1731415 (Refugee) - [2019] AATA 5962

1731415 (Refugee) [2019] AATA 5962 (26 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731415
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Jane Marquard
DATE:26 June 2019
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 26 June 2019 at 9:14am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – validity of s 107 notice – incorrect answers on protection visa application – ethnicity – stateless Bidoon or Iraqi citizen – Iraqi identification cards – religion – minority Sunni Muslim – imputed political opinion – worked at foreign military base, suspected of spying – voluntary travel to Iraq on four occasions for lengthy periods – exercise of discretion – current conditions in Iraq – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Brar v MIAC [2011] FMCA 435
Gido-Christian v Minister for Immigration [2007] FMCA 825
Lie v Minister for Immigration and Border Protection [2018] FCCA 843
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Saleem v MRT [2004] FCA 234
SZEEM v MIMIA [2005] FMCA 145
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 (the Department) to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant arrived in Australia from Iraq by boat on 16 November 2011. He claimed to be a stateless, Sunni Bidoon who had been living in Iraq and was accused of being an [foreign] spy as he worked on a [foreign military] base. He was granted a protection visa [in] August 2012.
The delegate of the Department cancelled the protection visa on the basis that the applicant gave or provided incorrect answers to eight questions in his application for the visa, in contravention of s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant provided a response to the Department in regard to the intention to cancel and also appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. He also provided written submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be…

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 1731415 (Refugee)

Details

AGLC: 1731415 (Refugee) [2019] AATA 5962
Case: [2019] AATA 5962
Decision Date: 26 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant. The dispute arose from allegations that the applicant had failed to comply with provisions of the Migration Act 1958 (Cth) by providing incorrect information in his visa application.

The Tribunal was required to determine the validity of the notice issued under section 107 of the Act, which is a prerequisite for the exercise of the cancellation power under section 109. Additionally, the Tribunal had to consider whether the decision to grant the visa was based, wholly or partly, on incorrect information or a bogus document, and to assess the circumstances in which any non-compliance occurred. Finally, the Tribunal was to consider the present circumstances of the visa holder in exercising its discretion.

The Tribunal found that while the applicant had provided incorrect information regarding his statelessness, the decision to grant the visa appeared to be predominantly based on his well-founded fear of persecution due to his work at a foreign military base. Significant weight was given to the fact that earlier decision-makers had granted the visa despite having similar information before them, and to the applicant's genuine subjective fear of return to Iraq on grounds other than statelessness. The Tribunal also considered the applicant's substantial connections to Australia, his employment, and the significant implications for his family if the visa were cancelled.

The Tribunal concluded that the decision to cancel the applicant's visa should be set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. Extracts of the Act relevant to this case are attached to this decision.Validity of s.107 notice 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. The Tribunal is satisfied that the delegate reached the necessary state of mind to issue the notice, as it was stated specifically that the delegate formed the view that there had been non-compliance based on the incorrect answers set out in detail in the notice. At the Tribunal hearing, the applicant raised the issue of whether the notice was valid. This was because the applicant was initially assessed under the Protection Obligations Determination (POD) process. On 26 January 2012 he attended a POD interview. On 9 August 2012 the Minister withdrew the bar which prevented him from lodging his protection visa application and he lodged a protection visa application using Form 866. In his protection visa application, in his answers to Questions 43 to 67, he stated ‘please refer to my claim that was assessed favourably’. The claim which he referred to as being assessed favourably was the statutory declaration in support of his POD. The applicant submitted therefore that these answers, taken from this statutory claim in a different process, were not incorporated by Form 866 as they were not raised in an application form made for the purposes of s.46 and therefore the notice of intention was invalid. The obligations to provide correct information and the cancellation power that can be exercised for non-compliance with those obligations, apply to all visas where the visa application was made on or after 1 September 1994 (s.115(1) of the Act). Section 101 provides that non-citizens must fill in or complete application forms in such a way that all questions are answered and no incorrect answers are given or provided. For the purposes of these provisions, s.99 provides that information given or provided on behalf of a non-citizen to the Department or Tribunal in relation to the application is taken to be an answer in the application form. The question is whether the answers in the POD statutory declaration were given or provided on behalf of the applicant to the Department in relation to the application, as they were given at an earlier time.

Decision

Reasons for decision

Not applicable.Whether the decision to grant the visa was based, wholly or partly on incorrect information or a bogus document The representative submitted that the delegate of the Department, in refusing the applicant’s application, referred to the fact that statelessness is not itself sufficient to attract protection. The Independent Protection Assessment Office (IPAO) made its decision that the applicant had a well-founded fear on the basis of his work at the [foreign military] base. The Tribunal has considered the decision by the IPAO carefully, including the country information cited. The decision to grant the visa was based partly on incorrect information in that the applicant was not stateless as claimed. However the decision appeared to be based predominantly on the fact that the applicant had been targeted for working on a military base and was threatened for this reason. The Tribunal gives significant weight in favour or not cancelling the visa, to the fact that it is possible that the visa would have been granted even if the correct information had been given and the applicant had stated that he was an Iraqi citizen.The circumstances in which the non-compliance occurred The circumstances were the application of the visa holder, in which he gave incorrect answers about being stateless. The Tribunal notes however that the applicant did provide the Department and IPAO with the CSID cards at the time of decision, and it was therefore open to them to find that the applicant was an Iraqi citizen. The representative submitted that he showed the CSID cards to the Department, saying they were genuine. The Tribunal gives significant weight to the fact that earlier decision makers made a decision to grant the protection visa even though they had similar information before them. In the interests of consistency, the Tribunal gives this factor weight in favour of not cancelling the visa. The Tribunal also gives weight to the fact that the applicant provided incorrect information in the context of holding a genuine subjective fear of return to Iraq on grounds other than statelessness.The present circumstances of the visa holder The applicant has lived in Australia since 2011, and is therefore substantially connected to Australia after living in the country for eight years. The applicant resides in a rural area, [town] and is working there as [an occupation] for [employer]. The visa holder’s wife and [number] children live in Iraq. He has travelled to visit them four times, indicating they are ‘everything to him’ and he feels very concerned about them. He said that he is in a ‘disastrous situation’ as his family is dispersed. Two of his children are in [Country 3] and he has no knowledge of what they are doing there. The rest of his family are in Iraq with his mother. He feels helpless and does not know what to do. He said that he is pleading with the Tribunal to ‘help him out’. He said that he calls Australia the ‘merciful mother’. His wife and children have made a partner visa application for Australia. If the visa is cancelled, this application would be refused with significant implications for the entire family.

Ratio Decidendi

Legal Principle Established

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