1907125 (Migration) - [2021] AATA 3700

1907125 (Migration) [2021] AATA 3700 (25 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907125
MEMBER:Alison Murphy
DATE:25 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s 109 was not enlivened.

Statement made on 25 August 2021 at 3:54pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – citizenship – undocumented stateless Faili Kurd or Iranian or Iraqi Kurdish citizen – parents’ Iranian birth certificates and Iranian law giving applicant citizenship at birth – applicant’s Iranian driver’s licence and passport, and attempts to regain Iraqi citizenship – procedural fairness – validity and sufficiency of s 107 notice – failure to provide source of information, preventing real opportunity to understand and meaningfully respond – no reference to applicant’s possible Iraqi citizenship – decision maker’s satisfaction of non-compliance ‘in the way described in the notice’ – parents’ purported citizenship based on one questionable document provided by applicant’s sister – notice invalid and power to cancel visa does not arise – no real state of satisfaction even if notice valid – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46(1), 101, 107, 108(b), 109(1), 375A, 359A(1), 438
CASES
Burton v MIMIA (2005) 149 FCR 20
CSH18 v MHA [2018] FCCA 3226
Kang v MIAC [2013] FCA 711
MIAC v Brar (2012) 201 FCR 240
Nader v MIMA [2000] FCA 908
NAVK v MIMA [2004) FCAFC 160
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
SZEEM v Minister for Immigration [2005] FMCA 27
SZNKO v MIAC [2010) FCA 297
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

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 applicant is a [Age]-year-old male who arrived in Australia by boat [in] August 2011 and sought protection. He was granted a protection visa on 15 March 2012 and the resident return visa on 21 March 2017.
The delegate cancelled the resident return visa on the basis that the applicant breached

s 101 of the Act by providing incorrect answers about his country of citizenship in his protection visa application.
The applicant appeared before the Tribunal on 27 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of two interpreters. The hearing commenced with the assistance of an interpreter in the Kurdish and English languages who became indisposed during the hearing and was unable…

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 1907125 (Migration)

Details

AGLC: 1907125 (Migration) [2021] AATA 3700
Case: [2021] AATA 3700
Decision Date: 25 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against the cancellation of their Return (Residence) (Class BB) visa, specifically a Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations of providing incorrect answers in a previous protection visa application, relating to the applicant's citizenship and background as an undocumented stateless Faili Kurd or Iranian or Iraqi Kurdish citizen. The applicant contended that their parents' Iranian birth certificates and Iranian law conferred citizenship at birth, and they possessed an Iranian driver's licence and passport, and had attempted to regain Iraqi citizenship. The appeal was heard by Alison Murphy, Member, of the Tribunal.

The primary legal issues before the Tribunal were whether the notice issued under section 107 of the Migration Act 1958 was valid and sufficient, and whether the decision-maker was genuinely satisfied that the applicant had failed to comply with section 101 of the Act. Specifically, the Tribunal had to determine if the notice provided adequate particulars of the alleged non-compliance, including the source of information, to allow the applicant a meaningful opportunity to respond. The Tribunal also considered whether the notice adequately addressed the applicant's potential Iraqi citizenship.

The Tribunal reasoned that the section 107 notice was invalid because it failed to provide the source of the information regarding the applicant's parents' purported citizenship, which was based on a single, questionable document provided by the applicant's sister. This lack of transparency prevented the applicant from having a real opportunity to understand and meaningfully respond to the allegations. Furthermore, even if the notice were considered valid, the Tribunal found that the decision-maker had not reached a genuine state of satisfaction that the applicant had non-complied with the Act in the manner described in the notice, particularly given the absence of any reference to the applicant's possible Iraqi citizenship.

Consequently, the Tribunal set aside the delegate's decision to cancel the visa and substituted a new decision that the power to cancel the visa under section 109 of the Migration Act 1958 was not enlivened.

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

In these circumstances the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s 109 was not enlivened.DECISION The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s 109 was not enlivened.Alison MurphyMemberATTACHMENT – 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 that the power to cancel the visa under s 109 was not enlivened.Alison MurphyMemberATTACHMENT – 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.