1929707 (Refugee) - [2023] AATA 4080

1929707 (Refugee) [2023] AATA 4080 (1 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Haidari Smart
CASE NUMBER:  1929707
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Simone Burford
DATE:1 September 2023
PLACE OF DECISION:  Perth
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 01 September 2023 at 11:51am

CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information given in visa application – irregular maritime arrival as minor – name, date of birth, citizenship and family members – father’s previous humanitarian visa application including dual citizenship – biometrics data cross-matching and forensic facial image comparison – other applications by other family members – discretion to cancel visa – non-compliance conceded in part, in that previous applications, name and date of birth not declared – submission that information in own application correct and visa granted on that basis – circumstances of arrival and applications – incorrect information deliberately given – length of residence, relationship with Australian citizen, work and religious and community activities – non-refoulement – protection decision not quashed or set aside – possibility of prolonged detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 46A, 48A, 101(b), 107(1), 108, 109(1), 195A, 196, 197AB, 197D
Migration Regulations 1994 (Cth), r 2.41
Immigration (Guardianship of Children) Act 1946 (Cth)
CASES
Choi v MIAC [2008] FMCA 1717
Commonwealth v AJL20 [2021] HCA 21
MIAC v Brar [2012] FCAFC 30
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Sheptitskaya v MIBP [2015] FCCA 159
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC (2008) 171 FCR 444

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 dependants.
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 (Cth) (the Act).
The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to his Subclass 790 (Safe Haven Enterprise) visa in breach of s 101 of the Act. 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.
Background
The applicant is a [Age]-year-old man who claims to be a citizen of Pakistan. According to the delegate’s decision, he arrived in Australia as an irregular maritime arrival [in] June 2013.
On 22 October 2013, the applicant was assessed under the Immigration (Guardianship of Children) Act 1946 (Cth) (the IGOC Act) and was found to be an IGOC Minor, under the guardianship of the Minister. The Minister agreed to intervene under s 197AB of the Act to allow the applicant to reside in community detention. On 30 June 2015, the Minister intervened lifting the s 46A bar to allow the applicant to lodge a Temporary Protection visa or Safe Haven Enterprise visa application.
The applicant was granted a Safe Haven Enterprise (XE790) visa (the SHEV) on 5 May 2016. That visa was to expire on 5 May 2021.
According to the applicant’s evidence, he has a fiancée in Australia who is an Australian citizen. He has no children.
The cancellation
The notice
On 2 July 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his SHEV, on the basis of non-compliance with s 101(b) of the Act. That paragraph provides that no incorrect information must be given in the visa application process and that information must be updated when it is not correct.
The NOICC set out as the particulars of the grounds for the cancellation the applicant’s responses including responses to questions in the applicant’s SHEV application. The NOICC noted that on 22 July 2013, the applicant participated in an entry interview during which he claimed his name was [the applicant] and his date of birth was [Date]. He claimed to have been born in Pakistan and to hold both Afghan and Pakistani citizenship. He claimed his father was [Mr A] (DOB [Date]) and his mother was [Ms B] (DOB [Date]), both citizens of Pakistan.[1]
[1] These dates were recorded in the entry interview but appear to be an error as the documents later provided by the applicant in support of the SHEV listed his father’s DOB as [Date] and his mother’s DOB as [Year].
On 8 October 2015, the applicant lodged an application for the SHEV. As part of this application, the applicant completed a Form 790 – Application for a Safe Haven Enterprise visa. In response to questions 1, 2 and 3 of Part B of Form 790, the applicant provided the name [the applicant plus Last name 1]. After an identity assessment was conducted by the Department in December 2015, his name was amended on Departmental systems to read as [the applicant] to reflect the fact the applicant did not have any overseas identification stating his last name was [Last name 1].
The applicant completed and resubmitted a further Form 790, dated 20 January 2016, in which he provided the following answers in respect to his identity:
At question 3 of Part B, Details of persons included in this application?
Answer: [the applicant], date of birth [Date].
At question 6 of Part C, What is your full name?
Answer: [the applicant].
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)?
Answer: Yes, [Last name 1], Given names - [the applicant].
Reason for name change and date: In Pakistan we only use one name, not our father’s name, but when I came to Australia I had to use a surname, and I chose to use [Last name 1].
At question 15 of Part C, Date of birth and age?
Answer: [Date], age [Age] years.
At question 17 of Part C, Place of birth?
Answer: Quetta, Balochistan, Pakistan.
At question 18 of Part C, Your citizenship at birth?
Answer: Pakistani.
At question 21 of Part C, You father’s citizenship?
Answer: Pakistani.
At question 22 of Part C, Your mother’s citizenship?
Answer: Pakistani.
At question 23 of Part C, Are you a current citizen or national of any other country?
Answer: No.
At question 24 of Part C, Have you previously been a citizen or national of any other country?
You answered: No.
At question 26 of Part C, Do you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?
Answer: No.
At question 65 of Part C, Have you ever had an Australian immigration visa refused or cancelled?
Answer: No.
At question 67, Have you ever applied for an Australian visa outside of Australia?
Answer: No.
In support of his claimed identity, the applicant provided photocopies of:
·His birth certificate, issued in Quetta, Pakistan, in Urdu language together with the associated translation. This listed his name as [the applicant], date of birth [Date] and his father as [Mr A].
·His Pakistani passport, document [number], listing his name as [the applicant], date of birth [Date], place of birth Quetta, Pakistan.
·National identity cards for his mother [Ms B] and father [Mr A].
·Certificate for Children under 18 years of age document, issued for [Mr A], ID card no [Number], listing six children as follows:
·[Mr C] (DOB [Date])
·[Ms D] (DOB [Date])
·[Ms E] (DOB [Date])
·[Ms F] ([Date])
·[the applicant] ([Date])
·[Mr G] ([Date]).
The applicant also provided a statutory declaration dated 20 January 2016, declaring he was told when he entered Australia that he needed a surname so he used his grandfather’s name, [Last name 1]. However, in Pakistan they did not use last names and he was only called [the applicant].
The NOICC also detailed responses or information provided in an application for a Global Special Humanitarian (Subclass 202) visa (the Global Special Humanitarian visa) lodged by [Mr A Alias 1] (DOB [Year]) in the Melbourne Offshore Humanitarian Processing Centre, on 5 May 2010. Included in the application were [Mr A Alias 1]’s wife and four children as secondary applicants. This included a son, [the applicant Alias 2] (DOB [Date]). The application was proposed by [Mr C Alias] (DOB [Date]), an Australian permanent resident and son of [Mr A Alias 1].
