2211105 (Migration) - [2023] AATA 4515

2211105 (Migration) [2023] AATA 4515 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Haidari Smart
CASE NUMBER:  2211105
MEMBER:Kate Millar
DATE:20 November 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 20 November 2023 at 11:58am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – satisfaction as to identity – facial comparison check – two previous visa applications under another identity – previous identity acknowledged and some refugee claims conceded to be untrue – claim of risk as Hazara Shi’a – name changed for personal reasons, not to obtain visa outcome – relationship with father and brother established by DNA tests – other family composition inconsistent, confusing and unsatisfactory – credibility – mental health – detained and tortured in third country – untreated PTSD with severe depressive symptoms – advised by people smugglers not to give information that would jeopardise application – consequences of cancellation and degree of satisfaction required – father’s and brother’s changes of names and incorrect information – reliability of home country documentation – discretion to cancel visa – ethnicity accepted – conditions in Afghanistan and no right of entry to Pakistan – possibility of applying for protection visa – no assessment of physical health provided – degree of hardship – wife and child in Pakistan with partner visa application in progress – mandatory legal consequences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1AA), 359AA, 375A
Migration Regulations 1994 (Cth), r 2.12
CASES
BQG21 v MICMA [2023] FCA 865
Plaintiff M1-2021 [2022] HCA 17
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v MIBP [2016] FCAFC 52
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

[The applicant], who claims to be a citizen of Afghanistan, arrived in Australia in 2013 after being granted a Refugee (Subclass 200) visa. At that time he claimed his father had been killed and his brother kidnapped by his uncles because of a land dispute. He claimed his cousins and uncles were connected to a local Harakat commander. On the basis of these claims, the UNHCR found he was a refugee.
In 2018, [the applicant] was granted a Subclass 155 (Resident Return) visa to allow him to travel overseas, and his Subclass 200 visa ceased.
Following a facial comparison check conducted by the Department, [the applicant] was matched with a person named [Alias], who applied for a Global Special Humanitarian visa as a dependent of his mother in 2005, and who applied for an Aged Dependent Relative visa in 2008, again as a dependent of his mother.
As a result, the delegate cancelled his visa under s 116 of the Migration Act 1958 (Cth) (the…

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 2211105 (Migration)

Details

AGLC: 2211105 (Migration) [2023] AATA 4515
Case: [2023] AATA 4515
Decision Date: 20 November 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who acknowledged using an alias, had previously applied for visas under different identities and had conceded that some of his refugee claims were untrue. The primary dispute revolved around the applicant's identity and the grounds for cancelling his visa, particularly in light of his claims of risk as a Hazara Shi’a in his home country and his mental health condition.

The court was required to determine whether the ground for cancellation under s 116(1AA) of the Migration Act 1958 (Cth) was established, specifically whether the Minister was satisfied as to the applicant's identity. This involved considering the definition of identity in the context of visa applications, which extends beyond mere name and date of birth to encompass factors such as country of nationality, ethnic group, language, and religion. The court also had to consider the degree of satisfaction required for such a finding, acknowledging the gravity of cancelling a permanent visa and the need for caution in evaluating the factual basis for the decision.

In reaching its decision, the court applied the principles that the common law concept of onus of proof does not apply to administrative decision-making, but that a high degree of caution is warranted when a fact is centrally relevant to the decision. The court found that while the applicant's ethnicity was accepted and DNA tests established his relationship with his father and brother, inconsistencies and unsatisfactory variations in his family composition across multiple visa applications undermined his claimed identity. The court noted that the applicant's mental health and advice from people smugglers were raised as explanations for his lack of candour, but these did not overcome the fundamental lack of satisfaction regarding his identity. The court concluded that the ground for cancellation under s 116(1AA) was established.

The court affirmed the decision to cancel the applicant's visa. It noted that any claims of non-refoulement or compelling need to remain in Australia due to protection obligations should be considered in the context of a protection visa application, where his claims could be fully made and assessed using his correct identity. The court also found that insufficient evidence was provided to assess the severity of his brother's alleged medical condition or any associated need for the applicant to remain in Australia.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal adjourned to allow [the applicant] to provide further information and DNA tests to establish his relationship with his claimed father and brother who live in Australia, and a copy of the outcome of these tests was provided on 12 October 2023. [The applicant] was requested to provide any final submissions by 10 November 2023; however, no further submissions were provided. BACKGROUND [The applicant] acknowledges his name is [Alias]. He said he changed his name when he was in [Country] because [Given name] means “[Meaning],” and [Main part of surname] is his grandfather’s name. He said he did not change his name to obtain a favourable visa outcome, but that it is true he applied for a visa in 2008 and was sponsored by his brother. [The applicant] said he provided his passport and taskira with the application for a Subclass 200 visa in 2008. [The applicant] was advised the Tribunal did not have these documents and he was asked to provide his taskira and passport. He provided three expired titre de voyage documents issued in Australia but did not provide a taskira or Afghan passport. [The applicant] states he was born in [Location], Daykundi District, Afghanistan. He said his mother’s name is [Ms B]. He said his father was called [Mr C], but is currently known as [Mr C – Alias 1]. The Tribunal asked his father to attend to give evidence, however, [the applicant] said he was unwell, and he did not attend the hearing . After the hearing he provided a copy of his father’s Australian passport but did not provide a copy of his father’s taskira as requested. His eldest brother is [Mr A], previously known as [Mr A – Alias]. His brother changed his name in Australia in March 2019. A change of name certificate was provided for his brother and a copy of his brother’s Australian passport. His brother has a taskira obtained in Afghanistan. A taskira for [Mr A] was provided, naming his father as [Mr C – Alias 2]. This has a date of issue of 1 December 2019, and it appears the taskira was registered in 2017. [The applicant]’s Subclass 200 visa application lists a brother [Mr D] who is claimed to be missing, brothers [Mr E] and [Mr F], and sisters [Ms G], [Ms H], [Ms I] and [Ms J]. He lists a nephew [Mr K] as part of his family group. After from his father and brother, whose relationship with [the applicant] ws established by DNA tests, his family composition has varied. · The application for a Global Special Humanitarian visa in 2005 lists his mother as [Ms B – Alias 1] and his father as [Mr C – Alias 3] (missing). He lists siblings [L] (missing), [Ms M], [Ms N], [Ms O], [Ms P], [Ms Q], [Ms R] and [S]. · In his application for a Subclass 200 visa, his parents are listed as [Mr C – Alias 4] and [Mr B – Alias 2]. His siblings are listed as [Ms G], [Mr F], [Ms H], [Mr E], [Ms I], [Ms J] and a nephew [Mr K]. He lists a brother who is missing with the name [Mr D]. · In written submissions prior to the hearing his siblings are listed as [Mr A – Alias], [L], [Ms M], [Ms N], [Ms O], [Ms P], [Ms Q], [Ms R] and [S].· At hearing [the applicant] said he has a sister [Ms M] who is deceased. He has sisters [Ms N] , [Ms P], [Ms Q], [Ms R] and [Ms O], with the latter two sisters born in Quetta. He later corrected this to state that all of his siblings were born in [Location], Daykundi District in Afghanistan. · [The applicant] said he does not have a sister called [Ms J] or a nephew called [Mr K] as listed in his application for the Subclass 200 visa, and said he received misguided information in [Country], where he added a sister and brother (nephew) who are not real.

