1912725 (Migration) - [2021] AATA 1025

1912725 (Migration) [2021] AATA 1025 (18 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1912725

MEMBER:Alison Murphy
DATE:18 February 2021
PLACE OF DECISION: Melbourne
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 18 February 2021 at 12:29pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in the visa application – previous application for refugee status – applicant’s identity details – close relative in Australia – Forensic Facial Image Examination – original photographs not accessible – protection status assessment – Hazara – Shia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101,107, 109, 116, 140, 359
Migration Regulations 1994, r 2.41
CASES
Burton v MIMIA (2005) 149 FCR 20
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZAFZ v MIBP [2016] FCA 1081
SZATV v MIAC (2007) 233 CLR 18
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).
On 21 May 2019 a delegate of the Minister cancelled the applicant’s resident return visa, on the basis that he considered the applicant had given incorrect information in his earlier protection visa application. The delegate considered the applicant gave incorrect information in his protection visa application about his name, date of birth, relatives in Australia, family composition and earlier visa applications in which he was included.
The applicant appeared before the Tribunal on 28 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] (in person), [Witness A] (by phone), [Witness B] (by phone) and [Witness C] (by phone). 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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is [an age]-year-old male who arrived in Australia by boat [in] December 2009 and sought protection, identifying himself as [applicant’s name variant], a citizen of Afghanistan of Hazara ethnicity born [DOB 1]. On the basis of information provided in his visa application, he was granted the protection visa on 17 February 2010. He was later granted the Subclass 155 (Five Year Resident Return) visa…

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 1912725 (Migration)

Details

AGLC: 1912725 (Migration) [2021] AATA 1025
Case: [2021] AATA 1025
Decision Date: 18 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the ground that the applicant had provided incorrect information in his earlier application for a protection visa. The applicant had arrived in Australia in December 2009 and was granted a protection visa in February 2010, followed by the resident return visa in January 2015. The Department initiated cancellation proceedings after a facial image comparison suggested the applicant had previously applied for a Global Humanitarian visa in 2008 under a different identity.

The legal issues before the Tribunal were whether the ground for cancellation was made out, specifically whether the applicant had provided incorrect information in his protection visa application, and if so, whether the visa should be cancelled. The incorrect information identified related to the applicant's previous applications for refugee status, his identity details, the presence of a close relative in Australia, and the accuracy of the information provided in his visa application. The Tribunal was required to determine if the grant of the protection visa was based, wholly or partly, on this incorrect information or a bogus document, and to consider the circumstances in which the non-compliance occurred and the present circumstances of the visa holder.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, specifically regarding his family composition and the presence of his brother in Australia, which he had failed to disclose on the advice of people smugglers. However, the Tribunal concluded that the decision to grant the protection visa was not based, wholly or partly, on this incorrect information. The grant was based on the applicant's ethnicity as a Hazara Shia, and the Tribunal was satisfied that he would have been granted the visa even if the correct family information had been provided. The Tribunal also noted that the incorrect information was provided under circumstances where the applicant was advised to withhold it to avoid complications.

