1918722 (Refugee) - [2021] AATA 3503

1918722 (Refugee) [2021] AATA 3503 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918722
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Frances Simmons
DATE:11 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 11 August 2021 at 7:30pm
CATCHWORDS
REFUGEE – protection visa – cancellation – Afghanistan – incorrect information – irregular maritime arrival – claimed to be Pakistani citizen – Hazara – Shia – previous applications for humanitarian visas under different names – inconsistent evidence – applicant is citizen of Afghanistan – US withdrawal from Afghanistan – applicant’s ethnicity and religion – no support in Afghanistan – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2), 46A, 101-107, 109(1), 140, 189, 197C, 197D(2), 195A, 197AB, 198, 198(5), 438
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, r 2.41
CASES
Commonwealth of Australia v AJL20 [2021] HCA 21
MIAC v Khadgi (2010) 190 FCR 248
Ibrahim v MHA [2019] FCAFC 89
Any 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 which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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. Extracts of the Act relevant…

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 1918722 (Refugee)

Details

AGLC: 1918722 (Refugee) [2021] AATA 3503
Case: [2021] AATA 3503
Decision Date: 11 August 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Safe Haven Enterprise Visa (SHEV). The applicant had initially arrived in Australia in November 2012, claiming to be a Pakistani citizen named [Name 1] with a specific date of birth. He was granted a SHEV in March 2017. However, the Department of Home Affairs later issued a Notice of Intention to Consider Cancellation (NOICC) alleging the applicant had provided incorrect information regarding his name, date of birth, nationality, family composition, and visa history. This was based on a facial image comparison report linking his arrival image to an earlier application for a Global Special Humanitarian visa lodged in 2009 under the name [applicant name], where he was listed as an Afghan citizen.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his SHEV application, thereby constituting a ground for cancellation under the relevant provisions of the *Migration Act 1958* (Cth). This involved determining the applicant's true identity and nationality, and whether his initial claims were false. The Tribunal also considered the validity of a public interest immunity certificate issued by the Department, which restricted the disclosure of certain information.

The Tribunal found that the applicant had indeed provided incorrect information in his SHEV application. In response to the NOICC, the applicant conceded that he was not [Name 1], a Pakistani citizen, but rather [applicant name], an Afghan national of Hazara ethnicity and Shi’a religion. He stated that his previous claims were false and that he is a citizen of Afghanistan, born around [DOB 2]. The Tribunal was satisfied that the facial image comparison report provided strong evidence of the applicant's identity across the two applications. Furthermore, the Tribunal was satisfied that the public interest immunity certificate was valid and that the adverse information relied upon by the Department had been disclosed to the applicant in the NOICC.

The Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is satisfied that the s.438 certificate identifies a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. The applicant did not make any comment on the validity of the certificate other than to state he accepted the Tribunal’s decision. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was disclosed to the applicant in the Notice of Intention to Consider Cancellation (NOICC). Background The applicant arrived in Australia by boat [in] November 2012, and identified himself as [Name 1] (DOB [DOB 1]), a Pakistani citizen. On 22 January 2016 he applied for a Safe Haven Enterprise Visa (SHEV) (Subclass 790). This application was accompanied by a copy of a Pakistani National Identity Card (NIC) in the name of [Name 1] (DOB [DOB 1]), a marriage certificate relating to the marriage of [Name 1] and [Ms A], and a birth certificate in his claimed identity. He was granted the SHEV visa on 3 March 2017. On 30 April 2019, the Department sent the applicant an NOICC of his SHEV visa. The NOICC alleged that the applicant provided incorrect information in his protection visa application as to his name, date of birth, nationality, family composition and visa history. The Department had formed this view because it conducted a Facial Image Comparison Report dated 20 November 2018 comparing images of the applicant taken on arrival in Australia to images from an application for an offshore Subclass 202 visa that was lodged on 1 December 2009. The Forensic Facial Image Examiner concluded that the images of [Name 1] (DOB [DOB 1]), the identity the applicant claimed when he applied for a SHEV, and [applicant name] ([DOB 2]) were of the same person. The Department considered that the results of the forensic facial image comparison indicated that the applicant had been known by the name of [applicant name] (DOB [DOB 2]) and that he previously applied for a Global Special Humanitarian (Subclass 202) visa. This application was lodged by [Mr B] (DOB [Year 3]) in 2009 and the applicant was included as a secondary applicant in the name of [applicant name] (DOB [DOB 2]). The application was proposed by [Mr B] (DOB [DOB 4]), [applicant name]’s brother. In the Form 842 - Application for an Offshore Humanitarian visa, the applicant’s father [Mr B] (DOB [Year 3]) was listed as the primary applicant and identified as a citizen of Afghanistan, residing in Pakistan as a refugee. The applicant was listed as [Mr B]’s son, born in Afghanistan and a citizen of Afghanistan. His mother was listed as [Name deleted] (DOB [year]). A copy of an Afghan passport number [deleted] was provided in the name of [applicant name], s/o [Name 2], date of birth [DOB 2]. This application was refused on 4 June 2010. In the response to the NOICC, the applicant conceded that he provided incorrect information to the Department in the SHEV application. The applicant stated that the correct information is that he is [applicant name], [an age]-year-old national of Afghanistan. He is of Hazara ethnicity and Shi’a religion. He stated he is a citizen of Afghanistan who was born around [DOB 2] although, in truth, like most Afghans, this date of birth was only an approximate date. He stated that his blood brother, [Mr B] (DOB [DOB 4]), is an Australian citizen, residing in Australia, and his sister, [Ms C], lives in Melbourne. He states that he is married to [Ms A], a citizen of Pakistan, and that he does not have any legal right to reside in any country other than Afghanistan. He states that it is not true that he is a citizen of Pakistan and that his father, [Mr D], is a citizen of Afghanistan. Was there non-compliance as described in the s.107 notice?

