1711220 (Refugee)
[2019] AATA 3745
•15 August 2019
1711220 (Refugee) [2019] AATA 3745 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711220
DIBP REFERENCES: BCC2015/1473836 CLF2011/100783 CLF2012/220619
COUNTRY OF REFERENCE: Pakistan
MEMBERS:Deputy President Jan Redfern (Presiding)
Senior Member Louise NichollsDATE:15 August 2019
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 Protection (Class XA) (Subclass 866) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Statement made on 15 August 2019 at 2:14pm
CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – application for review of decision to cancel visa under s.109 of the Migration Act 1958 – cancellation on the basis of incorrect information and provision of a bogus document in association with application – incorrect information allegedly provided was that applicants were married – marriage certificate allegedly counterfeit or had been altered by a person without authority to do so – whether the notice issued under section 107 of the Migration Act 1958 was valid – notice found to not adequately particularise the possible non-compliance – precondition to the exercise of the power to cancel visa not enlivened – decision under review set aside and substituted
LEGISLATION:
Migration Act 1958 (Cth), ss 5(1), 36, 101, 101(B), 102, 103, 104, 105, 107, 107(1)(a), 107(2), 108,108(b), 109, 109(1), 116, 119, 128, 140, 140(1); Part 2 – Division 3, Subdivision C
Migration Reform Act 1992
Migration Regulations 1994, r 2.41
CASES:
BZC17 v Minister for Immigration and Border Protection [108] FCA 902
CSH18 & Anor v Minister for Home Affairs [2018] FCCA 3226
Dy v Minister for Immigration and Multicultural Affairs [2006] FCA 676
Jalal v Minister for Immigration and Multicultural Affairs [2000] FCA 207
Minister for Home Affairs v CSH18 & Anor [2019] FCAFC 80
Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50
Saleem v Migration Review Tribunal [2004] FCA 234
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister or Immigration and Border Protection [2016] FCAFC 52
SZEEM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 234
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Zhong v Minister of Immigration and Citizenship [2008] FCA 507
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
SECONDARY MATERIALS:
Convention relating to the Status of Refugees, opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
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 first named applicant’s Protection (Class XA) (Subclass 866) visa under s.109(1) of the Migration Act 1958 (‘the Act’).
The delegate cancelled the first named applicant’s visa on 23 May 2017 on the basis that she had provided incorrect information and a bogus document in association with her application for the visa. As a consequence of the first named applicant’s visa being cancelled, the second named applicant’s visa was automatically cancelled under s.140 of the Act. On 26 May 2017, the applicants sought review of the decisions.
The Tribunal was notified on 28 July 2018 that the delegate who made the decision did not have the appropriate delegation. The applicants were invited to attend a hearing before the Tribunal for the purpose of determine whether the Tribunal had jurisdiction to conduct a review in relation to the purported decision to cancel the visa and if so, what powers it was capable of exercising as part of that review. At the time of the application for review, the applicants were unaware that the delegate who made the purported decision to cancel the visa did not have the power to do so. However, before this matter could be determined, the applicants sought an adjournment to seek judicial adjudication on this issue. The application for review was therefore adjourned.
On 22 October 2018, Judge Smith of the Federal Circuit Court of Australia found that the Tribunal had jurisdiction to review the decision but did not have power to affirm the decision or to do anything other than to set aside it aside: CSH18 & Anor v Minister for Home Affairs [2018] FCCA 3226. The Minister appealed this decision and the Full Court of the Federal Court allowed the appeal, remitting the matter to be determined by the Tribunal according to law: Minister for Home Affairs v CSH18 & Anor [2019] FCAFC 80. Relevantly, the Federal Court found the Tribunal’s powers and discretions were not limited to those which the purported decision-maker had in law.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (‘the applicant’). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants were represented in relation to the review by their lawyer, who is a registered migration agent. The representative submitted that there was no need to invite the applicant to a hearing because the Tribunal could decide the review in the applicant’s favour on the basis of the material before it, which included submissions and evidence before the delegate.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND FACTS
The applicants arrived in Australia in November 2010 and in June 2011 submitted a combined application for a Protection (Class XA) (Subclass 866) visa. The basis for the application was a fear of persecution because the applicants were in an interfaith marriage and they feared the first named applicant would be harmed by her family if she returned to Pakistan. She was from a Catholic Christian family and the second named applicant was Muslim. They allegedly married in Pakistan under the Islamic faith. The applicants provided a copy of a document said to be an English translation of a Nikah Nama in the prescribed form under the Muslim Family Ordinance issued in 1961. The document was dated 10 December 2008 and was notarised. There was no reference to the original document in the application. A Nikah Nama is a written Islamic marriage contract. The document provided noted the “date of registration of marriage” as 10 December 2008 and recorded that the “round rubber stamp” of the Nikah Registrar was affixed.
