1902045 (Migration) [2022] AATA 623 (4 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902045
MEMBER:Mireya Hyland
DATE:4 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Return (Residence) (Class BB) Subclass 155 (Five Year Resident Return) visa.
Statement made on 04 January 2022 at 9:18am
CATCHWORDS MIGRATION –cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) visa – incorrect information in application – effect of language barrier on evidence – evidence of citizenship – no non-compliance –frank and truthful witness – decision under review set aside
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 [Mr A]’s Return (Residence) (Class BB) 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 [Mr A] did not complete his application for a protection visa in such a way that no incorrect answers were given (s.101(b)). The issue in the present case is whether those grounds for cancellation are made out.
[Mr A] appeared before the Tribunal on 10 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel [Mr A]’s visa should be set aside. A decision not to cancel his visa should be substituted.
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 Home Affairs (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 (s.107 notice). 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 10 April 2017, the delegate sent a notification of intention to consider cancellation of [Mr A]’s Resident Return…
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.
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1902045 (Migration) [2022] AATA 623
Case
[2022] AATA 623
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr A for review of a decision to cancel his Subclass 155 (Five Year Resident Return) visa. Mr A, who was born stateless in Iran to Iraqi parents, had previously been granted a Protection visa. The cancellation of his Resident Return visa was initiated by a notice issued under s.107 of the *Migration Act 1958* (Cth), which alleged non-compliance with the Act. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued complied with statutory requirements.
The primary legal issue before the Tribunal was whether Mr A had failed to comply with the provisions of the *Migration Act 1958* (Cth) as alleged in the notice of intention to cancel his visa. Specifically, the Tribunal had to determine if Mr A had provided incorrect information or failed to notify the Department of Home Affairs of incorrect information or changes in circumstances, as contemplated by ss.101, 102, 103, 104, or 105 of the Act, and whether the notice issued under s.107 was valid.
The Tribunal found that it was not satisfied that Mr A had engaged in non-compliance as described in the s.107 notice. The reasoning focused on the evidence presented, including Mr A's background and the circumstances surrounding the alleged non-compliance, which related to a lost and subsequently found visa evidence card. The Tribunal concluded that the discretionary power to cancel the visa did not arise because the necessary preconditions of non-compliance had not been met to the Tribunal's satisfaction.
Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr A's Subclass 155 visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On 10 April 2017, the delegate sent a notification of intention to consider cancellation of [Mr A]’s Resident Return visa. 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.Background [Mr A] was born in Iran on [date] and is [age] years of age. He is of Arab ethnicity and a Shia Muslim. His parents were Iraqi citizens from Najaf until they were expelled by the Sunni-led Saddam Hussein regime in the 1980s. They were stripped of their Iraqi citizenship and deported to Shia-majority Iran before [Mr A]’s birth making him stateless. He had Iranian documentation through his father until his father’s death in 2006 after which [Mr A] was in Iran unlawfully and without any official papers. On [date] December 2010, [Mr A] arrived at [location] by [boat]. He was granted permission to make an application for a Protection (Class XA) Subclass 866 visa as an unauthorised maritime arrival under s.5AA of the Act (UMA) [in] July 2011. In his protection visa application, [Mr A] claimed that he is a stateless Arab and his former habitual residence was Iran where he lived unlawfully as an Iraqi refugee. He claimed he does not hold citizenship in any country and is not entitled to citizenship in any country, including Iraq. [Mr A] sought protection from Iran because as a stateless Iraqi refugee without official Iranian documentation his movements were restricted, he was denied education and employment, he was not entitled to the same public health care as others in Iran and was beaten by Iranian authorities when he was caught without proper papers. He claimed persecution for reasons of his nationality and ethnicity. [Mr A] was granted a Protection visa on 7 July 2011. In September 2015, [Mr A] decided that he would like to visit his family in Iran which required him to take an Australian travel document to the Iranian Embassy and get an Iranian visa. To obtain an Australian travel document he needed to produce his Visa Evidence Card (also known as a PLO56) to the Department of Foreign Affairs and Trade (DFAT). During the hearing [Mr A] referred to this document as his ‘visa passport’. When