1933869 (Migration) - [2023] AATA 3159

1933869 (Migration) [2023] AATA 3159 (30 June 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Teresa Lee (MARN: 2217901)
CASE NUMBER: 1933869

MEMBER:Simone Burford
DATE OF DECISION:  30 June 2023
DATE CORRIGENDUM
SIGNED:7 July 2023
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

In the Tribunal’s Reasons for Decision, made on 30 June 2023, at paragraph 35 the table should be deleted and replaced with the following:
The applicant’s siblings are:

Name Date of birth Place of birth Current location Citizenship/s

[Brother A]
Sometime in or around [specified year] (Note: The Department of Home Affairs have recorded his date of birth as [DOB 1])
[Town 1], Daykundi Province, Afghanistan Australia Australian

[Sibling A] Sometime in or around [year]
[Town 1], Daykundi province, Afghanistan
Deceased Afghanistan

[Sibling B]
Sometime in or around [year] (Note:The Department of Home Affairs have recorded his date of birth as [DOB 3])
[Town 1], Daykundi Province, Afghanistan Australia Afghanistan

[Sibling C]
Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])
[Town 1], Daykundi Province, Afghanistan Australia Afghanistan

[Sibling D]
Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])
[Town 1], Daykundi Province, Afghanistan Australia Afghanistan

[Sibling E] Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 6]) [Town 1], Daykundi Province, Afghanistan Australia Afghanistan

In the Tribunal’s Reasons for Decision, made on 30 June 2023, at paragraph 65, at the first dot point, ‘2015’ should be replaced with ‘2005’.
Simone Burford
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Teresa Lee (MARN: 2217901)
CASE NUMBER:  1933869
MEMBER:Simone Burford
DATE:30 June 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 (155) (Five Year Resident Return) visa.
Statement made on 30 June 2023 at 3:31pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in previous visa applications – bogus documents – immigration history – family composition – indefinite detention – non-refoulement obligations – contribution made by the holder to the community – impact on the applicant’s family – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 46, 48, 97-105, 107-109, 140, 189, 195A-198, 359, 375
Migration Regulations 1994, r 2.41
CASES
Commonwealth v AJL20 [2021] HCA 21
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

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 155 (Five Year Resident Return) visa (the Resident…

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 1933869 (Migration)

Details

AGLC: 1933869 (Migration) [2023] AATA 3159
Case: [2023] AATA 3159
Decision Date: 30 June 2023

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who claimed to be an Afghan citizen, had arrived in Australia in 2011 and was initially granted a permanent Protection (Subclass 866) visa. His Resident Return visa, granted in 2018, was subsequently cancelled on the basis that he had provided incorrect information in his earlier Protection visa application, in breach of section 101 of the Migration Act 1958 (Cth). The delegate's decision was made following the issuance of a Notice of Intention to Consider Cancellation (NOICC) which detailed alleged non-compliance with section 101(b) of the Act, relating to the accuracy of information provided in visa applications.

