1714304 (Migration)

[2018] AATA 1953

1714304 (Migration) [2018] AATA 1953 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714304

MEMBER:Denis Dragovic

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

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 30 April 2018 at 3:18pm

CATCHWORDS
Migration – Cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Incorrect information – Change of name – Shenashameh – Legitimacy of identity document – Disputed email address – Passenger card – Mother’s death and father’s illness – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109

CASES
Mian v MILGEA (1992) 28 ALD 165
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 who [is from] Iran had notified police while in a drunken state that his identity was different to the one upon which he had applied for a [temporary] 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.

3. 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

4. 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.

5. 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.

6. 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.

7. I find that the s107 notice was a valid notice particularising the possible breaches of s101(b).

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

8. 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(b).

   Section 101: Visa applications to be correct

   s101. 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

9. Section 101 refers to the incorrect information being given on the application form. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning, ‘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 s.46 allow to be used for making the application.’

10. The applicant made the following claims in the [temporary] visa application form in response to the questions:

    a.What is your full name: ‘[Name 1]’

    b.Details of your current travel document: ‘N/A – False passport taken’

11. [In] December 2014 at 0155 hours the applicant arrived at [a] Police Station and stated to an officer on duty that he had provided incorrect information when he applied for his [temporary] visa and that his real name was [Name 2]. [Name 2] is the name on the passport by which the applicant left Iran and arrived to [Country 1]. This act triggered the department’s review.

12. The Minister’s delegate found that having told the police that his name was [Name 2] ‘there is no logical reason or motivation as to why you would voluntarily approach the [Police] and admit this to be your real name if you were not telling the truth.’ In addition the delegate stated that there is no logical reason why he would be using the email address of ‘[Email address 1]’ if his name was [Name 1].

13. Based upon these two reasons the applicant’s visa was cancelled.

14. I will now review the evidence to determine whether there was non-compliance as described in the notice.

    Regarding his ‘real’ name

15. The delegate determined that the department’s forensic examination of the applicant’s shenasnameh concluded that its veracity could not be confirmed. The delegate noted submissions of identity documentation from members of the [Name 1] family but gave this no weight for the reason that the applicant hadn’t provided any evidence that he is related to them. The delegate then concluded by stating, ‘I do not consider that the visa holder has provided conclusive evidence that he is the person who he claimed to be in the visa application.’ The responsibility of establishing the facts upon which non-compliance is determined, in this case being that the applicant is not who he claims to be, lies with the Minister and in turn the Tribunal. The responsibility is not upon the applicant to prove that he is who he claimed to be when he applied for the visa.[1] In reviewing the facts I am not convinced that the Department has or that the Tribunal can conclude from the evidence available that the applicant is not [Name 1] for the following reasons.

    [1] Mian v MILGEA (1992) 28 ALD 165 at 169

16. The notice of intention to consider cancellation (NOICC) refers to the information the applicant provided for a [form]. He then proceeded to provide the information as noted above that he had travelled on a passport under the name of [Name 2]. The NOICC and subsequent decision notes that he could not provide further details of the passport other than the name. The consistency with which the applicant has maintained the claim lends itself to positive credibility.

17. The applicant provided a shenasnameh along with an explanation as to why the photo had fallen off, namely that it was rusted and loose and had slipped off while photocopying at the migration agent’s offices. This reasoning was not engaged with by the delegate. Considering that the applicant travelled [from] [Country 1] to Australia and arrived with his shenasnameh it is reasonable to give the benefit of the doubt that the document would be worse for wear and the staple rusted such that it could fall off through the process of photocopying.

18. The Department’s forensic unit conducted an examination of the shenasnameh. The delegate stated that due to ‘damage to the photograph page its veracity could not be confirmed.’ That is not how I would summarize it. The report concludes, ‘It is my opinion that it is a legitimately manufactured Iranian Sheneshameh; however it is not possible to determine whether it is a legitimately issued document as it has poor issuing security and no photograph. The result is inconclusive.’ In other words it is indeterminate whether the applicant had illegally or legally obtained what is a legitimate shenasnameh.

19. The delegate acknowledged documentation including a photocopy of a passport from the applicant’s claimed father and a shenasnameh from his claimed mother had been provided but placed no weight on them as the applicant was unable to demonstrate that he belonged to the family. I acknowledge that document fraud in Iran is possible but no reason was given as to why they should be discounted other than because the delegate had come to the conclusion that the applicant was not who he claimed to be. In other words the delegate discounted the value of the documents because of the conclusion the delegate had already reached. One must recall that the responsibility is not upon the applicant to prove that he is who he claimed to be when he applied for the visa.[2] These documents add weight to his claims of who he is and as such without any other reason to question their authenticity I given them some weight, limited for the reason of the prevalence of document fraud in Iran.

