1908336 (Migration)

Case [2021] AATA 3234

1908336 (Migration) [2021] AATA 3234 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908336

MEMBER:Antoinette Younes

DATE:12 August 2021

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 12 August 2021 at 1:26 PM

CATCHWORDS
MIGRATION – cancellation – Subclass 155 (Five Year Resident Return) visa – incorrect information – variations in names – Iraq – stateless Kuwaiti Bedoun – expelled to Iraq – obtained Iraqi passport via bribes – assisted western military with transport of supplies – threats from Al Mehdi’s Army – Sunni religion – tribunal received  submissions from Secretary, Department of Home Affairs – tribunal not compelled to set aside delegate’s decision – case of Makasa – Makasa case cannot be directly applied to another of the powers in s 501 – High Court’s reasons in Makasa  do not relate to any other cancellation power such as s 109 or s 116 – differences in structure and operation between s 501(2) and the other cancellation powers in the Act – 2012 delegate’s decision to not cancel protection visa  – subsequent cancellation of applicant’s subclass 155 visa after protection visa ceased – Makasa case related to one visa – tribunal’s findings that incorrect information was provided – applicant is Bedoun of Iraqi nationality – however, cumulative effect of applicant’s claims gives rise to real chance of harm – applicant continues to be a refugee owed Australia’s protection obligations – cancellation would result in breach of Australia’s obligations under the Refugees Convention – decision under review set aside

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
AI Act, s 33(1)
Migration Act 1958 (Cth), ss 46A(1), 99, 101, 102, 103, 104, 105, 107A, 107(2), 109(1), 112(2), 133A, 133A(1), 349(2), 375A, 501A, 501(1), 501(2)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (No. 35, 2021), ss 197C,197D
Migration Regulations 1994 (Cth), r 2.41, Public Interest Criterion (PIC) 4013

CASES
Brown v MHA (2020) 275 FCR 188
Brown v Minister for Home Affairs [2018] FCA 1722
MIAC v Khadgi (2010) 190 FCR 248
Minister for Home Affairs v Brown [2020] FCAFC 21
Minister for Immigration and Border Protection v Makasa [2021] HCA 1

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 (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…

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AGLC
1908336 (Migration) [2021] AATA 3234
Case
[2021] AATA 3234
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of the applicant, who had arrived in Australia as an undocumented maritime arrival in 2010. The applicant claimed to be a stateless Bedouin from Kuwait, who had fled to Iraq and subsequently obtained an Iraqi passport through bribery. He later applied for and was granted a protection visa, which subsequently ceased. The delegate's decision to cancel the applicant's Subclass 155 visa was based on findings that incorrect information had been provided in relation to his identity and circumstances.

The Tribunal was required to determine whether the cancellation of the applicant's visa under section 109 of the Migration Act 1958 (Cth) was justified, considering the applicant's claims of a well-founded fear of harm if returned to Iraq due to his Sunni religion, Kuwaiti accent, and past cooperation with Western military forces. A key legal issue was the applicability of the High Court's decision in *Minister for Immigration and Border Protection v Makasa* [2021] HCA 1 to the cancellation power under section 109, as distinct from the character cancellation power under section 501(2) considered in *Makasa*.

The Tribunal reasoned that while the applicant had provided incorrect information regarding his nationality and the circumstances of obtaining his Iraqi passport, the cumulative effect of his claims gave rise to a real chance of harm should he be returned to Iraq. The Tribunal found that the applicant continued to be a refugee to whom Australia owed protection obligations. Applying this assessment, the Tribunal concluded that cancelling the visa would result in a breach of Australia's obligations under the Refugees Convention. The Tribunal distinguished the *Makasa* case, noting that its reasoning related specifically to the character cancellation power under section 501(2) and did not directly apply to other cancellation powers such as section 109, due to differences in their structure and operation.

