1923143 (Refugee)

1923143 (Refugee) [2021] AATA 5143 (25 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1923143
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Alison Murphy
DATE:25 November 2021
PLACE OF DECISION:  Melbourne
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.

Statement made on 25 November 2021 at 2:34pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ground for cancellation – incorrect information in visa application – other names known by – age and date of birth – personal contacts in Australia – Australian visa history – included in paternal cousin’s Global Special Humanitarian visa application under a different name – consideration of discretion – knowingly provided the incorrect information – incorrect information had little or no bearing on grant of visa – Hazara Shia – non-refoulement obligations – liable to prolonged immigration detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 48A, 101, 107, 109, 189, 196, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.41; Schedule 4, Public Interest Criterion 4103
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 Home Affairs 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 they considered the applicant provided incorrect information in the visa application. 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 18 November 2021 to give evidence and present arguments. 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.
BACKGROUND
The applicant arrived in Australia by boat [in] March 2013 and identified himself as [Applicant’s Full Name, comprised of Applicant’s Given Names and Applicant’s Family Name], an Afghan national born in Pakistan on [Date 1]. In April 2013 he participated in an identity interview and it was determined he was over the age of 18 and his date of birth was amended to [Date 2]. He was granted a temporary humanitarian visa in May 2013, followed by a number of bridging visas. In 2016 he was invited to apply for a further visa and lodged an application for the Safe Haven Enterprise (Subclass 790) visa (the SHEV) on 13 December 2016.
In the SHEV application he identified himself as [Applicant’s Full Name], an Afghan national born [Date 2] in [Area 1], Quetta in Pakistan. He provided details of his parents and siblings and stated he had no personal contacts in Australia and never applied for an Australian visa outside of Australia.
The Department of Immigration (the Department) subsequently undertook biometric data cross matching. A Facial Image Comparison Report dated 30 November 2018 compared photographs of the applicant submitted with the SHEV visa to photographs of [Alias A], an applicant for a Global Special Humanitarian (Subclass 202) visa lodged on 13 April 2011. The Facial Image Comparison Report concluded the photographs were of the same person.
On 7 June 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s 107 of the Act (the s 107 notice), advising him that the Department was considering the cancellation of the SHEV on the ground that he had given incorrect information in the SHEV application.
That notice set out details of information held by the Department that it considered contradicted the applicant’s statements as to his identity in the SHEV application. In particular it noted that:
·A Global Special Humanitarian (Subclass 202) visa was lodged on 13 April 2011 by [Ms B]. Her five children were also included in that visa application, including [Alias A]. All were claimed to be Afghan nationals living in Afghanistan. The proposer was [Mr B], claimed husband of [Ms B] and father of the children, including [Alias A]. That visa application was refused on 5 July 2013;
·As a result of data cross matching within the departmental Biometric Acquisition Matching System (SAMS), the Department identified the applicant as having similarities with [Alias A];
·A Facial Image Comparison completed on 30 November 2018 concluded that the applicant and [Alias A] were the same person, indicating the applicant had been included in the Global Special Humanitarian (Subclass 202) visa lodged on 13 April 2011 under that name.
The notice suggested that the above information indicated that the applicant had given incorrect information in the SHEV in the following respects:
At question 9 of Part C, Have you ever been known by other names (including name at birth, name before or after marriage, adoptive or foster name, alias or pseudonym, cultural or tribal name or clan, preferred name, other spellings of name)?
You answered: No.
At question 45 of Part C, Do you have any personal contacts in Australia?
You answered: No.
At question 64 of Part C, Have you ever had an Australian immigration visa refused or cancelled?
You answered: No.
At question 66 of Part C, Have you ever applied for an Australian visa outside of Australia?
You answered: No.
Based on the information provided, the delegate was satisfied as to your identity as an Afghan national and, meeting all other relevant criteria, granted you a Safe Haven Enterprise (subclass 790) visa on 11 May 2017.
The notice suggested the applicant had given incorrect information in response to questions 9, 45, 64 and 66 of the SHEV and invited the applicant to respond to the matters raised, including whether he had complied with his obligations to provide correct information in his visa application and why he thought his visa should not be cancelled.
