2009010 (Migration) [2021] AATA 709 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2009010
MEMBER:Michael Hawkins
DATE:15 January 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 15 January 2021 at 9:21am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – alleged fraudulent passport – stateless Faili Kurd – incorrect details of identity – Iranian citizenship – treatment of Kurds – illegal exit – advice of people smugglers – medical conditions – employment – assessment of non-refoulement obligations – decision under review affirmed
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
The applicant seeking review is [age] years of age. The applicant arrived in Australia [in] December 2010 at Christmas Island as an unauthorised Illegal Maritime Arrival claiming to be a stateless Faili Kurd born in Iraqi. At the entry interview on 31 December 2010 the applicant stated that his name was [applicant’s name] and he had departed Iran via Tehran International airport [in] November 2010 using a fraudulent Iranian passport that used his photo and was in the name of “[Alias A]”.
The applicant applied for a Subclass 866 (Protection) visa on 19 March 2012. The applicant was granted a Subclass 866 (Protection) visa on 27 March 2012. He was subsequently granted a Subclass (155) (Five Year Resident Return) visa on 26 September 2019.
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 (the Act).
The delegate cancelled the visa pursuant to s.109 of the Act on the basis that the applicant had provided incorrect information in connection with a previous visa application, that is, his application for protection made on 27 March 2012.
The applicant appeared before the Tribunal on 9 December 2020 to give evidence and present…
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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AGLC
2009010 (Migration) [2021] AATA 709
Case
[2021] AATA 709
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by an applicant against the Tribunal's affirmation of the Minister's decision to cancel his Return (Residence) (Class BB) visa, specifically a Subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations that the applicant had provided incorrect information and potentially a bogus passport in relation to a previous visa application, leading to the cancellation of his current visa. The case was heard by the Tribunal.
The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) as particularised in the notice issued under section 107, and if so, whether the cancellation of his visa was warranted. Specifically, the Tribunal had to determine if the delegate had reached the necessary state of mind to issue the section 107 notice and if the notice itself complied with statutory requirements. The Tribunal also considered whether the applicant's visa had been granted based wholly or partly on incorrect information or a bogus document.
The Tribunal reasoned that the delegate had properly formed the requisite state of mind and issued a compliant notice under section 107, alleging non-compliance with section 101(b) of the Act. The Tribunal found that the applicant's visa would not have been granted had the correct information been known at the time of application. While acknowledging the applicant's representative's submissions regarding the circumstances of the non-compliance, including illiteracy and the influence of people smugglers, the Tribunal was satisfied that the applicant acted of his own free will, believing that providing false information would enhance his chances of obtaining a protection visa. The Tribunal also noted that new claims for protection, not considered by the delegate, were presented but were not relevant to the cancellation decision itself. The Tribunal applied the principle that a decision-maker must be satisfied of the grounds for cancellation based on available material, and that a visa cannot be cancelled simply because the visa holder has failed to show cause why it should not be.
The Tribunal concluded that there was non-compliance as described in the section 107 notice and affirmed the decision to cancel the applicant's visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
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. By virtue of s.107A of the Act, the possible non-compliances that may be specified in a notice under s.107 include non-compliances in respect of any previous visa held by a person.What are the issues before the Tribunal? 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. Has the delegate reached the requisite state of mind to give the applicant the s.107 notice? Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation, subject to the applicant’s response to that notice. It 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?What were the particulars of non-compliance set out in the notice? On 28 November 2019 the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, that is, the NOICC under s.109 of the Act.[In] December 2010 you arrived at Christmas Island as an unauthorised Illegal Maritime Arrival (IMA) claiming to be a stateless Faili Kurd born in Iraq seeking asylum in Australia.You attended an entry interview on 31 December 2010 in which you stated that your name is [applicant’s name] and you described the incidents that led you to decide to leave Iran and travel to Australia. You also stated that you departed Iran via Tehran International airport [in] November 2010 using a fraudulent Iranian passport that used your photo and was in the name of “[Alias A]”.On 26 March 2011 you attended a Protection Obligations Determination (POD) interview regarding your claims for protection. In that interview you again stated that your name is [applicant’s name] and that you departed Iran via Tehran international airport using a fraudulent passport in the name of “[Alias A]” and that included your photo. You provided a Statement of Claims which included the following information:·Your name is [applicant’s name] and that you don’t have any citizenship of any country, you are stateless and do not have a right to citizenship or a right to reside in any other country;·You are a Faili Kurd and Shia Muslim that was born in [City 1] on [DOB 1]. You are not aware of the exact place you were born due to your parents being part of a tribe that moved between Iran and Iraq.·You are married and have [number] children. [Number] of your children reside in Iran and your [son] travelled with you to Australia.·You fear returning to Iran or Iraq as you are stateless in both countries and have no legal rights.·In 1980 you were living in Baghdad with your wife when the Iran Iraq war started. At that time Saddam deported Faili Kurds living in Iraq. One morning you and your wife were forcibly deported by the Iraq authorities and were driven to the Iran border. Once you got to the Iran border you were both taken by Iranian official into Iran.