2101532 (Refugee) - [2022] AATA 576

2101532 (Refugee) [2022] AATA 576 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2101532
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Melissa McAdam
DATE:1 February 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 866 (Protection) visa.

Statement made on 01 February 2022 at 3:11pm
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – Federal Circuit Court remittal – incorrect answers given in visa application – citizenship – stateless or Iranian citizen – born in Iraq and living in Iran from a young age after father killed – mother’s remarriage to Iranian citizen – applicant’s Iranian driver’s licence includes father’s name and national identity card number – accuracy of translation relied on by department – licence obtained by third party while applicant in Australia to expedite gaining Australian licence – real state of satisfaction required that ground of cancellation exists – Iranian licence includes photo taken later in Australia – adverse claims made by separated wife in Family Court proceedings and anonymous allegations made to department – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A(1), 101(b), 109(1)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mian v MILGEA (1992) 28 ALD 165
Singh v MIEA (FCA, 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 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

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 applicant was represented in relation to the review by his registered migration agent.
The delegate cancelled the visa on the basis that the applicant had not complied with 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 matter was previously before the Tribunal, differently constituted.[1] The Member in that proceedings affirmed the delegate’s decision. The applicant successfully appealed the Tribunal’s decision in the Federal Circuit Court. The Court issued a writ of certiorari quashing the decision and a writ of mandamus directing the Tribunal to determine the application according to law. It was conceded that the decision was affected by jurisdictional error because the Tribunal, in exercising its discretion under s 109 of the Migration Act 1958, made an illogical or unreasonable finding concerning a 2007 Driver’s Licence, namely that it failed to determine whether the 2007 Licence was genuine or not, in order for it to find that the applicant…

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 2101532 (Refugee)

Details

AGLC: 2101532 (Refugee) [2022] AATA 576
Case: [2022] AATA 576
Decision Date: 1 February 2022

CaseChat Overview and Summary

The applicant sought judicial review of a decision to cancel his Subclass 866 (Protection) visa. The dispute centred on whether the applicant had provided incorrect information in his visa application, specifically concerning his citizenship status and the authenticity of certain documents. The matter was before the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the delegate erred in finding that the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers in his visa application. This involved determining the applicant's true citizenship status, the veracity of documents presented, and whether any inaccuracies were material to the grant of his protection visa.

The court considered evidence including a statutory declaration from the applicant asserting his statelessness and explaining the difficulties in obtaining documentation from Iran due to his mother's husband's fear of the Iranian government. The applicant also contested the authenticity of an Iranian driver's licence and a birth certificate, suggesting they were fabricated by his ex-wife. The delegate, however, placed significant weight on the Iranian driver's licence, which contained the applicant's photograph, an Iranian identity card number, and his father's name. The delegate reasoned that the presence of this information indicated the applicant and his father were known to Iranian authorities as Iranian nationals, refuting the claim of statelessness and raising concerns about the credibility of the applicant's protection visa claims. The delegate concluded that the seriousness of the non-compliance and the importance of maintaining the integrity of Australia's migration program outweighed the best interests of the applicant's child, leading to the decision to cancel the visa.

