1711326 (Refugee) - [2019] AATA 6767

1711326 (Refugee) [2019] AATA 6767 (2 December 2019)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711326
COUNTRY OF REFERENCE:                   Iran
MEMBER:John Cipolla
DATE OF DECISION:  2 December 2019
DATE CORRIGENDUM
SIGNED:17 December 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision: The second date referred to in paragraph 5 should read 29 May 2017. The subsequent phrase “(please check date)” should be removed.

John Cipolla
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711326
COUNTRY OF REFERENCE:                   Iran
MEMBER:John Cipolla
DATE:2 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 02 December 2019 at 5:25pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in visa application – not stateless Faili Kurd but Iranian citizen of Faili Kurd ethnicity – ancestry and documentation – discretion to cancel visa – marriage to Australian citizen and role in life of step-child – study, work and contribution to the community – wife’s Australian divorce from abusive first husband not recognised by Islamic and Iranian law – country information about adultery and violence against women – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

CASES
MIAC v Khadgi (2010) 190 FCR 248
MHA v CSH18 [2019] FCAFC 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant annexed a copy of the Departmental decision record to the review application lodged with the Tribunal.
Recourse to the decision record indicates that the applicant arrived in Australia [in] January 2010. On 5 February 2010 the applicant underwent an Entry Interview undertaken on Christmas Island and provided his claims to engage Australia’s protection obligations. When the applicant completed the entry interview form and the question pertaining to citizenship the applicant answered “stateless no nationality.” On 21 March 2010 the applicant attended a Refugee Status Assessment Interview to determine whether the applicant was owed protection obligations by Australia. On 27 April 2010 a Refugee Status Assessment Officer found the applicant’s claims did not meet the criteria set out in Article 1A of the Convention relating to the Status of Refugees and its 1967 protocol. On 3 May 2010 the applicant submitted a request for Independent Merits Review. On 14 September 2010 the Independent Merits Review Officer found that the applicant’s claims were credible and that he met the definition of a refugee and 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 1711326 (Refugee)

Details

AGLC: 1711326 (Refugee) [2019] AATA 6767
Case: [2019] AATA 6767
Decision Date: 2 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against a decision to cancel his Subclass 866 (Protection) visa. The dispute arose because the visa holder had provided incorrect information in his original visa application, specifically regarding his claim to be a stateless Faili Kurd. The decision was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the visa holder had failed to comply with section 101 of the *Migration Act 1958* by providing incorrect information in his visa application, and if so, whether the discretion to cancel his visa should be exercised in his favour, considering all relevant circumstances. The Tribunal was required to determine if the incorrect information was central to the grant of the protection visa and to assess the visa holder's current circumstances, including his marriage to an Australian citizen, his role within the family unit, his contributions to the community, and his educational and vocational pursuits.

The Tribunal found that the visa holder's claim of being a stateless Faili Kurd was indeed central to the decision to grant him a protection visa, and that this information was incorrect, as conceded by the applicant. He had provided this incorrect information on the advice of people smugglers, fearing detention and deportation. However, the Tribunal also considered the visa holder's present circumstances, noting his stable marriage to an Australian citizen, his active involvement in the life of his step-daughter, his commitment to his studies and impending apprenticeship, and his overall contribution to the community. The Tribunal concluded that, despite the non-compliance with section 101, the circumstances warranted a decision not to cancel the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 applicant’s Subclass 866 (Protection) visa.John CipollaSenior 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.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

This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).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: Recourse to the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the decision to grant the applicant a protection visa was based on his claim that he was a stateless Faili Kurd. In his response to the s.107 notice, the applicant acknowledged the decision to grant him the protection visa was based on incorrect information. The Tribunal accepts on the evidence before it that the applicant is in fact a Faili Kurd. The Tribunal finds that the applicant’s his claim to be a stateless Faili Kurd was central to the decision to grant him a protection visa and that decision was based on the incorrect information. This fact is conceded to by the applicant.The circumstances in which the non-compliance occurred: The incorrect information about the applicant’s identity and statelessness was provided by the applicant in his visa application, and in his accompanying statutory declaration and at an interview conducted in respect of his protection claims and before the Independent Merits Review Officer. At hearing before the Tribunal the applicant has stated he had given the incorrect information about his statelessness because he was told to by the people smugglers to advise Australian authorities of this. In the response to the s.107 notice, the applicant claimed to be stateless on the advice of the people smugglers, being scared he would be kept in detention for a few months before being deported back to Iran.The present circumstances of the visa holder: The visa holder is in a marital relationship with an Australian citizen. They have been married since [March] 2017 and have cohabited since 2015. The evidence before the Tribunal indicates that the applicant and his wife have had and continue to have parenting responsibilities for the applicant’s wife’s daughter from her first marriage, a daughter born in [date]. The evidence indicates that the applicant’s wife’s daughter is a dependent member of their family unit as she is engaged in tertiary studies [at] [University]. The applicant’s wife gave evidence to the Tribunal pertaining to her former marital relationship advising that it was one characterised by domestic violence which consisted of verbal abuse, physical violence along with threats and intimidation. The applicant’s wife gave evidence to the Tribunal that the applicant has been involved in her daughter’s life during a critical period of her development [and] has provided stability, support and protection within the family unit. The applicant’s wife gave evidence that the applicant is a good provider and very hard working and industrious and has that he has completed an Advanced Diploma of [Subject 1] and is also very close to the completion of an apprenticeship to become a licenced [Occupation 2].