1906755 (Migration)

[2022] AATA 1460

1906755 (Migration) [2022] AATA 1460 (24 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906755

MEMBER:Antoinette Younes

DATE:24 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 24 February 2022 at 6:39 PM

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in protection visa application – fear of harm and passport taken by people smuggler – two voluntary returns to home country for months at a time, the first within months of being granted protection visa – compassionate and compelling circumstances – mother’s illness and surgery and uncle’s illness and death – relatively safe places and times – newspaper advertisement for lost passport – advice from Iraqi consulate to report lost passport to police before replacement issued – travel on Australian documents – decision under review set aside

LEGISLATION

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached 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.

3. The applicant appeared before the Tribunal on 23 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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?

9. 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. 

10. The Notice in this case referred to non-compliance with s 101 of the Act as discussed below. 

11. Relevantly, s 101 provides:

    Visa 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.

12. Section 107A of the Act provides:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)if so specified, can constitute a ground for the cancellation of that visa under section 109.

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

13. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.  The delegate’s decision record indicates that:

    ·[In] November 2010, the applicant arrived in Australia by boat to Christmas Island. During the entry interview, the applicant claimed that due to his Shia Muslim faith, he fears being killed by extremists or Sunni fanatics. On 27 November 2010, he made a request for a Refugee Status Assessment (RSA) and on 20 April 2011, a delegate of the Minister found that the applicant met the definition of a refugee. The applicant lodged an application for a protection visa on 7 July 2011, including a Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee.

    ·In response to question 30 of Form 866C asking about a passport or travel document, the applicant responded that the smuggler had taken his passport. In response to question 52 asking if the applicant has a travel document, the applicant responded that the document had been taken by the smuggler. In response to question 53 asking about the validity of any travel document, the applicant responded that the smuggler had taken it. 

    ·In response to question 41 of the Form 866C, the applicant claimed that he is seeking protection in Australia so that he does not have to return to Iraq. In responses to questions 42, 43, 44, and 45 of the Form 866C, the applicant referred to an attachment to the RSA application.  In that attachment, the applicant made claims, including the following:

    (a)  He and his family owned several shops.  In 2007, he and his cousin opened a [shop] selling [products]. He bought stock from Baghdad and transported it to Al Rifaa[1]. In September 2008, he found a note in his front yard addressed to his family and signed by the Al Mehdi Force asking the shop owners to, among other things, “…Get rid of sinners from your shops, like the [product] merchants”.  He did not do anything, but he was afraid.

    (b)  In December 2008, the shop was blown up. The police came but nothing happened. The applicant reopened the shop and [in] March 2009, his cousin ([Mr A]) was killed when visiting a shrine. The applicant believes that this happened because of the shop. The applicant stayed at home for two months and later moved to Baghdad and began working in a [workplace]. Six months later, he decided to stay with his parents in Iskandaria and whilst he was there, he joined the Iraqi army.  He was assigned to [Town 1] on the border of [Country 1] where Al Qaeda forces were very active.

    (c)   One day and while in a car with others, they were shot at. He felt depressed and realised that there was no hope in Iraq.  The majority of people in Iskandaria were Sunnis. His family had a graffiti saying that there was no place for Shiites and later a bomb was thrown at the front yard. The family moved back to Al Rifaa and he decided to leave to Australia.

    (d)  He feared returning to Iraq as he would be killed by the Muslim extremists or Sunni fanatics due to his faith and ownership of the [shop] which is inconsistent with Islamic beliefs. He had nowhere to go in Iraq and he sought assistance from the local Iraqi police, but they were not able to protect him.

    [1] Also spelt Al Rifa’l

14. The applicant was granted the Protection visa on 14 July 2011 based on those claims.

    Subsequent events

15. [In] November 2011, the applicant departed Australia and declared on his outgoing passenger card that he would be in Iraq for five months. He returned to Australia [in] April 2012 and on his incoming passenger card, he declared that he had spent most of the time abroad in Iraq.

16. [In] January 2014, the applicant departed Australia and declared on his outgoing passenger card that he would be in Iraq for five months and he returned to Australia [in] July 2014. On his incoming passenger card, he declared that he had spent most of the time abroad in Iraq.   

17. [In] September 2015, an advertisement appeared in a [newspaper] in relation to a lost passport, which was later identified as belonging to the applicant.

    Notice of Intention to Consider Cancellation (NOICC/Notice) and responses

18. On 20 April 2017, the Department sent to the applicant a NOICC to which the applicant responded.

19. The Notice identified two areas of concern, namely the applicant’s returns to Iraq and the lost passport, suggesting that the applicant had provided incorrect information in the application for a Protection visa.

