1511806 (Refugee) - [2016] AATA 3390

1511806 (Refugee) [2016] AATA 3390 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511806
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Sue Raymond
DATE:3 March 2016
PLACE OF DECISION:  Adelaide
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 03 March 2016 at 1:09pm

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

This is an application for review of a decision made [in] August 2015, by a delegate of the Minister for Immigration, 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 she determined that there was non-compliance by the visa holder with section 101 of the Migration Act, namely, subsection 101 (b) of the Act. The delegate considered the response from the applicant’s representative, had regard to certain prescribed circumstances and determined that the visa should be cancelled. The details in relation to the notice, and decision relating to the cancellation, are further discussed below.
The issues in the present case are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal [on] 9 February 2016 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 who also attended the hearing. The Tribunal records its gratitude for the quality and detail of the representative’s submissions.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should set aside.
Background
The following information about the applicant’s immigration history is summarised and drawn from the written submission of the applicant’s representative dated 8 February 2016:
The applicant is a [age]-year-old Iraqi citizen born on [date] in Kerbala (also referred to in the documentation as Karbala), Iraq. The applicant’s parents and [siblings] were also born in Kerbala, Iraq.
[The applicant] entered Australia [in] March 2008 as the holder of a [temporary] visa. [In] April 2008 the applicant lodged a protection visa application in Australia. [In] June 2009, the Department of Immigration granted the applicant a protection visa. [The protection visa was granted on the basis that [the applicant] was owed protection obligations for the purpose of section 36 of the Migration Act and met the prescribed regulations for the grant of a Protection (Class XA) subclass 866 visa. The applicant had claimed protection if he was forced to return to Iraq]
[In] August 2009 the applicant travelled to [Country 1]. In about September 2009 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.

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Details

Case: [2016] AATA 3390
Decision Date: 3 March 2016

CaseChat Overview and Summary

The applicant, a non-citizen, challenged the cancellation of his protection visa, issued under the Migration Act 1958 (Cth), by a delegate of the Department of Immigration and Border Protection. The central issue for the Tribunal was whether the notice issued by the Minister’s delegate, pursuant to section 107 of the Act, was valid. If the notice was invalid, the power to cancel the visa under section 109 of the Act would not arise.

The Tribunal examined whether the notice of intention to consider cancellation (NOICC) complied with the requirements of section 107. Specifically, the Tribunal considered whether the NOICC correctly identified the non-compliance alleged by the delegate. The NOICC referred to specific questions and answers in the applicant’s protection visa application, a submission by the applicant’s migration agent, and information contained in a sponsorship form for the applicant’s wife’s partner visa. The Tribunal found that the notice did not correctly identify non-compliance by the applicant with the requirements of section 101 of the Act. Therefore, the power to cancel the visa under section 109 did not arise.

Consequently, the Tribunal set aside the delegate’s decision to cancel the applicant’s visa and substituted a decision not to cancel the visa. The Tribunal's decision was based on the finding that the NOICC was not valid as it did not correctly identify non-compliance by the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Against the backdrop of the applicant’s travel to Iraq, and information contained in the documentation for the spouse visa application lodged by the applicant’s wife, [Ms A], a delegate of the Department considered, and then cancelled, the applicant’s protection visa.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 and marked as Annexure A. Did the notice comply with the requirements in s.107? The first issue is whether the notice issued by the Minister’s delegate complied with s.107 of the Act. No specific issue was taken by the applicant’s representative, with the validity of the notice of intention to consider cancellation [NOICC]. However, the Tribunal takes into account matters raised generally by the representative about the content of the notice, in the Tribunal’s consideration as to the validity of the notice. Given the significance of the notice, it is attached to these reasons, as Annexure B to this decision. The delegate indicated that she considered that non-compliance with section 101 (b) has occurred in the “following instance”. What is set out thereunder is information contained in a protection visa application, a submission of the applicant’s then migration agent and information contained in a sponsorship form in respect of the applicant’s wife’s partner visa. ·The delegate set out questions 40 to 45 and 67 and the related answers to those questions, which were contained in the protection visa application, form 866C. Essentially, those questions relate to seeking protection in Australia so that the applicant did not have to go back to Iraq; recounting the reasons for him leaving the country and his fears about returning to that country. It also encompassed whether he will receive protection from the authorities of that country. Question 67 is a declaration of the applicant that the information the applicant supplied with part C of form 866 is “complete, correct and up to date in every detail.” ·There is also a reference to a submission by the applicant’s migration agent in the notice. ·Further information is referred to, which was contained in the sponsorship application for a partner visa form 40 SP. The notice sets out the questions and answers as follows: 9, 14, 35 and 57 of the sponsorship form. Essentially the information relates to the applicant meeting his partner in Erbil, Iraq, and marrying in Baghdad. An answer also indicates that the applicant had not been in paid employment during the last two years.·The information referred to a statement of the applicant dated [in] March 2013 which confirmed that he met his spouse in June 2010 in northern Iraq; that he had a [child] on [date] and that he worked as [occupation] for a company, during his stay in Iraq.·In the notice, the delegate referred to the partner visa application form in which the applicant’s spouse confirmed the information that he had provided and also set out the question and answer relating to question 70 on that partner application form.

Decision

Reasons for decision

For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Sue RaymondSenior MemberANNEXURE A – Relevant Extracts from the Migration Act 1958:5Interpretation(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.ANNEXURE B-NOICC-Pages 1-4 [Department’s Notice to Cancel deleted] `

Ratio Decidendi

Legal Principle Established

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