Gulzari (Migration)

Case [2018] AATA 2340

Gulzari (Migration) [2018] AATA 2340 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Halima Gulzari
Mr Zulfiqar Gulzari
Ms Samiya Gulzari
Ms Aliya Gulzari
Ms Abida Gulzari
Master Waqar Gulzari

CASE NUMBER:  1622102

DIBP REFERENCE(S):  BCC2016/2856273 / OSF2010/008907

MEMBER:Stavros Georgiadis

DATE:23 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 100 (Spouse) visa.

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

Statement made on 23 May 2018 at 6:40pm

CATCHWORDS
Migration – Cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Whether the applicant has supplied bogus documents – Whether the s. 107 notice issued is valid - Death certificates provided by the applicant – Where authorities of the applicant’s home country have advised that the documents are bogus – Where authorities did not provide reasons for their advice - Where the delegate substantially relied on the advice of the authorities - Sufficient particulars not given to applicant – Applicant denied reasonable opportunity to respond to adverse information – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 101, 103, 107, 108, 109, 119, 140, 375A
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Brar
MIAC v Khadgi (2010) 190 FCR 248
Salama v MIBP [2016] FCCA 540
Saleem v MRT [2004] FCA 234
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
SZEEM v MIMIA [2005] FMCA 27
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 first named applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

  2. The delegate cancelled the visa under section 109 of the Act on the basis that the visa holder did not comply with s.103 of subsection C of the Act as she presented bogus documents to the delegate assessing her Partner 100 visa application and the delegate considered that the grounds for cancelling the visa outweighed the reasons for not cancelling.

  3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

  4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

  5. The applicants appeared before the Tribunal on 27 April 2017 and 21 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband…

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Details
AGLC
Gulzari (Migration) [2018] AATA 2340
Case
[2018] AATA 2340
Decision Date

CaseChat Overview and Summary

The case concerned the cancellation of a Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse), held by the applicant, Gulzari. The cancellation was based on allegations that the applicant had supplied bogus documents, specifically death certificates, which authorities in the applicant's home country had advised were not genuine. The delegate of the Minister had substantially relied on this advice, despite the foreign authorities not providing reasons for their assessment. The applicant contended that they had not been given sufficient particulars of the adverse information and were therefore denied a reasonable opportunity to respond.

The primary legal issues before the Tribunal were whether the notice issued under section 107 of the Migration Act 1958 was valid, and whether the applicant had been afforded a reasonable opportunity to respond to the adverse information relied upon for the visa cancellation. Section 109 of the Act permits visa cancellation if a visa holder fails to comply with certain provisions, including section 103 which prohibits the provision of bogus documents. However, the exercise of this power is contingent on the Minister issuing a valid notice under section 107, which requires providing particulars of the alleged non-compliance.

The Tribunal found that the notice issued to the applicant did not provide sufficient particulars of the alleged non-compliance, thereby denying the applicant a reasonable opportunity to respond to the adverse information. The Tribunal reasoned that while the delegate relied on advice from overseas authorities that the documents were bogus, the lack of reasons accompanying that advice, and the failure to adequately particularise this to the applicant, rendered the notice invalid. Consequently, the power to cancel the visa under section 109 could not arise.

The Tribunal set aside the decision to cancel the applicant's Subclass 100 (Spouse) visa and substituted a decision not to cancel it. The Tribunal noted that it had no jurisdiction with respect to other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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. Section 107(1) sets out the requirements for a notice and provides:Notice 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. (d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

Decision

Reasons for decision

Given the above findings, it is not necessary for the Tribunal to consider whether there was non-compliance as described in the s.107 notice, or the discretion of whether the visa should be cancelled, noting the department issued a s.375A Certificate regarding disclosure of certain information put to the applicant at the hearing.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 100 (Spouse) visa. The Tribunal has no jurisdiction with respect to the other applicants.Stavros GeorgiadisMemberATTACHMENT – Relevant Extracts from the Migration Act 1958:5Interpretation(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.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).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.

Ratio Decidendi

Legal Principle Established

The Tribunal has no jurisdiction with respect to the other applicants.Stavros GeorgiadisMemberATTACHMENT – Relevant Extracts from the Migration Act 1958:5Interpretation(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.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).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.