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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 Covenant on Civil and Political Rights (ICCPR).’

6. On 23 June 2017, the applicant applied to the Tribunal for review of the decision to cancel his visa. He was represented in relation to the review by his registered migration agent, who provided submissions to the Tribunal. The applicant also provided to the Tribunal a copy of the NOICC and the decision record of the delegate cancelling his visa.

7. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is in respect of the first named applicant, [(the applicant)]. The other 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 other applicants.

8. The issue in the present case is whether the mandatory statutory notice sent to the applicant is valid. For the following reasons, the Tribunal has concluded that the notice is not valid and therefore the visa cannot be cancelled.  

   RELEVANT LAW

9. Subsection 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.

10. 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.

11. 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

12. 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.

13. 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.

14. 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.

15. 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.  

16. On 23 June 2017, the delegate found that the applicant had not complied with s.101 of the Act on the basis that he had ‘provided incorrect information when applying for his protection visa.’ The delegate characterised the incorrect information in the following way:

    The incorrect information is in regard to [the applicant’s] claimed fear of being harmed should he return to Iraq due to holding an imputed adverse political profile. In particular, in his declaration in Part B, to questions 41, 42, 43, 44, 45, and 46 in part C of Form 866, and to answers provided in his Statement of Claims statutory declaration dated 11 April 2013, in which he claimed he held an imputed adverse political profile in Iraq due to his political opinions. [Emphasis in original]

17. The applicant’s responses to questions 41, 42, 43, 44, 45 and 46 were as follows:

    41. I am seeking protection in Australia so that I do not have to go back to (give name of                 country or countries): IRAQ

    42. Why did you leave that country? PLEASE SEE ATTACHED

    43. What do you fear may happen to you if you go back to that country? REFER TO   ATTACHED STATEMENT

    44. Who do you think may harm/mistreat you if you go back? REFER TO ATTACHED STATEMENT

    45. Why do you think this will happen if you go back? REFER TO ATTACHED STATEMENT

    46. Do you think the authorities of that country can and will protect you if you go back? If not, Why      not? REFER TO ATTACHED STATEMENT

18. The relevant attached statement is the applicant’s Statement of Claims dated 11 April 2013 which sets out the following:

    7.This political discrimination made me speak frankly about the wrong ideologies the authorities and political parties practiced. My views were welcomed by numerous members of [a government agency] and had made a genuine influence that did not please the officials   in charge. I started receiving direct and indirect threats to stop what they called "encouraging people against Iraqi government”.

    …

    9.This had been identified by [a senior official] when I discovered a commercial deal to import expired-date [products] by one of the [senior official]'s men "[Mr A]" who was [in a certain role] for [a] company. When I reported the case to [senior official]'s advisor, he threatened me indirectly saying that "you know [Mr A] is a senior member of Sadr's party and it is very easy for him to eliminate you.

    …

    11.  …I became subject to various threats and harm. I began receiving threatening phone       calls telling me no matter how I protect myself, my family and I would be subject to murder.

    …

    13.  Three months before my arrival in Australia, a bomb exploded right in front of house. I      assume it was timed to explode exactly at the time I leave home. However, I was delayed       in few minutes saved my life. After this incident, numerous threatening phone calls were        made from various members of Mahdi army and other radicals.

    …

    14.  I found the [invitation] to visit Australia the last hope to save my life and to escape the persecution I was subjected to in Iraq because of my political views and for being a technocrat where radicals perceive me against their Islamic rules and methods. / have no access to access to a third country and the authorities in Iraq have failed in protecting me.

    Did the notice comply with the requirements in s.107?

19. As set out above, s.107(1)(a) requires the notice to give particulars of the possible non-compliance. The Federal Magistrates Court in SZEEM v Minister for Immigration [2005] FMCA 27 stated at [38], ‘the requirement of “particulars” must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation’.

20. The Full Court of the Federal Court, in the case of Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, dealt with s.119 of the Act rather than s.107 of the Act. However in the case of Minister for Immigration and Citizenship v Brar and Another [2012] FCAFC 30, the Full Court of the Federal Court noted that s.119 is in different terms from s.107 but nevertheless indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’:

    Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.

    The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.

21. In the view of the Tribunal the NOICC does not adequately particularise the incorrect information leading to the cancellation of the visa. It merely references particular answers to questions which in turn reference the applicant’s statement of claims.

22. Is the incorrect information the entirety of the statement of claims or just certain sections of it such as the applicant’s stated profession? Or is it that the applicant was not involved in an expose of a commercial deal to import out of date [products]? Is it that there was no bomb explosion outside of his home? Or is it that the applicant did not receive threats?

23. Without adequate particulars the applicant is unable to respond to the case against him. The applicant’s representative submits that ‘[i]t is not enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular section.’[3]

    [3] Applicant’s submissions dated 16 August 2018 at [12] quoting Zhong v Minister for Immigration and Citizenship [2008] FCA 507 at [80].

24. The delegate expresses a conclusion that ‘it seems’ that the applicant does not have an adverse profile and ‘does not fear persecution, retaliation and or have a fear for [his] life’ nor ‘a fear of [his] life from individuals and/or groups’ in Iraq.

25. The conclusion is not linked to any particularised incorrect information in the protection visa application.  Rather the conclusion is reached on the basis that the applicant made return trips to Iraq following the grant of his protection visa. 

26. The underlying broad assumption appears to be that the applicant did not have an adverse profile or fear persecution evidenced by his two return trips to Iraq and was therefore not entitled to a protection visa.  This conclusion itself is somewhat at odds with the ITOA assessment but in any event is not grounded in particularised incorrect information in the protection visa application.

27. The Tribunal finds that the NOICC does not particularise the incorrect information. As such the Tribunal finds that the notice was not a valid notice for the purposes of s.107 as it does not satisfy s.107(1).

28. 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

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

30. The Tribunal has no jurisdiction with respect to the other applicants.

    Irene O'Connell
    Deputy Division Head