1732348 (Refugee) - [2020] AATA 2221

1732348 (Refugee) [2020] AATA 2221 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732348
COUNTRY OF REFERENCE:                   Other
MEMBER:Kate Millar
DATE:29 May 2020
PLACE OF DECISION:  Adelaide
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 29 May 2020 at 4:02pm
CATCHWORDS

REFUFEE – cancellation – protection visa – stateless/Iran – incorrect information in visa application – not stateless but Iranian citizen – report to police of lost passports – claims to have reported lost ‘documents’, not passports – return to Iran other than on Australian titre de voyage and with no visa – ethnicity – Faili Kurd – arrest, detention and assault – imputed political opinion – returned failed asylum seeker – credibility – inconsistent claims and evidence – wife’s visa cancelled and application for review – applicant’s physical health – wife’s mental health – best interests of children – two children are Australian citizens and one has medical condition – country information – procedure for return, status of Kurds, healthcare and education – decision under review set aside
LEGISLATION

Migration Act 1958 (Cth), ss 101, 107(1), 109(1), 140, 359AA, 424(2), 424A, 424AA
Migration Regulations 1994 (Cth), r 2.41
CASES
CFE16 v Minister [2020] FCCA 1083
MIAC v Khadgi (2010) 190 FCR 248
Thakur v Minister [2020] FCCA 1038
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

[The applicant] came to Australia in 2010 from Iran with his wife [Ms A] and son [Child 1] and claimed to be a Shia Faili Kurd who did not have citizenship in any country. [The applicant] and his family were granted protection (Subclass 866) visas on 14 October 2011. They have since had two children in Australia, who are Australian citizens.
In 2013, [the applicant] reported items lost to [State 1] Police. According to the delegate, this included the loss of Iranian passports for himself, his wife and his son. [The applicant] disputes that he reported the loss of passports.
The delegate cancelled [the applicant]’s visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that he had provided incorrect information in his visa application, as the delegate concluded he was a citizen of Iran and not stateless as he had claimed.
The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE HEARING
[The applicant] appeared before the Tribunal on 7 February 2020 to give evidence and present arguments and was represented by his registered migration agent. 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 1732348 (Refugee)

Details

AGLC: 1732348 (Refugee) [2020] AATA 2221
Case: [2020] AATA 2221
Decision Date: 29 May 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's protection visa. The applicant, an Iranian citizen of Faili Kurd ethnicity, had claimed to be stateless in his visa application. The Minister's delegate had become aware of a report made by the applicant to police concerning lost passports, which formed the basis for the cancellation decision. The applicant's wife's visa had also been cancelled, and the review considered the best interests of the couple's two Australian citizen children, one of whom had a medical condition.

The primary legal issues before the Tribunal were whether the notice of cancellation issued under section 107 of the Migration Act 1958 (Cth) was valid, and if so, whether the applicant had failed to comply with section 101 of the Act by providing incorrect information in his visa application. Specifically, the Tribunal had to determine if the applicant's answers regarding his citizenship were incorrect, and if the delegate had a sufficient basis to issue the cancellation notices. The Tribunal also considered the applicant's claims of arrest, detention, and assault in Iran, his ethnicity, and the country information regarding the status of Kurds, healthcare, and education in Iran.

The Tribunal found that the notice issued under section 107 of the Act was valid, as it particularised the alleged non-compliance with section 101. The non-compliance identified was the applicant's answers in his protection visa application stating he was "Stateless" at birth and had no current citizenship or nationality of any other country. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 based on the report of lost Iranian passports. The Tribunal also considered the applicant's claims of violence and lack of formal documentation for his marriage and child, and the country information provided.

The Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The interpreter is an accredited interpreter. No issue had been raised with the interpreting up to the time adverse information was put to [the applicant]. [The applicant] had been providing answers that logically followed the questions asked of him, and there was no indication he had not understood the interpreter, or that the interpreter had not interpreted the questions and his answers correctly. The Tribunal considered there was little to support his concerns and decided to continue with the hearing. [The applicant] was provided an opportunity after the hearing to review the recording of the hearing and make any further submissions on the interpreting during the hearing. No further submissions on this issue were received.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 s.101 of the Act. This requires a non-citizen to fill in or complete his or her application in such a way that all questions on it are answered, and no incorrect answers are given or provided. The exercise of the cancellation power under s.109 of the Act requires that the Minister has issued 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. Did the notice comply with the requirements in s.107? In this case, the delegate became aware of a report of missing Iranian passports made to [State 1] Police by [the applicant]. On this basis, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107. Two notices were issued under s.107 of the Act, with the later notice correcting a date from the earlier notice. The Tribunal has considered the notice dated 1 August 2017. Section 107 sets out a series of requirements for a valid notice. The first is that the notice includes particulars of the possible non-compliance. The non-compliance identified and particularised in both of the s.107 notices was non-compliance with s.101 of the Act in that [the applicant] gave the following answers to questions asked of him in his application for a Protection (Class XA) visa:· At question 19 of Part C of the application form (Form 866B) which asked Your citizenship at birth the answer given is “Stateless”· At question 20 of Part C of this form which is Your current citizenship the answer given is “n/a”· At question 21 of Part C the question is Do you hold citizenship or are you a national of any other country’ and the response given is No· At question 42 of Part the question is Why did you leave that country and the answer is Please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form. The notice goes on to specify [the applicant]’s claims in his statement of claims. [The applicant] claimed they decided to leave Iran to seek security and a place they could have an identity and their child could have a future. He claimed to have suffered violence from the Basij when he was detained in Elam two years before the application. [The applicant] states the Basij kicked him in the stomach and as a result he was injured, and had to have an operation after the beating. He says they borrowed money for the operation as they had to have a private doctor and private treatment or he would not have been able to be treated. He was told not to come to the city again. [The applicant] states although he was married 7 years earlier they do not have a marriage certificate, or formal recognition of their marriage and their son does not have a birth certificate.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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