1816638 (Refugee)

[2018] AATA 4657

1816638 (Refugee) [2018] AATA 4657 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816638

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:8 November 2018

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.

Statement made on 08 November 2018 at 3:26pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Lebanon – non-compliance – incorrect information in protection visa application – voluntary travel to Lebanon after claiming fear of persecution – visited ill parents – change in security situation in home town – political instability – concern for welfare of parents outweighed fears – discretionary power to cancel visa – decision under review set aside

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 33

Migration Act 1958 (Cth), ss 101, 107, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291

Zhao v MIMA [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

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).

   Background and Evidence

   The information

2. The applicant first arrived in Australia [in] January 2013 on a [temporary] visa. He lodged an application for a protection visa on 19 November 2013, which was granted on 26 March 2015.

3. In his protection visa application Form 866C, the applicant made the following claims in response to questions 42-48:

   I am seeking protection in Australia so that I do not have to go back to Lebanon.

   Since 2011 life has not being the same in Lebanon. We live the day not knowing we will survive the next, unable to work, study, or even go to the grocery shop to buy our groceries, being surrounded by snipers, we feel scared to live in the only place we feel safe in, that we call home, constantly hearing people getting targeted by snipers in their houses or while going to work or schools, for nearly 3 years there has being an on & off war, bombing of houses and killing of young and old between Salafi (Al Qaeda) targeting Alawite in North Lebanon. I had no choice but look for my future.

   Those Salafists represent more than 90% of Tripoli population, while my people Alawites represents less than 3 %, so even the security forces in Tripoli obey those Salafists, either because they belong to the same believe or because of the corruption. Previously like two years back, the army forces were able to defend my suburb and able to protect us, but now often all the support those Salafists getting from their Allies, they became stronger than the Lebanese army and the army had to retreat and leave us facing our destiny.

   I am not a sectarian and I don’t like to be one, but the Lebanese political system is built on religious division of Lebanese people, so each region in Lebanon is taken by specific sectors of different believes. So am safe only if am among my Alawais in Jabal Mohsen and Jabal Mohsen is under attack and siege by Salafis, and Al Qaeda supporter in Lebanon.

   Because of the crisis in Syria, those Salafis consider every Alawite is a Bashar Al Assad supporter because Al Assad is Alawite as well, and since we are the minority in Lebanon we are easy to be targeted by those Salafis that want take revenge from Al Assad killing us. Beside that there is many fatwa saying that every Salafi must kill at least one Alawite to gain the paradise, and if he rapes one Alawite woman God will reward him with a seventy virgin in the Heaven to serve his desires.

   Once I was going to [University 1] to attend my usual classes. I was attacked by group of Salafis, they took my I.D. card and as soon as they found out I belong to Alawites, they start beating me all over my body, swearing at what I believe, accusing me as Bashar Al Assad supporter, then one of them pull his knife stabbed me across my arm and left me beaten and they ran away.

   Death is my biggest fear that would happen to me the moment I go back to my country, especially after the terrorist bombing of two mosques located in Tripoli occurred on 23/08/13 accusing the Alawites for doing it. This initiated a lot of (fatwa Jihad) to come out against us that considering Alawites blasphemous, and should be slaughtered, raped and to destroy everything owned by Alawites.

   Many of the community are continuously being attacked by Salafis. My cousin was killed, some of my friends were shot down and my family left homeless with a [disabled sibling] and now my family with all the Alawites in Tripoli are living under siege by the Salafis and without basic facilities; water, electricity, sufficient food. Only living with what the army supply.

   (Sic)

4. On 27 February 2014, the applicant submitted a written statement in support of his application for a protection visa. In that statement, the applicant essentially reiterated his claims in his application and provided the following additional information.

5. Many of his friends were captured, tortured, and shot in their legs. His cousin was shot dead in South Lebanon by one of the followers of Ahmad Al-Assir, and another cousin is now disabled as a result of injuries he had sustained. The applicant was struggling to continue his studies in [University 1] during the ‘cease fire’ and he was captured by a group of ‘those’ terrorists. He was physically and verbally abused because he is an Alawite. He was stabbed in his shoulder and had it not been for the intervention of a soldier he would have been hit on his head with a big rock. He came to Australia [with] the assistance of his brother who resides in Australia. [Sentence deleted].