The primary legal issues before the Tribunal were whether the applicant had indeed failed to comply with section 101 of the Act as particularised in the NOICC, and if so, whether the applicant's visa should be cancelled. The NOICC specified that the alleged non-compliance stemmed from incorrect answers provided in the applicant's 2011 Protection visa application, with further information from other visa applications lodged by family members being used to indicate this non-compliance. The Tribunal was required to determine if the delegate had properly engaged the cancellation power under section 109 of the Act and if the notice issued complied with the statutory requirements.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 109 and that the NOICC complied with the statutory requirements. Crucially, the applicant's representative acknowledged in written submissions that the applicant had provided incorrect information in his Protection visa application, and the applicant himself confirmed this in a statutory declaration, admitting non-compliance with section 101 of the Act. Based on this acknowledged non-compliance, the Tribunal found that the grounds for cancellation were made out. However, the decision to cancel a visa under section 109 is discretionary, and the Tribunal was required to consider whether cancellation was warranted in this specific case. The Tribunal ultimately set aside the delegate's decision to cancel the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to his Protection visa application (the visa which he held prior to the grant of the Resident Return 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.Background The applicant is [an age]-year-old married man who claims to be a citizen of Afghanistan. According to the delegate’ record, he arrived as an irregular maritime arrival [in] May 2011. The applicant was granted a permanent Protection (Class XA) (Subclass 866) visa on 7 September 2011, based primarily on his alleged status as a Shia Hazara from Afghanistan. He was granted a Resident Return (Subclass 155) visa on 3 August 2018. That visa was cancelled on 21 November 2019 and is the subject of this review. The Tribunal notes s 107A provides that failure to comply with ss 101(a) and 101(b) of the Act in connection with a previous visa application may be grounds for cancelling the visa holder’s current visa. According to the applicant’s evidence, he has a wife living in Quetta, Balochistan, Pakistan. The applicant and his wife married [in] September 2017. The cancellationThe notice On 15 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return visa, on the basis of non-compliance with s 101(b) of the Act. That subsection 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 grounds for the cancellation the applicant’s responses included in the applicant’s application for the Protection (Subclass 866) visa lodged on 29 August 2011. The NOICC included the responses to questions in form 866B of that application form. The NOICC also detailed responses or information provided in two other visa applications as information indicating the applicant had provided incorrect answers in his Protection visa application:·An application for a Global Special Humanitarian (subclass 202) visa (GSH visa) lodged by his mother [Mother A] on 3 October 2015 in which the applicant was a secondary applicant for the visa.·An application for an Orphan Relative (subclass 177) visa (Orphan Relative visa) lodged on 2 September 2009 in [Country 1].·An application for a Provisional Partner (Spouse) (Subclass 309) visa (Partner visa) lodged on 22 January 2007 lodged by [Sister-in-law A] sponsored by her spouse [Brother A]. A secondary application was lodged as part of this application by [the applicant] ([DOB 7, in year A]), on the basis of being a dependent member of [Sister-in-law A] family unit, namely, her brother-in-law ([Brother A]). The Global Special Humanitarian (subclass 202) visa and Orphan Relative (subclass 177) visa applications were refused. The secondary application for the Partner visa was also refused. The Department had before it information provided in the Global Special Humanitarian (subclass 202) visa, Orphan Relative (Subclass 117) visa and the Provisional Partner (Spouse) (Subclass 309) visa applications.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Broadly, the information covered by the certificate relates to internal Departmental communication about the applicant’s identity and related family members. The Tribunal notes this information has already been disclosed to the applicant, and before the Tribunal the applicant acknowledged the information was correct. As such, the Tribunal did not consider there was any information covered by the certificate which had not otherwise been put to the applicant for comment or response.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. 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. 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.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) of the Act. The details of the notice were outlined above. 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. In written submissions to the Tribunal, the applicant’s representative acknowledged that the applicant had provided incorrect information in his Protection visa application and that there was non-compliance in the way described in the notice issued under s 107 of the Act, except with respect to the question of whether his father was deceased. In his statutory declaration submitted to the Tribunal, the applicant confirmed that he had provided incorrect answers to questions in his Protection visa application and that he did not comply with the requirements of s 101 of the Act. On the basis of the evidence before it, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.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). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

Name	Date of birth	Place of birth	Current location	Citizenship/s
[Brother A]	Sometime in or around [specified year] (Note: The Department of Home Affairs have recorded his date of birth as [DOB 1])	[Town 1], Daykundi Province, Afghanistan	Australia	Australian
[Sibling A]	Sometime in or around [year]	[Town 1], Daykundi province, Afghanistan	Deceased	Afghanistan
[Sibling B]	Sometime in or around [year] (Note:The Department of Home Affairs have recorded his date of birth as [DOB 3])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling C]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling D]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling E]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 6])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan