1907820 (Refugee)

[2019] AATA 6848

1907820 (Refugee) [2019] AATA 6848 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907820

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Antoinette Younes

DATE:31 October 2019

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 31 October 2019 at 4:27pm      

CATCHWORDS

REFUGEE – cancellation – protection visa – Lebanon – imputed political opinion – pro-Israeli – Shiite supporter of Israel – harassed by Hezbollah – incorrect information provided – multiple return trips to Lebanon – did not disclose information on passenger card – family membership of South Lebanese Army – fear of radicalism – mental health of partner – Australian citizenship of children – community contribution – cancellation of partner’s visa – family separation – decision under review set aside   

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109, 140, 375A, 438

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 Home Affairs to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with 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 application for review included the applicant’s spouse, [whose] visa was cancelled pursuant to s.140(2) of the Act.  However, as that cancellation involved a reviewable decision of the delegate, the Tribunal is dealing with her application separately.

4. The applicant appeared before the Tribunal on 30 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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.

8. 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.

9. 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.

   Non-Disclosure Certificate

10. Departmental file number [number] contained a s.375A certificate but the certificate was reissued under s.438(1)(a).  In the course of the hearing, the Tribunal discussed with the applicant the existence of the s.438(1)(a) certificate contained in Departmental file number [number] in relation to a number of documents contained in that file. The claimed grounds for the certificate are as follows:

    ·The disclosure of the information would be contrary to the public interest because the documents or the information refer to sensitive communication shared between internal sections within the department which revealed investigative processes.

    ·The documents referred to visa applications relating to a third party.

11. The Tribunal advised the applicant that it considered the certificate to be valid. When invited, the applicant did not make any submissions.

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

12. 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.

13. Section 101 of the Act provides that:

    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.

14. 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 in support of the application for review.  Relevantly, the Tribunal noted the following:

    i)   [In] July 2010, the applicant arrived in Australia as the holder of a Subclass 572 visa to study [a course] in [City 1].  

    ii)     On 31 January 2011, the applicant lodged an application for a Protection visa, Subclass 866.   As part of the applicant’s 866 application, he completed a Form 866C – application for an applicant who wishes to submit their own claims to be refugee.

    iii)   At question 1 of the Form 866C asking “What is your full name”, the applicant replied that his family name is [applicant surname] and his given name is [applicant first name].  At question 7 of the Form 866C asking about the applicant’s date of birth, he responded “[date]”.  At question 8 of the Form 866C asking about the applicant’s place of birth, he replied Town/city [Town 1], Lebanon.  In response to questions 12 and 13, the applicant indicated that his ethnicity is Lebanese and that he is of the Muslim faith.

    iv)   At question 41 of the Form 866C asking “I am seeking protection in Australia so that I do not have to go back to (give name of country or countries)”, the applicant replied Lebanon. At question 42 of the Form 866C asking “Why did you leave that country?”, the applicant referred to his attached statement (i.e. Statutory Declaration of 25 January 2011).  At question 43 of the Form 866C asking “What do you fear may happen to you if you go back to that country?”, the applicant referred to his Statement.  At question 44 of the Form 866C asking “Who do you think may harm/mistreat you if you go back?”, the applicant referred to his Statement. At question 45 of the Form 866C asking “Why do you think this will happen to you if you go back?”, the applicant referred to his Statement.

    v)    In response to question 46 of the Form 866C asking “Do you think the authorities of that country can and will protect you if you go back? If not, why not?”, he referred to his Statement.

    vi)   In his Statutory Declaration of 25 January 2011, the applicant claimed the following:

    …

    10.       My home village is located approximately [number] km from the Israeli border and since the Israeli invasion of 1982 has seen many conflicts. The last Israeli – Hezbollah conflict in 2006 saw a village almost totally flattened.

    11.       My family was almost totally destroyed in the last conflict in 2006, and members of my family including myself fled after religion relocated to the north during the fighting. We returned soon after the fighting ceased in an effort to rebuild a home in our shattered lives.

    12.       Hezbollah did not provide us with any monetary compensation as they provided to most other Shiite inhabitants of our village. The reason for this is because my father and older brother were charged and imprisoned, accused of dealing with Israel.