   The notice

6. On 10 November 2017, in accordance to s.107 of the Act, the applicant was issued with a Notice of Intention to Consider Cancellation under Section 109 (NOICC). The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

7. The NOICC reproduced the applicant’s responses to questions 42-48 of his Form 866C and the information provided in his statement of 27 February 2014. The NOICC stated that, as the applicant had voluntarily travelled back to Lebanon from [date] May 2016 to [date] July 2016 for a total period of more than [number] weeks without apparent harm or impediment, he does not hold the adverse profile as claimed in his application for a protection visa and subsequent statement. Therefore, the information he provided in his application for a protection visa and statement in relation to his fear of being persecuted due to being an Alawite in Jabal Mohsen is incorrect.

   The applicant’s response

8. On 16 November 2017, the applicant responded to the NOICC and provided the following information.

9. He travelled back to Lebanon three years after he had applied for a protection visa. The reason for his travel was that his parents were having major health issues. The applicant’s mother was going through an ‘abnormal situation of anxiety and depression’ which led her to always ask him to go back to Lebanon to visit her. He stated that he had tried to bring them to Australia by organising their passport, which was issued on [date] 2016, however, due to their health, they were unable to travel.

10. The situation had slightly eased in his home town following a major explosion that had happened in his area which led to increased security in his area. At the same time, the Lebanese government had a program to stop violence in affected towns by capturing the responsible parties; one of the major Jihadists, Ahmad Al-Assir, who was responsible for the death of his cousin and his friends, was imprisoned and is possibly facing the death penalty. During his visit, he stayed inside the town of Jabal Mohsen and did not leave.

11. Before coming to Australia, he experienced emotional, mental and physical harm when he was attacked on his way to the university. He waited over a year before visiting Lebanon to ‘guarantee that everything was cleaned up and safe due to my biggest fear being facing death especially that last explosion was less than [distance] away from my house’. The army will not protect the area permanently.

12. He is now married to an Australian citizen. His wife is pregnant and due to give birth in January 2018. He works very hard and has a mortgage he is paying off. He has never been in trouble with the law and has not been issued with even a ‘driving ticket’.

13. The applicant provided the Department with a copy of his marriage certificate, showing that he was married [on] 21 August 2016.

    ITOA

14. On 1 May 2018, the Department conducted an International Treaties Obligation Assessment (ITOA) in relation to the applicant and found that Australia does not owe him non-refoulement obligations.

    The delegate’s decision

15. On 6 June 2018, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa. The delegate found that the applicant had provided incorrect information in his application for a protection visa on the basis of his travel to Lebanon between May and July 2016.

    Application for review

16. The applicant applied for a review of the delegate’s decision.

17. On 31 October 2018, the applicant submitted a letter to the Tribunal in support of his application for review. The applicant essentially asserted that he had provided accurate and ‘honest’ information to the Department when he lodged his protection visa application. He also stated that he returned to Lebanon in 2016 because of the serious medical condition of his parents and that the circumstances in Jabal Mohsen had changed since his protection visa application. He has a family and runs a business in Australia; he also has a new born [child].

    The hearing

18. The applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

19. 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.

20. 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.

21. Having regard to the terms of the NOICC and the information referred to in the notice, the Tribunal is 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 Tribunal is also satisfied that the nature of the non-compliance was sufficiently particularised for the applicant to respond to it.

22. 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) referred to in the s.107 notice as set out in the NOICC.

23. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]

    [1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

24. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

25. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[3] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]

    [3] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [4] At [120].

26. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit. [5] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[6]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

27. As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to questions 42-48 in his Form 866C and the information provided in his statement of 27 February 2014. The delegate then referred to the applicant’s trip to Lebanon between [date] May 2016 and [date] July 2016. The delegate stated that the applicant’s return to Lebanon for a period of a period of [number] weeks indicated that the applicant did not hold the adverse profile as claimed in his application for a protection visa. The delegate’s conclusion that the applicant had provided incorrect answers in Form 866C and incorrect information in his statement of 27 February 2014, essentially, if not solely, was based on the applicant’s return to Lebanon and remaining in that country for the period referred to. Whilst the delegate identified specific answers provided by the applicant in Form 866C, the Tribunal has found no evidence to establish that the applicant’s answers were in fact incorrect and that he had deliberately lied by claiming that he feared being persecuted by Muslim Sunni extremists due to being an Alawite Muslim from Jabal Mohsen.

28. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. 

29. The present case is not a case where a person’s return to the country of feared persecution, in itself, seriously undermines the claims made in the application for a protection visa.  For example, the applicant did not claim to be stateless only to obtain a passport from the authorities in the country of feared persecution and return to the country using that passport.  The applicant did not claim that he feared the authorities in Lebanon or that he would be arrested if he returned to that country. The applicant claimed that he had been harmed by Sunni Muslims in the neighbouring areas of Tripoli, that he feared experiencing similar harm and that the authorities could not protect him from his persecutors.

30. The applicant has given consistent evidence throughout the process in relation to his claims for protection. The applicant and his family resided in the Alawite suburb of Jabal Mohsen in Tripoli. Due to ongoing sectarian conflict and in order to avoid harm, the applicant departed Lebanon.

31. After carefully considering the applicant’s evidence, the Tribunal accepts that he held grave concerns for his parents’ health around the time he travelled back to Lebanon. The Tribunal also accepts that the situation in Tripoli had changed since 2013 when the applicant lodged his application for a protection visa.

32. Historically, sectarian violence is confined to Alawite, Shia and Sunni sects in Lebanon. The increasing sectarian nature of the Syrian conflict which erupted in 2011, placed pressure on existing sectarian divides in Lebanon. In the past, the Lebanese Armed Forces (LAF) has regularly interceded to halt sectarian violence without apparent success. In early December 2013, despite LAF’s attempts to control sectarian fighting in the suburbs of Jabal Mohsen and Bab al-Tabbaneh, fighting in these suburbs continued, resulting in a number of casualties.[7] DFAT reported:[8]

    Sectarian violence in Tripoli has historically been limited to the predominantly Alawite suburb of Jabal Mohsen and the Sunni suburb of Bab al-Tabbeneh, with the meeting point of the two – Syria Street – a recurring flashpoint. Regular rounds of sectarian violence between competing militias occurred most recently in 2013 and 2014. In April 2014, Lebanese authorities implemented a security plan in Tripoli that led to a notable reduction in the number of incidents between the Alawite and Sunni communities.

    [7] DFAT, ‘DFAT Thematic Information Report: Sectarian Violence in Lebanon’ DFAT 18 December 2013.

    [8] DFAT, ‘DFAT Country Information Report Lebanon’ DFAT 23 October 2017.

1. The security plan implemented in 2014 carried out raids in several Tripoli neighbourhoods, resulting in arrests of local militia leaders and fighters. It also gave rise to a permanent presence of the Lebanese army on Syria Street in a further attempt to halt sectarian fighting between the neighbourhoods.[9] Consequently, the security situation in Lebanon largely stabilised due to the implementation of the plan and, other than a 2015 suicide bombing attack in Jabal Mohsen, which has been classified as an isolated incident, there have been no other significant incidents of violence targeting Alawites since 2014.

   [9] Department of Home Affairs, ‘Security Situation in Northern Lebanon Issues Paper’, Country of Origin Information Services Section, 9 November 2016.

2. The Tribunal accepts that by travelling to Lebanon the applicant took a calculated risk. The Tribunal accepts that the applicant’s desire to see his parents in 2016 due to his concerns for their health and the changes in the security situation in Tripoli outweighed his fears arising from the situation when he first departed Lebanon. 

3. Having regard to all of the evidence before it, the Tribunal does not accept that the applicant’s return to Lebanon for a period [of number] months from [date] May 2016 to [date] July 2016 is inconsistent with the claims which he made in his application for a protection visa and the subsequent statement. The Tribunal does not accept that travelling to Lebanon on one occasion is a persuasive reason to find that the information the applicant provided in his application for a protection visa and his statement of 27 February 2014 was incorrect. The Tribunal has not reached a real state of satisfaction that non-compliance has been established.

4. For these reasons, the Tribunal does not accept that the applicant gave incorrect answers in his application for a protection visa. 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.

   DECISION

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

   Shahyar Roushan
   Senior 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.