1914537 (Migration) - [2023] AATA 823

1914537 (Migration) [2023] AATA 823 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1914537
MEMBER:Christine Cody
DATE:31 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 March 2023 at 3:00pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – stateless/Iran – incorrect answers given in visa application – names, dates of birth and citizenship of applicant, parents and siblings – other siblings and half-siblings not included, including two in Australia – stateless Faili Kurds whose Iranian green cards were not renewed – past discrimination and hardship and fear of future harm – discretion to cancel visa – credibility – incorrect information given deliberately and maintained through UNHCR and department procedures – visa granted at least partly on incorrect information – Faili Kurdish Iranian citizenship by birth, national identity documents and omission of family members conceded two days before hearing, new claims made and further inconsistent information provided – departure on genuine passports – no harm to parents or siblings – members of family unit – consequential cancellation of wife’s and children’s visas with no jurisdiction to review – best interests of children – applicant’s, wife’s and two minor children’s conversion to Christianity in Australia – church and community activities – children’s schooling in English – physical and mental health – westernised returnees and imputed political opinion – delay in finalising decision – country information – security situation and criminalisation of conversion – non-recognised Christians – not necessary to consider non-refoulement – procedural fairness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101(b), 107, 109(1), 140(1), 359A, 376(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 200.211
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
Plaintiff M1/2021 v MHA [2022] HCA 17
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- BACKGROUND

The applicants are a married couple who claimed to have the following names: [Mr A (comprised of Given Name A and Surname A)] (referred to hereafter as the applicant) and his wife, [Ms B] (‘the wife’). They have three children [Child 1], [Child 2], and [Child 3]. On 18 August 2014 the family applied for XB 200 Refugee and Humanitarian visas in [Country 1], relying upon a Form 842 Application for Offshore Humanitarian Visas referring to each family member (signed and declared as true on 30 July 2014 by the applicant and his wife), Form 80 Personal Particulars (signed and declared as true on 30 July 2014 by the applicant and…

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 1914537 (Migration)

Details

AGLC: 1914537 (Migration) [2023] AATA 823
Case: [2023] AATA 823
Decision Date: 31 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Refugee and Humanitarian (Class XB) visa, Subclass 200, held by the applicant. The dispute arose from allegations that the applicant provided incorrect information regarding his name, date of birth, and citizenship, as well as the citizenship and details of his parents and siblings, in his visa application. The applicant, a stateless Faili Kurd from Iran, claimed past discrimination and hardship, and a fear of future harm. The Tribunal also considered the consequential cancellation of the applicant's wife's and children's visas, over which it had no jurisdiction to review, and the best interests of the children.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the Act, specifically concerning the provision of correct information in his visa application, as particularised in the notice of intention to cancel. If non-compliance was established, the Tribunal then had to determine whether the visa should be cancelled. The Tribunal was required to assess whether the decision-maker was satisfied that the grounds for cancellation existed, based on the available material, rather than on the applicant's failure to disprove the allegations.

The Tribunal found that the applicant's responses to the notice of intention to cancel had changed significantly and that some of the information initially provided was conceded to be incorrect. However, the Tribunal noted that the applicant's explanation for the initial inaccuracies related to his statelessness, lack of documentation, and discrimination faced as a Faili Kurd in Iran, which complicated Iranian citizenship laws. The Tribunal applied the principle from *Zhao v MIMA* that a decision-maker must be satisfied of the grounds for cancellation based on available material, and a visa cannot be cancelled simply because the holder failed to show cause why it should not be. The Tribunal concluded that the decision-maker had not been sufficiently satisfied of the non-compliance alleged in the notice.

