1711341 (Refugee) - [2020] AATA 357

1711341 (Refugee) [2020] AATA 357 (19 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711341
COUNTRY OF REFERENCE:                   Iran
MEMBER:Josephine Kelly
DATE:19 February 2020
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 19 February 2020 at 11:31am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in protection visa application – fear of harm from police, Basij and government – engagement with authorities to obtain passport – voluntary return to home country twice – compelling and compassionate circumstances – daughters beaten by in-laws and miscarried, one attempted suicide – applicant’s physical and mental health and treatment – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 107, 109(1), 494B(4)(c)(i)
Migration Regulations 1994 (Cth), r 2.14, Schedule 8, condition 8559
CASE
Minister for Home Affairs 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 visa was granted on 2 October 2012.The letter notifying the applicant of the cancellation decision was dated 18 May 2017.
The delegate cancelled the visa on the basis that the applicant had given incorrect answers to questions 42, 45, 46 and 47 in the Form 866 – Application for a Protection Visa (Class XA) visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 15 September 2017 (the first hearing), 10 October 2017 (the second hearing) and 6 February 2020 (the third hearing) to give evidence and present arguments. The Tribunal also received oral and written evidence from her husband and one of their daughters. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by her registered migration agent.
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…

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 1711341 (Refugee)

Details

AGLC: 1711341 (Refugee) [2020] AATA 357
Case: [2020] AATA 357
Decision Date: 19 February 2020

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The dispute arose from allegations that the applicant had provided incorrect information in her protection visa application, which is a ground for visa cancellation under section 109 of the Migration Act 1958. The applicant contended that she did not receive the Notice of Intention to Cancel (NOIC) issued by the Minister's delegate, and that this failure to receive the notice rendered the cancellation decision invalid. The review was heard by Senior Member Josephine Kelly of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister's delegate had validly exercised the power to cancel the applicant's visa under section 109 of the Act. This involved determining whether the NOIC was properly issued and served, specifically whether it was sent to the applicant's last known address for service as required by section 494B(4)(c)(i) of the Act. A secondary issue, though not determinative of the outcome, was whether the applicant's failure to receive the NOIC constituted a denial of procedural fairness.

The Tribunal considered the evidence regarding the addresses to which the NOICs were sent and the fact that both were returned to sender. It noted that the Department had made inquiries to locate the applicant after the notices were returned. However, the Tribunal was not persuaded that the applicant had notified the Department of her change of address to either of the residences to which the NOICs were sent, or to the address where the final cancellation notice was successfully served. Therefore, the Tribunal found that the NOICs were sent to the applicant's last known address for service, and the failure to receive them did not invalidate the notices or constitute a denial of procedural fairness, as the applicant had the opportunity to present her case during the review.

Despite finding that the NOICs were validly issued, the Tribunal ultimately set aside the decision to cancel the applicant's visa. The Tribunal substituted a decision not to cancel the visa, acknowledging the difficult and lengthy process the applicant had endured, including significant delays due to jurisdictional issues.

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 (the NOIC). Where a NOIC 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. In the present case, there is a question as to whether the NOIC issued by the Minister’s delegate complied with s.107 based on the fact that the notice was sent to an address that the applicant claims she had left. The information on the Department’s cancellation file show that it sent two NOIC to the applicant at two different addresses, the first was dated 16 December 2016, and the second was dated 14 February 2017. Both were returned to sender. After the first was returned inquiries were carried out. Both were sent by registered post. The applicant did not respond to the either notice. The notice of cancellation of the visa was sent to a different address following further inquiries made by departmental officers, including contacting one of the applicant’s daughters. It is clear that the department was aware that the applicant had not received the notice of intention to cancel the visa. The applicant, her husband and one of her daughters gave evidence to the effect that they had left the address to which the second NOIC was sent, that her husband had found a card on the ground outside their former address advising of a registered postal, and gone to the post office and been advised that it had been returned to sender. The fact that the applicant did not receive an NOIC would only result in invalidity of the NOIC if it had not been sent to the last address for service provided to the Minister by the recipient for the purposes of receiving documents as required by s 494B(4)(c)(i) of the Act. The evidence does not persuade the Tribunal that the applicant had notified the department that she had moved from either residence or to the address to which the notification of cancellation was sent successfully, after the Department made various inquiries, including of one of the applicant’s daughters. The department had made inquiries seeking to obtain an address for the applicant after each of the NOICs was returned to sender. That the applicant did not receive the NOIC and was therefore unable to respond, was not a denial of procedural fairness as claimed. Further, she has had the opportunity to have the decision reviewed and put her case before the Tribunal.

Decision

Reasons for decision

The Tribunal accepts that the regrettably lengthy and uncertain process following the receipt of the s 107 notice, the subsequent cancellation, and the legal process relating to the question of this Tribunal’s jurisdiction which was decided in Minister for Home Affairs v CSH18 [2019] FCAFC 80, has been very difficult for the applicant. The latter legal process caused a delay of almost two years between the second and third hearings.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Josephine KellySenior MemberATTACHMENT – Relevant Extracts from the Migration Act 1958:5Interpretation(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.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Josephine KellySenior MemberATTACHMENT – Relevant Extracts from the Migration Act 1958:5Interpretation(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.