That application was refused on 15 March 2011.
The NOICC detailed that as a result of biometrics data cross-matching, the Department identified the applicant as having similarities with another identity, who has had previous dealings with the Department. A Forensic Facial Image Comparison Report was completed on 7 November 2018, which compared photographs from the applicant’s SHEV application, lodged in Australia on 8 October 2015, and the application for the Global Special Humanitarian visa lodged at the Offshore Humanitarian Processing Centre, Melbourne, on 5 May 2010.
The photographs compared were for applicants whose identities were declared as:
[the applicant] ([Date],M)
[Alias], ([Date],M)
The findings of the Forensic Facial Image Examiner were that these were the same person indicating the applicant had represented himself by another identity of [Alias] (DOB [Date]). It also indicated that he had previously applied for a visa to Australia under the identity of [Alias].
In the application for the Global Special Humanitarian visa, the applicant was listed as having been born in Afghanistan and as a citizen of Afghanistan. The application included a photograph labelled on the reverse with the name ‘[Alias with Last name 1]’. This was the photograph identified to be the same person as the applicant. A copy of an Afghan taskera identity document for [Alias 2]’s claimed father, [Mr A Alias 1], [serial number], issued [March] 2010, was provided to the Department. This taskera lists [Mr A Alias 1]’s nationality as Afghan.
The NOICC stated that under the Law on Citizenship of the Islamic Emirate of Afghanistan (IEA), (Article Nine), a person born from parents holding citizenship of the IEA abroad or within the territory of the IEA is considered to be a citizen of the IEA, therefore if the applicant was the son of an Afghan citizen, he had acquired Afghan citizenship from his claimed father [Mr A Alias 1].
The delegate concluded that this information indicated the applicant had been known by another name ([Alias] or [Alias with Last name 1]), had a different place and date of birth (Afghanistan, [Date]) and held citizenship for a country other than that declared in his SHEV application. It also indicated that he had made a previous application to migrate to Australia under a different identity, and had a different family composition, which he had not declared to the Department since his arrival in Australia.
The NOICC stated that there was non-compliance with s 101(b) as the delegate considered the applicant had provided incorrect answers to questions 9, 17, 18, 65 and 67 of Part C of Form 790 – Application for a Safe Haven Enterprise visa.
The applicant’s response
As noted in the delegate’s decision the applicant provided an initial response to the NOICC on 16 July 2019 via his then representative. The applicant’s representative provided written submissions stating:
The client is surprised to receive the notice. He denies having made the sc 202 visa application as alleged in the notice. He is not familiar with any of the sc 202 applicants’ names and denies knowing them and denies that they are members of his family unit.
His family unit are as stated in his sc 790 SHEV application. His father is [Mr A] and mother is [Ms B]. He was born in Pakistan and a citizen of Pakistan. He is not [Alias]or an Afghani as alleged in the notice.
You have relied on forensic image comparison report and the sc 202 application to issue the notice, but unfortunately have not given the client an opportunity to review them. We therefore kindly request that you provide us with the photo/s used for the forensic analysis, the forensic image comparison report and the sc 202 application referred to in the notice for our view and extend the time to respond (if any) to the notice within 2 weeks of receiving these documents and all other documents you have relied on in issuing the notice.
Without these documents we are not able to say more than what has already been stated above.
The Department file indicates the applicant made a freedom of information request for access to material on the file on 18 July 2019. It is not clear what the outcome of that request was other than that a decision was due on or before 17 August 2019.
No further response to the NOICC was received.
The delegate’s decision
A decision was made to cancel the SHEV on 14 October 2019. That decision was notified to the applicant via his representative on 16 October 2019.
In the decision record which the applicant provided to the Tribunal, the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, taking into account what was known of the applicant’s circumstances. The delegate found that, having weighed all the relevant factors, they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
Application for review
The applicant applied for a review of the delegate’s decision on 19 October 2019. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.
The applicant was initially invited to a hearing in person at the Perth Registry however, in response to this invitation his representative advised that he was now living in Adelaide and requested a remote hearing. The hearing was rescheduled to accommodate this request. The applicant appeared before the Tribunal at an initial hearing held via MS Teams on 10 March 2023. During that hearing, the applicant told the Tribunal he had moved back to live in Perth and had travelled to Adelaide for the hearing. This information had not been provided to the Tribunal in advance of the hearing. A further hearing was scheduled and was held in person in the Tribunal’s Perth Registry on 19 April 2023.
The Tribunal also received oral evidence from [Mr C Alias] (aka [Mr C][2]) the applicant’s brother.
[2] There were several spellings in the material before the Tribunal including ‘[Spelling 1]’ and ‘[Spelling 2]’.
The Tribunal hearings were conducted with the assistance of an interpreter who was fluent in the Hazaragi and English languages. However, the applicant elected to proceed in English indicating he would refer to the interpreter as needed. His representative did not object to this approach and the Tribunal indicated it was happy to proceed on that basis but encouraged the applicant to use the interpreter if needed.
From April 2022, the applicant was represented in relation to the review by a lawyer. The representative attended the Tribunal hearings remotely from Adelaide.
Prior to the hearing before the Tribunal, on 4 October 2022, the Tribunal wrote to the applicant inviting him to provide information regarding:
·Whether there are grounds for the cancellation of the visa including whether the NOICC issued to the applicant by the Department and dated 2 July 2019 was validly issued and whether he accepts there was non-compliance in the manner described in the NOICC; and
·If the Tribunal is satisfied there are grounds for cancellation and that the grounds have been made out, whether there are any matters which the applicant considered the Tribunal should take into account in deciding whether the visa should be cancelled including with regard to the considerations prescribed in reg 2.41 of the Regulations.
The following documents were submitted in support of the review application. Those submissions included the following additional documents:
·A secondary school certificate for [Mr A] (DOB [Date][3]) dated [Date];
[3] Birth year not entirely clear on copy before Tribunal.
