1902045 (Migration)
[2022] AATA 623
•4 January 2022
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 asideLEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, Schedule 2CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
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 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.
In the meantime, on 7 October 2015, [Mr A] lodged a citizenship application. The 7 September 2015 police report came to the Department’s attention. On 21 October 2016, [Mr A] was granted a Resident Return visa, according to the Department’s records with the sole intention of immediately cancelling that visa. On 23 November 2016, the Department sent the first s.107 notice to [Mr A]. That notification was invalid. On 10 April 2017, a second s.107 notice of intention to consider cancelling [Mr A]’s visa was sent. That notice identified incorrect information in his protection visa application and claimed [Mr A] had breached s.101(b) of the Act. A final s.107 notice was sent on 27 July 2018 regarding an intention to consider cancelling the visa for a breach of s.107(2) of the Act because [Mr A] had given incorrect information in his response to the 10 April 2017 s.107 notice.
[Mr A]’s Resident Return visa was cancelled on 17 January 2019. The delegate cancelled the visa on the basis that an entry in the New South Wales police database states that [Mr A] reported he had ‘lost his passport’ and ‘Property LOST – IRAN PASSPORT Mother’s Maiden Name CASH/DOCUMENT Inscript. [Mr A’s name]’. The delegate found [Mr A] was not stateless, but an Iranian citizen. He had, therefore, provided incorrect information in his protection visa application. The delegate rejected [Mr A]’s objection that he never told police he had lost an Iranian passport but had reported his PLO56 missing. In his response to the s.107 notice [Mr A] had stated that he found his PLO56 nine months after reporting it missing. However, he had presented the PLO56 to the Department at its Parramatta office only two days after allegedly reporting it missing. Therefore, the delegate found that he was not a credible witness and his explanation for the police report was not accepted.
The s.107 Notice
Although the delegate sent two valid s.107 notices, the delegate’s decision only found that [Mr A] failed to comply with s.101(b) of the Act because he gave incorrect information in his protection visa application and that is the decision under review. The s.107 notice that particularises the non-compliance with s.101(b) is the notice of intention to consider cancellation dated 10 April 2017. The other valid s.107 notice particularises non-compliance with s.107(2) of the Act based on [Mr A]’s statutory declaration dated 25 April 2017 submitted in response to the 10 April 2017 s.107 notice. That is not the basis for the decision under review. Therefore, this decision will not include any consideration of the s.107 notice dated 27 July 2018 and whether there is non-compliance with s.107(2) of the Act.
The issue before the Tribunal is whether there was non-compliance in the way described in the relevant s.107 notice, being the manner particularised in the notice dated 10 April 2017. The non-compliance identified and particularised in that s.107 notice was non-compliance with s.101(b) of the Act.
Section 101(b)
Section 101(b) of the Act requires that an applicant must fill in or complete his or her application form in such a way that no incorrect answers are given or provided. The s.107 notice sets out that [Mr A] provided incorrect answers in his protection visa application. Those incorrect answers were to question 20 in Part B of Form 866 and questions 19, 21, 23, 42, 43, 44 and 46 in Part C of Form 866.
Section 107A of the Act states that non-compliance in respect of a previous visa held by a person can be the basis for cancelling a subsequent visa. Therefore, if it were made out that [Mr A] gave incorrect information in his protection visa application as particularised in the s.107 notice, since he was granted a Protection visa on 7 July 2011 his subsequent Resident Return visa granted on 21 October 2016 could be cancelled.
Non-Compliance as Particularised in the s.107 Notice
The s.107 notice states that the non-compliance with s.101(b) is in Form 866 Part B and Part C, which make up part of [Mr A]’s protection visa application. All the information centres around whether [Mr A] is stateless. The particulars of the information set out in the s.107 notice are as follows.
Question 20 in Part B of the Form is a declaration that the information supplied in the Form is complete, correct and up to date in every detail. [Mr A] signed that declaration.
Questions 19, 21 and 23 in Part C of the Form relates to the applicant’s citizenship. [Mr A] states that he is a stateless former resident of Iran, he is not a citizen of any country, and he has never been a citizen of any country.
