1716579 (Refugee)
[2018] AATA 2742
•26 June 2018
1716579 (Refugee) [2018] AATA 2742 (26 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1716579
COUNTRY OF REFERENCE: Stateless
MEMBER:Sean Baker
DATE:26 June 2018
PLACE OF DECISION: Melbourne
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 26 June 2018 at 12:41pm
CATCHWORDS
Refugee – Cancellation – Protection visa – Stateless – Providing incorrect answers in visa application – Faili Kurd – Citizenship – Contact with Iranian authorities in Australia – Allegation of seeking an Iranian passport – Mental health issues – Decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97-101, 107-109, 116
Migration Regulations 1994
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Saleem v MRT [2004] FCA 234
Sheptitskaya v MIBP [2015] FCCA 159
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Zhao v MIMA [2000] FCA 1235Any 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
[The applicant] is [an age] year old Faili Kurd who claims to be stateless. Until being recognised for protection in Australia he was habitually resident in Iran.
The Department decided after considering the information available to them, to cancel [the applicant’s] protection visa on the basis that he was not stateless but a citizen of Iran and had therefore provided incorrect answers in his application for the protection visa. 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 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.
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) in the following respects: that the applicant answered questions in the forms provided to make his application for protection, and in his statutory declaration accompanying that, to the effect that he was a stateless Faili Kurd, habitually resident in Iran, as were his siblings and parents. However, in the notice the Department relied on the applicant visiting a police station in [State 1] to report his passport stolen and was given a complaint acknowledgement form, he returned to the police station and requested another form as he had lost the original, as well as information that the Iranian Embassy in Australia required an original copy of an Australian police report (sealed by the Australian Police) to replace a lost or stolen passport, to conclude that the applicant held an Iranian passport and was therefore an Iranian citizen and not stateless as he had claimed.
The applicant provided a response to the notice, which the department decision maker considered before making the decision that there was non-compliance by the visa holder in the way described in the s.107 notice.
The evidence relied on by the Department is information on the [State 1] police database about two interactions the applicant had with [State 1] police. The full text of these interactions can be found at Df. 45. This states that on having checked the [State 1] police database, [in] January 2013 the applicant reported his passport lost, stating that in sometime in a month-long period he had attended an unknown nightclub somewhere in [City 1] and had had his passport on him for identification purposes, he could not provide any other details in relation to this and ‘Report is for the purpose of obtaining a new Iranian passport.’ [In] April 2013 it was reported that he attended the front counter in relation to losing his initial report in regards to his lost passport, stated to police he had lost an Iranian passport, was strongly insisting that he receives another report for his lost passport however he could not clearly tell what he had lost, he said a piece of paper, was shown a complaint acknowledgement form and said he had lost one of these. A new one was filled out and the applicant became persistent to have an officer sign or stamp the form. This was refused as there was no capacity to do so and he could not clearly articulate why he wanted the form signed. He said if it is not signed he might have to come back to get another form. The police told the applicant that whoever he gives the form to can contact the police. The applicant could not tell or articulate in any way to police who the form was going to be given to. It is further noted in the email chain that there were no details regarding the passport number provided in either report. (Df. 46).
The Department decision indicated that they considered the above to be significant given that the Iranian Embassy in Australia requires an original copy of an Australian police report (sealed by the Australian Police) to replace a lost or stolen passport to conclude that the applicant held an Iranian passport and was therefore an Iranian citizen and not stateless as he had claimed.
At hearing I discussed the above with the applicant and asked him about his interaction at the [City 1] police station in January 2013. The applicant said that he had no memory of this; he said that he had been using drugs at that time and that he could not recall anything about his interaction with police, his conversations with them or what he might have been saying or asking them for. He said he was also unable to recall anything about the second interaction. I asked if at this time he had gone to nightclubs in [City 1] and he said he had. I asked what form of ID he had used and he said he did not know or could not remember. He said he was not sure but he was pretty sure he didn’t have any Iranian identity documents but might have had some Australian identity documents. I asked him what kind of Australian identification he had had at that time and he said he did not know. I asked him about his mental health state at that time. He said that he had thought he was acting normally but now that he had had the assistance of his psychologist and the team at the hospital he realised he had not been in a normal state at that time.
I then asked the applicant about his English language ability in 2013. He said that his English was still not good yet. I asked him had he not spoken English at the [business] he was working at in [City 1] and he said no, mostly the people there were from non English speaking backgrounds and their English was not good like him.
The applicant confirmed that he had been engaged to a woman in Iran, [named], at this time and had tried to sponsor her to Australia but this had failed because his visa had been cancelled and after four years the engagement was now off. The applicant became visibly distressed at this.
