DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Statement made on 20 June 2023 at 9:28am
CATCHWORDS REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – Federal Court remittal – incorrect answers given in visa application – undocumented stateless Faili Kurd – political, economic and social discrimination – documentation provided to department by relative shows Faili Kurdish Iranian citizenship – discretion to cancel visa – claim maintained for extended time and in different forums before non-compliance conceded – advised by other boat passengers to claim statelessness – documents held by relative for safekeeping provided to department after family dispute – departed lawfully on valid passport – length of residence, work, family, community activities and health – country information – member of family unit – consequential cancellation of son’s visa with no jurisdiction to review – son’s wife and child Australian citizens – possibility of prolonged immigration detention – combined hearing with wife’s separate review – decision under review set aside
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 Immigration and Border Protection to cancel the first named applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicants had provided incorrect information to the Department about their citizenship in their protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the [first named applicant] (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
Background
The [first named applicant] (the applicant) arrived in Australia [in] April 2010 as an unlawful maritime arrival with his wife [Ms A] and with their son, 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.
Continue reading 2105543 (Refugee)
Sign in free to access the full text
Details
AGLC
2105543 (Refugee) [2023] AATA 2581
Case
[2023] AATA 2581
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered a decision to cancel the protection visa of the first named applicant, who arrived in Australia in April 2010. The cancellation was based on alleged non-compliance with section 101(b) of the Migration Act 1958, specifically concerning incorrect answers provided in his visa application regarding his place of birth, citizenship, and fears for his safety if returned to Iraq or Iran. The applicant's son's visa was automatically cancelled as a consequence, and the Tribunal had no jurisdiction to review that cancellation.
The primary legal issue before the Tribunal was whether the applicant had failed to provide correct answers in his visa application, as particularised in the notice of intention to cancel his visa. This involved determining if the applicant's statements about being born in Baghdad, being stateless, and fearing harm from specific groups in Iraq and Iran constituted incorrect answers, thereby engaging the Minister's power to cancel his visa under section 109 of the Act. The Tribunal also had to consider whether, even if non-compliance was established, the visa should be cancelled, having regard to all relevant circumstances.
The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice issued complied with statutory requirements, the exercise of discretion under section 109 weighed against cancellation. The Tribunal placed significant weight on the applicant's 13-year residence in Australia, his established community ties, including to his local Kurdish community and extended family, and his active role in his grandchild's life. Furthermore, the Tribunal considered the prolonged immigration detention the applicant would face if the visa remained cancelled and the impact on his mental health and family unit. These factors, when weighed collectively, led the Tribunal to conclude that the applicant's visa should not be cancelled.
Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant's Subclass 866 (Protection) visa. The Tribunal reiterated that it had no jurisdiction with respect to the second applicant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the [first named applicant] (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.Background The [first named applicant] (the applicant) arrived in Australia [in] April 2010 as an unlawful maritime arrival with his wife [Ms A] and with their son, the second named applicant. The applicant applied for a protection visa on 17 June 2010. On 26 July 2010, a refugee status assessor found that the applicant was owed protection as an undocumented stateless Faili Kurd. On 7 October 2016, a delegate of the Department issued a notice of intention to consider cancellation of the applicant’s protection visa, based on documents that had been provided to the Department. On 21 December 2016, a delegate of the Department cancelled the visa. The applicants applied to the Administrative Appeals Tribunal for a review of that decision. On 20 June 2017, the Tribunal (differently constituted) affirmed the decision to cancel the applicant’s visa and found that it had no jurisdiction with respect to the second named applicant. [In] June 2020, the Federal Circuit Court dismissed an appeal by the applicants. [In] March 2021, the Federal Court remitted the matter to the Tribunal on the basis that the applicants had not been given sufficient particulars of documents before the Tribunal to provide a meaningful response as required by ss 424A and 425. The applicants appeared before the Tribunal on 5 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant’s hearing was combined with that of his wife. A resumed hearing was held before the Tribunal on 9 June 2023 and the Tribunal hearing was again conducted with the assistance of an interpreter in the Persian and English languages. The Tribunal also received oral evidence from a number of witnesses whose evidence is discussed further below. The applicants were 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.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.
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. 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the written protection application dated 17 June 2010 and the accompanying statement provided by the applicant, in the following respects: ·In response to question 6 of the application about his place of birth, the applicant stated that he was born in Baghdad, Iraq.·In response to question 19 of the application about his citizenship at birth, the applicant stated that he was stateless.·In response to question 20 of the application about his current citizenship, the applicant stated that he was stateless.·In response to question 21 of the application about whether he holds citizenship or is a national of any other country, the applicant stated no.·In response to question 41 of the application about what countries he was seeking protection from, the applicant stated Iraq and Iran. ·In response to question 42 of the application about why he had left his country, the applicant referred to his statement. In the statement, the applicant claimed to be a disenfranchised and stateless person who was being harassed by government agents and subject to discrimination.·In response to question 43 of the application about what he feared if he returns, the applicant referred to his statement. In the statement, the applicant claimed that he cannot return to Iraq as he has no documents and no identity, and his family never did and that is why they were expelled. The applicant claimed that he has no protection in Iraq and no family and no links, and that he cannot go back to Iran as he fears for his life from the Basij and Pasdar. ·In response to question 44 of the application about who he fears will harm or mistreat him if he goes back, the applicant referred to his statement. In the statement, the applicant stated he fears harm from the Basij and Pasdar. ·In response to question 45 of the application about why he thinks this will happen to him if he returns, the applicant referred to his statement. In the statement, the applicant stated that the Basij and Pasdar will kill him because he is a Kurdish Faili.·In response to question 46 of the applicant about whether he thinks the authorities can and will protect him, the applicant referred to his statement. In the statement, the applicant stated that the authorities do not and will not and cannot protect them; if they could, they would have done so already.
Decision
Reasons for decision
However, in weighing all of the relevant factors, the Tribunal places significant weight on the 13 year period the applicant has been residing in Australia and the ties he has created with his local community in this time. These ties include links to the local Kurdish community, to immediate and extended family and in particular to a grandchild whom the applicant sees several times a week and plays an active and important role in the child’s life. The Tribunal also places significant weight on the prolonged immigration detention the applicant would face if the visa remains cancelled and the impact on his mental health and on his family unit. The Tribunal finds that these factors weigh overall against cancellation. For this reason, the Tribunal has decided that, having regard to all of the relevant circumstances as set out above, the applicant’s visa should not be cancelled. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa. The Tribunal has no jurisdiction with respect to the other applicant.Tamara Hamilton-NoyMemberATTACHMENT – 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 has no jurisdiction with respect to the other applicant.Tamara Hamilton-NoyMemberATTACHMENT – 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.