The applicant responded to the s 107 notice on 2 July 2019 by providing further information about the matters raised in that notice. In summary he stated that:
·When asked his name and date of birth upon arrival to Australia, he stated that his name was [Applicant’s Given Names]. He did not use a surname before coming to Australia so when asked his surname, he chose [Applicant’s Family Name] after his paternal great-grandfather;
·When asked his age, he said he was underage leading to an age assessment by the Department which determined his date of birth to be [Date 2];
·After receiving the notice of intention to consider the cancellation, he asked his family to send his Afghan identity documents and they sent him his school completion certificate, proof of registration card and his Afghan taskera;
·His family have been registered as Afghan migrants in Pakistan and the applicant is recorded as [Applicant’s Given Names], son of [Mr C] born in [year] and aged 18 in [year];
·He declared himself as underage on arrival to Australia because other people travelling with him told him that if he did so, he would be allowed to study at school. He sincerely regrets doing this;
·After arriving he got permission to work and study but was unable to afford any course of study. Diversitat helped him find a pathway to skilled work and assisted him to obtain a [trade] apprenticeship with [Company 1] in 2018, which will be complete in May 2022. He chose to do this even though he could have earned more money as a labourer and he supports his family overseas as well as himself in Australia;
·When declaring in his visa application that he had no personal contacts in Australia, he understood that to mean a partner, parents or siblings and he has none of those in Australia. His paternal cousin [Mr B] is in Australia but he is not in contact with him because their families are not on good terms;
·He has never been known as [Alias A], however his father asked his brother [Mr B] to include the applicant in [Mr B]’s own visa application and sent the applicant’s details, along with his photos, for that purpose. However [Mr B] refused to do so, saying he could only apply for his own wife and children. That caused an argument between [Mr B] and the applicant’s father and the relationship broke down;
·He is shocked that his photograph was submitted to the Department as [Alias A] in [Ms B]’s visa application and he assumes this was in error. The notice indicates that visa application was still being processed at the time the applicant arrived in Australia and he would not have risked coming to Australia by boat if he had known he had a visa application in process that would have allowed him to enter by plane;
·If his visa is cancelled he will be devastated and face serious danger to his life in Afghanistan. After coming to Australia he stopped following Islam. Only his housemates in Australia are aware of this and he is too fearful to tell even his family as it is not acceptable for people in Afghanistan to leave Islam and the punishment is death.
On 7 August 2019, a delegate of the Minister cancelled the applicant’s SHEV, finding that he had given incorrect information at questions 9, 45, 64 and 66 in his SHEV in relation to other names by which he had been known; his age and date of birth; his personal contacts in Australia and his Australian visa history.
In the exercise of the discretion to cancel the visa, the delegate considered the discretionary factors contained in reg 2.41 of the Migration Regulations 1994 (the Regulations), but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan, and therefore the delegate did not make her own assessment of those matters. The delegate noted the effect of ss 189 and 198 of the Act was that if the visa was cancelled, the applicant may be detained and removed to Afghanistan or be subject to indefinite detention. The delegate further noted that s 48A(1B) meant that the applicant would not be able to make any other valid visa application unless the Minister intervened to allow him to do so and he may also be subject to a three-year exclusion period under public interest criteria 4103.
The applicant sought a review of the delegate’s decision from this Tribunal.
LEGISLATIVE FRAMEWORK
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 to this case are attached to this decision.
In the present matter, no issues have been raised as to the validity of the notice. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in relation to the names by which the applicant had been known, his personal contacts in Australia and his Australian visa history.
In his written response to the s 107 notice, the applicant acknowledged providing some incorrect information about his date of birth in the SHEV application, stating that he declared himself to be underage on arrival to Australia because other people travelling with him told him that if he did so, he would be allowed to study at school. He acknowledged that his photographs had been included in the earlier Global Special Humanitarian visa under the name of [Alias A] but suggested this had been an error. He stated that he did not declare [Mr B] as a personal contact in Australia because he believed personal contacts to mean a partner, parents or siblings.
At hearing before the Tribunal, the applicant conceded that he had provided incorrect information in each of the ways specified in the s 107 notice. He told the Tribunal that his paternal cousin [Mr B] had included the applicant in the Global Special Humanitarian visa at the request of the applicant’s father. He stated that [Alias A] is not a real person, rather that was just a name given to the applicant in that visa application. The applicant also conceded that he had not declared [Mr B] as a personal contact in Australia because he didn’t want their relationship to become known to the Department. He feared that if his relationship with [Mr B] and the earlier visa application was known to the Department, he might be returned to Afghanistan or detained in Nauru.
