2104055 (Migration) - [2021] AATA 5015

2104055 (Migration) [2021] AATA 5015 (6 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2104055
MEMBER:Kira Raif
DATE:6 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 06 September 2021 at 11:36am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in protection visa application – nationality – uncle’s Pakistani identity documents – genuine Afghan tazkera – insufficient probative evidence to make a positive finding – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235
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

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 applicant claims to be a national of Afghanistan born in [year]. He was granted the Protection visa in August 2011 and the Resident Return visa (RRV) in August 2016. The applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) in May 2020 and provided his response. The visa was cancelled in March 2021 and the applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 6 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of…

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

AGLC: 2104055 (Migration) [2021] AATA 5015
Case: [2021] AATA 5015
Decision Date: 6 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant challenged the decision to cancel their visa, which had been based on allegations of providing incorrect information in a previous protection visa application, specifically regarding their nationality and the authenticity of their uncle's Pakistani identity documents compared to their own genuine Afghan tazkera.

The primary legal issue before the Tribunal was whether there was sufficient evidence to establish that the applicant had provided incorrect information, thereby triggering the grounds for visa cancellation under section 107 of the Migration Act 1958 (Cth). The Tribunal was required to determine if the evidence presented regarding the applicant's nationality and the purported discrepancy in identity documents met the threshold for a positive finding of non-compliance.

The Tribunal reasoned that the evidence presented, particularly concerning the applicant's uncle's Pakistani identity documents and the applicant's own Afghan tazkera, did not provide sufficient probative value to make a positive finding that the applicant had provided incorrect information. Consequently, the Tribunal concluded that the condition precedent for the exercise of the discretionary power to cancel the visa under section 107 of the Act had not been met.

Accordingly, the Tribunal set aside the decision under review and substituted a new decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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