1815740 (Refugee) - [2020] AATA 1288

1815740 (Refugee) [2020] AATA 1288 (29 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815740
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Irene O'Connell
DATE:29 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – Federal Magistrates Court remittal – religion – Sunni Muslim – race – Bedouin – particular social group – Bedouins in Iraq – ground for cancellation – incorrect information in visa application – country of citizenship – claimed statelessness – Iraqi citizenship – claimed adverse profile – voluntarily returned to Iraq three times without any apparent issues of harm – requisite state of mind – distinction between ‘Bedouin’ and ‘Bidoon’ – sufficiently particularised notice – consideration of discretion – grant of visa not based on claimed statelessness – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
SZEEM v Minister for Immigration [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
BACKGROUND

This is a second review of a decision made on 15 February 2017 by a delegate of the Minister for Immigration to cancel the applicant’s 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate’s decision to cancel the applicant’s protection visa was affirmed on review by the Tribunal (differently constituted) on 20 July 2017. The applicant appealed the Tribunal’s decision to the Federal Magistrates Court and on 25 May 2018 the Court made consent orders requiring the Tribunal to reconsider the matter.
The applicant, formerly from Kuwait and Iraq and claiming to be stateless, arrived at Christmas Island as an Irregular Maritime Arrival [in] May 2012 on a boat codenamed [Boat ID]. He lodged an application for a protection visa on 25 August 2012 and was granted the visa on 5 April 2013.
The applicant’s visa was cancelled on the basis that he had not complied with s.101 of the Act. Section101 requires visa holders to complete their applications in such a way that all questions are answered and no incorrect answers are given.
Section 109(1) empowers the Minister to cancel a visa if the visa holder has failed to comply with this section of the Act. However before cancelling a visa a decision maker is required to issue the applicant with a notice of intention to cancel the visa. This notice must be issued as described in s.107 of the Act. Section 108 of the Act requires the decision maker to consider an applicant’s response to the notice in determining whether there has been non-compliance in the manner set out…

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.

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Details

AGLC: 1815740 (Refugee) [2020] AATA 1288
Case: [2020] AATA 1288
Decision Date: 29 April 2020

CaseChat Overview and Summary

The applicant, an Iraqi national of Bedouin ethnicity and Sunni Muslim faith, sought judicial review of a decision to cancel his protection visa. The dispute arose from the applicant's claim of statelessness and his alleged provision of incorrect information in his visa application, which formed the basis for the cancellation under section 109 of the Migration Act 1958 (Cth). The matter came before the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the applicant had provided incorrect information in his visa application, and if so, whether the cancellation of his protection visa was a reasonable exercise of discretion. The court was required to consider the applicant's claims of persecution as a Bedouin and Sunni Muslim in Iraq and Kuwait, and the distinction between "Bedouin" and "Bidoon" in the context of his claimed statelessness.

The court reasoned that the previous Tribunal had not exercised its discretion reasonably in cancelling the visa. It noted that the applicant's claim of statelessness had been rejected by the original delegate and was not a factor in the initial grant of the protection visa. The visa had been granted on the basis of the applicant being an Iraqi national. Therefore, the court concluded that the ground for cancellation, based on incorrect information regarding statelessness, was not a valid basis for cancelling the visa, particularly as the applicant had voluntarily returned to Iraq on three occasions without apparent harm.

