2102390 (Refugee) - [2022] AATA 4547

2102390 (Refugee) [2022] AATA 4547 (4 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Priscilla Jamieson
CASE NUMBER:  2102390
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:4 October 2022
PLACE OF DECISION:  Melbourne
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 04 October 2022 at 6:07pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – ground for cancellation – incorrect information in visa application – Faili Kurd – claimed lack of citizenship status – failure to declare brother in visa application – consideration of discretion – grant of visa not based on incorrect information – mental health issues – time elapsed since the non-compliance – prospect of indefinite detention – degree of hardship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 189, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Khadgi (2010) 190 FCR 248
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 applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
On 9 February 2021, the delegate cancelled the visa on the basis that they concluded 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 that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a [age]-year-old man from Andimeshk, Iran. According to Departmental records he arrived in Australia [in] November 2010 having left Iran at an earlier date (via [Country 1]). He was granted a Protection visa on 16 November 2011 (having applied on 9 November 2011) based on his alleged status as a stateless (‘Showhan (Faili) Kurd’) person who did not have Iranian nationality.
The applicant appeared before the Tribunal on 15 September 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from his treating psychologist, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel…

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 2102390 (Refugee)

Details

AGLC: 2102390 (Refugee) [2022] AATA 4547
Case: [2022] AATA 4547
Decision Date: 4 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Protection visa of an applicant who claimed to be stateless. The dispute arose from concerns that the applicant had provided incorrect information in his visa application, specifically regarding his citizenship status and family composition, which could constitute a failure to comply with section 101(b) of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the provisions of the Act as alleged, and if so, whether the Minister's discretion to cancel the visa should have been exercised. The specific grounds for cancellation identified in the notice of intention to consider cancellation related to the applicant's answers concerning his identity, citizenship, and family, which were considered incorrect by the delegate.

The Tribunal found that while the delegate had valid grounds to consider cancellation under section 109 of the Act, the exercise of discretion to cancel the visa was not appropriate in this instance. The Tribunal considered the applicant's explanation for the discrepancies, including his stateless status and the circumstances surrounding the attempt to obtain identity documents through a contact in Iran. Crucially, the Tribunal took into account the significant time that had elapsed since the alleged non-compliance, the applicant's ongoing mental health issues, and the prospect of indefinite detention if his visa were cancelled. The Tribunal concluded that these factors, particularly the degree of hardship the applicant would face, weighed against cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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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 set aside.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. On the Departmental file is a copy of a notice of intention to consider cancellation (NOICC) dated 4 February 2020 in which the delegate advised the applicant his visa may be cancelled under s 109 because of concerns that he did not comply with s 101(b) of the Act. He was advised to respond in writing. The applicant provided a statutory declaration in response, dated 17 February 2020. 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. Background (including NOICC particulars) 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 in certain respects. Specifically, the notice recounts that on 14 October 2011 an Independent Merits Reviewer (IMR) found the applicant was a person to whom Australia had protection obligations (reviewing an earlier decision by the Department that found he was not a refugee in a Refugee Status Assessment (RSA) dated 4 May 2011). The applicant lodged a Protection visa application (Part B and Part C of Form 866) on 9 November 2011. In that application he answered several questions about his identity, citizenship status, family composition, whether he had served in the military, reasons for leaving Iran and fears upon return there, among other things. He also provided a statement of claims dated 30 January 2011 which detailed his background, past experiences living as a stateless person in Iran, reasons he left Iran, and fears if he were to return there. On the basis of this information, the applicant was granted a Protection visa on 16 November 2011.

Decision

Reasons for decision

Having found the grounds for cancellation existed, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in response to the NOICC (and supporting documents) but stated that, having weighed up all the relevant factors, they were satisfied that the grounds for cancellation outweighed the reasons not to cancel the visa.Review of the cancellation decision In support of the review application the representative provided to the Tribunal a written submission[3], a statutory declaration from the applicant dated 8 September 2022, a Psychological and Neuropsychological assessment report from [Ms A], Clinical Psychologist dated 7 September 2022, and a letter from [Dr L], Consultant Psychiatrist at [named] Mental Health, dated 2 September 2022. [3] Dated 11 September 2022 In his statutory declaration to the Tribunal the applicant confirmed his background, family situation and experiences in Iran as a stateless Kurd, along similar lines to what he had told the Department at the Protection visa application stage, with the exception of his brother. He states he is not an Iranian citizen, but stateless. To explain why an individual called [Mr B] told officers at the Iranian Post that the applicant was his son (and an Iranian citizen, who held a shenasnameh and had undertaken compulsory military service), the representative said in her submission that the applicant instructs as follows. He tried to obtain ID documents through a contact in Iran, and that contact used the particular information he had provided in order to obtain ID documents to claim he was the applicant’s father, and the applicant was an Iranian citizen. The representative argues that the applicant has provided a credible explanation for the person claiming to be his father having had access to some of his personal information and for his transfers of money to him. At hearing the applicant was adamant that although born in Iran he was stateless and he never obtained Iranian citizenship, nor did his parents (who were born in Iraq but expelled to Iran under Saddam Hussein’s regime), his sister [Ms G], or his brother, [Mr C]. In Iran he had a Green Card for some time, and when he started working as a [Occupation 1], he obtained a fake Iranian drivers’ license, both of which were confiscated by traffic police at a checkpoint around a year (or less) before he left Iran in 2010. He departed Iran holding an Iranian passport that was in his name and DOB, but he is unsure if it was genuine as he paid a smuggler money to obtain it. He said he has never undertaken military training in Iran (or elsewhere). The applicant said around the time he applied for Australian citizenship he was asked by the Department to provide identity documents. He then spoke to a contact in Australia who put him in touch with a man in Iran to help obtain them: that is, fake Iranian identity documents, as he was (and is) stateless (he could not remember either persons’ name). The applicant said he spoke to the contact in Iran a few times who agreed to provide him with a shenasnameh for around AUD11,000. The applicant paid him half that amount, then at a later stage transferred some more money, but was never provided any documents and thereafter was unable to contact him despite repeated attempts (or the person who put him in touch with him in the first place, who he believes left Australia shortly thereafter).

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.MemberNicole BurnsATTACHMENT – 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.