1804288 (Refugee)

[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 advised the applicant was outside Australia and he had difficulty contacting him and obtaining instructions. 

6. After several unsuccessful attempts to contact the representative (as set out in the attached procedural history) thereafter, the Tribunal held a directions hearing with the representative on 5 February 2021 to discuss how the matter could best be progressed.  At the directions hearing it was agreed that a telephone hearing would take place given the applicant remained overseas and the representative would provide the applicant’s overseas contact number.  However, on the scheduled day of the hearing – 13 April 2021 – the representative said he had not contacted the applicant and requested more time to do so.  The Tribunal granted his postponement request and then set down a new hearing for 19 July 2021.  However, on that day when contacted, the representative again said he had not been able to contact the applicant and requested more time to do so. In an email to the Tribunal dated 19 July 2021 (received after the scheduled hearing time) the representative requested a further hearing postponement stating as follows:

   1.I sent email to client had no response

   2.I don’t know if client has access to computer, phone ect [sic]

   3.I don’t know the location of the client.

   4.I don’t know if the client is well or unwell.

   5.I tried to call the client’s sister, but was unsuccessful.

7. The representative requested the hearing be adjourned to ‘a later date with sufficient time to contact the client and prepare for the hearing’.  The Tribunal considered that request but taking into account the representative had had a significant amount of time to contact the applicant and prepare for the hearing – that is since invited to the first hearing on 14 February 2020 (for a hearing scheduled for 16 April 2020) – and having regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was to be postponed for a further indeterminate period of time, the Tribunal refused to grant the hearing postponement request.  The representative was advised of such in a letter from the Tribunal sent by email on 19 July 2021.  

8. On 19 July 2021 the Tribunal sent the applicant a letter pursuant to s 424A of the Act inviting his comments and/or response to potentially adverse information contained on the Department’s file related to the visa cancellation.  On 30 July 2021 the representative requested a four-week extension to provide a response, advising the applicant remained overseas and did not have access to technology to prepare a statement.  The Tribunal granted an extension for the response or comment on the information until 30 August 2021.  On 23 August 2021 the Tribunal received by post (to its Sydney office) a letter from the applicant dated 19 August 2021 responding to the information in the Tribunal’s letter dated 19 July 2021.  In that letter the applicant states that he is no longer represented by his lawyer, [Mr A].  Additionally, he reiterated that he had not provided incorrect information in his visa application form and provided an update about his circumstances, including that he is presently in Jordan.  He did not make any submission for another hearing to be set down. 

9. As the contact details on the letter did not match those on file with the Tribunal or Departmental systems, the Tribunal wrote to the email address contained in the letter asking the author to contact the Tribunal via a known email address or phone number.  No response was received.  Nonetheless, the Tribunal is satisfied that the letter dated 19 August 2021 is authentic, given the information contained in it is similar to the applicant’s responses to the Department (about possible cancellation) and submissions to the first Tribunal, discussed where relevant below.  

10. Taking into account this history, including the steps the Tribunal has made to contact and engage with the applicant, and the fact the applicant did not appear at the most recent hearing set down on 19 July 2021 (and the hearing postponement request was refused for reasons set out above) the Tribunal has proceeded to make a decision on the material before it without taking any further action to allow the applicant to appear before it.

    Non-disclosure certificate

11. The Tribunal has before it the applicant’s Departmental files relating to his visa cancellation. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s 438 of the Act. Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. In this case the Departmental file contains a non-disclosure certificate issued under s 438 of the Act dated 11 May 2015. The Tribunal does not consider the certificate is valid given it is not satisfied that it states a valid ground of public interest immunity or adequately explains how the disclosure of the information would not be in the public interest.

12. The information covered by the certificate includes potentially adverse information which the Tribunal set out in a letter to the applicant dated 19 July 2021 inviting his comments, a copy of which is attached to this decision record (Attachment B).  The applicant provided a letter in response dated 19 August 2021, as noted.  The potentially adverse information and the applicant’s response to that information are discussed where relevant below when determining if the grounds for cancellation are made out, and with respect to pertinent discretionary factors. 

13. 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

14. 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.

15. 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).

16. 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.

17. 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.

18. 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?

19. 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

20. 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)

21. The applicant was granted a protection visa based on this (and other) information on 17 December 2010.

22. However subsequently, as set out in the NOICC, the applicant’s wife – [Ms E] – lodged a Subclass 309 Partner (Provisional) visa application with the applicant as the sponsor, on 15 April 2013.  The notice recounts that in support of the partner visa application a document titled ‘Our story’ was provided in which the applicant states, among other things, that he saw [Ms E] the first time in Jordan in 2007 when she was visiting one of his relatives; he liked her so much and dreamed of her being his wife; in January that year (2013) he travelled to Jordan from Australia and they married [in] February; and then he returned to Australia to prepare their house to live in. 

23. Additionally, the NOICC records that in response to the question[3] in [Ms E]’s partner visa application lodged on 15 April 2013 about whether her fiancé or partner had ever been in a same sex or opposite sex de facto relationship with a person other than the applicant, an ‘X’ was placed in the ‘No’ box. 

    [3] Number 64

24. The NOICC also records that Departmental records confirm the applicant returned to Jordan [in] January 2013 to visit his family and to be married ([in] February 2013).

25. Based on this information the delegate concluded the applicant had provided incorrect information in response to several questions in the application form, which he had elaborated upon in his statement: specifically, his claims to have left Jordan because of his homosexuality, that he could not live his life the way he wanted because he would be forced to marry a woman, and that he had never desired a woman.  Additionally, the information before the delegate indicated (to the delegate) that the applicant had returned to Jordan in 2013, that he had subsequently married a woman, that he has had strong feelings for the woman since 2007, that the applicant is heterosexual, and that the information given by the applicant for leaving his country was incorrect as it pertained to questions 41 to 45 of Form 866C.  In relation to questions 42, 43 and 44, the delegate noted the applicant had indicated that his parents had threatened to kill him for his homosexuality; in 2013 and to support the partner visa application lodged on 15 April 2013, the applicant returned to Jordan to visit his family; the information indicates he was not in fear of being killed by his parents because he returned to Jordan in 2013 to see them; and the information indicates that he subsequently married a woman shortly after this in February 2013. 