he tried to find his visa passport, he discovered it was missing. On advice from a friend, he reported the document’s loss to the New South Wales police on 7 September 2015 because he was concerned that he would get into trouble if it was found and misused. He went to the police station [with] a friend and his [son], [Child B], who speaks English so that the child could help him talk to a police officer. The officer they spoke to gave [Mr A] a number on a piece of paper and told him that if he wanted to make a written statement he would have to make an appointment and come back for an interview. Since the report of the missing document had been recorded, [Mr A] said that a written report was not necessary and they left. [Mr A] then found his visa passport at home in a book. On 9 September 2015, he went to the Department’s Parramatta office to obtain an identity document so he could change his name at the New South Wales Registry of Births, Deaths and Marriages. Although a friend had returned safely to Iran to visit, [Mr A] thought that he would be safer returning if he did so under a different name. However, he was later dissuaded of this by his friend and decided not to change his name. [Mr A] presented his visa passport to the Department to get the identity document. [Mr A] was eventually issued with a Titre de Voyage by DFAT on 19 August 2016 which he used to get an Iranian visa to travel to see his family. However, he has been unable to travel for financial reasons and due to the ongoing cancellation issue.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel [Mr A]’s visa should be set aside. A decision not to cancel his visa should be substituted. 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 Home Affairs (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 (s.107 notice). 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 10 April 2017, the delegate sent a notification of intention to consider cancellation of [Mr A]’s Resident Return visa. 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.Background [Mr A] was born in Iran on [date] and is [age] years of age. He is of Arab ethnicity and a Shia Muslim. His parents were Iraqi citizens from Najaf until they were expelled by the Sunni-led Saddam Hussein regime in the 1980s. They were stripped of their Iraqi citizenship and deported to Shia-majority Iran before [Mr A]’s birth making him stateless. He had Iranian documentation through his father until his father’s death in 2006 after which [Mr A] was in Iran unlawfully and without any official papers. On [date] December 2010, [Mr A] arrived at [location] by [boat]. He was granted permission to make an application for a Protection (Class XA) Subclass 866 visa as an unauthorised maritime arrival under s.5AA of the Act (UMA) [in] July 2011. In his protection visa application, [Mr A] claimed that he is a stateless Arab and his former habitual residence was Iran where he lived unlawfully as an Iraqi refugee. He claimed he does not hold citizenship in any country and is not entitled to citizenship in any country, including Iraq. [Mr A] sought protection from Iran because as a stateless Iraqi refugee without official Iranian documentation his movements were restricted, he was denied education and employment, he was not entitled to the same public health care as others in Iran and was beaten by Iranian authorities when he was caught without proper papers. He claimed persecution for reasons of his nationality and ethnicity. [Mr A] was granted a Protection visa on 7 July 2011. In September 2015, [Mr A] decided that he would like to visit his family in Iran which required him to take an Australian travel document to the Iranian Embassy and get an Iranian visa. To obtain an Australian travel document he needed to produce his Visa Evidence Card (also known as a PLO56) to the Department of Foreign Affairs and Trade (DFAT). During the hearing [Mr A] referred to this document as his ‘visa passport’. When he tried to find his visa passport, he discovered it was missing. On advice from a friend, he reported the document’s loss to the New South Wales police on 7 September 2015 because he was concerned that he would get into trouble if it was found and misused. He went to the police station [with] a friend and his [son], [Child B], who speaks English so that the child could help him talk to a police officer. The officer they spoke to gave [Mr A] a number on a piece of paper and told him that if he wanted to make a written statement he would have to make an appointment and come back for an interview. Since the report of the missing document had been recorded, [Mr A] said that a written report was not necessary and they left.
Decision
Reasons for decision
As the Tribunal is not satisfied that there was non-compliance by [Mr A] in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel his Resident Return visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Return (Residence) (Class BB) Subclass 155 (Five Year Resident Return) visa.Mireya HylandMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.
Ratio Decidendi
Legal Principle Established
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Return (Residence) (Class BB) Subclass 155 (Five Year Resident Return) visa.Mireya HylandMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.