1833464 (Refugee) - [2020] AATA 4724

1833464 (Refugee) [2020] AATA 4724 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1833464

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Kate Millar
DATE:12 October 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 12 October 2020 at 12:48pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – identity assessment – similar details in a different Subclass 202 visa application – forensic facial comparison reports not supplied by Department – significant differences in family composition and education – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 418, 438, 440
CASES
BYT20 v Minister for Home Affairs [2020] FCCA 2191
El Jejieh v Minister for Home Affairs (No.2) [2019] FCCA 840
Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 October 2018 made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel [the applicant’s] Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).
The visa was cancelled because the delegate was not satisfied of [the applicant’s] identity. 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 24 September 2020 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. 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.
SECTION 438 CERTIFICATE
Under s.438 of the Act, the Minister may certify in writing that the disclosure of information contained in a document would be contrary to the public interest or that the information or document was given to the Minister in confidence. If a valid certificate is issued, the tribunal may have regard to the information and may disclose it but must give a direction under s.440 of the Act in relation to the information.
In this case a certificate was issued under s.438 of the Act. The certificate is dated 16 July 2019. It is not signed. It refers to information that is not contained in the folio to which it refers. Specifically, the certificate purports to cover folio 7 of the file and:
Paragraphs 1,2 and 3 which fall under the headings overview of Facial & Image Recognition and the…

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 1833464 (Refugee)

Details

AGLC: 1833464 (Refugee) [2020] AATA 4724
Case: [2020] AATA 4724
Decision Date: 12 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a protection visa held by an applicant from Afghanistan. The Minister had sought to cancel the visa under section 116(1AA) of the *Migration Act 1958* (Cth), based on concerns about the applicant's identity. The applicant contended that the notice of cancellation was invalid due to insufficient particulars being provided.

The Tribunal was required to determine whether the Minister had established grounds for cancellation under section 116(1AA) of the Act, specifically regarding the applicant's identity. This involved assessing the degree of satisfaction required for such a finding, considering the gravity of cancelling a protection visa, and evaluating whether the notice of cancellation issued under section 119 of the Act was valid. A key issue was whether the applicant had been provided with sufficient particulars of the grounds for cancellation and the information upon which those grounds appeared to exist.

The Tribunal applied the principles from *Sun v Minister for Immigration and Border Protection* and *Sullivan v Civil Aviation Safety Authority*, emphasising that establishing a ground for cancellation cannot be done lightly or on inexact proofs, and that greater caution is warranted when a fact is centrally relevant to the decision. The Tribunal found that the applicant was not provided with forensic facial comparison reports or photographs that purportedly linked him to other visa applications. This failure to provide material upon which the decision was based was held to be procedurally unfair, denying the applicant a meaningful opportunity to respond. Consequently, the Tribunal was not satisfied that there was sufficient doubt about the applicant's identity to establish the ground for cancellation under section 116(1AA).

The Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the 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 considers this certificate is invalid as it is not signed,[1] and as the information purportedly covered by the certificate could not be located. [1] El Jejieh v Minister for Home Affairs (No.2) [2019] FCCA 840CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.The degree of satisfaction required In looking to the degree of satisfaction required to make a finding that a ground to cancel the visa exists, in Sun v Minister for Immigration and Border Protection,[2] Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making. [2] [2016] FCAFC 52 However, the Tribunal is mindful of the gravity of the consequences of cancelling a protection visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[3] [3] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20] In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4][4] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119] In looking at whether the Tribunal is not satisfied as to [the applicant’s] identity, the Tribunal has kept in mind the gravity of the decision and the central relevance of such a finding and it has exercised caution in evaluating the factual foundation for such a finding.Validity of the notice issued under s.119 of the Act It is submitted on behalf of [the applicant] that the notice issued under s.119 of the Act is invalid. Section 119 requires the Minister to notify a visa holder there appears to be grounds to cancel the visa, to give particulars of the grounds, and to give particulars of the information because of which the grounds appear to exist. As [the applicant] was not provided the photographs said to show he is the same person as the applicants for two other visas, or the forensic facial comparison that was said to establish this, it is submitted the particulars have not been given and the notice is defective. Failing to provide a person with the material on which a decision is to be based denies the person the opportunity to respond meaningfully to the allegations made. In similar circumstances, Judge Driver in BYT20 v Minister for Home Affairs[5] found that failure to provide copies of photographs relied on by the delegate was procedurally unfair as the applicant could not usefully respond without seeing the photographs.[6] Information in the forensic facial examiner’s report would have assisted the applicant in responding to the notice.[7] [5] [2020] FCCA 2191[6] At [97][7] At [99]

Decision

Reasons for decision

On this basis, the Tribunal is not satisfied there is sufficient doubt about his identity to be satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel his visa does not arise. 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 Member

Ratio Decidendi

Legal Principle Established

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