I spoke to the applicant’s brother. He explained that he was [deleted] than the applicant, and that they had two sisters. He said that one of his sisters was also in Australia, she had come recently. He said he had arrived in Australia about a month after his brother. He explained the family history – that his parents had had to move between Iraq and Iran, and that they had not ever been registered in Iran as refugees, nor been granted citizenship. They did not have any documentation and he and his brother had explained this to the Department when they arrived in Australia. He explained that he knew little of what had happened to his brother in [City 1], but had found out that his brother was using drugs and asked him to come to [another city]. Now he was able to support the applicant. He said he had not heard from his brother of him going to the police station, his brother had not spoken to him about this at the time or afterwards. He said that his brother sometimes forgot things and he was worried about his brother. He said his brother was sometimes living at his place and he would come in and find his brother talking to the wall. He explained that as well as the stress of his brother, his wife had just [given birth] so he had been in and out of the hospital. He said he was also sick with [medical conditions].
I spoke with the applicant’s clinical psychologist who as well as providing a detailed report also attended the hearing. She explained that it was her clinical view that at the time he had attended the police station the applicant was developing schizophrenia, he had said that he had been hearing voices commanding him to do things from when he was detained on arrival in Australia. She said that generally these symptoms would get worse and present more. She believes that he was in a state of developing schizophrenia, and his drug abuse triggered the illness. She said it would be likely that he was under the influence of drugs as well as suffering symptoms of schizophrenia when he attended the police station. She noted that delusional thinking was a significant symptom of Schizophrenia that could have meant the applicant believed himself to be an Iranian citizen or to wish to return. She indicated that his engagement at the time to someone in Iran might also have been a factor. She noted also that the sessions she had had with him had been conducted in Farsi, he had almost no English. She noted that the prognosis was mixed – it is a serious and debilitating illness with significant positive and negative symptoms, but if he had access to long-term case management the prognosis was more hopeful, he could perhaps be linked into the NDIS for case management and support to find employment. She noted that there are not such services in Iran for the majority of people, let alone people from his background, and that he had a chance of recovery here but not, in her opinion, in Iran.
I also took evidence from the applicant’s family friend, [named]. He said that he had known the family since 2011, and they would visit him or he them 2-3 times a week, sometimes more, as they did not have any other supports. He described the situation which had led to the applicant being hospitalised and explained that he had had to take the applicant to the hospital after the CAT team were not available and the police would not assist. He said that as far as he was aware the family are stateless – he said he was Kurdish from Iraq and so was familiar with the situation of Faili Kurds. He said that the applicant seemed to him to be fairly depressed and unhappy, and his family members were saying the same thing. He said he had seen him several times talking to himself, he thought he needed to work.
The applicant’s treating clinical psychologist provided a report dated [in] June 2018. This report is thorough, detailed and I give it significant weight and have used it to assess other information provided including the applicant and his witness’s statements at the hearing. The report notes that in 2016 he was diagnosed with Schizophrenia but that in the writer’s professional opinion she believes he was suffering a psychotic illness at the times he attended the police station in 2013. The report also indicates that the prognosis for the applicant is reasonable in Australia but would be very poor in Iran.
In undertaking consideration of the decision it is not open to me to decide whether there was non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] However, I am not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s.107 notification.[2]
[1] Saleem v MRT [2004] FCA 234 [59] - [63].
[2] Sheptitskaya v MIBP [2015] FCCA 159 at [10]-[16].
When deciding whether there has been non-compliance as described in the s.107 notice, the existence of facts grounds the exercise of the statutory power to cancel and therefore the onus of establishing those facts is on the Minister or the Tribunal. [3]
[3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
In Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[4]
[4] [2000] FCA 1235 at [25] and [32].
While Zhao involved consideration of the s.116 power, this state of satisfaction I consider is applicable in s.109 cases such as this.
In this particular case I also believe that Dixon J’s comments in Briginshaw v Briginshaw[5] are relevant. In that case Dixon J said:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[6]
[5] (1938) 60 CLR 336.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
I have carefully considered the evidence obtained by the Department and other information available to me to establish the facts. On one view, the applicant’s actions in going to the police, and his statements, as reported, are indicative of him seeking the evidence he needs to go to the Iranian Embassy and obtain an Iranian passport, either because his was lost as he appeared to be claiming at the police station, or because he had disposed of it or lost it earlier. The information from the Iranian Embassy website tends to support the view that the applicant was seeking to replace a passport because of his insistence that the notice he obtained from the police be signed or stamped, a requirement of the Iranian Embassy in Australia to replace a passport. As reasoned in the delegate’s decision, this then appears to indicate that the applicant had or was entitled to an Iranian passport, which would in turn indicate that he is a citizen of Iran.