    13.       After my father and brother were formally charged and served a jail sentence, Hezbollah continued to harass the family as we were branded as Shiite supporters of Israel. Members of my family including my elderly father and brother were constantly harassed by members of Hezbollah

    14.       As they grew up I also experienced serious levels of harassment from Hezbollah and their supporters. I had to flee my hometown a number of occasions during Hezbollah raids on the family home.

    15.       All members of my family were constantly monitored by Hezbollah operatives. Following the last conflict with Israel my father, my brothers and I were severely beaten by Hezbollah [members] and detained for a period of 5 days.

    16.       We live in a village which is military sensitive due to its proximity to Israel and those suspected of supporting Israel are constantly harassed by Hezbollah. My family has been targeted because of the recorded convictions against my father and brother.

    17.       We continued to live under the military control of Hezbollah and endure constant harassment and monitoring. Harassment and periodic detention occurs whenever members of my family travelled in and out of the village and during times of heightened military tensions along the border with Israel. I have suffered detention and beatings on two occasions since 2006.

    18.       I fear that if I returned to Lebanon on I would continue to be persecuted by Hezbollah who have targeted all male members of my family. I do not intend to return to Lebanon on where I am likely to face ongoing harassment, periodic detention, and monitoring as I have experienced in the past.

    19.       Relocation would not be a viable solution because Hezbollah are a powerful military and political organisation, who has operatives all over Lebanon.

    20.       The increase political and sectarian tensions will inevitably expose me and members of my family to further serious repercussions from Hezbollah.

15. The decision record further indicates that during a Departmental interview on 25 March 2011, it was clarified that although the applicant was born in [Town 1], his home village was [another named] village approximately [number] km north of the Israeli border. It was further clarified that the applicant’s father and older brother were members of the South Lebanese Army (SLA).

    Decision record dated 29 April 2011

16. The delegate who assessed the applicant’s claims for protection commented on the applicant’s credibility by stating that the “applicant attended an interview on 25 March 2011 and presented his claims in a forthright manner, without prevarication or embellishment and I found him a generally credible witness”[1]. Relevant to the current review are the following observations made by the delegate:

    ·The applicant did not claim that he held any kind of political profile in Lebanon, but he claimed that his father and brother were former members of the SLA and that consequently he was attributed with a pro-Israeli political opinion by Hezbollah. In support of his claims, following the interview, the applicant provided a translation of a copy of a summary military court transcript dated [date] indicating that his brother [had] served a [number]-year prison sentence because of his enlistment in the SLA. The applicant’s brother has relocated to Australia on a spouse visa in 2009.

    ·Country information indicates that the SLA is essentially a Christian militia led by Major General Antoine Yusuf Lahd. The headquarters for [the specified] sector of the SLA was located in [Town 1].

    ·The delegate accepted that the applicant’s father and brother were both low ranking members of the SLA for several years during the 1990s. However, the delegate considered it unlikely that the applicant would have been of any continued interest to Hezbollah. The delegate accepted that the applicant was questioned and subjected to a degree of mistreatment during his questioning by members of Hezbollah in September 2006.

    ·The delegate referred to the family’s stable residential history in a region of Lebanon with a significant Hezbollah presence, along with the applicant’s interview testimony which does not support his claims of continued harassment and discrimination.

    [1] Protection decision record, dated 29 April 2011, page 7.

17. Based on the applicant’s claims, a delegate decided that the applicant did not have a well-founded fear of harm and consequently the application for a Protection visa was refused on 29 April 2011. The applicant requested an independent review and the former RRT concluded that the applicant was of adverse interest to Hezbollah due to his profile of living close to the Israeli border and being a family member of former SLA members. The RRT remitted the matter to the Department and on 29 November 2011, the applicant was granted a Protection visa Subclass 866.

18. The Tribunal observes that the RRT found the applicant to be a “broadly credible witness. He appeared to give his evidence in a matter-of-fact manner, without embellishment or exaggeration. His claims are generally consistent with the independent country information. His account has been presented consistently, except in relation to some of the details provided in his Protection visa application. For example, the applicant stated that after the 2006 conflict he was detained for five days whereas in fact he was detained for five hours. Given the applicant’s rapid acknowledgement of correction of this error, I am satisfied that it was a mistake and not an attempt to exaggerate his circumstances or mislead the department or the tribunal. I consider that most of the applicant’s account of what happened to him prior to his departure should be accepted as truthful. [2]” The RRT accepted that the applicant’s brother and father served in the SLA during the Lebanese Civil War and during the Israeli occupation of the security zone in South Lebanon. The RRT referred to country information particularly in relation to former low ranking SLA members.  Some of the country contradicted the applicant’s claims, others supported the applicant’s claims but the RRT concluded that “country information is unequivocal in stating that Hezbollah is indisputably in charge is South Lebanon on, as the dominant military, political and social force; and most of the report cited above predate the current dominance of the national government by a Hezbollah-led coalition”[3].

    [2] RRT decision number 1104481, dated 16 August 2011, para 57.

    [3] Ibid, para 59.

19. In essence, the RRT concluded that the applicant has been subjected to mistreatment by Hezbollah and although that mistreatment was at the lower end of the scale of harm that may amount to persecution, it nevertheless amounted to serious harm. The RRT was satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and that he satisfied s.36(2)(a).

    Subsequent events

20. The decision record refers to the following events:

    i)   The applicant departed Australia [in] September 2012 and returned [in] October 2012. [In] June 2012, the applicant approached the Department’s client service counter in [City 1] to advise that he wanted to travel back to Lebanon on to visit his mother who was having an operation. Departmental records of the conversation indicate that the applicant asked if he would have problems at the airport and if the interaction would be recorded on Departmental systems. An officer of the Department advise the applicant that he would not know if the applicant would encounter problems in entering Lebanon and that the conversation would be recorded. The applicant was advised that it was his decision to travel and he was cautioned of the consequences of using his Lebanese passport to travel back to Lebanon – in that it may be viewed as a voluntary re-availing himself to the country he sought protection from and this may result in protection obligations ceasing to be in effect and the visa being considered for cancellation. The applicant was also advised on this occasion that he was entitled to a convention travel document which would enable him to travel to other places freely, provided he obtained a valid visa for that country.

    ii)     On [a later date in] June 2012, the applicant approached the Department’s client service counter in [City 1] to request that his Protection visa be transferred onto a Convention travel document so that he could travel to [Country 1]. The applicant departed Australia [in] September 2012 and on his departure, he completed and signed an outgoing passenger card where he answered [Country 2] to the question that asked Country where you will spend most time abroad. He also indicated by cross in the box at the purpose of his travel was for a holiday. On his return [in] October 2012, he completed and signed an incoming passenger card and answered [Country 2] to the question that asked Country where you spent most time abroad.

    iii)   The applicant departed Australia [in] August 2013 and returned [in] September 2013. On his departure, he completed and signed an outgoing passenger card where he answered [Country 3] – Lebanon on to the question that asked Country where you will spend most time abroad. He also indicated by cross in the box at the purpose of his travel was for a holiday. On his return [in] September 2013, he completed and signed an incoming passenger card and answered Lebanon to the question that asked Country where you spent most time abroad.

    iv)   The applicant departed Australia [in] July 2015 and returned [in] August 2015.  On his departure, he completed and signed an outgoing passenger card where he answered Lebanon to the question that asked Country where you will spend most time abroad. He also indicated by cross in the box at the purpose of his travel was to visit friends and relatives. On his return, he completed and signed an incoming passenger card and answered Lebanon to the question that asked Country where you spent most time abroad.

    v)    Departmental records include copies of the pages of the applicant’s Lebanese passport. The wet stamps in this passport indicate that the applicant entered and departed via Beirut, Lebanon [in] September 2012 (departed [in] October 2012 – [number] days), [in] August 2013 (departed [in] September 2013 – [number] days), and [in] July 2015 (departed [in] August 2015 – [number] days). The applicant’s total period of stay in Lebanon totalled 91 days.

21. Based on the applicant’s returns to Lebanon, the delegate concluded that it appeared that the applicant had provided incorrect information when he applied for a Protection visa.

    Notice of Intention to Consider Cancellation (NOITCC)

22. On 6 March 2018, the Department sent to the applicant a NOITCC, to which the applicant responded.  Essentially, the applicant acknowledged that he returned to Lebanon on the three noted occasions. He offered a number of explanations including, the death of his now spouse’s father, to reunite with his former girlfriend (now spouse), the limited validity on his former girlfriend’s passport, to get married in Lebanon, the severe illness of his mother-in-law which led to the third trip to Lebanon. In support of his responses, the applicant provided to the Department documents relating to his two Australian citizens minor children, his business in Australia and the lack of security in Lebanon.

23. In a Statutory Declaration of 10 September 2019 provided to the Tribunal, the applicant declared the following:

    i)   His protection claims are true and correct. He denies that at any time he misled the Department or the RRT. He continues to fear returning to Lebanon on the basis of the same grounds as those claimed in his Protection visa application. He fears for his personal safety and the safety of his wife and two young children. There has been an escalation of threats of an all-out military conflict between Hezbollah and Israel.

    ii)     On each occasion he returned to Lebanon, he put himself as well as the safety of his wife and child at grave risk. During all the visits, he resorted to significant self-imposed restrictions on his personal freedom in order to avoid exposure and potential serious harm from Hezbollah.

    iii)   On the first occasion of his return, he only stayed for a period of approximately [number] days. On the second occasion, he was there for approximately [number] days and on the last occasion, the family was in Lebanon for approximately [number] weeks. Apart from his wedding which was held in a different village, he kept a low presence during the three trips.

    iv)   He took his original Lebanese passport with him when he travelled to [Country 2] due to the fact that he had received prior advice from the Lebanese embassy staff in [Country 2] or that he required this document for the purpose of registering his marriage. He travelled to [Country 2] using the Australian travel document and on each occasion he travelled to Lebanon, he also used the Australian travel document. However when he entered Lebanon, he had to provide the Lebanese airport officials evidence of his Lebanese passport to allow him to enter the country as he remains a Lebanese citizen.

    v)    He denies that at the time he lodged his Student and Protection visa applications, he was formally engaged to his wife. He and his wife are first cousins and he began to speak to his wife when she had turned [age] years. They were never in a formal relationship or engaged. His mother-in-law allowed them to marry only after her daughter had turned [age] years of age, which was in [year].

    vi)   He accepts that by travelling, he exposed his life and the lives of his family to real and significant perils. Lebanon is currently facing an escalation of the conflict between Israel and Hezbollah.

    vii)  He understands that although his children are Australian citizens, they can nevertheless relocate with their parents if the Tribunal were to affirm the decision to cancel the visa. However the safety of his children must remain a paramount consideration for the Tribunal particularly in light of the current escalation of the conflict between Hezbollah and Israel. His village is located approximately [number] km north of the Israeli/Lebanon border and remains a hive of Hezbollah military and intelligence activity, making the village and surrounding areas prime targets of the Israeli military aggression. Relocation is not possible; as a Shiite family it would not be possible to relocate to Sunni dominated areas as the sectarian rift between the two sects continues to escalate. His fear of Hezbollah has not dissipated over the years despite his returns to Lebanon three occasions. Hezbollah’s reach in Lebanon on is not limited to the areas under their direct control but extends to all parts of Lebanon on, making their political enemies vulnerable throughout the country. He will remain devoid of the protection of the Lebanese authorities. Hezbollah are far more powerful than the Lebanese authorities and individuals of interest to Hezbollah cannot avoid harm by their reliance on the protection of the Lebanese authorities.

    viii) He and his wife fear that their young children would be exposed not only to violence but also to Hezbollah’s radicalism. Although he and his wife are of the Shiite faith, they do not subscribe to religious radicalism of any kind. They remain opposed to Hezbollah, the militant agenda and their radical ideologies. He and his wife want to raise their children in a tolerant society such as Australia, free from all forms of religious radicalism and militancy.

    ix)   His wife is suffering from severe depression which has worsened by the cancellation of their visas. She holds grave fears for the safety and welfare of the two children in case of their returns to Lebanon.

1. The applicant provided to the Tribunal a number of documents such as birth certificates of the children, citizenship documents and multiple articles about the current security situation in Lebanon, including the claimed recent use of drones by the Israeli authorities to bomb a Palestinian base in eastern Lebanon near the Syrian border.

2. In the course of the Tribunal’s hearing, the applicant did not dispute that he had returned to Lebanon on the three claimed occasions. The Tribunal put to the applicant that his returns, particularly the first return given its proximity to the time he was granted the Protection visa, raise doubts about his protection claims. The applicant agreed but gave explanations that he considered to be compelling. In relation to the first visit, the applicant stated that he was not planning to go to Lebanon and that the decision was made when he got to [Country 2] upon finding out that his then girlfriend was not able to depart Lebanon because of the short validity of her passport.

3. The Tribunal questioned the applicant about this explanation and indicated that it was difficult to accept. He stated that was the truth and that his intention to travel to [Country 2] was to meet his then girlfriend to sign some documents. The Tribunal asked the applicant why he did not disclose on his incoming passenger card on his return [in] October 2012 that he had been to Lebanon. The Tribunal questioned him about his response on the incoming passenger card that he had spent most time abroad in [Country 2], which appears to be incorrect. He acknowledged that this might not have been the most accurate answer but indicated that he thought that as he had stated on the outgoing passenger card that he would be spending most time in [Country 2], he felt he needed to provide a similar answer. The Tribunal expressed doubts about his explanations. He stated that he put himself at risk by going to Lebanon but he had to see his former girlfriend. He stated that they married in Lebanon.

4. In relation to the following two occasions of his returns to Lebanon, he stated that on the second occasion and as the visa of his spouse was refused, he returned to gather further evidence to assist in the Partner visa application in light of the refusal. He explained that he received advice that even if his spouse were to reapply for the visa, unless the couple had more supportive evidence, the application would likely be refused again. The applicant stated he felt that he needed to travel to Lebanon in order to ensure the success of the Partner visa application.

5. The applicant gave evidence that he travelled to Lebanon with his wife and [number] month old baby to see his mother-in-law who was very ill at the time. He stated that he did not want to go but he wanted to assist his wife who felt she had to go and see her mother in light of her mental health issues.

6. The Tribunal indicated to the applicant that it would consider his explanations further but expressed the view that the returns raise doubts about his claims. The applicant acknowledged that the returns are concerning but reiterated that on all occasions, there was a need for him to travel and that he kept a low profile when he was in Lebanon.

7. The Tribunal discussed with the applicant his claims for protection and he essentially summarised the reasons for seeking protection. He indicated that he remains to have that fear and particularly in the current climate of instability. He stated that Hezbollah remains to be the main force in the part of Lebanon where he comes from.

8. In relation to the discretionary factors, the applicant referred to his two Australian citizen children, aged [age] and [age] years. He indicated to the Tribunal that the older child would be commencing school [in number years] and that both of the children speak Arabic as well as English. He stated that he does not want his children to go and live in Lebanon as there are security issues and that education and health services are limited. The representative made submissions that Australia would be in breach of the CROC (Convention on the Rights of the Child) and its non-refoulement obligations in case of the cancellation. The representative argued that it would be unreasonable to expect the family to separate and for the children to remain in Australia if both or either parents had to return to Lebanon.

9. The applicant also raised the issue of the contribution that he has made to the Australian community. He referred to being self-employed [in a position] and employing two other employees. He discussed his community work such as donating and [working] free of charge for a church and a mosque.

10. The Tribunal found the applicant to be generally credible and the Tribunal did not get an impression of fundamental embellishment or exaggerations. The Tribunal considers the observations of both the RRT and the delegate who refused the 866 visa application (on different grounds) to be supportive of the Tribunal’s assessment of the applicant’s credibility.  The Tribunal gives weight to the copy of the summary military court transcript dated [date] indicating that the applicant’s brother had served a [number]-year prison sentence because of his enlistment in the SLA.  On the evidence, the Tribunal accepts that the applicant’s brother and father served in the SLA during the Lebanese Civil War and during the Israeli occupation of the security zone in South Lebanon and that consequently he was attributed with a pro-Israeli political opinion by Hezbollah.  The Tribunal further accepts that the applicant was questioned and subjected to a degree of mistreatment during his questioning by members of Hezbollah in September 2006.  The Tribunal is satisfied that this amounts to serious harm as contemplated by the Act.

11. The task of the Tribunal in this instance is to determine whether there was non-compliance by the applicant in the way described in the s.107 notice.

12. When the applicant applied for a protection visa, he claimed that he feared harm essentially on political grounds.  He claimed that the authorities of Lebanon could not protect him from the harm he feared at the hands of Hezbollah.  He feared that he would be harmed in case of his return and that the authorities could not protect him. Central to the applicant’s claims are that his family had a profile of being connected with the SLA which led to him being perceived to have an anti-Hezbollah profile. The Tribunal observes that the RRT and the delegate had accepted the essence of the applicant’s claims.  The applicant was granted the Protection visa on that basis. 

