2000639 (Migration) - [2021] AATA 5156

2000639 (Migration) [2021] AATA 5156 (15 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2000639

MEMBER:Kate Millar
DATE:15 December 2021
PLACE OF DECISION: Adelaide
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 15 December 2021 at 10:34am

[The applicant] came to Australia [in] April 2010 as a dependent of her sister [Sister A]. In coming to Australia, she claimed she was an Afghani citizen living in Pakistan, having fled to Pakistan from Afghanistan in 2003. She claimed both her parents were deceased and that she was dependent on her sister. She also claimed that she only had one sister and one brother.
[The applicant] was granted a Partner (Provisional) visa on 31 January 2010 on the basis that she was a member of [Sister A’s] family unit, and later granted a Partner (Migrant) visa.
On leaving and re-entering Australia in 2017, [the applicant] was granted a Subclass 155 (Five Year Resident Return) visa.
On 2 January 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled her Subclass 155 visa on the basis she had provided incorrect information in her visa application. The delegate found [the applicant] was a citizen of Pakistan and not Afghanistan, her parents were living, she had two brothers that were not declared in her visa application, and that she had also provided incorrect information that she had lived in Afghanistan until 2003.
[The applicant] has applied for a review of this decision. In reviewing the decision, the Tribunal must decide whether a ground to cancel [the applicant’s] visa exists, and if so whether her visa should be cancelled.
[The applicant] appeared before the Tribunal on 7 June 2021 to give evidence and present arguments and was represented in relation to the review by her registered migration agent. The Tribunal also received oral evidence from [Sister A]. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CERTIFICATE ISSUED UNDER SECTION 375A OF THE ACT
The Department file contained a certificate issued under s 375A of the Migration Act 1958 (the Act). A certificate that is validly issued under this section requires the Tribunal not to disclose the document or information that is the subject of the certificate to any person other than a member of the Tribunal.
To be valid, the certificate must specify a public interest reason for non-disclosure, the information must meet the description of being against the public interest to disclose and the certificate must be signed.
The Tribunal wrote to [the applicant] through her representative on 6 January 2021 attaching a copy of the certificate and inviting any comments on the validity of the certificate. In response, the representative submitted she was unable to comment on whether non-disclosure…

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.

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Details

Case: [2021] AATA 5156
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (AAT) to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who is a citizen of Pakistan, had her visa cancelled on the grounds that she provided bogus documents and incorrect answers in her visa application, specifically concerning her family composition and the deceased status of her parents. The applicant contended that her parents were deceased and that she was a member of the Hazara ethnic group, which faces persecution in Pakistan, raising concerns about Australia's non-refoulement obligations.

The primary legal issues before the court were whether the Tribunal had erred in its assessment of the evidence regarding the applicant's family composition and the deceased status of her parents, and whether the Tribunal had adequately considered the applicant's claims concerning her ethnicity and the potential implications for Australia's non-refoulement obligations. Additionally, the court was required to consider whether the Tribunal had properly assessed the applicant's mental health and cognitive capacity in relation to her ability to provide accurate information and her best interests as a child.

The court found that the Tribunal had failed to adequately consider the evidence presented by the applicant, including medical reports detailing her mental health conditions and cognitive difficulties. The Tribunal's reliance on a psychologist's report, which was prepared after the hearing and contained opinions not supported by country information, was also questioned. The court noted that the Tribunal had not properly assessed the impact of the applicant's mental health on her ability to recall and provide accurate information, nor had it fully explored the implications of her ethnicity for non-refoulement obligations. The court also observed that the Tribunal had not adequately considered the best interests of the applicant's child.

Consequently, the court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

[Brother A] did not provide photo identification and did not attend by Microsoft Teams. The Tribunal was not content to hear from him by telephone. EVIDENCE OF [THE APPLICANT] In opening it was stated that [the applicant] had significant learning or memory problems, and a report from a psychologist would be available three days after the hearing. This was of some concern to the Tribunal as the decision was made 18 months ago, and [the applicant] was aware this matter has been under active consideration by the Tribunal for six months. The matter was previously adjourned for a period of two months at the request of her representative. [The applicant] said she first saw the psychologist who prepared a new report for the Tribunal six weeks before the hearing. Prior to the hearing, [the applicant] provided a letter from her general practitioner dated 15 October 2020 stating she has [a] baby, and her husband is in Pakistan. It states she is finding it difficult to look after her daughter without the support of her husband, and requests consideration of her husband’s visa. A letter dated 29 September 2020 from a clinical psychologist [states] she has had two sessions and has reported anxious and depressive symptoms and stressors including obsessive/compulsive symptoms, sad mood, anxiety, confusion and forgetfulness and a lack of focus, financial stress, social isolation and adjustment issues (culture shock). A further letter dated 24 May 2021 from a general practitioner, addressed to the Department of Immigration states [the applicant] has [specified medical conditions]. It is stated she has obsessive compulsive disorder and a longstanding history of mental health problems. The psychology report provided after the hearing is from a registered psychologist. This type of registration can be distinguished from clinical psychologists who are trained in the assessment and diagnosis of mental illness.[1] The report states [the applicant] has impaired cognitive function but does not list any specific testing of her cognitive function, instead administering tests relating to her anxiety and depression, a PTSD questionnaire, a feelings and needs chart, a mindful anxiety questionnaire and a hierarchy of fear form. [1] Clinical psychologists | APS (psychology.org.au) Most of the report is a record of [the applicant’s] claims including her difficulty accessing documents to support her case. It includes the opinion of the psychologist on circumstances of the Afghan displaced community in Pakistan, such as “normally children witness atrocities that happen on a daily basis”. These statements of opinion are not support by any country information. All sessions were conducted with her sister present. Her sister, [Sister A], has also had her visa cancelled and has a current application before the Tribunal, and has a strong interest in maintaining a consistent history. The assessment and findings in the report do not list impaired cognitive function unlike the introduction but provide a diagnosis of PTSD with severe depressive features. While these conditions may impair a person’s ability to perform some cognitive tasks, it does not indicate [the applicant] has a cognitive impairment or a learning problem. It includes a self-report from [the applicant] that she forgets ordinary daily tasks. The onset of this condition is since [the applicant’s] visa was cancelled.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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