On 16 September 2011, a delegate of the Minister refused the application. The delegate did not accept the claims made by the applicants and was “not satisfied as to the genuineness of the marriage and the relationship presented, nor of the Nikah Nama Certificate”.[1]
[1] Record of Decision dated 16 September 2011 at p.14.
The applicants subsequently applied to the Tribunal (differently constituted) for review of the decision. The Tribunal referred to the evidence about the Nikah Nama but did not make any specific findings about the authenticity of the document provided. While the Tribunal noted that it had some concerns about aspects of the applicants’ evidence, the evidence was not considered to be “inherently implausible”.[2] The Tribunal accepted the applicants were in an interfaith marriage and that the first named applicant had not converted to Islam. The matter was remitted to the Department with a direction that the applicants satisfied the criteria in s.36 of the Act. The decision was made on 25 October 2012.
[2] Decision Record of the RRT dated 25 October 2012 at [104]. As the decision was not selected for external publication, the reasons of the Presiding Member are not publically available.
On 15 January 2013, the applicants were granted protection visas. On 11 July 2016, an officer of the Department issued a notice of intention to consider cancelling the protection visas of the applicants. The particulars of the grounds for cancellation stated in the notice were to the effect that the first named applicant had provided a statement that said she and the second named applicant had married in Pakistan, they had kept their marriage secret, she was a Christian and the second named applicant was a Muslim. The applicants provided an English translation of a Nikah Nama which stated that the applicants were married on 10 December 2008. The notice stated that there was non-compliance with the Act in the way described as follows:
Since the grant of this visa, information has been made available to the Department which indicate the Nikah Nama you provided with the application is a bogus document as it appears to be counterfeit or has been altered by a person who does not have authority to do so. As this document has been found to be bogus it appears that you have not registered your marriage with [the other applicant] in Pakistan as you have claimed.
As this document has found to be bogus it also appears you have provided incorrect information to the Department in association with your application for a Protection Visa. You claimed in your application that you were married as of 10 December 2008, however, given the presence of the bogus document; this information appears to be incorrect.
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugee’s Convention (sic). You have claimed that due to your inter-faith marriage you feared persecution from Pakistan authorities and your family members. Your marriage and the associated claims were fundamental to the determination that you are a person to whom Australia has protection obligations.
I therefore consider that you have not complied with section 101(b) of the Act because you provided incorrect information in association with your application for a class XA subclass 866 Protection Application. Specifically that you were married to [the other applicant] from 10 December 2008 and that this marriage led to your (sic) fearing persecution from the authorities and your family members who you claimed would seek to harm you because of your alleged marriage to [the other applicant].
I also consider that you have not complied with section 103 of the Act as you have provided a bogus document in association with your application for a class XA subclass 866 Protection Application. Specifically, the marriage certificate provided with the application has been found to be bogus. This marriage certificate was fundamental to your claims you were in an inter-faith marriage and this led you to fear persecution from authorities.[3]
[3] Notice of Intention to Consider Cancellation under section 109 of the Migration Act 1985 dated 11 July 2016 at p.5.
In response to the notice dated 22 July 206, the applicants maintained that they were at all relevant times and continued to be in a genuine spousal relationship and feared harm in their home country on account of their relationship. The applicants maintained that the Nika Nama is “true and correct”.[4] While they conceded that the Nikah Nama was not registered with the authorities in Pakistan, the applicants contend that this was because they feared persecution. The reason for not registering the Nikah Nama was disclosed to both the Department and the previous Tribunal. Furthermore, the applicants contended that the Minister had “knowledge of authencity (sic) of this document before and at the time of grant of visa”.[5] Accordingly, the applicants submit that the “Nikah Nama is not bogus or forfeited (sic)”.[6]
[4] Response to the Notice of Intention to Consider Cancellation dated 22 July 2016 at p.2.
