1712581 (Migration)

[2020] AATA 2870

1712581 (Migration) [2020] AATA 2870 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712581

MEMBER:Roslyn Smidt

DATE:24 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 (155) (Five Year Resident Return) visa.

Statement made on 24 February 2020 at 5:01pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa application – stateless Faili Kurd – Iranian citizenship – alleged possession of Iranian passport – based on Queensland Police report – no onus of proof before the Tribunal – reasonable state of satisfaction not reached – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109

Administrative Appeals Tribunal Act 1975 (Cth), s 33

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

McDonald v Director-General of Social Security (1984) 1 FCR 354

MIEA v Pochi (1980) 44 FLR 41

Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197

Sullivan v CASA (2014) 226 FCR 555

Zhao v MIMA [2000] FCA 1235

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had falsely claimed that he was stateless when he was a citizen of Iran. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

5. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

6. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 which states that a non-citizen must fill in or complete his or her application form in such a way that all questions are answered no incorrect answers are given or provided.

7. The s.107 notice issued to the applicant notes that, in his application for protection, he claimed to be a stateless Fali Kurd who had lived in Iran and did not have a right to citizenship or a right to reside in any other country. It also sets out in some detail the evidence provided by the applicant regarding his life in Iran, the problems he faced because of his lack of citizenship and his fears on return. The applicant’s claims were accepted and he was granted protection visa on 5 May 2011.

8. The notice states that on [in] February 2013 the police in [Town 1] in Queensland recorded a report from applicant that he had left his Iranian passport on a beach the previous day and could no longer locate it. It states that the applicant requested a report from the police as he needed that information to obtain a report number for the Iranian police. The notice states that the applicant’s possession of an Iranian passport and voluntary reporting of the loss of that passport confirmed that he was an Iranian citizen. It goes on to say that as an Iranian citizen and the holder of an Iranian passport he was clearly not an undocumented stateless person and had not and would not face the problems claimed in his protection visa application.

9. In a response dated 23 February 2017 the applicant maintained that he was a stateless Faili Kurd and that all of the information included in his application form was true and correct. He said that the police report which he lodged in February 2013 related to the travel document issued to him by Australia authorities in January 2013. He said that at the time he made the report his English language skills were limited and he was in a depressed state. He said that he may have used the term passport when attempting to explain his loss to the police as this was the term commonly used amongst his refugee friends in Australia. He believed that the officer who took his report probably misunderstood him and assumed that he was talking about an Iranian passport. He was unable to explain why the report suggested he had stated that he needed a number to give the Iranian Embassy, but denied making this statement. He provided evidence that he was issued with an Australian Titre de voyage [in] 2013.

10. A party to proceedings before the Tribunal has no onus of proof, let alone an onus to establish facts to any particular or pre-determined standard.[1] To affirm a cancellation decision, the Tribunal must decide that there was non-compliance (s.109) or be satisfied that the ground is made out (s.116), and decide that the visa should be cancelled. A visa cannot be cancelled simply because the decision-maker has identified a possible ground of cancellation or instance of non-compliance which the visa holder has not been able to rebut.[2] Having identified possible facts which could give rise to the cancellation power, the Tribunal must go on to be satisfied of those facts (or decide that they have occurred), before the cancellation power is enlivened. In forming a state of satisfaction, the decision-maker must ‘feel an actual persuasion – an inclination of the mind towards assenting to, rather than rejecting, a proposition’.[3]

    [1] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [115].

    [2] Zhao v MIMA [2000] FCA 1235, at [32].

    [3] Plaintiff M64/2015 v MIBP (2015) 90 ALJR 197, per Gageler J, at [64], referring to Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and George v Rockett (1990) 170 CLR 104 at 116. See also McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358 (per Woodward J): ‘If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work’.

11. To find that non-compliance or a ground is made out, the Tribunal must be reasonably satisfied that the non-compliance occurred or that the ground for cancellation exists. ‘Reasonable’ in this sense means that the Tribunal’s conclusions must be based on logically probative material.[4]

    [4] See e.g. MIEA v Pochi (1980) 44 FLR 41 at 62.

12. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it; and that it might express more caution in evaluating the factual foundation for more centrally relevant facts.[5] The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[6] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the tribunal applying those rules, but imposing a requirement to apply the rule in Briginshaw in making factual findings would be an unnecessary constraint upon the Tribunal’s freedom to employ such procedures at it sees fit in undertaking its fact-finding role.[7]

    [5] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120], applied by the AAT in 1702551 (Migration) [2017] AATA 1415 (Redfern DP and Member Murphy, 22 August 2017) at [31]ff.

    [6] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [7] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [122].

13. The delegate’s decision to cancel the applicant’s visa is based entirely on a report dated [February] 2013 provided by Queensland Police. It states in full:

    The victim in this instance stated that he was swimming on Main Beach last night and was intoxicated. Stated that today he realized he had left his Iranian passport on the beach and is now unable to locate it. Possible the tide may have carted it away during the night. Reported for information purposes only as report number required by Iranian Embassy.

14. This report certainly suggests that the applicant may hold Iranian citizenship and may have concealed this and made false claims when he applied for protection in Australia. However, it is extremely brief and appears to be the result of a police officer recording a verbal report made by the applicant. In these circumstances the possibility that the applicant was misunderstood because of his poor language skills, his depressed state of mind and his inappropriate use of the word passport to describe the travel document issued to him in Australia cannot be discounted. In these circumstances it is my view that the evidence is simply not strong enough for me be satisfied that the applicant is not stateless and that he provided incorrect answers in his application form regarding his nationality and the problems he faced and feared in Iran. 

15. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.   

    CONCLUSION

16. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Roslyn Smidt
    Member

    
    

    ATTACHMENT – 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.

    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.

    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.