1701829 (Migration) - [2019] AATA 857

1701829 (Migration) [2019] AATA 857 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1701829
MEMBERS:Deputy President Jan Redfern (Presiding)

Dr Colin Huntly
DATE:12 April 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa.

Statement made on 12 April 2019 at 2:15pm
CATCHWORDS:
MIGRATION – Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa – cancellation of visa under s 109 of the Migration Act 1958 – whether incorrect information provided in visa application – information related to the applicant’s marital and relationship status – non-compliance not established – decision set aside and substituted
LEGISLATION:
Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth), ss 48, 101, 102, 103, 104, 105, 107, 99, 108, 109 & 119
Migration Regulations 1994, rr 1.03, 1.05A, 1.12, 2.41 & 200.228(a)
CASES:
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

1703474 (Refugee) [2017] AATA 2985

SECONDARY MATERIALS:
Procedural Instruction – ‘General visa cancellation powers s109, s116, s128, s134B and s140’

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa under s.109(1) of the Migration Act 1958 (the Act).
On 23 January 2017, a delegate of the Minister for Immigration and Border Protection, as it was then known (the Department) cancelled the applicant’s visa on the basis that information provided by the applicant’s mother regarding her marital status was incorrect. The applicant and her mother lodged an application for review of the cancellation decision on 2 February 2017. The reviews were heard together because they involve similar factual and legal issues but have been determined separately.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled under s.109(1) of the Act.
DECISION UNDER REVIEW
The applicant’s mother is a citizen of Ethiopia who had been living for many years in Sudan prior to her migration to Australia. She was granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit. The application for that visa was lodged by the applicant’s grandfather. The applicant was born on [date]. She was included in the application after her birth and was also granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit.
As part of the application process for the refugee and humanitarian visa, the…

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 1701829 (Migration)

Details

AGLC: 1701829 (Migration) [2019] AATA 857
Case: [2019] AATA 857
Decision Date: 12 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning the applicant's Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa. The dispute centred on whether the applicant's mother had provided incorrect information regarding her relationship status during the visa application process, which could lead to the cancellation of the applicant's visa.

The Tribunal was required to determine if the ground for cancellation, as outlined in section 109 of the Migration Act 1958, was made out. This involved assessing whether the applicant's mother had failed to comply with the requirement to provide correct information in her visa application, as stipulated by section 101 of the Act. The Tribunal also had to consider the consequences of any non-compliance and whether the applicant's visa should be cancelled.

The Tribunal found that the information provided by the applicant's mother in her statutory declaration supporting her partner's visa application, which indicated an ongoing relationship with the applicant's father, contradicted the information provided during her own refugee and humanitarian visa application, where she stated she had separated from the applicant's father. The Tribunal accepted the submission that the statutory declaration was false and had been made on ill-advised community advice. Crucially, the Tribunal determined that the applicant's mother's initial statement regarding her separation was truthful and correct at the time of her visa application. Therefore, the ground for cancellation was not made out.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) 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

The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled under s.109(1) of the Act. DECISION UNDER REVIEW The applicant’s mother is a citizen of Ethiopia who had been living for many years in Sudan prior to her migration to Australia. She was granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit. The application for that visa was lodged by the applicant’s grandfather. The applicant was born on [date]. She was included in the application after her birth and was also granted a refugee and humanitarian visa on 2 May 2010 as a dependant member of a family unit. As part of the application process for the refugee and humanitarian visa, the applicant’s mother provided information to the effect that she had separated from the applicant’s father, Mr [A], and was therefore dependant on the applicant’s grandfather. Following the grant of the visa and her arrival in Australia, the applicant’s mother sought to amend her personal Departmental records under the Freedom of Information Act 1982 (the FOI Act). In particular, the applicant’s mother sought to amend her relationship status from ‘single’ to ‘married’. The applicant’s mother also acted as the sponsor for Mr [A]’s application for a partner visa. This application was lodged on 29 June 2014. In support of the application, the applicant’s mother provided a statutory declaration to the effect that she had agreed to dissolve the marriage in order to be included as a dependant on the visa application lodged by her father; she did not consider the dissolution of her marriage and separation as an end of the relationship with the applicant’s father and she wanted to remarry him as soon as possible. A delegate wrote to the applicant and her mother on 10 August 2016 with a ‘Notification of Intention to Consider Cancellation’ (NOICC) on the grounds that the applicant’s mother had provided incorrect information concerning her relationship status. The delegate stated that the information provided by the applicant’s mother in her statutory declaration in support of the application of the applicant’s father’s indicated the applicant’s mother was in an ‘ongoing relationship’ at the time of the application and grant of the refugee and humanitarian visa. The migration agent acting for the applicant and her mother provided a response to the notification on 12 January 2017. In summary, the response submitted that the information provided by the applicant’s mother as part of the refugee and humanitarian visa application was true and correct and the information in the statutory declaration was false, having been given on ‘ill advised’ advice from a friend in the community. It was also submitted that if the applicant’s visa was cancelled she and her mother would be forced to return to Ethiopia as she has no citizenship or right to permanently reside in any other country apart from Ethiopia. The applicant would suffer hardship if her visa was cancelled as she has no knowledge or recollection of Ethiopia and no social connections there. She had lived and spent all her formative years in Australia.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Refugee and Humanitarian (Refugee) (Class XB) (Subclass 200) visa.Jan RedfernDeputy PresidentDr Colin HuntlyMemberATTACHMENT – Migration Act 1958 (extracts)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.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.