2015161 (Refugee)

Case [2022] AATA 1129

2015161 (Refugee) [2022] AATA 1129 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015161

COUNTRY OF REFERENCE:                   Iraq

MEMBER:F. Simmons

DATE:18 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2022 at 8:25pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – incorrect information given in protection visa application and response to department’s notice – fear of harm from extremist groups because of occupation – attacks and threats – claim of travel only to third country, and no return to home country – no initial declaration of wife’s passports or travel to third country, then inconsistent claims and evidence – birth of child nine months later – document examination found scanned copy of wife’s claimed second passport fraudulently generated – country information – anonymous allegation of return to home country cannot be tested – discretion to cancel visa – credibility – grant of visa not based on incorrect information about travel – consistent claims of work history, past harm and chance of future harm because of occupation – non-refoulement – protection finding not overturned – mandatory consequences if visa cancelled – possibility of prolonged or indefinite detention – mental health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2), 99, 101(b), 107(2), 109(1), 179D, 189, 198, 424AA, 438(1)(b), (3), (4)
Migration Regulations 1994 (Cth), r 2.41
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

CASES
AQM18 v MIBP [2019] FCAFC 27
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth v AJL20 [2021] HCA 21
DMH16 v MIBP [2017] FCA 448
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Pochi (1980) 44 FLR 41
NKWF v MIBP [2018] FCA 409
Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197
Sullivan v CASA (2014) 226 FCR 555  
WKMZ v MICMSMA [2021] FCAFC 55
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 dependants.

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 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 had given incorrect information about in his protection visa application in contravention of s 101(b) of the Act. The delegate also found that he gave incorrect information in response to the notice of intention to cancel his visa issued by the Department in contravention of s107(2) of the Act.

  3. The issue for determination in the present case is whether any…

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AGLC
2015161 (Refugee) [2022] AATA 1129
Case
[2022] AATA 1129
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a protection visa holder against the cancellation of his visa. The applicant, an Iraqi national, had claimed he feared harm from extremist groups due to his occupation as an [Occupation 1] and that the Iraqi authorities could not protect him. The Department of Home Affairs had issued a notice of intention to cancel his visa, citing alleged incorrect information provided in his protection visa application and in response to a departmental notice, specifically concerning his wife's passport and travel to a third country, and an anonymous allegation of his return to Iraq. The case came before the Tribunal for review of the cancellation decision.

The central legal issues before the Tribunal were whether the applicant had failed to comply with the provisions of the *Migration Act 1958* (Cth) requiring the provision of correct information and the non-disclosure of bogus documents, and whether the Minister's discretion to cancel the visa had been validly exercised. The Tribunal was also required to consider the impact of public interest immunity certificates on the disclosure of certain information, including a Document Examination Unit report concerning the applicant's wife's passport and an anonymous allegation of the applicant's return to Iraq. The Tribunal had to determine if these alleged failures, if proven, warranted the cancellation of the applicant's protection visa, and if the protection finding itself remained valid.

