1917114 (Refugee)

[2021] AATA 2669

1917114 (Refugee) [2021] AATA 2669 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917114

COUNTRY OF REFERENCE:                   Albania

MEMBER:Senior Member Dr N Manetta

DATE:31 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a new decision that the applicant’s visa not be cancelled under s 109 of the Migration Act, 1958.

Statement made on 31 May 2021 at 4:47pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Albania – incorrect information in application –undisclosed return visits to Albania – undisclosed offences in third country – applicant visited son – failure to confirm evidence of offences in third country – lack of cogent and compelling evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36, 101, 109

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 by [applicant name] seeking a review of a decision made by a delegate of the Minister for Immigration on 26 June 2019 to cancel his Subclass 866 Protection (Class XA) visa under s 109 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa because she[1] concluded that [the applicant] had provided false answers to questions asked of him in his application for a protection visa contrary to s 101 of the Act.  The delegate further decided to cancel [the applicant]’s visa in the exercise of her discretion. 

   [1] I have assumed the delegate, who signed under [a pseudonym], is female.

3. [The applicant] attended a Tribunal hearing on 11 January 2021. His representative, [named], attended on that occasion as did an interpreter. 

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence before me, I must first decide whether the jurisdictional threshold for the exercise of the discretion to cancel [the applicant]’s visa exists (that is, whether [the applicant] gave inaccurate answers to questions in his visa application form). 

5. Secondly, if [the applicant] has given inaccurate answers in his form, I must determine how the discretion to cancel his visa should be exercised.

6. The matter before the Tribunal is known, technically, as a de novo hearing on the merits. Generally, my obligation in such a hearing is to decide the matter afresh and to reach the correct or preferable decision on the evidence adduced before me.  I note, however, that a part of my review in this case is to decide whether I should conduct an independent de novo assessment in respect of factual findings made in [the applicant]’s favour by the Refugee Review Tribunal in 2013.  I shall refer further to this matter in due course.

   STATEMENT OF CONCLUSION

7. I have concluded that the decision to cancel [the applicant]’s visa should be set aside and a new decision substituted that [the applicant]’s visa not be cancelled under s 109 of the Act.

   BACKGROUND FACTS

8. I set out first the background facts and the procedural history in relation to this matter. [The applicant] was born on [date] and was, therefore, [age] years of age at the time of the hearing before me.  [The applicant], who is a citizen of Albania, arrived in Australia in 2010 on a false passport and under a false name.  The passport was ostensibly issued in [Country 1].  He claimed to be a refugee and sought a protection visa from the responsible Minister.  [The applicant] claimed he had been threatened and assaulted by members of the governing Democratic Party of Albania during an election where he had been an opposition-party observer and had spoken up against voting irregularities.  The falsity of the passport was known to the Australian authorities at the time [the applicant]’s application for a protection visa was decided.

9. [The applicant]’s application was initially rejected by a delegate in the responsible Minister’s Department.  [The applicant] appealed that decision to what was then known as the Refugee Review Tribunal (RRT). The RRT heard evidence from [the applicant]. The RRT accepted the credibility of [the applicant]’s claims and found that he satisfied the criteria specified in s 36(2)(a) of the Act for the grant of a protection visa. That decision was given in January 2013 and a copy of it was in evidence before me.  A protection visa was granted to [the applicant] by the Minister’s delegate in April 2013.

10. After being granted a protection visa, [the applicant] left Australia to travel to Albania on a number of occasions. The delegate accepted, and I accept, that [the applicant] travelled to Albania on these occasions to maintain contact with his son.  [The applicant] would land in [Country 2] and from there travel to Albania. [The applicant] did not disclose Albania as a destination on the immigration cards he was required to fill out on leaving and re-entering Australia. I find that he did so deliberately.

11. The departmental file shows that the department had received an allegation that [the applicant], who said to me that he had entered [Country 1] as a seasonal worker, was accused by the [Country 1] authorities of having committed serious criminal offences in [Country 1] and was obliged to leave [Country 1].  These offences included stealing, cannabis-cultivation, robbery, and human trafficking.  The file records that the person or company making this allegation indicated that it could be confirmed with the [Country 1] Government.  The trips that [the applicant] was making to Albania were also drawn to the attention of the Department.  I cannot be sure whether it was this report that first prompted the Department to re-investigate [the applicant]’s case.