·A [Employer 1] ‘director’ identification card in the name of [Mr A] (DOB [Date]);
·Offer of appointment from [Principal employer]] in the name of [Mr A] as a ‘Lower Division Clerk’ dated [June] 1980 signed by [Mr A] (date unclear);
·Pakistan National Identity Card in the name of [Mr A] (DOB [Date] 1958) issued [May] 2018;
·An untranslated document headed ‘Father’s local certificate Pakistan’;
·‘Form 790 Part B Question, Part C Question 43 and 44’ family composition answer;
·‘Details from the 2010 Humanitarian visa’;
·Certificate for Children Under 18 years of age, Government of Pakistan issued [March] 2004 (with translation);
·Article ‘Afghan applications 90 per cent flawed’, Sydney Morning Herald, 6 August 2014;
·Article ‘Assessment of Psychological Status (PTSD and depression) among terrorism affected Hazara community in Quetta Pakistan’, Zarak et al, 16 March 2022.
·Various news articles regarding the situation of Haraza Shia Muslims in Pakistan.
·Article ‘Evidence in Family Law Proceedings’, Jeanette Swann.
·Explanatory Statement, Criminal Code (Terrorist Organisation – Lashkar-e Jhangvi) Regulation 2015
On 9 March 2023 the applicant submitted:
·Certificate, Pakistani Sports Board in the name of [the applicant] (son of [Mr A]) dated [May] 2012;
·Certificate, Age Group [Sport] Championships, Lahore 2011 in the name of [the applicant], [Age event];
·Certificate, [Institution] in the name of [the applicant] (son of [Mr A]) dated 13 March 2009;
·Untranslated page from newspaper.
In submissions made on 19 October 2022, the applicant accepted that his father had applied for a humanitarian visa in 2010 and included the applicant in the application. It was conceded that the applicant’s father applied for that visa for them under Afghan nationality. However, it was contended that:
The only Afghan document produced was a void Afghan Tazkira because the father was a Pakistani and was therefore not entitled to an Afghan Tazkira.
It was conceded that the applicant was an applicant for the visa lodged by his father, and that non-declaration of that application did amount to non-compliance. However, it was submitted that the s 107 notice ‘went beyond the noncompliance by the Applicant and therefore amounted to an irregularly issued notice which subsequently affected the exercise of power under sections 108 and 109 of the Act.’
It was contended that the Department also ‘failed to correctly apply section 109 of the Act by deciding upon incorrect assumptions of facts including foreign laws.’
It was submitted that the applicant’s non-compliance ‘occurred in exceptional circumstances’ and therefore ‘section 109 cancellation is not a preferable decision’.
The submissions contended that there were ‘irregularities’ in the NOICC. In summary the applicant submitted that:
·The NOICC indicated there was information that the applicant’s father held an Afghan taskera. However, this did not account for the Pakistani documents submitted with the SHEV application ‘confirming both the applicant’s and his father’s Pakistani citizenship’.
·The delegate ‘ought to be aware that the father was a Pakistani [Occupation] long before the Applicant was born showing the unequivocal life story of the father as a Pakistani citizen.’
·If all the information had been taken into account ‘it was highly likely that the delegate would not have sent the notice under s 107 of the Act. The delegate would have exercised their discretion because the non-compliance might have been viewed differently due to the Applicant’s young age’ and other relevant circumstances;
·The delegate failed to consider that Pakistani citizenship laws provide that persons born in Pakistan are citizens by birth and that dual nationality was not possible under Pakistani citizenship law. Therefore, the applicant’s father could not have been an Afghan national at the time of the applicant’s birth as he was a Pakistani national;
·The delegate made an error by assuming the SHEV grant was not based on his true identity when in fact his claimed identity in his SHEV application was correct. The delegate disregarded information supporting his claimed identity in the SHEV application;
·‘The errors and omissions by the Delegate give rise to two issues (1) the errors continued affecting a fair process throughout sections 108 and even 109 cancellation decision (2) The Applicant did not have a fair chance for the benefit of the Delegate’s discretionary power in relation to the issuance of the notice under section 107 because the Delegate’s opinion was affected by too much invalid information’.
·While there was some ‘non-compliance’ this was not unusual in refugee cases and the delegate should exercise the discretion with care having regard to the applicant’s situation. Therefore ‘the notice was irregular and there are enough bases for the Tribunal to conclude that the preferable decision would be to remit the matter for a reconsideration of the NOICC’.
·Due to the irregularities in the NOICC, the cancellation power under s 109 was not enlivened.

With respect to the exercise of discretion, the applicant submitted that he had provided the correct information on his SHEV application and that omissions were minor given the prior application had been made when he was [Age] years old and on his behalf. The visa was granted on the basis of the correct information and would have been granted even had the earlier visa application been declared, he was a teenager at the time of the SHEV application and his omission was understandable given the targeted killing of Hazaras. The applicant is a Hazara Shia Muslim from Quetta, Balochistan, Pakistan and Hazaras in Pakistan are subjected to genocide by different terrorist organisations including Lashkar-e-Jhangvi and other similar terrorist organisations which are internationally known and declared as terrorist organisations. Hazaras suffer mental health issues as a result of their exposure to terrorism.
It was submitted that the applicant had been separated from his family for around 10 years. He works in [Work sector] as [an Occupation 2] and pays his dues and supports his family. The visa cancellation would create significant hardship for him as he would spend a significant period of time in an immigration detention centre while Australia’s international obligation is assessed. He was in a committed relationship with an Australian citizen and engaged to be married which will be affected by visa cancellation. His subsequent behaviour did not evidence further non-compliance; ‘instead he is providing multiple documents of evidence and information to reasonably assist the decision maker to reach a fair conclusion’. The applicant also submitted that he has made a contribution to the community, work, volunteering to teach [Sport 2] and taking part in religious events and charities.
On 19 April 2023 the applicant filed supplementary pre-hearing submissions. In those submissions the applicant contended that:
There are two discretionary powers in this process, not one. One discretionary power is contained in section 109 and relates to the consideration of prescribed circumstances under regulation 2.41. The other discretionary power is contained in section 107 regarding the consideration of whether to issue a notice to cancel or not. Both discretionary powers are to be considered separately.
It was contended that Departmental ‘policy requires the Delegate to be satisfied that there has been noncompliance and because of the noncompliance, the visa may be cancelled’. It was submitted that there was an obligation to consider all evidence ‘to form the required belief and satisfaction’ and that a failure to do so before issuing the notice under s 107 would ‘likely result in jurisdictional error’.
Evidence before the Tribunal
At the first hearing before the Tribunal on 10 March 2023, the applicant gave evidence that he was born in Quetta, Pakistan, on [Date]. At the time of the hearing he was [Age] years old. He confirmed that he was ethnically Hazara and a Shia Muslim.
