1820035 (Migration)
[2018] AATA 5360
•12 December 2018
1820035 (Migration) [2018] AATA 5360 (12 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820035
MEMBER:Nicole Burns
DATE:12 December 2018
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 12 December 2018 at 10:48am
CATCHWORDS
MIGRATION – cancellation – Subclass (155) (Five Year Resident Return) visa – not a valid notice of cancellation – incorrect information – stateless claims – husband holder of Iranian passport – three notices issued – tribunal review of third notice only – only grounds mentioned in third notice considered – third notice did not fairly inform basis of cancellation – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 101, 102, 103, 104, 105 or 107(2), 109(1)CASES
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
Matete v Minister for Immigration & Citizenship [2008] FMCA 573Any 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 (RRV) under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the applicant’s RRV visa, which was granted on 14 June 2016, on the basis that they determined that the applicant had provided incorrect answers with her Protection visa application made on 8 November 2011. 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 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, [Mr A], a family friend [and] her husband’s [employer]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The applicant was represented in relation to the review by her registered migration agent. He attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 Immigration 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.
Did the notice comply with the requirements in s.107?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107 of the Act.
The particulars of the Notice of Intention to Consider Cancellation (NOICC)
On the Departmental file is a copy of the NOICC dated 30 May 2018 which advised the applicant that her RRV may be cancelled under s.109 because of concerns that she did not comply with s.101(b) (visa applications to be correct) of the Act in relation to her Protection visa application. The notice recounts information the applicant provided in a statement of claims submitted as part of her request for a Refugee Status Assessment (RSA), information provided in a statutory declaration dated 5 August 2010 submitted with her Protection visa application, and specific answers on the Protection visa application form (866D) which are alleged to be incorrect.
The notice refers to the fact that the applicant had declared that she was an Iranian-born stateless Kurd of Iraqi origin, and that her statelessness formed the basis for her protection claims.
The notice sets out the particulars of the alleged non-compliance as follows:
The Department has evidence that your husband, [Mr A], is an Iranian citizen. According to your children’s birth certificates, you married [in] 2007; before your arrival on Christmas Island [in] May 2010.
Under Paragraph 6 of the Article 976 of the Civil Code of the Islamic Republic of Iran, a woman who marries an Iranian citizen becomes an Iranian citizen by operation of law upon marriage. [Footnote omitted]
The Tribunal notes the reasons the Department believed the applicant’s husband to be an Iranian citizen are not set out in the s.107 notice. However, the Departmental file contains a ‘referral to General Cancellation Network Cancellation Consideration’ in relation to her husband. In it is stated that information has been received from Victoria police that a person who identified himself as [Mr A] (DOB [deleted]) reported his Iranian passport lost [in] July 2013. This information is not included in the NOICC.
In the notice the applicant was advised to respond to the possible non-compliance in writing. It advises that if the applicant disputes the non-compliance the response should show:
· why you think you have complied, or why you have not complied, with s.101;
· why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied as the delegate may disagree with you); and
· provide any supporting evidence.
The response to the NOICC
The Tribunal notes that in this case there are three notices on the Departmental file which were sent to the applicant as follows: i) dated 16 January 2018; ii) dated 20 February 2018; and iii) dated 30 May 2018. It is stated in the second notice that it replaces the notice sent to the applicant on 16 January 2018 (the first notice). In an email dated 20 February 2018 to the representative which accompanied the second notice the delegate states that a new notice was being sent because ‘there are a few amendments required’. In the third notice sent to the applicant it is stated that ‘this notice supersedes the Notice of Intention to Consider Cancellation documents sent to you on 16 January 2018 and 20 February 2018’. In an email dated 30 May 2018 to the representative which accompanied the third (and final) notice the delegate states:
PLEASE NOTE: the previous officer who was dealing with this matter has left the role. As I have now taken over this case I have decided to consider the matter afresh, hence a new NOICC with the grounds for cancellation written accordingly. The timeframe for response is 14 calendar days. You may wish to submit further documentation to address the particulars of this NOICC and any previous response made to the earlier NOICCs will also be considered.
In the delegate’s decision record[1] cancelling the visa, it states that ‘a third notice was sent on 30 May 2018 following the appointment of a new cancellation delegate. This cancellation is based on the notice issued on 30 May 2018.’
[1] Dated 2 July 2018.
On this basis the Tribunal finds that the first notice was superseded by the second notice because of required amendments. It also finds that the second notice was superseded by the third notice because of a delegation issue. The Tribunal is therefore satisfied that the applicant’s RRV was cancelled based on the third notice, issued on 30 May 2018. Given this finding it is not open to the Tribunal to consider the grounds particularised in the first and second notices, which included reference to the fact the applicant had returned to Iran for three months in 2013, which was not mentioned at all in the third notice.
