1810049 (Refugee)

[2018] AATA 5040

1810049 (Refugee) [2018] AATA 5040 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810049

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Sean Baker

DATE:9 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2018 at 5:27pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Vietnam – incorrect information in the visa application – political opinion – opposition to government – religion – Catholic – land dispute – fear of arrest – fear of physical violence – illegal departure – decision under review set aside

LEGISLATION
Migration Act 1958, ss 5, 99 - 105, 107 - 109, 360

CASES
Mian v MILGEA (1992) 28 ALD 165
Saleem v MRT [2004] FCA 234
Singh v MIEA (unreported, Federal Court of Australia, 6 December 1994)
SZEEM v MIMIA [2005] FMCA 27

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his application for a protection visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Was there non-compliance as described in the s.107 notice?

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). Section 101 specifies that non-citizens must fill in or complete their application form in such a way that all questions are answered and no incorrect answers are given or provided.

8. The incorrect answers were particularised in the s.107 notice as follows.

   As a delegate of the Minister for Immigration and Border Protection, I consider that you did not comply with section 101 of the Migration Act 1958 (' the Migration Act') when you applied for a Protection (class XA) Protection (subclass 866) visa on 11 October 2011.

   As a delegate of the Minister for Immigration and Border Protection, I consider that you did not comply with section 101 of the Migration Act 1958 ("the Act") which states:

   Visa applications to be correct

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

   (a) all questions on it are answered; and

   (b) no incorrect answers are given.

   If this is the case, your visa may be cancelled under section 109 of the Migration Act 1958.

   I consider that there has been non-compliance with the following section of the Migration Act 1958:

   Non compliance with section 101

   Visa applications to be correct

   s101. A non-citizen must fill in his or her application form in such a way that:

   (a) all questions on it are answered; and

   section 101(a). This provision relevantly provides that "a non-citizen must fill in his or her application form in such a way that....all questions on it are answered."

   section 101(b). This provision relevantly provides that "a non-citizen must fill in his or her application form in such a way that...no incorrect answers are given."

   By operation of s99 of the Act, 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.

   Evidence - Form 866C — Application for an applicant who wishes to submit their own claims to be a refugee

   [In] March 2011 you arrived in Australia as an illegal maritime arrival.

   [The applicant] lodged an application for a XA — 866 Protection visa on 11 October 2011 and within the application form 866C you provided the following information:

   Question 1:

   Family name/s: "[name]".

   Given names/s: "[name]".

   Question 2: Date of birth: "[date]"

   Question 45: What is the name of the country's you have a fear of returning to?; 'Vietnam".

   Question 46: Why did you leave your country of nationality or if stateless, your country/s of residence? "See attached statement of claims".

   Question 47: What do you fear may happen to you or your accompanying family members if you back to your country of nationality or if stateless, your country/s of residence? "See attached statement of claims".

   Question 48: What harm, if any, have you experienced in your country of nationality or if stateless, your country's of residence? "See attached statement of claims".

   Question 49: Who do you think may harm/mistreat you if you go back to your country of nationality or if stateless, your country/s of residence? "See attached statement of claims".

   Question 50: Why do you think this will happen if you go back to your country of nationality or if stateless, your country/s of residence? "See attached statement of claims".

   Question 51: Do you think the authorities in your country of nationality or if stateless, your country/s of residence can and will protect you if you go back/ If not, why?: "See attached statement of claims".

   As part of your application you included a statement which stated in part the following:

   “I am a Roman Catholic. The Vietnamese Government do not support the Catholic religion in Vietnam.

   In [2008] I attended a religious gathering in [Town 1 in] Hanoi. The gathering was due to a land dispute between the [Town 1] parish and the Vietnamese government.

   I tried to enter the church to pray with the people I had arrived with. The Police officers and army soldiers refused to allow us to enter the church. They pushed us back. We tried to enter several times. I was pulled by a Police officer to a Police car. There were so many people within the crowd that the situation was very chaotic and I managed to escape.

   I was fearful of being arrested so I slept rough for a few days in a park and then stayed with a friend in Hanoi, though my friend became afraid for himself so I spent several weeks sleeping in the streets.

   I returned to Ho Chi Minh and lived in hiding until my brother returned from [another country] and he promised me he would get me out of Vietnam.

   Whilst in Ho Chi Minh I could not apply for a job in a large company because I feared the Vietnamese authorities may locate me. My sister in law informed me that two letters had arrived from the Administration Level of the Ward informing me to report to them. I believe this was related to my attendance at [Town 1].

