KHAN (Migration) - [2017] AATA 1657

KHAN (Migration) [2017] AATA 1657 (25 September 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr NEHMATULLAH KHAN
CASE NUMBER:  1620338
DIBP REFERENCE(S):  BCC2016/1589808
MEMBERS:Jan Redfern (Presiding)

Kate Millar
DATE OF DECISION:  25 September 2017
DATE CORRIGENDUM
SIGNED:5 October 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following correction is made to the decision:
·       The reference to footnote 5 on page 8 of the decision should be deleted.

Jan Redfern
Deputy President

Kate Millar
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr NEHMATULLAH KHAN
CASE NUMBER:  1620338
DIBP REFERENCE(S):  BCC2016/1589808
MEMBERS:Jan Redfern (Presiding)

Kate Millar
DATE:25 September 2017
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 25 September 2017 at 11.45 am
CATCHWORDS
Migration – Cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative)– Notice of intention to cancel – Incorrect or misleading particulars – Failure to set out the effect of cancellation provisions – Reference to policy factors and failure to refer to mandatory factors for discretion – Whether notice defective – AAT’s powers on review where notice defective
LEGISLATION
Migration Act 1958 (Cth),ss 5(1), 103, 107, 108, 109, 111, 112, 496, 499
Migration Regulations 1994, cl 117.211, r 1.14, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Minister for Immigration v Brar [2012] FCAFC 30
Salama v MIBP [2016] FCCA 540
COT15 v MIBP (No.1) [2015] FCAFC 190

References in square brackets denote information that has been omitted pursuant to a written direction and replaced with non-identifying information: s.378(1) of the Migration Act 1958.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Khan came to Australia on a Class AH (subclass 117)(Orphan Relative) visa on 14 August 2010. He is a citizen of Afghanistan, and was living illegally in Pakistan before he came to Australia.
Mr Khan applied for Australian citizenship on 14 August 2014, and the Department of Immigration and Border Protection (the department) requested verification of his taskira, the Afghani identity document. The taskira was provided by Mr Khan with his application for citizenship. The Population Registration Department in Ghazni advised the department that this taskira was not registered and is ‘fraudulent’. As a result, a delegate of the Minister for Immigration and Border Protection cancelled Mr Khan’s subclass 117 visa on the basis that he had provided a bogus document to the department.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. Mr Khan says he was not aware the document was not a genuine document, that it was issued by the Afghani Consulate in Quetta in Pakistan, and that he was a minor at the time it was provided.
Mr Khan appeared…

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 KHAN (Migration)

Details

AGLC: KHAN (Migration) [2017] AATA 1657
Case: [2017] AATA 1657
Decision Date: 25 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a migration matter involving Mr. Khan, who held a Subclass 117 (Orphan Relative) visa. The dispute arose from the delegate's intention to cancel Mr. Khan's visa based on the submission of a fraudulent document. The AAT was tasked with determining whether the delegate was entitled to issue the notice of intention to cancel, whether the notice itself was valid, and if so, whether Mr. Khan had failed to comply with the relevant provisions, and finally, how the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal included whether the delegate had formed the necessary state of mind to engage section 107 of the Migration Act 1958 (Cth), which pertains to the cancellation of visas. This involved assessing if the delegate reasonably believed there had been non-compliance with a provision of the Act. Furthermore, the Tribunal had to determine the validity of the notice of intention to cancel issued to Mr. Khan, specifically whether it provided adequate particulars of the alleged non-compliance. If the notice was deemed valid, the Tribunal would then consider whether Mr. Khan had indeed failed to comply with the Act by submitting a bogus document, and if so, how the discretion to cancel the visa should be exercised, taking into account all relevant factors and any response provided by Mr. Khan.

The Tribunal found that while the taskira submitted by Mr. Khan was a "bogus document" within the meaning of section 5(1)(b) of the Act, Mr. Khan was not aware of this fact at the time of submission. Despite the document being bogus, the Tribunal was satisfied that the information it contained regarding Mr. Khan's identity and approximate age was correct. The Tribunal concluded that the delegate had reached the necessary state of mind to engage section 107 because the department had been provided with a bogus document. However, the Tribunal found the notice issued to be defective. Even if the notice had been valid, the Tribunal determined that, based on the material before it, the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Khan's Subclass 117 visa.

