1921684 (Refugee) - [2021] AATA 1359

1921684 (Refugee) [2021] AATA 1359 (5 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921684
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Christopher Smolicz
DATE:5 March 2021
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 5 March 2021 at 2:24 pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – validity of the Notice of Intention to Consider Cancellation (NOICC) – date of the notice – service of the notice – errors in the notice – implications of a defect in the Department procedures – grounds of cancellation – satisfaction as to the applicant’s identity – National Identity Proofing Guidelines – incorrect information in previous visa applications – name and date of birth – family composition – identity documents – Afghan cultural naming practices – influence of people smugglers – persecution faced by Hazara Shia Muslims in Afghanistan – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 118A-127
Migration Regulations 1994 (Cth), r 2.55
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Krummrey v MIMIA (2005) 147 FCR 557
MIMIA v Ahmed (2005) 143 FCR 314
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Twist v Randwick Municipal Council (1976) 136 CLR 106
Uddin v MIMIA (2005) 149 FCR 1
Zhao v MIMA [2000] FCA 1235
Zubair v MIMIA (2004) 139 FCR 344
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 dated 29 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) because they were not satisfied as to 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 23 February 2012 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who provided evidence in support of the applicant’s identity. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
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
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…

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.

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Details

Case: [2021] AATA 1359
Decision Date: 5 March 2021

CaseChat Overview and Summary

This matter concerned an appeal against the cancellation of a protection visa. The applicant, who arrived in Australia in 2011, was granted a Protection (Subclass 866) visa in 2011 under the name "[Alias 1]". Subsequently, the Department of Home Affairs conducted a facial image comparison which revealed a match with a person named "[Mr E]", who had lodged previous visa applications. This led to the Department issuing a Notice of Intention to Consider Cancellation (NOICC) on the grounds that the applicant was not satisfied as to his identity. The Tribunal was required to determine the validity of the cancellation decision.

The primary legal issue before the Tribunal was whether the Minister was satisfied that the ground for cancellation under s.116(1AA) of the Migration Act 1958 (Cth) was made out, specifically concerning the applicant's identity. This involved assessing whether the applicant had provided false or misleading information regarding his identity, name, date of birth, and family composition, and whether the Department had properly considered the complexities of Afghan naming conventions and the applicant's background in light of the National Identity Proofing Guidelines. The Tribunal also considered the implications of any procedural defects in the Department's process and the applicant's cultural context, including the persecution faced by Hazara Shia Muslims in Afghanistan.

The Tribunal reasoned that while the applicant had provided conflicting information regarding his name and date of birth across various applications, this was largely attributable to the complexities of Afghan naming practices, the lack of formal documentation in Afghanistan, and the influence of people smugglers. The Tribunal accepted that the applicant was a Hazara Shia Muslim from Afghanistan and that his actions in providing inconsistent information were driven by a genuine fear of returning to Afghanistan and a desire to support his family, rather than for personal enrichment. Applying the principles from *BOY19 v Minister for Immigration and Border Protection*, the Tribunal found that the circumstances surrounding any falsehoods were not indicative of a significant moral deficiency. Furthermore, the Tribunal noted that a mere suspicion was insufficient for cancellation, and the decision-maker must be genuinely satisfied of the ground for cancellation.

Ultimately, the Tribunal concluded that the ground for cancellation under s.116(1AA) was not established. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 the 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.Relevant background The applicant arrived in Australia by boat [in] April 2011 and took part in an entry interview where he claimed to be [Alias 1], born [Date 1 in Year 1] from Daikundi Province Afghanistan. He described his ethnicity as Hazara and his religion as Shia Muslim. He is married and his wife, [Ms B] lives in [Country 1] with their sons, born in [year] and [year]. His father [Mr C], born in [year] was killed by the Taliban in 1999 or 2000, his mother remarried and lives in Afghanistan and he has two siblings. The applicant declared that he travelled to Australia with a friend ([Mr D]) who he met in [Country 2] on his journey to Australia. He declared that he had never applied for an Australian visa, lived in Afghanistan until 2007 and then travelled to [Country 3] in 2008 then [Country 1] until 2011. He has no relatives in Australia. On 10 June 2011 the Department undertook a Protection Obligations Determination (POD) and lodged a protection visa application (PVA). During the process the applicant was interviewed, provided a statement and completed Form 80 ‘Personal Particulars for character assessment’ in which he provided similar details and claimed his father had been killed in Afghanistan because he was a member of the Wahdat Party. He claimed his family name was [Surname 1] and his given names were “[Given name 1]”. He provided an untranslated Afghanistan identity card [number] (taskira) issued in 2003 in support of the identity “[Given name 1]”. The document records his date of birth as [Year 2] and his father as [Mr C]. On 21 September 2011 the applicant was granted a Protection (Subclass 866) visa in the name of “[Alias 1]”. On 5 December 2011 the applicant’s wife and dependent children applied for an offshore Refugee and Humanitarian visa (RHV). The applicant was listed as the proposer in the application. On 7 November 2012 the applicant’s wife and sons subsequently applied for offshore Subclass 100 partner visas. The visa was granted on 7 April 2013 and the applicant’s wife and sons arrived in Australia [in] September 2013. On 2 May 2014 the applicant notified the Department that he had changed his name from [Alias 1] to [Applicant Name]. The Department subsequently conducted a facial image comparison which showed that the applicant’s photograph submitted with his PVA matched a photograph of a person called [Mr E] (DOB [year]), who had previously lodged two offshore RHV applications dated 27 March 2006 (one as a dependent of his stepmother [Ms F], one individually), and a further individual application dated 22 February 2010.

