2200441 (Migration) - [2023] AATA 1866

2200441 (Migration) [2023] AATA 1866 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Hanan Haddad (MARN: 1461976)
CASE NUMBERS: 2200441, 2200494

MEMBER:Paul Noonan
DATE:19 May 2023
PLACE OF DECISION: Melbourne
DECISIONS: In relation to [Applicant 1], 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.
In relation to [Applicant 2], 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.
In relation to [Applicant 3], the Tribunal does not have jurisdiction.

Statement made on 19 May 2023 at 9.30am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in the visa application – nationality – stateless – Iranian and Iraqi citizenship – identity details – family composition – best interests of Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 48A, 101, 107, 109, 140, 189, 195A, 197C, 197D, 198
Migration Regulations 1994, r 2.41
CASES
CFE16 v MIBP; CFD16 v MIBP [2020] FCCA 1083
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 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This statement of decisions and reasons is regarding applications for review of two decisions made by a delegate of the Minister for Home Affairs on 4 January 2022 to cancel the applicants’ Subclass 155 (Five Year Resident Return) visas under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visas on the basis that the applicants had provided incorrect answers in certain respects in relation to their applications for Protection visas (granted prior to the applicants’ Resident Return visas), in breach of s 101 of the Act. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visas should be cancelled.
[Applicant 1] is [an age] year old man who claims to be stateless and who was born in Esfahan, Iran. He claims his parents were born in Iraq but were expelled from Iraq into Iran in 1980 by Saddam Hussein’s regime. While they were initially issued green cards, these were cancelled in 2003 and they were issued with white cards that needed to be renewed every 12 months to allow them to stay in Iran. He married [Applicant 2] [in] July 2007 but was unable to register the marriage. He arrived in Australia with the name [Alias A] but subsequently changed his surname to [Applicant 1].
[Applicant 2] is [an age] year old woman who claims to be stateless and who was born in Esfahan, Iran. She claims her parents were born in Iraq but were expelled from Iraq into Iran in 1980…

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: [2023] AATA 1866
Decision Date: 19 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the Return (Residence) (Class BB) visa, Subclass 155, held by the applicants. The dispute arose from allegations that the applicants had provided incorrect information in their visa applications, specifically concerning their nationality and identity details, including family composition.

The Tribunal was required to determine whether the applicants had provided incorrect answers in their visa applications, as contemplated by section 101(b) of the Migration Act 1958, and if so, whether their visas should be cancelled. This involved assessing the validity of the notices of intention to consider cancellation issued by the Department and the applicants' responses to those notices.

The Tribunal found that the applicants had indeed provided incorrect information in their visa applications, particularly regarding their names and dates of birth, which were significant for establishing their identity and nationality. However, the Tribunal also considered the mandatory legal consequences of cancellation, including potential detention and removal, and the best interests of the applicants' Australian citizen children. Weighing these factors against the non-compliance, the Tribunal concluded that the circumstances, including the significant time elapsed since the non-compliance, the applicants' contributions to the Australian community, and the hardship to their children, weighed strongly against cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicants' visas.

