1729229 (Refugee)

[2018] AATA 5001

1729229 (Refugee) [2018] AATA 5001 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729229

COUNTRY OF REFERENCE:                  Iraq

MEMBER:Luke Hardy

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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 31 October 2018 at 2:41pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect answers in visa application – imputed political opinion – working with Americans – religion – Sunni – fear of militant religious groups – fear of killing – subsequent repeat visits to Iraq – invalid cancellation notice – reason for incorrect decision not particularised – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 424AA, 438
Migration Regulations 1994, Schedule 2

CASES

Zhao v MIMA [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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she determined that there was non-compliance by the applicant with s.101 of the Act, namely, subsection 101(b) of the Act, in that the applicant provided incorrect answers to various questions on his protection visa application form 866.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the following reasons, I have concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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.

   Background

7. The applicant, a Sunni Muslim national of Iraq, arrived in Australia as an Irregular Maritime Arrival (IMA) [in] November 2011. He was detained and provided a statement of protection claims on 19 February 2012. He lodged a protection visa application form 866 on 1 August 2012. The 19 February 2012 statement of claims evidently formed part of the 1 August 2012 protection visa application.

8. The applicant, who came from Al Basrah, claimed fear of persecution by the (Shi’a Muslim) Mahdi Army due to having worked for a foreign company. He claimed they killed his brother and provided evidence of the killing that satisfied the Minister’s delegate. He claimed that he himself was the intended target and that his brother was killed in an instance of mistaken identity. He claimed he had received an anonymous letter in which he was threatened with death for having worked for the foreign company. He claimed he could not return to Al Basrah and could not relocate anywhere else in the foreseeable future because of the ubiquity of the Mahdi Army and its networks.

9. The applicant was granted a protection visa by a delegate of the Minister on 13 August 2012.

10. The applicant evidently travelled to Iraq on four subsequent occasions.

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

11. In the present case, there is a question as to whether the Notice of Intention to Consider Cancellation (NOICC) issued by the Minister’s delegate on 11 October 2016 complied with s.107.

12. The particulars of the perceived incorrect answers, as set out in the delegate’s NOICC, are:

    Particulars of the possible non-compliance:

    On the material presently before me, I consider there has been non-compliance with the following section of the Migration Act 1958:

    Section 101. Visa applications to be correct

    101.A non-citizen must fill in or complete his or her application form in such a way that:

    (b)        no incorrect answers are given or provided.

    By operation of s 99 of the Act, any information 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.

    [In] November 2011 you arrived in Australia as an Irregular Maritime Arrival.

    On 19 February 2012 you made and signed a statement of claims detailing your reasons for seeking asylum in Australia.

    On 1 August 2012 you lodged an application for a Protection visa on Form 866 —Application fora Protection (Class XA) visa. The statement of claims formed part of this application and provided your answers to questions 43-48 of part C of the Form 866.

    In this document you detail instances of persecution and threats of harm from 'armed civilian groups operating in the Baghdad area.' (Item 11, referring to questions 43 and 46 of part C of form 866). You mention an anonymous written threat ordering you to 'leave your work or we will kill you' because you worked for a company providing [services] to American forces (Item 16, referring to questions 44-45 and 47). You also stated your brother, who resembled you, was murdered [in] October 2011 while driving your car and 'l am afraid that whoever killed my brother will kill me too.' (Items 17 and 20 referring to questions 43-45 and 47).

    At question 46 of part C  of the Form 866, which asks 'Who do you think may harm/mistreat you if you go back?' you answered:

    'any para-military group who had a problem with people who worked with the Americans. Even though I have left the country, I will still be labelled as a traitor by them. You can't shake off that label and risk just by leaving a job. They can identify you and attack you wherever you go in Iraq.' (Item 23)

    In answer to question 48 of part C of Form 866, which asks 'Do you think the authorities of that country can and will protect you if you go back?' you claimed the Iraqi police cannot protect you and '...if I return to Iraq I would face a real chance of being killed...' (Items 18, 22, 25)

    On 13 August 2012, based on this information and meeting all other relevant criteria, the Protection visa (subclass 866) was granted.

    On 20 October 2012, two months after grant of the visa and the submission of your statement

    of claims detailing your fears of being killed if you returned to Iraq, departmental records indicate you departed Australia for Iraq. On your outgoing passenger card you stated you would spend most of your time in Basrah. I note that in your application for the Protection visa you claimed 'Al Basrah is full of extremist groups. There was no guarantee of my safety in the village. Even if we moved to some other part of Iraq, I could not be safe from the people who wanted to target me.' (Item 26 of your statement of claims supporting your application for a Protection visa)

    Departmental records indicate since you were granted the class XA subclass 866 Protection visa, you have travelled offshore on three other occasions.