20. In submissions dated 12 May 2017, the representative argued that the applicant’s returns to Iraq were for compassionate and compelling reasons.  The representative indicated that:

    ·[In] November 2011, the applicant returned to Iraq because his mother required urgent medical attention, which led to him making a difficult decision to return to Iraq.  Due to his fear of harm, the applicant travelled to Erbil as this was safer than travelling to Baghdad.  He remained in Iraq to care for and support his mother and other family members following the surgery (medical evidence provided).

    ·[In] January 2014, the applicant returned to Iraq after his family informed him that his uncle had fallen gravely ill and had a short life expectancy.  His uncle desperately wanted to see the applicant prior to his death.  The applicant travelled to Iraq to be by his uncle's side and the uncle passed away [in] January 2014 from a combination of heart, liver, and renal failures (medical evidence provided).  The applicant remained in Iraq for a period of around five months after his uncle's death as he was “deeply affected by his uncle's death and could not absorb the loss”.  Furthermore, his grandmother suffered from depression and she asked the applicant to stay.  Najaf was relatively safe. The Mahdi Army had been disbanded for some years before 2014. It was not until the ISIS takeover of Mosul in June 2014 that the Shiite militia groups, including members of the former Mahdi Army, re-emerged in response to a call from Ayatollah Ali al-Sistani. Following the re-emergence of the Shiite militia groups, the applicant immediately departed Iraq as the situation had again become very dangerous for him. 

    ·The applicant has been truthful in all dealings with the Department.  He travelled to Iraq for compassionate and compelling circumstances concerning his mother and his uncle.  The travels to Iraq do not demonstrate that he provided incorrect information in the application for a Protection visa.

    ·In relation to the passport, the applicant did not have in his possession his Iraqi passport when he arrived on Christmas Island [in] November 2010.  He engaged the services of a people smuggler to assist him to travel to Australia to claim protection. Prior to his arrival in Australia, the people smuggler took the Iraqi passport.  At no time was this passport in the applicant’s possession during the processing of the Protection visa application.

    ·In relation to the advertisement that appeared in the newspaper on [date] September 2015, referring to the lost passport, around September 2015, the applicant decided that he would like to investigate the possibility of renewing his Iraqi passport which was taken by the people smuggler.  The applicant consulted the Iraqi Consulate, Sydney, where options about renewals were provided, including reporting the loss of the passport to an Australian police station, and providing the Consulate with an announcement in an official newspaper about the loss of the passport (a screenshot of the Iraqi Consulate, Sydney webpage was attached).  In accordance with those instructions, on [date] September 2015, the applicant requested a copy from the [Police] of the police report he had lodged regarding his lost passport (a copy of that email request is attached).  The applicant then placed an advertisement in the [newspaper] on [date] September 2015 reporting the loss of his Iraqi passport.

    ·The applicant took those steps for the purpose of renewing the passport that was taken from him by the people smuggler prior to his arrival in Australia.  His travel records demonstrate that at no time following his arrival in Australia has he used the Iraqi passport in question.  The applicant held three Australian Travel documents, two of which he used to both enter and depart from Iraq (copies of the three Australian Travel Documents and the Iraqi visa stamps are attached).  If it were the case that the applicant was in possession of his Iraqi passport, there would be no reason for him to go to the effort and expense of claiming to the Iraqi Consulate, Sydney, that he had lost the passport. If he did in fact have the passport in his possession, he could simply undertake the normal process for replacing the existing passport by making the appropriate application and returning the passport in his possession to the Iraqi Consulate.

21. In support, the applicant provided copies of documents, including:

    I.A biodata page of Titre De Voyage, issued to the applicant, the Australian visa label, an entry stamp dated [January] 2014, at Holy Najaf International Airport, and an exit stamp dated [July] 2014, at Holy Najaf International Airport

    II.A Certificate of Iraqi citizenship and an Iraqi Identification card, issued to the applicant’s mother, with English translations.

    III.A Certificate of Iraqi citizenship and an Iraqi Identification card issued to the applicant’s father, with English translations.

    IV.A webpage from the Iraqi Ministry of Foreign Affairs, Iraqi Consulate, Sydney Australia, that outlines the requirements to replace a lost Iraqi passport, with an English translation.

    V.A letter from the Consulate General of the Republic of Iraq, Sydney, dated [January] 2018, referring to the applicant’s attendance at the Consulate [in] October 2015 to apply for a new Iraqi passport.

    VI.A screenshot of an email sent by the applicant to the police requesting a copy of the police report associated with the lost Iraqi passport to provide to the Iraqi Consulate in Sydney.

