2102430 (Refugee) - [2022] AATA 2458

2102430 (Refugee) [2022] AATA 2458 (6 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Besmellah Rezaee
CASE NUMBER: 2102430

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Kate Millar
DATE:6 June 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 June 2022 at 3:34pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – identity details – Pakistan citizenship – race – Hazara – non-refoulement obligations – visa would still have been granted – best interests of the Australian citizen children – substantial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 48 97-105, 107-109, 140, 189, 195-198
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, Schedule 2; Schedule 2, cl 050.212; r 2.41
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
Commonwealth v AJL20 [2021] HCA 21
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] came to Australia as an illegal maritime arrival and sought protection, claiming to be an Afghan national of Hazara ethnicity. On 11 May 2011, he was granted a protection visa.
After [the applicant] applied for citizenship on 25 May 2015, the Department of Immigration and Border Protection conducted enquiries into his identity using documents [the applicant] had provided, and other checks. The Department found that a school certificate provided by [the applicant] was for a person named [Alias A] and that [the applicant’s] sister, [Sister A], had entered Australia and declared she is a citizen of Pakistan, and provided Pakistani identification documents including a birth certificate, identity card and passport.
As a result, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found [the applicant] had provided incorrect answers in his protection visa application and cancelled his protection visa.
This is a review of the decision to cancel [the applicant’s] protection visa. In issue is whether the correct process to cancel his visa has been followed, whether a ground to cancel his visa specified in the Migration Act 1958 (Cth) (the Act) exists, and if it does exist whether his visa should be cancelled.
[The applicant] appeared before the Tribunal on 19 April 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from his wife [named] and father-in-law [Father-in-law A]. The Tribunal also heard from a friend [Friend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the…

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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Details

Case: [2022] AATA 2458
Decision Date: 6 June 2022

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to cancel the applicant's Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth). The cancellation was based on the applicant's alleged failure to comply with s 101 of the Act, specifically by providing incorrect information in his visa application regarding his name, citizenship, and right to reside in other countries. The applicant claimed to be an Afghan citizen of Hazara ethnicity, seeking protection due to persecution fears in Afghanistan and Pakistan.

The Tribunal was required to determine whether the delegate followed the correct process for visa cancellation and, if so, whether the applicant had indeed provided incorrect information in his visa application as particularised in the s 107 notice. The specific allegations of non-compliance related to the applicant not disclosing an alias, stating his family members were Afghan citizens when information suggested they were Pakistani citizens, and answering questions about his current citizenship and right to reside in other countries in a manner considered incorrect by the delegate.

The Tribunal found that the delegate had the necessary state of mind to issue the s 107 notice and that the notice itself complied with statutory requirements. However, upon considering the applicant's visa application and supporting documents, including his statement that he had only ever possessed a false Pakistani passport given by a smuggler and that his family still lived in Quetta, Pakistan, where they did not have a legal right to reside, the Tribunal concluded that the information provided was not incorrect. The Tribunal noted that s 100 of the Act states an answer is incorrect even if the person did not know it was incorrect, but in this instance, the applicant's statements about his circumstances and fears were consistent with his claims for protection.

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

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 set aside.CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Act. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101 of the Act. Section 101(b) states a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.Was the correct process to cancel [the applicant’s] visa followed? To exercise the cancellation power under s 109 of the Act, the delegate must first have the required state of mind to issue the notice, and then must issue a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. In this case, the delegate had the necessary state of mind to engage s 107 as the delegate had information that [the applicant’s] sister is a citizen of Pakistan. The Tribunal is satisfied that the s 107 notice issued to [the applicant] provided particulars of the non‑compliance and otherwise 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 s 101 of the Act, in summary because he did not declare that he was also known as ‘[Alias A]’ and because the delegate considered he and his family members were citizens of Pakistan. The notice particularised that [the applicant] had given incorrect information in his protection visa application in the following respects: In relation to his name· At question 4 of his application, he was asked what other names he had been known by, and he did not provide an answer. This was considered incorrect as he was also known as ‘[Alias A]’. In relation to his citizenship or nationality· At question 9, where [the applicant] provided details of his family members, he stated his parents, [and specified family members] were all Afghan citizens. This was considered incorrect because information before the Department indicated that [the applicant] and his family members are citizens of Pakistan. · At question 20, he was asked his current citizenship, if different from birth, and he did not provide an answer. The delegate considered this was incorrect as there was information that he was a Pakistani citizen. · At question 21 he was asked whether he held any other citizenship or was a national of any other country. [The applicant] answered ‘no’ which the delegate considered incorrect as there was information that he is a Pakistani citizen, including at the time of the grant of his protection visa.· At question 22 he answered ‘no’ to the question of whether he has the right to enter and reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or former country(s) of habitual residence. He answered no which was considered incorrect as there was information that he is a citizen of Pakistan and has the ability to enter and reside in Pakistan.· At question 41 he claimed he was seeking protection in Australia, so he does not have to go back to Afghanistan / Pakistan. In answer to questions about why he left, what he fears if he returns and why he thinks this will occur, he referred to his request for refugee status assessment. The delegate provides a quote from this request:1. I am a citizen of Afghanistan by descent. I am a Hazara and a Shia. I do not have a right to citizenship or a right to reside in any other country.2. I have never had a passport or any identification of any kind except for a false Pakistani passport given to me by the smuggler to use during my journey to Australia. I arrived at Christmas Island [in] October, 2010.3. I am [age] years old and I was born in Daikondi. I do not have any family left there or anywhere else in Afghanistan. My family fled Afghanistan when I was [age] years old (2000). My brother [named] who was [age] years old at the time was lost along the way to Pakistan. We do not know what happened to him but he may have been taken by Taliban.5. We moved to Pakistan in 2000 and have remained there ever since. My family still live in Quetta. We do not have a legal right to live in Pakistan. I have not been back to Afghanistan since I left there when I was [an age] year old.6. I am at risk of persecution in Afghanistan and Pakistan.The delegate considered the answers to questions 42, 43 and 44 were incorrect as he is a Pakistani citizen including at the time of the grant of his protection visa in May 2011, and he has the right to enter and reside in Pakistan.· In his Form 80 he was asked his current citizenship and he answered ‘Afghanistan’. He answered ‘no’ to a question about whether he is a dual citizen or held any other citizenship. This was considered incorrect by the delegate because he was a citizen of Pakistan.

Decision

Reasons for decision

Having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Kate MillarSenior MemberATTACHMENT – 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.

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.Kate MillarSenior MemberATTACHMENT – 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.