Consequently, the Tribunal determined that while there was non-compliance with section 101(b) of the Act, the discretionary power to cancel the visa under section 109(1) should not be exercised. The Tribunal set aside the decision to cancel the applicant's visa, finding that the grant of the protection visa was not predicated on the incorrect information provided.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. BACKGROUND The applicant is [an age]-year-old male who arrived in Australia by boat [in] December 2009 and sought protection, identifying himself as [applicant’s name variant], a citizen of Afghanistan of Hazara ethnicity born [DOB 1]. On the basis of information provided in his visa application, he was granted the protection visa on 17 February 2010. He was later granted the Subclass 155 (Five Year Resident Return) visa on 23 January 2015. On 12 April 2010 the applicant lodged an application for a Subclass 202 visa proposing his wife and [number] children come to Australia. That application was refused and on 27 May 2013 the applicant lodged an application for a partner visa seeking to sponsor his wife, [named], and [number] of his children. As at the time of the Tribunal’s decision the outcome of the partner visa application was still pending. The Departmental file also indicates the applicant has a citizenship application pending. While processing the visa applications, the Department noted some inconsistencies in the applicant’s family composition. In April 2019 the Department conducted a Facial Image Comparison comparing an image of the applicant in his protection visa application to an image from an application for a Global Humanitarian (Subclass 202) visa lodged in Islamabad on 19 November 2008 in respect of [Person A] born [DOB 2]. The Forensic Facial Image Examiner concluded that the images in each application were of the same person. On 11 April 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising him that she was considering the cancellation of his resident return visa on the ground that he had given incorrect information in his protection visa application. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and can be summarised as follows: ·The applicant arrived in Australia [in] December 2009 by boat and claimed to be a Shia Muslim Hazara at risk of harm from the Kuchi and the Taliban. He stated he had been unlawfully residing in Pakistan since 1998;·He lodged an application for a protection visa on 16 January 2010, identifying himself as [applicant’s name variant], a citizen of Afghanistan of Hazara ethnicity born [DOB 1];·He answered ‘no’ in response to a question asking him if he had previously applied for refugee status or a protection visa from the Department (question 2 of Part B of Form 866);·He answered ‘no’ in response to a question asking him if he had previously made any other visa application to the Department (question 3 of Part B of Form 866);·He answered ‘no’ in response to a question asking him if he had any close relatives in Australia (question 10 of Part B of Form 866);·He answered ‘yes’ in response to a question asking him if he had close relatives outside Australia (question 11 of Part B of Form 866), declaring his parents ([Father A] and [Mother A]), three [siblings], his spouse ([named]) and children ([names listed]);·He declared his full name as [applicant’s name variant], born [DOB 1], aged [age] years and stated he had also been known as [an alias] on a false passport (questions 1, 4 and 7 of Part C of Form 866);·He declared the information in his visa application to be complete, correct and up to date in every detail (question 65 of Part C of Form 866);·The Department conducted a Facial Image Comparison Report dated 1 April 2019 comparing an image of the applicant in his protection visa application to an image from an application for a Global Humanitarian (Subclass 202) visa lodged in Islamabad on 19 November 2008 in respect of [Person A] born [DOB 2]. The Forensic Facial Image Examiner concluded that the images in each application were of the same person; ·[Person A] applied for the Subclass 202 visa in Islamabad on 27 February 2007, listing his mother [as Mother B], born [DOB], as the main applicant and proposed by his brother [Brother A variant], born [year], who arrived by boat in 1999. The application was refused on 16 March 2007 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa;·[Person A] and his mother [Mother B] re-applied for the Subclass 202 visa in Islamabad on 19 November 2008, proposed by [Brother variant A], who stated he was born in Afghanistan and resided in Quetta, Pakistan from 2003. That application contained the applicant’s facial image and his family composition to include his parents ([Father B] and [Mother B]) and seven [siblings]. The application was refused on 16 March 2009 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa;·The applicant arrived in Australia [in] December 2009, applied for the visa on 16 January 2010 and was granted the protection visa on 17 February 2010. In that visa application he declared details of his parents ([Father A] and [Mother A]), three [siblings], a spouse ([named]) and [same number] [children]; ·On 12 April 2010 the applicant lodged an application for a Subclass 202 visa proposing his wife and seven children come to Australia. He included his brother-in-law [Brother-in-law A] (born [DOB]) as a dependent, whom he claimed to have customarily adopted and cared for after his parents passed away in 2003 (in respect of his father) and 2008 (in respect of his mother). During this application it was noted that [Brother-in-law A] was not declared in the protection visa application. The application was refused on 9 July 2013 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa.·On 27 May 2013 the applicant lodged an application for a partner visa seeking to sponsor his wife [variant of name] and five of his [children]. These applications are still pending. In each case the children’s dates of birth are different to those included in the protection visa application and the eldest two children are omitted from the visa application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the same reasons I find that the applicant gave incorrect information at question 65 of Part C of Form 866 when he declared that the information contained in the visa was application was complete, correct and up to date in every detail.Conclusion on non-compliance For the above reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice. Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and I have considered each of those circumstances below. The correct information: For the reasons set out above, I have found that the applicant’s name, date of birth and visa history is as stated in the protection visa application, but that he provided incorrect information about his family composition and the accuracy of that information in that visa application. I am satisfied the applicant’s correct family composition is as set out in his statutory declaration dated 19 January 2021. Relevant to the incorrect information as described in the s.107 notice, the correct information is that the applicant has five brothers and one of those brothers, [Brother A variant], was in Australia at the time the applicant applied for the protection visa. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 of the Act (relating to bogus documents). Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Departmental file does not contain a formal decision record relating to the grant of the protection visa and it appears a formal decision was not provided to the applicant. ICSE records indicate the applicant was found to be a refugee by a Refugee Status Assessment on 9 February 2010. Those records state that his refugee claims were based on his race and ethnicity as a Hazara Shia. On that basis, I am satisfied the applicant’s protection visa was granted on the basis he faced a real chance of persecution in Afghanistan for the combined reasons of his Hazara ethnicity and his Shia religion. The applicant’s ethnicity and religion are not in dispute and I am satisfied that the applicant would have been granted the protection visa by the delegate even had the applicant correctly disclosed his family composition and his brother’s presence in Australia. For these reasons I do not consider the decision to grant the visa was based in any part on the incorrect information.