    Outgoing passenger cards for your departures [in] June 2013, [in] April 2014 and [in] August 2015 all declared the country in which you would spend the majority of your time abroad was Iraq. You also entered information in your incoming passenger cards confirming you had spent most of your time in Iraq. This is supported by Iraqi entry and exit stamps in your Australian Titre de Voyage.

    Over the three-year period following grant of your Protection visa you spent more than half of that time, 19 months, residing in Iraq, the country you claimed you could not return to due to the high possibility of encountering serious harm and persecution:

    This voluntary and repeated travel history indicates you did not have a well-founded fear of persecution or harm in Iraq as claimed in your application for the Protection visa. It indicates you did not hold the claimed adverse profile as stated by you in your Protection visa application at question 46 of part C of the Form 866. This indicates you were not at risk in the way you claimed in your Protection visa application.

    Contrary to information you provided in the Protection visa application process, you have visited and resided in Iraq on a number of occasions since you were granted your Protection visa (subclass 866) apparently without suffering the harm you claimed would ensue if you were to return to Iraq. This indicates you did not hold the claimed adverse profile nor were you of interest to the groups you claimed would seek to harm you.

    Your Protection visa was granted on the basis you satisfied the Minister you engaged Australia's protection obligations under the Refugees Convention. You have consistently claimed if you were to return to Iraq 'I would face a real chance of being killed... I could not be safe from the people who wanted to target me.' (Items 22 and 26)

    This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.

    As the incorrect information provided was material to this determination it appears you may not have engaged Australia's protection obligations.

    I consider you have not complied with section 101(b) of the Act because, in your statement of claims in your application for a Protection visa, you have provided incorrect answers to the following questions in part C of the Form 866 —Application for a Protection (Class XA) visa:

    ·At question 43 of part C of the Form 866, which asks 'Why did you leave that country?' you replied at item 11 of your statement of claims where you detail instances of persecution and threats of harm from 'armed civilian groups operating in the Baghdad area.' You also replied at items 17 and 20 where you stated your brother, who resembled you, was murdered [in] October 2011 while driving your car and 'l am afraid that whoever killed my brother will kill me too.' You also provided further information in answer to question 43 at item 26 of your statement of claims where you claimed 'Al Basrah is full of extremist groups. There was no guarantee of my safety in the village. Even if we moved to some other part of Iraq, I could not be safe from the people who wanted to target me.'

    These answers are incorrect because you first returned to Al Basrah [in] October 2012, two months after grant of the visa. You then travelled to Iraq three more times

    and spent a total of 19 months there without suffering the harm you claimed would ensue if you returned to Iraq. Your repeated voluntary travel to, and extended residence in, Iraq since grant of the Protection visa demonstrates that the claims you made to gain the visa are incorrect.

    ·In answer to question 44 of part C of the Form 866, 'Have you experienced harm in that country?', at item 16 of your statement you mention an anonymous written threat ordering you to 'leave your work or we will kill you'. You also stated your brother, who resembled you, was murdered [in] October 2011 while driving your car and 'l am afraid that whoever killed my brother will kill me too.' (Items 17 and 20 of your statement).

    While I accept at face-value the statement that your brother died, I consider that your claim this caused you to fear for your life is incorrect because you returned to Iraq just two months after the visa was granted and stayed there for three months. You then returned another three times, residing there for a total 19 months over a three year period.

    ·Question 45 of part C of the Form 866 asks 'What do you fear may happen to you if you go back to that country?' You addressed this at items 22 and 26: ‘I would face a real chance of being killed... I could not be safe from the people who wanted to target me.'

    This is incorrect. By your repeated voluntary travel to, and extended residence in, Iraq you have demonstrated that the claims you made and the information you provided in your application for the Protection visa were incorrect. You returned to Iraq two months after grant of the visa and have resided there a total of 19 months apparently safe from the people you claimed wanted to target you.

    ·At question 46 of part C of the Form 866, which asks ‘Who do you think may harm/mistreat you if you go back?' you answered at items 11 and 23: 'armed civilian groups operating in the Baghdad area... any para-military group who had a problem with people who worked with the Americans. Even though I have left the country, I will still be labelled as a traitor by them. You can't shake off that label and risk just by leaving a job. They can identify you and attack you wherever you go in Iraq.'

    This has been proven to be incorrect by your repeated voluntary travel to, and extended residence in, Iraq without being harmed by these groups. This indicates you did not hold the claimed adverse profile nor were you of interest to the groups you claimed would seek to harm you.

    ·In answer to question 47 of part C of the Form 866, 'Why do you think this will happen to you if you go back?' you referred to threats of harm from 'armed civilian groups operating in the Baghdad area.' (Item 11). You claimed an anonymous written threat ordered you to 'leave your work or we will kill you' because you worked for a company providing [services] to American forces (Item 16). You also stated your brother, who resembled you, was murdered [in] October 2011 while driving your car and 'I am afraid that whoever killed my brother will kill me too.' (Items 17 and 20).