Evidence

Evidence Before The Court

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 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 the 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.Relevant background The applicant arrived in Australia by boat [in] April 2011 and took part in an entry interview where he claimed to be [Alias 1], born [Date 1 in Year 1] from Daikundi Province Afghanistan. He described his ethnicity as Hazara and his religion as Shia Muslim. He is married and his wife, [Ms B] lives in [Country 1] with their sons, born in [year] and [year]. His father [Mr C], born in [year] was killed by the Taliban in 1999 or 2000, his mother remarried and lives in Afghanistan and he has two siblings. The applicant declared that he travelled to Australia with a friend ([Mr D]) who he met in [Country 2] on his journey to Australia. He declared that he had never applied for an Australian visa, lived in Afghanistan until 2007 and then travelled to [Country 3] in 2008 then [Country 1] until 2011. He has no relatives in Australia. On 10 June 2011 the Department undertook a Protection Obligations Determination (POD) and lodged a protection visa application (PVA). During the process the applicant was interviewed, provided a statement and completed Form 80 ‘Personal Particulars for character assessment’ in which he provided similar details and claimed his father had been killed in Afghanistan because he was a member of the Wahdat Party. He claimed his family name was [Surname 1] and his given names were “[Given name 1]”. He provided an untranslated Afghanistan identity card [number] (taskira) issued in 2003 in support of the identity “[Given name 1]”. The document records his date of birth as [Year 2] and his father as [Mr C]. On 21 September 2011 the applicant was granted a Protection (Subclass 866) visa in the name of “[Alias 1]”. On 5 December 2011 the applicant’s wife and dependent children applied for an offshore Refugee and Humanitarian visa (RHV). The applicant was listed as the proposer in the application. On 7 November 2012 the applicant’s wife and sons subsequently applied for offshore Subclass 100 partner visas. The visa was granted on 7 April 2013 and the applicant’s wife and sons arrived in Australia [in] September 2013. On 2 May 2014 the applicant notified the Department that he had changed his name from [Alias 1] to [Applicant Name]. The Department subsequently conducted a facial image comparison which showed that the applicant’s photograph submitted with his PVA matched a photograph of a person called [Mr E] (DOB [year]), who had previously lodged two offshore RHV applications dated 27 March 2006 (one as a dependent of his stepmother [Ms F], one individually), and a further individual application dated 22 February 2010.