Ratio Decidendi

Legal Principle Established

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Departmental file does not contain a formal decision record relating to the grant of the protection visa and it appears a formal decision was not provided to the applicant. ICSE records indicate the applicant was found to be a refugee by a Refugee Status Assessment on 9 February 2010. Those records state that his refugee claims were based on his race and ethnicity as a Hazara Shia. On that basis, I am satisfied the applicant’s protection visa was granted on the basis he faced a real chance of persecution in Afghanistan for the combined reasons of his Hazara ethnicity and his Shia religion. The applicant’s ethnicity and religion are not in dispute and I am satisfied that the applicant would have been granted the protection visa by the delegate even had the applicant correctly disclosed his family composition and his brother’s presence in Australia. For these reasons I do not consider the decision to grant the visa was based in any part on the incorrect information. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2010 protection visa application. He gave the incorrect information on the advice of the people smugglers, who told him that disclosing his relationship with his brother in Australia would create problems for both of them. The present circumstances of the visa holder: The applicant lives in shared housing and is employed as [an occupation]. He married his wife, also an Afghan national, in about 1993 and they have five children born between [specified years]. He has been seeking to bring his wife and children to Australia since 2010 but as at the time of the Tribunal’s decision their visas have not been granted and they remain in Quetta, Pakistan. The applicant has been unable to travel to visit them since his visa was cancelled. His eldest son has finished his studies at a private college but is unable to attend university because of the family’s status as unregistered refugees in Pakistan. The applicant’s mother has died since his arrival in Australia and to the best of the applicant’s knowledge his siblings are scattered between Afghanistan, Pakistan, [and specified countries] and some have lost contact with the family in Pakistan. Before her death, the applicant’s mother also cared for the applicant’s wife’s orphaned brother [Brother-in-law A] and the applicant’s [nephew], whose father [named] lives in [a named country]. Medical evidence from the applicant’s treating psychiatrist indicates the applicant suffers from a major depressive disorder and generalised anxiety disorder as a result of the long separation from his family and the uncertainty of his ongoing visa status. Consistent with his presentation at the Tribunal hearing, his treating psychiatrist describes him as consistently tearful, tired and anxious with a strong sense of helplessness and hopelessness. He suffers bodily manifestations of his depression and anxiety as well as functional impairment on the background of a significant degree of vicarious trauma. He also receives treatment from a psychologist.