1815662 (Refugee) - [2020] AATA 1548

1815662 (Refugee) [2020] AATA 1548 (4 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815662
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nicole Burns
DATE:4 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 04 February 2020 at 11:26am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – religion – non-practicing Muslim – pressure from father and arrest and torture by Basij – low-level political protester – incorrect information in visa application – claimed to have departed using false passport – later found to have genuine passport – original departure and voluntary returns and stays using this passport, with no harm – wedding – relatives’ physical or mental health – applicant’s mental health – baptism and low-level church attendance in Australia – discretion to cancel visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 116
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
SZEEM v MIMIA [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235

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 dependants.
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 because they were satisfied that the applicant provided incorrect answers on his protection visa application in breach of s.101 of the Act. 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 11 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Reverend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 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.
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…

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 1815662 (Refugee)

Details

AGLC: 1815662 (Refugee) [2020] AATA 1548
Case: [2020] AATA 1548
Decision Date: 4 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of a protection visa holder whose visa was cancelled. The applicant had claimed to have fled Iran due to religious persecution and political activism, alleging he had left the country using a false passport and feared arrest and torture upon return. The visa was granted based, in part, on these claims.

The central legal issue before the Tribunal was whether the decision to cancel the applicant's protection visa under section 109 of the Migration Act 1958 (Cth) was valid. This required determining if the applicant had provided incorrect information in his visa application and supporting documents, specifically concerning his departure from Iran and his fear of persecution. The Tribunal also had to consider whether the delegate had issued a valid notice of intention to consider cancellation and if, in the exercise of discretion, the visa should be cancelled.

The Tribunal found that the applicant had indeed provided incorrect information regarding his departure from Iran. While the applicant claimed to have left on a false passport, the Tribunal was not satisfied with this account and concluded that he had departed using his genuine passport. This finding meant that the protection visa had been granted, in part, on the basis of false information. The Tribunal noted that the applicant had been residing in Australia for nearly nine years, was employed, and maintained contact with family. He also presented evidence of mental health issues, including depression and anxiety, which he attributed partly to his separation from his wife who remained in Iran. Despite these circumstances, the Tribunal found that the non-compliance with the Act was established.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal was satisfied that the delegate had properly engaged the cancellation power and that the notice issued complied with statutory requirements. The Tribunal concluded that the incorrect information provided by the applicant regarding his departure from Iran was a significant factor in the decision to cancel his visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 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 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. 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. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 12 February 2018, which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct) of the Act. He was advised to respond in writing. On 7 March 2018 the applicant’s then representative provided a written response and supporting documents. In the present matter, the Tribunal is satisfied 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 as follows.Section 101(b) - visa applications to be correct The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his protection visa application, lodged on 4 June 2012 and in a statutory declaration dated 20 February 2011 lodged earlier, in support of his Refugee Status Assessment (RSA), which set out his protection claims. His protection claims included problems the applicant had allegedly experienced in Iran from the authorities and his father because he rejected Islam; fears of being arrested due to his involvement with the Green Movement; and claims he left Iran on a false passport. The applicant claimed to fear he would be arrested at the airport if he returned, detained and tortured by the authorities as a result, because he had sought asylum in a western country. The RSA officer was not satisfied that the applicant met the criteria in Article 1A of the Convention relating to the status of Refugees and its 1967 Protocol. However, on 13 February 2012, an Independent Reviewer recommended the applicant be recognised as a person to whom Australia has protection obligations. The applicant applied for the protection visa on 4 June 2012 and, based on his answers provided in the application form and supporting statements (including the statutory declaration dated 20 February 2011), was granted a protection visa on 6 June 2012.

Decision

Reasons for decision

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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 Tribunal finds the decision to grant the protection visa was based in part on the applicant’s claims to have left Iran on a false passport and to fear persecution on return on that basis (among other things). The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his protection visa application and statutory declaration dated 20 February 2011. In response to the NOICC, the applicant claims (via his then representative) that he did not provide incorrect information at the visa application stage, contending that he left Tehran in 2010 on a false passport in the name of [Alias] and speculating that someone else must have used a passport with his details to depart as reflected in the departure stamp contained in that passport subsequently found in his possession by Australian Border Force officials (having obtained it from the smuggler in early 2013). For the reasons above, the Tribunal does not accept the applicant’s account in this regard and has found that he departed Iran on his own passport in October 2010. The present circumstances of the visa holder: The applicant has been resident in Australia for almost nine years. He told the Tribunal he lives with two cousins in a rented house in Melbourne and works as [an Occupation]. He married his wife in Iran in March 2013 and she remains living there with her parents, in Ilam. He said he wants to sponsor her to migrate to Australia, but had been given migration advice from an agent that he was unable to do so unless he became an Australian citizen. He has many cousins in Australia, and an uncle, whom he sees regularly. His parents [and a number of siblings] live in Iran; of them he only talks to his mother and younger brother. The applicant provided to the Tribunal two letters from [Dr B], [Suburb 1] Medical Centre dated [February] 2018. [Dr B] states in those letters that the applicant has been a patient of the clinic since [December] 2014, complaining of low mood and depression; he was referred to a psychologist and started anti-depressant medication; he was suffering (at the date of the letters) from depression and anxiety, and was prescribed [medicines]. At hearing the applicant said it has been hard for him being in Australia for five (or more) years and not seeing his wife, which contributes to his mental health issues. The Tribunal accepts the applicant has experienced anxiety and depression in Australia, which he has managed through treatment and medication. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: Subdivision C of Division 3 of Part 2 of the Act relates to the applicant’s obligations not to provide incorrect information or bogus documents and to notify any relevant changes of circumstance.