Evidence

Evidence Before The Court

His mental health has also been relied on to explain why he was vulnerable to advice from others to conceal his identity and relationship to others in Australia, and this is considered further below. CONSIDERATION OF CLAIMS AND EVIDENCE 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. Relevantly, to this case, these include the ground set out in s 116(1AA). If satisfied that a 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.The degree of satisfaction required In looking to the degree of satisfaction required to make a finding that a ground to cancel the visa exists, in Sun v Minister for Immigration and Border Protection,[1] Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making. [1] [2016] FCAFC 52 However, the Tribunal is mindful of the gravity of the consequences of cancelling a permanent visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[2] [2] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20] In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[3][3] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119] In looking at whether I am is not satisfied as to [the applicant]’s identity, I have kept in mind the gravity of the decision and the central relevance of such a finding and have exercised caution in evaluating the factual foundation for such a finding.Does the ground for cancellation exist? A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity. Identity is a concept to be considered in context, and in this case the context is the grant of the visa. It involves looking at whether the applicant is the person they say they are, in the context of the information provided to support the grant of the visa, and whether the person is a different human being with a different background that may affect their visa.[4] [4] In the context of the Citizenship Act 2007, Chief Justice Mortimer used this formulation in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at [32] Identity comprises more than proof of name and date of birth, and may include a person’s country of nationality or habitual residence, citizenship, ethnic group, language and religion.[5] Establishing identity for people whose country of origin does not have robust documentation, or where the person may be unable to obtain any documentary evidence of his or her identity involves looking at the available documentary evidence, any biometric data and the narrative of the person.[6] [5] Ibid

Decision

Reasons for decision

In these circumstances, while he does raised claims of non-refoulment, these should be considered in the context of a protection visa application, where his claims for protection can be fully made and assessed in accordance with the Act and using his correct identity. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.Kate MillarSenior Member

Ratio Decidendi

Legal Principle Established

It follows I am not satisfied of [the applicant]’s identity and the ground in s 116(1AA) of the Act is established. Consideration of discretion There are no matters specified in the Act or Migration Regulations 1994 (Cth) (the Regulations) that must be considered in the exercise of the discretion to cancel the visa. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia [The applicant] came to Australia as a refugee, however, particulars of his claim that his father had been killed and his brother abducted are untrue. These claims gave rise to the UNHCR certification which is the basis of the grant of the Subclass 200 visa. These claims were also made in the 2005 and 2008 visa applications. [The applicant] said the purpose of his travel and stay was to save his life from the threat of the Taliban in Afghanistan, which have increased with the Taliban taking over the country. [The applicant] said he did not know where he would go if his visa was cancelled. He said he cannot go to Afghanistan and has no right to return to Pakistan, and even if he does return to Pakistan, Hazaras are targeted and killed. He said he had returned to Pakistan on several occasions because he had no option but to go to his family members even though Hazaras are not safe in Pakistan. [The applicant] said he wants to remain in Australia because it is a safe country and has good opportunities for him and his family. In Afghanistan, Hazaras are not accepted as equals and their religion and ethnicity are not accepted. If [the applicant] has a compelling need to remain in Australia because Australia has protection obligations, he can apply for a protection visa and have these claims assessed. This is further considered below. [Mr A] states he suffers from a breathing illness and living with others is difficult. He has been in hospital for his breathing to be monitored. He said he has a machine to wear while he is asleep. [Mr A] did not have any medical records about his conditions and said he has asked his doctor for them but was told “it was too many pages.” In the absence of a medical report, I am unable to assess the severity of [Mr A]’s condition or the veracity of his claims about his breathing illness or any associated need for [the applicant] to remain in Australia to care for him.The extent of compliance with visa conditions There is no information to show that [the applicant] has not complied with the conditions of his visa. The degree of hardship that may be caused (financial, psychological, emotional or other hardship) [The applicant] states he suffers from numerous health conditions which will be exacerbated if his visa is cancelled. His wife and [Child] are in Quetta and fear for their lives from targeted killings and terrorism, and if his visa is cancelled it will affect his partner visa application for his wife and [Child].