2205984 (Refugee)

Case [2024] AATA 1568

2205984 (Refugee) [2024] AATA 1568 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:David Godwin

CASE NUMBER:  2205984

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Melissa McAdam

DATE:31 January 2024

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 31 January 2024 at 12:06pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – incorrect information in the visa application – identity details – previous visa application – family in Australia – employment assisting Western forces – non-refoulement obligations – marriage to an Australian citizen – visa grant not based upon the incorrect information – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 116, 140, 189, 197, 198, 359
Migration Regulations 1994, r 2.41

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)

Tarasovski v MILGEA (1993) 45 FCR 570
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 (Cth) (the Act).

  2. The applicant was represented in relation to the review.

  3. The delegate cancelled the visa on the basis that the applicant had not complied with obligations under s 101(b) 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 be cancelled.

  4. The applicant arrived in Australia by boat [in] October 2010. He applied for an onshore Protection visa in Australia.  On 4 May 2011 he was granted a Protection visa.

    NOICC

  5. On 8 November 2021 a department delegate provided to the applicant a Notification of Intention to Consider Cancellation of his Protection visa (‘the NOICC’).  In the NOICC the delegate set out the following:

    I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:

    Section 101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    (b) no incorrect answers are given or provided.

    …

    Evidence of the non-compliance

    You arrived in Australia [in] October 2010, as an irregular maritime arrival (IMA). In your entry interview held on 26 November 2010, you provided the following information in respect to your identity:

    Family name [Family name 1]
    Given name [specified]
    Alias Name -
    Date…

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2205984 (Refugee) [2024] AATA 1568
Case
[2024] AATA 1568
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel a protection visa granted to the applicant, who was from Iraq. The dispute arose because the applicant had provided incorrect information in his onshore Protection visa application, specifically by answering "no" to questions regarding whether he had any close relatives in Australia and whether he had previously applied for a Protection visa or refugee status. The decision under review was made by the Department of Home Affairs, and the case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant's protection visa should be cancelled pursuant to section 109(1) of the Migration Act 1958 (Cth), given that non-compliance with section 101(b) had been established. This required the Tribunal to consider whether the visa grant decision was based wholly or partly on incorrect information or a bogus document, the circumstances in which the non-compliance occurred, and other prescribed circumstances relevant to the exercise of the cancellation discretion.

The Tribunal reasoned that while the applicant had indeed provided incorrect information regarding his identity and previous visa applications, the decision to grant the protection visa was primarily based on his well-founded fear of persecution in Iraq due to his work with Western forces. The Tribunal found that the visa grant was not based, wholly or partly, on the incorrect information provided. Furthermore, the Tribunal acknowledged the applicant's difficult circumstances upon arrival in Australia, including his youth and detention, and accepted that he may have been ill-advised or sought to optimise his chances of obtaining a visa by concealing his prior failed application and family in Australia. However, the Tribunal also noted that the importance of providing correct information had been repeatedly explained to the applicant, and he had the assistance of a migration agent.

