1933029 (Refugee) - [2023] AATA 1293

1933029 (Refugee) [2023] AATA 1293 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Navid Koushke Baghi (MARN: 1681603)
CASE NUMBER:  1933029
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:16 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 16 February 2023 at 11:42am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – incorrect information provided in visa application – citizenship – stateless Faili Kurd or Iranian citizen – departure from Iran on Iranian passport and Iranian driver’s licence provided to VicRoads in order to obtain Victorian licence – claims that passport genuine but fraudulently obtained and licence fake – passport obtained through people smuggler, with corruption and fewer security features at the time – licence obtained through contact in Australia and certified copy accepted without question by VicRoads staff – original examined at hearing and accepted as fake – eligibility for Iraqi citizenship – unaware that parents had reacquired Iraqi citizenship – return to Iraq and Iran on Australian titre de voyage – country information – application procedure for Iraqi citizenship – no real state of satisfaction that grounds for cancellation made out – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107(1)(a), 108(b), 109(1), 424A, 438
CASES
Burton v MIMIA [2005] FCA1455
MIAC v Brar [2012] FCAFA 30
Saleem v MRT [2004] FCA 234
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC [2008] FCA 507
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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that they concluded the applicant had provided incorrect answers in certain respects in relation to his protection visa application, and failed to answer some answers, 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.
The applicant is a [Age]-year-old man originally from Ilam, Iran. According to Departmental records [in] December 2010 he arrived on Christmas Island as an irregular maritime arrival having left Iran earlier (via [Country 1]). He was granted a protection visa on 16 June 2011 (having applied on 10 June 2011) based on his alleged status as a stateless Faili Kurd who did not have Iranian or Iraqi nationality.
The applicant made an application for Australian Citizenship on…

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 1933029 (Refugee)

Details

AGLC: 1933029 (Refugee) [2023] AATA 1293
Case: [2023] AATA 1293
Decision Date: 16 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a case involving a protection visa holder whose visa was subject to cancellation. The applicant claimed to be stateless, of Faili Kurd origin, with potential ties to Iraq and Iran. The dispute arose from concerns that the applicant had provided incorrect information and potentially bogus documents in his visa application, leading the Minister to consider cancelling his protection visa under section 109 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 109 of the Act were made out. This involved determining whether the applicant had failed to comply with the requirements to provide correct information and not present bogus documents, and whether the notice of intention to cancel the visa (NOICC) issued by the delegate was valid. Specifically, the Tribunal had to assess the applicant's claimed statelessness against evidence suggesting he was an Iranian citizen, based on his use of an Iranian driver's licence to obtain a Victorian licence, and his eligibility for Iraqi citizenship.

The Tribunal's reasoning focused on the validity of the NOICC and the evidence presented regarding the applicant's citizenship. While the delegate had concluded the applicant was an Iranian citizen due to the driver's licence and eligible for Iraqi citizenship, the Tribunal examined the applicant's claims that the Iranian passport was genuine but fraudulently obtained and the driver's licence was fake. The Tribunal found that the NOICC, which cited concerns about Iranian citizenship and eligibility for Iraqi citizenship, lacked sufficient particularity regarding the source of information about the driver's licence. Furthermore, upon examining the original driver's licence, the Tribunal accepted it as fake. Considering the lack of clear evidence that the grounds for cancellation were established, particularly regarding the applicant's citizenship status and the validity of the documents presented, 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

Apart from in these ways – including in the Tribunal’s letter – the information which is subject to the certificate has not been provided or otherwise disclosed to the applicant by the Tribunal. 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 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. As set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review), in this case the delegate sent the applicant an NOICC dated 19 August 2019 which advised the applicant that his visa may be cancelled under s 109 because of concerns that he did not comply with ss 101(a) and 101(b) of the Act. For reasons explored in more detail below, the delegate concluded the applicant is an Iranian citizen, primarily based on the fact that he had provided an Iranian driver’s licence to VicRoads in order to obtain his full Victorian driver’s licence. The delegate also considered the applicant was eligible for Iraqi citizenship when he applied for protection, given his parents had reacquired Iraqi citizenship by that time. In response to the notice the representative provided to the Department an undated statutory declaration signed by the applicant, a written submission (received by the Department on 2 September 2019) and supporting documents. Was the s 107 notice validly issued? In his submission provided in response to the s 107 notice the representative argues that the notice was invalid because the source of information relating to the applicant’s Iranian driver’s licence (which led the delegate to suspect he was Iranian, not stateless when he applied for protection) was not sufficiently particularised. As such the applicant cannot meaningfully respond, except to say he provided a fake Iranian’s driver’s licence to VicRoads, he argues. The representative submits that therefore the basis for the cancellation has not been sufficiently outlined in the NOICC, and that to constitute a valid notice, VicRoads should provide particulars about how the source concluded the document (that is the Iranian driver’s licence) was real. Before the Tribunal the representative did not raise the sufficiency and validity of the notice as an issue in his written submission or at hearing. Nonetheless the Tribunal has considered whether the NOICC was valid, namely whether it complied with the requirements of s 107 of the Act, given this was raised at the Departmental stage. A notice under s 107 of the Act is required to give particulars of the possible non-compliance: s 107(1)(a).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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