On 6 February 2018 the applicant’s representative provided an email response to the first notice dated 16 January 2018. He also provided a copy of a medical report for the applicant’s father in Iran (allegedly the reason for her return) dated [August] 2013, and a copy of her flight itinerary dated 28 March 2013.
On 6 March 2018 the applicant’s representative provided an email in response to the second notice dated 20 February 2018. On 20 June 2018 the representative re-sent that same response dated 6 March 2018 to the Department in response to the third notice dated 30 May 2018, which is the subject of this review. In that response the representative states that the applicant confirms that she has always been stateless and continues to be stateless and that her husband is stateless and has always been stateless. He also discusses why (and how) the applicant returned to Iran for three months in 2013, her ongoing fears when there, and concerns about adverse effects on her Australian citizen children if the applicant (and her husband’s) visas are cancelled.
In his response the representative addresses specific information set out in the second notice about Departmental records indicating that the applicant returned to Iran in 2013 and evidence before the Department that her husband is an Iranian citizen as the particulars for the basis for the possible non-compliance. The second notice (and the first notice) records that the Department has evidence that the applicant’s husband is an Iranian citizen and refers to the fact that as his wife, under Iranian law, it follows that through marriage she is also an Iranian citizen, but does not provide the basis upon which it is alleged that her husband is an Iranian citizen. Both the first and second notices also identify the fact that the applicant returned to Iran in 2013 for three months without experiencing harm as an indication that she did not hold an adverse profile as claimed in her Protection visa application. However the third notice – which the Tribunal can consider only – limits its information to the fact that the Department has evidence that her husband is an Iranian citizen but fails to provide the basis upon which it is alleged that her husband is an Iranian citizen.
Under the heading ‘THE ALLEGED CONFERALL OF IRANIAN CITZENSHIP FROM [Mr A]’ the representative responds as follows in his written email response to the notice to the Department:
We refer to the NOICC, Part C – questions 2-6 with respect to ‘Evidence – Form 866 – Application for an applicant who wishes to submit their own claims to be a refugee’. The applicant sated that she was of ‘Iranian citizenship’. However, on instructions [the applicant] was born [date] in Tehran, Iran. She has inherited her Kurdish background from her parents, and from birth has obtained a status of statelessness.
On instructions, she was the holder of a White Card along with her husband, [Mr A]. On their flight from Iran to Dubai, all documentation evidencing [the applicant] and [Mr A]’s identity was thrown away in Dubai.
Under the Iranian law, a man who holds an Iranian Citizenship will ultimately bind his wife with Iranian Citizenship upon marriage. We refer to Part A with respect to ‘Evidence – Form 866 – Application for an applicant who wishes to submit their own claims to be a refugee’.
On instructions, and from the reply given to the Department, [Mr A] was never conferred, granted or eligible for Iranian citizenship and hence “Stateless”. Given his ineligibility for Iranian citizenship, such citizenship was obviously never passed onto [the applicant] upon their marriage. Therefore, [the applicant] was never conferred Iranian citizenship in any way, shape or form and confirms her statelessness.
It is submitted that the matter of [MrA]’s submissions can be found in his appropriate file which a decision has been made by the Department. [Mr A] has since appealed the Department’s decision and that this matter is now before the Tribunal to determine according to law and fact.
The decision to cancel the applicant’s RRV visa
The decision record in this case refers to the Department having evidence that the applicant’s husband, [Mr A], is an Iranian citizen, and was at the time of his joint Protection visa application with the applicant. Because the applicant married [Mr A] in 2007, prior to her arrival in Australia (and her application for a Protection visa) it is reasoned that she became an Iranian citizen by operation of law[2] on that day, if not beforehand. It is further reasoned therefore that the applicant provided incorrect information to the Department in her Protection visa application that she was born stateless;[3] that she was still stateless (implied by leaving blank the answer to her current citizenship);[4] and that she did not hold any other citizenship or was not a national of any other country.[5] The Tribunal notes in the delegate’s reasons set out in the decision record, he engages in a discussion about the representative’s response to the NOICC in relation to the applicant’s re-entry into Iran in 2013, but not with regards to the response to the allegation that her husband is an Iranian citizen.
Oral evidence to the Tribunal
[2] Referring to paragraph 6 of Article 976 of the Civil Code of the Islamic Republic of Iran.
[3] In answer to question 17, ‘Citizenship at birth?’
[4] Question 18.
[5] Question 19.
