1908918 (Refugee) - [2022] AATA 4090

1908918 (Refugee) [2022] AATA 4090 (3 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBER: 1908918

COUNTRY OF REFERENCE: Iran
MEMBER:Alison Murphy
DATE:3 October 2022
PLACE OF DECISION: Melbourne
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 03 October 2022 at 3:10pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – race – Faili Kurds – nationality – stateless – Iranian citizenship – fraudulently obtained Iranian National Identity Card – education – Iranian identity documents obtained from fraudulent identity card – power to cancel the applicant’s visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97 – 105, 107-109, 140
Migration Regulations 1994, Schedule 2
CASES
Zhao v Minister for Multicultural Affairs [2000] FCA 1235
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

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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s 101(b) because he provided incorrect information about his citizenship in the visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The review was heard jointly with the related reviews of his wife, [Wife A] (AAT proceedings 1908971); his daughter [Daughter A] (AAT proceedings 1908923) and his son [Son A] (AAT proceedings 1908976). The related reviews are in respect of a separate decision of a delegate to cancel the partner visas of the applicant’s wife and children pursuant to s 140(2). The visas were cancelled on the basis that they were only granted the visas because the applicant in the current review had been granted a protection visa which was subsequently cancelled. The Tribunal’s decisions in the related views are set out in separate decision records in AAT proceedings 1908971; 1908923 and 1908976.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant in this case and each of the related cases was represented in relation to the reviews by the same migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
ISSUES FOR determination
The issues in this case are:
· whether…

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 1908918 (Refugee)

Details

AGLC: 1908918 (Refugee) [2022] AATA 4090
Case: [2022] AATA 4090
Decision Date: 3 October 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The dispute arose from allegations that the applicant had provided incorrect information in his visa application, specifically regarding his statelessness and nationality as a Faili Kurd from Iran. The decision was made by Alison Murphy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in his visa application. This section requires that a non-citizen must complete their visa application form without giving any incorrect answers. The notice of possible non-compliance alleged that the applicant was incorrect in stating he was stateless, and that his Iranian identity documents, including those of his wife and children, indicated he was an Iranian national.

The Tribunal considered the applicant's response, which maintained that his original statements were correct. He asserted that while Iranian identity documents suggested he was a citizen, these were fraudulently obtained to enable his marriage registration and for his children to be treated as Iranian citizens. He claimed to have been issued "amaysh cards" evidencing his non-Iranian citizenship. The Tribunal found that the applicant had not provided incorrect information in his visa application, as the Iranian identity documents were obtained through fraudulent means to facilitate his marriage and the recognition of his children as citizens. Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE 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 was non-compliance with s 101(b), which requires that a non-citizen must fill in or complete his or her visa application form in such a way that no incorrect answers are given or provided. The s 107 notice is dated 20 September 2018 and alleges that the applicant gave incorrect information in the following respects:·At question 19, when he stated that he was stateless;·At questions 42 - 48, which he answered by reference to a written statement attached to the application in which he relevantly stated that (in summary) that he was expelled from Iraq to Iran along with his mother, brother and sister in 1989; that he tried to obtain Iranian citizenship but could not do so because there was no record of his father in Iran; that he was issued a Green Card by the Iranian authorities and suffered harm and mistreatment in Iran as a stateless Faili Kurd; that he fled Iran because of his treatment as a stateless Faili Kurd and that he feared returning to Iran because he is stateless and without identity and left Iran using a false Iranian passport. The s 107 notice alleges that this information provided by his wife [Wife A] in her partner visa application indicated that the applicant is an Iranian citizen and not stateless as claimed. In particular the notice set out that a number of Iranian documents had been provided in support of the partner visa application indicated that the applicant is an Iranian national because those documents record that he has an Iranian National Idendity Card number. The documents stated to include this information are the applicant’s marriage certificate as well as the shenasmanehs and Iranian passports relating to his wife and children. The applicant responded to that notice by maintaining the information in his protection visa application was correct, namely that he was a stateless Faili Kurd formerly resident in Iran who was issued with a Green Card and later a White Card by the Iranian authorities. He states he married in 1992 but was not permitted to register that marriage because of his status as a stateless Faili Kurd. When his children were born in [respective years], they did not have access to basic rights such as education, healthcare, employment and freedom of movement and were at risk of arrest and being deported from Iran. He claims to have been issued amayesh cards by the Iranian authorities evidencing that he is not an Iranian citizen as asserted by the Department. He asserts that his family’s Iranian identity documents suggest he is an Iranian citizen only because he paid a lawyer to fraudulently obtain an Iranian National Identity Card number for him so that his marriage could be registered and his children would be treated as Iranian citizens.

Decision

Reasons for decision

For the above reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.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 not to cancel the applicant’s Subclass 866 (Protection) visa.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.