1912750 (Refugee) - [2021] AATA 4634

1912750 (Refugee) [2021] AATA 4634 (12 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912750
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Alison Murphy
DATE:12 October 2021
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 12 October 2021 at 11:26am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information provided in visa application – education, employment, experiences and fears on return – threats from person wanting applicant and family to join political party or militia – voluntary returns and family’s location at the time – references on social media inconsistent with evidence in application – returned to Iraq before father’s death and to support mother – other incorrect information on profile – broadly consistent and credible information provided in multiple interviews – copy of father’s death certificate provided – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A, 101, 107, 109(1)
CASE
Zhao v Minister for Multicultural Affairs [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 dependants.
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 Home Affairs 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 considered the applicant gave incorrect information in his protection visa application. 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 on 8 October 2021 to give evidence and present arguments. 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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a [Age 1]-year-old male born in [a] village near Basra, Iraq on [Date]. He is of Shia Muslim religion. He arrived in Australia by boat [in] October 2010 and lodged an application for a refugee status assessment in February 2011.
On 15 April 2011 a Refugee Status Assessment (RSA) officer assessed that the applicant did not engage Australia’s protection obligations. The RSA officer’s decision was reviewed by an Independent Merits Review officer who found that the applicant met the criteria for a protection visa and recommended that he be recognised as a person engaging Australia’s protection obligations on 30 March 2012.
On 29 June 2012 the Minister exercised his discretion under s.46A to allow the applicant…

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 1912750 (Refugee)

Details

AGLC: 1912750 (Refugee) [2021] AATA 4634
Case: [2021] AATA 4634
Decision Date: 12 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant from Iraq. The cancellation was based on allegations that the applicant had provided incorrect information in his original protection visa application concerning his education, employment history, experiences in Iraq, and fears upon return. The grounds for suspicion included inconsistencies between his application statements and information obtained from social media posts and his travel history, particularly regarding his family's relocation and the timing of his father's death.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect answers in his visa application, as particularised in the notice issued under section 107. This involved determining if the information regarding his education, employment, and reasons for leaving Iraq was indeed incorrect, and if so, whether this non-compliance warranted the cancellation of his protection visa. The Tribunal was required to reach a real state of satisfaction that a ground for cancellation existed, rather than merely identifying a possible ground.