[5] Ibid at p.3.
[6] Ibid.
An International Treaties Obligation Assessment (‘ITOA’) was undertaken and a report was provided to the delegate dated 12 April 2017. In summary, the report recorded that the assessor:
(1)accepted the applicant’s religious confessions as claimed;[7]
[7] International Treaties Obligation Assessment dated 12 April 2017 at [19].
(2)noted the concession of the applicants’ migration agent that the Nikah Nama was not registered in Pakistan because of concerns that their interfaith marriage would draw adverse attention;[8]
[8] Ibid at [20].
(3)accepted that Muslim marriages in Pakistan can be solemnised verbally;[9]
[9] Ibid at [21].
(4)considered as plausible that a marriage between applicants in Pakistan could not have been registered and still be considered valid;[10]
[10] Ibid.
(5)nonetheless found it unconvincing that the applicants claimed they did not register the marriage because of fear form non-state actors because their marriage was interfaith;[11] and
[11] Ibid at ]22].
(6)accepted the applicants had been married in Australia but did not accept that the applicants had undertaken a genuine interfaith marriage and did not accept they would face harm in Pakistan for that reason.[12]
[12] Ibid [23] and [27].
The delegate decided to cancel the applicants’ visas. In the Record of Decision dated 23 May 2017, the delegate repeated the concerns raised in the notice of intention as “evidence of non-compliance”,[13] noted the applicants’ response but decided the first named applicant did not comply with ss.101(b) and 103 of the Act. The reasons given were outlined at [23] to [38] of the Record of Decision. In essence, it was noted that the Nikah Nama is the basis for registration of marriages in Pakistan under Pakistani law.
[13] Record of Decision dated 23 May 2017 at [1] - [17].
It was further stated at [26]:
This marriage certificate has since been found to be a bogus document as it appears to be counterfeit or has been altered by a person who does not have authority to do so. As this document has been found to be bogus it appears that the visa holder did not register marriage (sic) with the dependent visa holder as she had claimed. As the visa holder has not registered marriage (sic) with the dependent visa holder, it appears that the visa holder has provided incorrect information in association with her application for a Class XA Subclass 866 Protection visa.
And at [29]:
Further, I note that the certificate contains a Nikah stamp purportedly from Union Council 33. I do not consider that this stamp would be located on the document unless the visa holder wanted to give the appearance that she had registered her marriage. Departmental checks have confirmed that this certificate has not been registered with the National Database & Registration Authority in Pakistan. I therefore consider that this certificate is a bogus document as it is counterfeit or has been altered by someone who does not have the authority to do so. I further consider that this document has been fabricated for the purposes of giving the visa holder an immigration advantage. This leads me to have serious concerns about the visa holder’s credibility in providing correct and accurate information.
The delegate noted that the applicants raised the issue that the validity of the Nikah Nama had been explored by the Tribunal and the Department before remittal but the Department had subsequently granted the Protection visas. The delegate also noted that the first time that the applicants stated they had not registered their marriage was in association with their citizenship application.[14]
[14] Record of Decision dated 23 May 2017 at [31].
The reasoning of the delegate seems to be along the lines that the fact the Nikah Nama was not registered in itself suggests the document is bogus. The delegate did not accept the explanation as to why the Nikah Nama was not registered. The delegate considered it material that the applicants did not disclose that the Nikah Nama was not registered in the application for Protection and in the interview and hearing before the first delegate and the previous Tribunal: Record of Decision dated 23 May 2017 at [31].
LEGISLATIVE FRAMEWORK
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.
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 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.
Section 107 provides that a notice may be issued if the Minister, or his or her delegate, considers that a visa holder did not comply with certain provisions of the Act. If a notice is issued, it must give particulars of the possible non-compliance and provide the details and timing of any response to be provided, information about the visa holder’s obligations and a statement setting out the effect of certain provisions of the Act.
