1814873 (Migration) - [2020] AATA 3304

1814873 (Migration) [2020] AATA 3304 (27 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814873
MEMBER:Kate Millar
DATE:27 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 (155) (Five Year Resident Return) visa.

Statement made on 27 May 2020 at 12:56pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – family composition – educational history – alleged death of colleagues – consideration of discretion – contribution to Australian community – non-refoulement obligations – current situation for Hazaras in Afghanistan – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007, s 50
Migration Act 1958, ss 46A, 101, 107, 107A, 109, 189, 197C, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

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

[The applicant] claims to be a citizen of Afghanistan. He arrived in Australia by boat [in] May 2010, applied for a Protection (Class XA) visa which was granted on 29 March 2011. On 30 March 2015, he applied for conferral of Australian citizenship.
On 10 October 2016, he was granted a Subclass (155) (Five Year Resident Return), and left Australia on this visa [in] February 2017.
[The applicant]’s Subclass 155 visa was cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 15 May 2018 on the basis that [the applicant] had provided incorrect information in his application for the Protection (Class XA) visa.
This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) to cancel the [the applicant]’s visa under s.109(1) of the Migration Act 1958 (the Act). The issues in this matter are whether a ground to cancel [the applicant]’s visa has been made out, and if so, whether his visa should be cancelled.
[The applicant] appeared before the Tribunal on 3 December 2019 to give evidence and present arguments and was represented by his registered migration agent. The Tribunal also received oral evidence from [Ms A], [Mr B], [Mr C], [Ms D], and [Mr E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
ALLEGED INCORRECT INFORMATION
As there is considerable information included both in the s.107 notice and in the decision record, it is useful to summarise the incorrect information [the applicant] is alleged to have provided in his application for a Protection (Class XA) visa.
In summary, the delegate found that [the applicant] has provided incorrect information in his application for a…

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 1814873 (Migration)

Details

AGLC: 1814873 (Migration) [2020] AATA 3304
Case: [2020] AATA 3304
Decision Date: 27 May 2020

CaseChat Overview and Summary

This matter concerned an application by a visa holder for review of a decision to cancel their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations that the applicant had provided incorrect information in a previous application for a protection visa, contrary to section 101 of the Migration Act 1958 (Cth). The applicant contended that the notice of cancellation was invalid and that, in any event, the visa should not have been cancelled.

The primary legal issues before the Tribunal were whether the notice of cancellation issued under section 107 of the Act complied with its statutory requirements, and if so, whether the applicant had indeed failed to comply with section 101 of the Act by providing incorrect information in their protection visa application. The Tribunal was also required to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant factors including the applicant's contributions to the Australian community and the current situation for Hazaras in Afghanistan.

The Tribunal found that the notice issued under section 107 complied with the statutory requirements, and that the delegate had reached the necessary state of mind to engage section 107. The Tribunal then examined the specific instances of alleged incorrect information regarding the applicant's brother's death, his periods of residence in Afghanistan and Pakistan, and his educational history. While discrepancies were identified between the protection visa application and information provided in a subsequent citizenship application and interview, the Tribunal ultimately determined that the decision to cancel the visa should be set aside.

The Tribunal concluded that the applicant's wife and children remained at risk in Quetta, which weighed in favour of not cancelling the visa. Furthermore, the applicant was described as a highly educated individual with skills that would enable him to gain employment if removed from Australia, a factor that was considered in the overall assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate found that [the applicant]’s claim that he had to leave Afghanistan because his father had been threatened by the Taliban and did not want [the applicant] to be killed like his brother and friends was incorrect because at the citizenship interview he stated his brother died as a child and was therefore not killed by the Taliban in 2008 as claimedCONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if (among other reasons) the visa holder has failed to comply with s.101 of the Act. Section 101 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. If, as in this case, the alleged non-compliance is in respect to a previous visa application and does not relate to the visa the person currently holds, s.107A allows that the possible non-compliances that can be specified in a notice under s.107 and can be constituted a ground for cancellation under s.109 include non-compliances that occurred at any time, including non-compliance in respect of any previous visa held by the person. Did the notice comply with the requirements in s.107? 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. In the present matter, the Tribunal is satisfied that due to the differences identified between the protection visa application and the citizenship application and interview 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.Was there non-compliance as described in the s.107 notice? 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 of the Act which is alleged to be providing incorrect information in Form 866, which is the application for a protection visa and an accompanying statutory declaration. The notice under s.107 states [the applicant] provided the following incorrect information:· At question 11 of Part B of Form 866 [the applicant] included the details of his brother [Mr F] who he claimed died in 2008 aged [age]. The delegate considered this incorrect because he claimed at his citizenship interview on 4 August 2018 that his brother [Mr F] died as a young child. · At question 34 of Part C of the 866 Form where it asked for: "Details of countries of former habitual residence of transit before arrival in Australia" he included information that he moved from Afghanistan to Pakistan in 1997, and then returned to Afghanistan in the period 2005 until 2009. The delegate considered this information to be incorrect because:(a) At the citizenship interview he claimed to have lived in [Afghanistan] from birth until 2000;(b) He claimed to have travelled to Quetta for the first time with his father in 2000.(c) He further claimed he resided in Quetta with his uncle for two to three years from 2000. (d) At question 17 in Part D of his Form 80 submitted in support of his citizenship application he claimed he lived in Pakistan from January 2006 until January 2010.· At question 36 of Part C of the 866 Form where it asked: "Give full details of all the education you have undertaken (in any country)" [the applicant] claimed to have attended [School 1] from 1990–1995 and [School 2] in Quetta from 1997–2003. The delegate considers this incorrect information because:(a) In his citizenship application he stated he attended [School 1] from 1996–2000 and [School 2] from 2000 until 2003. (b) He claimed in his citizenship interview that he completed Year 11 and commenced Year 12 of education at [School 1] in Afghanistan however did not complete the school year and travelled to Kabul to source alternate education.· At question 40 in Part C of the 866 Form where it asked: "Give details of all your past employment" [the applicant] provided the following information:

Decision

Reasons for decision

[The applicant]’s wife and children remain at risk in Quetta where they live. This weighs in favour of not cancelling his visa.CONCLUSION [The applicant] is a highly educated man. He has skills that mean he could gain employment if he were removed from Australia.

Ratio Decidendi

Legal Principle Established

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