1716773 (Refugee)

[2018] AATA 3051

1716773 (Refugee) [2018] AATA 3051 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716773

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Alison Murphy

DATE:11 July 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 866 (Protection) visa.

Statement made on 11 July 2018 at 1:06pm

CATCHWORDS

Refugee – Protection visa – Cancellation – Stateless – Incorrect information provided – Ethnicity – Faili Kurd – Issue of husband’s Iranian citizenship – No reasonable basis – Discretionary power to cancel visa does not arise – Decision under review set aside

LEGISLATION

Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109, 425, 438

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

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is [an age] year old woman of Faili Kurd ethnicity who claims to be stateless.  Until she was granted protection in Australia in June 2012, she was resident in Iran.

3. The delegate cancelled the visa on the basis that it considered the applicant is an Iranian citizen and not stateless. The delegate considered she had therefore provided incorrect information in her application for the protection 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.

4. The applicant was represented in relation to the review by her registered migration agent who provided submissions to the Tribunal on 9 July 2018.

5. For the following reasons, the Tribunal has concluded on the basis of the documentary material before it that the decision to cancel the applicant’s visa should be set aside and it has proceeded to determine the matter without inviting the applicant to a hearing pursuant to s.425 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. In the present matter no issue has been raised with the validity of the s.107 notice and the Tribunal is satisfied the delegate had reached the necessary state of mind to engage s.107 and the notice issued under s.107 complied with the statutory requirements.

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

9. 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) in the following respects: that the applicant answered questions in her application for protection and attached statutory declaration to the effect that she was a stateless Faili Kurd who did not hold citizenship in any country.

10. The s.107 notice set out that the applicant had provided information about her husband [Mr A] in her visa and the department had information to suggest her husband was an Iranian citizen. The s.107 notice set out that pursuant to Iranian citizenship laws the applicant would have acquired Iranian citizenship through her marriage to her husband [Mr A].

11. On 7 October 2016 and again on 12 October 2016, the applicant responded to the s.107 notice through her representative. On each occasion the applicant denied she was an Iranian citizen and sought details of the information relied on to conclude she and her husband were Iranian citizens. The applicant also provided a range of documents indicating she was receiving medical treatment for mental health issues. No further details were provided to her as to the basis on which the department had formed the view that she or her husband were Iranian citizens and not stateless as claimed.

12. The reasons the department believed the applicant’s husband to be an Iranian citizen are not set out in the s.107 notice, however the departmental file refers to an intelligence report that apparently formed the basis of the department’s suspicion that he is an Iranian citizen. There is no non-disclosure certificate attached to that document or any other part of the departmental file regarding the cancellation of the visa (although a certificate has been issued under s.438 in relation to a number of documents on the departmental file relating to the grant of the protection visa).

13. On 4 April 2018 the Tribunal requested the department provide a copy of the intelligence report. On 24 April 2018 the Tribunal was advised that the delegate declined to provide the intelligence report, considering it to be unrelated to the visa cancellation decision for the applicant and the delegate considered the information contained on her file demonstrated her that decision was made.

14. On 26 June 2018 this Tribunal (differently constituted) set aside the decision to cancel the visa of the applicant’s husband, [Mr A] (AAT file number 1719936).  The decision record states in part:

    11. Earlier today I set aside the applicant’s brother’s visa cancellation on the basis that the information did not establish that the applicant’s brother was an Iranian citizen (tribunal file 1716579) and did not ground non-compliance as described in the s.107 notice. Therefore, there is no reasonable basis on which to conclude that the father of the brothers is an Iranian citizen and therefore no basis to conclude that the applicant is an Iranian citizen.

    12. This was the information set out in the decision on the basis of which the applicant’s visa was cancelled.  However, on the file there were also a number of photographs from the applicant’s [social] media feed. For completeness, I will address these. At Df.4 (verso) there is a photograph of someone holding a gun. It is noted that this is a picture of the applicant carrying a gun in the Iranian countryside and notes that in Iran only citizens may have a gun licence. At hearing, the applicant said that this was not him but someone else, and he had merely ‘liked’ this image. I accept this explanation, and even if it were the applicant I do not consider this image to provide further information of the applicant’s Iranian nationality. The second image is of the applicant in front of [an item], apparently with the caption ‘an attack on Iran, Kurds be alert!’ – I note that this phrase can be imbued with several different meanings. At the hearing the applicant said that this picture was taken in [Australia]. Given that the phrase may indicate that Kurds should be alarmed at an attack on Iran, or should be afraid of an attack on Iran, or would be the targets of an attack on Iran, I do not believe that this image demonstrates someone who ‘appears to have an Iranian sense of identity.’ There are also two photographs of the applicant and his brother shaking hands with an Iranian [sports player]. It is noted that the applicant’s brother holds an Iranian flag. At hearing the applicant said that he shook hands with the player because he likes football and he would have shaken hands with a football player from another country if he had a chance. He also said that he had a problem with the Iranian government, but not with the Iranian people. I accept these explanations as plausible. I do not believe that barracking for a team, shaking hands with someone from a national team, or even holding an Iranian flag during a game is evidence of anything but that the brothers enjoy football. Even taken together, these photographs seem remarkably lacking in any basis to assert that either of the brothers is an Iranian national.

    . . .

    13. For these reasons, the Tribunal finds 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.

15. Given the Tribunal in the above proceedings concluded there was no reasonable basis on which to reach a conclusion that the applicant’s husband was an Iranian citizen, I am not satisfied the applicant is an Iranian citizen as claimed by the department simply be reason of her marriage to her husband. 

16. There is no other information before me that would indicate the applicant is an Iranian citizen, rather than a stateless Faili Kurd who prior to travelling to Australia was habitually resident in Iran as she stated in her visa application.

17. It follows that I am not satisfied the applicant provided incorrect information about her statelessness in her protection visa application.

    Conclusion on non-compliance

18. 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.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Alison Murphy
    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.