residing in Iraq she and her husband returned illegally to reside in Iran, due to being threatened there (considered Iranian). ·In Iran they were not eligible for a White Card and it was difficult to survive in Iran without access to basic human rights.·They began planning to leave Iran in May 2010 and contacted a people smuggler who organised her husband’s fake passport.·The applicant cannot go back to Iran because she has no identity documents or status there. She does not know if the authorities will allow her to return, she fears they could deport her to Iraq where she fears being harmed, viewed as an Iranian.·In Iran her husband would have to work illegally in order for them to survive; she would be forced to live without documentation; their children have no access to education or healthcare and her daughter has a medical condition that requires treatment.·She fears the government in Iran because they discriminate against her and persecute her as an Iraqi refugee. They also support the Hawza group and will not protect her from that group or her ex-husband.·She has no right to return to Iran and they will not provide her with any protection. ·She also fears harm from the Iranian people.

Decision

Reasons for decision

Mandatory legal consequences to a cancellation decision: If the applicant’s visa is cancelled, the applicant will be an unlawful non-citizen and may be detained and liable for removal from Australia as soon as practicable, as required by s.198 of the Act. There are provisions in the Act which would prevent her from making a valid application for any visa without the Minister personally intervening. The Tribunal has given some limited weight to this consideration in the applicant’s favour. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): if the applicant’s visa is cancelled the Tribunal considers the degree of hardship that is likely to be caused to her and her daughters will be significant, primarily due to the disruption and likely reduction of [Ms B]’s care. Whilst this would impact all family members, the potential impact on the applicant, who would be returning to Iran as a separated mother with limited extended family support there, would be great. The Tribunal notes in this regard [the doctor]’s repeated emphasis in her report that [Ms B]’s disability is profound, and the high level of physical care and supervision is ‘well beyond routine care and parenting’, causing her to note that her parents are at very high risk of carer burn-out. If this occurs in Iran as a result of the major disruption to [Ms B]’s care, the impact on [Ms B] and [Ms C] could be devastating. Furthermore, if the applicant’s visa is cancelled her extended family in Australia whom she (and her children) are close to will be adversely affected. Specifically her sister and her sister’s three children (soon to be four) and her brother and his two (soon to be three) children. The Tribunal is satisfied that a significant degree of hardship may be caused to the applicant and in particular her three young children by separating from these family members in Australia, as well as to her relatives in Australia themselves. The Tribunal also notes – as mentioned earlier – that the applicant would be returning to Iran as a single/separated woman. Country information indicates that there is a significant degree of discrimination and related hardship for women and girls in Iran and that there are severe restrictions placed upon them by law and practice. As noted by DFAT in their most recent country information report on Iran:Most Iranian women face persistent societal discrimination and the threat of gender-based violence. Legislation, long-standing traditional values and gender roles continue to restrict the participation of women in the workforce and community.[30][30] DFAT Country Information Report Iran, 7 June 2018 at 3.89.EXERCISE OF DISCRETION In exercising its discretion, the Tribunal gives weight to the fact that it appears the applicant may have intentionally misled the Department in relation to her (then) husband’s citizenship status, possibly to enhance her protection claims, which is clearly a concern. However as the IR did not accept the applicant’s then husband was not an Iranian citizen, even if the correct information had been known, the Tribunal is satisfied that the applicant would still have been found to engage Australia’s protection obligations. As such, she did not benefit as a result of providing this incorrect information.

Ratio Decidendi

Legal Principle Established

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: although the applicant’s claims inferring her second husband was not an Iranian citizen and related problems and fears (for example, having to work illegally in Iran) at the protection visa application stage appear to have intended to strengthen her claims by painting a picture of the applicant and her second husband being particularly vulnerable (among other things) in Iran as refugees without any legal status, the IR did not accept their claims in this respect. As set out in the IPA statement of reasons, dated 30 March 2011,[10] the IR did not accept the second named applicant was not a citizen of Iran or that he faced discrimination in Iran for those reasons, given a number of credibility concerns with his evidence in this regard. The IR found the applicant faced a well-founded fear of persecution in Iran from her former husband there and the second named applicant was granted protection based on his membership of her family unit: the decision to grant the visa was not based, wholly or in part, on the incorrect information that her husband returned illegally to Iran from Iraq in 2006; a people smuggler organised a fake passport for her husband in 2010; and that her husband would have to work illegally in Iran. [10] Contained on Departmental file [deleted] The Tribunal has given this consideration significant weight towards not cancelling the visa. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant at her POD interview on 18 April 2011. In response to the NOICC the applicant claims (via her then representative) that she did not provide incorrect information at the visa application stage in relation to her citizenship status and more broadly her claimed problems in Iran, and future fears. At hearing the applicant said she did not recall stating that her husband would have to work illegally in Iran, noting that they were not her words (she did not elaborate). However reading the information provided at the POD interview as set out in the NOICC as a whole it is clear that the applicant indicated that both her and her husband did not have Iranian citizenship given her multiple claims in this regard as set out earlier. The present circumstances of the visa holder: The applicant has been resident in Australia for over nine years. She lives with her two daughters aged – [ages] – and her second husband in a house they rent in [Suburb 1]. She said although they separated in around 2016, she and her second husband have continued living together to care for [Ms B]. The applicant used to [work] but quit around 18 months ago because of [Ms B]’s increasing demands, including more recently her failure to sleep at night. The second named applicant does not work. They both receive a carer’s pension and funding through NDIS which covers the costs for a carer four days a week and occupational and other therapists on occasion. [Ms B] is enrolled in a special school in [Suburb 1], and before that attended a special school in [Suburb 2]. A letter from the [School] (dated 27 February 2015) was provided in response to the NOICC who notes that [Ms B] requires full-time care to ensure her safety and health, including assistance to walk, eat, bathe, dress and with toileting.