1929707 (Refugee) - [2023] AATA 4080

1929707 (Refugee) [2023] AATA 4080 (1 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Haidari Smart
CASE NUMBER:  1929707
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Simone Burford
DATE:1 September 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Statement made on 01 September 2023 at 11:51am

CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information given in visa application – irregular maritime arrival as minor – name, date of birth, citizenship and family members – father’s previous humanitarian visa application including dual citizenship – biometrics data cross-matching and forensic facial image comparison – other applications by other family members – discretion to cancel visa – non-compliance conceded in part, in that previous applications, name and date of birth not declared – submission that information in own application correct and visa granted on that basis – circumstances of arrival and applications – incorrect information deliberately given – length of residence, relationship with Australian citizen, work and religious and community activities – non-refoulement – protection decision not quashed or set aside – possibility of prolonged detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 46A, 48A, 101(b), 107(1), 108, 109(1), 195A, 196, 197AB, 197D
Migration Regulations 1994 (Cth), r 2.41
Immigration (Guardianship of Children) Act 1946 (Cth)
CASES
Choi v MIAC [2008] FMCA 1717
Commonwealth v AJL20 [2021] HCA 21
MIAC v Brar [2012] FCAFC 30
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444

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 790 (Safe Haven Enterprise) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to his Subclass 790 (Safe Haven Enterprise) visa in breach of s 101 of the Act. 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 a [Age]-year-old man who claims to be a citizen of Pakistan. According to the delegate’s decision, he arrived in Australia as an irregular maritime arrival [in] June 2013.
On 22…

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 1929707 (Refugee)

Details

AGLC: 1929707 (Refugee) [2023] AATA 4080
Case: [2023] AATA 4080
Decision Date: 1 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Safe Haven Enterprise visa granted to the applicant, a man who arrived in Australia as an irregular maritime minor and claimed to be a citizen of Pakistan. The dispute arose from allegations that the applicant provided incorrect information during his visa application process, specifically concerning his name, date of birth, citizenship, and family members, and failed to update this information.

The Tribunal was required to determine whether the applicant had failed to comply with section 101 of the Migration Act 1958 (Cth), which mandates the provision of correct information in visa applications and the notification of any inaccuracies. A key legal issue was whether the Notice of Intention to Consider Cancellation (NOICC) issued by the delegate complied with the requirements of section 107 of the Act, which necessitates providing particulars of the alleged non-compliance. The Tribunal also considered the discretionary power to cancel the visa under section 109 of the Act.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent upon the issuance of a valid notice under section 107. It found that section 107 is only engaged if the delegate has formed a genuine belief that the visa holder has not complied with relevant provisions, and that a failure to provide sufficient particulars in the notice could lead to jurisdictional error. The Tribunal concluded that the delegate must have reached a state of satisfaction that non-compliance had occurred before issuing the notice, and that it was not sufficient for the delegate to merely consider that the applicant "may have" provided incorrect information.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa.

Orders

Orders of the court

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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 applicant is a [Age]-year-old man who claims to be a citizen of Pakistan. According to the delegate’s decision, he arrived in Australia as an irregular maritime arrival [in] June 2013. On 22 October 2013, the applicant was assessed under the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act) and was found to be an IGOC Minor, under the guardianship of the Minister. The Minister agreed to intervene under s 197AB of the Act to allow the applicant to reside in community detention. On 30 June 2015, the Minister intervened lifting the s 46A bar to allow the applicant to lodge a Temporary Protection visa or Safe Haven Enterprise visa application. The applicant was granted a Safe Haven Enterprise (XE790) visa (the SHEV) on 5 May 2016. That visa was to expire on 5 May 2021. According to the applicant’s evidence, he has a fiancée in Australia who is an Australian citizen. He has no children.The cancellationThe notice On 2 July 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his SHEV, on the basis of non-compliance with s 101(b) of the Act. That paragraph provides that no incorrect information must be given in the visa application process and that information must be updated when it is not correct. The NOICC set out as the particulars of the grounds for the cancellation the applicant’s responses including responses to questions in the applicant’s SHEV application. The NOICC noted that on 22 July 2013, the applicant participated in an entry interview during which he claimed his name was [the applicant] and his date of birth was [Date]. He claimed to have been born in Pakistan and to hold both Afghan and Pakistani citizenship. He claimed his father was [Mr A] (DOB [Date]) and his mother was [Ms B] (DOB [Date]), both citizens of Pakistan.[1] [1] These dates were recorded in the entry interview but appear to be an error as the documents later provided by the applicant in support of the SHEV listed his father’s DOB as [Date] and his mother’s DOB as [Year]. On 8 October 2015, the applicant lodged an application for the SHEV. As part of this application, the applicant completed a Form 790 – Application for a Safe Haven Enterprise visa. In response to questions 1, 2 and 3 of Part B of Form 790, the applicant provided the name [the applicant plus Last name 1]. After an identity assessment was conducted by the Department in December 2015, his name was amended on Departmental systems to read as [the applicant] to reflect the fact the applicant did not have any overseas identification stating his last name was [Last name 1]. The applicant completed and resubmitted a further Form 790, dated 20 January 2016, in which he provided the following answers in respect to his identity:At question 3 of Part B, Details of persons included in this application?Answer: [the applicant], date of birth [Date].At question 6 of Part C, What is your full name?Answer: [the applicant].At question 9 of Part C, Have you ever been known by other names (including name at birth, name before or after marriage, adoptive or foster name, alias or pseudonym, cultural or tribal name or clan, preferred name, other spellings of name)?Answer: Yes, [Last name 1], Given names - [the applicant].Reason for name change and date: In Pakistan we only use one name, not our father’s name, but when I came to Australia I had to use a surname, and I chose to use [Last name 1].At question 15 of Part C, Date of birth and age? Answer: [Date], age [Age] years.At question 17 of Part C, Place of birth?Answer: Quetta, Balochistan, Pakistan.At question 18 of Part C, Your citizenship at birth?Answer: Pakistani.At question 21 of Part C, You father’s citizenship?Answer: Pakistani.At question 22 of Part C, Your mother’s citizenship?Answer: Pakistani.At question 23 of Part C, Are you a current citizen or national of any other country?Answer: No.At question 24 of Part C, Have you previously been a citizen or national of any other country?You answered: No.At question 26 of Part C, Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?Answer: No.At question 65 of Part C, Have you ever had an Australian immigration visa refused or cancelled?Answer: No.At question 67, Have you ever applied for an Australian visa outside of Australia?Answer: No.

