2001485 (Refugee) - [2023] AATA 1353

2001485 (Refugee) [2023] AATA 1353 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  2001485
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 first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 16 February 2023 at 11:23am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – not all questions answered and incorrect information given in visa application – previous name known by not declared – applicant used Iraqi name only after father obtained Iraqi ID for him – citizenship – stateless Faili Kurd or Iranian citizen, and eligibility for Iraqi citizenship – Iranian driver’s licence obtainable only if holding national identity card – vague description of refugee cards claimed to have held – departure on fraudulently obtained genuine Iraqi passport – fraud and security features at the time – return visit on Australian titre de voyage – Iraqi citizenship regained after protection visa granted – country information – Iranian driver’s licence obtainable by registered refugees – no real state of satisfaction that grounds for cancellation made out – member of family unit – automatic cancellation of now adult son’s visa with no jurisdiction to review – criminal history not relevant – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 424A, 438
CASES
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v MIMIA [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
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 first named applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa because they concluded the first named applicant (hereafter the applicant) had provided incorrect answers in certain respects in relation to his protection visa application in breach of s 101 of the Act. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The second named applicant is the applicant’s (now adult) son, [the second applicant]. He was a dependent on his father’s protection visa application, which was granted on 4 May 2011.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation…

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

AGLC: 2001485 (Refugee) [2023] AATA 1353
Case: [2023] AATA 1353
Decision Date: 16 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel a protection visa held by the applicant. The dispute centred on whether the applicant had provided incorrect information in his visa application, specifically regarding his statelessness, and whether this warranted the cancellation of his visa. The Tribunal was required to determine if the applicant had failed to comply with section 101 of the Migration Act 1958 (Cth), which mandates that all questions in a visa application must be answered and no incorrect answers provided.

The Tribunal considered the particulars of the Notice of Intention to Consider Cancellation (NOICC), which alleged non-compliance with section 101(b) of the Act. The delegate's concern was that the applicant had stated he was stateless, whereas subsequent information suggested he was an Iranian citizen and potentially eligible for Iraqi citizenship at the time of his protection visa application. The applicant had previously stated he was a stateless Faili Kurd born in Baghdad, exiled from Iraq, and unable to obtain Iraqi or Iranian documentation, fearing persecution in both countries. He also claimed to have left Iraq on a fraudulently obtained passport.

The Tribunal was satisfied that the delegate had properly engaged the cancellation power under section 107 of the Act and that the NOICC complied with statutory requirements. The core issue was whether the applicant's claims about his statelessness and inability to obtain documentation were indeed incorrect. The Tribunal's reasoning focused on assessing the veracity of the applicant's statements in light of the information available to the delegate, particularly concerning his claimed statelessness and eligibility for citizenship. The Tribunal ultimately found that the grounds for cancellation were not made out.

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. Section 101 of the Act provides that a non-citizen must fill in or complete his or her application in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided. 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 a Notice of Intention to Consider Cancellation (NOICC) dated 19 August 2019 which advised 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. He was advised to respond in writing. His representative provided to the Department a written submission dated 30 August 2019 in response. 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. NOICC particulars: alleged non-compliance with s 101(b) The non-compliance identified and particularised in the s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application by stating that he (and his wife and children) was stateless, whereas subsequent information before the delegate led them to conclude he was an Iranian citizen, and eligible for Iraqi citizenship at the time of the protection visa application. Specifically, the notice recounts that as part of his Refugee Status Assessment (RSA) the applicant indicated to the Department (at interview and in an RSA statement dated 6 February 2011) that he was a stateless Faili Kurd, born in Baghdad, but his parents and siblings were exiled from Iraq during Saddam Hussein’s regime and he feared returning to Iran and Iraq. Further, he stated that the Iraqi government does not consider him or his family Iraqis and they have no documentation to prove as such; he is unable to go to Iraq to obtain citizenship; he is not entitled to leave Iran without permission because he does not hold any ID documents and is unable to get any; his family held a White card in Iran but this was destroyed when their boat [arrived at] Christmas Island; and the White card did not entitle them to education, health, to work or buy property, and only identified them as Faili Kurds. He described difficulties and restrictions he and his family members faced in Iran as a result, including difficulties finding work and the Basij and/or police checking whether he held an ID card in order to work. The applicant claimed to fear persecution in Iran as a stateless person, Faili Kurd and because he left with a false (Iraqi) passport for which the police would detain, imprison or execute him on return, as he would be considered a spy.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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