·After three months, you were taken in to a camp in Tehran called [Camp 1]. You were then given a green card and then left the camp to find work. You then continued to live in Tehran for 30 years working illegally as a labourer. You state that you tried to apply for a birth certificate from the Registry Office in Iran but you were told that you are not Iranian and therefore not eligible for a Birth Certificate or Citizenship Certificate.·You were never allowed to buy property or a car. You were also unable to obtain a drivers license or health insurance. Your children were not allowed to attend school and that you had to pay for them to attend evening schools. They were not given any official record of their studies.·Two of your children, [Child A] and [Son A], were married but were not allowed to register their marriage. You state that you do not have basic rights of a citizen and are not treated like human beings.·About nine months ago, you broke your leg while at work. You were taken to a number of hospitals but they all refused to treat you because you were a Faili Kurd who could not provide an identification card or medical insurance. In the end, you were treated at [a named] Hospital and had to pay the sum of five million Tomans for the surgery.·Before this incident, you were hoping that the Iranian laws for Faili Kurds would change and that you would be given basic human rights. However after what you had gone through at the hospitals, you decided to leave Iran.·You found a smuggler who called himself [Mr A]. He organised false passports for your wife, your [son] and for yourself. [Mr A] also organised the travel to Indonesia and the boat to Australia. You and your family arrived in Australia [in] December 2010.·You are stateless and would not be allowed to enter Iran or Iraq. These two countries never gave you citizenship. You lived in Iran for 30 years and was not treated like a human being.·You believe that if you were to return to Iran that authorities would treat you even worse as a result of departing on false passports.On 18 April 2011, based on your claims you were found not to meet the definition of a refugee as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and were therefore found not to be someone whom Australia has protection obligations. Your Protection Obligations Determination was referred to an Independent Protection Assessment (IPA).On 23 January 2012, the Independent Protection Assessment recommended that you be recognised as a person to whom Australia has protection obligations as per the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.On 19 March 2012, you lodged an application for a Protection (Class XA) Subclass 866 visa in the name of [applicant’s name]. In support of the application you provided the application form 866C, Application for a Protection (Class XA) visa.The delegate noted on page 1 of Part C of the application form titled ‘Application for an applicant who wishes to submit their own claims to be a refugee’ under the section entitled ‘Details of applicant’ and the answers provided by the applicant to questions 1, 8, 19, 20, 21, 22, 23, 28, 30, 41, 42, 43, 44, 45, 46, 49, 50, and 53. The delegate further noted that the applicant on page 15 of Part C under the section entitled ‘Your reasons for claiming protection’ indicated that ‘you have signed the following declaration on 21 March 2012 that states in part: ·The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail. ·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
Decision
Reasons for decision
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 27 March 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and his representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 19 March 2012 as having been read. The applicant and representative agreed.Conclusion on non-compliance 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. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1][1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.[3] Briginshaw v Briginshaw (1938) 60 CLR 336[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841. 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][6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32] This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Ratio Decidendi
Legal Principle Established
The prescribed circumstance is not relevant in the present case.Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document. The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations. As has been explained in the delegate’s decision and discussed with the applicant, the Tribunal considers that the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa. The representative, in his submission, has provided new claims or grounds on which the applicant believes he may be entitled to protection, including as to the discrimination the applicant experienced as a Kurd in Iran citing examples of that discrimination, including having to take only the hard jobs that no-one else wanted, the children’s accents being laughed at when they were at school, and more recently, his treatment as a patient following a leg injury. He also detailed an incident wherein their house was raided as his son was a musician and his son’s musical [equipment] was confiscated. His son was also threatened that he would be detained if he continued to make music. His son’s colleagues were also raided a short time later. As these new claims were not before the delegate when making the decision to grant a visa, they could not have been considered by the delegate.The circumstances in which the non-compliance occurred. The representative explained the circumstances by which the applicant came to make the claims he did. The Tribunal has referenced the explanation about the applicant’s illiteracy and the role of people smugglers above. The Tribunal has considered that explanation, but has also considered the evidence provided by the applicant to the Tribunal in the hearing, to the effect that the people smugglers did not threaten the applicant or his family, that they did not feel threatened by the people smugglers but that they felt “uncomfortable” at being moved around by the people smugglers. The Tribunal is satisfied that the applicant acted upon the advice of the people smugglers of his own free will. He formed the view that the advice of the people smugglers to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa.The present circumstances of the applicant. The Tribunal noted the representative’s submission that the applicant was now [age] years of age and suffering several medical conditions. The medical conditions include [specified conditions and treatments]. The representative provided country information about the discrimination people with [disabilities] suffer. The representative provided examples of the discrimination as including disrespect and verbal abuse.