2118733 (Migration) - [2022] AATA 1256

2118733 (Migration) [2022] AATA 1256 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2118733

MEMBER:Kira Raif
DATE:7 April 2022
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 07 April 2022 at 8:31am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – Pakistan citizenship – bogus death certificates – Orphan Relative applications – family composition – Hazara – non-refoulement obligations – financial hardship – contribution to the community – best interests of the children – ground for cancellation not made out – decision under review set aside
LEGISLATION
Migration Act 1958, ss 36, 101-105, 107-109, 116, 119, 140
Migration Regulations 1994, r 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
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 (Cth) (the Act).
The applicant claims to be a national of Afghanistan and to be born in [year]. He was granted a protection visa in July 2011 and a Resident Return Visa (RRV) in June 2016. In January 2020 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. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 5 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. 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…

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: 2118733 (Migration) [2022] AATA 1256
Case: [2022] AATA 1256
Decision Date: 7 April 2022

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought judicial review of the Minister's decision to cancel their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the applicant providing incorrect information in their visa application, specifically concerning their citizenship and the alleged death of their parents, which was supported by bogus death certificates. The applicant had also made Orphan Relative visa applications, which were dependent on the claimed family composition. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the visa cancellation.

The central legal issues before the Court were whether the applicant had, in fact, provided incorrect information in their visa application, and if so, whether this constituted a ground for cancellation under the relevant migration legislation. The Court also had to consider whether the applicant's circumstances, including their Hazara ethnicity, potential non-refoulement obligations, financial hardship, contribution to the community, and the best interests of their children, were relevant to the cancellation decision, particularly in light of the applicant's assertion that the ground for cancellation was not made out.

Her Honour Judge Raif found that the evidence did not establish that the applicant had provided incorrect information in their visa application. Consequently, the ground for cancellation was not made out. The Court reasoned that the applicant's claims regarding their family composition and the death certificates, while potentially misleading in the context of the Orphan Relative applications, did not necessarily render the information provided in the Subclass 155 visa application incorrect in a way that mandated cancellation. The Court therefore set aside the decision under review.

Orders