Consequently, the Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. CONSIDERATION OF CLAIMS AND EVIDENCEFiles before the Tribunal The Tribunal has two Departmental files before it, namely: ·Global Humanitarian Visa application file [Reference 1]·Department’s Global Humanitarian Visa Cancellation file [Reference 2]. The Tribunal also has the Tribunal’s file, and has taken into account the evidence received at hearing and submissions received. The issues for decision 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. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. 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, and 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. Extracts of the Act relevant to this case are set out in Annexure A. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut[3].[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

Decision

Reasons for decision

The Tribunal also has the Tribunal’s file, and has taken into account the evidence received at hearing and submissions received. The issues for decision 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. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. 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, and 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. Extracts of the Act relevant to this case are set out in Annexure A. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts form the basis of the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. Under the procedure for cancellation established by s.109, the visa holder is given the opportunity to respond to a notice issued under s.107 and the decision-maker must have regard to this response in deciding whether there has been non-compliance and whether to cancel the visa. However, this opportunity to respond does not change the nature of the decision-making process. The obligation is on the decision-maker to be satisfied there has been non-compliance, not on the former visa holder to establish that the facts or grounds do not exist. The authority for this proposition is Zhao v MIMA, where the Federal Court opined as follows:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut[3].[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]. While Zhao was concerned with notification of proposed cancellation under s.116, these comments are equally applicable to the present circumstances.

Ratio Decidendi

Legal Principle Established

The delegate decided to cancel the visas.The Tribunal’s consideration as to whether the visa should be cancelledConsideration of prescribed circumstances, and other considerations The Tribunal has had regard to the applicant’s response to the NOICC, however as noted above, and in more detail below, some of those responses have now changed in significant respects, and have essentially been conceded as also incorrect by the applicant now. The Tribunal has considered all other information before it.The correct information The Tribunal has found that the correct information is contrary to the information the applicant relied upon in making his application for a subclass 200 Refugee visa as referred to in the NOICC. The Tribunal has made this finding for the following reasons. The applicant’s initial assertion about the “correct information” is set out in his response to the NOICC. In responding to the NOICC, the applicant maintained that the applicant’s name is “[Surname A]”. He has only known his father by the surname of [Surname A] and that [Surname C] is the name of the tribe and applies to thousands of people, but ‘[Surname A]’ was chosen by the applicant’s father to be the family surname. He does not have a close relationship with his siblings and does not know why they have chosen to use their tribal name. It is submitted that this led the applicant to believe genuinely that his surname is [Surname A]. Neither of the applicant’s parents were Iranian citizens when he made the visa application, and they did not have any documents attesting to their citizenship; he did not have Iranian citizenship or documents which in itself led to discrimination; he essentially had no reason to believe that he or his parents or siblings were citizens of Iran; the applicant lacked a substantial amount of information and paperwork, and that he did not have any documents relating to his family members’ citizenship and provided information to the best of his ability, and that he is not close to his siblings so does not know how they obtained documents (implying that if his siblings had official documents, these must have been obtained through bribery/fraud); records of his family were non-existent; his parents never held formal documentation nor do they have any entitlement to the privileges of citizenship; his immediate family faced the same difficulties he had concerning a lack of documentation and a lack of citizenship; and there is an incorrect assumption being made by the Department based on country information as to the entitlement to citizenship just because there is a law. Iranian citizenship laws are more complicated. The applicant and his family, including his parents, were unable to own a home, study higher education, or obtain proper employment as they were not considered to be Iranian citizens. The applicant and his family faced discrimination and segregation due to being Feyli Kurds and were not considered Iranians. The submission states, somewhat confusingly, that although the applicant and his family “may have had Iranian citizenship, they were unable to derive any benefit from the citizenship to the extent that none of [Mr A]’s family members were able to obtain citizenship documentation whilst he was in Iran due to the prolific corruption. We submit that, in these circumstances, it was not unreasonable for [Mr A] to consider that he and his family had lost any Iranian nationality or citizenship”. The Tribunal does not consider this to be a concession in the response to the NOICC that the applicant or his family ever had citizenship documents, especially noting the applicant’s response maintains that his parents and consequently he, and his children, were not entitled to citizenship and that despite living many years in Iran neither he nor his family were ever able to gain Iranian identity. He also claimed that he tried but could not obtain citizenship for his children.