1821052 (Refugee) - [2020] AATA 5374

1821052 (Refugee) [2020] AATA 5374 (30 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821052
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Nicole Burns
DATE:30 December 2020
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 30 December 2020 at 11:09am

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect information in visa application – claimed adverse profile, past experiences and future fears of persecution – imputed political opinion – opposing an armed militia group – three voluntary returns for extended periods –compelling family-related reasons for returns – low-profile visits – sought written permission from department – wife later killed and no travel by applicant since then – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 8, Condition 8559
CASES
SZEEM v Minister for Immigration [2005] FMCA 27
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

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 they were satisfied the applicant had provided incorrect information in relation to his protection visa application in breach of s.101 of the Act. 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 via videoconference on 17 November 2020 to give evidence and present arguments about the issues in his case. 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. He participated in the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant immigration background
The applicant is a [age]-year-old Shia Muslim from Maysan Governate, south eastern Iraq. According to Departmental records he arrived on Christmas Island as an irregular maritime arrival [in] June 2010, having left Iraq not long before (via [Country 1] and [Country 2]). He was granted a protection visa on 21 December 2011 based on fearing persecution on imputed political opinion grounds. That visa was cancelled on 17 July 2018 (the subject of this review).
The applicant’s wife (who remained in Iraq) lodged an offshore Refugee and Humanitarian (Subclass 202) visa on 27 February 2012 with their children listed as dependents. The Department refused that visa…

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 1821052 (Refugee)

Details

AGLC: 1821052 (Refugee) [2020] AATA 5374
Case: [2020] AATA 5374
Decision Date: 30 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Iraqi national. The applicant, a Shia Muslim from Maysan Governate, had been granted a protection visa in December 2011 based on fears of persecution due to an imputed political opinion, stemming from his alleged involvement in protecting an Iraqi building from terrorist attack and the arrest of some members of a terrorist group. The visa was cancelled in July 2018.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which requires visa applicants to provide no incorrect answers in their application forms. This was the specific ground for the cancellation notice issued to the applicant. The Tribunal was required to determine if the information provided by the applicant in his protection visa application was indeed incorrect, and if so, whether the visa should be cancelled.

The Tribunal considered the applicant's claims regarding his past role and the information provided in his statutory declaration. It also examined the Department's Notice of Intention to Consider Cancellation (NOICC), which detailed the alleged non-compliance with section 101(b) of the Act. However, the Tribunal ultimately found that it was not satisfied that there had been non-compliance by the applicant in the manner described in the notice. Consequently, the discretionary power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

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. Relevant immigration background The applicant is a [age]-year-old Shia Muslim from Maysan Governate, south eastern Iraq. According to Departmental records he arrived on Christmas Island as an irregular maritime arrival [in] June 2010, having left Iraq not long before (via [Country 1] and [Country 2]). He was granted a protection visa on 21 December 2011 based on fearing persecution on imputed political opinion grounds. That visa was cancelled on 17 July 2018 (the subject of this review). The applicant’s wife (who remained in Iraq) lodged an offshore Refugee and Humanitarian (Subclass 202) visa on 27 February 2012 with their children listed as dependents. The Department refused that visa application on 15 January 2014. His wife then lodged a Provisional Partner (Subclass 309/100) visa application on 22 April 2013 with their children as dependents. The applicant withdrew the partner visa application on 1 June 2017 after his wife was tragically killed in Iraq [in] October 2014.[1] The applicant then lodged Child Migrant (Subclass 101) visas for his children on 18 June 2017 which are pending. Earlier, on 5 May 2016, the applicant had lodged an Australian citizenship application. [1] A translated copy of the applicant’s wife’s death certificate was provided to the Department and the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE 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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 9 January 2018 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (no incorrect answers are given or provided in filling in or completing his application form) of the Act. He was advised to respond in writing. The applicant’s representative provided written responses and a typed statement by the applicant. In the present matter, 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.Was there non-compliance as described in the s.107 notice?

Evidence

Evidence Before The Court

The applicant’s wife (who remained in Iraq) lodged an offshore Refugee and Humanitarian (Subclass 202) visa on 27 February 2012 with their children listed as dependents. The Department refused that visa application on 15 January 2014. His wife then lodged a Provisional Partner (Subclass 309/100) visa application on 22 April 2013 with their children as dependents. The applicant withdrew the partner visa application on 1 June 2017 after his wife was tragically killed in Iraq [in] October 2014.[1] The applicant then lodged Child Migrant (Subclass 101) visas for his children on 18 June 2017 which are pending. Earlier, on 5 May 2016, the applicant had lodged an Australian citizenship application. [1] A translated copy of the applicant’s wife’s death certificate was provided to the Department and the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE 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. On the Departmental file is a copy of a Notice of Intention to Consider Cancellation (NOICC) dated 9 January 2018 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (no incorrect answers are given or provided in filling in or completing his application form) of the Act. He was advised to respond in writing. The applicant’s representative provided written responses and a typed statement by the applicant. In the present matter, 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.Was there non-compliance as described in the s.107 notice? 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. Notice of Intention to Consider Cancellation The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application in certain respects. Specifically, the notice states that in a statutory declaration dated 3 September 2010 the applicant claimed to be a former Iraqi [Occupation 1] who from September 2003 was part of a force to protect an Iraqi [building] from terrorist attack. He believed he would be persecuted by a terrorist group and claimed to be responsible for the arrest ([in] April 2010) of some of their members, who had attempted to plant roadside bombs, whilst guarding [the building] as [an Occupation 1]. The applicant’s protection visa based on this information and related claims was granted on 21 December 2011.[2][2] After being found by an Independent Merits Reviewer (IMR), who reviewed the Refugee Status Assessment decision, to be a refugee on 19 July 2011.

Decision

Reasons for decision

For these reasons, 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.Nicole BurnsMemberATTACHMENT – 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.Nicole BurnsMemberATTACHMENT – 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.