1718259 (Refugee) - [2019] AATA 792

1718259 (Refugee) [2019] AATA 792 (10 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718259 & 1710682
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Alison Murphy
DATE:10 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decisions under review and substitutes decisions not to cancel the applicants’ Subclass 866 (Protection) visas.
Statement made on 10 April 2019 at 11:54am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – religion – Shia Muslim – imputed political opinion – family member of informer against Sunni extremists – incorrect answers on form – multiple visits to Iraq after protection visa granted – incorrect date given of death of relative – best interests of the child – contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 36, 101, 107, 109, 119, 438, 499
Migration Regulations 1994 (Cth), r 2.41
CASES
DMH16 v MIBP [2017] FCA 448
Gido-Christian v MIAC [2007] FMCA 825
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Saleem v Migration Review Tribunal [2004] FCA 234
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
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 applicants’ Subclass 866 (Protection) visas under s.109(1) of the Migration Act 1958 (the Act).
The applicants are a father and son from Basrah, Iraq and are aged [age] and [age] respectively. They arrived in Australia by boat in November 2010 and each made their own claims for protection. They were separately assessed to be refugees and granted protection visas on 7 July 2011.
In 2017, a delegate of the Minister decided to cancel their visas. In each case the delegate cancelled the visas on the basis that the applicants breached s.101 of the Act by providing incorrect answers in their protection visa applications about their adverse profile and fear of persecution in Iraq.
The cancellation cases were separately considered and determined by the delegate. At the request of the applicant’s representative, and in light of the similar facts and serious health concerns in respect of the applicant father, the Tribunal heard and determined both matters together.
The applicants appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the wife of the second named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicants were represented in…

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 1718259 (Refugee)

Details

AGLC: 1718259 (Refugee) [2019] AATA 792
Case: [2019] AATA 792
Decision Date: 10 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visas of applicants from Iraq. The dispute arose from allegations that the visas were granted based on incorrect information provided by the applicants, specifically concerning the timing of a relative's death and the circumstances surrounding it. The applicants, Shia Muslims from Basrah, had fled Iraq due to fears of serious harm from Sunni extremists.

The Tribunal was required to determine whether the decision to grant the protection visas was based, wholly or partly, on incorrect information or a bogus document. It also needed to consider the circumstances in which any non-compliance occurred and the present circumstances of the visa holders, including their contributions to the Australian community and the best interests of any children.

The Tribunal found that while the applicants had provided incorrect information regarding the timing of a relative's death, they had genuinely feared returning to Iraq at the time of their applications. The Tribunal accepted that the applicants were Shia Muslims from Basrah, a city reportedly under constant attack from Sunni insurgents, and that the country information available at the time supported a genuine fear of harm. Despite the incorrect information, the Tribunal considered that the applicants would likely still have been recognised as refugees even if the correct timing of the event had been known. Furthermore, the Tribunal noted the significant health issues of one applicant, including PTSD and major depression stemming from his experiences in Iraq and separation from his family.

Consequently, the Tribunal set aside the decision to cancel the applicants' Subclass 866 (Protection) visas and substituted a decision not to cancel them.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Alison MurphyMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

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: I accept that the decision to grant the applicants’ protection visas was based at least in part on the circumstances of [Mr A]’s death. I accept that the applicants’ gave correct information about the circumstances of [Mr A]’s death in their protection visa applications, save as to the timing of that event. It is difficult to say now to what extent, if any, the decision to grant the visas was based on the timing of [Mr A]’s death. It may be that had the delegate known that incident took place in 2006 rather than 2010, the delegate would have formed the view that the passing of time since that event meant that the applicants did not hold a profile such as would create a real chance of serious harm or a real risk or significant harm if they were returned to Iraq. It may also be that the delegate would not ultimately have found the timing of that event to be significant, given the applicants immediately fled Basrah for [Country 1] where they remained for three years before travelling to Australia. In any event, the applicants were Shia Muslims from Basrah at a time when that city was widely reported to be under constant attack from Sunni insurgents. In the decision to grant the protection visas, the delegate cites country information from the UK Home Office, the UNHCR and the department’s own country research. The information cited reports that a person was being assassinated in Basrah every hour in 2006, that insurgents were increasingly targeting Iraqis who had been critical of terrorism or who were supportive of the Iraqi authorities or coalition forces, that the Iraqi police were infiltrated by armed groups and that vehicle bombs were widely used by insurgents, who targeted locations where Shias congregated[8]. [8] See information cited in the delegate’s decisions dated 9 &10 May 2011 Notwithstanding my findings that the applicant’s gave incorrect information in their protection visa applications, I accept they genuinely feared returning to Iraq at the time they made their applications for protection. I consider that even if the correct information had been known to the delegate when the decision to grant the visas was made in 2011, the applicants would still likely have been recognised as refugees. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicants in their visa applications, their accompanying statutory declarations and at interviews conducted in respect of their protection claims. The present circumstances of the visa holder: Medical documents before the Tribunal indicate the applicant father suffers significant health issues. He has been diagnosed with Post Traumatic Stress Disorder and major depression as a result of his traumatic experiences in Iraq, the death of his son [Mr A] and the long period from which he has been separated from his wife and younger children. He also suffers from a range of physical health issues including a [specific condition] for which he is awaiting surgery.