1905867 (Migration)

[2020] AATA 3645

1905867 (Migration) [2020] AATA 3645 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905867

MEMBER:Meena Sripathy

DATE:12 May 2020

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 12 May 2020 at 11:11am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – not satisfied as to identity – incorrect answer in application taken to be innocent error – consistent claims regarding identity and circumstances – ground for cancellation does not exist – power to cancel visa does not arise – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360

CASES

Jasbeer Singh v MIEA (1994) 127 ALR 383
Mian v MILGEA (1992) 28 ALD 165
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMIA v QAAH (2006) 231 CLR 1
Zhao v MIMA [2000] FCA 1235

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

1. This is an application for review of a decision dated 12 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to 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.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CLAIMS AND EVIDENCE

5. The applicant arrived in Australia by boat [in] March 2010 at Christmas Island and claimed protection on the basis that he was a stateless Iraqi born refugee who had been living in Iran.  He was married and had [number] children who remained in Iran.

6. He was granted a Protection visa on 27 January 2011 following a favourable assessment of his claims for protection by an Independent Merits Reviewer (IMR) on 19 December 2010.  The IMR accepted that he had a well founded fear of persecution in Iran by reason of his membership of a particular social group (being displaced persons of Iraqi origin).

7. On 19 April 2016 the applicant was granted a Resident Return (Subclass 155) visa.

8. On 28 April 2011 the applicant was the proposer for his family members for a Global Special Humanitarian (Subclass 202) visa application. In this application the applicant’s wife’s citizenship was indicated as “Iraq”.  On 22 October 2013 the applicant’s wife lodged a Partner (Subclass 309) visa application, sponsored by the applicant. In this application the applicant and his wife indicated on the respective Form 47SPs that they were stateless. 

9. On 12 February 2015 the applicant lodged an application for Australian citizenship.  In Form 1290 for this application, he indicated his citizenship as “Iraq”. In a Form 80 completed as part of that same citizenship application he responded to Q6 regarding current citizenship from any country – “No, I am stateless” “Neither Iraqi nor Iranian governments accepted me to be citizens of their countries – Stat dec is already provided to DIBP.” 

10. As part of the citizenship application process the applicant’s case was referred to the Department’s Identity Business Support team on 13 May 2015 for an Identity Assessment.  The applicant was interviewed by an officer of the Department’s Identity Unit on 23 October 2015.  On 29 October 2015 the officer concluded the applicant’s identity was not supported on the basis that he had not provided genuine identification documents that were found to be reliable to support his claimed identity at the time of the Protection visa application.

11. On 27 September 2018, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation under s116 of the Migration Act (NOICC) informing him of a ground of cancellation of his Resident Return (subclass 155) visa, and inviting his comment on the ground for cancellation and to give reasons why it should not be cancelled.

12. The NOICC provided particulars of the ground for cancellation and information indicating the grounds appear to exist, including details from his RSA and IMR processes, his responses to citizenship questions in subsequent Subclass 202, Partner and citizenship application forms, and concerns raised by the identity officer following the interview held on 23 October 2015.  The delegate considered this information and found there were a number of inconsistent and contradictory aspects of his identity presented by him to the Department since his arrival in Australia and the delegate considered his true identity is not known.

13. On 10 October 2018 the applicant, through his representative, responded to the NOICC with a Statutory Declaration and submissions. 

