1930514 (Migration) - [2021] AATA 4359

1930514 (Migration) [2021] AATA 4359 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1930514

MEMBER:Alison Murphy
DATE:28 October 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 28 October 2021 at 4:21pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – Federal Circuit Court remittal – incorrect answers in the visa application – family composition – death of the applicant’s father – race – Hazara – credibility issues – long period of separation from family – potentially prolonged detention – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 189, 375A
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 202.211
CASES
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Suleyman v MIMA [2000] FCA 610
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 Immigration and Border Protection to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the resident return visa on the basis that they considered the applicant had given incorrect information about his marital status; his family composition and the death of his father at the hands of the Taliban in 2005 in a Global Special Humanitarian visa application proposed by his brother [named] in 2007 and granted in 2008. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 17 December 2016 this Tribunal (differently constituted) affirmed the decision of the delegate. [In] October 2019 the Federal Circuit Court of Australia quashed the Tribunal’s decision and remitted the matter back to the Tribunal for reconsideration on the basis that the Tribunal made a material finding of fact that was not supported by logically probative materials, being that the applicant’s Global Special Humanitarian visa would not have been granted had the correct information been provided.
The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Due to COVID-19 restrictions in operation in Melbourne at the time, the hearing took place by video with the interpreter connected by telephone.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision…

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 1930514 (Migration)

Details

AGLC: 1930514 (Migration) [2021] AATA 4359
Case: [2021] AATA 4359
Decision Date: 28 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, a male who arrived in Australia in 2008. The Department of Immigration had formed the view that the applicant had provided incorrect information in his initial Global Special Humanitarian (Subclass 202) visa application concerning his marital status, the existence of children, and the death of his father at the hands of the Taliban. This led to a Notification of Intention to Consider Cancellation being issued under section 107 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his earlier visa application, as particularised in the section 107 notice, and if so, whether this warranted the cancellation of his current resident return visa. The applicant initially maintained his original statements were correct, asserting his son was born from an affair while his wife was married to another man, and that his father had indeed been killed by the Taliban. He also claimed a departmental officer had spoken to his wife's uncle, not his father, during a phone call.

However, a significant shift occurred in the applicant's evidence before the reconstituted Tribunal. The applicant conceded that he had provided incorrect information in his Global Special Humanitarian visa application, acknowledging he was married and had a child at the time of that application. He also admitted his father was alive in 2005 and died of illness in 2013, and that the person spoken to by the departmental officer was his father. The Tribunal found that the decision to grant the Global Special Humanitarian visa was based significantly on the incorrect information regarding the applicant's father's death, and it was unlikely the visa would have been granted had the correct information been known. The Tribunal concluded that the visa cancellation decision should be set aside.

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 [an age]-year-old male who arrived in Australia by boat [in] September 2008 as the holder of a Global Special Humanitarian (Subclass 202) visa granted to him on 4 June 2008. In that visa application he stated among other things that he was unmarried, that he had no children and that his father had been killed by the Taliban in 2005 after the applicant and his father were detained for four months. The applicant applied for Australian citizenship [in] June 2013 and that application was refused [in] November 2013. ICSE records indicate it was refused because the applicant was a not a permanent resident at that time. He was granted the Subclass 155 (Five Year Resident Return) visa on 3 June 2014 and it is that visa which is the subject of the current cancellation. The Department of Immigration (the Department) subsequently formed the view that the applicant’s statements in the Global Special Humanitarian (Subclass 202) visa to the effect that he was unmarried, had no children and that his father had been killed by the Taliban in 2005 were incorrect. On 13 February 2015 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 the Department was considering the cancellation of his resident return visa on the ground that he had given incorrect information in his Global Special Humanitarian visa application. That notice identified the allegedly incorrect information as follows:· That at questions 26 and 28 of the Form 842 Global Special Humanitarian (Subclass 202) visa application, the applicant stated (among other things) that he left Afghanistan because he and his father were captured by the Taliban when crossing the border and held against their will for about four months, during which time his father died of the torture inflicted upon him by the Taliban in about August 2005. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition;· That at questions 13, 15, 26 and 51 of the Form 842, the applicant stated that his father was dead. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition;· That at question 2 of the Form 842, the applicant stated that he had never been married. This information was alleged to be incorrect because in the phone call between a Departmental officer and the applicant’s father on 18 June 2013, the applicant’s father identified himself as the father-in-law of [name], the applicant’s wife, and DNA testing confirmed that the applicant and his wife had a child, [Child A], born [DOB 1];· That at question 9 of the Form 842, the applicant stated that he didn’t have any children from a previous marriage or relationship. This information was alleged to be incorrect because DNA testing confirmed that the applicant and his wife had a child, [Child A], born on [DOB 1];· That at question 13 of the Form 842, the applicant stated that he didn’t have any non-dependent children. This information was alleged to be incorrect because DNA testing confirmed that the applicant and his wife had a child, [Child A], born on [DOB 1];· That at question 51 of the Form 842, the applicant declared that the information he had supplied was true, complete and correct in every detail. This information was alleged to be incorrect because of the incorrect information cited above;· That at questions 9 and 11 of the sponsorship application Form 40SP, lodged on 21 April 2010 in respect of the applicant’s partner visa application, the applicant stated that he first met his [wife] on 20 March 2009 and they commenced a relationship a week later. This information was alleged to be incorrect because the applicant commenced a relationship with his wife sometime prior to the conception of their child [Child A] in 2004;· That at an interview with an immigration officer in Tehran [in] January 2008, he incorrectly stated that the Taliban blinded and slaughtered his father in front of him. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition.