Section 108 provides that the decision-maker (either the Minister or his or her delegate) must consider the response to the notice issued under s.107 and decide whether there has been non-compliance by the visa holder in the way described in the notice. If the decision-maker decides there has been non-compliance, s.109 provides that he or she has discretion to cancel the visa but must first consider any response under s.107 and the circumstances prescribed under r.2.41 of the Migration Regulations 1994 (the ‘Regulations’).
Extracts of the Act relevant to this case are attached to this decision.
It is clear from these provisions that the notice under s.107 and consideration of any response to the notice by the visa holder is an important part of the legislative scheme for cancellation under s.109. However, it is relevant to note that the opportunity to respond to a notice under s.107 does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, as oppose to on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v Minister for Immigration & Multicultural Affairs, where the Federal Court opined as follows:
26.…The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.
…
32.A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[15]
[15] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While Zhao was concerned with cancellation under s.119, these comments are equally applicable to s.109.
In other words, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. The decision-maker must be satisfied about the existence of certain facts before exercising the power.
The applicant contends, and we accept, that when considering the question of whether the decision-maker is satisfied there was non-compliance in the way described in the notice, he or she must “feel an actual persuasion”.[16] While the Tribunal is not bound by the rules of evidence, such a state of satisfaction can only be reached where “the factual material or information tends to make out, or support, the finding or conclusion reached” and “there is a rational connection between the factual information or material and the finding or conclusion reached”.[17] The quality of the probative material provided “which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion”.[18] In deciding whether the ground for cancellation is made out it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences. As noted in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120] “[t]he more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached”.
[16] Plaintiff M64-2015 vMinister for Immigration and Border Protection [2015] HCA 50 at [64].
[17] BZC17 vMinister for Immigration and Border Protection [2018] FCA 902 at [89].
[18] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [19].
Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has been residing in Australia for nine years has serious consequences and, in our view, any factual findings should be based on logical and probative material.
SUBMISSIONS OF THE APPLICANT AND ISSUES FOR DETERMINATION
The applicant contends that the notice under s.107 is invalid because it fails to adequately particularise the possible non-compliance and refers to information of which the Department was aware at the time the applicant was granted the visa. Even if the notice is valid, there is no material capable of supporting an adverse finding that there has been non-compliance. In the alternative the discretion should be exercised in the applicant’s favour in the circumstances of the case.
The questions for determination are:
(1)Was the notice issued under s.107 valid?
(2)If so, was there non-compliance by the visa holder in the way described in the notice?
(3)If the answer to (2) is yes, how should the discretion to cancel be exercised?
CONSIDERATION
Was the notice issued valid?
In the present case, there is a question as to whether the notice issued by the delegate complied with s.107 of the Act. There are two questions that arise. First, whether we are satisfied that the delegate reached the necessary state of mind to engage s.107 and, secondly, whether the notice issued under s.107 complied with the statutory requirements. In this case the two issues are related. Relevantly, it is difficult to form a view about whether the delegate had the necessary state of mind to engage s.107 when the particulars of the non-compliance are unclear. We have therefore focused on the issue of whether the particulars provided were sufficient for the purposes of s.107(1)(a) of the Act.
Under s.107(1)(a) of the Act, the Minister must give the holder a notice “giving particulars of the possible non-compliance”.
The question is whether the particulars provided in the notice dated 11 July 2016 are sufficient for the purposes of s.107(1)(a). The applicant contends they are not and relies on the decisions of Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 and SZEEM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 27.
The Full Court considered the nature of the particulars to be provided by a s.107 notice in Brar and emphasised the interaction between ss.107 and 108(b) of the Act. In that case, a notice was issued under s.107 which referred to non-compliance or possible non-compliance with ss.101(b) and 103 of the Act. The particulars stated that the respondent had lodged an application for a visa at an onshore processing centre. The central allegation was that the work reference attached to the application for the visa was fraudulently obtained. It was contended that the notice contain particulars of non-compliance which were materially false or misleading because the document was not given to an officer as defined by the legislation but was rather lodged online. It was asserted that if the notice under s.107 does not describe the non-compliance or if the Minister or delegate decides that there had been non-compliance in a way not described in the notice, then the Minister or the delegate would exceed the power given under ss.108 and 109 in cancelling a visa.
In considering the issues on appeal, the Full Court observed as follows (at [56]):
56.A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice.
