1607767 (Refugee)

The Administrative Appeals Tribunal considered a case involving an applicant whose Protection visa was granted on the basis of their identity as an ethnic Hazara from Afghanistan facing persecution. The Department of Home Affairs subsequently issued a notice under s.107 of the Migration Act 1958, alleging non-compliance with ss.101(a), 101(b), and 103 of the Act. The core dispute revolved around whether the applicant had provided incorrect information or failed to answer questions truthfully and completely in their visa applications and supporting documents, and if so, whether their visa should be cancelled.

The Tribunal was required to determine if the applicant had failed to comply with the provisions of the Migration Act concerning the accuracy and completeness of visa applications. Specifically, the Tribunal had to assess whether the applicant had provided incorrect answers or failed to answer questions on the Form 866 (Protection visa application) and Form 80 (Personal Particulars for Character Assessment), and whether they had presented a bogus document. The Tribunal also had to consider the applicant's response to the s.107 notice and decide whether the visa should be cancelled.

The Tribunal found that while the applicant had indeed provided incorrect information and failed to answer certain questions accurately, particularly regarding their name, date of birth, place of birth, and citizenship, which led to the conclusion that they were not an Afghan national but a Pakistani citizen named [Name 1], the visa should not be cancelled. The Tribunal acknowledged the applicant's assertion of being a minor and illiterate at the time of application, and that their appointed representative may have selected certain options due to a lack of better choices. Furthermore, the Tribunal noted that the applicant's initial entry into Australia was facilitated by a people smuggler using a passport they did not see or know the name under which it was issued, and that the applicant had disputed the validity of facial image comparison reports. Ultimately, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.