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.

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…

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.

Keep reading for free

Create a free CaseChat account to read 1711195 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 1258
Decision Date: 23 March 2018

CaseChat Overview and Summary

This matter concerned an application by a visa holder to review a decision to cancel their Subclass XA-866 Protection visa. The dispute arose from the Minister's delegate issuing a Notice of Intention to Consider Cancellation (NOICC) alleging that the applicant had provided incorrect information in their visa application regarding a relative's status and the reasons for their family's alleged persecution. The applicant contended that the NOICC was invalid. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the NOICC issued by the Minister's delegate was valid under section 107 of the Migration Act 1958. This validity was crucial because section 109 of the Act, which empowers the Minister to cancel a visa, is contingent upon the issuance of a valid notice under section 107. The Tribunal was therefore required to determine if the NOICC provided sufficient particulars of the alleged non-compliance and otherwise met the requirements of section 107.

The Tribunal reasoned that a valid notice under section 107 is a jurisdictional prerequisite for the exercise of the cancellation power under section 109. Upon examining the NOICC, the Tribunal concluded that it did not comply with the requirements of section 107. Consequently, the power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 BeanDeputy PresidentMarten KennedyMemberATTACHMENT – Migration Act 1958 (extracts)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.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.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass XA-866 Protection visa.Katherine BeanDeputy PresidentMarten KennedyMemberATTACHMENT – Migration Act 1958 (extracts)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.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.