2305522 (Refugee)

Case [2023] AATA 4814

2305522 (Refugee) [2023] AATA 4814 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ali Mahmood Alkafaji

CASE NUMBER:  2305522

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Jane Marquard

DATE:14 December 2023

PLACE OF DECISION:  Sydney

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 14 December 2023 at 11:13am

CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Stateless – inconsistent information regarding identity documentation – family are stateless Faili Kurds – Tribunal is not satisfied that the ground specified in the notice is made out – cancellation power does not arise for consideration – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 46A, 116, 119, 198, 438

Migration Regulations 1994, r 2.55, Schedule 2

CASES

MZZJO v MIBP [2014] FCAFC 80

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

  1. This is an application for review of a decision dated 21 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND TO THIS APPLICATION FOR REVIEW

  2. The applicant was born in Iraq but lived in Iran with his former wife, [Ms A] prior to arrival in Australia on [date] June 2010. As he arrived without a visa on a boat at Christmas Island, an excised territory, he was classified by the Department of Home Affairs (the Department) as an Illegal Maritime Arrival and placed in immigration detention. He and his then wife claimed that although living in Iran, they were stateless Faili Kurds and not Iranian nationals.

  3. The applicant and his former wife have a son, [Child B], born while they were in community detention in 2011. [Child B] is an Australian citizen. The applicant gave evidence about spending a significant amount of time with his son, despite the applicant’s separation from his son’s mother.

  4. The applicant was granted a protection visa on 6 September 2011.

  5. The delegate of the Department of Home Affairs (the Department) cancelled his protection visa on 21 March 2023 under s 116 of the Act on the basis that the delegate was not satisfied as to the applicant’s identity. The applicant’s former wife’s visa was also cancelled consequentially.

  6. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal). The key issues are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

    CANCELLATION BY THE DEPARTMENT

    Notice of Intention to Consider Cancellation dated 22 December 2022

  7. On 22 December 2022 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC)…

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AGLC
2305522 (Refugee) [2023] AATA 4814
Case
[2023] AATA 4814
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under section 116 of the *Migration Act 1958* (Cth). The applicant, who arrived in Australia in 2010 and was subsequently granted a protection visa, had claimed to be a stateless Faili Kurd who had never held identity documents. The delegate cancelled the visa on the basis that the applicant had provided inconsistent information regarding his identity and that the delegate was not satisfied as to the applicant's identity.

The Tribunal was required to determine whether the ground for cancellation, specifically that the applicant's identity was not established to the satisfaction of the decision maker, was made out. If this ground was established, the Tribunal would then need to consider whether the visa should be cancelled, taking into account all relevant circumstances. A preliminary issue involved a non-disclosure certificate issued by the Department, which prevented the Tribunal from disclosing certain folios to the applicant, though the general contents were disclosed.

The Tribunal found that while the Department had conducted investigations, including an identity and biometrics report that concluded the applicant's identity was not supported and suggested he may have falsified his life story and nationality, it was not satisfied that the ground for cancellation was made out. The delegate's decision was based on inconsistencies in the applicant's claims about identity documents, the discovery of his former wife's Iranian citizenship (casting doubt on their shared claim of statelessness), and evidence suggesting the applicant may have used different names. However, the Tribunal ultimately concluded that the evidence did not sufficiently establish the grounds for cancellation.

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

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision dated 21 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THIS APPLICATION FOR REVIEW The applicant was born in Iraq but lived in Iran with his former wife, [Ms A] prior to arrival in Australia on [date] June 2010. As he arrived without a visa on a boat at Christmas Island, an excised territory, he was classified by the Department of Home Affairs (the Department) as an Illegal Maritime Arrival and placed in immigration detention. He and his then wife claimed that although living in Iran, they were stateless Faili Kurds and not Iranian nationals. The applicant and his former wife have a son, [Child B], born while they were in community detention in 2011. [Child B] is an Australian citizen. The applicant gave evidence about spending a significant amount of time with his son, despite the applicant’s separation from his son’s mother. The applicant was granted a protection visa on 6 September 2011. The delegate of the Department of Home Affairs (the Department) cancelled his protection visa on 21 March 2023 under s 116 of the Act on the basis that the delegate was not satisfied as to the applicant’s identity. The applicant’s former wife’s visa was also cancelled consequentially. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal). The key issues are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.CANCELLATION BY THE DEPARTMENTNotice of Intention to Consider Cancellation dated 22 December 2022 On 22 December 2022 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa, under s 116(1AA) of the Act. In the conclusion of the NOICC, the delegate of the Department stated:based on the information before me it appears that you have provided inconsistent and contradictory information regarding your identity, your family composition and their whereabouts, as well as your life story. I consider that to date you have not provided any documentation to support your claimed identity as [Alias 1] (DOB [date]). The particulars of the grounds for cancellation and information indicating the grounds for cancellation were listed in the NOICC, which is set out in Attachment A to this decision.Response to the NOICC by the applicant The applicant did not respond to the NOICC. The Department noted in the decision dated 21 March 2023 that the applicant had not contacted the Department since his identity interview on 13 September 2019.Decision by the Department to cancel the visa on 21 March 2023 On 21 March 2023 the Department cancelled the applicant’s visa under s 116(1AA) of the Act for the reasons elaborated in the NOICC set out in Attachment A. The delegate of the Department (the delegate) noted that the visa holder was granted a protection visa on the basis that he claimed to be a stateless Faili Kurd, who had resided in Iran for the majority of his life and who had never held any identity documents.