   I believe that if I return to Vietnam I would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. I will be arrested, questioned and possibly harmed by the Vietnamese government because I attended at [Town 1] and am wanted for questioning. I have heard that people who were arrested over the [Town 1] incident were questioned and beaten by the police.

   I also left Vietnam without documentation. If I return to Vietnam I will be questioned by the Authorities, they will discover that I am wanted for questioning, that I politically opposed to the Vietnamese government and be arrested and tortured because I am a catholic.”

   65 Declaration: you declared; "the information I have supplied on or with this request and statement of claims is to the best of my knowledge is complete, correct and up-to date in every detail."

   Evidence — [Source] News Article dated [date]

   The Department of Immigration and Border Protection has evidence that in December, 2008, the [number] people who had been arrested at the [Town 1] vigil in [2008] received a suspended jail sentence and were freed. There is no evidence that any other people were arrested or charged because of the vigil at [Town 1] in [2008].

   Consideration regarding evidence

   Your Protection visa was granted to you on 03 October 2012 on the basis that you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed that if you returned to Vietnam you would be questioned by the Police because you left Vietnam without documentation. You claimed that you would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. You claimed you will be arrested, questioned and possibly harmed by the Vietnamese government because you attended a vigil at [Town 1] in [2008] and are wanted for questioning. You further claimed that you would be arrested and tortured because you are a Catholic.

   These claims were fundamental to the determination that you were a person to whom Australia has protection obligations. The information provided by you in support of your protection visa application was material to the determination that you were found to engage Australia's protection obligations As evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008, I consider that you were not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam, I consider that you did not have the adverse profile that you claimed when you applied for, and were granted a protection visa.

   Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition.

   I consider that the information before me supports that you contrived these claims to facilitate the grant of a Protection visa in Australia.

   Particulars of non compliance

   Given the evidence outlined above, I consider that you have not complied with section 101 of the Act because you have provided incorrect answers to the questions in your application form 866C for your application for a Protection (class XA) Protection (subclass 866) visa, as follows:

   Question 46: Why did you leave your country of nationality or if stateless, your country's of residence? You claimed that you would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. You claimed you were wanted for questioning about your attendance at a vigil at [Town 1] and would possibly be harmed by the Vietnamese government because you attended the vigil at [Town 1] in [2008]. You further claimed that you would be arrested and tortured because you are a Catholic. I consider this answer to be incorrect because evidence indicates that there were only [number] arrests at [Town 1] in [2008] and those arrested were freed in December 2008, I consider that you were not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam.

   Question 47: What do you fear may happen to you or your accompanying family members if you back to your country of nationality or if stateless, your countly/s of residence? You claimed that if you returned to Vietnam you would be questioned by the Police because you left Vietnam without documentation. You claimed that you would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. You claimed you will be arrested, questioned and possibly harmed by the Vietnamese government because you attended a vigil at [Town 1] in [2008] and are wanted for questioning. You further claimed that you would be arrested and tortured because you are a Catholic. I consider this answer to be incorrect because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008, I consider that you were not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam, I consider that you did not have the adverse profile that you claimed when you applied for, and were granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition.

   Question 48: What harm, if any, have you experienced in your country of nationality or if stateless, your country's of residence? You claimed that you were in hiding from [2008] until you left Vietnam in 2011 and that you did not apply for jobs in large companies because you feared the authorities may find you. You claimed that you had received two letters from the Administration Level of the Ward informing you to report to them and believed this was related to your attendance at [Town 1]. I consider this answer to be incorrect because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. I consider that you did not have the adverse profile that you claimed when you applied for, and were granted a protection visa.

   Question 49: Who do you think may harm/mistreat you if you go back to your country of nationality or if stateless, your country/s of residence? You claimed that if you returned to Vietnam you would be questioned by the Police because you left Vietnam without documentation. You claimed that you would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. You claimed you will be arrested, questioned and possibly harmed by the Vietnamese government because you attended a vigil at [Town 1] in [2008] and are wanted for questioning. You further claimed that you would be arrested and tortured because you are a Catholic. I consider this answer to be incorrect because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. I consider that you were not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam, I consider that you did not have the adverse profile that you claimed when you applied for, and were granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anticommunist political opinion or religion, but was a protest about land acquisition.

