1711459 (Refugee)

The applicant, who arrived in Australia as an Illegal Maritime Arrival in February 2010, was granted a protection visa on the basis of being a Hazara from Afghanistan. The dispute arose when the Department of Home Affairs initiated a process to consider cancelling his visa under section 116(1AA) of the Migration Act 1958 (Cth), following an Identity Integrity Assessment that concluded his claimed identity was not supported. The applicant's protection visa was the only decision before the Tribunal, as the visas of other applicants were automatically cancelled by operation of law following the cancellation of the first applicant's visa.

The primary legal issue before the Tribunal was whether it was satisfied that the applicant's identity was not supported, which would be a ground for cancellation under section 116(1AA) of the Act. This required the Tribunal to consider the findings of the Identity Integrity Assessment, which raised concerns about the applicant's provided identity documents, inconsistencies in his family and travel history, and the use of a surname traditionally not used by Hazaras. The Tribunal also had to consider a non-disclosure certificate issued under section 438 of the Act in respect of certain departmental documents, while also exercising its discretion to disclose the particulars of the Identity Integrity Assessment to the applicant.

The Tribunal reasoned that while the Identity Integrity Assessment raised several concerns, including the authenticity of an Afghan driver's license and discrepancies in the applicant's account of his family and travel history, it ultimately formed the view that these concerns were either based on erroneous cultural assumptions or insufficient facts. Specifically, the Tribunal found that the applicant's Facebook profile being in Farsi, rather than Dari or Hazaragi, was not a relevant concern. Having considered the information and exercised its discretion to disclose material subject to the section 438 certificate, the Tribunal concluded that it was satisfied as to the applicant's claimed identity and that he was an Afghan national. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1AA) existed.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa. The Tribunal also noted that it had no jurisdiction with respect to the other applicants whose visas were automatically cancelled.