Questions 41 to 46 in Part C of the Form relate to [Mr A]’s protection claims. The answer to those questions is ‘Please refer to the RSA lodged to DIAC in particular the statement of claims attached to the RSA form.’ Reference to ‘DIAC’ is the then acronym for the Department. The ‘RSA’ and ‘RSA form’ refer to [Mr A]’s Refugee Status Assessment as a UMA and the form filled in by UMAs requesting the Minister’s permission to make a protection visa application. The statement attached to that form contains [Mr A]’s protection claims and was signed by him on 29 January 2011 (RSA statement). Although the particulars of information in the s.107 notice taken from the RSA statement appear to cover all of [Mr A]’s protection claims, the essential information relevant to the cancellation of his visa is found in the first bullet point on page 3 of the notice: ‘You are stateless living in Iran, you do not have a right to citizenship’. The other information particularised in the s.107 notice as incorrect information in questions 41 to 46 is predicated on that information.
The s.107 notice states that the Department had information that on 7 September 2015 [Mr A] attended the police station reporting that he had ‘lost your Iranian passport “by unknown means in an unknown location” (Police Event Reference [Number)).’ The procedure to replace a lost Iranian passport through the Embassy in Canberra is that the applicant must provide the original copy of an Australian police report. From this the delegate surmised that [Mr A]’s statement to police that he possessed an Iranian passport was an admission that he is an Iranian citizen and it suggested that he intended to obtain a new Iranian passport, which are only issued to Iranian citizens with valid documents like an Iranian birth certificate or National Identity card.
The s.107 notice states that the delegate considered that [Mr A] has not complied with s.101(b) of the Act because he provided incorrect answers to the questions listed above. The delegate considered that the various answers given by [Mr A] where he stated that he is stateless and not an Iranian citizen are
‘incorrect because:
·You reported to NSW Police that you had lost your Iranian passport.
·Your statement to the NSW Police that you possessed an Iranian passport in your name, [Mr A’s name], is an admission that you possess Iranian citizenship.
·The possession of an Iranian passport is evidence of your Iranian citizenship and it is apparent you were not Stateless, but held Iranian citizenship at the time of your Protection visa application.’
The delegate considered that there are other incorrect answers in the protection visa application, and in particular the RSA statement, but they are only incorrect if [Mr A] is not stateless and is an Iranian citizen.
As such, it follows that if it is not made out that [Mr A] gave incorrect information when he said he is stateless and is not an Iranian citizen, it is not made out that he gave incorrect answers in any of the other particulars in the s.107 notice. Therefore, the question before the Tribunal is whether it is satisfied that [Mr A] is an Iranian citizen.
[Mr A]’s Response to the s.107 Notice
Section 107(1)(b) requires the Minister to give the visa holder a chance to respond to the particulars in the s.107 notice. The holder may give the Minister a written response to the notice that, relevantly, shows that there was compliance and, in case the Minister decides in spite of that statement that there was non-compliance, shows cause why the visa should not be cancelled. Section 108 states that the Minister is to: (a) consider any response given by a visa holder in the way required by s.107(1)(b); and then (b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
On 24 April 2017, [Mr A] responded to the delegate’s 10 April 2017 s.107 notice. That response included a submission from [Mr A]’s representative, [Mr C], and a subsequent statutory declaration by [Mr A] dated 25 April 2017. Consistent with s.108(a) the Tribunal has considered [Mr A]’s written response to the notice.
[Mr A] also made submissions to the delegate about the cancellation of his visa on 12 December 2016 (in response to the invalid s.107 notice dated 23 November 2016) and on 7 August 2018 (in response to the s.107 notice dated 27 July 2018). Those submissions include [Mr A]’s undated statement from 2016 (2016 statement) and 6 August 2018 statement (2018 statement). Although they cannot be said to be written responses to the s.107 notice and, therefore, are not considered under s.108(a), they are nonetheless information before the Tribunal. A failure by the Tribunal to consider all relevant material before it would be a failure to exercise its jurisdiction, and so those submissions have also been taken into consideration in this decision.
Non-Compliance with s.101(b) of the Act
Although civil law concepts like onus and standard of proof are generally inappropriate in the administrative law context,[1] where the existence of a fact is what grounds the exercise of a statutory power the onus of establishing that fact is on the decision-maker.[2] In Zhao v MIMA,[3] the Court stated that the decision-maker must be satisfied of one of the matters set out in the legislation before the visa can be cancelled.[4]
‘That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.’[5]
While that case was concerned with cancellation under s.116, the Court’s comments would be equally applicable to s.109 cancellations.