   Question 50: Why do you think this will happen if you go back to your country of nationality or if stateless, your country/s of residence? You claimed that if you returned to Vietnam you would be questioned by the Police because you left Vietnam without documentation. You claimed that you would face a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion. You claimed you will be arrested, questioned and possibly harmed by the Vietnamese government because you attended a vigil at [Town 1] in [2008] and are wanted for questioning. You further claimed that you would be arrested and tortured because you are a Catholic. I consider this answer to be incorrect because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. I consider that you were not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam, I consider that you did not have the adverse profile that you claimed when you applied for, and were granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition.

   65 Declaration: you declared; "the information I have supplied on or with this request and statement of claims is to the best of my knowledge is complete, correct and up-to date in every detail."

   I consider this declaration to be incorrect due to the incorrect answers to questions 46 to 50, above.

   The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice, and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

9. The s.107 notice then included a section titled ‘Possible reassessment of non-refoulement obligations’. This section does not appear to relate to the decision about non-compliance in s.108, but to the exercise of the discretion to cancel the visa under s.109 because it states as much immediately below the heading:

   The response you provide to the information/observations made and put to you in this Notice may be used to re-assess Australia's non-refoulement obligations in relation to you.

   Your response to the following additional information will also be considered: (my bolding)

   During your interactions with the Department throughout the processing of your claims for refugee status, you maintained that you were born on [date] and that your brother, [name], was born on [date].

   However, the Department has received conflicting evidence that your brother was born on [earlier date] and not on [date] as previously claimed by you.

   You provided a timeline of events the correlated with your date of birth and the date of birth of your brother. For example, as part of an Independent Protection Assessment (IPA), you were interviewed by an independent reviewer on 20/02/2012. During that interview, you reiterated that when your father passed away in [year], you were [age] years old and that after that, your brother, then aged about [age], looked after you and later accompanied you to Australia on the same boat from Vietnam. The independent reviewer noted that you and your brother were "interconnected as [you] are each others only next of kin with no siblings and [your] parents deceased".

   However, the conflicting information received by the Department, namely that your brother was born on [earlier date] and not on [date], could lead to a finding that the timeline of events provided by you during your Protection visa application process is not correct. This could lead to doubts about the credibility of your claims for protection and the reliability of your testimony.

   Furthermore, as noted above, country information indicates that the [number] persons arrested at the [Town 1] vigil in [2008] were all freed and that there is no evidence to indicate that any other persons were arrested or charged because of their participation of a vigil at [Town 1] in [2008]. Country information does not appear to support your claim that upon return to Vietnam, you "would be at a real risk of facing serious harm by the Vietnamese Police and other Government Authorities" because they think you are politically opposed to them as a Catholic and a supporter of the Catholic Church over the land dispute at [Town 1].

   Given this and the fact that you have provided a timeline of events that appears to be incorrect, it could be considered that your situation in Vietnam was not and is not as you have portrayed it during your Protection visa application process and that you fabricated your claims in order to enhance your chances of being granted protection in Australia. This may also lead to a finding that Australia does not have non-refoulement obligations in relation to you.

   Reasoning

1. I have come to the conclusion that there was no non-compliance as particularised in the s.107 notice.

2. It is established that it is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] The decision maker is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice.[2]

   [1] Saleem v MRT [2004] FCA 234.

   [2] SZEEM v MIMIA [2005] FMCA 27.

3. In my view, the NOICC, and the decision on which it is based, appears to be premised on a fundamental mischaracterisation of the applicant’s claims. It is clear, from the brief part of his statement excerpted in the NOICC, that the applicant has not claimed that he was charged, arrested or convicted in relation to the protest, but only that he was “pulled by a police officer to a Police car. There were so many people within the crowd that the situation was very chaotic and I managed to escape”.

4. The ‘evidence’ provided in the NOICC is that [number] people were convicted and received suspended jail sentences and were freed. The delegate goes on to state that there is no evidence that any other people were arrested or charged because of the vigil at [Town 1] in [2008]. However, this information does not contradict the claims of the applicant, because he had not claimed to have been arrested, charged or convicted. The evidence, as particularised in the NOICC, does not establish whether the applicant’s claims are correct or not.

5. I have considered the particulars of the non-compliance below.

   Question 46

6. The delegate reasoned that the applicant had answered question 46 incorrectly because the evidence indicates that there were only [number] arrests at [Town 1] in [2008] and those arrested were freed in December 2008, and the delegate considered the applicant was not wanted by the authorities for his participation at the [Town 1] vigil. Furthermore, the delegate reasoned, Catholics are not arbitrarily arrested and tortured in Vietnam.