Orders

Orders of the court

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Background

Background to the litigation

The questions for determination are therefore:(1)Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?(2)If the answer to (1) is yes, was the notice valid?(3)If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?(4)If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?BACKGROUND FACTS, EVIDENCE AND FINDINGS OF FACT The Tribunal was provided with the department cancellation file but not the original department file in respect of the application made for the subclass 117 visa. Clearly this file was relevant to the review and was therefore requested from the department prior to the hearing. The department reported that the file had been destroyed in a storage facility fire in Dubai and the only information available was the information retained in its electronic records. This information was provided and comprised of case note records in the department’s electronic system, with a summary of the notes made in respect of the application of the applicant’s younger sister, Saliha, for a subclass 117 visa. A copy of the taskira provided by Mr Khan in support of his application for a subclass 117 visa was not provided, although a copy of a taskira for Mr Khan and a translation of this document were included in the cancellation file. The provenance of this taskira was not specified and we have referred to this issue in more detail later in these reasons. In addition to the department files, the Tribunal was provided with statements from Mr Khan, a letter from the Embassy of the Islamic Republic of Afghanistan Canberra, a copy of an original taskira and a translation of the taskira for his father Juma Khan, a second taskira that was not translated, and an untranslated document said to be his father’s employment certificate, copies of photographs, and statement regarding his current employment and a letter regarding his suitability for working with children together with the statements to the following effect: (1) Zahra Anwari, who states she in engaged to Mr Khan and they are planning to marry in the next year. It states she is from Afghanistan and it is not safe for her to return to Afghanistan.(2) Ms Amina Muradi, Mr Khan’s sister and his sponsor for the subclass 117 visa. Ms Muradi states she came to Australia in 2005, and now has three daughters. She states she is like a mother to Mr Khan and if he has to leave it will badly affect her family. She states her younger sister Saliha suffers from scoliosis and is in pain. Her brother Hayatullah is a full time student and is finding it difficult to concentrate on his studies because of the potential cancellation of Mr Khan’s visa. She confirmed that Mr Khan is engaged to Ms Anwari and further states that if Mr Khan is required to leave Australia it will traumatise her and her children, who see him regularly. (3) Mr Khan’s friend, Muhammed Medhi, who states he works with Mr Khan in Murray Bridge. Mr Medhi attests to Mr Khan’s good character. (4) Mr Khan’s friend, Syed Shah, who states he worked with Mr Khan at Ingham’s, and that Mr Khan also now drives a taxi for Mr Shah part time. Mr Shah also attests to Mr Khan’s good character. (5) Mr Khan’s supervisor at Ingham’s, Mr Gurnham Singh, who states Mr Khan works well in a team and has excellent problem solving skills. Mr Singh states that Mr Khan has the ability to work independently and follow instructions, is a hard worker and is of good character.(6) A fellow taxi driver, Mr Hussain Ali Muradi, who states Mr Khan has been driving his taxi, is honest and hardworking and is of good character(7) The Chairperson of the Afghan United Association, Mr Hussain Razaiat, who states Mr Khan is well known to the organisation. The Association is said to deliver cultural, social and settlement services. Mr Razaiat states that he can confirm Mr Khan is a member of the Hazara community from Afghanistan. (8) Character references from friends, Mr Ramzan Jafari, Tawk Lian Sung Za Thang and Zahir Saidi.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if the notice had been valid, we would made a decision that the visa not be cancelled based on the material before us. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 117 (Orphan Relative) visa.Jan RedfernDeputy PresidentKate MillarMember

Ratio Decidendi

Legal Principle Established

Having regard to the available evidence, we make the following findings of fact about Mr Khan’s identity and the document provided in support of his application for a subclass 117 visa :(1) Mr Khan made application for a subclass 117 visa on 19 August 2009 after being earlier refused a protection visa. Mr Khan’s older sister, who resided in Australia at that time, sponsored his application. Mr Khan’s younger siblings also made applications for visas under subclass 117.(2) In support of this application, Mr Khan submitted a taskira that he obtained from the Afghan Consulate in Quetta, Pakistan. We accept that the taskira was not registered and was not a genuine document. As such, the taskira was a bogus document within the meaning of s 5(1)(b) of the Act. However, we also accept that Mr Khan was not aware of this at the time he submitted it.(3) While the taskira may be ‘bogus’, we are not satisfied that the information contained in the document was incorrect.(4) On balance and in light of the taskiras provided for Mr Khan’s father, the letter from the Consulate and Mr Khan’s oral evidence we are satisfied that while the document is a bogus document, the information about Mr Khan’s identity and approximate age contained in the document is correct.(5) We are satisfied that the applicant is ‘Nehmatullah Khan’, that he was born in Afghanistan and was under 18 years of age at the time of the application for a subclass 117 visa. We are also satisfied that Mr Khan has three siblings and that the sponsor for his subclass 117 visa was his older sister.CONSIDERATIONWas s.107 engaged? Section 107 is only engaged if the Minister or, as in this case, the delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). Whether the Minister or delegate reached the requisite state of mind at the time of the issue of the notice is a question of fact to be determined on the basis of the evidence. In this case, the department sought verification of the taskira provided with the citizenship application and was advised by the Population Registration Department of Ghazni that it was not registered and is fraudulent. In these circumstances we are satisfied the delegate had reached the necessary state of mind to engage s.107, namely that the department had been provided with a bogus document. Was the notice issued valid? The Minister (or the delegate) must also issue 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. A notice under s.107 of the Act is required to give the particulars of the possible non-compliance (s.107(1)(a)). A notice was issued on 12 September 2016 which relevantly stated as follows:On 10 April 2015 the department performed an identity verification check with the Tazkira that you submitted to support your identity for the grant of the subclass 117 visa. The department received the following advice from the Population Registration Department of Ghazni province:“Tazkira with [registration details] from Jaghori district of Ghazni province belonging to Nematullah s/o Juma Khan s/o Ghulam Rasool is not registered and is fraudulent.”Therefore it appears that the Taskira that you submitted to support your identity at time of lodgement for your subclass 117 visa was fraudulent.This means that you have not complied with section 103 of the Migration Act because in support of your subclass 117 visa you submitted a bogus document to an officer of the department.