Decision

Reasons for decision

In assessing the applicant’s claims regarding his true identity, the Tribunal has had regard to the Department’s National Identity Proofing Guidelines. In particular the Departmental guidelines note that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[5] [5] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 >Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. Also where, in response to a notice under s.119, the visa holder satisfies the delegate as to their true identity.[6] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.[6] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) – s.116(1AA) – Not satisfied as to identity (re-issue date 21/8/16)The Department’s policy advice manual explains:The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant’s identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[7][7] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1 Documentation includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their narrative. Biometrics include personal identifiers such as facial image and fingerprints.[8] [8] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2The Tribunal has also had regard to specific guidance developed by the Department in relation to Hazara Shia Afghan visa applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the applicants.[9]Nationality, race and religion[9] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016In assessing the applicant’s identity, the Tribunal has had regard to country information which confirms that the Hazara ethnic minority has a long history of persecution due to their Shia faith. Hazaras are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.[10] In particular, Hazara and Tajiks represent over 70% of the Afghan refugee population in Iran. [11] Reports confirm that the majority of Afghan refugees have been resident in both countries since fleeing the Soviet War in Afghanistan during the 1980s. Despite the success of voluntary repatriation programmes both in Pakistan and Iran, many Afghan refugees have specific needs, vulnerabilities and protection concerns that prevent their return. In addition, the volatile security situation and human rights violations in Afghanistan remain an ongoing concern. [10] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4[11] Afghan refugees in Iran & Pakistan | European Resettlement NetworkThe HRW confirms that Iran is failing to provide newly arrived asylum seekers access to protection because a functioning asylum system does not exist in Iran and the authorities are subjecting many Afghans to a range of rights abuses including arbitrary arrests and detentions. The report confirms that it has become increasingly difficult for registered Afghan refugees in Iran to retain their refugee status.[12] [12] Human Rights Watch, Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights, 20 November 2013, ISBN: 978-1-62313-0770, available at: >The Tribunal finds the applicant has presented that he is a Hazar Shia Muslim born in Bamyan, Afghanistan. He declared that his family fled Afghanistan because they feared harm from the Taliban because of their race and religion. The Tribunal finds the information about his race, religion and place of birth and fear of persecution has been consistently declared throughout his RHV applications, his entry interview and his PVA. The Tribunal also notes the applicant participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and the Tribunal finds that the applicant has the distinct facial features shared by Hazaras. As detailed above, country information confirms that the Hazara ethnic minority has a long history of persecution in Afghanistan due to their Shia faith. They are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. The Tribunal is satisfied the applicant was born in Afghanistan and is of Hazara ethnicity and Shia Muslim religion and that he moved to Iran with his family after the Soviet invasion of Afghanistan. Name and date of birthThe Tribunal has had regard to country information and accepts that that surnames in Afghanistan do not follow the same rigid rules as surnames in Western societies; it is a much more flexible concept. Country information confirms that Afghans traditionally use only a first name and generally lack a last name. Afghan people are often distinguished by their tribal affiliation, place of birth, profession or honorific titles. Afghans that have contact with the Western cultures may adopt a surname. In general, the educated or prosperous families living in urban areas use last names. In these instances, they generally select a last name that represents their tribal affiliation. It is also reported that male first names generally consist of two parts. It is common, that at least one of the parts includes a common name that is usually referred to as a “subordinate name”, such as Mohammad or Ali. This flexibility within the Afghan naming norms means it is not unusual for different surnames to exist within the same family, even siblings can choose to use different surnames.[13][13] The Structure of Afghan Names, November 2009 Karin Megerdoomian The Structure of Afghan Names (psu.edu)The Tribunal accepts that the applicant was called “[Given name 1]” at birth and he was born in about [Year 2]. The Tribunal finds the applicant provided false information about his name, family composition, date of birth and residential history when he arrived in Australia to distance himself from the false information provided by his father in the RHV applications. The Tribunal finds the applicant provided false information because he feared his PVA would be refused and because received misleading advice from members of his community and the people smugglers who arranged his trip to Australia. The Tribunal accepts that his father was known by the name [Mr C] and his mother who was called [Ms G] is deceased The Tribunal finds that when the applicant’s father arrived in Australia in 2001 he was undocumented and the authorities asked him for his full name, including his surname and he nominated the name “[Surname 1]” as his surname to comply with the visa form requirements. The Tribunal finds that when the applicant was living in [Country 1], he applied for a refugee card and was given the surname [“Surname 2”]. The name was subsequently adopted as a formal surname in [Country 1] and was used by his wife and children. The Tribunal accepts that since his wife and children arrived in Australia, he has officially changed his name to [Applicant Name] to be consistent with his wife and children.As detailed above three different dates of birth have been assigned to the applicant. According to the RHV applications lodged by his father he was born [on Date 3 in Year 3]. His taskira records he was born [four years earlier in Year 2]. His [Country 1] refugee card records his date of birth as [Date 2 in Year 2] and he declared he was born [on Date 1 in Year 1] when he arrived in Australia.The Tribunal accepts the applicant’s claims that he does not know his exact date of birth and was never issued with a birth certificate and has estimated it to be [Year 1]. Country information supports his evidence in this regard. DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain far from common; the high number of home births makes the process of registering births challenging; the reporting of birth dates is unreliable and reported dates are likely to be approximate.