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

The Tribunal discussed these matters with the applicants and their representative at the hearing and they indicated they had no questions or concerns regarding the Tribunal’s approach.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. On 9 March 2020 the Department sent each of the applicants a Notice of Intention to Consider Cancellation (NOICC) which advised the applicants that their visa may be cancelled under s 109 because of concerns that they did not comply with s 101(b) of the Act. The applicants were advised to respond in writing, which each did in emails dated 17 March 2020. In the present matters, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notices issued under s 107 complied with the statutory requirements.Was there non-compliance as described in the s 107 notices? The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notices, being in the manner particularised in the notices, and if so, whether the visas should be cancelled. The non-compliance identified and particularised in the s 107 notices in relation to s 101(b) was that each applicant had provided incorrect information in relation to their Protection visa application in certain respects.[Applicant 1] Specifically, the notice in relation to [Applicant 1] recounts that he made an application for a Protection (Subclass 866) visa on 2 May 2011, which was granted on 3 May 2011. The Tribunal notes that [Applicant 2] lodged her own separate Protection visa application which included the applicants’ son as a secondary applicant. In Part B of the application (Persons included in the application and family composition), Question 1 asks for the applicant’s full name and date of birth. Question 10 seeks details of close relatives, who are in Australia at the time of the application, of any of the persons included in the application. Question 11 seeks details of close relatives who are not in Australia at the time of application. In response to Question 1, [Applicant 1] stated that his name was [Alias A] and he was born on [DOB 1]. The Department contends this is incorrect as he used a different name and date of birth on social media and his sister’s child, [named], had advised the Department that she had changed her [family name] from [Alias A] to [Applicant 1’s family name], and her father (who is [Applicant 1]’s uncle) had likewise changed the family name in 2015, indicating the name was of significance and used prior to [Applicant 1]’s visa application by the extended family. Further, the Department notes that his brother had used [Applicant 1’s] surname […] upon arrival in Australia [in] June 2010, further indicating [Applicant 1] was known by this name prior to lodging his protection application.

Decision

Reasons for decision

For the reasons set out above, the Tribunal finds that ss 197C(3) and 197D(2) provide a statutory scheme for considering non-refoulement obligations at the time of potential removal and it is not necessary for the Tribunal to make findings about those matters in the context of this decision. Mandatory legal consequences of a cancellation decision If the visas remain cancelled and the applicants exhausts their appeal rights, as unlawful non-citizens they may be detained under s 189 of the Act. They are then liable for removal under s 198. However, for the purposes of s 198, as a ‘protection finding’ has been made as noted above, the Act does not require or authorise their removal as per the recent amendments: s 197C(3). If the applicants’ Resident Return visas remain cancelled, they would be prevented (under s 48) from making further visa applications onshore, except for a select few prescribed visas including Protection, Partner, Bridging and Medical Treatment visas (as the applicants have not been refused a Protection visa or had a Protection visa cancelled, they would not be prevented (under s 48A) from making a further Protection visa application). The factual information before the Tribunal does not indicate that the applicants are eligible for a Partner or Medical Treatment visa. As Iran does not accept involuntary returns with respect to the dates of their protection applications, they could not be returned to Iran if a decision is made under s 197D that a protection finding would no longer be made. This means the applicants may face detention unless they make a further Protection visa application which is successful, the Minister personally decides to grant them a visa under s 195A of the Act, or they acquire a right to enter and reside in another country. The Tribunal has rejected the delegate’s finding that the applicants are Iraqi citizens. As noted above, Iran does not accept involuntary returns. At the hearing, the applicants indicated that they see Australia as their home and are strongly committed to remaining in Australia with their children and raising them to be good Australian citizens. As it considers the prospect of lengthy or indefinite detention likely in the applicants’ cases, the Tribunal gives this factor significant weight against cancelling the applicants’ visas. EXERCISE OF DISCRETION The Tribunal has found that the applicants have given incorrect information, and with regard to the circumstances in which the non-compliance occurred and the subsequent behaviour of the applicants in not coming forward proactively to correct the incorrect information, the Tribunal considers these factors weigh strongly in favour of cancellation. In contrast, the applicants’ present circumstances, the significant time that has elapsed since the non-compliance occurred, the contribution made by the applicants to the Australian community, the mandatory legal consequences of cancellation, Australia’s international obligations on the Convention on the Rights of the Child and the general hardship that would be experienced by the applicants and their minor children, both of whom are Australian citizens and both of whom were born in Australia and have never lived anywhere but Australia, weigh strongly against cancellation. Factors such as other instances of non-compliance, any breaches of the law, and whether removal would breach Australia’s international obligations against refoulement are neutral and as such do not weigh against or in favour of cancellation.

Ratio Decidendi

Legal Principle Established

In relation to [Applicant 3], the Tribunal does not have jurisdiction.Paul NoonanMemberATTACHMENT – 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.