In these circumstances I find that the applicant gave incorrect information at question 9 of the SHEV application when he failed to disclose that he had also been known to the Department by the name of [Alias A]. I find he gave incorrect information at question 45 of the SHEV application when he failed to disclose his paternal cousin [Mr B] as a personal contact in Australia. I find he gave incorrect information at questions 64 and 66 of the SHEV application when he stated that he had never had an Australian immigration visa refused and he had never applied for an Australian visa outside of Australia.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.
Other incorrect information not specified in the s 107 notice
At the Tribunal hearing the applicant gave evidence he provided other incorrect information in his SHEV application that was not set out in the notice. In particular the applicant gave evidence that he was born in Kabul, not Quetta as stated in the SHEV. He stated that his family left Afghanistan for Quetta when he was very young during the Taliban’s first rule, although he did not know the year. He said he did not give the correct information about his birth in Kabul in his SHEV application because the people smugglers told everyone on the boat to keep their claims very simple.
Contrary to his statements in the visa application, the applicant said he attended [School 1] in Quetta for both primary and high school, returning to Kabul a couple of years after finishing school to sit the university entrance exam. He said [School 1] in Quetta issues their results through the Afghan Ministry of Education.
The applicant agreed his family were registered as refugees in Pakistan, despite his statement in the SHEV application that they had not been granted permission to remain there. A copy of the applicant’s registration of Afghan citizen in Pakistan card was submitted to the Department and to the Tribunal.
In relation to the Afghan taskera, he gave evidence that he asked his father to send it to him after he received the s 107 notice. He is not sure of the circumstances in which his father obtained that taskera, but recalls he needed it to attend school in Quetta. He thinks it might have been obtained using the processes for an absentee taskera, but he doesn’t know.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.
The correct information
For the reasons set out above, I have found that the correct information was that the applicant used the name [Alias A] in the earlier Global Humanitarian visa application; that he had a paternal cousin, [Mr B] in Australia at the time he made the SHEV application; that the applicant was included in a Global Special Humanitarian visa in 2011 under the name [Alias A] and that visa application was refused.
The content of the genuine document (if any)
This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted the SHEV following a decision by a delegate of the Minister on 11 May 2017. While there does not appear to be any formal decision record relating to the grant of the SHEV, ICSE case notes dated 28 March 2017 state that the applicant has a well-founded fear of persecution for the essential and significant reasons of the applicant’s Hazara race and Shia religion. It is noted that he is easily identifiable due to his facial features as a Hazara and he cannot live safely in any part of Afghanistan nor reasonably access state protection.
As the incorrect information about the applicant’s previous visa application under the name of [Alias A] and the presence of his cousin in Australia have no bearing on the applicant’s profile as a Hazara and a Shia, I consider the incorrect information had little or no bearing on the decision to grant the visa. I consider this factor weighs against cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant states that he provided the incorrect information about his age because even before he left Pakistan the people smugglers told his father that minors could study and would not be detained on Nauru. The applicant states he did not declare his cousin [Mr B] as a personal contact or disclose the fact he was included in the earlier Global Special Humanitarian visa under another name in his SHEV application because he was worried it would create problems for himself and his cousin.
I find that the applicant knowingly provided the incorrect information for the purposes of increasing his chances of being granted the SHEV and I consider this weighs in favour of cancellation of the visa.
The present circumstances of the visa holder
The applicant lives in shared housing. Prior to the applicant’s visa being cancelled, he was studying at [a] TAFE and undertaking a [trade] apprenticeship with [Company 1] as evidenced by a letter from his employer [Mr D] dated 2 July 2019. The apprenticeship was due to be completed in 2022 but ceased after the applicant’s visa was cancelled.

At hearing the applicant stated he had suffered severe depression since the cancellation of his visa, although he has not sought medical treatment for this. He is currently working as an [occupation] but hopes to resume his apprenticeship if the visa cancellation is set aside.
I consider the applicant’s efforts to obtain an apprenticeship and develop his skills weigh against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant was not frank in his response to the s 107 notice, suggesting that his photograph had been included in the earlier Global Special Humanitarian visa by accident and that it was not intended that he be included in the visa application under the name of [Alias A]. He also suggested he was unaware that he needed to declare his cousin as a personal contact.
At hearing before the Tribunal the applicant acknowledged that he had intentionally withheld information about his cousin and earlier visa application because he was worried it would cause problems for himself and his cousin. I consider this weighs in favour of cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate records that there are no other known instances of non-compliance by the visa holder. I consider this weighs in favour of cancellation of the visa.
