2215442 (Refugee) - [2023] AATA 2333

2215442 (Refugee) [2023] AATA 2333 (18 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Neha Vaidyanathan
CASE NUMBER:  2215442
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE:18 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 April 2023 at 2:14pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – race – Kurdish Faili stateless persons – incorrect information in application – undocumented stateless status and identity – applicant is not stateless and is a citizen of Iran – two Australian citizen children – significant negative effect on the best interests of these children – decision under review set aside

PRACTICE AND PROCEDURE – s438 certificate
LEGISLATION
Migration Act 1958, ss 46A, 101, 103, 107, 109, 189, 198, 438
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information and answers to her application for a protection visa and therefore did not comply with s 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.
Upon the written request of the applicant and her husband who was the applicant in Case Number 2215439 her matter was set down for a joint hearing before the Brisbane Registry of the Tribunal on 4 April 2023 together with her husband’s application ([Mr A] Case Number 2215439).
On 3 April 2023 the Tribunal advised the applicant and her husband that the Tribunal had considered all the material before it relating to their applications and that it was now able to make a favourable decision on that information alone. The Tribunal informed the applicant and her husband that they were no longer invited to give oral evidence and present arguments at a hearing.
The applicant was represented in relation to the review.
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 visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require…

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 2215442 (Refugee)

Details

AGLC: 2215442 (Refugee) [2023] AATA 2333
Case: [2023] AATA 2333
Decision Date: 18 April 2023

CaseChat Overview and Summary

This matter concerned an application to review a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant had arrived in Australia claiming to be stateless, of Kurdish Faili ethnicity, and unable to obtain documentation from Iran due to her background. She asserted that she would face persecution, harassment, and arbitrary detention if returned to Iran. The Department of Home Affairs had issued a certificate under s 438 of the *Migration Act 1958* (Cth) preventing the disclosure of certain information to the applicant, though a summary was provided.

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled, notwithstanding a finding of non-compliance with visa application requirements. This involved considering the effect of a s 438 certificate on procedural fairness and determining whether the cancellation power under s 109 of the Act should be exercised, having regard to all relevant circumstances, including the best interests of the applicant's two Australian citizen children.

The Tribunal found that while there had been non-compliance by the applicant in the way described in the notice issued under s 107 of the Act, the decision to cancel the visa should be set aside. The Tribunal reasoned that the non-compliance, when considered in light of all relevant circumstances, did not warrant cancellation. Crucially, the Tribunal had regard to the significant negative effect that cancellation would have on the best interests of the applicant's two Australian citizen children.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal having given regard to the issue of ‘in confidence’ as to the contents of the document to which the Certificate issued under s 438 of the Act relates to has determined not to provide the certified document to the applicant. However, the Tribunal in correspondence on 30 March 2023 provided the following information (in broad terms as to the information contained within the relevant document) stating that:[details deleted]Background (as relevant) of visa holder On [date] December 2010 the applicant arrived without a visa at Christmas Island (an excised place) claiming to be [Ms B] born [Date 1]. In an interview with the Department (Entry Interview) on 30 December 2010 the applicant stated that her mother was Iranian but that her father was stateless as he was Kurdish and had been deported from Iraq to Iran prior to the applicant’s birth. She further claimed that her father had been given a ‘green card’ and later issued with a ‘white card’. The applicant stated that this was the reason she had not been issued with a birth certificate. She claimed to be stateless and had no identity papers. The applicant arrived with her husband who claimed to be [Mr C] and that he was also stateless. The applicant stated that she had departed Iran on a false passport in the name of ‘[Ms D]’. The applicant and her husband were placed into immigration detention. On 11 May 2011 the applicant provided a written statement in support of her Protection Obligations Determination (POD) which was assessed together with her husband’s claims as part of the same Protection Obligations Evaluation (POE) process. Their claims as outlined in this statement for protection were (in summary) that they believed they would not be afforded due recognition by Iranian authorities and that they would not receive any protection by the Iranian government because of their ethnicity as Kurdish Faili stateless persons. Further that they had no access to state education, and they had been privately schooled and had not been afforded any documentation to verify the completion of their studies. They stated that they had no right to attend university and no entitlement to lawful employment in Iran or the right to own land or operate a business and as such they would be unable to earn an income by any legal means in Iran. The applicant stated that she had been employed casually and illegally as a [occupation] owing to her statelessness and ethnicity. She further stated that she and her husband were not eligible for social security, nor any other allowances issued by the Iranian government including public health care. The applicant claimed that she and her husband had a green and then white card which were worthless and did not afford them the rights available to Iranian citizens. Further that having the cards had caused problems for them when they were stopped by the Basij owing to their ethnicity and statelessness. The applicant claimed that she and her husband could face harassment, extortion, intimidation and abuse by members of the Basij and that they could be subjected to arbitrary arrest, detention and serious mistreatment.

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 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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.Certificate issued under the provisions of s 438 of the Act On 22 March 2023 the Tribunal forwarded correspondence to the applicant advising them of a ‘Notification Regarding the Disclosure of Certain Information under s 438 of the Migration Act 1958’ (Certificate) dated 10 February 2023 which had been provided to the Tribunal by a delegate of the Secretary of the Department of Home Affairs (the Department). In this correspondence the Tribunal invited the applicant to comment on the validity of the Certificate. Under s 438 of the Act, the Secretary of the Department may certify that certain information is only to be disclosed to the Tribunal. The effect of such a certificate is that the Tribunal is prohibited from disclosing the document and/or the information in it to the applicant. The Certificate identified that the information referred to in the Certificate should not be disclosed to the applicant or the applicant’s representative because the information was provided ‘in confidence’. On 23 March 2023 the applicant’s representative responded to the Tribunal’s invitation to comment on the Certificate stating that:…we submit that in the interests of procedural fairness to the review applicant, a summary of the information and the date of that information that is contained in folio [number] should be disclosed to the review applicant.We submit that disclosure can be done in a way that does not affect the duty of confidence upon the Department, given that the name of the discloser and other identifying details can be redacted from the document… The Tribunal having given regard to the issue of ‘in confidence’ as to the contents of the document to which the Certificate issued under s 438 of the Act relates to has determined not to provide the certified document to the applicant. However, the Tribunal in correspondence on 30 March 2023 provided the following information (in broad terms as to the information contained within the relevant document) stating that:[details deleted]Background (as relevant) of visa holder

Decision

Reasons for decision

Therefore, the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.David JamesSenior MemberATTACHMENT – 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.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.David JamesSenior MemberATTACHMENT – 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.