Evidence

Evidence Before The Court

In the present matter, the Tribunal is 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.CONSIDERATION OF CLAIMS AND EVIDENCEWas 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) in relation to his statements that he was unmarried, had no children and that his father had been killed by the Taliban in 2005. The review application was first heard by this Tribunal (differently constituted) on 25 November 2016. Before the first Tribunal, the applicant continued to maintain that he had not provided incorrect information in his Global Special Humanitarian visa application. He provided detailed statements and submissions to the effect that he was neither married nor in a de facto relationship with his wife at the time the visa application was made; rather, their son was born in the context of an affair he had with his wife at a time she was married to someone else. He claimed to be unaware that [Child A] was his son at the time of the visa application and that both he and his wife believed [Child A] to be the child of her then current husband. He maintained that his father had been killed by the Taliban in 2005 and that the person to whom the Departmental officer had spoken to by telephone on 18 June 2013 was his wife’s uncle [named], who did not understand the nature of the call and wanted to show that there was a male presence in the home of the applicant’s wife. On 17 December 2016 the Tribunal affirmed the decision to cancel the applicant’s visa. In doing so, the Tribunal did not accept the applicant’s explanation for the apparently inconsistent information, finding the applicant gave incorrect information at questions 9, 13, 15, 26 to 30 and 51 of the Global Special Humanitarian visa application. After considering the prescribed circumstances set out in reg 2.41 of the Regulations, the Tribunal concluded the visa should be cancelled. As noted above, the applicant sought a review of the first Tribunal’s decision from the Federal Circuit Court of Australia and the matter was remitted back to the Tribunal for reconsideration [in] October 2019. There was a significant change to the applicant’s evidence before the reconstituted Tribunal, in that the applicant acknowledged for the first time that he had provided incorrect information in the Global Special Humanitarian visa application in the manner set out in the s 107 notice. In submissions lodged with the Tribunal on 21 October 2021, the applicant conceded that the information he had provided to the Department, and the Tribunal on review, was incorrect as detailed in the s 107 notice. In particular, it was conceded that the applicant was married to [his wife] and they had one child, [Child A], at the time he made the Global Special Humanitarian visa application (noting that the applicant and his wife have since had [number] more children). It was also conceded that the applicant’s father was not killed by the Taliban in 2005 as stated in the Global Special Humanitarian visa application, rather, the applicant’s father was alive at that time and died of illness in 2013. It was acknowledged that the person the departmental officer spoke to on the telephone on 18 June 2013 was the applicant’s father and not his wife’s uncle as previously suggested.

Decision

Reasons for decision

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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 Global Special Humanitarian visa following a decision by a delegate of the Minister on or about 8 June 2008. While there does not appear to be any formal decision record relating to the grant of the visa, an IRIS case note dated 4 June 2008 indicates that the applicant was interviewed and satisfied the delegate that he had a well-founded fear of persecution. That case note very briefly summarises the applicant’s claims against the visa, including his account of being captured by the Taliban and forced to work for them. It includes the statement: ‘At one point they selected and blindfolded PA’s father and slaughtered his father in front of him . . .’ The s 107 notice does not suggest that the applicant’s own claims to have been abducted and forced to work for the Taliban for several months in 2005 were incorrect, rather, it alleges that the applicant exaggerated his fear by stating that his father was killed by the Taliban. The cancellation delegate concluded that the decision to grant the applicant the Global Special Humanitarian visa was based significantly on the incorrect information, being that the applicant’s father was killed by the Taliban, and that it was unlikely the visa would have been granted had the correct information been known. The s 107 notice sets out that the relevant criteria for the grant of the visa was set out in cl 202.211(1)(a) of Schedule 2 to the Regulations which stated at the time:(l) The applicant:(a) is subject to substantial discrimination, amounting to gross violationof human rights, in the applicant's home country and is living in a country other than the applicant's home country; or The brevity of the records relating to the reasons for the grant of the Global Special Humanitarian visa make it difficult to assess whether the visa application would have been granted had the correct information been known, as does the fact that the applicant’s claims about his own abduction by the Taliban are not easily severable from his claims that he and his father were abducted together. While the applicant’s representative concedes that the applicant relied upon claims about his father to bolster his claims for protection, it is not conceded that the applicant would not have been granted the visa if the incorrect information had not been provided. Rather it is suggested that the applicant’s claims alone may have been sufficient to engage Australia’s protection obligations for the purpose of the Global Special Humanitarian visa.[1][1] Submissions dated 20 October 2021 at paragraph 20 At hearing before me the applicant maintained that his account of own experiences of being abducted and mistreated by the Taliban in 2005 were correct, and that the incorrect information extended only to his claims that his father was abducted along with him and later killed. His brother, [named], gave evidence that he believed his brother’s account of his abduction by the Taliban, telling the Tribunal he first found out about it in about 2007 after his brother contacted him from Iran where he had fled after escaping the Taliban. He gave evidence that he believed his brother’s account of his experiences and this was the reason he sponsored his brother to come to Australia.