Consequently, the Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal advised the applicant that it would discuss any potentially adverse information in accordance with the procedural fairness requirements.The applicant’s background and protection claims The delegate’s decision record provides information about the applicant’s circumstances. The applicant arrived in Australia [in] January 2010 as an undocumented Unauthorised Maritime Arrival (UMA). He stated that his name is [applicant name] and that he was born on [date] in Kuwait. During the entry interview, the applicant claimed that he and his family are stateless Bedouns from Kuwait, and that they fled Kuwait in 1992 and went to live in Iraq. On 13 February 2010, the applicant applied for a Refugee Status Assessment (RSA) and on 30 March 2010, he was found not to be a refugee. He subsequently applied for an independent review on 31 March 2010 and on 26 May 2010, the Independent Merits Review (IMR) made a positive recommendation. As part of that application, the applicant provided a statement claiming that he is stateless: he does not have “lawful citizenship in Iraq… I obtained my Iraqi passport unlawfully…" The applicant applied for a protection visa on 7 September 2010 and in support, he provided a Statement dated 13 February 2010 essentially claiming that he was born in Kuwait on [date], that his parents were Bedoun who were permitted to reside in Kuwait but they were not citizens, that in 1992 his parents were deported to Iraq, and that in 1992, “my parents applied for Iraqi citizenship. It was difficult to get for them and they had to bribe government officials in order to obtain it. In my citizenship certificate it says that my father was born in Iraq, this is not correct but otherwise we wouldn’t have been granted citizenship. After we received Iraqi citizenship, I bought a farm in Safwan. Settling in Iraq was difficult because we weren’t accepted by the locals...". The application for a protection visa included Form 866 Part C. In response to questions 1, 4,8, 19, 20, 23, 28, 30, 53, 41, 42 and 43 of Part C, the applicant indicated that his family name is [applicant surname] and that his given name is [applicant name]. He gave no answer to the question of whether he is known by any other name. He stated that his place of birth is [Town 1], Kuwait and that his citizenship at birth is stateless. He gave no answer to the question of current citizenship, stating that he is a “Kuwaiti Bedoon - Kuwait did not acknowledge us as citizens. See RSA statement for more details”. He stated that he does not have a current travel document, but that he did have a “False Passport…Smuggler took it from me.” He indicated that he is seeking protection in Australia so that he does not have to go back to “Iraq and Kuwait." He referred to the RSA statement to explain why he left Iraq and that he fears returning because he would be ill-treated. In the RSA statement, the applicant claimed that:·In 2003, their lives became more difficult. After the fall of the Saddam regime, Shia militia groups formed, including the prominent group Al Mehdi’s Army, which controlled their area between 2003 and 2008. ·In December 2005, he was self-employed as a truck driver. He became friends with a person who was working with the [western] Army. That person gave him well-paid jobs to deliver goods for the [western] army. Although this was risky, he was happy to get the job. The Al Mehdi’s Army was monitoring trucks that were travelling the route between customs in Safwan and the airport in Basrah.·In early December 2005, he received a threatening letter from the Al Mehdi’s Army, telling him to leave the area because of his cooperation with foreign forces. A few weeks later, when he was travelling between Safwan and Basrah, he was shot at and hit by several bullets from a distance. The neighbours took him to hospital, he was treated and sent home the same day. His wife was upset and wanted him to stop working for the foreign forces. He stayed at home for a short while but as he needed income, he returned to work. Other drivers told him that they were paying bribes to Al Mehdi’s Army to be left alone and so he paid US$1,000 a month. He continued working and bribing until 2008 when the Al Mehdi’s Army split up into various groups and infiltrated the government and the police.·In June 2008 his son became ill from [and] died in November 2009. During the last treatment, a nurse made a fatal mistake and he wanted to lodge a complaint with the health department. When reporting at reception, he was asked to wait, and a group of people came. They asked him to follow them outside and he was taken to Al Fadila’s party office. They insisted on him not complaining and threatened him; they said that they knew he is Sunni and that he was working with foreign forces. He was fearful and he gave them US$2,000. They took the money but threatened to return. His wife heard them. She was frightened and insisted on him leaving. He took his wife and children to his in-laws’ house where they are hiding.·He fears returning to Iraq:If I would go to a different area in Iraq I would have to register. Being a Sunni and having a Kuwaiti accent I wouldn’t be safe anywhere. Everywhere in Iraq are militia and terrorists. There is no safe place in Iraq. The north of Iraq is safer than the south of Iraq for Sunnis but it’s not possible for me to settle there, because I’d need a guarantor, which I don’t have. A Sunni from Kuwait or Basrah is always suspicious in the north and not welcome.The south of Iraq is not the same for me because I’m a Sunni. There are many Shia militia groups operating in the south targeting Muslim Sunnis…I believe I’m targeted for three reasons: because I am a Sunni; because I have a Kuwaiti accent; and because I have been working with the foreign forces. This makes me very suspicious for both Shia militia in the south as well as the Sunnis in the north. There is no place for me to live safely in Iraq.