At hearing the Tribunal discussed the relevant contents of the NOICC with the applicant. She disputed that there was non-compliance in the way particularised in the NOICC, consistently claimed to be stateless and has always been, as has her husband. She said she was unclear on what basis the delegate had evidence that her husband was an Iranian citizen because the ‘evidence’ referred to in the notice was not explained or set out. However, after speaking with her husband, she thinks it is because he had reported to Victoria police that he had lost his Iranian passport in 2013. She said this was untrue – her husband never had an Iranian passport – but he did so in order to try and fraudulently obtain an Iranian passport in order to return to Iran to see his sick parents without drawing adverse attention to him. She said when she returned to Iran in 2013 with an Australian issued travel document and no Iranian visa she was detained at the Tehran airport for 10 hours until she paid AUD2000 to be allowed to enter and remain in Iran for three months. As her husband was afraid of being brought to the Iranian authorities’ attention if he returned there with an Australian travel document, he looked into fraudulently obtaining an Iranian passport and was told by the broker he needed a police report of a lost Iranian passport (among other things). However, her husband got scared and decided not to pursue it further.
At hearing the representative submitted that the notice in this case does not set out the basis for the allegation that the applicant’s husband is an Iranian citizen, which they dispute.
The law in relation to the validity of the NOICC
Section 107 of the Act sets out the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s.101 of the Act (as asserted in the present case) subsection (1)(a) requires the notice to give ‘particulars of the possible non-compliance’.
The Tribunal has considered whether the NOICC in this case is sufficiently particularised.
The Full Federal Court, in the case of Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, dealt with s.119 of the Act rather than s.107 of the Act. However in the case of Minister for Immigration and Citizenship v Brar [2012] FCAFC 30, the Full Federal Court noted that s.119 is in different terms from s.107 but nevertheless indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[6]
[6] Minister for Immigration and Citizenship v Brar [2012] FCAFC [57].
The remarks in Zhao include as follows:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.
…
The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.[7]
[7] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 [25]‑[26].
The Federal Magistrates Court in SZEEM v Minister for Immigration stated:
... the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[8]
[8] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 [38].
If the notice is not valid the Tribunal cannot cure the defects in the notice and is confined to considering whether there was non-compliance in the way described in the notice.[9]
[9] Zhao [25].
The provision does not place an onus on the applicant to establish that the visa should not be cancelled.[10] The onus of establishing the facts is on the Minister (or the Tribunal on review).
[10] Zhao [32].
CONCLUSION
For reasons above the Tribunal has found that the only relevant notice for consideration in this case is the third notice issued on 30 May 2018. For the reasons that follow the Tribunal finds that the particulars of that notice did not fairly inform the applicant of the basis on which the cancellation was being considered.
The notice effectively expresses a conclusion – that the application’s husband is an Iranian citizen – without disclosing the particulars of the basis for that conclusion in a manner which would potentially allow it to be challenged. It is stated in the notice that the Department has ‘evidence’ that the applicant’s husband is an Iranian citizen but does not state what that evidence is, or how it came about. In the Tribunal’s view enough information must be disclosed so as to allow the applicant to respond and address the issues which gave rise to the cancellation.[11] Whilst the applicant assumed the evidentiary basis for the allegation that her husband was an Iranian citizen was the police report, this was not particularised in the notice in order for the applicant to be able to challenge the veracity or reliability of the ‘evidence’, or address the likelihood of the applicant’s husband being an Iranian citizen (and not stateless). The Tribunal notes the comments in Zhao that the particulars in the notice have to be such that ‘the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open’.[12]
[11] In reaching the conclusion in this case we are mindful of the terms of the notice in the decision record of the case of Matete v Minister for Immigration & Citizenship [2008] FMCA 573 [40].
[12] Zhao [25].
In this case the response of the representative about the applicant’s husband was general and did not address her husband’s reporting of a lost Iranian passport to a police station, which the applicant at hearing said she assumes was the basis upon which the falsity (that is that her husband is stateless) is alleged. This demonstrates the inevitable inability of the applicant to meaningfully address the instances of non-compliance due to the lack of appropriate particularity. Therefore the Tribunal finds that the notice issued on 30 May 2018 did not give the applicant particulars of the non-compliance for the purposes of s.107(1)(a) of the Act.
The Tribunal notes that the s.107 notice is a critical step in the cancellation process as it provides the applicant with an opportunity to show that the grounds for cancellation do not exist, or if they do exist to put forward reasons why the discretion to cancel should not be exercised.
For these reasons, the Tribunal finds that the notice is not a valid notice for the purposes of s.107. As a valid s.107 notice is a precondition to the exercise of the power under s.109, the power to cancel the visa does not arise.
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.
Nicole Burns
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
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