    These claims appear to be incorrect as you returned to Iraq just two months after grant of the visa and 12 months after your brother died. Your repeated voluntary travel to, and extended residence in, Iraq without suffering the harm you claimed would ensue if you returned demonstrates that you do not engage Australia's protection obligations nor do you require Australia's protection.

    ·Question 48 of part C of the Form 866 asks 'Do you think the authorities of that country can and will protect you if you go back?' You addressed this at items 22 and 25: ‘I would face a real chance of being killed... The government is helpless. They cannot protect every individual who is at risk. There are too many people being murdered and the Police cannot keep up.' At item 26 of your statement you claim: 'Al Basrah is full of extremist groups. There was no guarantee of my safety in the village.

    Even if we moved to some other part of Iraq, I could not be safe from the people who wanted to target me.'

    These statements have been proven to be incorrect by your repeated voluntary travel to, and extended residence in, Iraq without being harmed by these groups. This indicates you did not hold the adverse profile you claimed to hold, nor were you of interest to the groups you claimed would seek to harm you. It appears the claims you made and the information you provided in your application for the Protection visa were incorrect. By your actions you have demonstrated that you do not engage Australia's protection obligations nor do you require Australia's protection.

    Your Protection visa (subclass 866) is being considered for cancellation under section 109 of the Act.

13. The delegate proceeded to advise the applicant of action he should take.

14. The applicant, in reply, asserted that he had not provided any incorrect information in his protection visa application and therefore had not breached s.101(b) of the Act.

15. I must consider whether the NOICC in this case is sufficiently particularised.

16. Relevant to this, whilst the 19 February 2012 statement of claims is not an application form for the purposes of s.46 of the Act as required by s.101 of the Act, it was, as noted, adopted by the applicant in his subsequent  protection visa application form 866 on 1 August 2012 and therefore appears to fall within the ambit of ss.99 and 1010 of the Act.

17. A cancellation under s.109(1) is predicated on the provision of incorrect information and the s.107 notice must fairly inform the applicant of the incorrect information upon which the cancellation is being considered so the applicant is adequately equipped to provide relevant material in response.[1]

    [1] Zhao v MIMA [2000] FCA 1235

18. Clearly, the delegate inferred in the NOICC that the applicant’s actions in returning to Iraq on various occasions since 2012 were sufficient to put a lie to the claims in his protection visa application about having a negative political profile in Iraq and about having well founded fear of persecution there.

19. Tthe NOICC in this case does identify which information the applicant provided in his protection visa application the delegate considered to be incorrect. However, it does not particularise why the information is deemed to have been incorrect at the time it was given, expect to posit generally that it must have been incorrect because the applicant visited Iraq on four later occasions, some of these having been two and three years after his claims were determined.

20. Whereas the applicant said he feared “armed civilian groups operating in the Baghdad area.” The NOICC does not particularise how this can reasonably be regarded as incorrect information, let alone on light of the applicant returned to the Al Basrah area in Iraq’s south.

21. Also, the NOICC does not make it clear how the mere act of returning to Iraq on various occasions means that the applicant gave incorrect information when he said in his 2012 protection visa application,  “I am afraid that whoever killed my brother will kill me too.”

22. Except to juxtapose the fact with the applicant having later returned to Iraq, the NOICC does not explain what is incorrect about the statement: “The government is helpless. They cannot protect every individual who is at risk. There are too many people being murdered and the Police cannot keep up.”

23. At one point in his protection visa application, the applicant did say, “Al Basrah is full of extremist groups. There was no guarantee of my safety in the village. Even if we moved to some other part of Iraq, I could not be safe from the people who wanted to target me.” The NOICC regards this whole statement as being incorrect simply because the applicant returned to Iraq. I find that pointing out the simple action of returning to and sojourning temporarily in Iraq is not sufficient particularisation as to how and why these statements were incorrect at the time when they were made.

24. Whereas the applicant said in his protection visa application, “I would face a real chance of being killed [in Iraq] ... I could not be safe from the people who wanted to target me,” and whereas the author of the NOICC accepted that the applicant’s brother had died, it is not clearly particularised in the NOICC how or why later re-entering and travelling in Iraq demonstrates that the fear of being killed, as claimed in 2012, was “incorrect information.” It is not particularised in the NOICC why it is “incorrect” to say, or envisage, “I could not be safe from the people who wanted to target me,” simply on the basis of later re-entering a country where such people were claimed to be at large.

1. For these reasons, I find that the notice was not a valid notice for the purposes of s.107. 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.

   Conclusions

2. I have considered the information before it and has found that the notice purportedly issued under s.107 of the Act was not a valid notice. As a valid s.107 notice is a precondition to the exercise of the power under s.109, there was no power to cancel the visa. It follows that the delegate’s decision to cancel the visa must be set aside.

   DECISION

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

   Luke Hardy
   Member

   
   

   ATTACHMENT – 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.

   105Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)      an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c)      information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

   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.