2205106 (Refugee) - [2023] AATA 2390

2205106 (Refugee) [2023] AATA 2390 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rayan Hazim
Ms Aya El Kady

CASE NUMBER:  2205106
COUNTRY OF REFERENCE:                   Iran
MEMBER:Brendan Darcy
DATE:5 May 2023
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 05 May 2023 at 11:32am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect answers given in entry interview and visa application – stateless Faili Kurd – relatives’ Iranian citizenship declared in interviews or applications, listing applicant as family member – citizenship and ground for cancellation conceded – discretion to cancel visa – fear of harm as secular/atheistic Faili Kurdish woman and returned failed asylum seeker – anti-government opinions and participation in protests in Australia – poor economic and human rights environment – departure on own, genuine passport – no profile of interest or genuine fear of harm – mental health diagnoses and treatment – deteriorating behaviours and vulnerability – physical health – turbulent relationship and separation from husband – young adult children permanent residents and young minor child a citizen – adverse impact of separation on applicant and best interests of minor child – non-refoulement and strong likelihood of indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 438(1)(b)
Migration Regulations 1994 (Cth), r 2.41
CASES
CSV15 v MIBP [2018] FCA 699
DFO19 v MICMSMA [2023] FCAFC 38
MIAC v Khadgi (2010) 190 FCR 248
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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in relation to a Protection visa application which was granted in 2012, and that delegate found the grounds for the cancellation outweighed other matters.
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 2 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, [Mr A], and her two adult children, [Mr B] and [Ms C].
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

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 2205106 (Refugee)

Details

AGLC: 2205106 (Refugee) [2023] AATA 2390
Case: [2023] AATA 2390
Decision Date: 5 May 2023

CaseChat Overview and Summary

The applicant, an Iranian Faili Kurd, sought review of a decision to cancel her protection visa. The applicant had arrived in Australia in 2010 as an illegal maritime arrival, claiming to be stateless and fearing persecution in Iran due to her ethnicity and religious beliefs. She was granted a protection visa in 2012. However, the delegate formed the view that the visa had been granted wholly or partly on incorrect information, specifically regarding her nationality, and issued a notice of intention to cancel the visa under section 107 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the cancellation of the applicant's protection visa was justified. This involved determining whether the visa was granted based on incorrect information, and if so, whether the delegate's discretion to cancel the visa was exercised correctly, considering the applicant's circumstances and the potential consequences of cancellation. The Tribunal was also required to consider the applicant's claims regarding the reasons for providing incorrect information, including fear of refoulement and the influence of smugglers.

The Tribunal found that the applicant had indeed provided incorrect information regarding her nationality, as she possessed Iranian citizenship. It acknowledged that the visa grant was based on this incorrect information. However, the Tribunal placed considerable weight on the applicant's explanation for the non-compliance, which included fear of persecution in Iran as a Faili Kurd, alleged coercion by smugglers to destroy identity documents and mislead authorities, and the impact of her young age and difficult circumstances at the time of arrival. The Tribunal also considered the applicant's current circumstances, including her mental and physical health, her relationship breakdown, and the presence of her Australian citizen minor child and permanent resident adult children, noting the adverse impact separation would have on them.

The Tribunal set aside the decision under review. It concluded that while the visa was granted based on incorrect information, the applicant's explanation for this non-compliance, coupled with her current vulnerabilities and the best interests of her minor child, weighed against cancellation. The Tribunal found that the applicant had a genuine fear of harm if returned to Iran and that the principle of non-refoulement was engaged, with a strong likelihood of indefinite detention.

