2112150 (Refugee) - [2023] AATA 2473

2112150 (Refugee) [2023] AATA 2473 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Andrea Main (MARN: 5510144)
CASE NUMBER:  2112150
COUNTRY OF REFERENCE:                   Iran
MEMBER:Brendan Darcy
DATE: 6 April 2023
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 06 April 2023 at 11:50am
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – ground for cancellation – incorrect information in visa application – nationality – claimed statelessness – Iranian citizenship – consideration of discretion – grant of visa based on incorrect information – knowing and deliberate – 2008/09 green movement protest – Faili Kurd – genuine personally held fear – time elapsed since the non-compliance – indefinite detention in Australia – Memorandum of Understanding on Consular Matters (MOU) – non-refoulement considerations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
DFO19 v MICMSMA [2023] FCAFC 38
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 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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in breach of s 109 and that delegate found the grounds for the cancellation outweighed other matters. 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 appeared before the Tribunal on 6 March 2023 to give evidence and present arguments. A resumed hearing was conducted on 24 March 2023. Both of the scheduled hearings were conducted with the assistance of interpreters in the Farsi 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.
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…

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 2112150 (Refugee)

Details

AGLC: 2112150 (Refugee) [2023] AATA 2473
Case: [2023] AATA 2473
Decision Date: 6 April 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Protection (subclass 866) visa. The applicant, who arrived in Australia as an illegal maritime arrival in October 2010, had been granted a protection visa in April 2012. The cancellation power was exercised on the grounds that the visa had been granted based wholly on incorrect information, specifically the applicant's claim of statelessness in Iran, when he was in fact an Iranian citizen.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his visa application, thereby engaging section 101(b) of the Migration Act 1958 (Cth). A further issue was whether the Minister's delegate had properly considered the circumstances surrounding the non-compliance and exercised the discretion to cancel the visa appropriately. The Tribunal was required to determine if the applicant's claim of statelessness was indeed incorrect and, if so, to assess the weight to be given to the reasons provided by the applicant for this non-compliance, as well as other relevant factors such as the time elapsed since the non-compliance and the impact of indefinite detention.

The Tribunal found that the applicant had indeed provided incorrect information regarding his nationality, as he was an Iranian citizen. However, it gave considerable weight to the applicant's explanation for this non-compliance, which involved coercion by a smuggler and fear of persecution upon return to Iran. The Tribunal also considered the significant passage of time since the non-compliance and the adverse impact of indefinite detention on the applicant's mental health. Balancing these factors against the seriousness of the deliberate and knowing dishonesty, the Tribunal concluded that there were more factors in favour of reinstating the visa.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. Background [In] October 2010, the applicant arrived in Australia as an illegal maritime arrival (IMA), seeking protection on account of being a Faili Kurd, living as a stateless refugee in Iran, and claiming that the applicant will be targeted by the Basij or the Iranian authorities if he returned to Iran. The applicant advised that he was born in [District 1], Iran on [date], that he was stateless with no citizenship of any country, and had no identification documents in Iran. On 8 April 2011, a Refugee Status Assessment (RSA) found the applicant did not meet the definition of a refugee set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and was not someone to whom Australia owes protection obligations. Subsequently, on 28 March 2012, the Minister lifted the bar, allowing the applicant to make a Protection visa application. On 13 April 2012, the applicant applied for a Protection (subclass 866) visa. As part of the applicant’s application, he submitted signed forms 866B and 866C ‘Application for a Protection (Class XA) visa’. A protection visa was granted to the applicant on 30 April 2012.Citizenship application On 31 August 2017, the applicant lodged an application for Australian citizenship. On 27 March 2019, the Department sent the then visa holder of a Protection visa a Natural Justice letter, affording him the opportunity to comment on the information related to his claimed statelessness. The applicant provided a response to the Natural Justice letter on 24 April 2019, and provided, among other documents, evidence of his identity, which included his Iranian Birth Certificate, Iranian National Identification Card, Exemption from Compulsory Military Service Card, and their respective translations. The application was refused by the Department on 21 June 2019 because the delegate was not satisfied of the then visa holder’s claimed identity. The decision was remitted to the Department for reconsideration on 5 May 2020. As part of the re-consideration of the Citizenship application, the delegate found that the then visa holder is an Iranian citizen, and refused his Citizenship application on 30 March 2021 because the decision maker was not satisfied the applicant was of good character as he had claimed to be a stateless Faili Kurd. Furthermore, information before the Department indicates his siblings, [Mr A] and [Ms B], have admitted to being Iranian citizens, and provided evidence of that they citizens of Iran to the Department. Did the notice comply with the requirements in s 107? In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There are no further relevant matters to consider. Conclusion The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. The non-compliance under s 101(b) in this matter was deliberately and knowingly dishonest and serious in nature. The applicant does not have any dependants. The principle of non-refoulement through forcible removal is not applicable to the applicant’s circumstances and his chances of serious harm and risks of significant harm are remote and not real or substantial. Nonetheless, there has been a significant amount of time that has passed since the non-compliance occurred. Moreover, the Tribunal has assessed the adverse impact of indefinite detention on the applicant and his mental health in the context of his otherwise good character, as a significant reason in favour of the Protection visa not remaining cancelled. In summary, the Tribunal evaluates that there are more factors in favour of the visa being reinstated when weighed against those countervailing factors against its reinstatement. Further, having 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.Brendan DarcyMemberATTACHMENT – 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

This case involves the applicant having provided incorrect answers on his visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant in this case and the Tribunal gives it no weight.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 In this matter, the grant of the visa on 30 April 2012 to the review applicant was based wholly on incorrect information about the applicant’s lack of nationality in his country of former habitual residence, the Islamic Republic of Iran. Namely, the applicant argued that he faced a well-founded fear of being persecuted by the authorities and its discriminatory practices towards stateless Faili Kurds, and that this enlivened Australia’s protection obligations under the Refugees Convention. Had the applicant provided the correct information at the time of application or corrected the information before the grant of the visa, the Department is very likely to have reached a different decision about whether to grant the visa. For this reason, the Tribunal places considerable weight in favour of the visa remaining cancelledthe circumstances in which the non-compliance occurred As part of his response to the NOICC, the applicant claimed the following about his circumstances in which the non-compliance occurred:· The applicant departed Iran in 2010 because he feared persecution due to his ethnicity and his antigovernment political opinion; · He arrived in Australia as an irregular maritime arrival in October 2010. During the voyage from Indonesia to Australia, the applicant was under pressure to provide incorrect information by the smuggler; · The smuggler told the applicant to inform the authorities in Australia that he was stateless and to destroy Iranian identity documents, or those authorities would return him to Iran; · The applicant told the smuggle he wanted to tell the truth and provide his Iranian documents, but he was warned by the smuggler and others on the boat threated to throw him overboard; · When the applicant arrived in Australia’s Indian Ocean territory of Christmas Island, the interpreter who was assisting him told him to say he was stateless and not Iranian as that will be a big mistake; · The applicant did not correct his national status from stateless to Iranian citizen as he feared returning to Iran where he faced persecution; · The applicant said he had been arrested, detained and interrogated by the authorities in the past, during which his hand and nose had been broken, and he had been flogged. He added he did not receive any medical attention; and· The applicant added that he also feared persecution as he rejected Islam in 2009 and is exploring and learning about Christianity. During the hearing, the applicant closely reiterated these circumstances and his state of mind at the time when the non-compliance occurred. The applicant said he was regretful, and it weighed on is conscience, but he was afraid of being returned to Iran and being persecuted by the Iranian authorities.