2007959 (Refugee) - [2021] AATA 5140

2007959 (Refugee) [2021] AATA 5140 (18 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007959
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:18 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 November 2021 at 12:40pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – Federal Circuit Court remittal – incorrect answers and bogus documents in visa application – first information reports to police and statutory delaration – threats to family, attacks on father’s shop and brother, and applicant’s and father’s membership of religious organisation – departmental checks and answers by father in his visitor visa interview – credibility – reports obtained by father – concession that reports bogus but claim that events described in them occurred – claim that agent advised father not to mention applicant’s claims in his application and interview – discretion to cancel visa – Australian citizen partner’s mental health – effect of cancellation on possible partner visa application – study and plans to work in priority occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359AA
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Sheptitskaya v MIBP [2015] FCCA 159

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 Immigration and Border Protection 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 of concluding that documents that were submitted by the applicant through the protection visa application process were fabricated and that the subsequent retractions of his statements were not credible. 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 matter is before the Tribunal because of a Court order quashing the decision of the earlier differently constituted Tribunal. The court order explains the reasons as being:
that the decision of the second respondent is affected by jurisdictional error because, in exercising its discretion under section 109(1) of the Migration Act 1958 (Cth) (“Act”), the second respondent had regard to the applicant’s provision of the Rawalpindi First Information Report (“FIR”) with his visa application as “another instance of non-compliance” for the purposes of considering the prescribed circumstance in reg 2.41(g) of the Migration Regulations 1994 (Cth), in circumstances where the Minister had not previously given the applicant a notice under section 107 of the Act giving particulars of any possible non-compliance in relation to the Rawalpindi FIR.
The applicant appeared…

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 2007959 (Refugee)

Details

AGLC: 2007959 (Refugee) [2021] AATA 5140
Case: [2021] AATA 5140
Decision Date: 18 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a protection visa held by an applicant from Pakistan. The dispute arose from allegations that the applicant had provided incorrect information and submitted bogus documents in his visa application, specifically relating to threats made against his family and his father's business, and their membership in a religious organisation. The Tribunal was tasked with determining whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) concerning the provision of accurate information and the use of genuine documents, and if so, whether the cancellation of his visa should be affirmed.

The Tribunal's reasoning focused on assessing the applicant's compliance with sections 101 and 103 of the *Migration Act 1958*, which prohibit providing incorrect answers in visa applications and submitting bogus documents, respectively. The Tribunal noted that the applicant had been issued valid notices of intention to consider cancellation under section 107 of the Act. It then considered the evidence, including three First Information Reports (FIRs) lodged with Pakistani police, and the applicant's subsequent claims and explanations. The Tribunal acknowledged that some documents provided by the applicant were conceded to be bogus, but the applicant maintained that the events described in them had occurred. The Tribunal also considered various factors weighing for and against cancellation, including the applicant's genuine relationship with an Australian citizen partner, the partner's mental health, the applicant's cultural assimilation, his contributions to the community, and potential difficulties in applying for future visas onshore.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's protection visa. While acknowledging factors that weighed against cancellation, such as the applicant's long period of residence in Australia, his cultural integration, and his relationship with his Australian partner, the Tribunal found that the non-compliance with the Act's provisions regarding the provision of correct information and the use of genuine documents was sufficiently established. The Tribunal concluded that, having regard to all the relevant circumstances, the visa cancellation should be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 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. 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. 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 two notices 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. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 which are extracted below:Section 101:A 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.Section 103:A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided. The delegate provided three notices of intention to consider cancellation. The first dated 17 March 2015 (“first NOICC”). A second notice the 2 November 2015 (“second NOICC”) provided additional particulars. A third dated 15 March 2016 (“third NOICC”) replaced the first NOICC as the wrong attachments were included with the first despatched NOICC.The First Information Reports For the purposes of clarity, the applicant has throughout his engagement with the Department submitted three different First Information Reports (FIR), which are the mechanism by which a crime is reported to police in Pakistan. The three FIRs were lodged in three different police stations and as such I refer to them by the name of the police stations, the [Location 1 FIR] dated [May] 2010, Rawalpindi FIR dated [June] 2011 and the [Location 2 FIR] dated [July] 2011. Similarly, for the purposes of clarity, I am providing extracts from these FIRs:[Location 1 FIR]:I had been receiving life threats on daily basis and people, who give the threats, say that they belong to Lashkar-e-Jhangvi. Yesterday on Friday [Date] May 2010, when I was present in the shop, seven persons suddenly intruded in the shop with sticks in their hands and they broke windowpanes of the shop and beat me with clubs and fists besides smashing [products] of worth 4/5 lac rupees. Meanwhile, people from the market gathered and saved my life and shifted me to hospital in injured condition. It is requested that legal action should be taken against the incident and security should be provided to me and my family. [Location 2 FIR]:At various intervals from different phone calls I am receiving messages from Lashkar-e-Jhangvi threatening to kill me and my family member, if I do not stop to preach Shiaism. Yesterday, due to this matter few accomplinces of the terrorists open fire on my son [the applicant] but by the sake of God he will escaped from the scene and save his life.Rawalpindi FIR:Yesterday, [Date] June 2011 at 2 o’clock (noon) I came from my native [village] towards Rawalpindi during that I saw a vehicle chase to us after that they hit our vehicle No. [Number 1] and our vehicle fell down in below the foot path. Due to this I and my children are seriously injured my vehicle are also damaged. When we reached the hospital we receive a call on that call the person who threatening to us ask to me that if you could not change your faith (Sect) we will kill you next time. The Notices of Intention to Consider Cancellation

