2104797 (Migration)

Case [2021] AATA 2024

2104797 (Migration) [2021] AATA 2024 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104797

MEMBER:Frances Simmons

DATE:18 May 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 18 May 2021 at 7:45am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – two previous applications not declared – different names, dates of birth and family members in each application – current visa granted in alias name after department ascertained incorrect information and cancelled protection visa – applications for review of both cancellations hear and decided together – discretion to cancel visa – ethnicity and religion – Hazara Shia –credible evidence establishing identity – born to refugees in third country and never lived in parents’ country – family’s status as refugees in third country and applicant’s loss of refugee status on departing – country information – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 29, 36, 67, 68, 82, 101, 107, 109, 360
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 155.211; Schedule 4, PIC 4021

CASES
Asenso v MIBP [2016] FCCA 756
BLF20 v Minister for Immigration [2020] FCCA 878
Dy v MIMA [2006] FCA 676
Ibrahim v MHA [2019] FCAFC 89
Jalal v MIMA (2000) 60 ALD 779
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Jalal (2000) 102 FCR 63
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
SZEEM v Minister for Immigration [2005] FMCA 27
SZFDE v MIAC [2007] HCA 35

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

  1. 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).

  2. The delegate cancelled the visa under s.109 of the Act, on the basis that the applicant had provided incorrect information in his resident return visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

  3. 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

    Background

  4. The applicant arrived at Christmas Island by boat [in] May 2012 and identified himself as [Alias 1] (DOB: [Date 1]). He lodged a protection visa application on 22 July 2012 in which he sought protection as an Afghan national of Hazara ethnicity and Shia religion born on [Date…

Continue reading 2104797 (Migration)

Sign in free to access the full text

Details
AGLC
2104797 (Migration) [2021] AATA 2024
Case
[2021] AATA 2024
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, who had previously been granted a Protection (Subclass 866) visa. The dispute arose after the Department of Home Affairs ascertained that the applicant had provided incorrect information regarding his identity, including his name, date of birth, and previous visa applications, when seeking protection. This led to the cancellation of his protection visa and subsequently, his resident return visa.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirement to provide correct information under section 101 of the Migration Act 1958 (Cth) in relation to his resident return visa application, and if so, whether the discretionary power to cancel that visa under section 109 of the Act should be exercised. The Tribunal was required to consider the prescribed circumstances under regulation 2.41 of the Migration Regulations 1994, as well as other relevant factors, in determining whether to uphold the cancellation.

The Tribunal reasoned that while the applicant had indeed provided incorrect information, which constituted non-compliance with section 101, the subsequent correction of this information in response to a notice of intention to cancel his protection visa was a relevant factor in exercising the discretion under section 109. The Tribunal considered the prescribed circumstances, including the applicant's ethnicity and religion as Hazara Shia, the credible evidence establishing his identity, and the fact that he was born to refugees in a third country and had lost his refugee status upon departing. The Tribunal found that the applicant's subsequent behaviour and the circumstances surrounding his initial claims were such that the decision to cancel his resident return visa should be set aside.

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 EVIDENCEBackground The applicant arrived at Christmas Island by boat [in] May 2012 and identified himself as [Alias 1] (DOB: [Date 1]). He lodged a protection visa application on 22 July 2012 in which he sought protection as an Afghan national of Hazara ethnicity and Shia religion born on [Date 1]. He was granted a Protection (Subclass 866) visa on 11 September 2012. On 31 May 2013 the applicant lodged a Global Special Humanitarian (GSH) visa application to sponsor his claimed mother, [Ms A] (DOB: [Date 2]), and his three sisters. This application was refused. On 19 January 2019 the applicant lodged a Resident Return (Subclass 155) visa application. On 25 June 2019, the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of his protection visa granted on 11 September 2012 (the ‘protection visa NOICC’). The NOICC informed the applicant that a forensic facial image comparison report undertaken on 18 June 2019 found that an image of [Alias 1], born on [Date 1], represented the same person as [Alias 2], born on [Date 3], and [the applicant], born on [Date 4]. [The applicant] (DOB: [Date 4]) was included as a dependent on a Global Special Humanitarian (GSH) (Subclass 202) visa application lodged in 2004 and [Alias 2] (DOB: [Date 3]) had previously applied for an orphan relative visa lodged in 2010. In response to the NOICC, the applicant conceded that he had provided incorrect information to the Department. He declared that the correct information is that he is [the applicant], a [Age]-year-old national of Afghanistan of Hazara ethnicity and Shia religion. He claimed that his parents fled Afghanistan before he was born. The applicant declared that he was born in Iran in [Year 4] and resided there as a refugee until he travelled to Australia and sought asylum. He conceded that he made two prior applications for visas in Australia in 2004 (offshore GSH visa) and 2010 (orphan relative visa) that were rejected. On 22 October 2019 the delegate cancelled the applicant’s protection visa. The delegate found the applicant had provided incorrect information in his visa application about his name, age, family composition, previous visa applications and relatives in Australia. The delegate did not doubt that the applicant was a Hazara Afghan and a Shia Muslim but considered that the decision to grant him a protection visa was based ‘at least partly’ on the incorrect information he provided about his immigration history, age, family composition and residential history. On 6 January 2021 the Department granted the applicant a five year resident return visa in the name of [Alias 1]. On 15 April 2021, the delegate cancelled the resident return visa on the basis that the applicant did not comply with s.101(b) of the Act and determined, having considered the prescribed circumstances under reg.2.41 of the Migration Regulations 1994 (the Regulations), that the visa should be cancelled.

Decision

Reasons for decision

The Tribunal accepts that before the applicant was granted a resident return visa the applicant advised the Department, in the context of responding to the NOICC his protection visa, that the information he had given to the Australian authorities about his identity was incorrect. The applicant’s failure to comply with the requirement to give correct information (s.101) at the time he applied for a resident return visa is not altered by the subsequent correction of the incorrect information in response to NOICC to cancel his protection visa.[8] However, the fact that the applicant subsequently corrected the error is relevant to the consideration of the discretion as to whether the cancellation power should be exercised: see s.109(1)(c) and reg.2.41(f).Conclusion on non-compliance[8] Jalal v MIMA (2000) 60 ALD 779 at [17]. The view expressed by Finkelstein J was not disturbed on appeal MIMA v Jalal (2000) 102 FCR 63 at [19]. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg.2.41 of the Regulations. Briefly, they are: · the correct information· the content of the genuine document (if any)· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document· the circumstances in which the non-compliance occurred· the present circumstances of the visa holder· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act· any other instances of non-compliance by the visa holder known to the Minister· the time that has elapsed since the non-compliance· any breaches of the law since the non-compliance and the seriousness of those breaches· any contribution made by the holder to the community. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The correct information

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.