1732350 (Refugee) - [2020] AATA 2233

1732350 (Refugee) [2020] AATA 2233 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732350
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 4:16pm
CATCHWORDS
REFUGEE – cancellation – protection visa – incorrect information in the visa application – nationality – claimed statelessness – Iran citizenship – return visit to Iran – passport renewal – imputed political opinion – asylum seekers – race – Faili Kurd – religion – conversion to Christianity – consideration of discretion – non-refoulement obligation – best interests of children – Australian citizen children – access to medical treatment – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007
Migration Act 1958, ss 101, 104, 105, 107, 109
Migration Regulations 1994, r 2.41; Schedule 2
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
Kaur v Minister [2017] FCAFC 184
MIAC v Khadgi (2010) 190 FCR 248
Thakur & Ors 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

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 delegate cancelled the visa on the basis that [the applicant] provided incorrect information in her visa application in claiming she was stateless. The delegate found she 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.
[The applicant] appeared before the Tribunal on 7 February 2020 to give evidence and present arguments and was represented by her registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
[The applicant’s] husband, [Mr A], had his visa cancelled for the same reason. He also applied for a review of the decision in the related matter 1732348. The matter was heard on the same day and immediately prior to the hearing of this application. The submissions and claims are the same in both applications. [The applicant] said she wanted to adopt her evidence in [Mr A’s] matter as her oral evidence in this matter and adopt all other evidence for [Mr A’s] matter for her application.
[The applicant] relied on the same information, made identical claims about the provision of incorrect information and as to whether the visa should not be cancelled. The exception is some information separately put to or given by [the applicant]…

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 1732350 (Refugee)

Details

AGLC: 1732350 (Refugee) [2020] AATA 2233
Case: [2020] AATA 2233
Decision Date: 29 May 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the Subclass 866 (Protection) visa of the applicant, Mr A. Mr A had arrived in Australia in 2010 with his wife and son, claiming to be a stateless Faili Kurd from Iran. They were granted protection visas in 2011 and subsequently had two children in Australia who are Australian citizens. The delegate cancelled Mr A's visa under section 109(1) of the *Migration Act 1958* on the basis that he had provided incorrect information in his visa application, specifically by claiming statelessness when the delegate concluded he was an Iranian citizen. The central issue before the Tribunal was whether a ground for cancellation was established and, if so, whether the visa should be cancelled.

The Tribunal was required to determine if Mr A had failed to comply with section 101 of the *Migration Act 1958*, which mandates that a non-citizen must complete their visa application truthfully and without providing incorrect information. This involved assessing whether Mr A was indeed an Iranian citizen at the time of his application, contrary to his claim of statelessness. If a ground for cancellation was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the non-refoulement obligation, the best interests of the Australian citizen children, and the applicant's personal circumstances.

The Tribunal adopted the reasoning from a related matter concerning the applicant's wife. It considered evidence regarding the applicant's alleged provision of incorrect information, including the circumstances of a police report concerning lost items, which the applicant disputed. The Tribunal also examined inconsistencies in the applicant's evidence concerning his arrest and treatment in Iran, and his wife's explanation for these discrepancies. Ultimately, the Tribunal found that while the applicant's eligibility for the visa was significantly affected by the incorrect information provided, and he had not made a contribution to the community, several factors weighed heavily against cancellation. These included the applicant's mental illness requiring treatment not readily available in Iran, and crucially, the presence of three children, two of whom are Australian citizens, one with a medical condition.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr A's Subclass 866 (Protection) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal adopts its reasons in the related matter in deciding this matter. These reasons are included below.[THE APPLICANT’S] EVIDENCE [The applicant] was asked if there was anything she wanted to alter or comment on in relation to her oral evidence given at the hearing of the associated matter, and she said no, that she and her husband share everything, and they have provided all the evidence for both of the applications. She said she had no further evidence. As a result, the Tribunal did not canvass again the matters raised in the earlier hearing, except where these would not be known to [the applicant]. The Tribunal separately put to [the applicant] the contents of the police report regarding the specificity of the items reported lost to [Police]. [The applicant] said she had already provided a response to the report of the loss of the passport, and that if she has a passport she would be an Australian citizen by now. [The applicant] commented on the police report, a copy of which was provided to her, and she said that her husband’s age is incorrectly reported as [age], whereas he only tuned [that age] this year. She says she asked police to provide an interpreter. As detailed, below, the Tribunal does not accept that the police report is inaccurate. The Tribunal also put to [the applicant] inconsistent evidence on the circumstances of [Mr A’s] arrest in Iran, and she said there are things she cannot remember because she has been living in Australia and has forgotten. It was also put to her that her evidence about [Mr A’s] treatment following being detained by the basij was different to his account, and that contained in the visa application. In response she said when she was asked if he had ever had surgery she thought that meant by a surgeon and so she said no. In her village if people knew anything about medical matters that person would come. In this case, the medical person came, used herbal medicine and [provided limited treatment to Mr A]. It is not done in hospital by a surgeon. She had answered that he came home but did not say who was with him when he came home. As detailed below, the Tribunal place limited weight on these inconsistencies. [The applicant] said if her visa is cancelled they will have nowhere to go and nothing to eat. One of her sons wants to join the military and she wants to make his dreams come true. The Tribunal places greater weight in [the applicant’s] case on the medical reports of her mental illness as a factor that weighs in favour of not cancelling her visa. CONCLUSION For the same reasons as given in the decision below, the decision in [the applicant’s] matter is finely balanced. Her eligibility for the visa was significantly affected by the incorrect information provided. She has not made a contribution to the community from arrival. However, she has three children, two of whom are Australian citizens, and one of whom has a medical condition, which weighs heavily in favour of not cancelling the visa. [The applicant] has a mental illness and requires treatment for her illness that may not be readily available in Iran.

Decision

Reasons for decision

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Kate MillarSenior MemberSTATEMENT OF DECISION AND REASONS IN THE MATTER OF [MR A]CASE NUMBER 1732348 APPLICATION FOR REVIEW [Mr A] came to Australia in 2010 from Iran with his wife [the applicant] and son [Mr B] and claimed to be a Shia Faili Kurd who did not have citizenship in any country. [Mr A] 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, [Mr A] reported items lost to [Police]. According to the delegate, this included the loss of Iranian passports for himself, his wife and his son. [Mr A] disputes that he reported the loss of passports. The delegate cancelled [Mr A’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 [Mr A] appeared before the Tribunal on 7 February 2020 to give evidence and present arguments and was represented by his registered migration agent. The Tribunal also received oral evidence from his wife [the applicant]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. On commencement of the hearing [Mr A] confirmed he understood the interpreter. After adverse information was put to [Mr A] by the Tribunal he asked for, and was provided, an opportunity to confer with his representative. On resuming the hearing, [Mr A] said he was not satisfied with the interpreter and the interpreting was not exact. He said he knew this as his had representative pointed it out during the adjournment. The interpreter is an accredited interpreter. No issue had been raised with the interpreting up to the time adverse information was put to [Mr A]. [Mr A] 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. [Mr A] 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.

Ratio Decidendi

Legal Principle Established

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