1933956 (Refugee) - [2021] AATA 3829

1933956 (Refugee) [2021] AATA 3829 (30 July 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1933956

COUNTRY OF REFERENCE: Pakistan

MEMBER: Meena Sripathy

DATE: 30 July 2021

PLACE OF DECISION: Sydney

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 30 July 2021 at 3:55pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Pakistan – incorrect information provided in protection application – applicant has previously applied for refugee status from the Department – subject of identity theft – victim of identity fraud – discrepancies in the Afghan documents – applicant had no knowledge of another application – insufficient evidence – likely to cause substantial hardship– decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 35A, 100, 101, 107, 109, 116

Migration Regulations 1994 (Cth), r 2.41, Schedule 2

CASES

Jalal v MIMA (2000) 60 ALD 779

McDonald v D-G of Social Security (1984) 1 FCR 354
MIAC v Brar (2012) 201 FCR 240
Mian v MILGEA (1992) 28 ALD 165

MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Saleem v Migration Review Tribunal [2004] FCA 234
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
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 dependant.

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 (the Act).

The delegate cancelled the visa on the basis that he did not comply with subsection 101(b) of the Migration Act 1958 (The Act) and decided to exercise the discretion under s109 to cancel the applicant’s visa on 20 November 2019.

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 appeared before the Tribunal on 27 July 2021 by video hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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 to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant arrived on [Location 1] as an irregular maritime arrival (IMA) on [date] February…

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 1933956 (Refugee)

Details

AGLC: 1933956 (Refugee) [2021] AATA 3829
Case: [2021] AATA 3829
Decision Date: 30 July 2021

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision by the Minister to cancel their protection visa. The cancellation was based on the applicant having provided incorrect information in their original protection visa application, specifically concerning discrepancies in Afghan documents and the applicant's alleged prior application for refugee status from the Department. The applicant contended they had no knowledge of any other application and were the victim of identity theft and fraud.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's protection visa was affected by an error of law. This required the court to determine if there was sufficient evidence to support the Minister's findings that the applicant had provided incorrect information, and if the applicant's claims of identity theft and fraud were adequately considered. The court also had to assess whether the cancellation decision was likely to cause substantial hardship to the applicant.

The court found that the evidence presented by the Minister was insufficient to establish that the applicant had knowingly provided incorrect information or had made a prior application for refugee status. The discrepancies in the Afghan documents were not demonstrably linked to the applicant's knowledge or actions, and the applicant's assertion of being a victim of identity theft was not adequately disproven. Consequently, the court concluded that the Minister's decision was affected by an error of law. The decision under review was set aside.

Orders