1800306 (Refugee)

[2019] AATA 852

1800306 (Refugee) [2019] AATA 852 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800306

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:7 January 2019

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 07 January 2019 at 11:01am

CATCHWORDS

REFUGEE – protection visa – cancellation – Pakistan – incorrect information – religion –Shia – race – Hazara – religious ideology – imputed political opinion – official capacity of applicant’s father – targeted for harm – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5, 97-105, 107, 109, 116

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
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 applicant’s visa on the basis that they alleged that the applicant provided incorrect answers with his Protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. Having regard to the matters in this case the Tribunal considered a hearing was not necessary because it was able to determine on the papers that the visa should not be cancelled. 

4. 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

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.

7. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 8 August 2017 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with sections 101(b) (visa applications to be correct) of the Act.  He was advised to respond in writing.  The applicant provided a written response to the Department in the form of a statutory declaration dated 31 August 2017 and supporting documents.  

8. 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?

9. 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 (visa applications to be correct) as follows.

   Section 101(b) - visa applications to be correct

10. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his Protection visa application, lodged on 24 July 2012 and a written statement of claims dated 15July 2012 that accompanied the application, as set out in the notice.

11. The notice refers to the fact that the applicant had declared that he feared persecution on return to Pakistan from extremists as a Hazara Shia and the son of a wealthy [official] in Quetta.  The notice refers to statements the applicant made in his written statement in response to specific questions in the visa application form, summarised as follows.

    ·At question 42 about why the applicant is seeking protection in Australia, the applicant replied so he does not have to return to Afghanistan.  However because he had claimed protection from Pakistan in his statement of claims and the decision records of the Department and former Refugee Review Tribunal refers to Pakistan, the delegate considered the answer of ‘Afghanistan’ was mistakenly made by the applicant’s migration agent and that Pakistan is the relevant reference country.

    ·At question 43 which asks why he left that country the applicant refers to the statement in which he declared that his father was a wealthy and prominent person in Quetta, and that he was targeted by extremist terrorists because of his political activity, religious ideology (Shia) and his wealth. The applicant claimed that because he inherited his mother’s Hazara appearance, he was at risk from non Hazaras in Quetta.  He claimed that his brother had been murdered and his father told him to flee.  The applicant stated: ‘I cannot return to Pakistan because I fear I will be harmed by extremists because I am a young Hazara Shia.  I also fear harm because of my wealth and imputed political opinion’.

    ·In answer to question 44– about whether the applicant has experienced harm in that country - the applicant refers to his statement in which he states that his father received threats and given his brother’s murder and attacks on his father, he does not doubt something similar could happen to him.

    ·In answer to question 45 – about what he fears will happen to him if he goes back – the applicant refers to his statement.  In that he states that he fears being kidnapped by extremist groups, or his political rivals or some individuals who want to extort money from his father.  He refers to stories of this happening to children of wealthy families and states that this is even more likely now that he has been in Australia and assumed to be wealthier because he has travelled.

    ·In answer to question 46 – as to who he thinks may harm/mistreat him if he goes back – the applicant refers to his statement in which he states that he fears kidnapping from extremist groups or his father’s political rivals, or someone who wants to extort money from his father. 

    ·In answer to question 47 – regarding why he thinks this will happen if he goes back – the applicant refers to his statement in which he states that it would be known that he had travelled to Australia it would be assumed he is wealthy and therefore he would be targeted for kidnapping.  Again he referred to stories of this happening to children of wealthy families.

    ·In answer to question 48 – as to whether the applicant thinks the authorities can and will protect him if he goes back – the applicant refers to his statement.  In it he states that the Pakistani police will not help his family; that his father has his own bodyguards, however this did not stop attacks on his life; anti-Shia extremists and extortionists are smarter and more powerful than bodyguards; the threats on his father’s life were reported to police however there was no investigation; and the police are very corrupt, and cannot protect him.

12. The applicant’s protection visa was granted on 31 January 2013 on the basis of his claims in his protection visa application and written statement that he was a Hazara Shia and the son of a wealthy and prominent [official] in Quetta and feared persecution in Pakistan on this basis.

13. The notice sets out the particulars of the alleged non-compliance as follows:

    [In] December 2014 you arrived at Melbourne Airport on a flight from [City 1], Afghanistan via [another country].  A search of your baggage and mobile phone was conducted by Customs officers and there was evidence that you had returned to Pakistan – your claimed country of persecution.  Customs located the following items of interest:

    ·A newly tailored suit with garment bag noting the tailor’s address as [near] Quetta (Pakistan)

    ·Currency – [number] Pakistani Rupees

    ·A mobile phone which indicated through its GPS history that you had been in Pakistan within the previous [number] days.

    ·Your travel itinerary showing Melbourne to [City 2, Afghanistan] flight booking

    ·Travel document with Afghan visa

14. As also set out in the notice, following the customs search the applicant was interviewed by an immigration inspector.  He denied visiting Pakistan and said he had stayed in Afghanistan for three months, visiting friends including [Person A] who he allegedly communicated with via [social media].  However after accessing the applicant’s [social media] history the inspector found no evidence of contact with [Person A] yet there was evidence of regular contact with [number] [social media] users who had ‘Quetta, Pakistan’ as their residential location on their accounts.  The applicant was tagged in a number of photographs with the group and comments linked to the photographs indicated they had been taken in Quetta.  In response the applicant said he does not know where his messages to [Person A] went, and speculated he may have deleted his account.  He also acknowledged the photographs of himself with his friends, but said they were all in [City 2, Afghanistan] together, not Quetta.  