26. The non-compliance identified and particularised in the 24 June 2014 s 107 notice in relation to s 103 (bogus document) related to a document titled ‘Psychological Report on [Mr D] and [the applicant]’ which was provided by the applicant in support of his application for a protection visa.  The NOICC records that the psychological report included the following statement:

    [Mr D] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.

27. The delegate found the fact that the applicant’s wife had lodged a partner visa application on the basis of the applicant being her partner on 15 April 2013 undermined that statement contained in the psychological report.  They concluded the document was therefore bogus.

    NOICC: 26 February 2015

28. The non-compliance identified and particularised in the 26 February 2015 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 similar respects as set out in the first notice.  In it the Tribunal notes in summary, the delegate referred to the following:[4]

    a.    the applicant’s responses to questions 41, 42, 43, 44, and 45, namely, ‘Refer to attached statement’;

    b.    the document titled ‘Psychological Report on [Mr D] and [the applicant]’ which was provided by the applicant in support of his application for a protection visa where at 11.2, it is stated  ‘[Mr D] and [the applicant] have both informed me they have never been married and have never desired to be with a woman and have only been sexually attracted to males.’;

    c.     the partner visa application lodged by [Ms E] sponsored by the applicant on the basis of their marriage;

    d.    the document titled ‘Our story’ and specifically the comments that the applicant had met [Ms E] when he was in Jordan in 2007 and that he had liked her;

    e.    the applicant’s interview with the Department on 8 April 2014 in relation to his wife’s partner visa application, during which he was advised of the consequences of providing false or misleading information and noting that the answers that he had provided during the course of the interview about his sexuality and relationship with his wife were in contradiction to the answers that he had provided at questions 41 to 45 of form 866C of the protection visa application; and

    f.   the applicant returned to Jordan, the country about which he had claimed he could not return and remained for approximately two and a half months.

    [4] Accurately summarised by the first Tribunal in their decision record.

    Responses to the s 107 notices (and other Departmental correspondence)

29. In his responses the applicant denied that there was non-compliance in the way set out in the notices.  In his letter dated 10 July 2014 he explained (and contended), in summary as follows[5]:

    [5] Accurately summarised by the first Tribunal in their decision record.

    a.    He has never provided a bogus document or misled the Department. Even though he was ‘affected by homosexuality I continue to believe that such conduct is not correct and was not correct in the eye of my God and my parents. But that was my situation and I have not lied in my application at all’.

    b.    In the statement he provided in support of the application for a protection visa, he stated that he could not return to Jordan because his parents were threatening to kill him if he did not cease doing what he was doing with his life, but this was in 2007.

    c.     He provided a statement in 2009, some four years after he had lived in Australia. He started to wake up to himself and met good friends who assisted him in realising the purpose of his life and brought to his attention the moral code from which he was away for many years. He also became aware that his parents would always wish him the best and he felt guilty about having a damaged relationship with his parents. He realised that Almighty God created ‘us’ with intellect and free will.

    d.    After being granted the protection visa, he lived in fear for many years and had suffered a lot because of his homosexuality. He attended counselling with a good Christian friend who encouraged him to pray and to work hard and within a few months, he stopped his Centrelink payments and started working very hard finding a remedy for his ‘problem’.

    e.    When he first completed the application for a protection visa in 2009, he went to a migration agent who advised him to write his story in Arabic because he was not fluent in English. In his statement dated 22 October 2009, he clearly said that he wanted to live his life the way he chose and not the way his parents wanted for him. This was true but now he realises that he wants to live his life the way God wanted him to and not to follow any ‘immoral’ behaviour.

    f.   His application for a protection visa was completed by migration agent [Mr F] and his partner visa application was completed by his cousin and brother-in-law, [Mr G]. [Mr G] completed the questions but never asked the applicant. He now realises that some of the answers are incorrect, such as question 63 of form 47SP which asks whether his fiancé or partner had been married to a person other than the applicant, and the answer that was ticked was ‘no’, but should have been ‘yes’. His wife was previously married to a person who divorced her in April 2009 (he attached a copy of the divorce certificate).  [Mr G] completed the application which the applicant just signed.

    g.    The statement dated 8 May 2013, a copy of which was given to the applicant was written by a friend, in Australia as requested by the Australian Embassy. The applicant did not write the statement in Arabic that he recalls that he saw [Ms E] in 2007 when he visited Jordan and he remembered her wearing jeans and she was ‘masculine in appearance’.  He is not responsible for this statement and he is prepared to obtain a statutory declaration from the person who wrote the statement. He confirms that since his marriage, he has maintained contact with his wife as her partner. At the time of meeting [Ms E] ‘she was never to be my future wife and I am not responsible for the contents of the statement of 8/5/2013’. 

    h.    In relation to form 866C and in particular questions 41, 42, 43 and 44, at that time he was homosexual and could not be forced to marry a woman. At the time he never desired a woman until 2013 and precisely when he made the decision to visit his family in Jordan to get their forgiveness and blessing. He was genuinely attracted to his wife when he met her, and she was genuinely attracted to him. He was still impressed with her ‘masculine appearance’. They went through an Islamic marriage [in] February 2013 and there were close family witnesses. They had an emotional relationship. He spoke to her about his situation and because of her ‘masculine’ personality, she encouraged him to be strong and gradually they consummated their marriage.

    i.   He is not a heterosexual but a homosexual and subsequent to his return from Jordan, he has been receiving counselling because he wants his marriage to work and to try to overcome homosexual tendencies. His wife is very understanding and patient. He is now proud that he has his parents’ blessing because of his marriage.  From 2012 until now, there have been a lot of changes in his life. Since his return to Australia, he has been supporting his wife financially from June 2013 and she has been supporting him emotionally. His wife is fully aware of his situation and his former homosexual tendencies.

