2002491 (Refugee) - [2021] AATA 4415

2002491 (Refugee) [2021] AATA 4415 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002491
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Kate Millar
DATE:22 October 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 866 (Protection) visa.

Statement made on 22 October 2021 at 4:05pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in visa application – family composition and citizenship – father deceased and applicant an Afghani citizen – allegation that father alive and he and applicant Pakistani citizens – statement by wife that she visits applicant’s parents – money transfers to person in Pakistan with same name as father, who is required to hold national ID to open bank account – department’s notice lengthy and not always clear – much information about issues not relied on by delegate, including other relationships – gravity of decision to cancel – requirement for positive satisfaction that ground exists – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1), 424A, 438
CASES
MIAC v Brar [2012] FCAFC 30
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] arrived in Australia on 22 May 2010, claiming to be an Afghani citizen in need of protection. He was granted a Subclass 866 (Protection) visa on 5 October 2011.
On 21 January 2020, his visa was cancelled under s 109 of the Migration Act 1958 (the Act) because a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found he had provided incorrect information in his application for a protection visa in claiming his father was deceased and he was a citizen of Afghanistan. The delegate found that his father is alive, and that [the applicant] is a citizen of Pakistan.
In reviewing this decision, the Tribunal must decide if [the applicant] provided incorrect information in his application for a protection visa, and, if so, whether his visa should be cancelled.
[The applicant] attended a hearing on 9 June 2021 to give evidence and present arguments and was assisted by his legal representative. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.
BACKGROUND
[The applicant] claimed in his protection visa application that he was born in [Location], Urozgan, in Afghanistan, and left Afghanistan in approximately 1994 when he was [Age] years old and fled to Pakistan. He claimed that in 2004 one of his brothers was murdered by the Taliban at an Ashura Day March. He stated his father travelled…

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 2002491 (Refugee)

Details

AGLC: 2002491 (Refugee) [2021] AATA 4415
Case: [2021] AATA 4415
Decision Date: 22 October 2021

CaseChat Overview and Summary

This matter concerned an appeal by a protection visa holder against the cancellation of his visa. The applicant had claimed to be an Afghan citizen whose father was deceased. The Department of Home Affairs received information alleging that the applicant's father was alive and that both the applicant and his father were Pakistani citizens. Evidence relied upon by the delegate included statements from the applicant's alleged wife, photographs, and financial transaction records indicating money transfers to a person in Pakistan with the same name as the applicant's father, who would require identification to receive such funds.

The primary legal issue before the Tribunal was whether the delegate had issued a valid notice under section 107 of the Migration Act 1958 (Cth) before cancelling the applicant's visa. Specifically, the Tribunal had to determine if the notice provided sufficient particulars of the alleged non-compliance with section 101 of the Act, which requires applicants to provide accurate information in their visa applications. The Tribunal was required to consider whether the applicant had been afforded a proper opportunity to respond to the specific grounds for cancellation.

The Tribunal reasoned that while the delegate had reached the necessary state of mind to engage section 107, the notice issued was lengthy and not always clear, making it difficult to discern the precise particulars relied upon to demonstrate the alleged incorrect information. The Tribunal noted that much of the information in the notice, particularly regarding relationships between the applicant, his alleged wife, and his brother, was not clearly linked to the core allegations that the applicant's father was alive and that the applicant was a Pakistani citizen. This lack of clarity, especially for a non-English speaker, could lead to responding to irrelevant allegations and incurring unnecessary time and expense.

Consequently, the Tribunal found that it was not satisfied that the applicant had failed to comply with section 101 of the Act in the manner described in the notice. As such, the discretionary power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

