2000820 (Migration) - [2022] AATA 3953

2000820 (Migration) [2022] AATA 3953 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mrs Roya Majd (MARN: 0701239)
CASE NUMBER: 2000820

MEMBER:Melissa McAdam
DATE:26 October 2022
PLACE OF DECISION: Sydney
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 26 October 2022 at 3:58pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – nationality – stateless – Faili Kurd – family composition – Iranian citizenship – conversion to Christianity – non-refoulement obligations – prospect of indefinite detention – best interests of the child – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 101-105, 107-109, 116, 197
Migration Regulations 1994
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994)
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
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 under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with his obligations under s 101(b) 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 was represented in relation to the review.
Section 107 Notice, NOICC
On 9 September 2019 the department delegate issued a notice of intention to consider cancellation of the applicant’s resident return subclass 155 visa (the NOICC), under s.107 of the Act, to the applicant. In the NOICC the delegate set out the following:
… As a delegate of the Minister, I consider that you did not comply with section 101(b) of the Migration Act 1958.
…
Providing incorrect information on the application form for the Protection (subclass 866) visa granted on 6 July 2011 may result in the Resident Return (subclass 155) visa granted on 4 September 2018 being liable for cancellation.
…
Evidence of possible non-compliance:
[In] November 2009, you arrived as an undocumented irregular maritime arrival (IMA) to Christmas Island.
On 9 November 2009, you attended an Entry Interview with a departmental officer. During this interview you identified yourself as [the applicant’s name] born in Iraq on [DOB 1]. You stated you were a Faili Kurd who experienced discrimination in Iran and did not have effective protection in…

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 2000820 (Migration)

Details

AGLC: 2000820 (Migration) [2022] AATA 3953
Case: [2022] AATA 3953
Decision Date: 26 October 2022

CaseChat Overview and Summary

The applicant, a holder of a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The cancellation was based on the delegate's finding that the applicant had provided incorrect information regarding his nationality in his visa application, specifically by claiming to be stateless when he was, in fact, an Iranian citizen. The delegate also considered discretionary factors and determined that cancellation was appropriate.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with his obligations under section 101(b) of the Migration Act 1958 by providing incorrect information about his nationality. A secondary issue was whether, even if non-compliance was established, the visa should be cancelled, considering the applicant's conversion to Christianity and the potential consequences of his return to Iran, including the prospect of indefinite detention and the best interests of his child.

The Tribunal found that while the applicant had indeed provided incorrect information regarding his nationality, the onus was on the Minister to establish the grounds for cancellation. Applying the principles from *Zhao v MIMA* and considering the gravity of the consequences as outlined in *Briginshaw v Briginshaw*, the Tribunal determined that the evidence did not sufficiently establish that the applicant was an Iranian citizen at the time of his application, nor that he was not stateless. Furthermore, the Tribunal considered the applicant's conversion to Christianity and his stated fear of persecution if returned to Iran, along with the best interests of his child.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has provided an explanation that [Person C] and [Brother A] are his cousins and [Person A variant] is his uncle. They were able to gain Iranian citizenship so the applicant’s family lived with them when the applicant and his family moved ton Iran. The applicant has sent them money to help support them, and his mother in particular, while he has been in Australia. He further explained that his father was not able to gain Iranian citizenship and died about 14 years ago. His mother continues to live with [Person A variant] and his family. His one brother [Brother B variant] was living with [Person A variant] and his family but now lives independently. The applicant previously stated in his Protection visa application that [Brother A] was his brother, not his cousin, to try to facilitate [Brother A’s] eventual immigration to Australia. Assessment of the available evidence There is no onus upon an applicant to establish that a ground for cancellation does not exist. Generally, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister, or on review, the Tribunal.[5] In a matter involving a visa cancellation under s.116 of the Act, Zhao v MIMA, the Court stated:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[6] [5] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14]. [6] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]. The Court’s comments would be applicable to cancellations under s.109 of the Act. In the civil context, Dixon J in the High Court held that:the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.[7][7] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 362]. While this principle may not have direct application in administrative law, the Tribunal considers it is appropriate to bear in mind the gravity of the consequences in deciding whether the ground for cancellation is made out.[8][8] In Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3 and Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16], the principle explained by the High Court in Briginshaw was referred to with approval in the different statutory context of deportation decisions based on the old s.20, the precursor to ss.101-109.

