1711195 (Refugee) - [2018] AATA 1258

1711195 (Refugee) [2018] AATA 1258 (23 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711195
COUNTRY OF REFERENCE:                  Iran
MEMBERS:Katherine Bean (Presiding)
Marten Kennedy
DATE:23 March 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass XA-866 Protection visa.

CATCHWORDS
Refugee – Cancellation – Protection visa – Iran – Validity of Notice of Intention to Consider Cancellation – Opportunity to show that grounds for cancellation do not exist
LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 119, 360
CASES
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Matete v Minister for Immigration & Citizenship [2008] FMCA 573
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 XA – 866 Protection visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that he determined that there was non-compliance by the applicant with s.101 of the Act, namely, subsection 101(b) of the Act. The delegate cancelled the visa on the basis that the applicant had declared that his [relative] was shot by the Iranian authorities in the context of an attempt by those authorities to acquire his land because he is of Arab ethnicity and holds no rights in Iran. The applicant declared that his [relative] was killed by the Iranian authorities while he was defending his land from compulsory acquisition. The applicant further declared that he decided to leave Iran because he feared that the authorities would return to detain and harm him. The delegate determined that this information was incorrect on the basis that the applicant’s [relative] [Mr A] is alive and not deceased as claimed in the applicant’s protection visa application. Further, [Mr A] is an official of [a government agency] in Ahwaz, Iran. The delegate accordingly concluded that the applicant had provided incorrect information to the Department in his XA – 866 Protection visa application. The Delegate concluded that the statement that the applicant’s [relative] was killed in front of him on his land formed a central and significant part of the applicant’s claims for protection.
No hearing was held in this matter as we were able to make a favourable decision on the papers.[1]
[1] Section 360(2)(a) of the Act.
The main issue is whether the mandatory statutory notice sent to the applicant is valid. A valid notice is required to found the cancellation of the visa.
For the following reasons, we have concluded that the notice is not valid and therefore the visa cannot be cancelled. Therefore we have not proceeded to deal with the substantive issue as to whether there are incorrect answers in the visa application.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the applicant 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 applicant 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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107 of the Act.
The particulars of the Notice of Intention to Consider Cancellation (NOICC)
A NOICC of the applicant’s Protection (class XA) Subclass 866 visa is dated [February] 2017 and was sent to the applicant by registered mail. The notice recounts, in some detail, information the applicant provided in support of his claim for protection. The notice also recounts particular answers on the protection visa application form 866C which are alleged to be incorrect.
The notice refers to the fact that, based on information recounted [as well as meeting other criteria], the applicant was granted a Protection (class XA) Subclass 866 visa [in] September 2013.
As to the particulars of the asserted non-compliance the notice states:
“The Department has information that confirms your [relative] [Mr A] (born approximately [year]) is alive and not deceased as claimed in your Protection visa application.
This information also reveals that [Mr A] is an official personnel of [a government agency] in Ahwaz, Iran. Therefore it appears that you have provided incorrect information to the Department in your XA866 Protection visa application. The statement that your [relative] was killed in front of you on your land formed a central and significant part of your claims for protection.
Mr [A]’S job appears to be with the Iranian Government. This is in direct contradiction to your claims that the Government authorities persecute your family because they are Arabs and are treated as second rate citizens”.[2]
[2] Notice of Intention to consider cancellation under section 109 of the Migration Act 1958, pp 2-3.
The notice indicates that the applicant has the opportunity to comment in writing on the instances of non-compliance identified in the letter. It advises that if the applicant disputes the non-compliance the response should show:
· why you think you have complied, or why you have not complied, with s.101;
· why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied as the delegate may disagree with you); and
· provide any supporting evidence.
The response to the NOICC
In the applicant’s response to the NOICC his representative states: “… [the applicant] strongly objects to your assertions that:
· his [relative] is not deceased; but
· is ‘official personnel’ of [a government agency] in Ahwaz Iran.”[3]
The representative outlines his strong objection to the approach taken by the Department in this matter and in particular he refers to the statement that the Department has “information” and asserts that it is incumbent on the Department to state precisely what that information is. There are further assertions of a denial of natural justice.
[3] Immigration Resettlement Advisory Network letter to Department of Immigration and Border Protection dated [February] 2017, p 1.
It is appropriate to set out the following excerpts from the response:
“In the case of [the applicant] you propose cancellation of his visa because of ‘information’ – what is that information exactly?
Does it come from reliable and authenticated sources? Does it for example prove beyond doubt (that is, provable in court) so that the [Mr A] you refer to is in fact the [relative] of our client? Does it contain, for example, independent legal documentation to prove … that Mr [A] is in fact a member of the personnel at the Ahwaz [government agency]?
You state that Mr [A]’S job ‘appears to be with the Iranian government’ ... with respect, credible and valid information would evidence this relationship, not just make it ‘appear’. And does your ‘information’ prove that our client in fact knows and has known all of this information as a matter of actuality in all the time since he first approached Australian authorities? That is, does it prove that he wilfully and deliberately misled the Department?
