2113037 (Migration) - [2022] AATA 2655

2113037 (Migration) [2022] AATA 2655 (8 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2113037
MEMBER:Kira Raif
DATE:8 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 08 February 2022 at 2:05pm

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 is a national of Afghanistan, born in [specified year]. He was granted the Resident Return visa (RRV) in December 2016. In June 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. It appears that the applicant did not respond to the NOICC and his visa was cancelled in August 2019. The applicant seeks review of the delegate’s decision.
The application for review appears to have been lodged outside of the prescribed period. However, the Tribunal has formed the view that the notification of the decision contained an error of the kind identified in Parata v MHA [2020] FCCA 1582. The type of notification used by the delegate in this case appears to have been invalid because it failed to convey which part of the Act provided for the review of the decision. As the Tribunal has formed the view that notification was invalid, the prescribed time limit for applying under s.127(2)(b) for review did not commence. The Tribunal thus finds that the application for review was validly made.
The applicant provided to the Tribunal his written submission and a number of documents on 24 January 2022. As the Tribunal hearing was scheduled to take place on the morning of 25 January, the Tribunal considers such late submission of evidence and argument less than helpful and contrary to the Tribunal’s Practice Direction. No explanation has been offered by the applicant’s representative, Refugee Legal in the submission of 24 January 2022 for the lateness of the submission.
The applicant appeared before the Tribunal on 25 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.…

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 2655
Decision Date: 8 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application concerning the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant had provided incorrect answers in their visa application, had a history of criminal convictions, and experienced mental health issues. The Tribunal was required to assess these factors in light of the best interests of Australian resident children, the applicant's non-refoulement obligations, the political situation in Afghanistan, and the applicant's character assessment for the purposes of the Migration Act 1958 (Cth).

The Tribunal was tasked with determining whether the applicant had failed to comply with the requirements of the Act, specifically in relation to the information provided in their visa application. It also had to consider whether, in light of all the circumstances, the cancellation of the applicant's visa was the appropriate course of action. This involved weighing the applicant's personal circumstances against the public interest considerations relevant to migration law.

In its reasoning, the Tribunal found that there had been non-compliance by the applicant as described in the notice given under section 107 of the Migration Act 1958 (Cth). Having regard to all the relevant circumstances, the Tribunal concluded that the visa should be cancelled. Consequently, the Tribunal affirmed the decision 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

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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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