1833464 (Refugee)
[2020] AATA 4724
•12 October 2020
1833464 (Refugee) [2020] AATA 4724 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1833464
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Kate Millar
DATE:12 October 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 12 October 2020 at 12:48pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – identity assessment – similar details in a different Subclass 202 visa application – forensic facial comparison reports not supplied by Department – significant differences in family composition and education – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 418, 438, 440
CASES
BYT20 v Minister for Home Affairs [2020] FCCA 2191
El Jejieh v Minister for Home Affairs (No.2) [2019] FCCA 840
Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 26 October 2018 made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel [the applicant’s] Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).
The visa was cancelled because the delegate was not satisfied of [the applicant’s] identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
[The applicant] appeared before the Tribunal on 24 September 2020 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
SECTION 438 CERTIFICATE
Under s.438 of the Act, the Minister may certify in writing that the disclosure of information contained in a document would be contrary to the public interest or that the information or document was given to the Minister in confidence. If a valid certificate is issued, the tribunal may have regard to the information and may disclose it but must give a direction under s.440 of the Act in relation to the information.
In this case a certificate was issued under s.438 of the Act. The certificate is dated 16 July 2019. It is not signed. It refers to information that is not contained in the folio to which it refers. Specifically, the certificate purports to cover folio 7 of the file and:
Paragraphs 1,2 and 3 which fall under the headings overview of Facial & Image Recognition and the forensic comparison process and Levels of Opinion. (emphasis in original)
Folio 7 of the file does not include these headings or this information, in fact this information could not be located anywhere in the documents provided by the Department nor, as detailed further below, did the Department provide it when asked to do so by the Tribunal.
The Tribunal considers this certificate is invalid as it is not signed,[1] and as the information purportedly covered by the certificate could not be located.
[1] El Jejieh v Minister for Home Affairs (No.2) [2019] FCCA 840
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The degree of satisfaction required
In looking to the degree of satisfaction required to make a finding that a ground to cancel the visa exists, in Sun v Minister for Immigration and Border Protection,[2] Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making.
[2] [2016] FCAFC 52
However, the Tribunal is mindful of the gravity of the consequences of cancelling a protection visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[3]
[3] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20]
In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:
The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[4]
[4] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119]
In looking at whether the Tribunal is not satisfied as to [the applicant’s] identity, the Tribunal has kept in mind the gravity of the decision and the central relevance of such a finding and it has exercised caution in evaluating the factual foundation for such a finding.
Validity of the notice issued under s.119 of the Act
It is submitted on behalf of [the applicant] that the notice issued under s.119 of the Act is invalid. Section 119 requires the Minister to notify a visa holder there appears to be grounds to cancel the visa, to give particulars of the grounds, and to give particulars of the information because of which the grounds appear to exist. As [the applicant] was not provided the photographs said to show he is the same person as the applicants for two other visas, or the forensic facial comparison that was said to establish this, it is submitted the particulars have not been given and the notice is defective.
Failing to provide a person with the material on which a decision is to be based denies the person the opportunity to respond meaningfully to the allegations made. In similar circumstances, Judge Driver in BYT20 v Minister for Home Affairs[5] found that failure to provide copies of photographs relied on by the delegate was procedurally unfair as the applicant could not usefully respond without seeing the photographs.[6] Information in the forensic facial examiner’s report would have assisted the applicant in responding to the notice.[7]
[5] [2020] FCCA 2191
[6] At [97]
[7] At [99]
The Tribunal provided [the applicant] with the photographs at the hearing and gave him an opportunity to comment on the photographs. Information from the biometric report was also provided. As detailed below, a facial comparison report from a forensic specialist was not before the Tribunal.
The Tribunal can ‘cure’ defects in procedure for a notice issue under s.119 of the Act,[8] and the information before the Tribunal was provided to [the applicant] at hearing. It follows that any defect in the s.119 notice has been remedied. However, it would be desirable for the person to be given the opportunity to respond to adverse material before the delegate makes his or her decision.
[8] Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387 at [31] – [37]
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.
Identity comprises more than proof of name and date of birth, and may include a person’s country of nationality or habitual residence, citizenship, ethnic group, language and religion.[9] Establishing identity for people whose country of origan does not have robust documentation, or where the person may be unable to obtain any documentary evidence of his or her identity involves looking at the available documentary evidence, any biometric data and the narrative of the person.[10] In addition, recognition of the person by the community to which they claim to belong is of assistance.
[9] ibid
The delegate found [the applicant] was the same person as had applied for a Subclass 2020 visa on 14 June 2011 as a dependent applicant in the name [variant 1 of the applicant’s name] and was also the same person who had applied for A Subclass 202 visa on 11 June 2010 as a dependent applicant in the name [variant 1]. The basis on which the delegate found [the applicant] was the same person as the applicants other Subclass 202 visa application is:
A forensic facial comparison was completed with a photo the visa holder submitted in his Protection visa application and the photo of the Humanitarian (subclass 202) visa application lodged 14 June 20011 which was refused 14 September 2011. This forensic analysis showed the visa holder is the person who was included as a dependent in the Humanitarian (subclass 202) visa application.
The basis on which the delegate found [the applicant] was the same person as [variant 1] is that “[d]epartmental systems indicates that the visa holder was included as a dependent applicant for a Humanitarian (subclass 202) visa lodged in 11 June 2010.
The delegate then considered the difference between the various applications and found that this led to a lack of satisfaction about the identity of [the applicant].
Section 418(3) requires the Secretary to give to the Registrar each other document or part of a document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the decision. As the delegate refers to the forensic facial comparison in the decision record, any documents recording this opinion are relevant to the decision. The Secretary did not provide the facial image comparison, or the forensic analysis referred to by the delegate in the decision.