Decision

Reasons for decision

Regarding the applicant’s mental health, I have considered whether he would be able to obtain mental health support while in Pakistan. I accept that there are limited options to obtain the type of mental health support the applicant has been receiving while in Australia. I asked the applicant whether he could continue to receive counselling by his current psychologist via video calls, which I note he has to date and is the norm for people living in rural and remote areas of Australia[10] as well as through the COVID pandemic.[11][10] Australian Psychological Society, ‘Psychological services via telehealth (videoconference) for people living in rural and remote Australia’, Australian Psychological Society, ‘Psychological services via telehealth,’ >The applicant said that he prefers in person and that his psychologist also prefers in person. But he is not sure how it would work were he to be living in Pakistan. Regarding the applicant’s partner, [Ms A], and her mental health challenges I find that her ongoing struggle with mental health which may worsen with the applicant’s departure will weigh heavily on the applicant. As the applicant is in a genuine relationship, has tried to establish a family, his partner is suffering from mental health challenge, I place considerable weight against cancelling the applicant’s visa.The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the ActSubdivision C of Division 3 covers ss 101 through to 105. These sections require the applicant not to provide incorrect information, complete their passenger cards correctly, not to give bogus documents, to notify the Department of changes of circumstances and to update the Department as soon as practicable that they had provided incorrect information to correct it.Having provided the incorrect information at the primary review stage, namely claiming to have been involved in an incident in his father’s store and submitting a FIR to the police, that he has persisted with this claim at four further review stages is of concern. The applicant provided the same information at the RRT review of the applicant’s visa refusal, to the Department in response to their NOICC and then again to the Tribunal at the review stage of the Department’s cancellation and once again at this Tribunal’s hearing.For this reason I place substantial weight in favour of cancelling the applicant’s visa.Any other instances of non-compliance by the visa holder known to the MinisterThe previous case was remitted on the basis that the differently constituted Tribunal had given weight to other non-compliance contained in the so called, ‘Rawalpindi First Information Report’. The Department remitted the matter on consent for the reason that the previous Tribunal had taken into consideration ‘circumstances [of non-compliance] where the Minister had not previously given the applicant a notice under section 107 of the Act giving particulars of any possible non-compliance in relation to the Rawalpindi FIR.’ Following the precedence of that earlier matter, I give no weight either way to this element.The time that has elapsed since the non-complianceThe applicant was granted his protection visa on 23 August 2013 after having arrived in Australia in 2010. He has spent ten years of his [age] years in Australia and seven and a half years since his non-compliance. I asked the applicant how his understanding of life has changed by living in Australia. The applicant discussed how he valued the opportunity to practice his religion safely. He mentioned that people would ask questions about his faith while in Pakistan. He said that he feels comfortable wearing the clothes that he wants to wear. He said that he feels safe and that he values the diversity. He said that in Pakistan there are a lot of restrictions and conventions on how you behave. He said that he has no problem with his partner working, his own way of communicating in the community has changed and his general view regarding that has changed. He said that he has learned to be more open including how he dresses and does his hairstyle. The applicant’s age and subsequently the time that he has spent in Australia weight heavily in his favour. He has spent much of his adult life in Australia. Unsurprisingly this has had cultural consequences including seeing one’s role in society differently and how society itself should function. He has embraced Australian culture which is substantially different to Pakistani culture. I give this consideration some weight against cancelling the applicant’s visa.Any breaches of the law since the non-compliance and the seriousness of those breachesThere is no evidence before the Tribunal that the applicant has any breaches of the law. As this is a bare minimum expectation I give little weight against cancelling the visa.Any contribution made by the holder to the community.The applicant claims that his studying to become [an Occupation 1] is contributing to the Australian community. He said that he has done 24 weeks of placements. He said that he contributes to charities as well as to the Pakistani community in Australia. This includes helping the Ashura walks held in Melbourne by coordinating participants. He also said that he participates with his mosque in raising funds for people in need.The applicant said that he is paid reasonably well as a supervisor in [an] industry but he chose to pursue [Subject] studies as he wants