The Tribunal reasoned that while the Department had presented information suggesting discrepancies in the applicant's claims regarding his wife's passport and travel, and an anonymous allegation of his return to Iraq, these did not necessarily invalidate the core of his protection claim. The Tribunal noted that the grant of the visa was not based on the disputed information about travel. Crucially, the Tribunal found that the applicant's claims regarding his work history, past harm, and the likelihood of future harm due to his occupation in Iraq remained consistent and credible. The Tribunal also acknowledged the potential for prolonged or indefinite detention and the impact on the applicant's mental health if the visa cancellation were upheld.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. This outcome was based on the finding that the applicant's claims for protection were not overturned by the information relied upon for the cancellation, and that the non-refoulement obligations remained paramount. The Tribunal's decision recognised that the applicant's fear of harm upon return to Iraq was well-founded, despite the issues raised regarding his visa application and subsequent information.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is satisfied that the s.438 certificates identify a valid ground of public interest immunity and adequately explain how the disclosure of information would not be in the public interest. The Tribunal’s use and disclosure of the information identified in the certificates is subject to s 438(3) and (4) of the Act. The first certificate relates to a Document Examination Unit report about a copy of the biodata page of passport purportedly belonging to the applicant’s wife and the outcome of this report is referred to in the Notice of Intention to Cancel the applicant’s visa sent to the applicant on1 June 2018. The second certificate relates to an anonymous allegation the applicant returned to Iraq. The gist of this allegation is referred to the ITOA decision dated 2 July 2020 and was also put to the applicant at the Tribunal hearing in accordance with s 424AA of the Act. Background The applicant was born on [Date 1] in Iraq. He is married to [Ms A] who was born in Iraq on [Date 2]. Together they have three children: [Child 1] born on [Date 3], [Child 2] born on [Date 4] and [Child 3], born on [Date 5] . [In] January 2015 the applicant arrived in Australia holding a [Specified temporary visa]. He was granted this visa to travel to Australia as [an Occupation 1] for [an Event]. Shortly after he arrived, on 10 February 2015, he lodged a protection visa. He claimed that in Iraq he worked as [an Occupation 1] for the [Employer], [an] organisation sponsored by state funding. He claimed that he had been threatened and harmed because of his work as [an Occupation 1]. He sought asylum in Australia on the basis that he feared he would be assassinated by armed extremist groups, terrorists, and militias, as had happened to Iraq and foreign [Occupation 1] colleagues. He claimed that the Iraqi authorities were unable to protect him and that he feared returning to Iraq. When the applicant applied for a protection visa he completed a form 866C “Application for a protection visa”. He provided the following information: 90. Why did you leave that country(s)? Provide specific details “I fear returning to Iraq because of the kidnap and killing attempts by the hands of ISIL supporters and some extremist armed militias members. I faced death threats through letter stating “Your time to die is coming soon as you work in the [employer] affiliated with the unfair government”, inside the letter I found a bullet. I reported this matter to the police. I faced assassination attempt and got injured in the [Body part 1] as a result at [an] area in Baghdad. I have been rushed to [Hospital 1]. Before my travel to Australia, I faced assassination attempt when the attackers shoot at my car, my father passed away and couldn’t survive this big shock. On 22/10/2014 the terrorists attacked my place; they searched it and took some photos for me with [a Person], also some appreciation letters (I used to work with [a foreign Employer] and [do a job task]). I also used to sleep in [Locations]. I faced death threats after [doing a job task] in Baghdad, I have been shot in the [Body part 2] and was rushed to [Hospital 2] for treatment91. What do you think will happen to you if you return to that country(s)? “I will face assassination by the hands of the armed terrorist militias members and extremist armed groups as it happened to my colleagues the Iraqi and foreigners [Occupation 1s].” 92. Did you experience harm in that country(s)? “Yes” “I fear returning to Iraq because of the kidnap and killing attempts by the hands of ISIL supporters and some extremist armed militias members. I faced death threats through letter stating, “Your turn to die is coming soon as you work in the [Employer] affiliated with the unfair government”, inside the letter I found a bullet. I reported this matter to the police. I faced assassination attempt and got injured in the [Body part 1] as a result at [an] area in Baghdad. I have been rushed to [Hospital 1]. Before my travel to Australia, I faced assassination attempt when the attackers shoot at my car, my father passed away and couldn’t survive this big shock. On 22/10/2014 the terrorists attacked my place; they searched it and took some photos for me with [a Person], also some appreciation letters (I used to work with [a foreign Employer] and [do a job task]). I also used to sleep in [Locations]. I faced death threats after [doing a job task] in Baghdad.” 93. Did you seek help within the country(s) after the harm? “Yes” “I reported this matter to the police” 94. Did you move, or try to move, to another part of that country(s) to seek safety? [No response was provided] 95. Do you think you will be harmed or mistreated if you return to that country(s)? “Yes” “The terrorist armed militias especially the ISIL militants and supporters”. 96. Do you think the authorities of that country(s) can and will protect you if you go back? “No” “The Iraqi authorities are unable to protect me, they are in fact unable to protect themselves from bombings, assassinations and kidnap.” 97. Do you think you would be able to relocate within that country(s)? “No” “I will face assassination by the hands of the armed terrorist militias members and extremist armed groups as it happened to my colleagues the Iraqi and foreigners [Occupation 1s].”

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. Restrictions on the disclosure of information The Department's file contains two certificates dated 28 October 2020 restricting the disclosure of certain information given to the Tribunal by the Department under s.438 of the Act. The first certificate is issued under s 438(1)(b) and states that the disclosure of the information contained would be contrary to the public interest as it contains 'documents or information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods'. The second certificate is issued under section 438(1)(b) of the Act and relates to information that was given to Department in confidence. The Tribunal is satisfied that the s.438 certificates identify a valid ground of public interest immunity and adequately explain how the disclosure of information would not be in the public interest. The Tribunal’s use and disclosure of the information identified in the certificates is subject to s 438(3) and (4) of the Act. The first certificate relates to a Document Examination Unit report about a copy of the biodata page of passport purportedly belonging to the applicant’s wife and the outcome of this report is referred to in the Notice of Intention to Cancel the applicant’s visa sent to the applicant on1 June 2018. The second certificate relates to an anonymous allegation the applicant returned to Iraq. The gist of this allegation is referred to the ITOA decision dated 2 July 2020 and was also put to the applicant at the Tribunal hearing in accordance with s 424AA of the Act. Background The applicant was born on [Date 1] in Iraq. He is married to [Ms A] who was born in Iraq on [Date 2]. Together they have three children: [Child 1] born on [Date 3], [Child 2] born on [Date 4] and [Child 3], born on [Date 5] . [In] January 2015 the applicant arrived in Australia holding a [Specified temporary visa]. He was granted this visa to travel to Australia as [an Occupation 1] for [an Event]. Shortly after he arrived, on 10 February 2015, he lodged a protection visa. He claimed that in Iraq he worked as [an Occupation 1] for the [Employer], [an] organisation sponsored by state funding. He claimed that he had been threatened and harmed because of his work as [an Occupation 1]. He sought asylum in Australia on the basis that he feared he would be assassinated by armed extremist groups, terrorists, and militias, as had happened to Iraq and foreign [Occupation 1] colleagues. He claimed that the Iraqi authorities were unable to protect him and that he feared returning to Iraq.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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