1907872 (Refugee) - [2020] AATA 5521

1907872 (Refugee) [2020] AATA 5521 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1907872

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Kate Millar
DATE:24 November 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 24 November 2020 at 3:12pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – religion – Shia – race – Hazara – previous visa application under an alias – Australian citizen family – non-refoulement – Convention on the Rights of the Child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 107, 109, 140, 189
Migration Regulations 1994, r 2.41; Schedule 2
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] arrived in Australia [in] November 2011 as an unlawful maritime arrival. In his subsequent application for a protection visa, he said his name was [applicant’s name] and that he had not previously applied for a visa to come to Australia.
The Department subsequently found [the applicant] was the same person as [Alias A], who has applied for a [Partner] visa on 21 April 2010. As a result, his Subclass 866 (Protection) visa was cancelled on the basis that he had failed to complete his application form in such a way that no incorrect answers were given.
[The applicant] acknowledges he is the same person as [Alias A], and that a ground to cancel his visa exists. However, [the applicant] submits his visa should not be cancelled as he is a citizen of Afghanistan of Hazara ethnic origin and Shi’a religion who would be at risk if returned to Afghanistan because of his ethnicity and religion, and as he now has [Australian] citizen children and [Australian] citizen stepchildren.
For the reasons that follow, the Tribunal agrees that his visa should not be cancelled, and the decision under review set aside.
THE HEARING
[The applicant] appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the [Official A] of the [Community Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. [The applicant] was represented in relation to the review by his registered migration agent.
At hearing, the applicant was asked which name he wanted to use, and stated he is [Alias A]. For the purposes of this decision, the applicant will be referred to as [Alias A].
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an…

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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Details

Case: [2020] AATA 5521
Decision Date

CaseChat Overview and Summary

The applicant, referred to as [Alias A], sought review of a decision by a delegate of the Minister for Immigration to cancel their Subclass 866 (Protection) visa. The cancellation was based on alleged non-compliance with section 101(b) of the *Migration Act 1958* (the Act), which requires a non-citizen to provide no incorrect answers in their visa application form. The delegate issued a notice under section 107 of the Act, detailing the particulars of the alleged non-compliance, and subsequently cancelled the visa.

The primary legal issues before the Tribunal were whether the applicant had indeed failed to comply with section 101(b) of the Act in the manner particularised in the section 107 notice, and if so, whether the visa should be cancelled. The notice specified three grounds for non-compliance: incorrectly answering "No" to having previously made another type of application to the Department, failing to disclose being known as [Alias A] ([DOB 2]) when asked about other names, and providing an incorrect date of birth ([DOB 1]) instead of the correct one ([DOB 2]).

The Tribunal considered the evidence and found that the section 107 notice issued to the applicant complied with statutory requirements. The delegate had a sufficient basis to engage section 107, having information that the applicant was also known as [Alias A] and had previously applied for a visa. The Tribunal examined each ground of non-compliance. It noted that departmental records indicated [Alias A] ([DOB 2]) had lodged a Partner visa application in 2010 which was refused. Therefore, the applicant should have answered "Yes" to the question about previous applications. Furthermore, the applicant had not disclosed being known as [Alias A] ([DOB 2]) when asked about other names, and had provided an incorrect date of birth. The Tribunal concluded that these actions constituted non-compliance with section 101(b) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At hearing, the applicant was asked which name he wanted to use, and stated he is [Alias A]. For the purposes of this decision, the applicant will be referred to as [Alias A]. CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act). Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101of the Act. Section 101(b) states a non-citizen must fill in his or her application form in such a way that no incorrect answers are given. 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. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. In this case, the delegate had the necessary state of mind to engage s.107 as the delegate had information that [the applicant] was [Alias A] and had previously applied for a visa to come to Australia. The Tribunal is also satisfied that the s.107 notice issued to [the applicant] provided particulars of the non-compliance and otherwise complied with the statutory requirements. The delegate cancelled the visa on the basis that [Alias A] had answered incorrectly when he stated his name, when he ticked the box “no” to whether he had previously made any other type of application to the Department, and also answered incorrectly by stating his date of birth was [DOB 1] when it was [DOB 2, in the same year]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Was there non-compliance as described in the s.107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice by the delegate is:· At Question 3 of Part B of Form 866 where it asked: “Has any person named in Question 1 previously made any other type of application to the Department (including a Parent visa)?” You ticked the box denoting “No”. I consider this answer appears to be incorrect as you have confirmed to the Department that you are also known as [Alias A] ([DOB 2]). Departmental records indicate [Alias A] ([DOB 2]) previously lodged a [Partner] visa application with [a named] post on 21 April 2010 and the application was refused on 14 March 2011. As such you should have answered “Yes” to this question.· At Question 4 of Part C of Form 866 where it asked: “What other names have you been known by?” You answered “[another alias] (name in false passport)”. I consider this answer appears to be incorrect because you did not answer that you are also known as [Alias A] ([DOB 2]).· At Question 7 of Part C of Form 866 where it asked: “Date of Birth”, you answered, “[DOB 1]”. I consider this answer appears to be incorrect as you have confirmed to the Department that you are also known as [Alias A] ([DOB 2]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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