Evidence

Evidence Before The Court

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 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. 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.Section 375A Certificate In the course of the hearing, the Tribunal advised the applicant that Departmental file number [deleted] contains a s 375A Certificate in relation to folios 42 to 49 (identity assessment report) on the basis that it would be contrary to public interest to disclose that material because disclosure “may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would all be likely to prejudice the effectiveness of those methods”. The Tribunal advised the applicant that it considered the certificate to be valid and invited submissions. The representative advised the Tribunal that the applicant has previously obtained a copy of the documents subject to the certificate.[1][1] Subsequent to the hearing, the Tribunal confirmed that the Department had released the documents. The Tribunal advised the applicant that it would discuss any potentially adverse information in accordance with the procedural fairness requirements.The applicant’s background and protection claims The delegate’s decision record provides information about the applicant’s circumstances. The applicant arrived in Australia [in] January 2010 as an undocumented Unauthorised Maritime Arrival (UMA). He stated that his name is [applicant name] and that he was born on [date] in Kuwait. During the entry interview, the applicant claimed that he and his family are stateless Bedouns from Kuwait, and that they fled Kuwait in 1992 and went to live in Iraq. On 13 February 2010, the applicant applied for a Refugee Status Assessment (RSA) and on 30 March 2010, he was found not to be a refugee. He subsequently applied for an independent review on 31 March 2010 and on 26 May 2010, the Independent Merits Review (IMR) made a positive recommendation. As part of that application, the applicant provided a statement claiming that he is stateless: he does not have “lawful citizenship in Iraq… I obtained my Iraqi passport unlawfully…"

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

[The former counsel] contended that:·The applicant has shown great courage by returning to Iraq in order to “rescue” his family in Iraq. The applicant travelled to Iraq despite his continued fear and the fact that he was not detained or ill-treated on his return to Iraq does not indicate that the applicant never had or no longer has a well-founded fear. The applicant remained in hiding and was “perhaps fortunate” not to be identified when he ventured out and made contact with the authorities.·A recognised refugee is not a person who will almost be guaranteed to face persecution on their return to their home country. The phrase well-founded fear has relevantly been defined by the Courts to mean a real chance of persecution and the fact that a person did not, upon return for a very short period of time, suffer persecution, will not mean that the person no longer faces a real chance of persecution.·The correct information is that the applicant obtained an “S” series passport in [2007] through bribery of the authorities. It is well known that Iraqi passports can be obtained by bribing the authorities and the fact that the applicant had an “S” series passport which was no longer useful for travel would not have impacted on the decision to grant him the visa. ·Despite having genuine fear, the applicant returned to Iraq in order to assist his family as well as his father, including to obtain travel documents for his wife and children to leave Iraq. The applicant continues to fear harm and he is anxious for his family to join him in Australia.Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa) Although the current review concerns cancellation pursuant to s 109 of the Act, the Tribunal received submissions contending that the case of Makasa is relevant to the Tribunal’s determination of this review. By way of background, the High Court in Makasa considered the cancellation regime under s 501(2). Section 501(2) provides:The Minister may cancel a visa that has been granted to a person if:(a) the Minister reasonably suspects that the person does not pass the character test; and(b) the person does not satisfy the Minister that the person passes the character test. The powers conferred by s 501(1) and by s 501(2) can be delegated by the Minister under s 496 of the Act. Where a delegate of the Minister exercises the power conferred by s 501(1) to refuse to grant a visa to a person, or exercises the power conferred by s 501(2) to cancel a visa that has been granted to a person, s 500(1)(b) of the Act allows the person to apply to the AAT for review of the decision of the delegate. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provides that “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing” to affirm, or vary, or set aside the decision under review.