The Full Court cited with approval Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 and further observed as follows (at [60] and [61]):
60.The Court in Minister for Immigration and Citizenship v SZIZO [(2009) 238 CLR 627] was dealing with different statutory provisions in the Act from those in issue in this case. Nevertheless, we think that a similar approach should be taken in the case of ss 107, 108 and 109 of the Act particularly as the phrase in s 107(1)(a) “particulars of the possible non-compliance” can only be given meaningful content by reference to the facts of a particular case.
61.In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109.
[Emphasis added]
Referring to the information provided by a visa holder in a notice and asserting non-compliance does not, of itself, constitute “particulars” of non-compliance in accordance with s.107(1)(a) of the Act. There must be more, as observed by Lander J in Zhong v Minister of Immigration and Citizenship [2008] FCA 507 (at [80]):
80 In my opinion, this notice did not particularise the possible non-compliance. It was not sufficient to state that the appellant might have breached s 101 of the Act. More was necessary. If both paragraphs of s 101 were to be relied on, then the notice needed to give particulars of the facts and circumstances which gave rise to the possible breach of each of the paragraphs. It is not enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular section.
[Emphasis added]
The connection between s.107(1)(a) and the task of determining whether there has been “non-compliance in the way described” in the notice for the purposes of s.108(b) has been the subject of judicial comment in both SZEEM (at [37] - [38]) and Saleem v Migration Review Tribunal [2004] FCA 234. In Saleem, Allsop J described the task required by s.108(b) and observed the importance of the particulars at [43]:
43It can be readily accepted that the cancellation of a visa, especially one granting permanency of residence, is a serious matter. It is against that background that one comes to ss 107 to 109 of the Act. The provision of incorrect or false information and the use of "bogus" documents being the matters, broadly stated, that are covered by ss 101, 102, 103, 104, 105 and 107(2) are also potentially very serious matters. It is easy to understand why the Parliament required some precision and specificity in the notice: s 107(1)(a). Particulars of non-compliance with ss 101, 102, 103, 104, 105 or 107(2) are what is called for. One does not give particulars of non-compliance with s 101 by saying (as was submitted by Mr Reilly) that s 101 has not been complied with. It is the specifics (the particulars) of that non-compliance that are required to be given.
Having regard to these cases, it is apparent that the requirements set out in s.107 serve an important purpose and the service of a valid notice is a precondition for the exercise of what is invariably a serious, albeit discretionary, power. Considerable care should be taken in the issue of notices under s.107 because such notices are a key step in the process which may lead to the cancellation of a visa under s.109. Their purpose is to provide visa holders with particulars of the non-compliance alleged, details of other relevant related matters and, importantly, a reasonable opportunity to respond to those issues. It is also important to note that the decision-maker must be able to make an assessment of whether there has been non-compliance by reference to the “way described in the notice” for the purposes of s.108(b). If the nature of the non-compliance described in a notice is imprecise or general, the task of the decision-maker will be impossible.
In this case the relevant particulars which form the basis of the alleged non-compliance were:
Since the grant of this visa, information has been made available to the Department which indicate the Nikah Nama you provided is a bogus document as it appears to be counterfeit or has been altered by a person who does not have authority to do so. As this document has been found to be bogus it appears that you have not registered your marriage with [the dependent applicant] in Pakistan as you have claimed.
[Emphasis added]
This was said to be non-compliance with s.103 of the Act.
These particulars refer to information that had become available since the grant of the visa to the effect that the Nikah Nama was bogus, namely counterfeit or altered by a person who does not have authority. There are no particulars provided as to the information that had become available and how the document was said to have been counterfeit or altered or how the document was found to be bogus. It is further stated that because the document was “found to be bogus” it was not registered “as you claimed”. It is not apparent from the application for Protection or the records of the decisions by the original delegate or the previous Tribunal that this was a claim made. However, we accept that this may be inferred from the provision of the English translation of the Nikah Nama which represents the marriage, and therefore presumably the original Nikah Nama, was registered. It is unclear whether there was some subsequent information available to the Department about the veracity of the original Nikah Nama, although there is no record as to whether this document was ever provided. Is it simply that there is no record of the original Nikah Nama being registered? This does not of itself compel a conclusion that the document provided with the Protection application is bogus. It may be an accurate representation of the original document. Is the contention in the notice that there is no record of the registration of the Nikah Nama, although particulars of this are not provided in the notice, and therefore the original Nikah Nama must be bogus? Is the contention that the English translation of a Nikah Nama is itself bogus? There were issues raised about the authenticity of the Nikah Nama by both the original delegate and the previous Tribunal. The Tribunal made no findings about this but the delegate expressly stated that she was not satisfied as to the authenticity of the Nikah Nama.