He said his parents were [Mr A] born in [Year] and his mother was [Ms B], born in [Year]. Both were born in Quetta, Pakistan. He was unsure if his grandparents were also Pakistani as they were not alive when he was in Pakistan. His parents remained living in Quetta in the same house they were in prior to his coming to Australia. His father was [an Occupation] in Pakistan who retired several years ago. He had been doing that job since before the applicant was born.
The family had six children in total, three boys and three girls. He told the Tribunal that his brothers and sisters’ details were as follows:
·[Mr C], a brother who was the oldest and who had been living in Perth since 2010. He is married with children and is an Australian citizen. He married his wife in Pakistan after the applicant had left.
·[Ms D], a sister who he said was in Pakistan. He told the Tribunal she was married but that he hadn’t talked to her in a long time and that he did not know where she was.
·[Ms E], a sister who was in [Country 1]. She was married with children and had moved to [Country 1] with her partner. He said her partner was Hazara but he was not sure where he was from.
·[Ms F], a sister who was in Pakistan. She married after he left Pakistan and was living separately from her parents with her husband and children in Quetta.
·[Mr G], a brother who was living in Pakistan with his parents. He was not married or working.
He said he had not returned to Pakistan since coming to Australia.
The applicant told the Tribunal he was engaged to [Ms I], an Australian citizen. He said she was Hazara but he was not sure if she was from Afghanistan or Pakistan. She was living in Adelaide with her mother and [siblings]. They met in school in Melbourne. They were planning to marry at the end of next year.
The Tribunal asked if he was working and he said he had moved back to Western Australia to work as [an Occupation 3]. Prior to that he had been [doing a job task] in Adelaide for three years. He had previously worked for [Employer 2] but had been ‘kicked out’ when his visa was cancelled.
He said that at the time of the hearing he was living in Perth with his brother until he found his own place.
He said he left Pakistan in 2013 because it wasn’t safe. He ‘couldn’t got to school or shopping’. He caught a plane to [Country 2] and then travelled overland to [Country 3] and then by boat to [Country 4] and on to Christmas Island. He was [Age] years old at the time and travelled by himself.
After arriving on Christmas Island he was put in community detention (in Melbourne) for two or three years and then he moved in with family in Perth. The Tribunal asked which family and he said it was his cousin [Mr J]. The Tribunal asked where his cousin lived and if he was married and he said he lived in [Suburb], a suburb of Perth, and was married with children. When asked, he told the Tribunal his cousin’s wife’s name was [Ms D Alias]. The Tribunal asked why he went to stay with his cousin and he said his family gave him those details. The Tribunal asked why he had not gone to stay with his older brother who he testified was in Australia at that time and he said he wasn’t sure.
The Tribunal asked if he was in contact with his brother and he said he used to see him around at family gatherings and religious events but that they were not in regular contact.
The Tribunal noted his cousin’s wife appeared to have the same name as his sister, [Ms D], and asked if [Ms D Alias] was his sister and he said she was not his sister. He said his cousin wasn’t his real cousin, he was a family friend. He said he had told the Department this. The Tribunal asked whether his cousin’s wife was trying to sponsor his parents on a visitor’s visa to come to Australia and he said he didn’t know about that.
In relation to the answers to questions in the SHEV application which were addressed in the NOICC, the applicant confirmed his father had applied for the earlier visa in his name but that he didn’t know about it until recently. The Tribunal asked why his father had claimed he was an Afghan citizen in that application and he said he didn’t know and hadn’t asked. The Tribunal asked why his father had used the name [Mr A Alias 1] and he said he didn’t know.
He said the information that he was a Pakistani citizen was correct.
The Tribunal adjourned the hearing to another date, to be held in person in the Perth Registry. The Tribunal indicated it wished to speak to the applicant’s older brother, [Mr C] / [Mr C Alias] at that hearing as he ([Mr C Alias]) was listed as the local sponsor on the 2010 application which listed the family as being Afghan citizens.
At the hearing on 19 April 2023, the Tribunal took evidence from the applicant’s brother who identified himself as [Mr C Alias]. He also testified he was known as [Mr C]. [Mr C] confirmed the applicant was a Pakistani citizen. [Mr C] confirmed he had also been a Pakistani citizen when he arrived in Australia in 2010 although he had claimed to have been an Afghan citizen on arrival in Australia. He confirmed he had never held Afghan citizenship. At the time he arrived in Australia he had claimed his name was [Mr C Alias], the name he used when he became an Australian citizen in 2014.
[Mr C] testified that he was married and had [Australian citizen children]. When asked if he had other family members in Australia he confirmed he had a sister, [Ms D], who was married to [Mr J]. They have [children]. She arrived in around 2004[4] on a partner visa.
[4] It appears [Ms D] arrived in late 2005 (her visa was granted in December 2005) or early 2006 however nothing turned on the difference.
He confirmed that all the family were born in Quetta and that his father had worked as a Pakistani [Occupation]. He confirmed this was a role working for [Principal employer] in Pakistan. He retired several years ago.
He said his ancestors were Afghani. He had heard that Australia was not accepting Pakistani people as refugees so he made an application stating he was an Afghani. He said he had an Afghan identity document for his father and that you could get those ‘from anywhere’.
The Tribunal asked whether he told his brother about the earlier application for the family claiming to be Afghan citizens and he said he didn’t tell him because he didn’t know he was coming to Australia but he confirmed the family members were aware that an application for them to come to Australia had been made in 2010 and that it had been refused. He said no other applications had been made.
The Tribunal asked why his sister had claimed to be Afghani and he said he didn’t know. The Tribunal noted information that his sister had claimed his parents were Afghan citizens and he said that they didn’t have any option. He said they just wanted their parents to be somewhere safe. He said he had returned five times to Pakistan and everyday someone was targeted for killing. It was difficult for the family to be apart.
The Tribunal asked if he had ever been to Afghanistan and he said he had not. His father’s parents were from Afghanistan but his father was born in Pakistan. His parents had travelled to Afghanistan for about a week in 2018 to make the application for a visa. They stayed with his father’s relatives there.
He said that their parents need support and that Pakistani Hazaras are not safe as there is so much discrimination in Pakistan. He said his brother was suffering because of the cancellation and it was impacting his mental health.
The Tribunal then took further evidence from the applicant. He conceded that [Ms D] was his sister and that he had provided false information at the prior hearing regarding this. He said he was told not to tell the Tribunal unless they asked. The Tribunal put to him that this created real issues for the Tribunal accepting his evidence on other matters as he had demonstrated he was prepared to provide false evidence under oath. He indicated he understood this.