The Tribunal considered the applicant's explanation for the apparent discrepancies, including that a social media post indicating graduation in 2010 was intended for keeping in touch with classmates and did not reflect an actual graduation. The Tribunal found that the evidence presented did not establish, to the required standard of satisfaction, that the applicant had provided incorrect information regarding his education or employment. Furthermore, the Tribunal was not satisfied that the applicant's travel to Iraq and subsequent social media activity demonstrated non-compliance with section 101. Consequently, the Tribunal concluded that the discretionary power to cancel the 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. BACKGROUND The applicant is a [Age 1]-year-old male born in [a] village near Basra, Iraq on [Date]. He is of Shia Muslim religion. He arrived in Australia by boat [in] October 2010 and lodged an application for a refugee status assessment in February 2011. On 15 April 2011 a Refugee Status Assessment (RSA) officer assessed that the applicant did not engage Australia’s protection obligations. The RSA officer’s decision was reviewed by an Independent Merits Review officer who found that the applicant met the criteria for a protection visa and recommended that he be recognised as a person engaging Australia’s protection obligations on 30 March 2012. On 29 June 2012 the Minister exercised his discretion under s.46A to allow the applicant to lodge an application for a protection visa and the applicant was subsequently granted a Class XA Subclass 866 Protection visa on 3 July 2012. On 20 March 2017 he applied for Australian citizenship by conferral and the delegate’s decision indicates that application is still being processed. On 9 April 2018 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (the s.107 notice), advising him that the Department of Immigration and Border Protection was considering cancelling his protection visa on the ground that it considered he had provided incorrect information in his protection visa application about his education, his employment history, his experiences in Iraq and fears on return. In particular the s.107 notice set out that the applicant had declared (in brief summary) that he had [number] years schooling before finishing and working as [an Occupation 1] for two years, ceasing this work when he injured his back. At about [Age 2] he started working for [Employer 1] to support his family in a [specified] role, at [a workplace] at Hilla where he worked first as a trainee and then as [an Occupation 2]. He claimed that he started to receive phone calls from a person wanting the applicant and his family to join a new independent party or anti-government militia, which was common at the time. When the applicant and his family refused, the caller told him that their choice was to work for them or be killed. The applicant quit his job and he and his family moved to Kerbala, where the applicant continued to receive threatening phone calls. The applicant asked the [Employer 1 supervisor] what he should do but the [supervisor] told him that he was also receiving calls and there was nothing that could be done. His father decided the applicant should leave Iraq and so he did. The s.107 notice set out that the Department had become aware of information indicating the answers the applicant provided in his protection visa application were incorrect. That information was identified as follows:·That the applicant returned to Iraq between [October] 2012 and [January] 2013. On return he was interviewed by a border officer who stated he had travelled to Iraq as his father had passed away and stayed in his mother’s home in Basra while he was there. The notice set out that this contradicted his statement in his protection visa application that the family had relocated to Kerbala in an attempt to escape the people making threatening calls. The notice alleges that this indicates the applicant’s family did not relocate to Kerbala and the threatening calls did not occur. The notice sets out that the applicant again returned to Iraq between [December] 2014 and [February] 2015;·That on 18 January 2015 the applicant posted on [Social media 1] a photograph of himself superimposed against photographs of an older man, to which numerous people had posted messages of condolence, one of them being ‘God have mercy on your father [Mr A]’. The s.107 notice alleges that this post indicated the applicant’s father had only recently died and contradicts the applicant’s statement to the airport officer [in] January 2013 to the effect that he had travelled to Iraq at that time because his father had passed away and indicated he did not have a compelling reason to return to Iraq or a genuine fear of harm in that country;·That in a [Social media 1] post dated [date] the applicant indicated that he had graduated from [High School 1] in Iraq, indicating that he was there less than 3 months before travelling to Australia and did not leave high school in 2006 and did not work as [an Occupation 1] or for [Employer 1] as claimed. The notice suggests this indicates the applicant’s claims to have received threats due to his work [with Employer 1] were not true.

Evidence

Evidence Before The Court

In the present matter, the notice is somewhat confusing but it is not suggested that the notice is deficient or invalid. 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.CONSIDERATION OF CLAIMS AND EVIDENCEWas 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:·In relation to the details of his education and employment at questions 37 and 41 of Part C;·In relation to the reasons why he left Iraq, his claims to have experienced harm in Iraq and his fear of harm on return to Iraq at questions 42–48 of Part C. The reasons given in that notice for suspecting the above information is incorrect relate to the applicant’s voluntary returns to Iraq since being granted the visa as well as two [Social media 1] posts that are alleged to contradict other information given by the applicant. A mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision maker has identified a possible ground for cancellation which the visa holder has not been able to rebut.[1] [1] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32] Did the applicant give incorrect information about his education and employment? The s.107 notice alleges that the applicant gave incorrect information about his education in his protection visa application. The incorrect information is stated to be that the applicant finished school in 2006 (after completing [number] years schooling) before working as [an Occupation 1] for two years and later in a [specified] role for [Employer 1]. The sole basis for this finding is a [Social media 1] post appearing on the applicant’s [Social media 1] page indicating he graduated from [High School 1] in 2010, contradicting his statement in his protection visa application that he left that school in 2006. The applicant agrees that the post appeared on his [Social media 1] account, but states that it was only to keep in contact with his graduating classmates and he did not himself graduate, having left school some years before. The delegate did not accept this to be true, considering that it was not necessary for the applicant to say on [Social media 1] that he had graduated, rather than simply attended the school in 2005 and 2006. The delegate considered it was illogical that this would help the applicant stay in touch with his former classmates because they would know he did not graduate in 2010 and so would not identify him through the post. The delegate concluded that the applicant had in fact graduated from high school in 2010, which meant that he had not finished school several years earlier and worked as [an Occupation 1] and [an Occupation 2] for [Employer 1] as claimed in his protection visa application.

Decision

Reasons for decision

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