Evidence
Evidence Before The Court
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 correct101. 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 101Visa applications to be corrects101. A non-citizen must fill in his or her application form in such a way that:(a) all questions on it are answered; andsection 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 evidenceYour 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 complianceGiven 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.
Decision
Reasons for decision
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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Sean BakerMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.
Ratio Decidendi
Legal Principle Established
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Sean BakerMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.