The Tribunal put to the applicant that he had used the aliases [Alias], [First name with Last name 1] and [Alias with Last name 1]. He conceded this was the case. The Tribunal noted his father had listed him on a Visitor visa application as [the applicant plus Last name 2] and he said he did not know about the visitor visas for his parents or why they would have listed his name that way.
The Tribunal noted his father had claimed to be Afghani and he said that you are considered to be Afghani under Afghani law if your father is Afghani.
The applicant submitted that the decision to grant him a visa was based on the correct information regarding his citizenship and family background. The Tribunal asked whether he was aware his family members had claimed to be Afghani including in the 2010 visa application and he said he didn’t know until he got to Australia but he found out after he left detention.
When the Tribunal asked about his present circumstances he stated he had been ‘busted for something last week’. He said he had been searched by police in a park and he was in possession of prescription medication (tramadol) for pain relief following a fall (in 2016/17). He did not have a script for that medication because he doesn’t have Medicare and it is too expensive to buy lawfully. He said he pleaded guilty in the Magistrates Court and was fined $500 for that offence. He said he had no other convictions.
Adverse information
On 20 April 2023, following the hearing held on 19 April 2023, the Tribunal wrote to the applicant inviting him to comment on or respond information, in summary:
·On 22 March 2005 [Ms D Alias] (born [Date]) lodged a partner visa application. [Ms D Alias]’s partner visa application also contains a similar family composition to that contained in the applicant’s application for the SHEV which was cancelled on 16 October 2019.
·[Ms D Alias] listed the following family members:
§[Mr A], born [Date], as her father
§[Ms B], born [Date], as her mother
§[Mr C], born [Date], as her brother
§[Mr G], born [Date], as her brother
§[the applicant], born [Date], as her brother
§[Ms E], born [Date], as her sister
§[Ms F], born [Date], as her sister.
·On 13 February 2018 [Mr A Alias 2], born [Date], lodged a Subclass 600 Visitor visa application in Afghanistan. [Ms B Alias], born [Date], was listed as a secondary applicant and [Mr A Alias 2]’s wife. The application was sponsored by [Ms D Alias], identified as his daughter. That application included the following family composition:
§[Ms B Alias], born [Date], as his wife and secondary applicant
§[Mr C Alias], born [Date], as his son
§[Mr G Alias], born [Date], as his son
§[the applicant Alias 3], born [Date], as his son
§[Ms D Alias], born [Date], as his daughter
§[Ms E Alias], born [Date], as his sister
§[Ms F Alias], born [Date], as his sister
§[Mr J], born [Date], as a cousin.
All members of the family had their country of birth listed as Afghanistan.
·In support of his claimed identity for this application, [Mr A Alias 2] submitted copies of the following documents:
§Islamic Republic of Afghanistan Passport [number]
§Two documents described in the application form as ‘taskera’ – one in what appears to be Arabic and the other in English and indicating it was issued by the Islamic Republic of Afghanistan Ministry of Interior Affairs [in] August 2006.
·This application also includes a similar family composition to the Global Special Humanitarian visa application lodged on 5 May 2010 in which the applicant accepted he was a secondary applicant using the name [the applicant Alias 2] with the birthdate [Date] (referred to in the NOICC and the delegate’s decision). [Ms D Alias] was a sponsor for that application as the daughter of the applicants. It is also similar to [Ms D Alias]’s partner visa application and to the family composition contained in the application for the applicant’s SHEV which was cancelled on 16 October 2019.
·On 10 March 2023 the applicant confirmed in evidence to the Tribunal that his parents are [Mr A] (born in [Year]) and [Ms B] (born in [Year]). He said that his brothers are [Mr C] who lives in Australia and [Mr G] who lives in Pakistan. His sisters are [Ms D] who lives in Pakistan and with whom he has lost contact, [Ms E] who lives in [Country 1] and [Ms F] who lives in Pakistan.
·The applicant gave evidence that when he came to Perth he lived with [Mr J] who he referred to as a cousin but whom he thought may not actually be a familial cousin. He was married to [Ms D Alias]. The Tribunal asked the applicant if [Ms D Alias] was his sister and he told the Tribunal she was his cousin’s wife.
The Tribunal indicated the information was relevant to the review because, subject to the applicant’s comments, it may indicate that his father, [Mr A], is [Mr A Alias 2], and that he was an Afghan citizen at the time the applicant applied for the SHEV, and if so, that the applicant was also an Afghan citizen at that time. The information was also relevant as the consistencies in family composition across these visa applications may lead the Tribunal to find that [Ms D Alias] was the applicant’s sister and not his cousin’s wife as testified before the Tribunal. This may cause the Tribunal to have concerns regarding the credibility of the applicant’s testimony before the Tribunal.
The Tribunal explained that if it were to accept this information it may find that the applicant had provided incorrect information in his SHEV application. In addition, the Tribunal may consider that information adverse to the credibility of information the applicant provided in evidence before it may weigh in favour of cancelling the visa. This would be the reason or part of the reason for affirming the decision under review.
In response the applicant submitted the following on 4 May 2023:
·Written submissions dated 4 May 2023
·Statutory declaration of [Ms D Alias] dated 27 April 2023
·Statutory declaration of [Ms I] date 27 April 2023
·Letter from [Organisation 1] dated 21 April 2023
·Letter from [Organisation 2] dated 26 April 2023.
The letter from [Ms I] confirms her engagement to the applicant in 2021 and her hope of starting a family and living with him here in the future. She notes his importance to their family in the absence of her own father and the fact he is a provider and older brother figure to her siblings.
The letter from [Mr K], President of [Organisation 1], states that the applicant is a ‘dedicated community worker’ and has been a member since 2015. The letter notes he has been an active volunteer and is committed to the community. The letter from [Mr L], Trustee of [Organisation 2], states that he has known the applicant as a community member since 2015 and that he is an active participant/volunteer in cultural, community and religious activities. He states that the applicant has supported the [organisation] physically and financially.
The statutory declaration from [Ms D Alias] claimed that she was a dual citizen of Pakistan and Afghanistan. She states that her father is Pakistani and her grandparents were Afghan citizens. Her husband was also an Afghan national. She stated she based her visitor visa application on her grandparents’ identity as Afghanis and ‘my own Afghan citizen’. She said they needed a surname so they used her grandfather’s name ‘[Alias surname]’ as a surname.