Ultimately, the Tribunal determined that while non-compliance with section 101(b) had occurred, the discretionary power to cancel the visa under section 109(1) should not be exercised. The Tribunal set aside the decision to cancel the applicant's protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The December 2015 Norwegian LandInfo report, ‘Iraq: Travel documents and other identity documents’, contains the following:All Iraqi citizens should carry a national ID card. The ID card is issued at the local offices of the Civil Status Affairs Directorate, situated all over the country. Iraqis abroad can give a relative in Iraq a power of attorney to apply for a replacement of a lost or damaged ID card or apply through an embassy. Many fraudulent ID cards are circulating.…All Iraqi nationals must have a national civil ID card. The card must include the following data: • Personal name (ism) • Name of father and paternal grandfather (nasab) • Surname (laqab) • Name of mother and maternal grandfather • Gender • Signature of authorised representative • Date of issue • Signature of issuer • Full name of issuer • Date of birth in digits and letters • Place of birth • Marital status • Name of spouse • Religious affiliation The right-hand side of the card’s front page contains the name of the issuing regional office, a register number indicating the number of the family book in which the person is registered, as well as the page number in the family book. The serial number is entered on the top left-hand side. The font of the serial number is serif, and the figures increase in size. These digits and the signature of the issuer give an indication of the authenticity of the card (Swedish Migration Agency, 2009). The card is called Bitaka shakhsiyeh in Arabic, but is sometimes also called Bitaqa hawwiya. All Iraqi nationals are issued such a card on the basis of the information in the family register. New-borns are issued their first ID card on the basis of their birth certificate and their parents’ ID cards (GDN, meeting in Baghdad, April 2012). The card can be renewed several times and should be renewed in connection with changes in marital status and relocation. A new date of issue and a new serial number are entered on the new card. There are no duplicates of the ID card, but the old serial number is entered by hand below the new serial number on the new ID card. Sometimes the word ‘renewal’ is written above the new serial number (Norwegian ID Centre, 2013). According to the Director-General of GDN (Meeting, April 2012), it is normal for children to be issued an ID card from the age of one. ID cards must be renewed at the population registration office where the person is registered. The ID card is deemed to be the most important personal document, since it is used in all contact with the public authorities, the health service, the social welfare services, schools, and when buying and selling houses and cars. In addition, the ID card must be presented when applying for other official documents, for example a passport. …All ID cards have a hologram affixed to the photo. The hologram is produced outside Iraq, and the number on the hologram is just a serial number from the manufacturer (Norwegian ID Centre, 2013). The Iraqi Directorate of Identity Affairs has informed the Norwegian ID Centre that it registers which hologram series are sent to which offices. The hologram contains a security element that should be destroyed if someone attempts to remove it after the hologram is affixed (Norwegian ID Centre, 2013). …WHERE ARE ID CARDS ISSUED? ID cards are issued by the local population registration offices (Civil Status Departments). They are found across the country and in most cities and governorate capitals. ID cards can only be issued in the district where someone is registered. …7.3 APPLICATION PROCEDURE Applicants must contact the local population registration office in the governorate where they are registered and present the necessary documentation. A husband can apply for and be issued civil ID cards for his wife and children, unless it concerns an application to replace a lost ID card. In such case, everyone except children under the age of 12 must meet in person (GDN, meeting in Baghdad, April 2012). 7.4 DOCUMENTATION REQUIREMENTS To be issued an ID card, applicants must fill in an application form signed by the head of the household, a guardian or a lawyer, and enclose two passport photos. They must also be able to document their identity by submitting a birth certificate (upon first issuing) and the ID card of a close relative such as their father or grandfather. It costs 1,000 Iraqi dinars (approximately USD 8) to be issued an ID card (GDN, meeting in Baghdad, April 2012). …7.5 CHECKING PERSONAL DATA The population registration offices are tasked with issuing ID cards to local Iraqi nationals. The offices check the information provided against the family registers before issuing ID cards. The system is not electronic, but the local population registration offices send the information to the central population register in Baghdad (GDN, meeting in Baghdad, April 2012). If an ID card is lost, the applicant’s identity can be approved on the basis of his/her father or brother’s ID card, which is then checked in the same way (GDN, meeting in Baghdad, April 2012). 7.6 ID CARDS ISSUED VIA A PROXY In Iraq, ID cards can be issued via a proxy. A husband and father can apply for and be issued ID cards for his wife and children. If the card is lost, however, the holder must meet in person to be issued a new card (GDN, meeting in Baghdad, April 2012). This does not apply to children under the age of 12. It is also possible to authorise another person to apply for an ID card on one’s behalf. In such case, it is normal to ask a relative for help. The identity of both the applicant and the authorised person must then be documented. …7.7 OBTAINING ID CARDS FROM ABROAD 7.7.1 Applying for a national ID card from abroad Iraqi nationals can apply for new ID cards via the Iraqi embassy in Oslo (the Iraqi embassy in Norway, email, March 2013). Alternatively, Iraqis in Norway can authorise a proxy to apply for and collect an ID card at the local population registration office where they are registered. When applying for a new card via a proxy, the applicant must issue a written authorisation to a person in the applicant’s home country. The authorisation shall be sent via the embassy in the country where the applicant is staying, and the embassy must stamp the letter. This can be difficult if the applicant is unable to verify his/her identity, however. This means that the applicant must present a passport, a birth certificate, an old ID card or a nationality certificate. When the consul in Norway was asked whether it was likely that a local population registration office issued new ID cards via a proxy in return for payment in cases where the authorisation had not been certified by an embassy, the consul said that it was possible (Iraqi embassy in Norway, telephone conversation, March 2012). An ID card issued to a proxy without an authorisation stamped by an embassy is considered valid in Iraq as long as the ID card itself is genuine. All ID documents issued in Iraq to nationals living or staying abroad must be certified by an Iraqi embassy or consulate in the country where the Iraqi national is staying, or, if relevant, by another embassy if the host country does not have an Iraqi embassy (Iraqi Ministry of Foreign Affairs, n.d.b). …All cards are printed in the same place and sent to the governorates in serial number order. The local population registration offices in the governorates fill in the personal details by hand, affix the photo and stamp the card.…Information that Landinfo has received over time through the Norwegian embassy in Jordan from diplomatic sources in Amman who do not wish to be quoted directly, indicates that up to 50 per cent of the ID cards in circulation may be fake. According to information from diplomatic sources in Amman in 2011 (as quoted by the Norwegian embassy in Jordan, email, February 2011), it is supposedly still relatively easy to buy fake or stolen ID cards in Iraq. The same sources say that they have seen both fabricated ID documents and genuine ID documents that have been altered. The paper quality and background print will often reveal if the ID card itself is fabricated. These cards have unclear prints and may lack fibres, or there may be errors in the fibre pattern. Many fake ID cards that appear genuine can contain both genuine and false personal data. According to diplomatic sources in Amman, the most common signs of forgery in these cards are false stamps with spelling mistakes and false document numbers. According to the Norwegian ID Centre (2013), there are quite a few fake Iraqi ID cards with genuine holograms. According to a Western embassy in Amman (as quoted by the Norwegian embassy in Jordan, email, February 2011), ID cards are the most frequently forged personal documents, second only to birth certificates.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