14. In his Statutory Declaration of 10 October 2018 the applicant maintained that he has only ever provided one name to the Department since his arrival, and has explained his circumstances consistently in all his dealings with the Department.  He explained the circumstances of the family name on the green card first issued to him which he disclosed and explained at the time of his entry to Australia. He was born in Iraq and lived there for many years and this is why he referred to being Iraqi on his forms, but by this he did not mean Iraqi citizen but of ‘Iraqi background’.  He explained that he has consistently stated that he left Iran with a false Iranian passport. His wife is also born in Iraq and of ‘Iraqi background’. At the time of lodgement of the Humanitarian and Partner visa applications she and he were both stateless. This does not contradict that they considered themselves of ‘Iraqi background’ as they were both born in Iraq. The applicant’s wife has since obtained Iranian citizenship through her father, and her Iranian citizenship and passport is in the name of [Ms A]. The applicant states that he advised the Department of this in the Form 80. The children do not have Iranian citizenship or passports as a result of their mother’s citizenship. The applicant states that [Ms B] is the same person as [Ms A]. She is his wife. She is not and has never been an Iraqi citizen. The applicant states he has been 100% honest with the Department from the beginning. He does not, and has never held, any identification documents to prove his identity. He is and has always been stateless. The applicant states that he knows [Mr C] from Iran. He is of Iraqi background. The applicant cannot comment on the places he lived earlier or on his migration history. The applicant states his date of birth which he has given consistently to the Department and denies ever providing the date [date].

15. The applicant’s representative’s submissions reiterated the information provided by the applicant and attested to the applicant’s credibility and honesty.  The representative also referred to the applicant’s vulnerabilities, including his lack of education and illiteracy and as a consequence he has had to his rely on others to complete forms on his behalf which may have lead to some of misunderstandings before the Department.  It was submitted that the applicant is and has always been undocumented and stateless and he has provided consistent information about his circumstances to the Department from the time of his entry and should not be further disadvantaged by visa cancellation on account of his stateless undocumented status.

16. On 12 March 2019, after considering the submissions and explanations, the delegate decided to cancel the applicant’s visa on the basis of s116(1AA), finding that the ground for cancellation exists and that the reasons for cancelling outweighed the reasons for not cancelling the visa.

    Material before the Administrative Appeals Tribunal (AAT)

17. Before the Tribunal, a substantial number of medical reports were provided in the context of requests for fee reduction and priority processing.  The reports detail the applicant’s multiple health conditions and fragile mental health circumstances, which have been exacerbated by the prolonged processing of his family reunion and citizenship applications and subsequent visa cancellation.

18. The review application was granted priority processing in May 2019, however, unfortunately it was not constituted to the present Tribunal until 12 February 2020.  The Tribunal initially set the matter down for an in person hearing on 8 April 2020, but on 31 March 2020 the hearing was postponed due to the circumstances of the Covid 19 pandemic.

19. The applicant provided submissions and supporting material to the Tribunal on 18 March 2020, including copies of his Statement and submissions provided previously to the Department in response to the NOICC and also copy of correspondence between the representative and the Identity officer on 25 October 2015, and Statutory Declarations made by the applicant on 26 October 2015 and 27 October 2017 repeating claims previously made about his background and circumstances.  The Tribunal notes that this latter correspondence was not included in documents in file [number] provided to the Tribunal.  

20. Having considered all of the material now before it, including Department file [number] and the applicant’s numerous Statutory Declarations and submissions, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

21. The Tribunal’s consideration and reasons are provided below.

    CONSIDERATION AND REASONS FOR DECISON

22. 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 the 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.

    Does the ground for cancellation exist?

    s.116(1AA) – Not satisfied as to identity

23. A visa may be cancelled under s.116(1AA) if the Minister, or Tribunal on review, is not satisfied as to the visa holder’s identity.

24. This subparagraph was introduced in 2014.[1] The Explanatory Memorandum to the legislation inserting s.116(1AA) provides the following example of when this ground may arise: two or more documents or pieces of information about a person’s identity have been given by, on behalf of, or in relation to the visa holder and it is not possible to form a conclusion regarding which document or piece of information is genuine.[2]

    [1] Inserted by No.129 of 2014.

    [2] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill, p.24, at [16].

25. Departmental guidelines indicate that this ground will not apply if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. This is because a visa cannot be cancelled under s116(1AA) if the delegate is satisfied as to a visa holder’s identity. The Guidelines also caution that In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.[3]   It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.

    [3] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 29/3/2020).

26. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the context of administrative decision-making.[4] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[5]

    [4] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-3; MIMIA v QAAH (2006) 231 CLR 1 at [40] and cases there cited.