to help others. He is two subjects away from completing a Bachelor in [Subject] degree. The applicant said that he has received an offer of employment upon the completion of his course. This is relevant as the applicant’s lawyer noted, ‘In recognition of this shortage, the Department has placed [Occupation 1] on the Priority Migration Skilled Occupation list (PMSOL). Of the 18 occupations listed [Number] of those occupations are [Occupation 1] positions. The PMSOL was made on the expert advice from the National Skills Commission and consultation with Commonwealth departments. The intention of the PMSOL is to fill critical skill needs to support Australia’s economic recovery from COVID-19.’Based upon the applicant’s positive contributions to the community including showing an interest in helping others and engaging with the Pakistan diaspora and the applicant’s profession being in demand by the Australian community I give some weight against cancelling the applicant’s visa.Other considerationsWhile these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The applicant will be subject to s.48 of the Act limiting his eligibility to apply for and be granted certain visas onshore. Though, there are certain prescribed visas which the applicant could apply for including an on-shore partner visa. On-shore partner visas (subclass 820) and off-shore partner visas (subclass 309) do not require Public Interest Criteria 4013 to be met (this limits an applicant’s ability to apply for a visa for three years from the date of cancellation). But before the applicant’s pending on-shore partner application could be substantially reviewed he would need to be considered to have compelling reasons to waive the schedule 3002 requirement that the applicant be the holder of a substantive visa for the 12 months preceeding the date of application (r.820.211(2)(d)(i)(B)). These policy obstacles may pose difficulties to the applicant in his efforts to remain with his partner and which in turn will cause the Australian citizen partner hardship. For these reasons I place some weight against cancelling the visa.No consequential cancellations arise under s.140 was the applicant’s visa to be cancelled as such I give this consideration no weight for or against cancellation.There are no children whose interests would be affected by cancellation as such I give this consideration no weight for or against cancellation. I accept that the applicant is liable to be detained under s.189. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non-citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request to be removed. If an unlawful non-citizen does not request to be removed they are liable to be removed under s 198, subject to the provisions of the new subsections 197C(3) and s197D of the Act, which was inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) and came into effect on 25 May 2021. The provisions of the new subsections are relevant with regards to Australia’s international obligations against refoulement. I refer to the reasoning in the 1901883 (published), a case heard by this member and Deputy President Jan Redfern as it relates to the interpretation and implementation of these amendments. In short, removal under s 198 does not necessarily follow from a person becoming an unlawful non-citizen by reason of a cancellation because there is now a procedure contemplated under ss 197C(3) and 197D which provides for a further decision to be made about non-refoulement. As such I give no weight to considerations of the applicant being refouled. 100. As noted above, s 189 leaves the applicant liable to be detained. The applicant has a pending partner visa which is yet to be finally determined. The applicant may remain in detention for an extended period of time until such time the partner visa is finally determined. Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is colloquially known as ‘community detention’. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[12][12] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power101. Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration. None are relevant to the applicant’s circumstances. Among the public interest factors listed as being viewed favourably by the Minister for the grant of a residence determination and relevant to the applicant are family composition, health and well-being and relevantly:where the person has a close relationship with an Australian citizen or permanent resident and not making a Residence Determination would result in irreparable harm and continued hardship to an Australian citizen or permanent resident;any other significant issues concerning the person, including, but not limited to, unique family circumstances or health issues;102. The grant of a residency determination is a probably in the circumstances of this case, but the prospects of such an application are speculative. For this reason, I place some weight against cancellation for the reason that the applicant may remain in indefinite detention.103. As noted above, there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION104. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.ATTACHMENT – 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.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).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.Bazpurs

Ratio Decidendi

Legal Principle Established

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