1811868 (Refugee) - [2019] AATA 6013

1811868 (Refugee) [2019] AATA 6013 (23 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811868
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE:23 July 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 23 July 2019 at 11:29am

CATCHWORDS
REFUGEE – cancellation – protection visa – incorrect information in visa application – nationality – stateless Bidoon – Iraqi national – subsequent correction of error – ‘makremiayah’ assistance package – fear of harm from Shia militias – voluntary return to Iraq – passage of time since father’s death – changed security situation – consideration of discretion – no bearing on decision to grant visa – significant mental health issues – non-refoulement obligations – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 119
Migration Regulations 1994 (Cth), r 2.41

CASES
DMH16 v MIBP [2017] FCA 448
Jalal v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 779
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
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, his daughter’s country of citizenship and his fear of harm in his visa application. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 16 July 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 2012. He is married with one daughter. He arrived in Australia by boat [in] April 2012 and lodged an application for a protection visa on 10 August 2012. In that application he identified himself as a Bidoon born in Al Jahra, Kuwait who had spent most of his…

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 1811868 (Refugee)

Details

AGLC: 1811868 (Refugee) [2019] AATA 6013
Case: [2019] AATA 6013
Decision Date: 23 July 2019

CaseChat Overview and Summary

The Tribunal reviewed a decision to cancel the protection visa of an applicant who had arrived in Australia in 2012. The applicant, who identified as a stateless Bidoon and an Iraqi national, was granted a protection visa in 2013. Subsequently, the Department of Immigration and Border Protection initiated cancellation proceedings, alleging the applicant had provided incorrect information in his visa application concerning his citizenship and fear of harm in Iraq, stemming from identity documents submitted for a partner visa application.

The legal issues before the Tribunal were whether the notice of intention to consider cancellation was sufficiently particularised, and whether the applicant had indeed failed to comply with the requirements of the *Migration Act 1958* as alleged in the notice. The Tribunal considered the principles of particularity required in such notices, drawing on case law from the Federal Court and Federal Magistrates Court, which stipulate that a notice must adequately inform the visa holder of the basis of the proposed cancellation to allow for a proper response.

The Tribunal found that the notice issued under section 107 of the *Migration Act 1958* was sufficiently particularised, providing the applicant with adequate detail regarding the alleged incorrect information and the basis for that assertion. While the Tribunal acknowledged that the applicant had provided incorrect information in his visa application, it ultimately concluded, after considering all relevant circumstances, that the visa should not be cancelled.

Accordingly, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel it.

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 2012. He is married with one daughter. He arrived in Australia by boat [in] April 2012 and lodged an application for a protection visa on 10 August 2012. In that application he identified himself as a Bidoon born in Al Jahra, Kuwait who had spent most of his life in Iraq. He stated he held Kuwaiti citizenship at birth but became stateless in 1987. He stated he was currently stateless and did not hold citizenship of any other country. The applicant provided a written statement with his protection visa application and was further interviewed about his claims on 24 and 30 April 2012 (the entry interview) and 15 August 2012 (the protection interview). In those statements and interviews he stated that his family was forced into Iraq in about 1993 by Kuwaiti authorities where they resettled with many other Bedouin families in Al Zubayr. He stated that in 1994 his father was forced to join the Ba’ath Party and commenced working for that party, wearing the Ba’ath Party uniform and driving a Ba’ath Party vehicle. In March 2003 the US invaded Iraq and the Ba’ath Party was removed from power. In the aftermath Shia militias who had been repressed by the former Ba’ath regime began to exact punishment on members of the former regime. Like many other members of the Ba’ath Party, his father abandoned the party and started working as a [Occupation 1]. In about 2004, his father began receiving death threats. In 2007, his father was shot and killed by the Shia militia Jaish al-Mahdi. The family fled to Syria three days later where they remained until 2011, when the situation in Syria deteriorated. They returned to the border of Al Zubayr as they were unable to relocate to another part of Iraq without permission from the Mayor and did not want to draw attention to themselves. They went to work [at a location] but were unable to register the [location] in their name because they were Bedouin. A friend, [Mr A], registered the [location] and allowed them to [work there]. As a Bedouin the applicant was not afforded the rights of an Iraqi citizen and in March 2012 the applicant fled Iraq. On 4 December 2012, a delegate of the Minister assessed his claiMs Bnd found him to meet the definition of a refugee and the applicant was granted a Class XA Subclass 866 Protection visa on 19 February 2013. On 30 May 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 (the Department) 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. This arose because of identity documents relating to the applicant’s daughter that were submitted to the Department in support of a partner visa application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Alison MurphyMemberATTACHMENT – 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 was provided with the Departmental file relating to the cancellation which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. Files relating to the applicant’s protection visa application were also provided to the Tribunal. 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:[1] 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.[2] [1] [2000] FCA 1235.[2] 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’.[3] [3] 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.[4][4] 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 3 August 2017. In that response he agreed he had returned to Iraq during the period 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 2013. In submissions made to the Tribunal and his oral evidence at the Tribunal hearing on 16 July 2019, the applicant provided further information about his nationality and the circumstances of his return to Iraq in 2013.Was there non-compliance as described in the s.107 notice?