The Tribunal therefore is satisfied that the applicant provided incorrect information in his onshore Protection visa application when he answered no to the question as to whether he had any close relatives in Australia.Conclusion on non-compliance For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in three of the ways described in the s 107 notice, namely his incorrect answers to questions 2 and 10 in Form B and to question 4 in Form C of the Form 866 visa application for his subclass 866 visa.Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:· the correct information· the content of the genuine document (if any)· 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· the circumstances in which the non-compliance occurred· the present circumstances of the visa holder· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act· any other instances of non-compliance by the visa holder known to the Minister· the time that has elapsed since the non-compliance.· any breaches of the law since the non-compliance and the seriousness of those breaches· any contribution made by the holder to the community.The correct information The correct information is that the applicant has been known by different names, he has a brother in Australia and he applied for a subclass 202 visa prior to his onshore Protection visa application. This information encompasses significant and relevant details about the applicant, his identity, and his past. It should have been correctly declared in his visa application. The Tribunal gives this factor weight in favour of exercising the discretion to cancel the applicant’s visa.The content of the genuine document (if any) This not a relevant factor in this matter.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. The decision to grant the applicant a Protection visa was primarily based upon the threat to the applicant in Iraq from Shia militia due to his [occupation 1] work at [Agency 1]. As a result of this work the applicant was found to have a well-founded fear of persecution for reason of his imputed political opinion in Iraq.

Ratio Decidendi

Legal Principle Established

This not a relevant factor in this matter.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. The decision to grant the applicant a Protection visa was primarily based upon the threat to the applicant in Iraq from Shia militia due to his [occupation 1] work at [Agency 1]. As a result of this work the applicant was found to have a well-founded fear of persecution for reason of his imputed political opinion in Iraq. The decision to grant the visa was not based upon names the applicant had been known by; whether or not he had close relatives in Australia; or whether or not he had previously applied for a Protection visa or refugee status. If the correct information had been included in the applicant’s onshore Protection visa application then obviously cross-referencing with his subclass 202 application and his brother’s details would have raised concerns about the accuracy of some of the details of the applicant’s claim for protection. However the visa grant decision itself was not partly or wholly based upon the specific incorrect information. The Tribunal therefore gives this factor weight against the exercise of the discretion to cancel the applicant’s visa.The circumstances in which the non-compliance occurred. At the time the non-compliance occurred the applicant was either [age] or [age] years old and had recently arrived in Australia by boat from Indonesia. The applicant was being held in immigration detention on Christmas Island initially, and later in a Melbourne detention facility. The Tribunal accepts that the situation the applicant found himself in upon arrival would have been unfamiliar, uncertain and frightening, especially for a minor but even so for a young man. The Tribunal accepts that the applicant’s predominant goal would be to obtain a visa so he could be released from detention and not be returned to Iraq. When applying for his on-shore visa the applicant would have been aware that his previous subclass 202 visa application had been refused by the Department. The Tribunal accepts that the applicant would likely be receiving advice from other asylum-seekers, and possibly from his brother, as to what to say or not say in his visa application to optimise the chance he would be granted the visa. The Tribunal accepts such advice may be ill-informed. Whether he was ill-advised or even acting entirely independently of external advice it is plausible he would decide it better to conceal the existence of a prior failed visa application. To conceal this he would also have to alter his identity and not declare the presence of his brother in Australia, to avoid data record checking. The applicant’s decision to provide the incorrect information is not justifiable because of the circumstances the applicant was in at the time. The importance of providing correct information in his application, and the consequences for failing to do so, were repeatedly highlighted and explained to him throughout the course of his application. He also had the assistance of a qualified migration agent during the process whose advice on these matters he could have sought and relied upon.