In this case, the notice simply states the Nikah Nama is counterfeit or has been altered, which appears to be a reference to the definition for a bogus document in s.5(1) of the Act. It is stated that the document was found to be bogus but there are no details as to how it was found to be so. For instance, there was no reference to a report, document examination or other measures taken to verify the authenticity of the Nikah Nama. The document provided is purportedly an English translation of the Nikah Nama and it is unclear how this document was said to have been altered. As observed in Zhong, the particulars need to go further so that the applicants can respond to the issue raised. The generality of the response provided by the applicants underscores the problem with the notice.
These particulars were also said to form the basis for non-compliance with s.101(b) of the Act and the incorrect information provided was said to be that the applicants were married from 10 December 2008. It is unclear how the alleged bogus document relates to this issue. As noted in the ITOA, the fact that a marriage has not been registered does not invalidate the marriage. In their response the applicants explain why they did not register the Nikah Nama but they do not explain why the English translation refers to the marriage being registered. This is because this issue was never directly raised with the applicants. As such, the notice is not only imprecise and general but confusing.
We find that the notice issued does not comply with the provisions of s.107 of the Act. These defects cannot be cured by the Tribunal: refer SZEEM at [35] - [36]. Accordingly, the notice is not valid. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa did not arise. Relevantly, we cannot find that there was non-compliance by the visa holder in the way described in a notice properly given under s.107, as required by s.108 of the Act. The decision to cancel the first named applicant’s visa must therefore be set aside and substituted with a decision not to cancel.
The applicants’ assert that information of which the Department was aware at the time the grant of the visa could not be the subject of a notice under s.107. For completeness, we will deal with this contention.
The basis for this contention is said to be the decision of Finkelstien J in Jalal v Minister for Immigration & Multicultural Affairs [2000] FCA 207. This case was about the operation of s.128 of the Act, which provides that the Minister may cancel a visa without notice if there is a ground for cancellation under s.116, the non-citizen is outside Australia and it is appropriate to cancel in accordance with Subdivision C. In that case the incorrect information which was the subject of the ground for cancellation was known to the Department when the visa was granted. His Honour stated, in referring to the provisions in Subdivision C for cancellation of visas based on incorrect information which was introduced by the Migration Reform Act 1992, as follows (at [30] - [31]):
30 There are aspects of the new provisions which indicate that the power to cancel a visa for non-compliance with a provision relating to an application form (now ss 101, 104 and 105) is confined to non-compliance that was not known when the visa was granted. First, the obvious intention of the new provisions is to ensure that the Minister or his department is not misled in relation to an application for a visa. Thus, the onus is on the non-citizen to provide accurate information and to correct inaccurate information. Second, the structure of a subdivision proceeds upon the basis that a non-citizen has obtained a visa or gained entry by the provision of inaccurate information.
31 If the subdivision is not given this construction it would produce a curious result. The Minister, who granted a visa with full knowledge of non-compliance could revoke that grant although nothing had changed. What legitimate object would be served by this result? There is none that I can see. If the Minister is aware that a non-citizen has not complied with s 101 the Minister can refuse to grant a visa. On the other hand, if the Minister decides that the non-citizen who has failed to comply with s 101 should be granted a visa that should be an end to the matter. There is no reason of policy that I can detect to construe the legislation in a manner that would give to the Minister an opportunity to reconsider his decision. Further, it would be undesirable if the Minister had that power. If it did exist, it could be exercised at any time, perhaps many years after a visa had been granted. This might cause real injustice though the validity of the exercise of the power is not open to challenge. If an interpretation is available that could avoid this consequence, that interpretation is to be preferred.
