Azimi (Migration)

[2019] AATA 3358

Azimi (Migration) [2019] AATA 3358 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mushtaq Azimi

CASE NUMBER:  1732172

DIBP REFERENCE(S):  BCC2017/1596824

MEMBER:Kira Raif

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 28 March 2019 at 2:40pm

CATCHWORDS
MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – ground for cancellation – incorrect information in visa application – both parents deceased – single money transfer – hawala method – possession of identity documents – credible witnesses – insufficient probative information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

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 to cancel the applicant’s Subclass 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Afghanistan, born in June 1999. He was granted the Class AH Orphan Relative visa on 6 September 2010. In October 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act in relation to his visa. The applicant provided his response to the Notice and his visa was cancelled on 13 December 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 16 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s siblings. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. 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.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s 101 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant was sponsored for the Class AH visa by his uncle Khodadad Azimi on 4 November 2009.

    b.The applicant stated in that application that he was an orphan. He stated that his father Gharib Dad died in May 2008 and his mother Bakhat Awar died from an illness in March 2007. The applicant’s siblings also applied for the Orphan Relative visas.

    c.The applicant’s brother Murtaza arrived in Australia in April 2010 and applied for a substantive visa. In his application he declared that his siblings, including the applicant, were resident in Quetta, Pakistan and that their parents were deceased.

    d.The Department received information that the applicant’s brother Murtaza made an international money transfer to his father Gharib Dad on 25 February 2013 which was labelled as ‘family support’ and was sent to Hazara Town, Balochistan, Pakistan. It is noted that identification is required to collect international money.

    e.On 8 December 2014 the applicant applied for the Australian citizenship. He was invited to comment on the above information. In his response, the applicant denied that his father was alive. The applicant confirmed that his father passed away in 2008 and his mother in 2007 and he provided witness’ statements confirming the deaths. The applicant stated that following his parents’ deaths, he and his brothers lived with an aunt in Quetta. The applicant also denied that his father was the beneficiary of funds transferred on 25 February 2013 but said his name was used as a reference for the transaction. The applicant states that his brother sent money to his aunt for a remembrance ceremony for his father. The applicant states that they used the ‘hawala’ method of sending money and the fund were collected by his aunt.

    f.The citizenship delegate noted that the witnesses who attested the parents’ deaths provided their identification numbers in their documents, contrary to the applicant’s claim that Afghani refugees in Quetta have no official documentation. The delegate found that the applicant’s family would have official identification documents to collect the funds and found the applicant’s explanation untruthful.

    g.The citizenship delegate notes in the primary decision record that financial information reports available to the Department distinguish the name of the beneficiary and a ‘reference’ for the transaction. The reports refer to the name of the person requesting the transfer and the beneficiary customer receiving the funds, which constitutes strong evidence that he applicant’s father, who was the beneficiary of funds, was alive at the time of transfer.

    h.The Department sought to verify the document attesting to the death of the applicant’s parents. The Department contacted the mobile number for Qurban Ali, who was one of the witnesses. The person who answered the phone had a different name and stated that he did not know anyone by the name of Qurban Ali and that he had the same mobile since 2001.

    i.The applicant’s citizenship application was refused in July 2017. 

    j.The decision record indicates that the applicant was previously issued with the NOICC and provided a written response on 25 August 2017 in which he claimed that the fund were sent by the Hawala method. The delegate states that the funds were transferred between legal entities and not using the Hawala method as claimed by the applicant.

11. In his written response to the NOICC the applicant states that he has been truthful and supplied credible information throughout his application.

12. With respect to the suggestion that the applicant’s family would have identity documents because the witnesses who attested the father’s death had identity documents, the applicant states that this finding is contrary to the available country information, which the applicant has cited. With respect to the beneficiary of funds, the applicant states that his brother used their father’s name as reference and it is not an indication of who collected the funds. The applicant states that he used the hawala method to transfer the funds to his aunt and this did not require identification to be provided by remitter or receiver. 

13. In his statutory declaration the applicant also states that his brother sent money using the hawala method of sending money. The money was for their aunt to hold a Fatiha Khwani ceremony for their father. The father’s name was used as a beneficiary to refer to the traditional ceremony which the aunt was going to organise. The funds were collected by their aunt. The applicant explains that they gave money to a broker in Australia and were given a pin code to give to the person receiving the funds. The applicant indicated that the family were in the process of obtaining an official death certificate for his father.

14. The applicant provided to the Tribunal a statement from Hazara Mongol Pty Ltd which outlines the hawala system of money transfers. It states that no identification of receiver is required and the receiver can use a pin that is given to remitter to receive funds. It is stated that while the remitters require identification to send money, identification is not required by the receiver

15. Following the hearing, the Tribunal forwarded the death certificate of the applicant’s father to the overseas post for verification. In March 2019 the Tribunal was informed that verification cannot be done.

16. The Tribunal generally found the applicant and his siblings to be credible witnesses. The Tribunal has also formed the view that the evidence of the parents being alive is minimal. The decision to cancel was based on the fact of a single money transfer in the name of the applicant’s parents. The applicant has offered an explanation for the transfer which is not completely implausible. It is not necessary for the Tribunal to positively determine that what the applicant states had occurred in relation to the money transfer is in fact the truth.

17. In Zhao v MIMA [2000] FCA 1235 the Court stated.

    A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

18. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

19. The Tribunal has formed the view that the concerns raised as part of the Departmental investigations do not provide sufficient information and are not of sufficiently probative nature as to form positive satisfaction that the applicant had breached 101 of the Act. The evidence that formed the basis of the primary decision relates to the money transfer. There is no probative evidence that the funds were in fact collected by the applicant’s parents. There is no evidence that they were the beneficiary of the transfer. It is at least possible that the money was sent to persons other than the applicant’s parents, as the applicant claims. While the evidence that formed the basis of the decision raises significant concerns about the circumstances of the applicant’s parents, in the Tribunal’s view, such concerns raise a mere possibility of the breach and that is not sufficient to give rise to the power to cancel. Should further information become available, the cancellation of the visa held by the applicant may be considered anew.

20. For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

21. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

    Kira Raif
    Senior Member