[1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200; McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[2] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA [1994] FCA 1534 at [14]. Those cases referred to the burden of proving relevant facts said to attract the power in s.20 as in force before 1 September 1994, but the principle is equally applicable to the current visa cancellation power in s.109 of the Act.
[3] [2000] FCA 1235.
[4] Zhao v MIMA [2000] FCA 1235 at [25].
[5] Zhao v MIMA [2000] FCA 1235 at [25] and [32].
Furthermore, although the principles enunciated in Briginshaw[6] have no direct application in the context of administrative decision-making,[7] in the context of s.109, particularly as in this case where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[8] While it is arguable that the Briginshaw principle is inapplicable to s.109, its application has not been found to involve jurisdictional error.[9] Given the gravity of the consequences are that [Mr A] might be returned to Iran where he claims persecution, the seriousness of the allegation and inherent unlikelihood of the claimed occurrence are relevant considerations in whether the issue of his Iranian citizenship has been proved to the reasonable satisfaction of the Tribunal.
The Police Report
[6] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362: ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal’.
[7] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed therein.
[8] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572–573 and Singh v MIEA [1994] FCA 1534 at [16] the principle in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on then s.20, the precursor to ss.101-109. While there are differences, nevertheless the Tribunal’s reliance on Tarasovski and Singh in the context of s.109 was approved in NBDY v MIMA [2006] FCAFC 145 and Gido-Christian v MIAC [2007] FMCA 825; also Burton v MIMIA [2005] FMCA 104. cf. Pan v MIAC [2011] FMCA 385, Le v MIMIA [2004] FCA 708.
[9] See Sea King Pty Ltd v ATC (1986) 69 ALR 277 at 285 where the Court stated that ‘[a]lthough the principles enunciated in Briginshaw … have no direct application, the [AAT] should test any suggestion of impropriety against the applicant very carefully’.
The police report before the delegate consists of a printout from COPS (the Computerised Operational Policing System), an operational database employed by the NSW Police to record all information related to incidents that need police action. There is only one entry associated with the report, made on 7 September 2015 by Officer [name deleted] at [time]. It is uncontroversial that there is a NSW police report that [Mr A] lost an Iranian passport. Nor is it in dispute that if [Mr A] lost an Iranian passport, that is, was the holder of an Iranian passport, he is an Iranian citizen. Therefore, the Tribunal asked [Mr A] to explain why, if he is stateless, there is a NSW police report that he lost his Iranian passport.
It is relevant that, although [Mr A] has some functional English (illustrated by his use of English in the hearing), his proficiency is limited (for instance, the Tribunal was often concerned about comprehension at the hearing and asked that he use the interpreter). Therefore, it is reasonable that [Mr A] took [Child B] with him to the police station to help him report the missing document. But [Mr A] told the Tribunal that [Child B] was young, around [age] years old, and was intimidated so he did not provide much assistance. It was unclear to what extent [Mr A] did the talking in English or through [Child B], but there is no doubt in the Tribunal’s mind that he used the same words to refer to the PLO56at the police station as he did in the hearing: visa passport. The Tribunal asked how the police officer knew he was from Iran and put in the report that he had lost an Iranian passport if he told the police he had lost an Australian visa passport. [Mr A] said that once he had said he had lost the visa passport the officer asked where he was from and [Mr A] said Iran.
This is an entirely plausible explanation of how there came to be a police report stating that [Mr A] lost his Iranian passport. There is no proper written police report that [Mr A] lost an Iranian passport based on an interview using the Translating and Interpreting Service (TIS). The police officer only took some notes based on what Mr [A] told him in his limited English with the help of a scared [age] year old boy then gave [Mr A] a reference number on a piece of paper. The COP entry is brief and vague. [Mr A] was not given a copy of the COP record and was not shown what was entered into the database. There was no opportunity for him to correct any errors made by the police officer. Given the language barrier, both due to [Mr A]’s limited English and [Child B]’s young age, it is completely believable that, having never heard of a ‘visa’ passport and confronted with someone from a non-English speaking background, the police officer would ask for his nationality to establish the type of passport, that is, where he is ‘from’. Once [Mr A] told the officer he was from Iran the police officer entered into COP that he was missing an Iranian passport.