    [5] See Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000), at [25], [32]-[34]. See also Mian v MILGEA (1992) 28 ALD 165 at 169 and Jasbeer Singh v MIEA (1994) 127 ALR 383 per Sackville J at [14]. In those two cases the Court was referring to the burden of proving relevant facts said to attract s.20 as in force before 1 September 1994, which in turn attracted the deportation power, but the principle would be equally applicable to visa cancellation.

27. In the present case, the delegate was not satisfied as to the applicant’s true identity.  In reaching this conclusion the delegate referred to concerns about the credibility of the applicant’s evidence and explanations on the basis of alleged discrepancies in his responses at various previous interviews, and discrepancies or inconsistencies between his responses at the identity interview on 23 October 2015 and his RSA interview in 2010. The delegate also referred to concerns about the applicant’s information about his wife’s subsequent acquisition of Iranian citizenship and had credibility concerns with the applicant’s explanation about the individual who provided a supporting statement for his wife’s Partner visa application ([Mr C]). The delegate appears to have relied heavily on the conclusions from the Identity Assessment Report in reaching his conclusion about satisfaction as to the applicant’s identity which in turn relied heavily on an adverse credibility assessment of the applicant and absence of identification documentation from him. 

28. The issue before the Tribunal on review, is whether having regard to evidence and information before it, the Tribunal is satisfied as to the applicant’s identity. For reasons that follow, the Tribunal has reached a different conclusion to the delegate is satisfied on the evidence and material before it of the applicant’s true identity, being that he is [applicant name], born [date]. 

29. The evidence establishes that the applicant, upon arrival in Australia by boat in March 2010, made protection claims on the basis of being a stateless Arab, born in Iraq whose family was expelled to Iran in 1980.  He claimed he initially held a green card but after returning to Iraq after 2003 and coming back to Iran subsequently, he never held any documentation in Iran until he came to Australia.  His claims of being born stateless in Iraq, expelled to Iran in 1980, and having no basis to establish any citizenship claims in Iraq, was accepted by the RSA in the initial process, and IMR in the review of his protection claims in 2010, on the basis of credible oral evidence and country information current at that time.  The Tribunal considers that it is not appropriate in a cancellation process to revisit the merits of the original protection decision.

30. The Tribunal has carefully considered the information and evidence now before it regarding the matter of the applicant’s identity. The Tribunal finds the applicant has made consistent claims regarding his identity and circumstances since his arrival in Australia.  Having been found to be a credible witness as to these matters by the delegate in the RSA process and reviewer in the IMR process, the Tribunal observes that there is no document or piece of information that contradicts or is inconsistent with these claims now. On this basis and taking into account the legitimate difficulty a person in the applicant’s circumstances (being a stateless, persecuted refugee) would have to provide documentary evidence of his identity, the Tribunal is satisfied that his identity is as he has claimed.

31. While not strictly necessary, for the sake of comprehensiveness of this review the Tribunal below addresses the concerns and issues raised by the delegate and identity officer. 

32. The Tribunal considered the evidence provided previously in his protection and other visa applications made as it relates to the matter of his identity.  It finds that he has been consistent about his name and date of birth since his arrival in Australia in 2010.  He explained in some detail at his entry interview, documented in notes included in [file number] at folio 20, the other family name he had used and the circumstances in which he acquired it and has been consistent in repeating this explanation since then. The applicant has, and continues to consistently maintain, that he was an undocumented Iraqi born refugee in Iran, and the Tribunal notes that he was granted protection on the basis of these claims in 2010.  

33. No evidence, such as documents or information, to contradict these claims, or his identity, has been identified by the Department. For example there is no evidence to support that he holds Iraqi citizenship or that he holds, contrary to his claims, any Iranian documentation.  