Decision

Reasons for decision

The agent attached the following supporting documents:-The applicant’s daughter [Daughter A’s] Australian identity documents.-The applicant’s NSW Marriage Certificate.-[Person A variant’s] Iranian birth certificate.-[Brother A’s] Iranian birth certificate.-Three character references.Delegate’s Decision The delegate found that the applicant is an Iranian citizen and not stateless and therefore had not complied with s 101(b) obligations. The delegate assessed the discretionary considerations and decided to cancel the applicant’s visa.Information to the TribunalPre-Hearing Submissions On 22 July 2022 the applicant’s representative submitted the following documents on the applicant’s behalf:-A written statement by the applicant, dated 21 July 2022.-The applicant’s Baptism Certificate, dated [in] February 2022, from [a named] Church.-A letter from [Leader A], dated 17 July 2022, confirming the applicant has visited his church since June 2021 and participated in other activities there. [Leader A] states that many Iranians have come to know that the applicant is a Christian and attends the church. The applicant has a “strong interest in helping Muslims see the errors of Islam and to become Christian”. In the applicant’s written statement he outlines the following:In September 2019, my previous representative provided information in response to the Notice of Intention to Consider Cancelation of my visa and I continue to rely on that information, but I also wish the following information to be considered.As I have stated previously, the only incorrect information I have provided is that I have declared [Brother A variant 2] as my brother where in fact he is my cousin.Apart from the reasons I have stated in the past, I do not want to return to Iran because I have converted to Christianity and if I return to Iran, I will not be able to practice it the same way as here.I was invited to church around Easter time in 2021. My friend [Friend A] who also worked with me invited me to church.We used to talk about various things whilst [working] together and I remember talking to him about my problems in life at that time. [Friend A] told me that he used to have a lot of problems in his life and going to church had helped him greatly. He used to be a drug user and it was only with the help of the church that he was able to give it up.For the first few weeks, I was sceptical and only an observer in the church.I was born and grew up in a very religious family and also an Islamic society. I learnt to pray, fast and participate in religious activities with my parents and until I grew up myself, I practiced Islam.When I was about 19 years old, I saw a few men being lashed in public. Their crime was drinking alcohol. Another time, when I was about 22 years old, I saw the authorities chopping a man’s finger off because he had stollen something.Knowing that God whom I worshiped, was the same god whom, had ordered these acts of violence, bothered me and over time I lost my connection with god, and that was why I was hesitant to believe that going to church would help me but I accepted my friend’s invitation because I had nothing to lose and no one would force me to go to church if I chose not to.In June 2021, after going to church for a few weeks, I spoke to our pastor and expressed my interest in committing to Christianity.The reason I decided to commit myself to Christianity was because I had felt a serenity in connecting to God that I had never experienced before.I was Baptised [in] February 2022. This was an amazing day for me because it was the day of salvation, being born again free of sins.I practice Christianity by going to church on Sunday mornings and participate in Bible studies on Sunday afternoons. On Tuesdays, also, I attend Bible studies between 7-9 in the evening.I also practice Christianity by promoting it, giving the good news of Bible and inviting others to join Christianity because I believe it is a way to salvation.Giving to charity and helping others is also something I like to do.I feel like I have changed to a better person because I am kinder and can forgive people easily, I don’t hold a grudge anymore.If I am returned to Iran, I would have to pretend that I am a Muslim, and I cannot do that because this is my way of life now, I cannot change it.Tribunal Hearing

Ratio Decidendi

Legal Principle Established

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.Melissa McAdamMemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.