1810282 (Refugee) - [2019] AATA 5814

1810282 (Refugee) [2019] AATA 5814 (21 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810282
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE:21 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 21 June 2019 at 3:37pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – race – Bidoon born in Kuwait, living in Iraq – incorrect information provided in protection application – claimed by wife to be Iraqi citizen – documentation – fear of harm by militants and extremist groups and long-term discrimination as a stateless Bidoon – voluntary travel to Iraq – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
CASES
El Jejieh v MHA (No 2) [2019] FCCA 840
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].
MZAFZ v MIBP [2016] FCA 1081
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Zhao v Minister for Multicultural Affairs [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

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).
The delegate cancelled the visa on the basis that the applicant breached s.101 of the Act by providing incorrect answers about his country of citizenship and his fear of harm in his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a [age]-year-old male who resided in Kuwait, Syria and Iraq before travelling to Australia in 2010. He is married with [number] children. He arrived in Australia by boat [in] October 2010 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a stateless Bidoon born in Kuwait who had spent most of his life in Iraq.
The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 11 November 2010 and 10 January 2011. In those interviews and statements he stated that he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1810282 (Refugee)

Details

AGLC: 1810282 (Refugee) [2019] AATA 5814
Case: [2019] AATA 5814
Decision Date: 21 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of a stateless Bidoon man born in Kuwait, who had arrived in Australia in 2010. The applicant had been granted a protection visa based on his claims of being stateless, born in Kuwait, and fearing harm in Iraq due to his background and his father's former political affiliations. The Minister's delegate initiated cancellation proceedings, alleging the applicant had provided incorrect information regarding his citizenship and his fear of harm in Iraq, and had voluntarily travelled to Iraq after being granted the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) such that his protection visa could be validly cancelled under section 109. This involved determining if the notice issued under section 107 of the Act, which outlines the grounds for cancellation, was sufficiently particularised to allow the applicant to understand and respond to the allegations of providing incorrect information and failing to notify of changes in circumstances. The Tribunal also considered whether the applicant's returns to Iraq constituted non-compliance as alleged by the delegate.

The Tribunal applied principles from *Zhao v Minister for Immigration and Multicultural Affairs* and *Minister for Immigration and Citizenship v Brar*, which establish that a section 107 notice must provide sufficient particulars to fairly inform the visa holder of the basis of the cancellation consideration, enabling them to adequately respond. The Tribunal found that the section 107 notice in this case, which detailed the information provided by the applicant in his protection visa application and the delegate's reasons for considering it false, was sufficiently particularised. The applicant had responded to the notice, admitting to returning to Iraq but denying providing incorrect information, and subsequently provided further explanations to the Tribunal.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. While the Tribunal found the section 107 notice to be valid, the subsequent analysis of the applicant's claims regarding his nationality and the circumstances of his returns to Iraq led to this outcome, although the specific reasoning for setting aside the cancellation is not fully detailed in the provided text.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. BACKGROUND The applicant is a [age]-year-old male who resided in Kuwait, Syria and Iraq before travelling to Australia in 2010. He is married with [number] children. He arrived in Australia by boat [in] October 2010 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a stateless Bidoon born in Kuwait who had spent most of his life in Iraq. The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 11 November 2010 and 10 January 2011. In those interviews and statements he stated that he was the son of a former Baath party member. He states his father was shot and killed in Iraq in 2007, leading the applicant and his family to flee to Syria where he remained for three years before returning to Basra and then travelling to Australia. At his initial entry processing on 11 November 2010, he was found to prima facie engage Australia’s protection obligations. On 9 January 2011, a Refugee Status Assessment Officer (RSA officer) interviewed the applicant, assessed his claims and found him to meet the definition of a refugee. The Minister exercised his power under s.46A(2) of the Act to allow the applicant to lodge a protection visa. On the basis of information provided in his protection visa application and interviews, the applicant was granted a Class XA Subclass 866 Protection visa on 21 November 2011. On 31 July 2017 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection was considering cancelling his protection visa on the ground that it considered he had provided incorrect information in his protection visa application about his citizenship and his fear of harm in Iraq. The applicant responded to the NOICC on 31 August 2017 and 6 September 2017. In those responses he agreed he had returned to Iraq during each of the periods identified by the delegate, but denied providing any incorrect information in his visa application. On 9 April 2018, the delegate made a decision to cancel the applicant’s resident return visa. LEGISLATIVE FRAMEWORK Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. THE REVIEW APPLICATION AND PROCEDURAL ISSUES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I find the s.438 certificate to be invalid. As the substance of the information in the document has already been disclosed to the applicant in the s.107 notice and the delegate’s decision, I have not provided the source document to the applicant.CONSIDERATION AND ANALYSISIs the s.107 notice sufficiently particularised? In considering whether the s.107 notice in this case is sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs[3]: Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.[4] [3] [2000] FCA 1235.[4] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]‑[26]. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[5] [5] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57]. Further the Federal Magistrates Court in SZEEM v Minister for Immigration stated: the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[6][6] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38]. I note that the s.107 notice sets out in some detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. In the present matter, I am 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. The applicant was represented during the visa cancellation process. He responded to the s.107 notice on 31 August 2017 and 6 September 2017. In those responses he agreed he had returned to Iraq during each of the periods identified by the delegate, but denied providing any incorrect information in his visa application and sought to explain his reasons for returning to Iraq in 2012 and 2013. In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 14 June 2019, the applicant provided further information about his nationality and the circumstances of his returns to Iraq in each of 2012 and 2013.WAS THERE NON-COMPLIANCE AS DESCRIBED IN THE S.107 NOTICE?