The applicant’s submissions noted the fact that dual nationality between Afghanistan and Pakistan is not permitted. Therefore, the applicant’s father’s Afghani documents are not valid. The Tribunal also notes country information regarding the ease of obtaining false Afghani identity documents.
The applicant’s submissions indicated that information relating to the visitor visa applications and Afghan passport of the applicant’s father was not included in the NOICC and therefore should not be considered suggesting that the considerations of the court in SZEEM v Minister for Immigration [2005] FMCA 27 at [31] applied.
The Tribunal did not accept those submissions. The Tribunal accepts that it is not open to the decision maker (including the Tribunal on review) to decide whether there was non-compliance other than that particularised in the s 107 notice.[5] Thus, the Tribunal is not free to rely on a ground or grounds that are not referred to in that notice. For example, if the notice refers only to a breach of s 101 (requirement to give correct answers), the Tribunal cannot affirm the decision on the basis of a breach of s 104 (requirement to notify a change in circumstances).
[5] Saleem v MRT [2004] FCA 234 at [59]–[63].
However, the Tribunal did not suggest that the making of the visitor visa applications was an instance of non-compliance by the applicant. The alleged non-compliance particularised in the NOICC included information regarding the applicant’s place of birth and nationality – that the applicant had claimed to be born in and to be a citizen of Pakistan. In support of that claim he had provided documentation supporting his father’s Pakistani citizenship. The information detailed in the NOICC included that there was contrary information that he was born in Afghanistan and was a citizen of that country. The information also included information in prior visas that his father was an Afghan citizen. That information included that his father had previously claimed that he and the applicant’s family members were Afghan citizens. As indicated in the invitation, the information before the Tribunal was relevant to that same issue of non-compliance, that is whether the applicant provided incorrect information when he declared that he was born in Pakistan and was a Pakistani citizen.

The Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s 107 notice.[6] For example, if s 101 is relied upon, and the s 107 notice particularises the answers that were not given correctly as information relating to the applicant’s marital status the Tribunal is limited to determining whether there has been non-compliance by reason of incorrect answers given by the applicant about his/her marital status at the time those answers were given. However, the Tribunal is not precluded from considering evidence relevant to the non-compliance, as particularised, that was not referred to in the s 107 notification.[7]
[6] SZEEM v MIMIA [2005] FMCA 27.
[7] Sheptitskaya v MIBP [2015] FCCA 159 at [10]–[16] where it was confirmed that while the Tribunal must determine whether there has been non-compliance of the kind identified in the s 107 notice, it is not restricted to information referred to in the s 107 notice. In that case, the Tribunal sent to the applicant a s 359A letter which identified four additional pieces of information which had not been identified in the s 107 notice.
Secondly, again as identified in the invitation to the applicant, the information with respect to the applicant’s sister arose as adverse information because of evidence provided by the applicant at the first hearing which was later admitted to be false, that is, that she was not his sister but his cousin’s wife. This raised general concerns regarding the applicant’s credibility as a witness which was relevant to the assessment of his evidence both with respect to the particularised non-compliance and to the exercise of the discretion to cancel his visa, were that enlivened.
These matters are considered further below.
CONSIDERATION
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.
Did the notice comply with the requirements in s 107?
Section 107 requires that where the Minister considers the visa holder did not comply with s 101 of the Act, the Minister may give the person a notice ‘giving particulars of the non‑compliance’ and providing other information set out in s 107.
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 and 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.
As noted above, the applicant contended in submissions that there are two discretionary powers in this process, the first contained in s 109 and relating to the consideration of prescribed circumstances under reg 2.41. The other contained in s 107 regarding the consideration of whether or not to issue a notice to cancel. It was submitted that both discretionary powers are to be considered separately.
It was contended that Departmental ‘policy requires the Delegate to be satisfied that there has been noncompliance and because of the noncompliance, the visa may be cancelled’. It was further submitted that there was an obligation to consider all evidence ‘to form the required belief and satisfaction’ and that a failure to do so before issuing the notice under s 107 would ‘likely result in jurisdictional error’.
With respect, the Tribunal considers these submissions misunderstand the process being undertaken by the decision maker. While Departmental policy may provide direction to the delegate concerning the circumstances in which a notice should be issued[8], the question arising under s 107 is whether there is sufficient evidence to reach a real state of satisfaction that there has been non-compliance, that is, that the incorrect information was provided.
[8] The relevant Departmental Policy in place at the time the NOICC was issued were the Migration Policy ‘Visa Cancellation Instructions’ 1 July 2019-17 August 2019.
Section 107 is only engaged if the delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. It is not sufficient that the delegate considers that the visa holder ‘may have’ provided incorrect information.[9] There is no requirement that the notice must contain an assertion as to the requisite state of mind.[10]
[9] Zhong v MIAC (2008) 171 FCR 444 at [77].
[10] Zhong v MIAC (2008) 171 FCR 444 at [75].
Whether the Minister or delegate had reached the requisite state of mind is a question of fact to be determined on the basis of the evidence, which could include the terms of the s 107 notice itself, the information referred to in the notice, other information or communications recorded in the Departmental file, and Departmental guidelines for primary decision makers.[11] The Department Policy guidelines provided (relevantly) that:
[11] For example, Policy – Migration Act - visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) – s109 Cancellation – s107 notices of possible non-compliance(s).
There are certain circumstances in which it would be inappropriate to issue a notice.
A s107 notice should not be issued if:
·the available evidence does not substantiate the ground for cancellation (in other words, the available evidence should be sufficient for the delegate to consider that there has been non-compliance with s101, s102, s103, s104, s105 or s107(2)) and/or
·there is no real likelihood that cancellation will be effected.
The police guidelines went on to state:
in deciding whether to issue a s107 notice delegates should consider the following three matters:
·Protection of the Australian community: delegates should consider the risk that a person may pose to the Australian community – for example, if a visa holder has failed to declare convictions for violent or sexually-based crimes on their visa application form or incoming passenger card.
·The gravity of the non-compliance - for example, it may be inappropriate to consider cancelling the visa of a person who made a genuine mistake when filling in their passenger card and phoned as soon as possible to inform the department.
·The circumstances in which the non-compliance occurred - for example, it may be inappropriate to consider cancelling the visa of a person who failed to notify the department of the death of their partner because they were busy with funeral and other arrangements.
