1920271 (Migration) - [2020] AATA 6042

1920271 (Migration) [2020] AATA 6042 (14 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1920271
MEMBER:Kate Millar
DATE:14 December 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 155 (Five Year Resident Return) visa.

Statement made on 14 December 2020 at 9:13am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – disclosure of previous visa application – close relatives – national identity documents – personal contacts in Australia – consideration of discretion – Hazara Shia – visa grant did not rely on incorrect information – circumstances in which the non-compliance occurred – present circumstances – Australian citizen wife and newborn child – contributions to the Australian community – non-refoulement obligations – returnee from the West – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 107A, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] came to Australia as an irregular maritime arrival in 2012 and applied for a protection visa in the name [Alias 1]. He claimed to be a citizen of Afghanistan in need of protection from the Taliban because of his Hazara ethnicity and Shia religion.
In his application form, he said he had not previously applied for a visa to come to Australia and did not have any close relatives in Australia. He provided a taskira (Afghan identity document) in the name [Alias 1].
He was granted a Subclass 866 (Protection) visa in 2013, and in 2015 changed his name to [applicant name]. He applied for Australian citizenship in 2016, however that application has not yet been decided. He was granted a Subclass 155 (Five Year Resident Return) visa on 12 September 2018.
The Department of Home Affairs sought verification of the taskira in the name [Alias 1] and received advice that the taskira does not accord with records kept by the government in Afghanistan. It also conducted facial recognition analysis, and a result considered [the applicant] was the same person as [Mr A] who applied for a visa to come to Australia as a secondary applicant on a spouse visa in 2011. In that application, [Mr A] is named as the brother of [Mr B], who was in Australia.
As a result, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found that [the applicant] had provided incorrect information in his protection visa application and cancelled his Subclass 155 (Five…

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 6042
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 155 visa of an applicant, who had previously been granted a Subclass 866 visa. The dispute arose from allegations that the applicant had provided incorrect information in his application for the Subclass 866 visa, which subsequently led to the cancellation of his Subclass 155 visa under section 109 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Act by providing incorrect information in his Subclass 866 visa application, as particularised in the notice issued under section 107 of the Act. The Tribunal was required to determine if the information provided regarding his identity, family relationships, and the whereabouts of his father was indeed incorrect, and if so, whether this non-compliance warranted the cancellation of his Subclass 155 visa.

The Tribunal reasoned that section 109(1) of the Act permits the Minister to cancel a visa if the visa holder has failed to comply with section 101, which mandates the provision of correct information. It noted that non-compliance with section 101 in relation to a previous visa, such as the Subclass 866 visa, could lead to the cancellation of a subsequently granted visa, like the Subclass 155 visa. The Tribunal examined the evidence, including advice from the National Identity Verification Centre and a facial comparison report, which suggested the applicant was the same person as an individual who had previously applied for a visa under a different name. It also considered discrepancies in the applicant's claims about his brother's relationship to him and the undisclosed existence of other siblings. While the Tribunal found the applicant's claim about his father's disappearance to be unsubstantiated, it concluded that there was non-compliance with section 101 in relation to several specific questions on his Subclass 866 visa application. The Tribunal then considered the discretionary power to cancel the visa under section 109(1), taking into account prescribed factors including the applicant's response to the notice and the content of any genuine documents. It found that the applicant's taskira was likely not genuine, given the circumstances of its acquisition.