[14] [14] DFAT Country Information Report Afghanistan 27 June 2019 at 5.49Documents 100. The applicant provided the following three different documents in support of his identity: a taskira ([number]) in the name ‘[Given name 1]’ born in [Year 2], his [Country 1] refugee card which records his name as [Applicant Name] born [Date 2] and his [Country 1] marriage certificate. As detailed above the Tribunal has concerns about the marriage certificate which records his name as [Alias 1]. Although the Tribunal accepts the [Country 1] refugee card is genuine the Tribunal finds it was issued to the applicant in the surname of [Surname 2] which was not his name at birth.101. Country information confirms the taskira, a one-page official identity certificate issued by the National Statistics and Information Authority (NSIA), is the primary form of identification for Afghan citizens. DFAT reports that although the issuance of new e-taskiras (launched officially in May 2018) should help mitigate the risk of document fraud, it remains a major issue in Afghanistan. It states that genuine documents can be issued based on false information, with support forms of documentation such as school, academic or bank records easily forged. This is particularly problematic for taskiras – according to DFAT – given they are the primary document used to obtain other forms of identification.[15] [15] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.46–5.48 and 5.54102. For earlier taskiras, DFAT states: Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete[16]. [16] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.48103. DFAT also indicates that: NSIA field officers manually record the details of births and deaths; each location holds two registers, which are completed simultaneously when data is entered; when the registers become full both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged; and one register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.[17][17] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.45104. It is widely accepted that Afghan citizens displaced by the conflict in that country experience difficulties obtaining taskiras. This is because taskira access is based on recognition by family members or community elders, which pose significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity. Further, children and young people are at particular risk of lacking civil and identification documents, particularly when displaced.[18][18] Norwegian Refugee Council, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016 105. Country information confirms that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskira.[19] Country information also indicates that the Embassy of the Islamic Republic of Afghanistan in Canberra aids Afghan nationals in Australia who seek verification of their Afghan identity. [20][19] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia 106. There are a number of reports showing what is required to obtain a taskira: a completed application form, passport sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate) .[21] As to whether or not a family member can obtain a taskira for another adult family member, country information from various sources indicates that the presence of an individual (over the age of seven) is mandatory. In advice from the Immigration and Refugee Board of Canberra in February 2019, it is stated that the US Reciprocity Schedule for Afghanistan states that applicants over the age of seven ‘must apply in[ ]person and submit a thumb print’.[22] According to a 2016 Samuel Hall and Norwegian Refugee Council (NRC) report, all Afghans are required to ‘return to their family's place of residence, or to Kabul, to apply for [a] tazkera’.[23] [21] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, align="left">[22] Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019), 6 February 2019, align="left">[23] Samuel Hall and the Norwegian Refugee Council (NRC), Access to Tazkera and Other Civil Documentation in Afghanistan, November 2016, 107. The Tribunal has had regard to the country information detailed above and the circumstances in which the applicant’s evidence about the circumstances in which he personally obtained the document when he was in Afghanistan in 2003. The Tribunal is prepared to accept it is a genuine document. The Tribunal finds it ironic however that at the time the applicant applied for protection he provided a copy of his taskira which recorded his real name as [Alias 1] born [Year 2]. It seems surprising the Department did not cross reference the name and date of birth recorded in the taskira with the information provided in the PVA form. Conclusions as to the applicant’s identity108. In assessing the applicant’s evidence, the Tribunal has had regard to country information and is acutely aware that the applicant comes from a culture with different naming practices, where dates of birth have little significance and where many families have been displaced due to violent conflicts and face difficulty obtaining formal identity documents. The Tribunal also accepts the difficulties Afghan asylum seekers face when required to complete forms in the English language which require dates of birth, a first name, and surname which may not exist in their culture. 109. The Tribunal also accepts that many protection visa applicants are given misleading advice by people smugglers or members of their own community who seek to assist them lodge their claims. Having said that, the Tribunal is also aware that some applicants seek out advice to facilitate migration outcomes to enable them to stay in Australia and create future migration pathways for other family members.110. The Tribunal accepts that the applicant comes from an ethnic and religious minority group that continues to face persecution in Afghanistan. The Tribunal accepts that the applicant’s actions and those of his father in providing false information were underpinned by a genuine fear of being sent back to Afghanistan and the need to continue to support their families. Country information confirms that family is the single most important aspect of life in Afghanistan. Afghan culture is very collectivistic, and people generally put their family’s interests before their own. This means that family responsibilities tend to hold a greater importance than personal needs.[24] The essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[25] [24] ICG 2009, UNHCR 2010, Still Human Still Here 2012111. The Tribunal accepts the applicant arrived in Australia as IMA because his life was in danger and he was escaping persecution. The applicant’s non-compliance needs to be seen against the background of the persecution faced by Hazara Shia Muslims in Afghanistan and the lack of a functioning asylum system in [Country 1]. 112. In this regard, the Tribunal is guided by the remarks of Justice O’Bryan in BOY19 v Minister for Immigration and Border Protection[26] that: [26] [2019] FCA 574honesty and dishonesty are not moral absolutes, and the circumstances in which a lie has been told has a substantial bearing on any perceived moral deficiency. … The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.[27][27] Ibid at [71]113. In conclusion, for the reasons above and having considered the matters raised in the NOICC, the Tribunal is satisfied the applicant was born [Given name 1] and has now legally changed his name to [Applicant Name], born in about [Year 1]. He is a Hazara Shia from Afghanistan. He was born in [Location 1], [District 1], Bamyan Province, Afghanistan. He is married to [Ms B] and together they have three children.114. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise. 115. In doing so, the Tribunal notes relevant case law that a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA, the Full Federal Court stated:The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[28] [28] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]. 116. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION117. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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