1804288 (Refugee)

Case [2021] AATA 5198

1804288 (Refugee) [2021] AATA 5198 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804288

COUNTRY OF REFERENCE:                   Jordan

MEMBER:Nicole Burns

DATE:11 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 11 November 2021 at 2:31pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Jordan – Federal Circuit Court remittal – ground for cancellation – incorrect information in visa application – non-appearance before the Tribunal – claimed fear of harm – homosexual man – evidence of marriage to a woman – bogus document – psychological report – credibility concerns – consideration of discretion – grant of visa based on incorrect information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 424A, 438
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
SZEEM v MIMIA [2005] FMCA 27
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 and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (the Act).

  2. The applicant is a [age]-year-old man from Jordan who came to Australia [in] June 2007 holding a tourist visa.  He was granted a protection visa on 17 December 2010 on the basis of his claimed homosexuality and related fears in his home country.  The delegate cancelled the protection visa on 1 April 2015 because they concluded the applicant had provided incorrect answers in relation to his protection visa application in breach of s 101 of the Act.  The applicant sought review of the cancellation decision and a differently constituted Tribunal affirmed the decision to cancel the visa on 20 July 2015.[1]  [In] February 2018 that decision was set aside by order of the Federal Circuit Court for the Tribunal to reconsider the matter. 

    [1] AAT No. 1505552

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

    Procedural history

  4. The procedural history of this case, including several attempts to hear the matter since shortly after it was constituted to the current Member is extensive and detailed in an attachment to this decision record (Attachment A). 

  5. In short, the Tribunal first invited the applicant to attend a hearing scheduled for 16 April 2020 and most recently for a hearing scheduled to take place on 19 July 2021.  The Tribunal granted a postponement request made by the representative for the hearing that was due to take place on 16 April 2020, as he had…

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AGLC
1804288 (Refugee) [2021] AATA 5198
Case
[2021] AATA 5198
Decision Date

CaseChat Overview and Summary

The applicant sought review of a decision to cancel his protection visa. The dispute concerned whether the applicant had provided incorrect information or a bogus document in his original protection visa application, which was the basis for the cancellation. The matter was before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had failed to comply with the *Migration Act 1958* (Cth) by providing incorrect information or a bogus document in his protection visa application. If such non-compliance was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing the grounds for cancellation against any reasons not to cancel.

The Tribunal found that the applicant's protection visa had been granted based on his claim of being a homosexual man and his fear of persecution in Jordan on that basis. However, subsequent information, including the applicant's application for a partner visa for a woman and his interview with a departmental officer in Amman, raised credibility concerns. The Tribunal concluded that the applicant had deliberately provided incorrect information regarding his homosexuality at the time of his protection visa application, and that this information was central to his claims. The Tribunal gave significant weight to this deliberate provision of incorrect information when considering its discretion to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's visa, finding that the grounds for cancellation outweighed any reasons not to cancel.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal does not consider the other information to which the certificate is subject to be relevant to the case, or is neutral, and appears to be subject to a certificate primarily to keep details of interpreter or other person’s visa histories (for example) confidential. 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 (Attachment C). There are two Notice of Intention to Consider Cancellation (NOICC) letters on the Departmental files in this case. The first notice dated 24 June 2014, advised the applicant that his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) (no incorrect answers are given or provided in filling in or completing his application form) and s 103 (bogus document) of the Act. He was advised to respond in writing, which he did via letters dated 14 July 2014, 9 August 2014 and 20 January 2015. The second NOICC dated 26 February 2015 advised the applicant his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) largely for the same reasons as the first notice (detailed below). He provided a further letter to the Department dated 19 March 2015 in response. The applicant also provided supporting documents including a copy of his marriage certificate, a copy of his wife’s divorce certificate, and a letter from [Dr B], in Egypt, dated 10 July 2014. The delegate appears to have relied on the 26 February 2015 notice in the ‘decision to cancel’ decision record, taking into account the applicant’s responses to both notices. 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. Notice of Intention to Consider Cancellation (NOICC): 24 June 2014 The non-compliance identified and particularised in the 24 June 2014 s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application in certain respects. Specifically, the notice recounts information the applicant provided in answer to several questions[2] in his protection visa application lodged on 22 October 2009, where he referred to a statement in which he set out his background and protection claims. In summary, he claimed to fear persecution in Jordan as a homosexual man. He claimed his parents – conservative Sunni Muslims originally from Palestine – had threatened to kill him as a result of his relationships with men and that he would not be able to live his life as a homosexual. He stated that he had a long-term relationship with a man – [Mr C] – whilst he lived and worked in [Country 1] for six years from the age of [age] and that he was presently in a relationship with [Mr D]. [2] Questions 41 – 44 (inclusive)

