1926265 (Migration) - [2021] AATA 3629

1926265 (Migration) [2021] AATA 3629 (5 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1926265

MEMBER:Alison Murphy
DATE:5 August 2021
PLACE OF DECISION: Melbourne
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 applicants.

Statement made on 05 August 2021 at 2:40pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in the visa application – identity details – relatives residing in Australia – previous visa applications – details included in taskera records – exact details not correctly recorded in Iran – incorrect information had little bearing on the visa grant – non-refoulement obligations – race – Hazaras – religion – Shia – family and education commitments in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
Farah v MIAC [2011] FCA 185
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Rani & Ors v MIMA (1997) 80 FCR 379
SZATV v MIAC (2007) 233 CLR 18
Tien & Ors v MIMA (1998) 89 FCR 80

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 first named applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).
On 16 September 2019 a delegate of the Minister cancelled the applicant’s refugee visa, on the basis that she considered the applicant had given incorrect information in her Subclass 200 visa application. In essence the delegate considered the applicant gave incorrect information about her name, date and place of birth, visa history and relatives in Australia.
The applicants appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicants are [an age]-year-old woman and her three children (now aged [respective ages]) who arrived in Australia in November 2014 as the holders of refugee (split family) (Subclass 200) visas granted to them on the basis that the applicant was the wife of [Mr A]. The first named applicant’s husband, [Mr A], is a permanent resident and their youngest child, [named], aged [age], is an Australian citizen. They are not the subject of the current review.
The applicant was identified as [Alias A]…

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 1926265 (Migration)

Details

AGLC: 1926265 (Migration) [2021] AATA 3629
Case: [2021] AATA 3629
Decision Date: 5 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Refugee (Class XB, Subclass 200) visa granted to the applicant, an Afghan woman, and her three children. The cancellation was based on the Department's view that the applicant had provided incorrect information in her visa application regarding her identity, previous visa applications, and relatives in Australia. The applicant's visa was granted on the basis of her being the wife of a permanent resident, and this core information remained correct.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in her visa application, as alleged by the Department, and if so, whether the visa should be cancelled. Specifically, the Department contended that the applicant had used an alias and failed to disclose previous visa applications and relatives in Australia, citing a facial image comparison report. The Tribunal also considered the circumstances surrounding the provision of the information and the applicant's current situation in Australia.

The Tribunal found that while the applicant had provided incorrect information regarding her identity and previous applications, this information had little bearing on the decision to grant her visa. The Tribunal accepted the applicant's explanation that discrepancies in her identity details arose from errors in official documentation in Iran due to chaotic conditions at the time of registration, and that she had attempted to rectify these errors without success. Furthermore, the Tribunal noted the applicant's established life in Australia, including her husband's employment, her elderly parents and siblings residing in Melbourne, and the birth of her youngest child as an Australian citizen.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal determined that even if the correct information had been provided, the applicant would still have been granted the visa. The Tribunal's jurisdiction was limited to the first applicant, as the visas of her children were cancelled by operation of law under section 140 of the Migration Act 1958 (Cth) as a consequence of the primary cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. BACKGROUND The applicants are [an age]-year-old woman and her three children (now aged [respective ages]) who arrived in Australia in November 2014 as the holders of refugee (split family) (Subclass 200) visas granted to them on the basis that the applicant was the wife of [Mr A]. The first named applicant’s husband, [Mr A], is a permanent resident and their youngest child, [named], aged [age], is an Australian citizen. They are not the subject of the current review. The applicant was identified as [Alias A] born [on DOB 1] in the 2014 refugee (Subclass 200) visa application. She answered ‘no’ to questions asking her if she or any other person included in the visa application had ever applied for an Australia visa before, or if they had any relatives residing in Australia and or any other past or present links to Australia. Apparently on the basis of a Facial Image Comparison report conducted in 2019, the Department subsequently formed the view that the applicant had previously been included as a secondary applicant in two earlier global humanitarian visa applications lodged in 2009 and 2010. In those earlier visa applications the applicant was named as [Alias B variant] (or [Alias B]) born [DOB 2] and the proposer was stated to be her father, [named], who was resident in Australia, and the visa application included her three children [named] (subject to minor discrepancies in the spellings of some of those names). Both visa applications were refused and the delegate’s decision indicates this was because there were no compelling reasons for giving special consideration for the visa.THE TRIBUNAL’S JURISDICTION The refugee (split family) (Class XB Subclass 200) visa was granted on 3 August 2014 and the applicants arrived in Australia [in] November 2014. The second, third and fourth named applicants were granted their visas as members of their mother’s family unit. Section 140 of the Act provides for the cancellation of a visa where the holder has that visa because another person (the ‘first person’) held a visa which has subsequently been cancelled. Where a person was granted a visa because he or she is a member of the family unit of a person whose visa has been cancelled under s 109 (incorrect information), the visa of the family unit member is also cancelled by operation of law. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants (the other applicants).The s.107 notice On 2 May 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 her that the Department was considering the cancellation of her Subclass 200 visa on the ground that she had given incorrect information in her visa application.

