2203201 (Refugee) - [2023] AATA 1016

2203201 (Refugee) [2023] AATA 1016 (24 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Kourosh Momeni (MARN: 0955242)
CASE NUMBER: 2203201

COUNTRY OF REFERENCE: Iran
MEMBER:Wayne Pennell
DATE:24 February 2023
PLACE OF DECISION: Brisbane
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 24 February 2023 at 4:10pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – incorrect information in the visa application – Faili Kurds – stateless – identity documents – Iranian citizenship – conversion to Christianity – Australian citizen children – best interests of the children – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 101, 107, 109, 140, 189, 198
Migration Regulations 1994, r 2.41; Schedule 4, PIC 4013
CASES
Wan v MIMA (2001) 107 FCR 133
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the first named applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa on the basis that the first named applicant (‘the applicant’) provided incorrect information and answers to her application for a protection visa and therefore she did not comply with section 101(b) of the Act. 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 applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of section 140(1) of the Act. As no decision was involved in the visa cancellation under section 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 9 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor A], [Pastor B], [Mr C], [Mr D], [Ms E], [Ms C] and [Mr E].
The applicants were represented in relation to the review and the Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
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 applicant has failed…

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 2203201 (Refugee)

Details

AGLC: 2203201 (Refugee) [2023] AATA 1016
Case: [2023] AATA 1016
Decision Date: 24 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visas of two applicants from Iran. The dispute arose from allegations that the applicants provided incorrect information in their visa applications and failed to comply with relevant sections of the *Migration Act 1958* (Cth). The applicants, who were married and had Australian citizen children, claimed they were pressured by people smugglers to provide false information about their identity and documentation upon arrival in Australia to avoid being returned to Iran.

The Tribunal was required to determine whether the Minister's delegate had validly exercised the power to cancel the applicants' visas under section 109 of the *Migration Act 1958* (Cth). This involved assessing whether the applicants had failed to comply with the statutory obligations to provide correct information and not present bogus documents. A further consideration was the impact of a section 438 certificate issued by the Department, which restricted the disclosure of certain information deemed contrary to the public interest due to its potential to prejudice law enforcement methods.

The Tribunal reasoned that while the delegate had reached the necessary state of mind to engage section 107 of the Act and the notice issued complied with statutory requirements, the cancellation decision itself was flawed. The Tribunal found that the applicants' actions, including the alleged instruction to provide false information by people smugglers, were undertaken under duress and a fear of persecution if returned to Iran. The Tribunal also considered the best interests of the children, who were Australian citizens, and the non-refoulement obligations owed to the applicants.

Ultimately, the Tribunal set aside the decision to cancel the applicants' protection visas.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the document to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the applicants. Background information By way of background, the applicant was born into a Shia Muslim family of [size]. She was raised in a remote and less privileged village of [Village 1] near the border of Iran and Iraq. When growing up she experienced many limitations such as hardship and distributed treatment. The second applicant is also from Iran. His parents were expelled from Iraq by the Saddam Hussain regime but were able to receive Iranian identifications and gave Iranian nationalities to the second applicant and his siblings. The applicants married in 2009. About five months into their marriage, neither applicant could see any prospective of a successful and safe life in Iran. They had heard that Australia needed cheap labour and they decided to travel to Australia. The second applicant was the first to leave Iran. He flew to [Country 1], and met with people smugglers. He then boarded a boat and travelled to Australia by sea. It was planned that when he arrived in Australia, he would work and pave the way for the applicant to join him. However, after about five months without her husband, the applicant became miserable, lonely and unbearable because of his absence. Because she was in Iran without her husband, there was conflict between her family and her husband’s family as each of the families wanted her to stay with them. People started assuming that her husband was gone forever and even men who had proposed to her before she married her husband started to approach her for a relationship and marriage. During this time, she was sexually assaulted within her own home by her neighbour. In October 2010, the applicant made the decision to travel to Australia. She travelled to Tehran, then to [Country 1]. She met a person she described as the ‘trafficker’ and paid him a fee. He told her that when she arrived in Australia she should introduce herself as a Faili Kurd who did not have any identification documents. She was also told that halfway across the ocean in the boat she should drop her passport into the ocean or otherwise the Australian authorities would send her back to Iran on the next flight. If that happened she would be imprisoned in Iran as a person who dishonoured the Islamic Republic of Iran. After leaving [Country 1] in a boat with many other refugees, they travelled for about three or four nights before they arrived as Christmas Island. The Department’s records show that she arrived at that location [in] October 2010 as an illegal maritime arrival. The applicant claimed that an interpreter told her to claim that she was a Kurd, and she should tell the Department that she has no passport or identifying documents. She was told to do this or otherwise she would be returned to Iran. She claimed that even though she did not like to be untruthful, it seemed that she had no choice.

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 applicant has failed to comply with sections 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 section 109 of the Act is conditional on the Minister issuing a valid notice to the applicant under section 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in section 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 section 107 of the Act and that the notice issued under section 107 complied with the statutory requirements.Section 438 Certificate The Tribunal has been provided with the Department’s file in relation to the cancellations of the protection visas held by the applicants. The Department has placed restrictions on a document contained within that file and issued a certificate pursuant to section 375A of the Act.[1] Subsequently, that certificate was revoked and another certificate pursuant to section 438 of the Act was issued.[2] [1]Certificate issued 10 March 2022.[2]Revocation of section 375A certificate and issuing of a section 438 certificate took place on 20 January 2023. The purpose of the certificate being issued was the disclosure of a nominated document would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. During the hearing, a copy of the section 438 certificate was provided to the applicant’s representative. The certificate was signed and clearly relates with the state public interest reasons on the certificate. Neither the applicant or the applicant’s representative made submissions and the certificate’s validity was not challenged. The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the document to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the applicants. Background information By way of background, the applicant was born into a Shia Muslim family of [size]. She was raised in a remote and less privileged village of [Village 1] near the border of Iran and Iraq. When growing up she experienced many limitations such as hardship and distributed treatment. The second applicant is also from Iran. His parents were expelled from Iraq by the Saddam Hussain regime but were able to receive Iranian identifications and gave Iranian nationalities to the second applicant and his siblings.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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