1901546 (Migration) - [2021] AATA 5461

1901546 (Migration) [2021] AATA 5461 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1901546
MEMBER:Melissa McAdam
DATE:20 December 2021
PLACE OF DECISION: Sydney
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 20 December 2021 at 3:44pm
CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–applicant had given incorrect information – applicant travelled out of Australia on five occasions – Iraqi Naming Conventions – over 11 years passed since the non-compliance – best interests of the applicant’s minor child – satisfied as to his identity – contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 46A,100, 101, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) 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.
Section 107 Notice, NOICC
On 5 July 2017 the Delegate issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa under s.107 of the Act. In the NOICC the Delegate set out the following:
I consider that you did not comply with section 101(b) of the Migration Act 1958
….
Protection Visa Application
On [date] January 2010, you arrived as an irregular maritime arrival at Christmas Island.
On 16 March 2010, you lodged a Request for a Refugee Status Assessment (‘RSA’).
On14 April 2010, the RSA delegate found you were a person to whom Australia owed
protection obligations in relation to Iraq. The RSA Record stated you ‘would suffer serious
and selective harm amounting to persecution from non-state actors were you to return to
Iraq, and that his religion as a Shi’a Muslim would be the essential and significant reason.'
On 28 May 2010, the Minister accepted the RSA delegate’s recommendation and gave
written notice under subsection 46A(2) of the Act to lift the bar under subsection 46A(1) of
the Act to allow you to lodge an application for a Protection (Class XA) visa.
On 28 May 2010, you lodged a Form 866 - Application for a Protection (class XA) visa.
In response to question 1 of part B of the Form 866 ‘Give details of ALL persons included in
this application (those claiming to be refugees and members of…

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 1901546 (Migration)

Details

AGLC: 1901546 (Migration) [2021] AATA 5461
Case: [2021] AATA 5461
Decision Date: 20 December 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a delegate's decision to cancel the subclass 155 (Five Year Resident Return) visa of the applicant. The cancellation was based on the applicant having provided incorrect information in his visa application, specifically concerning his identity and travel history. The applicant contended that the incorrect information arose from misunderstandings related to Iraqi naming conventions and the process of providing documentation to Australian authorities.

The Tribunal was required to determine whether the applicant had, in fact, provided incorrect information that warranted visa cancellation, and if so, whether it was open to the Tribunal to set aside the delegate's decision. Key to this was understanding the applicant's explanation for discrepancies in his name, date of birth, and country of residence declarations, as well as his travel patterns. The Tribunal also considered the best interests of the applicant's minor child and the applicant's contributions to the Australian community.

The Tribunal accepted the applicant's explanation regarding Iraqi naming conventions, where surnames are not always used and a series of given names, father's names, and grandfather's names constitute a person's identification. It was satisfied that the applicant's identity was established and that the discrepancies in his application were due to a lack of understanding and the complexities of his cultural background, rather than a deliberate attempt to mislead. The Tribunal noted the significant passage of time since the alleged non-compliance and the applicant's established life in Australia, including his contributions to the community and the best interests of his child.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.