Decision

Reasons for decision

The first Tribunal was not persuaded by the applicant’s responses to the notices and his oral evidence and submissions to the Tribunal, and found he was not homosexual at the time he applied for protection and therefore that he provided incorrect information in his protection visa application in these key respects. Accordingly, the first Tribunal was satisfied that the ground for cancellation existed and, further that the grounds for cancelling the visa outweighed the reasons not to cancel visa.The current review of the cancellation decision As noted, the current Tribunal sent the applicant an invitation to comment on potentially adverse information contained on the Department’s file. The information related to internal Departmental communication which included, in summary, comments that:·The applicant was granted a protection visa in December 2010 on the basis of his claimed membership of a particular social group, that being homosexual men. At that time he claimed, among other things, that he could not return to Jordan because his parents had threatened to kill him if he returned and did not stop living as a homosexual.·On 15 April 2013 he lodged a partner visa application sponsoring his female Jordanian spouse.·The applicant’s claimed male partner at the protection visa application stage was granted a protection visa on 16 June 2010; two weeks later he returned to Egypt for four months; he subsequently lodged a partner visa application for a female and was (as at 22 November 2013) offshore and had returned to Egypt.·The applicant departed Australia [in] January 2013 and advised in his outgoing passenger card that he was returning to Jordan for two months to visit family and friends, returning to Australia [in] March 2013. Departmental notes/records indicate the applicant intended to return to Jordan again.·He was interviewed by a Departmental officer in Amman on 8 April 2014 and provided very limited information regarding his previous homosexual relationship (other than what was included in the protection visa application). Combined with his simplistic explanation about why he subsequently chose to marry a woman, the officer was not satisfied the applicant was in a previous homosexual relationship. A response to the Tribunal’s letter was received in the form of a letter from the applicant dated 19 August 2021. In it he reiterates much of what he had submitted in response to the NOICCs, arguing that he was a homosexual at the time he applied for a protection visa and could not return to Jordan because his parents had threatened to kill him if he did and did not stop living as a homosexual. His key points in the letter were as follows:a.He identified as a homosexual and was in a relationship with his partner at the time who returned to Egypt and stopped communication with him. The applicant was shocked and felt betrayed after they had shared such an intimate sexual relationship.b.Previously he had a partner in [Country 1] and [Country 3]. Those relationships also ended in his heartbreak and it has been too much for him to handle.c.When his ex-partner went back to Egypt he thought that was what lay ahead in his future as well and he felt he had no choice but to marry a girl and have children because that was what his family expected and he could no longer live with himself being an outcast and having no one in his life. He lost hope and could not cope with family rejection.d.He felt numb at his interview in Amman because he worked himself to accept he had no option to live as a homosexual and was trying to forget about his past relationship.e.He did what his family wanted, agreed to a girl, and applied for a partner visa; then his visa was cancelled. f.He believes the cancellation was unfair because the letter written by his friend dated 8 May 2013 indicating that he saw his wife in 2007 was not true. At the time his friend wrote the letter and the applicant signed it without checking it. g.He was honest in completing the partner visa form 47SP that he married his wife [in] February 2013 and he first met her [in] January 2013. Afterwards, his friend told him he thought he was helping him by saying they met in 2007.h.He admits he did not go into detail during the interview because he was feeling low, but refutes the comment that at the time of applying for protection he was not homosexual.i.During his visit to Jordan in early 2013 he was able to reconcile with his parents who he felt he had no option but to please with marriage.j.With assistance of professionals in Australia such as [Sheikh I] and friends he decided to go against his truth and deny his homosexuality and live the life his family wanted and keep his relationship with them. It has not been easy, but he did what he felt he had to.k.He was honest and talked about his homosexuality as can be seen in the report from psychologist, [Mr J], who he told about his sexual activities with [Mr D]. At that time – 2009 – he told the psychologist he never desired women and had only been sexually attracted to men, and that his parents were searching for a woman for him to marry. l.By the time he returned to Jordan he had been rejected by three previous partners who left him because their world was forbidden in their culture and he wanted to please his parents and be accepted and loved by his family.m.At his interview with a Departmental officer in Amman on 8 April 2014, he answered the questions and said he was accepted as a refugee as a homosexual, and the decision to marry a woman was taken after he reconciled with his parents who wanted him to marry and have a family. He reiterated that during the interview he felt numb and not his normal self, given the breakup and breaking through with his family, when previously he felt unwanted and unloved. n.He never intended to provide false information.

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: The Tribunal finds the decision to grant the protection visa was based wholly on the applicant’s claims to be homosexual. In the decision record dated 17 December 2010 (a copy of which is contained on the relevant Departmental file[12]) the delegate found the applicant was a refugee based on being a member of the particular social group of homosexuals and that his fears of persecution on return there from family, community members and the authorities was well founded (based on relevant country information at the time). [12] [Departmental file number] The Tribunal gives significant weight to this factor towards exercising its discretion to cancel the visa. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his protection visa application made in October 2009. In his various responses and submissions[13] to the Department and (first and second) Tribunal the applicant maintains that he was a homosexual at the time he applied for protection, held related fears of persecution from family members and others, and accordingly did not provide incorrect information at the visa application stage in breach of the Act. He made these submissions orally at the first Tribunal. However, for reasons above, the Tribunal does not accept his evidence in this regard.[13] That is: responses to both NOICCs, written submissions, correspondence in relation to the ITOA, oral evidence to the first Tribunal and response to the current Tribunal’s s 424A letter. The Tribunal finds the applicant deliberately provided incorrect information in these respects to the Department and the information was central to his protection claims. The Tribunal gives significant weight to this factor towards cancelling his visa. The present circumstances of the visa holder: In his letter to the Tribunal dated 19 August 2021 the applicant advised that he was presently in Jordan, and had been [since] February 2020. He departed Australia for [Country 3] [in] December 2019 for two months then [Country 4] for two weeks [from] February 2020 before moving to Jordan. He states further that he was admitted to hospital with [injuries] [in] April 2021 over a family feud (he does not elaborate) and provided photographs of his injury. He gave no indication as to whether he is still married and/or living with his wife there, whether he was working or any other pertinent information. His representative had indicated to the Tribunal that he has a sister in Sydney. No other contemporaneous evidence about the applicant’s present circumstances has been provided. Prior to leaving Australia in December 2019, the applicant had been resident in Australia for around 12 years. He told the first Tribunal at hearing in March 2015 that his parents and the majority of his siblings were in Jordan at that time. Additionally, he said that he had been living with his sister for around a month and was working [and] paying taxes (he provided PAYG payment summary for a period ending 30 June 2014).