7. The evidence does not establish these conclusions. Firstly, as above, the evidence referred to in the s.107 notice does not disprove the applicant’s claim that he fears a real chance of being harmed by the Vietnamese authorities for reasons of political opinion and religion and that he is wanted for questioning about his attendance at a vigil at [Town 1] and would possibly be harmed by the Vietnamese government because he attended that vigil at [Town 1] in [2008], nor that he would be arrested and tortured because he is a Catholic. As above, he did not claim to have been arrested, but wanted for questioning – insofar as the evidence was particularised in the s.107 notice, the news article or articles do not indicate one way or another if other people are wanted in relation to the vigil. The number of those arrested does not appear material to the applicant’s claims either because it does not disprove he was there or was detained for a short while by a police officer. Nor does the evidence reasonably appear to indicate that the applicant is not wanted by the authorities for his participation – the evidence as particularised offers no logical basis on which to make this conclusion. Further, the delegate appears to place weight on the fact these [number] people were ‘freed’ – but the evidence does not demonstrate this either, but that they were convicted and released on suspended sentences – this is not ‘being freed’, but a form of sanction from the court – whilst it could be argued that it is a lenient sentence, or may indicate the authorities taking a lenient approach, this is not how it is reasoned, but that they have been ‘freed.’ Further, the alternative may also be true and suspended sentences may be a mechanism for the Vietnamese authorities controlling and harassing persons. The delegate also reasons that Catholics are not arbitrarily arrested and tortured in Vietnam – but does not explain how the evidence establishes this.

   Question 47

8. The delegate reasoned that the applicant had answered question 47 incorrectly because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. The delegate considered that the applicant was not wanted by the authorities for his participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam. The delegate also reasoned that the applicant would not be questioned by police because he left Vietnam without documentation/unlawfully. The delegate considered that the applicant did not have the adverse profile that he claimed when he applied for, and was granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition.

9. The evidence does not establish these conclusions. As above, the number and status of those arrested does not relate directly to the applicant’s claims. The evidence does not establish that the applicant is not or was not at the time of the decision wanted by the authorities, nor does it establish or address the treatment of Catholics in Vietnam. For these reasons the evidence does not establish or suggest that the applicant did not have the adverse profile that he claimed when he applied for, and was granted a protection visa. The conclusion that the arrests and detentions at the [Town 1] vigil were not for reasons of political opinion or religion appears particularly curious given that the event in [2008] is described as a prayer vigil at the site of a [specified religious location] in Hanoi and former Church site. The applicant himself, in paragraph 2 of his excerpted statement above, stated that “The gathering was due to a land dispute between the [Town 1] parish and the Vietnamese government”.  Not only does there appear to be an undetailed reading of the country information and/or a wilful ignoring that persecution can be for many reasons as long as there is one or more essential and significant reason connected with the Convention, but the applicant in his statement identified that this was, amongst other things, a land dispute, and therefore he acknowledges its due to a land dispute between church and government, and this is not incorrect information.  in relation to the suggestion that the applicant’s claims that he would face questioning also for his unlawful departure/departure without documentation, the delegate does not provide any specific reasons for why that is so and I find that the delegate hasn’t established the breach by way of the evidence.

   Question 48

10. The delegate reasoned that the applicant had answered question 48 incorrectly because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. The delegate considered that the applicant did not have the adverse profile that the applicant claimed when he applied for, and was granted a protection visa.

11. For the reasons above I find that the evidence does not establish the conclusions reached.

12. Further, the delegate refers to further claims the applicant made in respect of question 48, namely that the applicant was in hiding from [2008] to the time he left Vietnam in 2011, that he did not apply for jobs in large companies because the authorities may find him and that he received two letters from the Administration level of the Ward which he believes were about his attendance at the vigil. The delegate considers this to be part of the incorrect information provided by the applicant but the delegate has not provided any reasons for why that is so and I find that there is no evidence to establish the breach in relation to these claims.

    Question 49

13. The delegate reasoned that the applicant had answered question 49 incorrectly because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. The delegate considered that the applicant was not wanted by the authorities for his participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam. The delegate considered that the applicant did not have the adverse profile that he claimed when he applied for, and was granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition. The delegate goes on to particularise the applicant’s claim that he would be questioned by the police because he left Vietnam without documentation and the delegate considers this to be part of the incorrect information provided by the applicant but the delegate does not provide any specific reasons for why that is so.