The Tribunal found that the applicant had failed to comply with section 101 of the Act in the manner particularised in the section 107 notice. Consequently, the Tribunal determined that the cancellation of the applicant's Subclass 155 visa was justified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As far as the certificate purports to prevent disclosure of information that has already been disclosed in the decision of the delegate, the Tribunal considers the certificate invalid. As [the applicant] concedes he previously applied for a visa in the name [Name A] and he has sent money to his brother [Mr B] it is not necessary for this decision to look to the methods of obtaining the information. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101 of the Act. This requires non-citizens to provide correct information in their visa applications and passenger cards. The visa that has been cancelled is a Subclass 155 visa, with the incorrect information alleged to have been provided in the application for a Subclass 866 visa. Under s.107A of the Act, a notice issued under s.107 of the Act, and a cancellation under s.109 of the Act can include non-compliance that occurred at any time, including non-compliance in respect of any previous visa held by the visa holder. It follows that any non-compliance in respect of the Subclass 866 visa can result in a notice being issued under s.107 and a cancellation under s.109 in respect of the Subclass 155 visa. However, a cancellation of a Subclass 155 visa is reviewable under Part 5 of the Act, and a decision to cancel a Subclass 866 visa is reviewable under Part 7 of the Act. 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 that provides 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. The decision of the delegate records that the Department was advised by the National Identity Verification Centre that the information in the taskira [the applicant] provided with his application did not match records held by the Population Registration Directorate in Afghanistan. The delegate also refers to a facial comparison report with the opinion of a facial comparison specialist being that [the applicant] is the same person as [Name A] who lodged an application as a secondary applicant for a Subclass 309 visa [in] December 2011. This information provided the necessary state of mind for the delegate to engage s.107 of the Act and issue a notice under s.107 of the Act. The Tribunal has examined the notice issued under s.107 of the Act and considers it complies with the statutory requirements.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 was non-compliance with s.101 of the Act. The basis on which the delegate considered incorrect information had been provided was set out in the s.107 notice. In summary, this was because:· The Department received advice from the National Identity Verification Centre that the information in the taskira which [the applicant] provided in support of his protection visa application in the name [Alias 1] does not correspond to records held by the Population Registration Directorate in Afghanistan. · [Mr B] sponsored his wife for a partner visa. Included as a secondary applicant was his brother [Name A] born [date]. A photograph was provided which had a strong resemblance to the photograph of [the applicant] acquired on his arrival in Australia. The photographs were referred to a Department Facial Image Comparison Specialist who was of the opinion it was the same person. As a result, the delegate considered [the applicant] was the same person as the secondary applicant [Name A] in the partner visa application. · [Mr B] is [the applicant]’s brother, and not his cousin as claimed in his application for a Subclass 866 visa.· His brother [Mr B] is not missing.· He has two siblings which were not disclosed in his application; a brother [Mr C] and a sister [Ms D].· His father has not been missing since 2001 as claimed.

Decision

Reasons for decision

In an interview with the delegate on 2 August 2012, [the applicant] claimed his father went missing in 2001. Information provided in an interview forms part of an answer to a question on a visa application by virtue of s.99 of the Act. The delegate considered this was incorrect information as his brother [Mr B] claimed in his application that his father had returned to Afghanistan from Pakistan in April/May 2009 to see if it was safe, which the delegate found indicated the whereabouts of [the applicant]’s father was not unknown since 2001 as he had claimed. [The applicant] states his brother is incorrect, and that his father went missing in 2001. As submitted by the representative, there is no further information to establish when his father went missing and little turns on this in this case. In the absence of any other information, the Tribunal is not satisfied this is incorrect information. Conclusion The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice in respect of his answers to questions 3, 12, 13, 14 and 21 of Form 866B and question 6 of Form 866C. 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) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In considering whether to cancel [the applicant]’s visa, the Tribunal must consider prescribed factors, and may also take other matters into account, such as those considered under Departmental policy.A. Prescribed factors In exercising the power to cancel this visa under s.109, 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) of the Act. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. The correct information The correct information is that [the applicant]’s name has always been [Name A], he had previously applied for a visa to come to Australia, his brother was living in Australia at the time he lodged his application for a protection visa, and that he had another brother who was in Europe at the time he applied. The content of the genuine document (if any) In this case, the Department sought verification of a taskira provided by [the applicant] in the name [Alias 1], and this was found not to have been registered. A taskira was provided with the previous spouse visa application in the name [Name A]. [The applicant] states he obtained taskiras from the same person, and he has no assurance that either is genuine. As DFAT advise that an Afghan citizen living in Pakistan is required to travel to Afghanistan to collect a taskira,[5] the Tribunal finds it most likely that [the applicant] does not have a genuine taskira, as he has not claimed to have returned to Afghanistan and would have been required to return to Afghanistan in order to obtain a genuine taskira. 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[5] DFAT Country Information Report Pakistan, 20 February 2019 at [3.65] and [3.66].

Ratio Decidendi

Legal Principle Established

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