Evidence

Evidence Before The Court

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. Extracts of the Act relevant to this case are attached to this decision. CONSIDERATION OF CLAIMS AND EVIDENCEDid the notice comply with the requirements in s.107? The notice dated 2 May 2019 sets out in detail the information given by the applicant in her refugee (Subclass 200) visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or her representative that the notice is deficient or invalid. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. I am 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.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(b). The notice alleges that the following declarations made by the applicant in her protection visa were incomplete or incorrect: · At Question 2 of Form 842 which asked "Give details of the main applicant" you answered:[Family Name and Given Name: Alias A]Sex: FemaleDate of birth: [DOB 1]Place of birth: Kabul, AfghanistanCitizenship: AfghaniCurrent country of residence: IranDate you arrived in this country: 2000Status in this country: RefugeeRelationship status: Married religiouslyPlace this happened: PakistanDo you currently have more than one partner (other than any partner included in this application? No. . .Your Refugee (subclass 200) visa was granted on 3 August 2014, on the basis that you satisfied the Minister that you were a member of the immediate family of a person who holds or held a permanent Class XB visa, namely your spouse, [Mr A]. You claimed that your name is [Alias A], you had never applied for an Australian visa before, you did not have any relatives in Australia and you did not have any past or present links to Australia. However, the forensic facial comparison conducted by the Department concluded that the facial images of [Alias A] and [Alias B] represent the same person. As such I consider you had previously applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 in the name [Alias B]. As such, I consider you have utilised an alias in your Refugee (subclass 200) visa application to conceal your previous identity and refused Global Special Humanitarian (subclass 202) visa applications under the name of [Alias B].. . .· At Question 15 of Form 842, which asked "Has any person included in this application ever applied for an Australian visa (permanent or temporary) before?" you answered "No."I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. As such, it appears you previously applied for an Australian visa before.· At Question 19 of Form 842, which asked if any people included in this application have any other relatives residing in Australia?" you answered "No."I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. In the Global Special Humanitarian {subclass 202) visa applications you indicated that your parents and [siblings] were residing in Australia as permanent residents. As such, it appears that you had other relatives residing in Australia when you applied for a Refugee (subclass 200) visa on 6 August 2013.· At Question 20 of Form 842, which asked "Do any people included in this application have any other past or present links to Australia?" you answered "No."I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. In the Global Special Humanitarian {subclass 202) visa applications you indicated that your parents and [siblings] were residing in Australia as permanent residents. As such, it appears that you had other past and present links to Australia when you applied for a Refugee (subclass 200) visa on 6 August 2013.

Decision

Reasons for decision

She agreed that she had provided incorrect information about her name, but noted that the inconsistencies as to the spelling of her first name arose from an inconsistency in the way her name was spelled on her Afghan taskera as compared to her Iranian refugee card. She acknowledged that there may also be other minor inconsistencies in the spelling of names and exact dates of birth of her family members in the visa application, but noted she had not yet received a copy of her documents pursuant to her Freedom of Information request so was not able to confirm. In a later statutory declaration she noted inconsistencies in her identity documents about her date and place of birth, stating she believed she was born in Kabul [in year] but believes the taskera records her place of birth as [a named] village because it is typical to record the father’s place of birth rather than the child’s place of birth. The applicant also provided a significant amount of material relevant to the issue of whether her visa should be cancelled.The cancellation decision On 16 September 2019 a delegate decided to cancel the applicant’s visa, finding the applicant had provided incorrect information in the manner set out in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan before she was removed to Afghanistan and therefore the delegate did not make her own assessment of those matters. The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. LEGISLATIVE FRAMEWORK 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, 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 attached to this decision. CONSIDERATION OF CLAIMS AND EVIDENCEDid the notice comply with the requirements in s.107?

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 applicant was granted the protection visa following a decision by a delegate of the Minister dated 3 August 2014 to the effect that the applicant and her children met all requirements for the grant of the refugee (split family) (Class XB Subclass 200) visa. While the Departmental file does not contain a formal decision record, it is apparent from the case notes and the ICSE records that the applicant was granted the visa on the basis she was the wife and therefore a member of the immediate family of the proposer, [Mr A]. That information was correct at the time of application and continues to be correct as at the time of the Tribunal’s decision. While a person’s identity is fundamental to the grant of any visa, I am satisfied that if the correct information had been provided the applicant would still have been granted the refugee (split family) (Class XB Subclass 200) visa. For these reasons I consider the incorrect information had little if any bearing on the decision to grant the visa. The circumstances in which the non-compliance occurred: At the time the incorrect information was provided, the applicant was living with her three young children as a refugee in Iran as the holder of a refugee card (amayesh) first issued by the Iranian government in about 2000 or 2001. She gave evidence that many hundreds of people were queuing for such cards in the registry office in 2000 or 2001 when her husband went to obtain the card and he had to return several times before he was successful in getting the card. In the crowded and chaotic office, the exact details were not correctly recorded, with errors made in the spelling of her name, date of birth and her father’s name. She returned to the registry office and tried to get the details corrected but was told if she wasn’t happy she should return to Afghanistan. The applicant’s father, who is resident in Australia, has provided a statement confirming the applicant was born in Kabul, not in Ghazni province. He states that she was never issued a birth certificate and so the taskera recorded her place of birth as being the same as that of her father. The applicant gave evidence that the Iranian amayesh was the only document the family could use to exit Iran, because while she had a taskera the children didn’t and to apply for the children’s taskeras would have required the family to travel to Afghanistan. They did not wish to risk that so used the Iranian refugee card to exit Iran. She used the same details recorded on that amayesh to apply for the Australian visa so that the details would match up. Translations of the applicant’s amayesh card and the Inter-City Travel Permit for Foreign Nationals granted to the applicant by the Iranian authorities have been provided to the Tribunal and are consistent with the applicant’s evidence. The present circumstances of the visa holder and her contribution to the community: The applicants have lived in Australia for almost eight years. During that time the applicant and her husband [Mr A] have welcomed their youngest [named child], who is now [age] years old and an Australian citizen. The applicant’s husband supports the family through his employment in the [specified] industry and the applicant’s elderly parents and siblings also live in Melbourne.