This is the simplest explanation for the existence of the police report and, without more, it is, therefore, the most likely.
[Mr A]’s Credibility
The Tribunal, which had the benefit of speaking with [Mr A] in person, found him to be sincere and forthright. He gave his evidence in an authentic and straightforward manner without exaggeration. It believes [Mr A] to be a frank and truthful witness. However, the delegate rejected his explanation for the police report of a missing Iranian passport because of a lack of credibility. There is essentially only one piece of evidence pointed to by the delegate to show that [Mr A] is not a credible witness and should not be believed when he says he reported his ‘visa passport’ (the PLO56) missing to police, not an Iranian passport. In his statutory declaration dated 25 April 2017 (the declaration) sent in response to the s.107 notice he states that he found his visa passport nine months after reporting it missing, however he produced the document to the Department two days after allegedly reporting it missing. The Tribunal asked [Mr A] to explain the inconsistency. He said he never told the Department that he found his visa passport nine months after reporting it missing.
At paragraph 6 the declaration states that [Mr A] attempted to explain to police that he was missing a document that he needed so he could apply for an Australia travel document and get an Iranian visa. The officer wrote something in his notebook and gave [Mr A] a piece of paper with a number on it then said something he did not understand. [Child B] told him that the officer had said if he wanted to make a written statement about the document he would have to make an appointment for an interview. At paragraph 7 the declaration states that ‘around nine months later, I was tidying up my belongings and I found the missing Visa evidence card. I then started an application with the Australian Passports Office for a travel document.’ However, there are several things about the declaration that bring its contents into doubt. The first thing that strikes the Tribunal about the statutory declaration is that it clearly was not written by [Mr A]. The second is that it appears inconsistent with information provided to the delegate both before and after 25 April 2017.
The Tribunal suspected that the declaration was not actually written by [Mr A] because it has numbered paragraphs and is for the most part grammatically correct. This is not the case with his 2016 statement or the 2018 statement. [Mr A] confirmed that the declaration was written by his then agent, [Mr C]. He said [Mr C] presented him with the document and told him to sign it. The Tribunal asked [Mr A] if he knew what was in the declaration and he said he did not. He said he told [Mr C] his story about the police report and [Mr C] wrote it down. The Tribunal asked whether [Mr A] had read the declaration before signing it and he said he could not read the declaration. It asked if [Mr C] had read the declaration to him and he said he did not. [Mr A] explained that communication with [Mr C] was difficult because of the language problem. It appears that [Mr C] speaks English and Arabic while [Mr A] only speaks Farsi fluently. Therefore, they were communicating in English. As noted above, [Mr A]’s English is extremely limited. The Tribunal confirmed with [Mr A] that [Mr C] did not engage any language assistance in his dealings with [Mr A], including an interpreter by telephone using TIS, a community interpreter, or even one of [Mr A]’s friends.
First, in both the 2016 statement and the 2018 statement [Mr A] says that he found the document ‘soon’ after reporting to the police. This does not reflect that he found the document nine months later. These statements are consistent with what [Mr A] told the Tribunal and the 2016 statement could not have been made in response to the delegate’s concerns which were unknown to [Mr A] until the s.107 notice dated 27 July 2018.
Second, at paragraph 5 the declaration states that [Mr A] took the ‘teenage son’ of a friend with him to the police station because he was in high school and spoke very good English ([Child B]). In the 2016 statement [Mr A] refers to [Child B] as a ‘young boy’ not a teenager in high school. Likewise, [Child B] is revealed to be [age] years old in the 2018 statement. These statements are consistent with what [Mr A] told the Tribunal when describing the situation at the beginning of the hearing.
The Tribunal rejects that the declaration is reliable evidence.
Replacement Iranian Passport
As well as the fact that [Mr A]’s explanation for the police report is eminently plausible and the declaration undermining his credibility is far from reliable, there is another problem with the idea that [Mr A] reported an Iranian passport missing. He had no reason.
