1921684 (Refugee)

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.