1. In a further response dated 9 August 2014, the applicant reiterated and elaborated upon his statements as follows[6]:

   a.    When he lodged the application for a protection visa, he was homosexual, and he could not be forced to marry a woman. He did not indicate that he had strong feelings for [Ms E] since 2007. He had never contacted her or had any relationship with her prior to 2013 when he met her.

   b.    At question 55 of form 47SP (partner visa application), he replied that he met his wife on 20 January 2013 and consequently there is no evidence that he had any relationship or contact with his wife in 2007. The application lodged at the Embassy should not ‘lead the department to take into consideration any information outside the application 47SP’.  The date of marriage and when they met are clearly stated in form 40SP on page 8.  He has not misled the Department and at the time when he lodged an application for a protection visa he was homosexual.

   c.     In relation to questions 42, 43, and 44, he confirms that during his time as a homosexual he was threatened by his parents because in Jordan there is what is referred to as a crime of honour. He was originally in fear of being killed by his parents when he completed his application for a protection visa which was in 2009, approximately 4 years ago. At that time, his parents who are committed Muslims were aware of the Islamic prohibition on homosexual acts. Homosexuality is against the moral code and is against Islam. This is what he had said in his application for a protection visa. After four years of prayers, thinking and counselling, he has changed.

   d.    He does not take responsibility for the document titled ‘Our story’ which was prepared by someone else, although he had signed it. In 2007, he did not desire a woman and he was homosexual at that time.  He has not breached the Act and the information contained in his application for a protection visa is correct.

   e.    About a year and a half after he obtained his permanent residency his former partner [Mr D] left him.  He is now working, and he does not rely on Centrelink.

   [6] Accurately summarised by the first Tribunal in their decision record.

2. The applicant provided a certificate of divorce relating to his wife and her first husband, a certificate of marriage (regarding him and his wife) and a handwritten document from [Dr B] in Egypt, dated 10 July 2014.  In it [Dr B] stated, among other things, that the applicant’s wife is ‘…single not married. By examination hymen is intact…’

3. According to information on the Departmental file the applicant was interviewed by the Department on 24 November 2014 (before a decision was made to cancel his protection visa) in relation to an International Treaties Obligation Assessment (ITOA).  In a letter dated 7 January 2015 the applicant was advised that the ITOA assessment was finalised with a finding that non-refoulment obligations were not engaged in his case.  The applicant sent a letter to the Department dated 20 January 2015 in which he stated that there appears to be a misunderstanding about his situation that he would not be at risk of harm if he were to return to Jordan.  He made the following additional arguments:

   ·His original claims are genuine and he was a homosexual but due to counselling, he is changing. He is legally married and when he said that his marriage was consummated it was a statement that his wife had become his wife and that they both stay together for a short period of time. He has provided medical evidence that his wife is still a virgin which should lead the Department to understand and accept that he is affected by his homosexuality.

   ·The Department does not understand the critical and terrible situation in Jordan as well as his fear of persecution and harm which had been accepted previously by the Department. The Department also fails to understand the concept of crime of honour in Jordan and how he would relocate or make a living in Jordan.

   ·He has nothing to hide and he has provided substantial evidence relating to the situation in Jordan, especially after the ‘invasion’ of thousands of refugees from Syria.

   ·He has suffered serious harm from his brother as well as others and the decision that Australia does not have non-refoulment obligations is incorrect because he was accepted as a refugee. He states that he would fight for his rights to the ‘top level’ and the decision to cancel his visa is unreasonable.

4. The applicant sent a further letter to the Department dated 19 March 2015 in response to the 26 February 2015 NOICC in which he reiterated his earlier statements that he has never provided incorrect information or fraudulent documents. He emphasised that his protection claims were correct and accepted by the delegate at the time.

5. On 1 April 2015 the delegate decided to cancel the applicant’s visa.  In the decision record the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act.  Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, including considering the applicant’s responses about such matters. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

   The first review of the cancellation decision

6. Before the first Tribunal the applicant maintained (in his oral evidence and written submissions[7]) that he did not provide incorrect information when he applied for protection; that he was homosexual at the time he applied; and that he had changed (following counselling and prayers) and was attempting to refrain from acting on his (homosexual) tendencies.

   [7] Including a letter dated 8 April 2015.

7. The Tribunal has read the transcript of the hearing held with the first Tribunal on 10 July 2015 and the first Tribunal decision record.  At that hearing the first Tribunal discussed the relevant contents of the NOICCs with the applicant.  He disputed the delegate’s findings that he provided incorrect information in his protection visa application about being a homosexual.  He said he was a homosexual and described a long-term relationship with a man who he lived with in [Country 1] from 1999 to 2005 and several casual relationships with men when he lived in [Country 2] from around 2005 to 2007.  He said he was in a relationship with a man called [Mr D] when he applied for protection and they lived together until [Mr D] went back to Egypt after about a year and a half.  His family knew the applicant was homosexual, overhearing the matter in around 2005, and his brother threatened to kill him. 

8. The applicant told the first Tribunal he visited Jordan in 2013 because his younger brother – who was the only one he had communicated with over the previous six years – told him his parents were tired and unwell and wanted to see him.  There he met and married [Ms E], after friends in Australia convinced him to try another life.  He said a friend wrote ‘our story’ from his imagination: he did not see [Ms E] for the first time in 2007 or dream of her being his wife as indicated in that statement.

9. Material provided to the first Tribunal from the applicant included a report dated 13 June 2015 from [Ms H], social worker who opined that the applicant is homosexual but resisted this due to risks in his home country.  Additionally, she states the applicant has a diagnosis of major depressive disorder, generalised anxiety, post-traumatic stress disorder (PTSD), high levels of stress, and suicidal ideation.  At the first Tribunal hearing the applicant said he had seen [Ms H] more than 10 times from 30 September 2013. 

10. 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

11. 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.

12. 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. 

13. Additionally in his letter the applicant reproduced a paragraph written by the delegate who found in his favour at the protection visa stage as set out in their decision record dated 17 December 2010.  In it, the delegate states that she found the applicant’s evidence to be ‘credible and reliable’ and accepted his claim to be homosexual. 

14. The applicant also provided an update about his circumstances, advising that he is presently in Jordan, arriving there [in] February 2020 after spending two weeks in [Country 4] (from] [date] February 2020) and before that two months in [Country 3] (from [date] December 2019).  He stated that he was physically attacked in Jordan [in] April 2021 over a family feud and was admitted to hospital with [injuries].  He provided photographs purportedly of his injured arm.