The time that has elapsed since the non-compliance
The relevant non-compliance took place when the applicant provided information in support of the SHEV and approximately eight years have elapsed since then. I consider the long period in which he has lived in the Australian community weighs against the cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate’s decision records that there are no known breaches of Australia’s migration or criminal laws since the non-compliance occurred. I consider this weighs against the cancellation of the visa.
Any contribution made by the holder to the community
There is no information before the Tribunal about the applicant’s contribution to the community other than the employment referred to above. I consider this weighs in favour of cancellation of the visa.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Guidelines, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In this case, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.
In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s SHEV remains cancelled the applicant will have very limited options to make any other visa applications onshore. Section 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application. In this case the cancelled visa is a SHEV. Section 48A(2)(aaa) clarifies that ‘an application for a protection visa’ includes an application for a visa of a class provided for by s 35A and s 35A(3A) includes a SHEV in that class of visas. The applicant currently holds a Bridging E (Class WE) visa associated with the current review application.
Current Australian government policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[1] However, it remains the case that s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal. Therefore, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Afghanistan voluntarily.
[1] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5
The applicant gave evidence he cannot even consider returning to Afghanistan, given the collapse of the elected Afghan government in August 2021; the takeover by the Taliban and the fact his family have not been resident in that country for many years. I accept the applicant will not voluntarily return to Afghanistan and I consider the prospect he will face a prolonged period in immigration detention weighs against the cancellation of the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
In this case the delegate’s decision records that if the applicant’s visa is cancelled, an International Treaties Obligation Assessment would be completed by the Department before a decision is made to remove him from Australia. The delegate concludes that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin.
Amendments to s 197C of the Act since the delegate’s decision have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In this case the applicant made a valid application for a protection visa on 13 December 2016 and that application was finally determined when a delegate made a ‘protection finding’ in respect of the applicant’s SHEV application on 11 May 2017. In these circumstances
s 197C(3) does not require or authorise the applicant’s removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.
In this case the decision to grant the applicant a protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
However, cancellation may lead to prolonged detention for the reasons already explained and I consider this weighs against cancellation of the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant gave evidence that he is the main breadwinner for his parents and siblings in Quetta, with the money he sends back to Pakistan being the family’s main source of financial support. His father is elderly and runs a small store, while his two brothers suffer mental health conditions that render them unable to work. The family are registered as refugees in Pakistan and the applicant has provided a copy of their refugee card to the Department.
DFAT’s most recent report on Pakistan reports there are currently 600,000 to one million Hazara refugees living in Pakistan, mostly in Quetta, where they face official and societal discrimination and a heavily restrictive security situation due to the threat of attack from both official and non-governmental interlocutors.[2] I accept the applicant’s parents and siblings are living in difficult circumstances in Pakistan.
[2] DFAT Country Information Report: Pakistan 20 February 2019
In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[3]
[3] UNHCR Position on Returns to Afghanistan August 2021 at Refworld | UNHCR Position on Returns to Afghanistan
As noted above, the Department’s current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan at present given the current security situation.
I weigh this factor against cancellation of the visa.
EXERCISE OF DISCRETION
While I have had regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case, rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[4]
[4] MIAC v Khadgi (2010) 274 ALR438 at [68]
I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant knowingly provided the incorrect information for the purpose of increasing his chances of being granted the SHEV. However, in balancing all of the relevant factors I consider that the matters to which I am required to have regard weigh overall against cancelling the applicant’s visa. In particular I give weight to the following matters:
·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2013, the Department’s records indicate that the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion;
·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As a consequence he cannot be removed from Australia unless the decision finding that the non-citizen engages protection obligations is quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal;
·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged unless he decides to return to Afghanistan voluntarily and that prospect appears remote, given the takeover of Afghanistan by the Taliban in August 2021;
·The applicant’s family left Afghanistan for Pakistan many years ago where they reside as refugees. Should the applicant be returned to Afghanistan in the future, he will be without family support and he has no legal right to enter or reside in Pakistan to re-join his family;
·Prior to the applicant’s visa being cancelled, he was undertaking a [trade] apprenticeship with [Company 1]. If his visa is not cancelled, he hopes to recommence his apprenticeship and obtain skilled employment.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
CONCLUSIONS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.
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.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 5143

25 November 2021

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