12. On 5 December 2016, a “Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958” was issued to [the applicant] by a delegate who identified himself or herself by [a pseudonym]. The Notice is lengthy and I shall not set it out. Relevantly, the Notice drew to [the applicant]’s attention the following information:

    (a) [the applicant] had returned to Albania a number of times after being granted a protection visa in the years from 2014 to 2016 and concealed that information from the Department;

    (b) [the applicant] had “an adverse history in [Country 1], namely, that you illegally entered [Country 1] in 1997 and 2009, that you have violated the laws pertaining to the [Country 1] traffic code, and that you committed the offence of theft.”  

13. [The applicant] was informed in the Notice that in light of this information, the Department had formed the view that [the applicant] had lied in his visa application form, contrary to s 101 of the Act, when, in answers to questions in the form, he indicated that he feared being harmed in Albania by members of the ruling Democratic Party.  He was further informed that the Department had formed the view that he had failed to answer accurately a question about any charges, convictions, or criminal investigations being undertaken, or having been undertaken in the past, in respect of him.  He had answered this question in the negative.  This answer was said by the Department to be “incorrect as information obtained by the Department indicates that you have been subject to criminal investigation in [Country 1], where you have either been charged with or convicted of offences pertaining to illegal entry to [Country 1], traffic code violations, and theft.”  I infer from other material on file that this allegation may have been based on information received from Interpol.

14. [The applicant] was given 14 days in which to respond to these matters, amongst others.   

15. [The applicant] engaged an agent to respond.  The agent requested additional time to respond to the notice in an email dated 8 December 2016.  On 9 December 2016, the delegate declined the extension on the basis that there was no provision in the Act permitting her to delay her decision.  The delegate indicated, however, that any information received after the 14-day period had elapsed but before a decision was made would be taken into consideration and assessed accordingly. 

16. The agent disputed the lack of any possibility of an extension of time by email on 14 December 2021.  Nevertheless, the agent did file a submission dated 15 December 2021.  I have read the submission.  The submission is written by someone who does not have English as a first language.  I note further that the submission begins off on page 1 by indicating that the agent is writing it on behalf of his client, but then immediately lapses into the first person (”I”, “me”, etc) without quotation marks for the remainder of that page.  Page 2 then uses the customary third person.  On page 1 of the submission, the following statement appears (all errors in the original):

    I did not declare that I have been in [Country 1] because like many Albanians I went there illegally in order to find a passport so that I can leave Albania, the guy that gave me the [Country 1] passport threatened me that if I declare to the authorities that I have been in [Country 1], they will kill me or kidnap a member of my family. The offences in [Country 1] are minor and I have never spent a day in prison there. Because I was illegal there, I had difficulties to prove to Australian immigration that I was in [Country 1] because I had no stamp on my passport.

17. On p 2, the following submission is made (all errors in the original):

    As far as [Country 1] is concerned, [the applicant] did not declare [Country 1] because he had entered the country illegally and had no proof to provide to immigration but above all, he was threatened to mention [Country 1] and he had no choice, he did that out of fear. After all, the criminal offence in [Country 1] is minor in fact, [the applicant] has not spent even a single day in prison.”

18. The submission enclosed a psychologist’s report dated 14 December 2021.  On p. 3, the report refers to the alleged events in [Country 1] as follows:

    I discussed with [the applicant] the allegation of his criminal record and he said that he had spent time in [Country 1] before and after his assault. [The applicant] said that he was in a car in [Country 1] with a previous girlfriend years ago and he was pulled over by the Police. He said that the girlfriend did not have a valid passport and was deported to Albania. [The applicant] was not able to advise me as to the circumstances of the theft conviction.”

19. I note from the departmental file that the delegate believed from the submission that “[the applicant] did not dispute the [Country 1] criminal convictions and advised that he served no period of imprisonment”.  That finding is not justified.  It is not clear to me that [the applicant] has admitted that he is guilty of theft.  The migration agent does refer to the criminal offence or offences being minor, but this seems to be a reference to [the applicant] entering [Country 1] illegally.

20. An “International Treaties Obligations Assessment” was sought in respect of [the applicant] and in particular whether Australia owed [the applicant] any non-refoulement obligations.  The conclusion reached by the author was that no such obligations were owed to [the applicant].  The conclusion reached by the author of the report was essentially that [the applicant] had little credibility and that the political situation in Albania has changed.