Evidence

Evidence Before The Court

In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.Evidence before the TribunalRestrictions on the disclosure of information The Department’s file contains a certificate dated 19 July 2019 restricting the disclosure of certain information given to the Tribunal by the Department under s.438 of the Act. This certificate provides states that the disclosure of the information contained in folios 1–4, 6–7, 8–9 of file number [deleted] would be contrary to the public interest as it contains ‘documents or information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’ and could ‘potentially be used to assist people to circumvent the Department’s processes’. The Tribunal is satisfied that the s.438 certificate identifies a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. The applicant did not make any comment on the validity of the certificate other than to state he accepted the Tribunal’s decision. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was disclosed to the applicant in the Notice of Intention to Consider Cancellation (NOICC). Background The applicant arrived in Australia by boat [in] November 2012, and identified himself as [Name 1] (DOB [DOB 1]), a Pakistani citizen. On 22 January 2016 he applied for a Safe Haven Enterprise Visa (SHEV) (Subclass 790). This application was accompanied by a copy of a Pakistani National Identity Card (NIC) in the name of [Name 1] (DOB [DOB 1]), a marriage certificate relating to the marriage of [Name 1] and [Ms A], and a birth certificate in his claimed identity. He was granted the SHEV visa on 3 March 2017. On 30 April 2019, the Department sent the applicant an NOICC of his SHEV visa. The NOICC alleged that the applicant provided incorrect information in his protection visa application as to his name, date of birth, nationality, family composition and visa history. The Department had formed this view because it conducted a Facial Image Comparison Report dated 20 November 2018 comparing images of the applicant taken on arrival in Australia to images from an application for an offshore Subclass 202 visa that was lodged on 1 December 2009. The Forensic Facial Image Examiner concluded that the images of [Name 1] (DOB [DOB 1]), the identity the applicant claimed when he applied for a SHEV, and [applicant name] ([DOB 2]) were of the same person. The Department considered that the results of the forensic facial image comparison indicated that the applicant had been known by the name of [applicant name] (DOB [DOB 2]) and that he previously applied for a Global Special Humanitarian (Subclass 202) visa. This application was lodged by [Mr B] (DOB [Year 3]) in 2009 and the applicant was included as a secondary applicant in the name of [applicant name] (DOB [DOB 2]). The application was proposed by [Mr B] (DOB [DOB 4]), [applicant name]’s brother. In the Form 842 - Application for an Offshore Humanitarian visa, the applicant’s father [Mr B] (DOB [Year 3]) was listed as the primary applicant and identified as a citizen of Afghanistan, residing in Pakistan as a refugee. The applicant was listed as [Mr B]’s son, born in Afghanistan and a citizen of Afghanistan. His mother was listed as [Name deleted] (DOB [year]). A copy of an Afghan passport number [deleted] was provided in the name of [applicant name], s/o [Name 2], date of birth [DOB 2]. This application was refused on 4 June 2010.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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