1621699 (Refugee) - [2018] AATA 726

1621699 (Refugee) [2018] AATA 726 (1 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621699
COUNTRY OF REFERENCE:                  Iran
MEMBER:Denis Dragovic
DATE:1 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 01 March 2018 at 9:24am

CATCHWORDS
Refugee – Cancellation – Protection visa – Iran – Claimed to be an undocumented Faili Kurd – Incorrect information – Held a genuinely issued Iranian passport – No mitigating factors – Acknowledges that the applicant will face hardship upon return – Social group – Returnee from a western country – May reapply for a visa offshore
LEGISLATION
Migration Act 1958, ss 5J, 46, 46A, 97, 101, 102, 103, 104, 105, 107, 109, 140, 189
Migration Regulations 1994 r 2.41 Schedule 2

CASES
Goundar v MIBP [2016] FCA 1203
MIAC v Khadgi (2010) 190 FCR 248
SZBQJv MIAC [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZWAP v Minister for Immigration [2015] FCCA 511
WZARV v MIBP [2015] HCA 22
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 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 the applicant had informed the Department of Immigration (the Department) that he held a genuinely issued Iranian passport in his identity. As the visa application was granted based upon his original claim of being an undocumented Faili Kurd, and yet he was not stateless but a citizen of Iran, the delegate cancelled the visa. 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 23 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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…

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 1621699 (Refugee)

Details

AGLC: 1621699 (Refugee) [2018] AATA 726
Case: [2018] AATA 726
Decision Date: 1 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against the cancellation of their protection visa. The applicant, who claimed to be an undocumented Faili Kurd from Iran, had been granted a protection visa based on information that was later found to be incorrect. The Department of Immigration and Border Protection (DIBP) subsequently cancelled the visa, and the Administrative Appeals Tribunal (AAT) affirmed this decision. The applicant sought judicial review of the AAT's decision.

The primary legal issue before the court was whether the AAT had erred in law in its assessment of whether the decision to grant the visa was based wholly or partly on incorrect information. Specifically, the court had to determine the correct interpretation of Regulation 2.41(c) of the Migration Regulations 1994, as amended, which governs the grounds for visa cancellation. The applicant's representative argued that the AAT should have considered what the outcome of the original visa application would have been had the correct information been provided, whereas the DIBP contended that the focus should solely be on whether the grant of the visa was influenced by the incorrect information.

The court found that the applicant's representative had misinterpreted Regulation 2.41(c). The amended regulation, applicable to this case, narrowed the scope of the inquiry to whether the decision to grant the visa was based wholly or partly on incorrect information or a bogus document. The court affirmed the AAT's finding that the visa had been granted wholly on the basis of incorrect information, and that the applicant's argument regarding the hypothetical outcome of the original application was not aligned with the current regulatory framework. The court also noted that while the applicant would face hardship upon return to Iran, this did not negate the fact that the visa was granted on false pretences, and that the Tribunal could have regard to lawful government policy, including the Department's Procedural Advice Manual.

The court dismissed the application for judicial review, upholding the AAT's decision to affirm the cancellation of the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The Tribunal’s considerationsThe correct information (related to what is in question) The correct information was provided by the applicant and that is that he is a citizen of Iran. I place considerable weight in favour of exercising the discretion to cancel the visa.The content of the genuine document (if any) As no document was provided there is no genuine document to consider.Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document The argument was put to the Tribunal that even if the correct information had been provided by the applicant to the Department when it was considering his case, his protection claims would have been approved. In a substantial and very well prepared submission dated 22 January 2018 the representative presented arguments which I will summarise and consider herewith. In considering the question of whether the decision to grant a visa or immigration clear the visa holder was based wholly or partly on the incorrect information, the representative argued that had the delegate had the correct information the outcome of the decision would have been the same, namely that a protection visa would have been granted anyway. This approach does not align with the current regulations and case law. Regulation 2.41(c) was amended effective 12 December 2014. In its earlier form it read: the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document.Subsequent to the changes and as is applicable to this application, r.2.41(c) reads:Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document.Justice Street noted in SZWAP v Minister for Immigration[1] at [10] that the change narrowed the scope of the decision making to whether the protection visa was based wholly or partly on incorrect information. The argument made by the representative that consideration should be given by the Tribunal to what the outcome of a protection review would have been had the correct information been available is an incorrect reading of the regulation and aligns with the relevant regulation as it was rather than as it is. [1] SZWAP v Minister for Immigration [2015] FCCA 511 The role of the decision maker is to conclude whether the decision to grant the visa was based wholly or partly on the incorrect information. In this case I find that it was based wholly on the incorrect information and as such I place considerable weight in favour of exercising the discretion to cancel the visa.The circumstances in which the non-compliance occurred