15. Also submitted to the Tribunal was a copy of a letter from [Sheikh I], [Organisation 1], dated 14 January 2017.  In it, the sheikh states he met the applicant in early 2011 through a mutual friend and that he was in need of help as a homosexual, was isolated from most of his friends, and his family in Jordan kept contacting friends in Australia to look after him and advise him to become straight and have a wife and family in the future.  The sheikh states he and the applicant spoke about different views of homosexuality and family relations; for two years the applicant attended his weekly speeches at a prayer hall in [location] wherein they became friends; and the applicant told him in early 2013 he was going overseas and advised he was engaged to a girl when he came back in mid-2013. 

    FINDINGS ABOUT THE ALLEGED NON-COMPLIANCE

16. The Tribunal has considered the information contained in the s 107 notices, the applicant’s responses to the notices, the applicant’s responses to the ITOA decision, the applicant’s oral evidence, submissions and supporting documents to the first Tribunal, the applicant’s response to the current Tribunal’s s 424A letter, and other relevant evidence before it to determine whether the grounds for cancelling the visa are made out. 

17. 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 (Zhao), 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.[8]

    [8] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

18. 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. 

19. The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

20. In this case the second NOICC particularises answers allegedly not given correctly concerning the applicant’s claim about being a homosexual, facing threats from family, and fearing serious harm (including from his family) in Jordan and not being able to live openly there as a result, based on several considerations including the following:

    a.His application by his wife for a partner visa in April 2013 which included a document the applicant signed (titled ‘Our story’) stating he had had met and liked his wife in Jordan in 2007;

    b.His return to Jordan for two and a half months in January 2013 to see his family and marry his wife; and

    c.The provision of contradictory answers by the applicant provided in his protection visa application and at his interview with the Department on 8 April 2014 in relation to his wife’s partner visa application about his sexuality and relationship with his wife. 

21. It is not in dispute that the applicant returned to Jordan in early 2013 and whilst there married a woman ([Ms E]) who subsequently applied for a partner visa on the basis of their marriage.  The applicant claims he had broken up with his male partner ([Mr D]) and, finding it difficult to cope without his family, decided to return to Jordan and reunite with his parents and carry out their wishes for him to marry a woman.  He claims he was homosexual when he applied for protection, but decided to marry to please his family, and suppress his sexual tendencies, following years of counselling, advice from friends and reflection.

22. Although of some concern, the applicant’s return to Jordan and marriage to a woman in 2013 does not necessarily mean that he did not have relationships and/or sexual encounters with men in the past in Jordan or elsewhere, nor that he feared harm and being unable to live openly as a homosexual man in Jordan at the protection visa stage in 2009 (and before), as submitted.  It is possible the applicant did have relationships with men in Jordan (and other parts of the middle east) as claimed and years later applied for a visa to sponsor his wife.  There may be various reasons why he subsequently married a woman, including family pressure (as submitted), cultural and religious expectations and possibly his own desire to have children.  The Tribunal also accepts that sexual preferences are not always fixed and can change over time. 

23. Nonetheless, there are several credibility concerns with the applicant’s evidence in this regard which leads the Tribunal to have serious doubts about his claims to have been a  homosexual at the time he applied for protection.  These include the following considerations. 

1. Inconsistencies exist in some key respects between what the applicant has told the Department (and Tribunal) about the inception and development of his relationship with [Ms E] when discussing his protection claims (and about the cancellation of his protection visa) and evidence provided in support of [Ms E]’s partner visa application.  Specifically, in his responses to the NOICCs and submissions to the Tribunal the applicant claims he only met [Ms E] in early 2013, shortly before their marriage which was arranged by his family.  He contends that he decided to marry her to please his parents despite being homosexual.  However, his claims in this respect are undermined by information contained in his statement titled ‘Our story’ provided in support of the partner visa application that he met [Ms E] (and liked her) in 2007, before he applied for protection in 2009.  The applicant submits that this assertion in ‘Our Story’ (dated 8 May 2013) is untrue; that it was written by a friend who thought he was helping (and who did not know about the applicant’s sexuality); and although the applicant signed the document, he did not check it first.  (The applicant told the first Tribunal he had asked the friend in question to write a letter acknowledging as such but the friend refused.) 

2. Additionally, the applicant’s evidence about how he felt about his wife and whether or not the marriage was ‘consummated’ (his own words) is internally inconsistent and has changed over time.  That is, in his response to the first NOICC dated 10 July 2014, the applicant states he never desired a woman until 2013; that he was genuinely attracted to his wife when he met her (and her to him); that he was impressed with her masculine personality; and they gradually consummated their marriage.  However in a subsequent letter to the Department (dated 20 January 2015 following the ITOA) the applicant argues the fact that his wife is still a virgin (purportedly supported by medical evidence from a doctor in Jordan) should lead the Department to understand and accept he is ‘affected by his homosexuality’.  In that letter the applicant also appeared to backtrack on his earlier statement that they had consummated their marriage by explaining what he meant was she had become his wife and they both stayed together for a short period of time.

3. At the first Tribunal hearing when this issue was discussed, the applicant said he meant they had settled down and were living together and although he did not touch his wife, in the eyes of the community, that is what happened.  Yet as recorded by the delegate in the cancellation decision, at interview regarding the partner visa application he told the interviewing officer that they had consummated their relationship.  The delegate for the cancellation decision[9] goes on to state that at the applicant’s interview on 24 November 2014 in relation to the ITOA he said they had not (consummated their marriage) but he could not tell the other Departmental officer (with respect to the partner visa interview) because he was shy.  It is possible he exaggerated aspects of his relationship with his wife in an attempt to strengthen her partner visa application.  Nonetheless such shifting evidence makes it appear to the Tribunal that the applicant is not being entirely truthful about his circumstances and it seems as if he alters his evidence in some respects depending on the case at hand. 

   [9] A copy of which the applicant provided to the first Tribunal.