The delegate’s argument is that he told police he lost his Iranian passport because he needed to replace that passport. In his 2018 statement, [Mr A] raises an excellent question that then needs to be answered: given he knew he was entitled to an Australian Titre de Voyage, what was the benefit of holding an Iranian passport? While it does not appear in the delegate’s decision, the Cancellation Assessment Document on the Department’s file states Iranian citizens arriving by boat who destroy their passport report the passport missing and apply to the Iranian Embassy for a new passport once they are granted asylum. This clearly factored into the delegate’s thinking. But there was no benefit for [Mr A] to have an Iranian passport in September 2015. More importantly, not only could he not get an Iranian passport with the documentation available to him, he did not get an Iranian passport and he applied for an Australian travel document which was issued to him by DFAT before the Department even considered cancelling his visa.
The delegate states in the s.107 notice that it is a requirement that an applicant have a police report in order to get a replacement Iranian passport. However, the document in the Department file from the Iranian Embassy website states that the original copy of the Australian police report about the missing passport must be provided. ‘The report should be sealed by the Australian police otherwise the report is invalid. Also REFERENCE NUMBER or reports that have been completed online and by internet will not be accepted.’ There is no evidence that any of these things were given to [Mr A] by [the] police. The reference number provided to [Mr A] would not have been sufficient, nor would the COPS document on the Department’s file. When he was offered the means to obtain a written report by the police officer, [Mr A] declined. This is supported by the fact that there is only one entry in COPS. Therefore, [Mr A] did not have the means to successfully apply for a replacement Iranian passport. This is not consistent with him reporting his Iranian passport missing so he could acquire a replacement passport.
Initial correspondence informing [Mr A] that consideration was being given to cancelling his visa because he had reported his Iranian passport missing was dated 23 November 2016. This is the first date at which [Mr A] could have been aware that his immigration status in Australia was in jeopardy. His Titre de Voyage was granted on 19 August 2016. In other words, [Mr A] had applied for and acquired his Australian travel document before he was aware that the Department considered the police report was evidence of him being an Iranian citizen. If he was entitled to an Iranian passport and was working to replace a missing Iranian passport there was no reason for him to acquire an Australian travel document. Therefore, he did not get the Titre de Voyage in order to address the Department’s concern. He got it because he needed an official document on which to travel. This is not consistent with him reporting his Iranian passport missing so he could acquire a replacement passport.
The Tribunal rejects that [Mr A] reported an Iranian passport missing so he could get a replacement Iranian passport.
Conclusion
The Tribunal finds that the evidence before it is not sufficient to establish to its satisfaction that [Mr A] reported to police that his Iranian passport was missing. It prefers his explanation that he reported that his ‘visa passport’, that is, his PLO53, was missing, particularly since it found him to be a consistent witness and it finds the evidence undermining his credibility is unreliable. Further, while [Mr A]’s version of events is simple, straightforward, and believable, reporting a missing Iranian passport in order to replace it, but then getting an Australian Titre de Voyage is inherently unlikely given the date DFAT issued the document. The Tribunal finds that [Mr A] did not report an Iranian passport missing to police on 7 September 2015. It finds that the COP entry indicating that [Mr A] had made such a report was made by a police officer who misunderstood what document [Mr A] was trying to report as missing. It finds this occurred because of the language barrier combined with the complicated nature of [Mr A]’s immigration status and the description of the document.
Since the only evidence that [Mr A] is an Iranian citizen is that he claimed to police to have lost his Iranian passport, which the Tribunal has rejected, the Tribunal finds that there is no evidence that [Mr A] is an Iranian citizen. Since it finds [Mr A] to be a generally credible witness it rejects that he is an Iranian citizen. It finds that there is no evidence that he is not stateless as claimed and it accepts that he is a stateless former resident of Iran, he is not a citizen of any country, and he has never been a citizen of any country. There is no reliable evidence before the Tribunal that [Mr A] was untruthful about his claims for protection in his RSA Statement. As such it finds that [Mr A] did not provide incorrect answers in his protection visa application to question 20 in Part B of Form 866 and questions 19, 21, 23, 42, 43, 44 and 46 in Part C of Form 866. There was no non-compliance with s.101(b) of the Act in the way particularised in the s.107 notice.
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 Hyland
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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