15. The delegate was not persuaded by the applicant’s explanations as to why he was found to have these items of interest indicating he may have visited Pakistan on return to Australia.  As well, he found it implausible that the applicant would spend three months in [City 2, Afghanistan] as a Hazara Shia (which is predominantly Pashtun), and more broadly his account of his time spent in Afghanistan.  Taking into account these considerations, and given the close proximity of [City 2, Afghanistan] to Quetta, the delegate formed the view that the applicant had in fact returned to Quetta (Pakistan) from Afghanistan during the period in question, which was his country of claimed persecution.  He therefore concluded that the applicant provided incorrect answers to a number of questions in his protection visa application as set out earlier, particularly given he remained in Pakistan for three months without any apparent harm.

16. In response to the notice which sets out this information, the applicant provided a statutory declaration dated 31 August 2017 in which he argued that there has not been non-compliance, reiterating that he visited [City 2], Afghanistan from [September] 2014 to [December] 2014 as indicated in his valid visa in his travel document.  He also states, in summary that:

    ·In Afghanistan he stayed at [name deleted] property and the landlord [is] a relative of his friend [Person A].

    ·Although the area is predominantly Pashtun there are also a community of Shia Hazaras there.

    ·He visited [City 1, Afghanistan] [in] December 2014 and booked his transport through [a] company [in] December, flying with [an] Airline, which is why he had their business card.

    ·His [number] friends from Pakistan visited him in [City 2, Afghanistan].

    ·He exchanged the remainder of his money at an exchange place at [City 1, Afghanistan] airport for [number deleted] Pakistani rupees because they had no Australian dollars.

    ·He had a suit made at a tailor’s in Quetta and his friend picked it up and brought it to him in [City 2, Afghanistan].

    ·His mobile phone was stolen in his first few days in Afghanistan.  Thereafter he used his friend’s phones and a friend gave their phone to use at the airport.

17. To support his contentions in this regard the applicant provided a letter from [a] company confirming that he booked the applicant’s travel from [City 2, Afghanistan] to [City 1, Afghanistan] [in] December 2014 for [date] December 2014; a letter from a tailor in Quetta who confirms that the applicant did not attend his store; and a letter from the landlord of the property the applicant allegedly stayed in [City 2, Afghanistan] from [September] to [December] 2014.

18. In a submission[1] to the Department in response to the notice the applicant’s representative argues that the applicant did not enter Pakistan.  In the alternative, he submits that even if he did, it was a lapse in judgment and is not evidence that the applicant provided incorrect information in his visa application form (and related statement).

    [1] Dated 30 August 2017

19. The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, and other relevant evidence before it to assess whether the grounds for cancelling the visa is made out.  In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided.  It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.  However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).  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 because 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.[2]

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

20. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case. 

21. Dixon J’s comments in Briginshaw v Briginshaw[3] are also relevant in this case, as follows:

    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.[4]

    [3] (1938) 60 CLR 336.

    [4] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

22. The items located by Australian customs officials on the applicant’s return to Australia from Afghanistan in December 2014 as set out earlier do at the very least raise a question about whether or not he had returned to Pakistan from Afghanistan during the three month period in question. The applicant has consistently denied that he did return to Pakistan and has provided explanations as to why he had these items at the time, among other concerns raised. 

23. The Tribunal has proceeded on the basis that the applicant may have returned to Pakistan and such actions do raise a question about his claimed fear of persecution in Pakistan, made in 2012.  However even if he did return to Pakistan in 2014 as suspected by the delegate, this does not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to fear persecution there as a Hazara Shia whose father was a prominent and wealthy [official] are untrue.  That is because if he did stay, it would have been for less than three months, possibly in Quetta which according to country information Hazaras there tend to live in isolated communities, which reduces the risk of attacks by sectarian militants[5], and his claims largely relate to risks posed as a Hazara Shia living there over a longer period of time.  His claims that he would be targeted for harm, including possibly extortion and kidnapping as his father’s son are more relevant however the fact that the applicant was not harmed during this relatively short period in Pakistan is not evidence that he lied about his fears of persecution or the incidents that he said had happened including to his father and other family members, when he made his application for protection.  For these reasons, the Tribunal is not satisfied that the applicant’s return to Pakistan for less than three months in 2014 meant he did not hold a well-founded fear of persecution as a Hazara Shia whose father was a prominent and wealthy [official] at the time of his protection visa application.

    [5] DFAT Country Information Report, Pakistan, 1 September 2017 at 3.14

24. Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it - that the grounds for cancellation are made out on the basis that the applicant (possibly) returned to Pakistan for less than three months in 2014.  

25. In summary the Tribunal agrees with the delegate that the discovery of a number of items in the applicant’s possession on his return from Afghanistan in 2014 may indicate that he temporarily returned to Pakistan which raises a concern about his alleged fears of being persecuted there.  However, even if the Tribunal is satisfied on the evidence before it that the applicant did return to Pakistan, this does not, in the Tribunal’s view, constitute evidence to the requisite level as required by Zhao that he provided incorrect answers in his protection visa application (and related statement) as set out at paragraph 11 of this decision record about his feared persecution and allegations of past harm and threats to him and his family in Pakistan.  

26. For the reasons set out above the Tribunal finds that the grounds identified by the Minister’s delegate have not been established such that it has reached a real state of satisfaction that incorrect information was provided. For these reasons, 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

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

    Nicole Burns
    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.

    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.