4. A further concern the Tribunal has with the applicant’s assertions that he was homosexual at the time he applied for protection and subsequently married a woman largely to appease his parents, arises from the fact his alleged partner at the time – [Mr D] – appears to have had a very similar experience.  That is, according to information on the Departmental file, [Mr D] returned to his home country shortly after being granted a protection visa in Australia on the basis of being a homosexual (and in a relationship with the applicant) and subsequently lodged a partner visa application to sponsor his female partner to come to Australia.  In his response to the Tribunal’s letter which set out this information (among other things) the applicant said his partner at the time he applied for protection returned to Egypt and stopped communicating with him; he felt shocked and betrayed; he lost hope and felt he had no choice but to marry a girl and have children as that was what his family expected of him and he could no longer live being an outcast and having no one in his life anymore.  He does not comment specifically on the information that [Mr D] had also sponsored a female partner to Australia after being granted protection (on the basis of being a homosexual).  Nor does he indicate in his response when [Mr D] returned to Egypt (or when their relationship ceased), although the Tribunal notes in his 9 August 2014 response to the first NOICC the applicant said about a year and a half earlier and subsequent to him being granted the protection visa, his former partner [Mr D] had left him.  Although on its own such similar behaviour of the applicant and [Mr D] may not lead the Tribunal to be satisfied the applicant provided incorrect information about his purported sexuality, in combination with other concerns as discussed it contributes to the Tribunal’s concerns. 

5. The Tribunal notes that this information about [Mr D] contained on the Departmental file was not referred to in the NOICCs.  Nonetheless, whilst the Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s 107 notice,[10] it is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s 107 notification.[11] 

   [10] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

   [11] Sheptitskaya v MIBP [2015] FCCA 159 (Judge Street, 27 January 2015) at [10]-[16].

6. As noted, in the second (February 2015) NOICC and information contained on the Departmental file (as set out in the s 424A letter) the delegate refers to credibility concerns with the applicant’s interview with a Departmental officer in Amman on 8 April 2014 in relation to his wife’s partner visa application.  These included providing answers during the course of the interview about his sexuality and relationship with his wife in contradiction to the answers that he had provided at questions 41 to 45 on form 866C of the protection visa application (as indicated in the NOICC).  Also because he purportedly provided very limited information regarding his previous homosexual relationship (other than what was included in his protection visa application), leading the officer to not be satisfied that he was in a previous homosexual relationship.  In response to the Tribunal’s s 424A letter the applicant states he was feeling numb at the interview in Amman because he had come to accept he had no option to be a homosexual and was trying to forget his past relationship.  He added that he did not go into details during the interview because he was feeling low, not his normal self, given everything he had been through including a break up, and finally having his family talk to him: all he wanted was to be accepted when previously he had only felt unwanted and unloved.  The Tribunal is not persuaded by this explanation: even if he was tired of having to tell his story (related to his protection claims) again, this does not explain his simplistic explanations and contradictory information provided in certain respects.  The Tribunal gives some limited weight to the concerns expressed by the interviewing officer in Amman in April 2014 that the applicant had provided contradictory information between his protection visa application and his wife’s partner visa application. 

7. In combination these concerns cause the Tribunal to have serious doubts about the reasons the applicant has put forward as to why he married a woman who he sponsored to Australia in 2013, after he had claimed protection on the basis of being a homosexual, and allegedly in a relationship with a man ([Mr D]) at the time.  Accordingly, the Tribunal finds the applicant was not a homosexual, including at the time he applied for protection, had not had relationships with men in the past, was not at the time in a relationship with a man ([Mr D]), had not been threatened by family members and did not fear persecution from family members or others in Jordan as a result. 

8. In reaching this conclusion the Tribunal has had regard to the letter from [Ms H], (social worker) dated 13 June 2015, who referred to the applicant’s desires and urges to be with men which he had been resisting in an attempt to change his sexuality, and also, her belief that the applicant is ‘homosexual and he is fighting same sex attraction today as his life is at risk in his home country’.  As noted, the applicant gave evidence to the first Tribunal that he saw [Ms H] 10 times from 30 September 2013.  This was before the first NOICC, although the Tribunal notes in her letter, whilst [Ms H] states that she had been assisting the applicant with counselling treatment, she does not say since when. 

9. The Tribunal accepts the applicant saw [Ms H] in the past and that she held the belief that he was a homosexual (among other things).  However the Tribunal notes her beliefs in this respect are based on the applicant’s self-reporting.  The letter from [Ms H] does not overcome the serious concerns the Tribunal has for reasons above about the applicant’s alleged homosexuality at the protection visa stage, and related experiences and fears.

10. The Tribunal notes in his response to its s 424A letter the applicant refers to a report provided at the protection visa stage by psychologist [Mr J], who he purportedly talked with openly about his sexual activities with [Mr D], to support his contention that he was a homosexual at the time he applied for protection.  The Departmental file contains a report by [Mr J], Psychologist, [Company 1], dated 12 December 2009 which was provided in support of the protection visa application and appears to be the same report referred to in the NOICCs.  In that report it states that [Mr J] had a counselling session with the applicant and [Mr D] on 9 November 2009, where they declared they were a homosexual couple and lived together.  The Tribunal accepts the applicant (and [Mr D]) attended a psychologist in 2009 and declared they were homosexual.  However, again the letter from [Mr J] is based on the applicant’s self-reports and does not overcome the concerns the Tribunal has for reasons above about the applicant’s alleged homosexuality at the protection visa stage, and related experiences and fears.

11. The Tribunal has also had regard to the letter from [Sheikh I], [Organisation 1], dated 14 January 2017, which the applicant provided to the current Tribunal along with the August 2021 letter (in response to the Tribunal’s s 424A letter).  In his letter the applicant explains that he made the decision to return to Jordan and marry, and go against his truth and deny his homosexuality with the assistance of professionals in Australia such as [Sheikh I].  However he had not mentioned the sheikh before (or about attending his lectures, and so on), including in his responses to the NOICCs and in his evidence to the first Tribunal.  The Tribunal considers this is odd, particularly given the sheikh states he first met the applicant in early 2011.  In his July 2014 response to the first NOICC the applicant states that after he was granted protection he lived in fear and suffered due to his homosexuality, and attended counselling with a Christian friend who encouraged him to pray: there is no mention of the sheikh.  Such an omission is significant and casts doubts on his evidence to have sought assistance after being granted protection to ‘deny his homosexuality’ with the sheikh as submitted.  Accordingly, the Tribunal gives the letter from the sheikh no weight. 

