2301259 (Migration)

Case [2023] AATA 2575

2301259 (Migration) [2023] AATA 2575 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  [Applicant 1]
[Applicant 2]
[Applicant 3]
[Applicant 4]
[Applicant 5]

REPRESENTATIVE:  Ms Sai Priya Sivalohan

CASE NUMBER:  2301259

HOME AFFAIRS REFERENCE(S):          BCC2016/4252456

MEMBER:Deputy President J.L Redfern PSM

DATE:16 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 August 2023 at 11:03am

CATCHWORDS:

REFUGEE – Subclass 886 (Skilled - Sponsored) visa – cancellation under s 109 of the Migration Act – incorrect answers given in previous applications – verification checks conducted by the department – applicant conceded he had previously travelled to Australia and applied for Australian visas on an assumed identity – consideration of prescribed circumstances – best interests of Australian citizen children as primary consideration – decision under review set aside and substituted for a decision not to cancel the visa

CASES:

Bettencourt v Minister for Immigration Citizenship Migration Services and Multicultural Affairs [2021] FCAFC 172

CFE16 v Minister for Immigration & Anor and CFD16 v Minister for Immigration & Anor [2020] FCCA 1083

DUX 22 v Minister for Immigration Citizenship and Multicultural Affairs 2022 FCFC (Div 2) 1018

DXQ16 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1184

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Promsopa vMinister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480

Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 634

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409

Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5

Webb v Minister for Home Affairs [2020] FCA 831

LEGISLATION:

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 109(1)(b), 109(1)(c), 140(1)
Migration Regulations 1994 (Cth), reg 2.41, r 2.41(a), r 2.41(c), r 2.41(d), r 2.41(e), r 2.41(f), r 2.41(g), r 2.41(i), r 2.41(h), r 2.41(j)

SECONDARY MATERIALS:

Department of Home Affairs, Procedural Instruction – General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 886 (Skilled - Sponsored) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.The first named applicant applied for the visa on 21 April 2009. On 12 October 2017, a delegate of the then Minister for Immigration and Border Protection cancelled the applicant’s Subclass 886 (Skilled - Sponsored) visa on the basis that the applicant had provided incorrect information in his…

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Details
AGLC
2301259 (Migration) [2023] AATA 2575
Case
[2023] AATA 2575
Decision Date

CaseChat Overview and Summary

This matter concerns the review of a decision to cancel the Subclass 886 (Skilled - Sponsored) visa of the first named applicant, a citizen of India. The applicant had previously entered Australia under an assumed name, applied for a protection visa under that name which was refused, and subsequently applied for and was granted further visas under his own name, including the Skilled-Sponsored visa. The Department of Home Affairs identified that the applicant had provided incorrect answers to facilitate the grant of his Student and Skilled visas, leading to the delegate issuing a Notice of Intention to Consider Cancellation (NOICC) under section 109 of the Migration Act 1958 (Cth). The applicant, along with his minor children (the third, fourth, and fifth applicants), sought review of this cancellation decision.

The primary legal issue before the court was whether the delegate had erred in cancelling the first named applicant's visa under section 109 of the Act, which permits cancellation where a visa holder has failed to provide correct information or has been misleading in their application. The court was required to determine if the non-compliance identified by the delegate was sufficiently established and if the delegate had properly considered the applicant's response to the NOICC before making the cancellation decision.

Deputy Judge Redfern Psm P found that the evidence, including facial recognition reports, information from New South Wales Roads and Maritime Services, and site visits in India, cogently established that the first named applicant had entered Australia using an assumed identity and had provided incorrect information in his visa applications. However, the judge concluded that the delegate had failed to adequately consider the applicant's response to the NOICC, particularly in relation to the specific particulars of non-compliance raised. The judge determined that the decision to cancel the visa was therefore vitiated.

Consequently, the court set aside the decision under review and substituted a decision that the visa should not be cancelled. Due to the applicants being minors, a non-disclosure direction was made under section 378(1) of the Act, and the decision was anonymised.

Orders

Orders of the court

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Background

Background to the litigation

I have decided to set aside the decision under review and substitute a decision that the visa should not be cancelled. Because the third, fourth and fifth named applicants are minors, I have made a non-disclosure direction under s 378(1) and have decided to anonymise this decision. My reasons follow.DECISION UNDER REVIEW AND BACKGROUND The applicant is a citizen of India and is 45 years old. He applied for a Student visa on 29 September 1998 in the name of [assumed name]. There is no dispute that this was not the first named applicant’s name. This is explained in more detail later in these reasons. This visa ceased in March 2000, following which the first named applicant applied for a protection visa under the name [assumed name]. The application was refused, and the first named applicant sought review of this decision to the former Refugee Review Tribunal (RRT). The decision to refuse his application for protection was affirmed. The first named applicant departed Sydney in August 2003. He made an application for judicial review, which was unsuccessful. On 20 July 2005, the first named applicant made an application for a Student visa under his own name and arrived in Sydney in August 2005. He was granted further Student visas after this date and in April 2009, he made an application for a Skilled-Sponsored visa, which was granted on 2 December 2013. He applied for citizenship on 2 December 2014. As part of the assessment of his application, it was identified that the first named applicant had previously entered and resided in Australia under the name [assumed name]. This was discovered through undertaking assessments in relation to the first named applicant’s identity. In summary, the departmental identity assessment report concluded that [assumed Name] and the first named applicant were the same person. This was based on departmental facial comparison recognition reports, using photographic images of ‘[assumed name]’ obtained from his protection application and from the University of Wollongong student records and photographic images of the first named applicant obtained from his visa and citizenship applications. The department also relied on information obtained from New South Wales Roads and Maritime Services using their identity recognition system and site visits undertaken by Department officers in India in relation to the first named applicant’s identity, including the identity card issued by the Electoral Commission of India. This information is probative and cogent. As such, there appears to be little doubt that the first named applicant entered Australia using an assumed identity in 1999, that he applied for a protection visa under this assumed name and this application was refused and that he sought judicial review of the RRT decision under the assumed name. The first named applicant now properly concedes these matters. On 15 August 2017, the first named applicant was notified of the intention by the delegate to consider cancellation of his Subclass 886 (Skilled - Sponsored) visa under s 109 of the Act (the NOICC). He was invited to respond to the particulars for the ground for cancellation raised in the NOICC. The delegate identified a number of incorrect answers provided by the first named applicant to facilitate the grant of his Student and the Skilled visas. Given the importance, I recount those particulars in detail as follows.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Decision 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. Cancellation 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

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