1713364 (Refugee) - [2018] AATA 4976

1713364 (Refugee) [2018] AATA 4976 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713364
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Irene O'Connell
DATE:19 October 2018
PLACE OF DECISION:  Sydney
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 19 October 2018 at 2:47pm

CATCHWORDS
REFUGEE – cancellation – Protection visa – Iraq – voluntarily return to Iraq on multiple occasions – whether the mandatory statutory notice sent to the applicant is valid – NOICC does not particularise the incorrect information – the notice was not a valid notice – decision under review set aside – no jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 119, 140,

Migration Regulations 1994, r 2.41, Schedule 2

CASES
Minister for Immigration and Citizenship v Brar and Another [2012] FCAFC 30
SZEEM v Minister for Immigration [2005] FMCA 27

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
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 on 23 June 2017 to cancel the first named applicant’s Subclass 866 Protection (Class XA) 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) of the Act, that is he did not complete his protection visa application in such a way that no incorrect answers are given.
Having found that grounds existed for cancellation under s.109, the delegate considered whether the visa should be cancelled. In considering this, the delegate had regard to the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC), the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 as well as relevant government policy.
The delegate found that there were no compelling reasons to not cancel the visa that would outweigh the grounds for cancellation. Relevantly, in considering whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, the delegate had regard to an International Treaties Obligations Assessment (ITOA) dated 9 September 2016, but did not place any weight on this consideration.
The ITOA found that the applicant ‘has a real chance of being subject to significant harm should he be returned to Iraq’ and accordingly, is ‘a person in respect of whom Australia has non-refoulement obligations under the CAT and International…

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 1713364 (Refugee)

Details

AGLC: 1713364 (Refugee) [2018] AATA 4976
Case: [2018] AATA 4976
Decision Date: 19 October 2018

CaseChat Overview and Summary

The applicant, a citizen of Iraq, sought judicial review of a decision to cancel his Subclass 866 Protection (Class XA) visa. The Minister's delegate had issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds that the applicant had provided incorrect information in his visa application, specifically that his claimed fear of persecution in Iraq was unsupported, evidenced by his voluntary return to Iraq on multiple occasions. The applicant had been granted the protection visa in 2011 and subsequently travelled to Iraq for two periods totalling approximately 11 months between 2012 and 2014.

The primary legal issue before the court was whether the NOICC issued to the applicant was a valid notice under section 107 of the *Migration Act 1958* (Cth). Section 107(1)(a) requires that a notice given by the Minister must provide "particulars of the possible non-compliance." The applicant contended that the NOICC failed to particularise the alleged incorrect information sufficiently, rendering it invalid.

The court found that the NOICC did not adequately particularise the alleged non-compliance. While it stated that the applicant's voluntary returns to Iraq suggested he did not hold a claimed adverse profile and was not a person of adverse interest to the Iraqi state, it did not explain *why* these returns were considered to render his original claims of persecution unsupported. The court reasoned that a valid section 107 notice is a statutory precondition for the exercise of the power to cancel a visa under section 109. As the NOICC was found to be invalid, the power to cancel the visa did not arise.

Consequently, the court set aside the delegate's decision to cancel the applicant's Subclass 866 Protection visa. The Tribunal substituted a decision not to cancel the visa. The court also noted that it had no jurisdiction with respect to other applicants mentioned in the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 107 states that: (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.EVIDENCE The applicant is [age] years old and a citizen. He first arrived in Australia as the holder of a [temporary] visa [in] March 2011. On 12 April 2011 the applicant lodged an application for a Subclass 866 Protection (Class XA) visa which he was granted on 25 August 2011. Following the grant of his Subclass 866 Protection (Class XA) visa, the applicant travelled to Iraq on two occasions for a total period of 11 months. On the first occasion, the applicant spent approximately nine months in Iraq between [July] 2012 and [May] 2013.[1] He spent a further two months in Iraq between [December] 2013 and [February] 2014.[1] Tribunal file, folio 23. On 18 February 2016 the Department issued a NOICC under s.109 of the Act. The ground for the cancellation was that the applicant had provided incorrect answers in his protection application ‘because [his] fear of persecution if…returned to Iraq is unsupported.’ The particulars of the alleged non-compliance were set out in the NOICC as follows:Your voluntarily [sic] return to Iraq on multiple occasions for extended periods of time suggests you do not hold the claimed adverse profile in Iraq and that you have returned to the country as a citizen without impediment. Your voluntarily [sic] return to Iraq on multiple occasions suggests you are not a person of adverse interest to the Iraqi state. Therefore, based on the information contained in the above, it seems you do not fear persecution, retaliation, and/or have a fear for your life from individuals and/or groups in Iraq as you attested in your protection visa application.Given the evidence explained above, I consider that you have not complied with section 101(b) of the Act when applying for your protection visa because your fear of persecution if you returned to Iraq is unsupported.In addition:-you provided incorrect answers in Part C on your application form 866 indicating you [sic] fear for your life and are persecuted in Iraq.-you declared on part B and part C of Form 866 the following: “The information I have supplied or caused to be supplied on or with this form is complete correct and up to date in every detail.” [2] [Emphasis in Original][2] Tribunal file, folio 23. The applicant was given the opportunity to respond to the NOICC, which he did. In the response to the NOICC, the applicant confirmed that he returned to Iraq on two occasions after the grant of his protection visa but submits that he had ‘compelling reasons’ for doing so. On the first occasion, the applicant says he felt compelled to return to Iraq because his house in Baghdad had been sprayed with automatic weapons fire while his family was inside. He says that he spent a few months in Kurdistan, which is a relatively stable region, before travelling to Baghdad. While in Baghdad ‘he spent most of his time in hiding, fearing for his life and his family’s life.’ On the second occasion he returned to Iraq in order to visit his family. He says that he had been diagnosed with [a medical condition] and his family wished to see him before he died. His mother was also in ill health and the trip provided an opportunity to see her.

Decision

Reasons for decision

As a valid s.107 notice is a precondition to the exercise of the power under s.109 the power to cancel the visa did not arise. It follows that the delegate’s decision to cancel the visa must be set aside.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.Irene O'ConnellDeputy Division Head

Ratio Decidendi

Legal Principle Established

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