Orders

Orders of the court

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Background

Background to the litigation

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.Background [In] October 2010, the applicant arrived at Australia’s Christmas Island territory in the Indian Ocean as an illegal maritime arrival (IMA), seeking protection on account of being a Faili (Feyli) Kurd and living as a stateless and undocumented refugee in the Islamic Republic of Iran. On 23 October 2010, the applicant attended an entry interview with an Australian official (with the assistance of an interpreter in the Faili Kurdish language). The applicant provided the name [the applicant]. She provided the details that she was born in Tehran on [Date]; that she was stateless; and that she did not travel with genuine identity documents. She further explained that she was ethnically Faili Kurdish and a Muslim. The applicant travelled with her husband and two children. She further advised that she had [brothers] and [sisters], all of whom where also stateless Faili Kurds. On 28 November 2010, the applicant, as part of a Refugee Status Assessment (RSA) submitted a visa application form which included completed Form 80, a completed Form 866 and a signed Statutory Declaration. She was supported by the Immigration Advice and Application Assistance Scheme (IAAAS), and an interpreter in the Faili Kurdish and English languages The statutory declaration stated she was a [Age]-year-old stateless Faili Kurd, born in Tehran, and that she feared returning to Iran. Before she was born, her parents, brother and sister were expelled from Iraq by Saddam Hussein, and did not receive any identity documents or refugee cards when they entered in Iran. The applicant was able to attend school as she or her family paid fees and bribes to the school administration. They feared being discovered as Faili Kurds because Iraqis were responsible for the deaths of Iranian soldiers. Without identity documents the applicant’s family were unable to buy a house; did not have government health insurance; would not open bank accounts or borrow money from banks. When she married her husband, they were not able to register the marriage. In the past, the Basij detained the couple, accusing them of behaving immorally because they could not produce a proper certificate to demonstrate their marriage. If forced to return to Iran, she feared the Basij would accuse her of committing ‘zina’ or being sent back to Iraq. On 1 December 2010, the applicant attended an interview with a departmental officer. The applicant repeated the written claims and added that she faced discrimination because she wore dark makeup and did not cover her hair properly. On 17 February 2011, a departmental delegate was not satisfied that the level of discrimination the applicant would face as a female Faili Kurdish without citizenship would lead to the applicant facing persecution, and refused to grant the applicant a Protection visa.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This case involves the applicant having provided incorrect answers on her visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant in this case and the Tribunal gives it no weight.whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document In this matter, the grant of the visa in June 2012 to the review applicant was based wholly on incorrect information about the applicant’s lack of nationality in his country of former habitual residence, the Islamic Republic of Iran. Namely, the applicant argued that she faced a well-founded fear of being persecuted by the authorities and its discriminatory practices towards stateless Faili Kurds, and that this enlivened Australia’s protection obligations under the Refugees Convention. Had the applicant provided the correct information at the time of application or corrected the information before the grant of the visa, the Department is very likely to have reached a different and less favourable decision about whether to grant the visa. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelledthe circumstances in which the non-compliance occurred As part of her response to the NOICC, as well as her written and oral evidence to the Tribunal, the applicant claimed the following about her circumstances in which the non-compliance occurred:· The applicant departed Iran in 2010 because the applicant and her family were from a poor area of Tehran, and they faced discrimination as Faili Kurds; · The applicant had experienced severe harassment by the Basij members because of her gender and ethnicity; · Smugglers arranged the applicant and her family to leave Iran on their Iranian passports and travel to Indonesia;· The smugglers prior to boarding and/or while on board a vessel traveling to Australia told the applicant and her family to destroy their Iranian identity documents and to deceive the Australian Government about their citizenship or risk being returned to Iran;· In transit to Christmas Island, the applicant and her family consumed anti-motion sickness medication provided to them by the smugglers and were generally malnourished and dehydrated, which affected the applicant’s state of mind; · The applicant was young at the age of [Age] and had two young children, and returning to Iran ‘would be the equivalent to death’; · When they were initially interview, the applicant and her husband told the authorities in Australia that they were stateless Faili Kurds because they feared being forcibly returned to Iran and she feared for the safety of her family; and· The applicant maintained the fabrication that she was a stateless right up until she lodged her visa application for a Protection visa in 2012 because she feared being persecuted if she was returned to Iran. The Tribunal asked the applicant the reasons she maintained the fabrication that she lacked any nationality for two years, and given she had legal and interpreting support two years after she arrived and that she knowingly and deliberately misled the Australian authorities. The applicant repeated her fears of being returned to Iran.