12. For these reasons, the Tribunal finds the applicant was not a homosexual at the time he applied for protection, that he had not experienced threats from his family as a result, and that he did not fear serious harm at the hands of his family or anyone else on that basis.  Accordingly, the Tribunal is satisfied that he provided incorrect information in his protection visa application form in response to questions 41 to 45 (wherein he referred to the attached statement setting out his background, claims and fears) as set out in both NOICCs. The Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notices.

13. The Tribunal notes in the first NOICC mention is made of possible incorrect answers provided in [Ms E]’s partner visa application.  Specifically, in response to the question about whether his fiancé or partner has ever been in a same sex or opposite sex de facto relationship with a person other than her, an ‘X’ was placed in the ‘No’ box.   In his July 2014 response to the NOICC the applicant states that his brother-in-law completed the partner visa application and he now realises some of the answers are incorrect, including question 63 of form 47SP which asks whether his fiancée or partner had been married to a person other than the applicant and the answer that was ticked was ‘no’ but should have been ‘yes’ as his wife was previously married to a person who divorced her in April 2009 (and provided a divorce certificate).  The Tribunal accepts a mistake was made and that the applicant’s wife was married before she married him (and subsequently divorced).  However as this relates to the partner visa application, not the applicant’s protection visa application, it is not relevant to this case. 

    Should the visa be cancelled?

14. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

15. At the first Tribunal hearing when asked if he wanted to make any submissions about these discretionary matters, the applicant said he had nothing to say except he loves Australia, his freedom and has nothing to return to in Jordan.

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are as follows.

17. The correct information: The applicant was not a homosexual when he applied for protection, was not in a same sex relationship at that time (or prior), had not been threatened by anyone as a result, and did not have a fear of serious harm from family members or others as claimed in his application form.  This was central to his protection claims and therefore the Tribunal gives this factor considerable weight in favour of cancelling the visa. 

18. The content of the genuine document (if any): The Tribunal notes the first NOICC included alleged non-compliance with s 103 relating to bogus documents based on the provision of a Psychological Report on [Mr D] and [the applicant].  The second NOICC referred to this report but not s 103 (regarding bogus documents).  Nor is s 103 referred to in the delegate’s decision to cancel the applicant’s visa, which relied on s 101(b) solely. Accordingly the Tribunal finds that this prescribed circumstance is not relevant in this case because the latter s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents). 

19. 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]

20. The Tribunal gives significant weight to this factor towards exercising its discretion to cancel the visa.   

21. 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.

22. 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.

23. 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.

24. 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).  

25. There is no contemporaneous evidence about the applicant’s mental health status.  In her letter dated 13 June 2015, [Ms H] diagnosed the applicant with major depressive disorder, generalised anxiety, post-traumatic stress disorder, high levels of stress, and suicidal ideation but that was over five years ago.  Before the current Tribunal the representative has referred to the applicant being depressed due to his visa situation and in his August 2021 letter the applicant states that he is struggling to cope in Jordan and wishes to return to Australia.  The Tribunal accepts the applicant may be depressed to a certain extent due to his visa status, personal circumstances, and wishes to return to Australia, although notes the limited information about such matters before it.  It gives this some, albeit limited, weight to not cancel the visa.

26. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligation not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.

1. In response to the NOICCs the applicant states he was homosexual and he did not provide incorrect information as set out in the notices and maintained this position in his written and oral evidence to the first Tribunal and in his recent letter to the current Tribunal.  For reasons above the Tribunal does not accept his evidence in this regard and therefore finds that the applicant responded to the notices making an incorrect statement in these respects. This factor weighs in favour of the visa being cancelled.

2. Any other instances of non-compliance by the visa holder known to the Minister: In the ‘decision to cancel’ record it is noted that during his interview for a protection visa the applicant admitted he had worked in Australia whilst the holder of a tourist visa, in breach of a ‘no work’ condition and remained unlawfully in Australia for two years prior to lodging his protection visa application.  This factor weighs in favour of the visa being cancelled to some limited degree.

3. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the protection visa in 2009 and around 12 years has lapsed since then.  This is a significant amount of time in Australia, even taking into account the applicant left Australia in December 2019.  The Tribunal places some weight on this factor in favour of not cancelling the applicant’s visa.

4. Any breaches of the law since the non-compliance and the seriousness of those breaches: The Tribunal is not aware of any breaches of the law by the applicant since the non-compliance. 

5. Any contribution made by the holder to the community: In response to the NOICC the applicant said he has been [working], which is what he told the first Tribunal.  He departed Australia in late 2019.  This factor does not weigh for or against cancelling the applicant’s visa.

   Other factors: Departmental guidelines

6. While these factors in reg 2.41 of the Regulations must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to government policy[14], as follows. The Department has issued detailed guidance to decision‑makers on the consequences of cancellation that should be taken into account before making a decision to cancel a visa. The relevant policy is set out in the Department’s Procedural Instruction ‘General visa cancellation powers s 109, s 116, s 128, s 134B and s 140’.

   [14] PAM3 ‘General visa cancellation powers’.

7. Whether there would be consequential cancellations under s 140: Under s 140(2) of the Act, if a person’s visa is cancelled under s 109 and another person holds a visa only because the person whose visa is cancelled held a visa, his or her visa may be cancelled.  There are no consequential cancellations in this case. 

8. Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation: It is government policy that consideration for cancellation of visas must take into account any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[15] There is no evidence before the Tribunal that the applicant has children.  

   [15] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140).

9. Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CROC). The Department’s Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

10. As noted in the applicant’s case an ITOA assessment has been made, with a finding that Australia’s non refoulement obligations have not been enlivened. 

11. In the applicant’s case he has returned to Jordan, the country where he claimed to fear persecution, [in] February 2020.  At the directions hearing in February 2021 his representative said the applicant thought he could return to Australia.  However, as discussed then, the applicant left Australia on a Bridging Visa E which ceased upon his departure. 