Evidence

Evidence Before The Court

The delegate noted that the applicant had not provided any reliable documentation supporting his identity. The delegate was unsatisfied as to the applicant’s identity.Evidence before this Tribunal The applicant appeared before the Tribunal on 5 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review. The applicant also provided detailed written submissions prior to the Tribunal hearing. This included a Statutory Declaration dated 23 September 2023 in which the applicant said that to the best of his knowledge all the answers he put in his protection visa application were correct. A summary of the evidence provided is set out in the findings below.FINDINGS AND REASONS 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) – the Tribunal must be satisfied as to the applicant’s identity. If satisfied that the ground for cancellation is made out, in that the Tribunal is not satisfied as to the applicant’s identity, 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. For the following reasons, the Tribunal is not satisfied that the ground for cancellation is made out and has concluded that the decision to cancel the applicant’s visa should be set aside.Non-disclosure Certificate A preliminary issue for the Tribunal to consider was that the Department had placed a Certificate on the Department file pursuant to s 438(1)(b) of the Act, certifying that certain folios in the file should not be disclosed by the Tribunal to the applicant. The reason given for this was that there was a public interest reason for non-disclosure, which was that it would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prevent the effectiveness of those methods. The Tribunal is satisfied that the Certificate was valid as it clearly specifies a public interest reason for non-disclosure and identifies the claimed harm to Department investigative measures if released. In light of this, the Tribunal did not provide a copy of the folios identified by the Certificate to the applicant, however, in order to be fair, the Tribunal disclosed the general contents of the folios to the applicant. The relevant folios were an identity and biometrics report produced by the Department dated 7 May 2020. The report concluded that the applicant’s identity was not supported and that it was highly likely that the applicant falsified his name, family composition, life story and nationality. The report concluded that it was highly likely that the applicant’s name was [Alias 3], that he had undeclared family members in Australia and that he was a citizen of Iran. The report was used by the Department in consideration of cancellation.

Decision

Reasons for decision

The applicant did not respond to the NOICC. The Department noted in the decision dated 21 March 2023 that the applicant had not contacted the Department since his identity interview on 13 September 2019.Decision by the Department to cancel the visa on 21 March 2023 On 21 March 2023 the Department cancelled the applicant’s visa under s 116(1AA) of the Act for the reasons elaborated in the NOICC set out in Attachment A. The delegate of the Department (the delegate) noted that the visa holder was granted a protection visa on the basis that he claimed to be a stateless Faili Kurd, who had resided in Iran for the majority of his life and who had never held any identity documents. The delegate stated that throughout his interactions with the Department since arriving on [date] June 2010 the applicant had given inconsistent information regarding identity documentation held prior to his arrival in Australia. The delegate noted that on his Biodata Form on [date] June 2010, the applicant claimed to have held a White Card but at the Entry Interview in July 2010 and during the Independent Merits Review (IMR) process, he stated that he did not have any identity documents, was not issued with a birth certificate, and had not applied for a Green Card, the predecessor of the White Card. The delegate noted that the applicant’s former wife, [Ms A], also claimed to be stateless and claimed that she had no identity documents. After they were granted protection visas, [Ms A]’s father provided the Department with a copy of his shenasnameh in January 2014. [Ms A]’s mother and brother were found by the Australian Border Force to have Iranian passports during baggage examinations in 2015 and 2016. The delegate found that the shnasnameh and Iranian passports prove that [Ms A]’s father, brother and mother are Iranian citizens, and it followed that [Ms A] was an Iranian citizen. In the delegate’s view, this caused significant doubt that the applicant, who travelled to Australia with [Ms A], was a stateless Faili Kurd. The delegate noted that the applicant claimed to have paid a people smuggler USD 18,000 for false Iranian passports for he and his former wife to travel to Australia. As [Ms A] is an Iranian citizen, the delegate found that it was highly implausible that this had taken place. The delegate noted that the applicant had consistently declared to the Department that his name is [Alias 1], however investigations by the Department revealed that he refers to himself as [Alias 2], and that his [social media] profile was under the name ‘[name]’ which was a very similar name to that of his former wife, [Ms A]. In a comment on [social media], an ‘undeclared cousin of the visa holder’s former wife’, referred to the applicant as ‘[Alias 3]’ in a comment. [Mr C] declared that he was the nephew of the applicant, and he referred to him as [Alias 3], and also declared that he was the cousin of the visa holder’s former wife. The delegate noted that Departmental records indicate that during a telephone call with the applicant’s emergency contact, [Ms D], a staff member from the Beirut office asked twice about [Alias 1]. On both occasions, [Ms D] gave information about her son, [Alias 3], who had left Iran. The delegate noted that country information about Iran and Iraq suggests that children inherit the family name of the father, and the applicant’s son’s family name was [name, the mother’s surname].

Ratio Decidendi

Legal Principle Established

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