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Background

Background to the litigation

[The applicant] attended a hearing on 9 June 2021 to give evidence and present arguments and was assisted by his legal representative. The Tribunal was assisted by an interpreter in the Hazaragi and English languages. BACKGROUND [The applicant] claimed in his protection visa application that he was born in [Location], Urozgan, in Afghanistan, and left Afghanistan in approximately 1994 when he was [Age] years old and fled to Pakistan. He claimed that in 2004 one of his brothers was murdered by the Taliban at an Ashura Day March. He stated his father travelled to Afghanistan in 2006 and did not return, and his mother died in 2009. On 31 January 2012, [the applicant] sought to sponsor [Ms A], as his spouse, and [the child], as his son, for refugee and humanitarian visas. In this application, [the applicant] listed [Ms A] as the biological mother of [the child], and said he commenced his relationship with [Ms A] in March 2007, separated briefly, but then resumed the marriage. On 11 November 2012, [Ms A] and [the child] (referred to in this application as [alternative spelling]) applied for partner visas on the basis of [Ms A]’s relationship with [the applicant]. As detailed in the decision of the delegate, the Department received information alleging that [the applicant]’s true wife is [Ms B] who arrived in Australia as the spouse of his alleged brother [Mr C]. It was alleged [the child]’s mother is [Ms B]. The delegate states that [Mr C]’s family structure on his arrival in Australia was similar to [the applicant]’s claimed family structure. In particular, both stated that [Mr D] is their father. [Mr C] married [Ms B] and sponsored her to come to Australia on a spouse visa. The allegation states that [the applicant] is now sponsoring [Mr C]’s wife to come to Australia. [The applicant] and [Ms A] were asked to provide DNA test results to show the relationship between [the child] and [Ms A]. These results showed [Ms A] is not the biological mother of [the child]. [The applicant] then stated [the child] is the child of his first wife [Ms E]. In an interview with an officer of the Department, [Ms A] stated [the applicant] was previously married to [Ms B], and that his parents were alive, and she visits them in Quetta. The Department also located photographs on social media of [the applicant] and [Ms B] with [the child]. These photographs were deleted shortly after these were put to [Ms A] for comment. The Department also obtained evidence that [the applicant], [Ms B] and [Mr C] have transferred money to [Mr D] through multiple transactions over a considerable period of time entitled “family support or assistance”. The delegate states that in order to collect money transmitted in Pakistan, the person must provide a bank account or photo identification. Many of the sums transferred to [Mr D] were sent to the [Name] Bank, which requires members to hold a Computerised National Identification Card (CNIC). To open a bank account in Pakistan, the person must have identity documents.

Evidence

Evidence Before The Court

The Tribunal proceeded on the basis that the certificate was valid but remained mindful of its obligation under s 424A to disclose information that would be the reason, or part of the reason, for affirming the decision under review.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 of the Act. This requires a non-citizen to fill in his or her application form in such a way that no incorrect answers are given or provided. The exercise of the cancellation power under s 109 of the Act requires the Minister to issue 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. Did the notice comply with the requirements in s 107? Section 107 requires that where the Minister considers the visa holder did not comply with s 101 of the Act, the Minister may give the person a notice “giving particulars of the non‑compliance” and providing other information set out in s 107. To issue a valid notice, the Minister’s delegate must first reach a state of mind to engage s 107. The notice sets out that the delegate considered [the applicant]’s father is not deceased as he claimed and that he is a citizen of Pakistan, in part based on an allegation made to the Department and on financial records. The Tribunal finds the delegate reached the necessary state of mind to engage s 107. The notice must then “give particulars of the non-compliance”. The purpose of giving the particulars is to allow a person who may have his or her visa cancelled the opportunity to respond before the Minister decides under s 108 that there has been non-compliance in the way specified in the notice. The Full Court in MIAC v Brar described the purpose of this statutory scheme is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and respond to them.[1][1] MIAC v Brar [2012] FCAFC 30 at [61]. The notice issued under s 107 of the Act is lengthy and contains a great deal of information. It is not always clear how this information relates to the alleged incorrect information. This makes it difficult to discern the particulars relied on to show the incorrect information. For example, there is a great deal of information about the alleged relationship between [the applicant], [Ms B] and [Mr C], and it is unclear how this relates to what in essence is alleged, which is that [the applicant] provided incorrect information when he stated his father is deceased and incorrect information about his nationality and claims for protection. Where a person’s first language is not English, which is often the case, this makes it difficult for the person to understand the alleged non-compliance to which the person is being asked to respond. It also, as in this case, means that the visa holder is put to the time and expense of responding to allegations that do not form part of the alleged incorrect information.

Decision

Reasons for decision

As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Kate MillarSenior Member

Ratio Decidendi

Legal Principle Established

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