[Emphasis added]
However, the applicant did not refer to the decision of the Full Court on appeal of Minister for Immigration & Multicultural Affairs v Jalal [2000] FCA 1370 overturning Finkelstein J. The Full Court states (at [18]):
The legislation does not expressly qualify or modify a Minister's power of cancellation in the way his Honour suggested. The provisions of the 1996 Act confer a discretion on the Minister either to cancel or not to cancel a visa in the event of non-compliance with the requirements of Subdivision C. While the fact that the visa was granted by the Minister with full knowledge of the non-compliance may be a matter that could be taken into account by the Minister, there is no basis for concluding that, in such circumstances, the power of cancellation is negated.
As such, Jalal is not authority for such a proposition and this was confirmed by North J in Dy v Minister for Immigration and Multicultural Affairs [2006] FCA 676 at [26].
This does not mean that cancellation on the grounds of incorrect information that was known at the time of the grant is irrelevant. Indeed, it would be highly relevant to the exercise of the discretion. For instance, one of the mandatory considerations under r.2.41 of the Regulations is “whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document”.
In this case, that the authenticity of the Nikah Nama was in dispute. The previous Tribunal considered the authenticity of the Nikah Nama and, while the Presiding Member chose not to make a ruling on the issue, it is clear he nonetheless accepted the applicants were in an interfaith marriage and Australia’s protection obligations were engaged under the Refugee Convention.[19] In the absence of an appeal, the Minister (or the delegate) was bound to accept this finding. As such, it may have been open to argue that the decision to grant the visa was not based on the incorrect information or bogus document.[20]
[19] Convention relating to the Status of Refugees, opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
[20] In the alternative, if the Minister was not satisfied the visa applicant passed the character test because of the incorrect information the visa could have been refused under s.501(1) of the Act. Refer comments of the Full Court in Jalal at [22] to [25].
Was there non-compliance as described in the s.107 notice?
We have decided that the notice under s.107 was not valid and therefore we do not need to consider this issue. However, the deficiencies in the notice highlight the difficulties in deciding whether there has been non-compliance “in the way described in the notice” for the purposes of s.108(b) and it is instructive to refer to these some of matters to illustrate the problem.
First, the particulars of non-compliance are that the Nikah Nama is bogus. There are no particulars as to how it is bogus and, for the reasons previously outlined, there is no evidence of this in any event. There is no evidence of the searches undertaken to verify the authenticity of the Nikah Nama, although we accept the applicants now concede it was not registered. If it is alleged the original Nikah Nama must be bogus because the English translation refers to the fact the marriage was registered, this is problematic because there is no evidence the Nikah Nama was provided to the Department or the previous Tribunal. Nor is there evidence the English translation is itself bogus.
Secondly, the incorrect information is said to arise from the bogus Nikah Nama but the further particulars are to the effect that the applicants were not married from 10 December 2008. The evidence does not establish this. At best, it seems there may have been incorrect information, being a representation that the applicants’ marriage in December 2008 was evidenced by the registration of a Nikah Nama, which was not in fact registered. However, these were not the particulars provided and the applicants were not asked to respond to this issue. On review, the Tribunal can make good certain deficiencies in the process by undertaking further enquiries but we cannot cure a defective notice.
CONCLUSION
The Tribunal has considered the information before it and has found that the notice purportedly issued under s.107 of the Act was not a valid notice. As a valid s.107 notice is a precondition to the exercise of the power under s.109, there was no power to cancel the visa. It follows that the delegate’s decision to cancel the visa must be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Protection (Class XA) (Subclass 866) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Jan Redfern
Deputy PresidentLouise Nicholls
Senior MemberATTACHMENT – 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.
36Protection visas--criteria provided for by this Act
(1A)An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Ineligibility for grant of a protection visa
(2C)A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i)the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non-citizen committed a serious non-political crime before entering Australia; or
(iii)the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia's security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A)Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6)For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7)Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
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.
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 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.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
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‑compliance
The 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.128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i)there is a ground for cancelling a visa under section 116; and
(ii)it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
140Cancellation of visa results in other cancellation
(1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2)If:
(a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person's visa.
(3) If:
(a) a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and
(b) the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
(4) If:
(a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and
(b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;
the cancellation under subsection (1), (2) or (3) is revoked.
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