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

The letter from the President of [Organisation 1] states:The Prophet statement: Whoever Supports an Orphan shall go to HeavenGreetings, We advise that [the applicant] has worked at this place [on] two occasions: From [date ranges] and has performed well and completed the jobs excellently.We are very satisfied with his performance. It worth mentioning that he has many problems in his life but was always happy to be in the front line of charity assisting the orphans and disabled persons pleasing God. We wish God the Almighty shall bless him in his life for the good deeds he has performed.Delegate’s Decision The delegate decided that the applicant had provided incorrect answers in his visa application, as particularised in the NOICC, and decided to cancel the applicant’s visa.Information to the TribunalTribunal Hearing The applicant appeared before the Tribunal o 4 November 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The following is a summary of the information provided by the applicant at the hearing:a.The applicant’s name is [name]. b.In Iraqi passports the surname is not stated, just the given name, father’s name and grandfather’s name. The applicant’s family did not have a surname and were just known by the city they were from, [Location 1].c.While he was in the Australian immigration detention centre the applicant submitted his identity documents, his Birth Certificate and Iranian ID Card, to the department. The department took a copy of the documents. However the interpreter asked the applicant for his surname so the applicant provided the city name his father had used. The department has a copy of his identity documents but did not tell the applicant there was any problem with his name. The applicant still has his identity documents and will submit a copy of them to the Tribunal.d.In the applicant’s view his name is his given name. The other names used in Iraqi identity documents are his father’s name and grandfather’s name. His name is recorded as [Name 2], which includes his name, his father’s name and his grandfather’s name. The date of birth recorded on the documents is [date], however his real date of birth is [date].e.The applicant’s wife’s name is [Ms A]. She came to Australia in about 2016. They married a year after her arrival. They have one [child]. She is [age].f.He met his wife through her [sister]. They are also from Qom in Iran, but originally Iraqi from Basra. The applicant and his wife knew each other in Qom and started their relationship there when they were teenagers. They married in Iran but had to conceal it from everyone. It was an Islamic marriage in front of a Sheikh in about 2012 or 2013. His wife was previously married to someone else.g.When the applicant returned to Iran he could not live with his wife because their relationship was secret. Only his wife’s mother was aware of it and was present during their religious marriage. The applicant’s family were aware but objected to the relationship so they were not present at the religious marriage.h.When they were still in Iraq the applicant’s family lived in [Location 1]. The applicant is not aware of any of his relatives still living in [Location 1]. He has a paternal aunt who lives in Kerbala.i.The applicant’s family returned to Iraq after the fall of Saddam Hussein in 2003, in late 2003 or early 2004. They stayed in Iraq for about six months. It was easy to cross the border at the time.j.When the applicant first departed Australia [in] March 2011 he travelled to Erbil in Iraq. He stayed there for three days and obtained an Iranian visa to enter Iran. He was in Iran for about three months. He thinks he used his Iraqi document or his Australian travel document to enter Iran.k.He did not stay with his parents or siblings when he returned to Iran because he didn’t want anyone to find out he went back to Iran. He didn’t want them to look at him as a foreigner, and they objected to his relationship with his wife. The Tribunal put to the applicant that he had written that he returned to Iran at the time because his parents were sick. The applicant responded that he visited them but did not live with them. His parents live with the applicant’s brother and the applicant didn’t feel comfortable to take his wife there. The applicant was doing well financially and could afford to rent a place of his own while he was there.l.The Tribunal asked the applicant why there were no addresses written on any of the rental agreements he had submitted. He responded that he did not know or they may have forgotten to include it. The Tribunal asked if he had rented the same property each time he returned to Iran and he responded no and that the properties had different owners.m.The Tribunal asked why the applicant had written ‘Iraq’ as the country he would or did spend most of his time, on his Australian passenger cards. The applicant responded that maybe he misunderstood.n.The Tribunal asked why the applicant had written ‘Iraq’ as his country of residence on his Australian passenger cards. The applicant responded that he considers himself Iraqi.o.The Tribunal asked why the applicant had written at the airport that he was taking currency to Kerbala. He responded that someone else wrote this. It was his signature on the form but not his handwriting. It was a racist airport officer who questioned him. The officer randomly picked the applicant because the applicant is not white. He asked the applicant where he travelled to and the applicant said Iraq. The officer said you come here claiming you are in danger in your country but you easily travel there. p.The Tribunal asked the applicant why he is recorded as saying to an airport officer that he stayed in Kerbala where his parents, siblings and wife reside. The applicant responded that he stated that he stayed there for four to five days maximum. Maybe it was a mistake as his intention was to go to [Country 1]. He stayed in [Country 4] for 11 days. The rest of the time he was in Iran in Qom.q.The Tribunal asked the applicant why he would write that Shias are at risk in Iraq when Shia parties have largely been in control of the government in Iraq since the fall of Saddam Hussein. The applicant responded that Shias don’t have power. In [Location 1] his family could not get their property back. Because the applicant was raised in Iran Iraqis put him down. Because his surname is [deleted] people will assume he in Sunni. He and his family had problems in Kerbala because of their name and because they speak Arabic with an accent. Iranians are welcome for pilgrimage in Kerbala but not to live there.r.The applicant is in contact with his parents and siblings. They are in Qom. He contacts them through [social media]. He provided his father’s phone number, with country code 98, to the Tribunal.s.The Tribunal asked the applicant how his father obtained an Iraqi ID Card in 2010. The applicant responded he did not know, maybe his father renewed his old one. The applicant will try to ask his father after the hearing, but his father recently had COVID-19 and was in hospital for two months.t.The applicant’s family obtained an Iraqi Ration Card through bribery. They can use it to try to claim a little bit of money.u.In Australia the applicant’s driver’s licence was suspended because of speeding. He will get it back in three months. Apart from this he has not breached any laws in Australia.v.He donates blood to the Australian Red [Cross].Post-Hearing Submission

Ratio Decidendi

Legal Principle Established

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