Evidence

Evidence Before The Court

It was contended that Departmental ‘policy requires the Delegate to be satisfied that there has been noncompliance and because of the noncompliance, the visa may be cancelled’. It was submitted that there was an obligation to consider all evidence ‘to form the required belief and satisfaction’ and that a failure to do so before issuing the notice under s 107 would ‘likely result in jurisdictional error’. Evidence before the Tribunal At the first hearing before the Tribunal on 10 March 2023, the applicant gave evidence that he was born in Quetta, Pakistan, on [Date]. At the time of the hearing he was [Age] years old. He confirmed that he was ethnically Hazara and a Shia Muslim. He said his parents were [Mr A] born in [Year] and his mother was [Ms B], born in [Year]. Both were born in Quetta, Pakistan. He was unsure if his grandparents were also Pakistani as they were not alive when he was in Pakistan. His parents remained living in Quetta in the same house they were in prior to his coming to Australia. His father was [an Occupation] in Pakistan who retired several years ago. He had been doing that job since before the applicant was born. The family had six children in total, three boys and three girls. He told the Tribunal that his brothers and sisters’ details were as follows:·[Mr C], a brother who was the oldest and who had been living in Perth since 2010. He is married with children and is an Australian citizen. He married his wife in Pakistan after the applicant had left.·[Ms D], a sister who he said was in Pakistan. He told the Tribunal she was married but that he hadn’t talked to her in a long time and that he did not know where she was. ·[Ms E], a sister who was in [Country 1]. She was married with children and had moved to [Country 1] with her partner. He said her partner was Hazara but he was not sure where he was from.·[Ms F], a sister who was in Pakistan. She married after he left Pakistan and was living separately from her parents with her husband and children in Quetta.·[Mr G], a brother who was living in Pakistan with his parents. He was not married or working. He said he had not returned to Pakistan since coming to Australia. The applicant told the Tribunal he was engaged to [Ms I], an Australian citizen. He said she was Hazara but he was not sure if she was from Afghanistan or Pakistan. She was living in Adelaide with her mother and [siblings]. They met in school in Melbourne. They were planning to marry at the end of next year. The Tribunal asked if he was working and he said he had moved back to Western Australia to work as [an Occupation 3]. Prior to that he had been [doing a job task] in Adelaide for three years. He had previously worked for [Employer 2] but had been ‘kicked out’ when his visa was cancelled. He said that at the time of the hearing he was living in Perth with his brother until he found his own place. He said he left Pakistan in 2013 because it wasn’t safe. He ‘couldn’t got to school or shopping’. He caught a plane to [Country 2] and then travelled overland to [Country 3] and then by boat to [Country 4] and on to Christmas Island. He was [Age] years old at the time and travelled by himself.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

These matters are considered further below.CONSIDERATION 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.Did the notice comply with the requirements in s 107? Section 107 requires that where the Minister considers the visa holder did not comply with s 101 of the Act, the Minister may give the person a notice ‘giving particulars of the non‑compliance’ and providing other information set out in s 107. 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 attached to this decision. As noted above, the applicant contended in submissions that there are two discretionary powers in this process, the first contained in s 109 and relating to the consideration of prescribed circumstances under reg 2.41. The other contained in s 107 regarding the consideration of whether or not to issue a notice to cancel. It was submitted that both discretionary powers are to be considered separately. It was contended that Departmental ‘policy requires the Delegate to be satisfied that there has been noncompliance and because of the noncompliance, the visa may be cancelled’. It was further submitted that there was an obligation to consider all evidence ‘to form the required belief and satisfaction’ and that a failure to do so before issuing the notice under s 107 would ‘likely result in jurisdictional error’. With respect, the Tribunal considers these submissions misunderstand the process being undertaken by the decision maker. While Departmental policy may provide direction to the delegate concerning the circumstances in which a notice should be issued[8], the question arising under s 107 is whether there is sufficient evidence to reach a real state of satisfaction that there has been non-compliance, that is, that the incorrect information was provided. [8] The relevant Departmental Policy in place at the time the NOICC was issued were the Migration Policy ‘Visa Cancellation Instructions’ 1 July 2019-17 August 2019. Section 107 is only engaged if the delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. It is not sufficient that the delegate considers that the visa holder ‘may have’ provided incorrect information.[9] There is no requirement that the notice must contain an assertion as to the requisite state of mind.[10][9] Zhong v MIAC (2008) 171 FCR 444 at [77].[10] Zhong v MIAC (2008) 171 FCR 444 at [75].