    [2] Mian v MILGEA (1992) 28 ALD 165 at 169

20. The matter of the report to the police was raised by the delegate in the NOICC with the conclusions that ‘there is no logical reason or motivation as to why you would voluntarily approach the [Police] and admit this to be your real name if you were not telling the truth.’ The applicant provided a logical explanation which was not engaged with in the decision to cancel his visa. I have engaged with the reasoning and I find that it has some merit.

21. In summary the explanation was that his mother had passed away in 2011 while he was in [an] Immigration Detention Centre. He was informed that his father was ill in 2014 and he wanted to return to see his father just in case he also passed away. His brother had argued against such action. Being frustrated and drunk one evening he made the decision to report to the police station that he had lied to the Department and that his real name was [Name 2]. He subsequently sobered up and regretted his action.

22. The applicant claims that he wanted to change his name to [Name 2] because he was told by his fixer [of the advantages]. The delegate countered this claim by asserting without basis that it was with the intention of subsequently reporting a lost passport so that he could access a new one. Simply asserting a statement does not make it true.

    Use of the email address [Email address 1]

23. The delegate noted in the NOICC that the applicant had travelled from an international destination arriving to Australia on 11 November 2011 and on the passenger card completed the contact details as [Email address 1]. That the applicant used this email address was found by the delegate to contribute to the conclusion that he was not [Name 1] but rather [Name 2].

24. The applicant in his response to the NOICC explained that he does not remember making an inward bound flight to [the city] [in] November 2011. Furthermore, he provided an alternative email address [and] stated that the fixer in Iran who had arranged for his travel on the passport of [Name 2] had created the email address for him as he wasn’t familiar with computers and the internet.

25. A search of the applicant’s movement records shows that the applicant did not return to [the city] [in] November 2011 as stated by the delegate. It shows that the applicant left Australia on the 9 December 2011 and returned on the 11 February 2012. While it may be that the passenger card was provided by the applicant upon his return on a different date and that the date was incorrectly referenced by the delegate in the NOICC that the card was not included in the documentary evidence leads me to find that there is insufficient evidence to conclude that the applicant’s explanations regarding the email address are fabricated.

    Considerations

26. In summary we have a situation where the applicant provided an identity document which was found to be legitimate but due to its condition questions were raised over how it was obtained. Such questions are legitimate to ask. In response the applicant provided additional family documents. The shenasnameh together with these documents leads me to a favourable disposition to the applicant’s identity claims.

27. The applicant from the outset has claimed that he obtained a fake passport. He gave the name he used but was unable to provide further details, a not unexpected circumstance if a passport was illegitimately obtained. This adds weight to the applicant’s credibility.

28. Having lost his mother a few years earlier and fearing the loss of his father due to illness the applicant decided to change his name hoping to be able to return to Iran to see his father. He chose to do this by turning up to a police station in a drunken stupor at 0155 hours stating he had lied about his identity. It can hardly be described as a wise decision by the applicant but in determining whether the applicant is who he claims to be or who the department claims he is I have taken into consideration his response to why he did what he did. I find his explanation provides a sufficiently cogent reason such that I give his statement to the police little weight.

29. The department claimed that in an inward bound passenger card dated 11 November 2011 the applicant provided an email address [Email Address 1]. His movement records do not show the applicant arriving to Australia until a few months later. It is disconcerting that the department could make such a mistake. This being one of many but not a critical issue dispositive to the review I have not sought the passenger card from the Department.

30. The applicant on his own account corrected the department’s claim that he had never had access to [Email address 1] by providing a similar email address as the one that was provided to him by the fixer. He provided a credible account of how he came to be using such an address.

31. In Zhao v MIMA the Court stated: ‘That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material.’[3] Based upon identity documents that would on balance suggest that he is who he claims to be, the applicant’s consistency in maintaining his story and the responses to his drunken confession at 0155 hours and disputed email address are sufficient for me to conclude that I have not reached a real state of satisfaction on the assertion that [Name 1] is [Name 2].

    [3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

32. 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.

33. 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

34. 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.

    Denis Dragovic
    Senior 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.