12. In the hypothetical event that the applicant returns to Australia and is granted a Bridging E (Subclass 050) visa, that visa will cease 28 days after this decision or after the determination of any subsequent appeal (cl 050.512 of Schedule 2 to the Regulations).   If he is an unlawful non-citizen, he is liable to detention under s 189 of the Act, and must be removed as soon as practicable (s 198 of the Act).

13. Recent amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c)  none of the following apply:

    (i)  the decision in which the protection finding was made has been quashed or set aside;

    (ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

14. In this case the applicant made a valid application for a protection visa on 22 October 2009 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 17 December 2010. In these circumstances, s 197C(3) does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D of the Act, or the non‑citizen requests removal.

15. In this case the decision to grant the applicant a protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

16. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

17. In such a scenario cancellation may lead to prolonged detention for these reasons.  However given the applicant is outside Australia (presently residing in his home country) and does not have a visa to return, the Tribunal considers this unlikely. 

18. For the reasons set out above, the Tribunal finds that ss 197C(3) and 197D(2) provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal and it is not necessary for the Tribunal to make findings about those matters in the context of this decision.

19. Mandatory legal consequences to a cancellation decision: If the visa is cancelled and the applicant exhausts his appeal rights, his bridging visa will cease and he will become an unlawful non-citizen and may be detained under s 189 of the Act.  He is then liable to removal under s 198.  However, for the purposes of s 198, as a ‘protection finding’ has been made for him (in 2009), the Act does not require or authorise his removal as per the recent amendments: s 197C(3). This means he may face detention until a decision is made under s 197D that a protection finding would no longer be made, the Minister personally decides to grant him a visa under s 195A of the Act, the Minister decides under s 48A of the Act it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country. 

20. The Tribunal notes these possibilities are speculative and given the applicant has left Australia, it considers the prospect of indefinite detention unlikely.  This factor does not weigh for or against cancelling the applicant’s visa.

21. Any other relevant matters: as noted earlier, the representative told the Tribunal that the applicant’s sister resides in Australia, which the Tribunal accepts.  Should the applicant’s visa be cancelled it may have an adverse effect on her and their relationship: although given no contemporary information has been provided, including about the nature of their relationship, this is only speculative.  This factor does not weigh for or against cancelling the applicant’s visa.

    EXERCISE OF DISCRETION

100.   The Tribunal has carefully considered the above factors and circumstances relevant to the cancellation and broader considerations if the applicant’s visa was to remain cancelled.  The Tribunal considers the matters which it is required to have regard to towards cancelling the visa outweigh factors against cancelling the applicant’s visa in this case.  In reaching this conclusion the Tribunal gives significant weight to the fact that had the correct information been known at the time, he would not have been granted protection. 

CONCLUSION

101.   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 be cancelled.

DECISION

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

Nicole Burns
Member

Attachment A – Procedural History

1 April 2015                Delegate cancels applicant’s XA-866 visa

23 April 2015              Applicant lodges application for review with first Tribunal

10 July 2015               Applicant attends hearing before first Tribunal

20 July 2015               Previous Tribunal affirms the delegate’s decision

[August] 2015            Applicant lodges application for judicial review of previous Tribunal decision in the Federal Circuit Court of Australia (FCCA)

[February 2018]         FCCA makes orders by consent remitting the matter to the Tribunal (differently constituted) for determination according to law.

22 February 2018      Applicant appoints representative to assist him in the review. Tribunal writes to the applicant acknowledging the remittal orders of the FCCA

10 December 2018     Representative requests priority processing by the Tribunal

18 December 2018     Request for priority processing is refused

28 May 2019              Representative again requests priority processing.

26 June 2019             Representative makes progress enquiry on priority request.

23 July 2019              Tribunal refuses second priority request

[December 2019]       Applicant departs Australia – Bridging Visa E ceases on departure

20 January 2020        Case is constituted to the present Tribunal

14 February 2020      Tribunal invites applicant via the representative to attend a hearing on 16 April 2020. No response received.

19 March 2020          Due to stay at home orders issued by the Victorian government to stop the spread of COVID-19 the Tribunal informed applicant via the representative that the hearing would be conducted by telephone rather than in person.

8 April 2020               A Tribunal officer contacts the representative by phone to ascertain intention for the hearing. Tribunal officer clarifies that hearing is a substantive and not directions hearing. Representative advises Tribunal officer that applicant remains offshore and he had not been in contact with the applicant for some time as recent attempts had been unsuccessful.

14 April 2020             Representative requests postponement of hearing and informs Tribunal that applicant remained outside Australia and unable to return due to restrictions on incoming international flights due to COVID-19 pandemic. Representative states applicant does not have facilities available to them overseas to participate in a hearing.

The Tribunal informs the representative that the hearing has been postponed with the new date to be advised.

1 July 2020Tribunal officer attempts to contact representative by telephone. Representative does not answer, and a voicemail message is left. No response is received.

3 July 2020Tribunal officer attempts to contact representative by telephone. Representative does not answer, and a voicemail message is left. No response is received.

8 July 2020Tribunal officer attempts to contact representative by telephone. Representative does not answer, and there is no voicemail capability.

9 July 2020Tribunal officer speaks to representative via telephone, confirms that representative has available technology via video conference. When asked about whereabouts and contact details for applicant representative states he believes applicant may be in Indonesia but has not been instructed and does not have contact details.

The Tribunal confirms via content of telephone conversation and repeats request for applicant’s contact details to enable the imminent scheduling of a new hearing date to be conducted via video conference. No response is received.

27 July 2020              The Tribunal writes to the representative following up request of 9 July 2020. No response is received.

20 October 2020        The Tribunal writes to the representative following up request of 9  and 27 July 2020. No response is received.

27 October 2020        The Tribunal writes to the applicant, copying in the representative explaining that the Tribunal was attempting to schedule a hearing via video conference and that the representative had not responded to any correspondence from the Tribunal since 9 July 2020. No response was received.

24 December 2020     The Tribunal invites the applicant via the representative to attend a hearing via telephone on 5 February 2021.

25 January 2021        The representative writes to the Tribunal requesting a postponement of the 5 February 2021 hearing. The applicant remains overseas and the representative has been unable to contact them.

