1711220 (Refugee)

Case [2019] AATA 3745

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 Nicholls

DATE: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…

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1711220 (Refugee) [2019] AATA 3745
Case
[2019] AATA 3745
Decision Date

CaseChat Overview and Summary

The Tribunal reviewed a decision to cancel the protection visas of two applicants who arrived in Australia in November 2010. The applicants had applied for protection visas based on their interfaith marriage, fearing persecution in Pakistan due to the first applicant's Christian faith and the second applicant's Muslim faith. Their application was initially refused by a delegate of the Minister, who was not satisfied as to the genuineness of the marriage or the provided Nikah Nama (Islamic marriage contract). However, a subsequent review by the Tribunal remitted the matter to the Department, finding the applicants satisfied the criteria for protection visas, and they were subsequently granted these visas in January 2013. In July 2016, a notice of intention to cancel their visas was issued, alleging that the Nikah Nama provided was a "bogus document" and that the applicants had provided incorrect information regarding their marriage, which was fundamental to their protection claims.

The legal issues before the Tribunal were whether the notice of intention to cancel the visas, issued under section 107 of the Migration Act 1958, was valid, and if so, whether there had been non-compliance by the visa holders as described in the notice. If non-compliance was established, the Tribunal also had to consider how the discretion to cancel the visas should be exercised. The applicants contended that the particulars provided in the section 107 notice were insufficient to meet the statutory requirements.

The Tribunal found that the notice issued under section 107 was not valid. It reasoned that a valid section 107 notice, which must provide particulars of the possible non-compliance, is a statutory precondition for the exercise of the power to cancel a visa under section 109. The Tribunal relied on case law, including *Minister for Immigration and Citizenship v Brar*, which emphasised that while a section 107 notice is not a formal charge, it must provide sufficient particulars to allow the visa holder to understand the allegations and have an opportunity to respond. The Tribunal concluded that the particulars in the notice were unclear and therefore insufficient for the purposes of section 107(1)(a) of the Act.

Consequently, the Tribunal set aside the decision to cancel the first applicant's protection visa, substituting a decision not to cancel it. The Tribunal stated it had no jurisdiction with respect to the second applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 RedfernDeputy PresidentLouise NichollsSenior 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.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.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‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.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.

Ratio Decidendi

Legal Principle Established

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?CONSIDERATIONWas 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]