1810640 (Migration) - [2019] AATA 6716

1810640 (Migration) [2019] AATA 6716 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1810640
MEMBER:Alison Murphy
DATE:18 November 2019
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 18 November 2019 at 12:55pm

CATCHWORDS
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant provided incorrect answers about protection claims – Hazara ethnicity – Shia religion – well-founded fear of persecution – applicant admitted to the non-compliance – decision to grant the visa was not based in any part on the incorrect information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 101, 107, 107A, 109, 119, 499
Migration Regulations 1994 (Cth), r 2.41
CASES
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
SZATV v MIAC (2007) 233 CLR 18
Zhao v Minister for Multicultural Affairs [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

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).
The applicant is a [age] year-old male, a national of Afghanistan formerly resident in Pakistan. He arrived in Australia [in] May 2010 by boat and was subsequently granted a Subclass 866 (Protection) visa. On 18 February 2016 he was granted a Subclass 155 (Five Year Resident Return) visa.
On 11 April 2018 the delegate cancelled the visa on the basis that the applicant breached s.101 of the Act by providing incorrect answers about his protection claims in his visa application. 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 15 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
LEGISLATIVE FRAMEWORK
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…

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 1810640 (Migration)

Details

AGLC: 1810640 (Migration) [2019] AATA 6716
Case: [2019] AATA 6716
Decision Date: 18 November 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's subclass 155 (Five Year Resident Return) visa. The applicant had provided incorrect information in his 2010 protection visa application regarding his father's return to Afghanistan and presumed death. The applicant admitted to providing this false information, stating he was advised to do so to bolster his claims for refuge. The court was required to determine whether the decision to grant the original visa was based, wholly or partly, on this incorrect information.

The court considered the circumstances surrounding the applicant's original visa grant, noting the Department's Refugee Status Assessment Record. This record detailed the perilous situation for Hazara Shias in Afghanistan, including persecution by the Taliban. While the applicant's initial reason for leaving Afghanistan was attributed to civil war, the delegate acknowledged the possibility that the family also fled due to the imminent threat of persecution based on their ethnicity and religion. The delegate also considered the applicant's claims about his father's disappearance and his lack of a family network in Afghanistan, concluding that the applicant faced a real chance of persecution as an unaccompanied minor Hazara Shia.

The court reasoned that even if the applicant's father was alive and residing in Pakistan, this fact would not have altered the delegate's assessment of the applicant's risk of persecution upon return to Afghanistan. The delegate's findings indicated that the applicant's vulnerability as an unaccompanied minor Hazara Shia without family support in Afghanistan was the primary concern. Therefore, the court was not satisfied that the decision to grant the visa was based, in any part, on the incorrect information provided about the applicant's father. Consequently, the decision to cancel the visa was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that I am not satisfied the applicant gave incorrect information about his experiences in Pakistan.Conclusion on non-compliance Given my finding that the applicant provided incorrect information in his protection visa application about his father’s return to Afghanistan and his presumed death at the hands of the Taliban in that country, I find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). The correct information: I consider the correct information is that the applicant’s father did not return to Afghanistan in 2002 and was never missing. Rather he continues to reside in Quetta, Pakistan. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents). Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Department’s Refugee Status Assessment Record dated 5 March 2011 (RSA Record) set outs a significant amount of country information concerning the situation for Hazara Shias in Afghanistan from 1994 until the time of the decision. It records that the Taliban became prominent in Afghanistan in 1994 after they promised to restore peace and security in Afghanistan and enforce their own version of Sharia law. It records that the Taliban, mainly ethnic Pashtuns, regarded Hazaras as infidels who didn’t worship in the manner Muslims should worship, besieging the Hazarajat and burning villages to render the region uninhabitable[12].[12] Refugee Status Assessment Record dated 5 March 2011 at p.10. The RSA record states that the information provided by the applicant suggested the original reason the family left Afghanistan was due to the civil war, which was not Convention related. However the delegate accepted that given the Taliban were taking control of Afghanistan and targeting Hazara Shias at the time, “it was possible the applicant’s family fled their village not only because of the civil war but also because of the strong, imminent threat of persecution from the Taliban because of their ethnicity and religion”. It noted his claims about his father’s return to Afghanistan and subsequent disappearance and records that the applicant has no known relatives in Afghanistan[13]. [13] Refugee Status Assessment Record dated 5 March 2011 at p.18.

Ratio Decidendi

Legal Principle Established

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Department’s Refugee Status Assessment Record dated 5 March 2011 (RSA Record) set outs a significant amount of country information concerning the situation for Hazara Shias in Afghanistan from 1994 until the time of the decision. It records that the Taliban became prominent in Afghanistan in 1994 after they promised to restore peace and security in Afghanistan and enforce their own version of Sharia law. It records that the Taliban, mainly ethnic Pashtuns, regarded Hazaras as infidels who didn’t worship in the manner Muslims should worship, besieging the Hazarajat and burning villages to render the region uninhabitable[12].[12] Refugee Status Assessment Record dated 5 March 2011 at p.10. The RSA record states that the information provided by the applicant suggested the original reason the family left Afghanistan was due to the civil war, which was not Convention related. However the delegate accepted that given the Taliban were taking control of Afghanistan and targeting Hazara Shias at the time, “it was possible the applicant’s family fled their village not only because of the civil war but also because of the strong, imminent threat of persecution from the Taliban because of their ethnicity and religion”. It noted his claims about his father’s return to Afghanistan and subsequent disappearance and records that the applicant has no known relatives in Afghanistan[13]. [13] Refugee Status Assessment Record dated 5 March 2011 at p.18. The RSA delegate records that she has concerns about the applicant’s return to Afghanistan given his young age and lack of a supportive family network, noting UNHCR’s advice that unaccompanied minors are at greater risk of forced recruitment, sexual violence, forced labour and human trafficking. She concludes that he faces a real chance of persecution because he is a Hazara Shia and because of his profile as a minor who has no experience of living in Afghanistan. It is apparent that the applicant’s claim that his father had disappeared upon return to Afghanistan was considered by the RSA delegate. However the delegate’s findings do not indicate that her conclusions about the applicant’s risk on return would have been different had it had been known that his father was in fact alive and living with his other family members in Quetta, Pakistan, given the applicant has no right of return to that country. Rather the findings made by the delegate suggest that knowledge of the fact the applicant’s father was alive and living in Pakistan would not have changed her assessment that the applicant was at risk in Afghanistan as an unaccompanied minor Hazara Shia returning to Afghanistan without family support in that country. For these reasons I am not satisfied the decision to grant the visa was based in any part on the incorrect information. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2010 visa application. At that time he was [age]. He claims he gave the incorrect information because he was advised by the people on the boat he should say this to bolster his claims and obtain refuge in Australia. He gave evidence to the Tribunal that he deeply regretted making the false claim about his father and was now facing the consequences.