There are several difficulties with the evidence and reasoning. Firstly, the information from the [State 1] Police database contains little detail and what detail there is, appears to me to be open to several interpretations. The information does not appear to be a direct quotation of what the applicant said on either occasion. This means it is hard to distinguish what he may have said from what the police officer or officers summarised of the conversation and any suppositions they had to make to make sense of the conversation. Indeed, the notes of the second interaction comment several times that the applicant could not clearly convey information. I have considered the information from the Iranian Embassy, and whilst it appears that this offers some basis to conclude that the applicant was seeking the complaint form in order to acquire a replacement Iranian passport, this is not beyond doubt given the below factors, and given my concerns with the police notes, the information from the Embassy website in itself does not ground or establish the facts on which a cancellation here could succeed.
Added to this, I found the evidence I was provided with that the applicant does not have a good command of English to be compelling – whilst it is clearly difficult to detect someone’s ability without testing, he did not demonstrate awareness of English at the hearing, he stated that he had poor English, that he had not learnt on the job in [City 1] because other workers were from a variety of linguistic backgrounds, and [Dr A] stated that sessions with the applicant had been conducted in Farsi rather than English. I find on this evidence that the applicant’s command of English is poor, and I find that this further complicates the notes from [State 1] police – there is no evidence that the applicant spoke through an interpreter, and if he was speaking in poor English there is a greater capacity for him to have been misunderstood or for the police to supply their inferences about what he wanted or said.
I also accept that the applicant was engaging in drug use at this time to deal with the demanding nature of his work and was likely to have been drug affected at the time he made the initial complaint and follow up to the police. I base this on his evidence on this but also that of his brother. [Dr A] gave evidence on the applicant’s drug use as well. I find that this would have further led to difficulties in the applicant communicating and being understood at the police station.
But of most significance is his mental illness. The applicant said that he realises now that he was not in a rational state when he went to the police station. [Dr A] in her report states that his pressure at his workplace and abuse of substances triggered a psychotic illness at this time, and that she believes “…he was at the prodromal stage of a psychotic illness or was experiencing his first episode of psychosis when he attended [State 1] police station.” (Tf. 160). At hearing she was able to confirm this and explain in more detail his possible or potential mental state at that time, and she explained that it was consistent with his diagnosis that he may have believed he was an Iranian citizen or was seeking a way to return to Iran, and noted that his engagement may also have been playing on his mind. I find that the applicant’s mental state at the time, given he has now been diagnosed with Schizophrenia, was very likely to have been poor, disordered and possibly delusional, given the statements made by his treating clinical psychologist at hearing and in her report.
Given the above factors, I have very real doubts with the chain of reasoning leading to a conclusion that the applicant is an Iranian citizen and therefore not stateless as he claims. I find I cannot reach the state of satisfaction explained in Zhao in this case. As I have found above, the applicant entered the police station on both occasions with little English, most likely drug affected, and, according to his treating psychologist, whose expert evidence on this I accept, suffering his first episode of psychosis. Further, as above, I found the information from the [State 1] database to have significant deficiencies. When I consider all of this information, I do not accept that the notes from the [State 1] police database allow me to reach a state of satisfaction sufficient to ground the cancellation. Dixon J’s comments in Briginshaw, are apposite, as I find that the chain of reasoning here relies on the inexact, on indirect inferences, and further that the gravity of the consequences here, taken with the above concerns all militate against there being a reasonable satisfaction here that the applicant is an Iranian citizen on the basis of the information before me. I find that the notes from the [State 1] police database do not reasonably establish what they are said to – they do not, I find, establish that the applicant was seeking a complaint form for a lost Iranian passport, nor that he was seeking a complaint form to replace his Iranian passport – given his poor English, his likely drug affected state, and most significantly his mental state at that time. I find that it has not been established that he admitted or can be taken to have admitted or claimed to have an Iranian passport, nor can it be established that he had an Iranian passport or was seeking to obtain one. It follows that I find it cannot be established that on this basis he is an Iranian citizen and not stateless as claimed. Therefore, I find I cannot reach a state of reasonable satisfaction that the applicant gave or provided incorrect answers in the manner prohibited by s.101(b) in his protection application when he answered questions to the effect that he was a stateless Faili Kurd.
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.
I would hope that the applicant would be assisted to find the care he needs of which his treating psychologist spoke. I would ask that the Department facilitate in any way it can the applicant being linked in to services and care for his mental illness.
Conclusions
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Sean Baker
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.
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.
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