21. The delegate identified three inaccuracies in information supplied by [the applicant].  One inaccuracy concerned the omission of his illegal entry into [Country 1], a second concerned the omission of a traffic code violation, and a third concerned the omission of an alleged theft said to have been committed by [the applicant]. In her reasons, the delegate refers to this last matter as being either the subject of an outstanding charge or of a conviction in [Country 1]. That is a very curious way in which to put the matter.  I infer that the delegate did not have conclusive information before her that specified the exact nature of the allegation in this regard nor of its status, if any, in the [Country 1] judicial system.  In my opinion, that information ought to have been obtained by the Department.

22. The delegate proceeded to reason that as [the applicant] had suppressed his illegal entry into [Country 1], the traffic code violation, and the charge/conviction in relation to theft in his application for a protection visa, his general credibility was undermined.  The delegate further reasoned that the multiple trips [the applicant] made to Albania to see his son show he was under no threat there.  Having drawn that conclusion, the delegate then proceeded to find that the answers [the applicant] gave about political persecution in Albania were most likely false and that the decision by the RRT was substantially undermined.

23. The delegate found, therefore, that the jurisdictional threshold for the exercise of the discretion in section 109 to cancel [the applicant]’s visa had been made out in two ways. First, the delegate was satisfied that [the applicant] had lied in his application for a protection visa in respect of the threat of persecution in Albania; and secondly, [the applicant] had further suppressed or omitted to mention what the delegate referred to as [the applicant]’s criminal history in [Country 1].

24. The delegate then formed the view that [the applicant]’s visa should be cancelled in the exercise of her discretion.

25. I turn now to consider the question of the jurisdictional threshold.

    Answers given on the form concerning [the applicant]’s alleged fear of persecution in Albania

26. The delegate decided to reconsider the factual basis for the grant of the protection visa and explicitly disagreed with the findings of the RRT in light of the further information she had to hand.  So far as my review is concerned, I must decide whether I should undertake an independent review afresh of the circumstances underlying the earlier decision of the RRT or whether I should adopt the factual findings of the RRT as part of my review. 

27. This question requires me to decide what jurisdiction I have to re-determine the factual basis underpinning the RRT’s decision, and, if I have a jurisdiction, whether I should exercise it to reach a different decision to that of the RRT.  I note that the RRT had the statutory responsibility of determining [the applicant]’s eligibility for a protection visa and gave the matter very detailed and reasoned consideration.

28. The question of jurisdiction is not a straightforward one.  I am conscious of the fact that I have not had the benefit of legal submissions from the Minister’s Department in relation to this issue. I do not believe I should reach a final decision on this question unless it is necessary to do so. As it is not necessary for me to do so, I am prepared to assume, without deciding, that I do have a jurisdiction to consider afresh the question of whether [the applicant] was telling the truth to the RRT. That is, I am prepared to act on the basis that there is no rule of law that prevents me from considering afresh the circumstances underpinning [the applicant]’s application for a protection visa. 

29. Having said this, however, I am firmly of the view that my jurisdiction to depart from the findings of the RRT in respect of [the applicant]’s eligibility for a protection visa should only be exercised if there is cogent and compelling evidence that supports contrary findings of fact. Otherwise, I believe I should accept the RRT’s factual conclusions.  No such cogent or compelling evidence appears in this case.

30. The delegate’s approach was that [the applicant]’s credibility is inevitably and substantially undermined by his failure to disclose what is referred to as his “criminal history” in [Country 1].  The delegate was also influenced by the fact that [the applicant] has travelled to Albania on multiple occasions without harm, although the delegate also accepted the fact that [the applicant] had a very understandable desire to meet with his son, and described this motivation as “compelling”. The son is a minor and lives with [the applicant]’s former wife from whom he is estranged.

31. In my opinion, the facts that the delegate has relied upon are not cogent or compelling evidence that inevitably contradicts or undermines substantially the factual conclusions reached by the RRT in respect of the persecution [the applicant] was found to face in Albania.  Accordingly, I do not believe it is appropriate for me to depart from the factual findings made by the RRT in respect of the threat [the applicant] faced in Albania on his departure in 2010 on the assumption that I have jurisdiction to decide that question afresh. In my opinion, on the assumption that I do have that jurisdiction, the jurisdiction is appropriately exercised in this case by not departing from the factual conclusions reached by the RRT in 2013.

32. It follows, in my opinion, that for the purposes of my review, I do not accept that [the applicant]’s answers on his protection-visa application form were incorrect so far as they concerned the threat he said he faced in Albania at that point in his life from members of the governing political party.