Mere repetition of your view that our client did not provide correct answers does not create a stronger case; nor does it enable you to put aside the requirements of the law and of the Courts and Tribunals to provide a proper basis to the assertions you make. …
[i]t is not enough to assert that Mr [A] is alive and working – the basis and particulars on which you base that assertion must also be provided if a notice is to be seen as valid. … [t]here is no clarification provided to demonstrate why your conclusion is valid and able to be relied on. More importantly, there is currently no better information provided to our client than your say-so, which is scarcely a valid legal basis for the threat to remove a visa.
Your assertion is that [the applicant] ‘provided incorrect answers; as this assertion is unsupported, we ask you how our client is supposed to respond to you now, other than to again make the points made in previous situations that he saw his [relative] killed and has no knowledge of this putative Mr [A] who, you assert, is his [relative]’.[4]
The Departmental decision referred to above
[4] Ibid, pp 3‑6.
The decision refers to the fact of the Department having information which indicates that the applicant’s [relative] is alive and is an official of [a government agency] in Ahwaz, Iran. It is then reasoned that the applicant provided incorrect information to the Department in his XA 866 Protection Visa application and that “[t]he statement that the visa holder’s [relative] was killed in front of him on his land formed a central and significant part of the visa holder’s claims for Protection”.[5] The decision also refers to the fact that “Mr [A]’s job appears to be with the Iranian government. This is in direct contradiction to the visa holder’s claims that the Government authorities persecute his family because they are Arabs and are treated as second rate citizens”.[6]
The law in relation to validity of the NOICC
[5] Record of Decision of whether to cancel under section 109 of the Migration Act 1958, p 3.
[6] Ibid.
Section 107 of the Act states the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s.101 of the Act (as asserted in the present case) subsection (1)(a) requires the notice to give “particulars of the possible non-compliance”.
We must consider whether the NOICC in this case is sufficiently particularised.
The Full Federal Court, in the case of Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, dealt with s.119 of the Act rather than s.107 of the Act. However in the case of Minister for Immigration and Citizenship v Brar and Another [2012] FCAFC 30, the Full Federal Court noted that s.119 is in different terms from s.107 but nevertheless indicated that the statements in the Zhao case “are of assistance in terms of the proper interpretation and application of s 107”.[7]
[7] Minister for Immigration and Citizenship v Brar [2012] FCAFC [57].
The remarks in Zhao are as follows:
“Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.
…
The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section”.[8]
[8] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 [25]‑[26].
The Federal Magistrates Court in SZEEM v Minister for Immigration stated, “… the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation”.[9]
[9] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 [38].
If the notice is not valid the Tribunal cannot cure the defects in the notice and is confined to considering whether there was non-compliance in the way described in the notice.[10]
[10] Zhao [25].
The provision does not place an onus on the applicant to establish that the visa should not be cancelled.[11] The onus of establishing the facts is on the Minister (or the Tribunal on review).
[11] Zhao [32].
CONCLUSION
We are mindful that it would not be appropriate to construe the NOICC in this case with undue strictness of the kind applied to court documents. Nevertheless, we have concluded that the particulars of the notice in this case did not fairly inform the applicant of the basis on which the cancellation was being considered.
The notice effectively expresses a conclusion – that the application’s [relative] is alive and working for the Iranian authorities, without disclosing the basis for that conclusion in a manner which would potentially allow it to be challenged. We do not mean to suggest that the sources of the relevant information necessarily need to be disclosed, however, in our view enough information must be disclosed so as to allow the applicant to respond and address the issues which gave rise to the cancellation.[12] As pointed out by the applicant’s representative, it is impossible on the basis of what the Department has disclosed to the applicant for him to challenge the veracity or reliability of the information, or address the likelihood of the person identified by the Department actually being his [relative]. Assuming for the sake of argument that the applicant did witness his [relative] being killed, it is difficult to imagine what information he could provide in response to the unsupported assertion made by the Department to establish that the person identified by the Department is not his [relative]. We adopt the comments in Zhao and find that the particulars in the notice have to be such that “the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open”. [13]
[12] In reaching the conclusion in this case we are mindful of the terms of the notice in the decision record of the case of Matete v Minister for Immigration & Citizenship [2008] FMCA 573 [40].
[13] Zhao [25].
In this case the response of the representative amply demonstrates the inevitable inability of the applicant to meaningfully address the instances of non-compliance due to the lack of appropriate particularity.
We note that the s.107 notice is a critical step in the cancellation process as it provides the applicant with an opportunity to show that the grounds for cancellation do not exist, or if they do exist to put forward reasons why the discretion to cancel should not be exercised.
For these reasons, we find that the notice is not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass XA-866 Protection visa.
Katherine Bean
Deputy President

Marten Kennedy
Member

ATTACHMENT – Migration Act 1958 (extracts)
97Interpretation
In 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.
98Completion of visa application
A 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 answer
Any 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 answers
For 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 correct
A 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.