13. Apart from the applicant’s returns to Lebanon, there is no other evidence before the Tribunal to raise doubts about the applicant’s central claims. Although it is plausible that the applicant has embellished some of those claims, that potential embellishment cannot in itself discredit the entirety of the applicant’s claims. The Tribunal is not reviewing a Protection visa application refusal and the Tribunal appreciates that it is reviewing the cancellation of a Subclass 866 visa granted upon the applicant meeting the criteria for that visa.

14. The concept of onus and standard of proof are not generally applicable in the context of administrative decision making.[4] The Tribunal refers to judicial guidance in relation to the cancellation of a visa and in particular the state of satisfaction required.  Although the decision of Zhao v MIMA[5] relates to a cancellation pursuant to s.119 of the Act, its principles are applicable to a cancellation pursuant to s.109.

    [4] 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 29.

    [5] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000).

15. Relevantly, the Court held:

    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.[6]

    [6] Ibid, at [25] and [32].

16. The Tribunal considers the cancellation of a visa to be serious and significant, requiring a state or level of satisfaction reached subsequent to the proper consideration and critical evaluation of probative material. In Sullivan v CASA,[7] the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences, the Tribunal “would express greater caution in evaluating the factual foundation for the decision to be reached.”[8]

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

    [8] Ibid, at [120].

17. In that decision, the Court referred to Briginshaw v Briginshaw[9], where his Honour Dixon held ‘… 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…”[10]

    [9] Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362.

    [10] Ibid, at [362].

18. The delegate’s decision to cancel the applicant’s Subclass 866 visa is based on the fact that the applicant had returned to Lebanon on three occasions, contrary to the protection claims he had made that he could not return. The delegate considered that returning to Lebanon undermined the applicant’s claims to such a degree to mean that the applicant had provided incorrect answers when he applied for the Protection visa.

19. There is no dispute that the applicant subsequent to being granted the Protection visa, had returned to Lebanon on three occasions. In the application for a Protection visa, the applicant claimed that he could not return to Lebanon for fear of being harmed on the grounds, amongst other things, of his actual and imputed anti-Hezbollah profile.

20. The Tribunal acknowledges that the returns to Lebanon raise doubts about the applicant’s claims as well as his fear of potential harm in case of return. The returns arguably raise legitimate questions about the applicant’s subjective fear of harm. The applicant has provided a number of explanations for the returns. The applicant went to Lebanon on the first occasion primarily to marry. He went to Lebanon on subsequent two occasions to see his wife and gather supportive evidence and to accompany her to see her ill mother.  The Tribunal considers those reasons to be reasonable and the Tribunal has given them weight. The Tribunal is nevertheless concerned about the applicant’s returns to Lebanon and about the fact that he did not disclose that return on his incoming passenger card. However, there is no other probative evidence before the Tribunal, apart from the returns, to support a finding that the applicant has provided incorrect answers when he applied for the Protection visa.

21. The Tribunal appreciates that returning to the country of claimed persecution raises legitimate questions about the subjective claimed fear of harm as well as the truthfulness of the claims made. However, without more, the Tribunal is not satisfied that the returns mean that the applicant has provided incorrect answers to the relevant questions identified by the delegate. Although the Tribunal has doubts, those doubts are not sufficient for the Tribunal to reach a level of satisfaction to make a finding that the applicant has indeed provided incorrect answers.

22. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant’s returns to Lebanon mean that the applicant has provided incorrect answers to the relevant questions in the Form 866C.

23. For the stated reasons, the Tribunal has not reached the state of satisfaction required to find that the applicant had provided incorrect answers in the application for a Protection visa. 

24. For these reasons, 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. 

25. Even if the Tribunal were wrong about the finding that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act, the Tribunal is of the view that there are strong factors including but not limited to, the fact that the applicant has two Australian citizen children, the mental health of his partner, the cancellation of his partner’s visa pursuant to s.140, and his contribution to the Australian community would mean that the Tribunal would exercise discretion not to cancel the visa.

26. The Tribunal has decided that there was no non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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