    Answers given on the form concerning [the applicant]’s criminal history in [Country 1]

33. This leaves the question of whether I am satisfied that [the applicant] gave false answers in relation to any criminal investigations of him in [Country 1], any charges laid against him, or any convictions he had in [Country 1]. 

34. I would say immediately that the traffic code violation to which the delegate referred can be of marginal relevance only.  I shall assume one exists.

35. So far as the alleged theft is concerned, I have already referred to the unsatisfactory way in which this matter is described in the departmental file.  It seems to me that the delegate had no precise understanding of what, if anything, was involved in this regard. I have referred earlier to the delegate’s having spoken in the alternative of either pending charges or a conviction.  I do not know from the file what is alleged to have been stolen. Apparently, no effort was made by the Department to ascertain from responsible [Country 1] authorities what charges, if any, had been laid against [the applicant] and what the final disposition of those charges was according to official records.  [The applicant] denied knowledge of this matter in his evidence before me. 

36. On the evidence before me, I cannot say there was any false statement given by [the applicant] in relation to pending, or concluded, proceedings in [Country 1].  There is an absence of any clear and reliable information in this regard. I am not satisfied that the jurisdictional threshold for the cancellation of [the applicant]’s visa has been made out in this regard.

37. [The applicant] admitted to me that he entered [Country 1] illegally in connection with seasonal work and for the purposes of obtaining a false passport.  The jurisdictional threshold is satisfied in this respect, therefore.

38. I turn now to consider the exercise of the discretion.

    Exercise of the discretion

39. I have found that [the applicant] entered [Country 1] illegally for work purposes and to obtain a false passport. I shall also assume he committed a traffic offence in [Country 1].  These matters ought to have been disclosed in his protection-visa application form but were not.  I do not believe these matters warrant the exercise of the discretion to cancel [the applicant]’s visa.

40. I note that the delegate acknowledged in her reasons that “there is no information to indicate that the visa holder has a serious criminal profile in [Country 1], or that the offences for which he has been investigated would have led to a significant term of imprisonment…”.  I proceed on that basis as well. 

41. I may set out my reasons in respect of the exercise of the discretion briefly.  It is sufficient in my opinion to note that a very significant period of time has elapsed since the application for a protection visa was made by [the applicant].  At the time of the delegate’s decision, [the applicant] had been in Australia for more than 8 years.  He has established himself here in Australia in the construction industry.  He does not have a criminal record in Australia.  I accept his evidence that he provides financial support to his son in Albania from here.  Importantly, [the applicant] is now remarried, and his wife lives here with him.  In my opinion, the correct or preferable exercise of the discretion is to decline to cancel the visa in these circumstances.

1. I have not taken account of the alleged theft charge/conviction in the weighing up of the discretion given my conclusion that it has not been substantiated to my satisfaction.  But I would add that even if I were to include a conviction for theft in the weighing up of my discretion, I would not exercise the discretion to cancel [the applicant]’s visa for the reasons I have given above. 

2. Finally, I note that in exercising my discretion, I have assumed that [the applicant] would face no threat of persecution or harm were he to return to Albania today.

   SUMMARY 

3. In all the circumstances, therefore, my review has led me to the following conclusions:

   (i)On the assumption that I have a jurisdiction to depart from the factual conclusions reached by the RRT in 2013 in [the applicant]’s visa-protection application, I do not believe I should exercise that jurisdiction in this case.  Accordingly, I do not find that the answers [the applicant] gave in his visa-application form concerning his fear of persecution in Albania were incorrect;

   (ii)I do not have sufficient evidence before me to find that [the applicant] wrongly failed to mention in his visa-application form a theft conviction or charge relating to his time in [Country 1];

   (iii)I am prepared to assume that [the applicant] wrongly omitted a traffic violation from his application form when it ought, technically, to have been included;

   (iv)I find that [the applicant] wrongly omitted from the application form the fact that he had unlawfully entered [Country 1]; 

   (v)I do not believe the correct or preferable exercise of my discretion is to cancel [the applicant]’s protection visa.  This remains the case even if I assume [the applicant] also has a theft conviction against his name in [Country 1] and even if I further assume that the threat of persecution [the applicant] used to face in Albania no longer exists. 

   FORMAL DECISION

4. From these conclusions, it follows that I should set aside the decision under review. I shall substitute a new decision that [the applicant]’s visa not be cancelled under s 109 of the Act.

   Dr N Manetta
   Senior Member