While the Secretary has a statutory obligation to provide relevant information, as there was no record of an opinion of a forensic analyst in the documents provided to it, the Tribunal twice requested from the Department a copy of the forensic facial comparison report.
The first response from the Department was:
I note that no biometric report is available for this case. The only relevant document is the Identity and Biometrics Biographic Comparison Report which was already provided to the tribunal when the file was originally forwarded as per pages 5-8 of [file number].
On being asked again by the Tribunal if a “Facial Image Comparison Report” or a forensic facial image comparison is available, the response was:
As per my earlier email the only document available is the Identity and Biometrics Biographic Comparison Report which was provided with the initial file. I note this document informs that all images have been checked by a Forensic facial examiner.
The information contained in the document is a standard paragraph after the body of the report and states:
All facial matches are examined and assessed by a member of the Facial comparison team to establish the type of match. These match results are cleared by a forensic level officer.
The Tribunal is not prepared to rely on a report that a forensic facial examiner has checked the images. In addition to not being direct evidence of the opinion of a forensic facial examiner, it does not show the Tribunal the basis on which the match was made, how conclusive the results were, or any limitations on a match made that may affect the results, for example the quality of the image.[11]
[11] See, for example BYT20 v Minister for Home Affairs [2020] FCCA 2191
The report that was before the Tribunal is stated to be a desktop analysis, with the purpose of the report to identify if a matched client had provided consistent or inconsistent biographical information and to flag identity concerns. The recommendation from the report was that inconsistences were investigated and actioned as appropriate.
This report shows that the similarities between the three applications were the given name of the applicant and the given name of the mother of the applicant. There was a connection between the three visa applications in that a person named [Mr A] was named as a stepbrother in both Subclass 202 visa applications, but as a family friend in [the applicant’s] application. The address while in Pakistan for the Subclass 202 visa application was [address with house number, in] Hazara Town Quetta and for [the applicant’s] visa application was [same address without house number, in] Hazara Town Quetta.
There is no photograph of the applicant for the Subclass 202 visa dated 11 June 2010. There are photographs of the applicant for the Subclass 202 visa dated 14 June 2011. The photograph of the Subclass 202 visa application lodged 14 June 2011 and the photograph of [the applicant] photograph do look alike to an untrained eye, however the Tribunal does not consider this a reliable method to determine if they are the same person.
[The applicant] was shown the photograph from the Subclass 202 application at the hearing, and denied it was a photograph of him. He identified the photograph that accompanied his application as being him.
The differences between [the applicant’s] subclass 866 visa application and the two subclass 202 applications are:
· The family name,
· The second given name of the applicant,
· The date of birth,
· The place of birth (although the province in Afghanistan is the same)
· The name of the father,
· The second name of the mother,
· The entire family composition (names of brothers and sisters and their dates of birth),
· Date the person left Afghanistan,
· Dates commenced living in Pakistan,
· Education, and
· Whether mother was living or deceased.
At hearing, [the applicant] provided oral evidence of his family composition, detail of his education and information about his father that was consistent with his visa application. He claims to be Hazara and Shi’a, a claim accepted as part of his application due to his facial features and language. He again requested and used a Hazaragi interpreter at hearing.
[The applicant] provided a taskira (Afghan identity document) issued [in] 2017 which cites his father’s record as the source document. He said he obtained the taskira by sending his wife with another person to Afghanistan to get it while he remained in Pakistan during a visit to his wife. He said he did not know where in Afghanistan she went to get the taskira, and that he sent his wife to obtain his taskira and register their marriage instead of going himself because he can’t go to Afghanistan. His wife is also Hazara and Shi’a. On being asked why it would be safer for his wife to go than for him to go, he said it was because he has travelled form Australia to Pakistan, and that it was safer for a woman to travel. He said he did not know why his wife had to do to obtain a taskira for him. He has a son, but sys he is now divorced because his wife divorced him after his visa was cancelled and he cold not go to see her. He said his son lives with his mother.
[The applicant] provided a taskira for his father. On being asked how he obtained the taskira, he said his mother sent it to him. He agreed he had been asked for identification previously by the Department when he arrived in Australia, but said he was in the detention centre and was not sure if this was a taskira for him. He could not provide further information on the issue of his father’s taskira, recorded to have been issued in 2010, or who had his father’s taskira when he came to Australia. He provided a taskira for his sister [named] and a copy of her passport.
[The applicant] denies that he applied for a visa to come to Australia before his Subclass 866 application, or that anyone had applied for a visa on his behalf.
[The applicant] provided a statutory declaration from [Mr A], stating he is a friend of [the applicant’s] father and had not known [the applicant] before he was asked to collect him from the airport by immigration. [Mr A] declares he has never sponsored [the applicant] for a humanitarian visa. [The applicant] provided a statement, albeit not on letterhead or with other identifying information that states it is from the [office bearer] of [a community association] stating [the applicant] was a member of the [community association] from 2012 – 2016.
While in Australia, he said he has not been known by any other name. He holds a driver’s licence and titre de voyage in the name [the applicant’s name].
CONCLUSION
[The applicant] has provided identity documents and consistent information about his family composition and has not used an identity other than [his name] in Australia. The Tribunal was not provided with a forensic report that is recorded by the delegate as being the basis of the finding that he is another applicant for a visa under another name or names. While there are similarities in the photographs, information provided in [the applicant’s] application and the two Subclass 202 visa applications is significantly different, in particular his family composition and education.
On this basis, the Tribunal is not satisfied there is sufficient doubt about his identity to be satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel his visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Kate Millar
Senior Member
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