    VII.An Abridged Incident Report issued on [date] September 2015 by [Police] noting the details of the lost Iraqi passport.

    VIII.All pages of the Iraqi passport issued to the visa holder [in] 2016 and valid [until] 2023.

    IX.A medical certificate issued on 17 October 2011 and reports, in regards to the applicant’s mother, referring to her undergoing heart-related procedures on 22 October 2011.

    X.A copy of a Medical History and Physical Examination Sheet with a name written in Arabic.

    XI.Documents including a death certificate and photographs relating to the applicant’s uncle.

    XII.A medical certificate, from the [a] Medical Centre, dated 27 October 2017, referring to the applicant’s diagnosis with reactive depression and secondary anxiety.

22. The non-compliance identified and particularised in the s 107 Notice was non-compliance with s 101 of the Act.  The delegate considered the applicant’s responses to the NOICC and the supporting documents. 

23. In relation to the passport issue, the delegate concluded that the applicant had “completed the steps required to obtain a replacement Iraqi passport as set out by the Iraqi Consulate in Sydney and the visa holder was compliant in regards to the answers provided in his Protection visa application involving his passport…”  Consequently, the delegate determined that the applicant did not provide incorrect answers in relation to questions 30, 52, and 53 of the Protection visa application.  However, the delegate concluded that the applicant did provide incorrect answers to questions 42, 43, 44, and 45, in that he returned to Iraq despite his claims for protection that he was unable to return due to his fear of serious harm by extremist groups and the authorities’ unwillingness and/or inability to offer him protection.  The delegate concluded that those claims were “fundamental” to the determination that the applicant was a person to whom Australia owed protection obligations.

24. The applicant provided to the Tribunal written submissions and documents in support, including an employer Statement of Service for the applicant.  The written submissions reiterate the submissions provided in response to the NOICC and refer to the applicant’s strong connections with Australia through, among other things, the significant number of Australian citizen relatives who would suffer emotional hardship in case of the cancellation of the applicant’s visa.

25. During the hearing, the Tribunal discussed with the applicant his claims for protection.  He gave evidence about the shop that he and his cousin opened, which was blown up.  The applicant referred to the subsequent killing of his cousin, which the applicant believed to be targeted due to the business.  The Tribunal discussed the applicant’s returns to Iraq, particularly, the return in November 2011, four months after the Protection visa grant.  The Tribunal indicated that the returns raise doubts about the veracity of his claims.  The applicant explained that on the first occasion, his mother was very ill, “almost dying”.  He said she suffered from multiple ailments and he felt he needed to see her.  In relation to the second trip to Iraq, he said his uncle with whom he was very close, became ill and in fact died about two weeks after the applicant’s arrival in Iraq. 

26. For the following reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 Notice.

27. In relation to the passport issue, the Tribunal accepts the applicant’s explanations.  The Tribunal accepts that the applicant followed the procedure outlined by the Iraqi Consulate in renewing his passport.  The applicant has provided independent and corroborative evidence that he undertook the required steps.  The Tribunal is of the view that it would be harsh and unreasonable to find in these circumstances that placing the advertisement in the newspaper meant that the applicant had a passport when he applied for the Protection visa, contrary to his responses in the Form 866C, as identified in the Notice.  Looking at the evidence cumulatively, the Tribunal is satisfied that the applicant did not provide incorrect responses to questions 30, 52, and 53 of the Form.  The Tribunal finds that in regards to the passport, there is no breach of s 101 of the Act.

28. In relation to the applicant’s responses to questions 41 to 45 of the Form 866C, although the Tribunal recognises that the returns to Iraq, particularly the first return that occurred about four months after the grant of the Protection visa, raise concerns about the veracity of the applicant’s protection claims, the Tribunal is satisfied that the returns in the applicant’s circumstances, are insufficient to discredit the fundamental aspects of the applicant’s claims.  The applicant has been assessed and found to be owed Australia’s protection obligations.  The Tribunal appreciates that this does not mean that those findings cannot be overturned. Indeed, the cancellation scheme highlights the significance of the provision of correct information and if the grant of a visa was based on incorrect information, cancellation of the visa would be considered. However, in the current circumstances and given the applicant’s explanations, the Tribunal has not reached the level of satisfaction required to conclude that the returns without more, mean that the applicant had provided incorrect responses to questions 41 to 45 of the Form 866C.  Accordingly, the Tribunal finds that the applicant did not provide incorrect answers to those questions, as identified in the Notice. 

1. In light of the above findings, the Tribunal is satisfied that there is no breach in the manner described in the Notice.

2. As 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

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Antoinette Younes
   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.