A review by the Tribunal of a cancellation decision under s 109 brings with it the preceding obligation on the Minister to serve a s 107 notice.[12] As Smith FM explained in Choi v MIAC, the decision to serve such a notice is not, itself, the decision under review before the Tribunal. At most, an application to review a cancellation decision brings with it an obligation on the Tribunal to be satisfied as to the preconditions of the s 109 powers before their exercise by the Minister and itself, including the preceding service of a valid s 107 notice.[13]
[12] Choi v MIAC [2008] FMCA 1717 at [32].
[13] Choi v MIAC [2008] FMCA 1717 at [32].
The delegate set out their consideration of the available material which included information that the applicant, his parents and siblings had claimed to be Afghan citizens and had provided histories consistent with those claims. This included Afghan identity documentation. The delegate also had information that the applicant had made a prior application for a visa which had been refused. The applicant concedes this was the case. In the Tribunal’s view there was nothing in the Departmental guidelines to suggest the delegate could not have reached the required state of satisfaction to issue a s 107 notice. Notwithstanding the applicant’s arguments that the delegate should have preferred the applicant’s Pakistani documentation, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107.
The notice must ‘give particulars of the non-compliance’. The purpose of giving the particulars is to allow a person who may have his or her visa cancelled the opportunity to respond before the Minister decides under s 108 that there has been non-compliance in the way specified in the notice. The Full Court in MIAC v Brar described the purpose of this statutory scheme: ‘to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and respond to them’.[14]
[14] MIAC v Brar [2012] FCAFC 30 at [61].
The applicant’s representative contended before the Tribunal that ‘it cannot be ascertained upon which information the visa cancellation is being proposed’. He based this submission on the premise that the applicant had presented Pakistani citizenship documents for himself and his father and these ‘were not taken into account in the issuance of the notice’. Against this the applicant’s father had only provided a single 2010 Afghani taskera.
The Tribunal did not accept this submission. The notice issued under s 107 of the Act contains detailed information concerning the possible non-compliance. The notice relies on the information submitted in support of the Global Special Humanitarian visa, including the Afghan taskera for the applicant’s father, and the assertion that the applicant was an Afghan citizen. It makes it clear that what is alleged is that the applicant is [Alias] who was included in the earlier Global Special Humanitarian visa application which was refused. It is clear it is alleged he was known by two undeclared aliases, [Alias] and [Alias plus Last name 1]. It is clear it is alleged that the applicant’s father is an Afghan citizen, as claimed, and that as the applicant’s father is an Afghan citizen the applicant’s claim to be a Pakistani citizen is incorrect information as he is considered to be a citizen of Afghanistan.
While it is asserted the applicant’s father is a Pakistani citizen and therefore the applicant is a Pakistani citizen, and that the delegate’s consideration of the effect of Afghan citizenship law was in error, it is difficult to see how this effectively denied the applicant the opportunity of being given notice of the allegations and afforded a chance to respond to them. While the fact the notice did not allege incorrect information had been provided with respect to questions concerning the applicant’s parents’ citizenship, it did refer to the applicant’s father’s claim to hold Afghan citizenship and alleged therefore that the applicant was not a Pakistani citizen as claimed. That was an allegation which was sufficiently particularised to enable a response. In this case the allegations were contained and particularised in the notice and the applicant did respond to them, denying he had applied for the Global Special Humanitarian visa and that he knew any of the people identified in the notice as being his family members.

100. The Tribunal finds that the notice included particulars of the possible non-compliance and that the notice issued under s 107 complied with the statutory requirements.
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) of the Act. The details of the notice were outlined above.

102. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA, the 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 because 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.[15]
[15] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

While that case was concerned with cancellation under s 116, the Court’s comments are equally applicable to s 109 cancellation, as in this case.

104. If the decision maker, including the Tribunal on review, decides that there was no non-compliance in the way described in the notice, then the cancellation power does not arise for consideration. In such cases, the appropriate course for the Tribunal would be to set aside the cancellation decision and substitute a decision that the visa is not cancelled.
105. If the decision maker, including the Tribunal on review, decides that there was non-compliance in the way described in the notice, the decision maker must proceed to consider whether to exercise the power to cancel the visa.
106. In response to the s 107 notice and in written submissions to the Tribunal, the applicant acknowledged that he had provided incorrect information in his SHEV application with respect to whether he had an Australian immigration visa refused or cancelled or had ever applied for an Australian visa outside of Australia. He had answered no to those questions when the correct information was that he had been a secondary applicant for the Global Special Humanitarian visa and which had been refused. He accepted he had been included in that application as [Alias 2] and that his date of birth had been listed as [Date].
107. However, the applicant maintained that he has not provided incorrect information in his SHEV application with respect to his identity as particularised in the notice.
108. He submitted there had been ‘some non-compliance’ which was ‘not unusual in refugee cases where the applicants go through significant trauma and arrive in Australia after a perilous journey’. However, it was submitted that the notice was ‘irregular’ and that the preferable decision would be to remit the matter.
109. As noted earlier, the applicant maintained he was a citizen of Pakistan, not Afghanistan, and that his birthdate and biographical details were as stated in the SHEV application not as included in the Global Special Humanitarian visa application.
110. In his oral evidence to the Tribunal, the applicant confirmed that he was the person identified in the Global Special Humanitarian visa, which he said he was not aware of until after arriving in Australia and moving out of detention. Accordingly, he accepted he had provided incorrect answers to questions in his SHEV application and that he did not comply with the requirements of s 101 of the Act. This was supported by the evidence of his brother.
111. On the basis of the evidence before it, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice with respect to the following questions in his SHEV application:
·Question 9 of Part C relating to the applicant’s name and aliases. The response to this question included incorrect information because it failed to state the applicant had been known by the aliases [Alias] and [Alias plus Last name 1] which were the names used in the Global Special Humanitarian visa.
·Question 65 of Part C relating to whether the applicant had a prior visa refused or cancelled because he had indicated he had not but this information was incorrect as he had been a secondary applicant for the Global Special Humanitarian visa which had been refused in March 2011.
·Question 6 of Part C relating to whether he had ever applied for an Australian visa outside Australia because he had indicated he had not but this information was incorrect as he had been a secondary applicant for the Global Special Humanitarian visa which had been refused in March 2011.