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

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 10 January 2022 the applicant provided the following written materials to the Tribunal:-A Statutory Declaration in which he states the following:I confirm that I am stateless person. After the Tribunal hearing, I have tried every possible effort to convince my mother to send her Iranian birth certificate without success, as her husband is fearful that the Iranian government will track them down because of me, my mother's husband threatened my mother with violence if he is to send me any document from Iran even via telephone or social media, my mother's husband believes that because of my past political perception in Iran and the incidents which led me to flee Iran then it will become obvious that any person who will correspond with me is at risk of being persecuted for the same reason, the tribunal may consider that this reaction from my mother's husband is unreasonable, however, that is exactly what happened to me when I asked my mother to provide me with her birth certificate, people in Iran are so fearful from the Iranian government, especially those who were born in another country like Iraq.I was advised by my mother that she was subjected to family violence in Iran since her new marriage, therefor , after the overthrow of Saddam Hussein's regime, she travelled to Iraq with the intention of acquiring Iraqi citizenship for her and me as she was planning to escape from Iran to Iraq due to the Domestic Family Violence, upon arrival to Iraq, she was provided with an information card, after that her application for Iraqi citizenship was refused because the new Iraqi government couldn't find a registry file for her or for my deceased father as the previous regime has destroyed their registry file on purpose, after that she returned to Iran and she lived with her husband as it is the case for a lot of women in Iran who lives under constant domestic family violence until now. Attached is translation and copy of the information card which was issued by the Iraqi government to my mother in 2004. Attached also are translations of my aunt's [Ms I] and [Ms J] Iraqi national ID cards, recently, I was advised by my mother that both of my two aunts are Iraqi citizen and that they did not have an Iran citizenship at all, my mother also told me that she was unable to acquire Iraqi citizenship because the Saddam government intentionally destroyed their file in Iraq after my father's participation in the uprising against Saddam Hussein in 1990, so, our family records in Iraq was intentionally destroyed for political reasons by the Saddam's Government, my mother did not try again to apply for Iraqi citizenship because it was a lengthy and very complicated process, for my mother such an application is futile for the reasons mentioned above. The reason why I refer to my aunt's Iraqi citizenship and my mother's attempts to acquire Iraqi Citizenship is to illustrate that I am still stateless person, and that I don't have an Iranian citizenship. In relation to the documents that the tribunal referred to which refer to my mother birth certificate, her husband's ID card and a drivers licence etc, I wish to comment with the following:In relation to the alleged message to "[G]", I confirm that this is completely fake message as I don't know anyone with the name of [G], my ex-wife used to use my phone even during the problems between us, my ex-wife might fabricated this message in order to remove me from Australia. In relation to the drivers licence, I confirm that this is not my drivers licence as it was issued on [Date 3] while I was in Australia and I never travelled to Iran, also the photo on this licence is not my photo at all, the tribunal can make facial comparison between my face and the image on the drivers licence, I am ready to sign on any undertaking so the Tribunal can compare the photo on this licence with my photo through a formal facial analysis process, again I confirm that this drivers licence is not mine at all. In relation to the alleged birth certificate of my mother I stated before how that birth certificate issued from Karbala while Karbala is in Iraq , I referred to the discrepancy in that regard as the shensnameh an Iranian document and not an Iraqi document, also the serial number on the alleged birth certificate which is [Number 3] is different from [Number 4] which is existed in the following page, this is by itself proves that this document is a counterfeit, I have no idea about how the birth certificate is working but what I stated above prove that there is substantial inconsistencies in this document. I have no comments on my mother's ID card and his Iranian passport, however, both documents doesn't prove that I have an Iranian citizenship at all, all what I knew from my mother is that her husband's initial name was "[Mr WY]'' as a compound name , and that he later changed it to "[Y] " only because his name was too long, that is why I know him with the name of [W] only. I call the tribunal not to rely on my ex-wife presented documents as they were incorrect and fraudulent and as I stated during the tribunal hearing that my wife did not present any document to prove that I am an Iranian citizen although she lived with me and we have a child together and that she fabricated some documents in order to harm my case before the family court and in order to deport me from Australia the question that I put to the tribunal is that if I am an Iranian citizen then how come my wife did not present any Iranian document that is related to me and how come she resorted to fabricating documents that is not related to me personally although she lived me and we have a child together. -An Iraqi photo ID with English translation, belonging to ‘[Ms K]’, issued [in] March 2004, and stating that the holder of the card is one of the citizens who returned to the homeland and she was provided with the document for six months for the purpose of official review.-An Iraqi National ID Card with English translation, belonging to ‘[Ms L]’ with place of birth ‘Kerbala’ issued [in] July 2017.-An biodata page extract from an Iraqi passport belonging to ‘[Ms L]’ with place of birth ‘Kerbala’ issued [in] December 2019.-An Iraqi Personal ID Card with English translation, belonging to ‘[Ms M]’ with place of birth ‘Kerbala’ issued [in] April 1988.-Conditional pre-approval for a housing loan to the applicant and his fiancée from the [Bank].-Australian Tax Statements regarding the applicant’s [business].-A letter from the director of a Disability Support agency stating that the applicant had provided work experience at his [business] to one of the agency’s disability workers.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

The author of the letter also provided copies of documents stated to be official Iranian documents in the names of the applicant, his mother and his father or step-father. Delegate’s decision The delegate found that the applicant had not complied with s.101(b) of the Act. The delegate reasoned that:The visa holder stated in response to the notice that the driver's licence was obtained on his behalf while he is in Australia and that he used his connections in Iran to obtain this with his correct information and Iranian migration status “Exiled from Iraq”. Further, the visa holder stated that driver's licences can be obtained by paying under the table in lran. Whilst the method of obtaining his Iranian driver's licence is plausible, I note that Iran is also a highly regulated country in relation to the issue of documents. Given that the visa holder confirmed in response to the notice that his driver's licence contained his correct information, I consider that the Iranian ID card number also included on his driver's licence is the correct information and indicates that the visa holder is an Iranian national.I consider the fact that the visa holder had an Iranian driver’s licence issued in 2007 to be a significant matter in this case especially given that the visa holder stated at time of Protection visa application that “...We were given a Green Card. This gave us almost no rights.... I could not get driver's licence...” Furthermore, it would appear that the visa holder held official Iranian documents to secure an Iranian drivers licence which refutes his claims of statelessness.Additionally, it was put to the visa holder that his father’s name, [Mr XY] was listed on his Iranian driver's licence. The visa holder has not provided comment regarding this in response to the notice. I find this to be significant in this case especially given that the visa holder claimed at time of protection that his father died in Iraq when he was [Age 1]years old, prior to the visa holder and his mother fleeing to Iran. The visa holder also claimed that his father was stateless and never obtained citizenship of any country.Given that the visa holder’s Iranian ID card number and his father’s name appears on his driver’s license demonstrates that this information would have been derived from either of the two official Iranian identity documents; the shenasnameh or the National Identification Card. Therefore this indicates that the visa holder and his father are both known to the Iranian authorities as Iranian nationals.This further supports the fact that the visa holder was not stateless at time of Protection visa; and raises serious concern regarding the overall credibility of his claims on his Protection visa application. The delegate considered the prescribed matters set out in regulation 2.41 of the Migration Regulation 1994 and found that whilst primary consideration must be the best interest of the visa holder’s child this must be weighed against the seriousness of the non-compliance of the visa holder and the importance of maintaining the high integrity of Australia’s migration programme. The delegate found that the reasons for cancellation outweigh the reasons not to cancel in these circumstances. The delegate considered that had the [former] delegate been aware of the visa holder’s true identity at the time of his Protection visa application, it would have been unlikely that the visa holder would have been granted a Protection visa, as the incorrect information provided was material to the grant. The delegate therefore decided to cancel the applicant’s visaInformation to the TribunalWritten Submissions

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) 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.