2209985 (Migration) - [2023] AATA 3591

2209985 (Migration) [2023] AATA 3591 (11 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Heather Elizabeth Marr (MARN: 0531677)
CASE NUMBER:  2209985
MEMBER:Jessica Henderson
DATE:11 October 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 11 October 2023 at 5:12pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – satisfaction as to identity – same name and details as person registered with UNHCR – extensive documentation in previous name provided to tribunal – consistent biographical evidence – minority ethnicity and Christian – forced labour for military and unlawful departure to third country – unable to obtain assistance from UNHCR – told by church to assume identity of other person and attend interview after they couldn’t find other person – credible evidence – cultural flexibility of naming conventions does not prove lack of honesty – all other claims applicant’s own – decision made on grounds of identity, not provision of incorrect information – change of name – addition of tribal name as surname reasonable for living in Australia – member of family unit – consequential cancellation of wife’s visa with no jurisdiction to review – Australian citizen children not included in application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1AA), 348
CASES
Rani v MIMA (1997) 80 FCR 379
Tien v MIMA (1998) 89 FCR 80
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 dated 30 June 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 200 (Refugee) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1AA) on the basis that the delegate was not satisfied as to the first named applicant’s identity. 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 under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80

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 2209985 (Migration)

Details

AGLC: 2209985 (Migration) [2023] AATA 3591
Case: [2023] AATA 3591
Decision Date: 11 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Refugee and Humanitarian (Class XB) visa, Subclass 200 (Refugee), held by the applicant. The dispute arose from the Minister's delegate's belief that the applicant had adopted the identity of another person registered with the United Nations High Commissioner for Refugees (UNHCR) in their country of origin. This concern was based on information suggesting an individual with the applicant's name, date of birth, and parents' names had travelled to a third country prior to the applicant's arrival in Australia, coupled with perceived inconsistencies in the applicant's UNHCR registration documents.

The Tribunal was required to determine whether the delegate was satisfied that the grounds for cancellation under section 116 of the Migration Act 1958 (Cth) were made out, specifically concerning the applicant's identity. This involved assessing the credibility of the applicant's explanation for the discrepancies in their documentation and the circumstances surrounding their name changes. The Tribunal also considered the consequential cancellation of the applicant's wife's visa, which was not subject to review by the Tribunal.

The Tribunal found that the applicant's explanation for the perceived anomalies was credible. The applicant, a member of a minority ethnicity and Christian, had experienced forced labour for the military and an unlawful departure to a third country. Unable to obtain assistance from the UNHCR, the applicant was advised by their church to assume the identity of another person to attend an interview after that person could not be located. The Tribunal accepted that cultural flexibility in naming conventions did not inherently indicate dishonesty and that all other claims made by the applicant were their own. The decision to cancel the visa was based on the grounds of identity, not on the provision of incorrect information. The Tribunal also found the addition of a tribal name as a surname to be reasonable for living in Australia.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEGrounds for cancellation Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.NOICC In the Notice of Intention to Consider Cancellation (NOICC) dated 25 February 2022 the Minister’s delegate identified the ground for cancellation in the following terms:You have used the same identity as another person registered with the UNHCR in [Country 1]You and your wife travelled to Australia from [Country 1], [in] December 2012, and have not travelled overseas since. The Department has received information that a person registered with the UNHCR in [Country 1] with your same name, date of birth, and parents’ names, travelled from [Country 1] to [Country 2] in November 2011.Given you have not provided any identity documents from Myanmar to support your claimed identity, the above information indicates you may have adopted another person’s identity in [Country 1] and that the person who genuinely had that identity travelled to [Country 2].[1][1] NOICC p6…Anomalies in your UNHCR Resettlement Registration FormThe UNHCR Resettlement Registration Form submitted with your Refugee visa application comprised of five pages…I consider the form contains multiple inconsistencies and anomalies…These anomalies indicate the UNHCR Resettlement Registration Form you submitted with your Refugee visa application may not have been genuine. Specifically, I find there are different case numbers appearing in the Form, thereby indicating the information applies to more than one person, and the case number on the third and fourth pages is a number which is not one listed anywhere in your UNHCR paperwork, thereby indicating these pages could be for another person.[2]…Change of family name to ‘[SURNAME]’I note you have attempted to change your name on several occasions:You initially registered with the UNHCR on 5 January 2010 in the name [the applicant, without Surname], and your UNHCR card was issued in this name. Subsequently, some two years later, on 16 February 2012, in your UNHCR Resettlement Registration Form, the UNHCR delegate noted you had ‘agreed’ to using the family name [SURNAME] in your resettlement submission. No further explanation was provided and no supporting documentation was submitted.On 18 May 2012 you applied for your Refugee visa in the name [the applicant, with Surname]. Despite the notation in your Resettlement Registration Form indicating your consent to use the name [Surname], your visa was granted under the name [the applicant, without Surname], (as per your UNHCR registration and UNHCR card). This decision appears to indicate the delegate had insufficient evidence to support the use of [SURNAME] as your family name.Some years later, on 8 March 2017, just before you lodged an application for citizenship, you officially changed your name to [the applicant, with SURNAME], as per the Change of Name Certificate, issued by the Western Australian Registry of Births, Deaths and Marriages, submitted with your Citizenship application. You advised the name [SURNAME] is your tribe name.[3][2] NOICC p7[3] NOICC p8

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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