The court set aside the decision to cancel the applicant's protection visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Cancellation of a visa under s.109 of the Act is discretionary and in exercising this discretion a decision maker is required to have regard to prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations). The Court in issuing consent orders for reconsideration of this matter formed the view that the previous Tribunal had not exercised this discretion reasonably.EVIDENCE BEFORE THE TRIBUNAL The Tribunal has the following information before it:·Department file [number] containing a summary of the applicant’s arrival entry interview, his application for a protection visa, supporting documentation and the decision record of the delegate granting the visa. ·Department file [number] containing the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant, the applicant’s response to this notice (dated 7 August 2016), the decision record of the delegate and an International Treaties Obligation Assessment.·Tribunal file (Number 1702643) containing submissions made by the applicant to the previous Tribunal and supporting documentation, an audio recording and transcript of the applicant’s hearing with this Tribunal and the decision record of the Tribunal.Protection visa application The applicant lodged his protection visa application on 25 August 2012 and attached to it a lengthy statement of claims. His migration agent also provided a lengthy submission setting out relevant country information in respect to Bidoons. In his responses to several questions set out in the protection visa application form he stated Please refer to my attached statement. This statement was as follows:Background InformationMy name is [the applicant] and I am a [age] year old male born in [Kuwait]. My ethnicity is Arab (Bedouin) and my religion is Sunni Muslim. I am married and have [number of children]. I have [number of siblings] in Iraq. My father, [and number of siblings] remain in Kuwait.Why I left my home country: I lived in Kuwait as a Bedouin, and I lived a nomadic life. But we were persecuted by the government of Kuwait because of being Bedouin. We did not have rights and could not get citizenship. I suffered harassment continuously, taunting that I had no citizenship, no rights, that I came from no place, it was degrading and humiliating. They did not issue us marriage certificates or birth certificate.When I was a teenager, when I got a job as a [Occupation 1] for the Kuwait [government]. They noticed my skills at sports, especially [Sport 1], and my role became to represent them in competitions. In the 1980's the attitude of the government changed and they began to ostracise Bedouins. Towards the end of the 1980's they started to restrict our employment and kick us out of [our jobs] for any reason. They restricted education and I had to stop going to school. We could not drive a car. They restricted medical treatment. They were scornful of us. Then in 1991 they threw me out of [my employment] and said I could not get my job back unless I could provide citizenship papers. I was very angry at the injustice, but more than that I was sad and upset, as I had devoted myself to my job and enjoyed and excelled at it.They said that all Bedouins must bring their citizenship or they must leave. Some of us were asking for our rights, a group of us went [to] ask for our jobs back, and they arrested us. They went and collected me and my wife and children, together with many other Bedouins, and drove us to the border. We stayed in a camp ten days and then were given a card to reside temporarily in Iraq. Why I left my country of former habitual residence: In Iraq I suffered harassment and persecution because I am Bedouin and Sunni, so they regarded me as Kuwaiti. They used to identify us by our accents and harass us. They would abuse me and swear at me. I used to go to a Sunni Mosque and they prevented me from going there. They closed three Sunni mosques. There was only one left and that one was under threat of being bombed at any time by the Shia militia. They are a radical militia group named Hezbolah, Tha'r Allah and other parties. They threatened me and my family. They kidnapped my son and took him to a football playing ground and broke his hand, three fingers, and cut his head with a razor. They left him there and a passerby took him to the hospital. He needed 30 stitches in his head. They tried to kidnap my other son but he escaped. They also used to write on the wall slogans that we are Wahabi and nonbelievers. They threw written threats inside my home saying that I either convert to Shia faith and abandon Sunni, or we have to leave, or we will kill you. Why I cannot relocate: I cannot return to my country of Kuwait because I am stateless, so there is no place in Kuwait for me. I have no rights to live there and no right to return. I cannot live in any part of Kuwait, even though I was devastated to be expelled. I cannot relocate to another part of Iraq because for the Bedouin there is no place to go. Also the Shia are majority in the south of Iraq. If we go to the south they will arrest us. Gangs from the north will especially target me if they know I am coming from the south. What I fear might happen if I go back to my home country and/or my country of former habitual residence: I am stateless and have no rights to return to any country. I cannot return to Kuwait because I have no right to go there, even though for me it is my home country. If I return to Iraq I fear that I will be arrested and they will kill me.Who I think will harm or mistreat me if I go back: If I return to Iraq I will be harmed or mistreated by the Iraqi government. The Shia militia will harm me and mistreat me. If I return to Kuwait I will be harmed and mistreated by the government. Why I believe they will harm or mistreat me if I go back: I am being harmed and mistreated because I am a Bedouin and a Sunni. Why I believe the authorities in my home country and/or my country of former habitual residence will not protect me if I go back: The Iraqi government is made up of parties and militia and these are the persons persecuting me. In Kuwait the government is the one who expelled me and I cannot go there, they do not want me there and will not protect me if I am there. Why I think I will suffer significant harm: I will suffer significant harm because I am a Bedouin and Sunni, and because I am stateless and have no place to live safely without harm. Protection visa grant

Decision

Reasons for decision

The Tribunal considers that given that the incorrect information provided by the applicant that he was stateless was rejected by the delegate and was not part of the reason for the grant of the visa, and that the protection visa was granted on the basis that the applicant was an Iraqi national, the applicant’s protection 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.Irene O'ConnellDeputy Division Head.

Ratio Decidendi

Legal Principle Established

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