28 January 2021        The Tribunal requested the representative provide details of the applicant’s whereabouts in order to consider the postponement request.

4 February 2021        The representative informed the Tribunal in writing that the applicant remained overseas and believed he was in [Country 3]. The representative claimed that the applicant did not have access to communication technology that would permit them to participate in the hearing. The representative further claimed the applicant had departed Australia holding a visa that would enable their return and that he may have had a flight booked to return to Australia in March.

5 February 2021        The Tribunal determined that rather than a substantive hearing, the hearing scheduled would be a directions hearing with the aim of the Tribunal and the representative discussing how best to progress the case.

During the directions hearing the representative stated he last knew the applicant to have been in [Country 3] six weeks prior. The representative communicated with the applicant using an IMO app and the representative found this difficult to use.

The Tribunal noted that the applicant had left Australia holding a Bridging Visa E which ceased upon his departure.

The representative requested a further directions hearing to be held in late May 2021. The Tribunal refused.

The Tribunal requested the representative seek instruction from the applicant regarding the applicant’s access to technology to enable them to participate in a hearing and provide the Tribunal with an overseas phone number for the applicant.

The Tribunal advised the representative that a new hearing would be scheduled to take place so the applicant could participate remotely and the representative was to update the Tribunal with the requested information if the applicant returned to Australia for the purposes of converting any hearing to one to be held in person.

8 February 2021        The Tribunal invites the applicant via the representative to a hearing by telephone on 13 April 2020. No response is received prior to the scheduled day and time of the hearing.

13 April 2021             When contacted by telephone at the scheduled time the representative stated that he had not been able to make contact with the applicant since the 5 February 2021 directions hearing and that the applicant remained overseas.

The representative requested an 8-week postponement to allow time for him to contact the applicant, and the applicant’s family in Australia who may be able to appear in his place.

The Tribunal reminded the representative that it had been clearly stated at the 5 February 2021 directions hearing that the applicant was to appear.

After the scheduled time for the hearing to commence a written request for postponement was received from the representative.

26 April 2021             The Tribunal wrote to the representative seeking a response in writing by 3 May 2021 detailing how they would progress the matter over the eight weeks requested for postponement. No response was received.

25 May 2021              The Tribunal invites the applicant via the representative to a rescheduled telephone hearing on 19 July 2021. No response is received

16 June 2021             The Tribunal writes to the representative highlighting that no response has been received to the 25 May 2021 invitation and requesting that the representative provide an overseas telephone number for the applicant as a matter of urgency. No response is received.

19 July 2021              When contacted by telephone at the scheduled time for the hearing the representative requested an adjournment as he had not been able to contact the applicant.

The representative put the postponement request in writing following the scheduled time of the hearing.

The Tribunal refused the postponement request.

The Tribunal wrote to the applicant via the representative and pursuant to s 424A invited the applicant to respond or comment in writing to information before the Tribunal that may be adverse to the applicant’s case. The Tribunal informed the applicant that the response or comment should be received by 2 August 2021. Any extension to this deadline should be made in writing prior to 2 August 2021.

30 July 2021              The representative wrote to the Tribunal requesting a four-week extension of time for the applicant to respond or comment on the information. The representative advised the Tribunal that the applicant remained overseas and did not have access to technology such as computer, printer or telephone in order to prepare a statement or give instruction.

The Tribunal granted an extension for the response or comment on the information to 30 August 2021.

23 August 2021         The Tribunal receives by post to its Sydney office an unsigned letter dated 19 August 2021 purporting to be from the applicant and responding to issues raised in the 19 July 2021 letter from the Tribunal.

Address and email details on the letter did not match those on file with the Tribunal or Department systems.

The Tribunal wrote to the email address contained in the letter asking for the author to contact the Tribunal via an email address known on file or via telephone. No response is received.

Attachment B – Relevant text of the Tribunal’s 424A letter

19 July 2021

Dear [the applicant]

INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [the applicant]

I am writing on instruction from the Member conducting your review, in relation to the
application for review made by you in respect of a decision to cancel your Subclass
866 (Protection) visa.

In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

The Department’s file relating to your visa cancellation contains information which,
subject to your comments, may be adverse to your case. The information is the
subject of a certificate issued under s 438 of the Migration Act dated 11 May 2015
whereby the Department certified that disclosure of the material is contrary to the
public interest. However, the Tribunal does not consider the certificate valid. The
purpose of this letter is therefore to seek your comments or response to the
information to which the certificate is subject, which relates to internal departmental
correspondence about your cancellation matter.

The key points contained in the correspondence is summarised as follows:

• You were granted a protection visa in December 2010 on the basis of your

claimed membership of a particular social group of homosexuals. At that time
you claimed, among other things, that you could not return to Jordan because
your parents had threatened to kill you if you returned and did not stop living as
a homosexual.

• On 15 April 2013 you lodged a Partner visa application sponsoring your female

Jordanian spouse.

• Your 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.

• You departed Australia [in] January 2013 and advised in your outgoing

passenger card that you were returning to Jordan for two months to visit family
and friends, returning to Australia on 30 March 2013.

• Departmental notes/records indicate you intended to return to Jordan again.

• You were interviewed by a Departmental officer in Amman on 8 April 2014 and provided very limited information regarding your previous homosexual relationship (other than what was included in your protection visa application). Combined with your simplistic explanation about why you subsequently chose to marry a woman, the officer was not satisfied you were in a previous homosexual relationship.

This information is relevant to the review because, subject to your comments, it may
indicate that you provided incorrect information in your protection visa application in
breach of s 101(b) of the Act in key respects, including that you were a homosexual. If
the Tribunal is satisfied that was the case, the grounds for cancelling your visa would
be made out.

The information may also lead the Tribunal to determine that you do not have a well-founded
fear of persecution and if your visa was cancelled this would not be in breach
of Australia’s international legal obligations. These are relevant considerations when
determining whether or not the visa should be cancelled, if the Tribunal is satisfied the
grounds for cancellation are made out.

If the Tribunal so finds, these would be the reasons or part of the reasons for affirming
the decision under review.

ATTACHMENT C – 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.