1703813 (Refugee) - [2018] AATA 5123

1703813 (Refugee) [2018] AATA 5123 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1703813
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Irene O'Connell
DATE:19 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
Statement made on 19 December 2018 at 12:22pm

CATCHWORDS

REFUGEE – cancellation – Protection visa – stateless – an irregular maritime arrival – Arab ethnicity– incorrect information provided to the department – whether the applicant held Iranian citizenship when he arrived in Australia – failure to issue a valid notice – decision under review set aside

PRACTICE AND PROCEDURE –s375A certificate not valid

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 140,375A
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

1. This is an application for a review of a decision made by a delegate of the Minister for Immigration on 22 February 2017 to cancel the first named applicant’s Subclass 866 Protection (Class XA) visa under s.109(1) of the Migration Act 1958 (the Act).

2. Subsection 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.

3. 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. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Section 107 states that:

(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; …

4. The applicant was issued with a notice of intention to consider cancellation (NOICC) (dated 21 October 2016) and invited to respond to this notice. In his response of 10 November 2016 the applicant argued that the notice did not comply with s.107(1)(a) as it did not adequately particularise the possible non-compliance and as such he was unable to make a meaningful response to the NOICC. He sought further particulars in order to do…

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

AGLC: 1703813 (Refugee) [2018] AATA 5123
Case: [2018] AATA 5123
Decision Date: 19 December 2018

CaseChat Overview and Summary

The applicant, a stateless individual of Arab ethnicity and an irregular maritime arrival, sought judicial review of the decision to cancel his protection visa. The dispute centred on whether the applicant held Iranian citizenship at the time of his arrival in Australia, a fact that had been misrepresented to the Department. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in cancelling the applicant's protection visa. This involved determining whether the applicant possessed Iranian citizenship at the relevant time, and consequently, whether the delegate had a valid basis for cancellation under the *Migration Act 1958* (Cth). A further procedural issue concerned the validity of a certificate issued under s 375A of the *Migration Act 1958* (Cth).

Her Honour, Justice O'Connell, found that the delegate had failed to issue a valid notice to the applicant, which was a prerequisite for the cancellation decision. Furthermore, the Court determined that the s 375A certificate was not valid. Consequently, the decision under review was set aside.

Orders