1711300 (Migration) - [2020] AATA 1832

1711300 (Migration) [2020] AATA 1832 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711300
MEMBER:Meena Sripathy
DATE:6 March 2020
PLACE OF DECISION:  Sydney
DECISIONS:  The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 March 2020 at 12:03pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visas – Subclass 202 (Global Special Humanitarian) – incorrect answers in the visa application – expiry of Lebanese passport – Lebanese citizenship – previous visit to Australia – fear of arrest – physical assault – military service obligations in Syria – Assyrian Christians – contributions to the community – regional insecurity – impact of decision on children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101, 107, 109, 114, 140, 375A
Migration Regulations 1994 (Cth), rr 2.41, 2.43
CASES
MHA v CSH18 [2019] FCAFC 80
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant did not comply with s101 of the Act and determined, having considered the prescribed circumstances under r.2.43, that the visa be cancelled. 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 visas were 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 applicants.
The applicant appeared before the Tribunal on 13 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [named], and sons, [Child A] and [Child B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.
At the commencement of the hearing the Tribunal discussed with the applicant that the Department’s advice that the relevant delegate who made the cancellation decision was not properly delegated at that time and the implications of this on the Tribunal’s scope and power of the Tribunal to review the decision. It explained that following a judgement of the…

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.

Continue reading 1711300 (Migration)

Details

AGLC: 1711300 (Migration) [2020] AATA 1832
Case: [2020] AATA 1832
Decision Date: 6 March 2020

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of a Subclass 202 (Global Special Humanitarian) visa. The applicant had provided information in their visa application and Form 80 that was alleged to be incorrect, leading to the Minister’s decision to cancel the visa under section 109 of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Act regarding the provision of correct information in their visa application.

The central legal issue before the Tribunal was whether the applicant had provided incorrect answers in their visa application and Form 80, thereby breaching section 101(b) of the Act. Specifically, the Tribunal had to consider allegations that the applicant had provided false information regarding their parents' citizenship and residency, their reasons for fearing return to Syria, their previous travel history, and their employment and business activities in Syria. The Tribunal also had to consider whether the notice of intention to cancel the visa, issued under section 107, was valid and whether, despite any non-compliance, the visa should ultimately be cancelled.

The Tribunal found that while the applicant had indeed provided incorrect information in their visa application and Form 80, as particularised in the notice issued under section 107, the exercise of the cancellation power under section 109 was not mandatory in this instance. The Tribunal considered all relevant circumstances, including the applicant's background and the impact of a cancellation decision on their children. Having regard to these factors, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa. The Tribunal noted that as a result of setting aside the cancellation decision, the visa was taken never to have been cancelled, meaning there was no basis for any consequential cancellation of related family members' visas.

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, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. CONSIDERATION OF CLAIMS AND EVIDENCE Section 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. Extracts of the Act relevant to this case are attached to this decision. Notice of intention to consider cancellation under s.107 A notice of intention to consider cancellation (NOICC) was sent to the applicant on 18 December 2017. The notice said the delegate considered that the applicant has not complied with s101(b) of the Act which required that no incorrect answers are given or provided in his visa application. The notice provided particulars of information given by the applicant in his protection visa application that were alleged to be incorrect. Specifically the notice particularised the non-compliance as follows: That he provided the following incorrect answers on his application for a Class XB Subclass 202 Special Global Humanitarian visa:- His response to Q13 that his parents were living in Syria and were Syrian citizens- His responses to Q25-27 regarding the country he feared returning to and why. He responded Syria because he owned and ran a small business in [Town 1], Syria and was arrested by Syrian security forces, was accused of being a member of the rebel forces, and was beaten and detained for 20 days. He was tortured and threatened with death if he did not provide information to the Syrian security forces. He claimed his house was destroyed and business was ransacked and he escaped from Syria as a result. At Q26 he claimed he left Syria [in] June 2012. He claimed to fear death upon return to Syria.- At Q30 and 31 he claimed that he feared harm from the Syrian security forces who previously imprisoned him and that he cannot be safe in Syria.- At Q5 of Form 80 he responded no to whether he has been known by any other names including different spellings of his name. - At Q7 & 8 of Form 80 he stated that he has only ever held Syrian citizenship. - At Q10 & 12 of form 80 he stated he had no current passport or travel document or ay previous ones. - At Q18 of Form 80 he stated he lived in Syria from [year] until August 2014 - At Q20 he stated he worked in Syria from [year] to 2012.- At Q36 he stated he had not been to Australia before. - At Q45 he stated his father and mother were Syrian citizens and residing in Syria.

Decision

Reasons for decision

For all the above reasons, the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa. The Tribunal has no jurisdiction with respect to the other applicant. However, it notes, as a consequence of setting aside the decision under s109 to cancel the visa, the visa is taken never to have been cancelled and therefore there is no basis for a consequential cancellation under s140 of relevant family members.Meena SripathyMemberATTACHMENT – 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.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.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.

Ratio Decidendi

Legal Principle Established

The Tribunal has no jurisdiction with respect to the other applicant. However, it notes, as a consequence of setting aside the decision under s109 to cancel the visa, the visa is taken never to have been cancelled and therefore there is no basis for a consequential cancellation under s140 of relevant family members.Meena SripathyMemberATTACHMENT – 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.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.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.