14. For the reasons above I find that the evidence does not establish the conclusions reached.

    Question 50

15. The delegate reasoned that the applicant had answered question 50 incorrectly because evidence indicates that there were only [number] arrests from the [Town 1] vigil in [2008] and those arrested were freed in December 2008. The delegate considered that the applicant was not wanted by the authorities for your participation at the [Town 1] vigil and furthermore, Catholics are not arbitrarily arrested and tortured in Vietnam. The delegate considered that the applicant did not have the adverse profile that he claimed when he applied for, and was granted a protection visa. Furthermore the arrests and detainments in relation to the [Town 1] vigil in [2008] were not for reasons of holding an anti-communist political opinion or religion, but was a protest about land acquisition. The delegate goes on to particularise the applicant’s claim that he would be questioned by the police because he left Vietnam without documentation.

16. For the reasons above I find that the evidence does not establish the conclusions reached.

17. The delegate found that the declaration by the applicant at question 65 that the information supplied was complete, correct and up-to-date in every detail was incorrect due to the incorrect answers to questions 46 to 50. For the reasons above I find that the evidence does not establish the conclusion reached.

18. I have found above that the conclusions reached by the delegate are not supported by the evidence, and I find that the particulars of non-compliance do not establish that the applicant provided incorrect information in the manner identified in the s.107 notice. Therefore, there is no breach and no power to cancel.

19. It may be argued that the information included in the s.107 notice under the heading ‘Possible reassessment of non-refoulement obligations’ is or could be part of the particulars of non-compliance. I do not believe they are, because as above I consider that the s.107 notice indicates these matters do not relate to the decision under s.108. But even if these matters are included, I do not accept that they provide any basis whatsoever for finding that the applicant provided incorrect information to the questions identified and particularised in the s.107 notice, that is, questions 46 – 50 and 65. This information relates to the applicant’s brother, and whilst their claims may have been interrelated, it is not logically sustainable to argue that the provision of false information by the brother about his date of birth indicates that the applicant was lying in relation to the above questions. There is a suggestion that the date of birth issue leads to ‘doubts about the credibility’ of this applicant’s claims and the timeline of events – I can find no logical or sustainable reason why this would be the case, or how this could possibly lead to a conclusion that the applicant had answered the above questions incorrectly. The delegate reasons that during the interview with the reviewer, the applicant reiterated that when his father passed away in [year], he was [age] years old and that after that, his brother, then aged about [age], looked after him and later accompanied him to Australia on the same boat from Vietnam’. It is not logical to purport that the applicant’s brother being ‘around [age]’, or [older by this discrepancy], detracts from the brother helping him to leave Vietnam and therefore from the claims of the applicant. This is not incorrect information that the applicant has given.

20. I find that there has not been non-compliance in the manner particularised in the s.107 notice. I find that the s.107 notice does not particularise any answers that the applicant incorrectly gave in his protection visa application as specified in s.101(b). As already observed, there is no capacity to consider other non-compliance than that particularised in the s.107 notice. Therefore, I find, the cancellation power in s.109 was not enlivened.

21. I also think it important to state that this case seems to indicate a willingness to revisit primary protection decisions on the basis of insufficient evidence to establish that those protection claims are untrue. Indeed, the decision record reads like a revisiting of the original decision to grant the applicant a protection visa, rather than a case in which definitive evidence of non-compliance has been obtained. This is clearly not the purpose of s.109, nor could this be legally sustained. There is a great difference between weak claims as opposed to incorrect information having been provided for the purposes of s.101 such that a visa may be cancelled under s.109.

22. I am also concerned by some of the wording in the decision. The officer conducting the ITOA speaks of the applicant being told that country information ‘does not support his claim’. This is wrong in law. For s.109 cancellations the Minister must establish the non-compliance; it is not for the applicant to have to satisfy the decision maker that the non-compliance did not occur. [3]

    Conclusion on non-compliance

    [3] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, 6 December 1994) at [14].

23. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Other matters

24. Given that the applicant was in detention, which is somewhat unusual in these cases, I thought it prudent to determine whether there were any character or other concerns that were not evident on the file. The Tribunal wrote to the Department, seeking information on whether the Department was aware of the applicant being charged or convicted of any criminal offences; or whether there was any information about how the applicant was granted a protection visa – it appears that [the applicant] was refused at the department stage and may have had this overturned at the IPAO. In response the Department provided an AFP check with the result ‘not recorded’. If the Department had harboured any concerns about the applicant not apparent on the file, they have not shared these with me.

    Conclusion

25. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Sean Baker
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.