34. Regarding the response ‘Iraqi’ in relation to his partner to the question on citizenship in the Subclass 202 application the Tribunal accepts as plausible and reasonable the explanation provided by the applicant that he meant his partner was of Iraqi background, being born there. It also accepts that he may have misunderstood the question and the implication of his response, taking into account the language barriers and his educational background. It notes he provided no document to evidence his wife’s Iraqi citizenship with her application.  In any event, in the subsequent Partner application forms, the applicant correctly indicated hers and his own citizenship as stateless.  It also accepts his same explanation for the incorrect reference to Iraqi citizenship in his citizenship application, which was anyway contradicted by the response in the Form 80 that he was stateless. Taking all of this in context and having regard to his otherwise consistent history of claims about his statelessness, the Tribunal draws no negative inferences from these responses on application forms and accepts that they were innocent errors/misunderstandings on his part.

35. Regarding the concern identified in the Identity officer’s report about the alleged reference to the applicant’s partner as [Ms A] born in [year] in the biodata interview upon arrival in Australia, inconsistently with information he later provided about his wife’s name and date of birth, the Tribunal observes that evidence of the Biodata interview was not provided in [file number] and there is no evidence before the Tribunal that this was inconsistent information provided by the applicant.  In any event, the Tribunal can see no relevance of this to the matter of his true identity.

36. The reference by the identity officer to the allegedly contradictory information in the Statutory Declaration Form 888 by Mr [C], because of Departmental records indicating he migrated to Australia in 1998 and his former country of residence being Iraq, is irrelevant to the issue of the applicant’s true identity.  In any event, it appears both the identity officer and delegate relied on this information somewhat dubiously given that there is no evidence to support that Mr [C] never lived in Iran.  It appears to have been relied on without any sound basis only to cast aspersions on the applicant’s general credibility.

37. Finally, the identity officer refers to concerns about the applicant’s evidence in his protection claims about the documentation he held in Iran, and the credibility of these claims due to alleged inconsistencies in the accounts provided about it.  The Tribunal has considered the information before it of the evidence given by the applicant in the RSA and IMR processes and the account of the identity interview held on 23 October 2015 (noting that no audio recording of this interview was provided to the Tribunal) and finds that, while there may have been some inconsistencies regarding whether the applicant was given a white card prior to departing Iran for Iraq in 2003 or not, he was consistent in stating that he held no document after he returned from Iraq to Iran in 2004.  The Tribunal also notes that the applicant’s claims regarding his experiences as an Iraqi refugee in Iran in this period was considered in the context of country information in his IMR review and found to be consistent and supported by that information.  There is no basis for the Tribunal to not be satisfied as to the applicant’s identity on the basis of the information he provided regarding his status and documentation in his protection visa process.

1. Having carefully considered all of the material before it, and the concerns and issues raised by the delegate and identity officer who conducted the Identity Assessment, the Tribunal is not satisfied that there is any basis to doubt the applicant’s claims as to his true identity.  He has consistently maintained that he is an undocumented stateless refugee and this was the basis for his claims for protection in Australia in the first place.  His claims were accepted and he was granted a Protection visa in January 2011. 

2. There is no evidence before the Tribunal to doubt the veracity of those claims or suggesting  any other identity for the applicant.  He has been living in Australia as [applicant name] for almost 10 years now.  There is no evidence he has ever applied for, or held, an Iraqi ID or Iraqi passport or an Iranian ID or Iranian passport. He has been issued, and has used, a Titre de Voyage travel document by the Australian Government in this name.  While residing in Australia he has been issued a Photo ID in this name and holds an Australian pension card also in this name.

3. On the basis of the evidence before it, the Tribunal is satisfied of the applicant’s identity as claimed as [applicant name].

4. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

5. Having regard to the above reasons and findings, and taking note of the significant distress and hardship (evidenced in medical reports provided) caused by the delay in processing of the applicant’s family’s Partner and his citizenship applications due to this visa cancellation decision, the Tribunal considers it would now be appropriate and desirable that processing of these pending applications be resumed and prioritised without further delay.   

   DECISION

6. 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.

   Meena Sripathy
   Member