1622527 (Refugee) - [2018] AATA 3053

1622527 (Refugee) [2018] AATA 3053 (6 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622527
COUNTRY OF REFERENCE:                  Iran/Stateless
MEMBER:Irene O'Connell
DATE:6 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 July 2018 at 1:12pm
CATCH WORDS
Refugee – Class XA Subclass 866 (Protection) visa – Cancellation under s.109 of the Migration Act 1985 – where applicant provided incorrect information regarding citizenship in application form and statutory declaration – consideration of applicant’s response, the prescribed circumstances in r 2.41 of the Migration Regulations1994 and any other relevant considerations – decision affirmed
LEGISLATION
Migration Act 1958, ss 36(2), 101(b), 101, 102, 103, 104, 105, 107, 109, 109(1), 109(2), 140, 496, 499
Migration Regulations 1994, r 2.41
CASES
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Vata v Minister for Immigration & Anor [2015] FCCA 1735
OTHER MATERIALS
1951 Convention relating to the Status of Refuges as amended by the 1967 Protocol relating to the Status of refugees, Article 1A(2)
Procedures Advice Manual – PAM3 ‘General visa cancellation powers’
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 by a delegate of the Minister for Immigration (the Minister) to cancel the applicant’s Class XA, 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 did not comply with s.101(b) of the Act, which requires a non-citizen to complete their visa application in such a way that no incorrect answers are given.
The applicant entered Australia as an Irregular Maritime Arrival (IMA) on 17 July 2010. He was placed in immigration detention on Christmas Island and, on 3 September 2010, requested a Refugee Status Assessment (RSA). He claimed to be stateless and a Faili Kurd from Iran.
On 22 February 2011, a delegate of the Minister determined that the applicant was not a refugee as defined in Article 1A(2) of the 1951 Convention relating to the Status of Refugees[1] and, accordingly, was not a person to whom Australia owed protection obligations. On 21 April 2011, the applicant sought a review of this determination with the Independent Merits Review (IMR). On 21 October 2011, the IMR assessor found that the applicant satisfied the criterion for a protection visa in s.36(2) of the Act and recommended that the applicant be recognised as a person to whom Australia has protection obligations.
[1] as amended by the 1967 Protocol relating to the Status of Refugees.
The applicant was then invited to lodge an application for a protection visa which he did on 12 October 2012.…

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: [2018] AATA 3053
Decision Date: 6 July 2018

CaseChat Overview and Summary

The applicant sought review of a decision by the Minister to cancel his Subclass 866 (Protection) visa. The Minister's delegate had cancelled the visa under section 109 of the *Migration Act 1958* (Cth) on the grounds of non-compliance with a condition of the visa. The Administrative Appeals Tribunal (AAT) affirmed the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of his protection visa, and if so, whether the visa should be cancelled having regard to all relevant circumstances. The Tribunal considered evidence including departmental files, the applicant's response to a Notice of Intention to Consider Cancellation (NOICC), and the applicant's oral evidence and written submissions.

The Tribunal found that the applicant had not complied with the visa conditions as described in the notice given under section 107 of the Act. Applying the principles of section 109, the Tribunal concluded that, after considering all relevant circumstances, the cancellation of the applicant's visa was warranted. The Tribunal affirmed the decision under review to cancel the applicant's Subclass 866 (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

The Minister may delegate any of his powers under the Act to another person (s.496 of the Act) and may issue directions about the performance of those functions and the exercise of those powers by others (s.499). There is no dispute in this case that the Minister delegated the power under s.109 to an officer of the Department.EVIDENCE BEFORE THE TRIBUNAL The Department provided to the Tribunal three Departmental files. Department File ([number]), Department file ([number]) and Department file ([number]). These files contain documents relevant to the grant of the applicant’s protection visa and documents relevant to the cancellation of this visa. Documents relevant to the grant of his protection visa include the following: ·Unauthorised arrival entry interview record and personal particulars for character assessment form (dated 3 September 2010);·Request for RSA and statutory declaration (dated 3 September 2010);·A submission from the applicant’s representative (dated 23 December 2010);·Recording of the RSA interview and the RSA decision record (dated 8 March 2011);·Correspondence from the Department to the applicant (dated 29 October 2012) notifying the applicant of the grant of a protection visa and providing the applicant with a Visa Evidence Card; ·A photocopy of the Visa Evidence Card. Documents relevant to the cancellation of his visa include the following:·NOICC of the applicant’s protection visa (Class XA) (Subclass 866) (dated 28 June 2016); ·The applicant’s response to the NOICC (dated 21 July 2016): ·Request for International Treaties Obligation Assessment (ITOA) (dated 25 July 2016); ·The applicant’s submission regarding the ITOA (dated 16 September 2016); ·The record of the ITOA (dated 29 September 2016);·Notification of Cancellation under s.109 of the Act and the Record of Decision (dated 29 December 2016). All evident on the Department file are the following relevant documents: ·Copy of the applicant’s Iranian passport issued [in] 2014 by the Islamic Republic of Iran; and·Copy of the applicant’s Titre de Voyage issued [in] 2014 by the Australian Government;·Copy of the applicant’s birth certificate issued [by] the National Organisation for Civil Registration, Islamic Republic of Iran, Ministry of Interior. When lodging his application for review the applicant provided to the Tribunal a copy of the NOICC and the decision record of the delegate cancelling his visa. The applicant gave oral evidence to the Tribunal at a hearing on 17 April 2018. He was represented at the [hearing]. At the hearing the applicant provided to the Tribunal a number of the documents contained on the Department file, which he had accessed by way of Freedom of Information. These documents were:·The decision record of the IMR dated 21 October 2011; ·The decision record of the ITOA dated 29 September 2016; and·The Department record of the applicant’s arrival interview. The applicant provided to the Tribunal a Statutory Declaration dated 16 April 2018 and several written submissions written by his representative dated 17 April 2018, 15 May 2018 and 27 May 2018.

Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision under review to cancel the applicant’s Subclass 866 (Protection) visa.Irene O'ConnellDeputy Division Head

Ratio Decidendi

Legal Principle Established

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