112. The applicant maintained his biographical details and history, including his claims, contained in the SHEV application were not incorrect information because he was a Pakistani citizen, born in Pakistan. This was supported by the evidence of his brother who testified that earlier claims in the Global Special Humanitarian visa application that the family were Afghan nationals were incorrect and that his father and the children were born in Pakistan and were Pakistani citizens. His sister’s evidence was somewhat more equivocal, claiming that her grandparents were Afghan citizens as was her husband and that she had applied for a visa for her parents as Afghan citizens ‘based on our grandparents identity as Afghani and my own Afghani citizen’. However, submissions accompanying that evidence contended the Afghan documentation was fake and that the Pakistani documentation should be preferred. Further, as the applicant (and his father) were Pakistani citizens by birth, under Afghan law which did not permit dual citizenship with Pakistan, the applicant (and his father) could not be Afghan nationals.
113. While the Tribunal was concerned about ongoing inconsistent evidence about citizenship and family composition, including the applicant’s denial of his sister’s presence in Australia, considering all the evidence and in particular the evidence of the applicant’s brother confirming the Pakistani nationality of the family members, the Tribunal finds that the applicant is a Pakistani citizen and that he was born in Quetta, Pakistan on [Date] as claimed. The Tribunal also finds that both the applicant’s parents are Pakistani citizens. Therefore, the Tribunal finds no incorrect information was given with respect to the applicant’s answers to the following questions in his SHEV application:
·Question 17 of Part C relating to his place of birth; and
·Question 18 relating to his citizenship at birth.

114. As the Tribunal has decided there was non-compliance in the way described in the notice, with respect to questions relating to the applicant’s names and aliases and prior visa applications, as detailed above, the Tribunal must proceed to consider whether to exercise the power to cancel the visa.
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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·the correct information;
·the content of the genuine document (if any);
·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 circumstances in which the non-compliance occurred;
·the present circumstances of the visa holder;
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·any other instances of non-compliance by the visa holder known to the Minister;
·the time that has elapsed since the non-compliance;
·any breaches of the law since the non-compliance and the seriousness of those breaches;
·any contribution made by the visa holder to the community.

117. While these 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 Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
118. The submissions of the applicant’s representative did not deal in detail with the prescribed circumstances. Submissions maintain that the only incorrect information provided was in relation to the Global Special Humanitarian visa and that the applicant was only 12 years old when that application was made. It was submitted that the non-compliance was not material to the visa grant and that he faces significant hardship due to his visa cancellation.
The correct information
119. The NOICC stated that there was non-compliance with s 101(b) as the delegate considered the applicant had provided incorrect answers to questions 9, 65 and 67 of Part C of Form 790 – Application for a Safe Haven Enterprise visa (relating to his aliases and prior visa application).
120. The Tribunal considers the following to be the correct information.
121. The applicant’s name is [the applicant]. He was born in Quetta, Balochistan, Pakistan on [Date]. He is a citizen of Pakistan. His father is also a citizen of Pakistan and was born in Pakistan.
122. He was a secondary applicant for a Global Special Humanitarian visa lodged in 2010 using the aliases [Alias] and [Alias plus Last name 1]. That visa application incorrectly claimed he was an Afghan citizen and relied on a false Afghan identity document in his father’s name.
The content of the genuine document (if any)

The Tribunal notes that the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents).

124. The s 107 notice detailed that his father had provided an Afghan taskera in support of his claimed Afghan identity in the Global Special Humanitarian visa application. The applicant submitted that that document was false and based on the evidence before it the Tribunal finds that it was a non-genuine document.
125. The Tribunal affords this consideration neutral weight in the applicant’s circumstances.
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
126. The Tribunal has found the applicant’s claimed identity and nationality were genuine and finds that he was granted a visa in that name and with his correct nationality as a Pakistani citizen. His visa grant was based on his claimed family history in Pakistan and the fact he was a Hazara and a Shia Muslim. Those factors did not form part of the incorrect information.
127. The Tribunal finds that this weighs against exercising the power to cancel the visa.
The circumstances in which the non-compliance occurred
128. In his evidence to the Tribunal, the applicant claimed that he left Pakistan because it was not safe there. He said he could not go to school or shopping and they decided he should come to Australia. He flew to [Country 2] and then went overland to [Country 3] where he boarded a boat eventually arriving in Australia.
129. He told the Tribunal that at the time he made the application for the SHEV he was unaware that the earlier visa application had been made and that his siblings had claimed to be Afghan nationals. He said he asked his father about it in the context of the cancellation and he told him he had made the earlier application. He did not know and did not ask why he (his father) had used a different name or why they had claimed to be Afghan nationals.
130. Having considered all the evidence, the Tribunal does not accept the applicant was unaware of the earlier application at the time the SHEV application was made. The Tribunal found the applicant provided untruthful evidence before the Tribunal in an attempt to avoid his information being connected to family members who had made applications claiming to be Afghan citizens. He chose to provide false evidence before the Tribunal under oath with respect to his history of settlement in Australia and his relationship with his sister. Before the Tribunal he denied [Ms D] was his sister. This continued a story he had provided on arrival when he had been placed in her and her husband’s care claiming she was married to his cousin (her husband), having declared his cousin as his only contact in Australia despite his brother and sister being in Australia at that time. Further in his application he listed his brother as [Mr C] who he claimed was deceased and did not identify that he was living in Australia under the name, [Mr C Alias]. The Tribunal does not accept he was unaware his brother was living in Australia and that he had entered Australia using that alias.
131. The applicant’s evidence caused the Tribunal to have significant concerns with his evidence before the Tribunal including with respect to the circumstances in which the incorrect information was given.
132. The Tribunal finds that the applicant was aware the application had been made on his behalf in Pakistan and that the earlier application had been unsuccessful. The Tribunal finds this was the reason the applicant then entered Australia as an irregular maritime arrival and why he did not declare aliases used in that earlier application. This was also the reason he did not declare his connection to [Mr C Alias] and [Ms D Alias].
133. The applicant submitted that he was a refugee who had arrived under difficult circumstances as a minor. The Tribunal accepts the evidence of the applicant and his brother that he had been instructed by family members not to provide some information which might identify other family members, to protect their positions (and visa status). The Tribunal does not accept that excuses or explains that behaviour, in particular as it relates to providing untruthful evidence to the Tribunal. However, the Tribunal accepts that the applicant was young and arrived in difficult circumstances and was under significant pressure to protect other family members.
134. Accordingly, while the Tribunal considers this factor weighs in favour of cancelling the visa, it gives this factor only moderate weight in the applicant’s circumstances.
The present circumstances of the visa holder
135. At the time of the hearings the applicant was living with his brother in Perth and working in the [Work sector]. He has a fiancée in Adelaide but had moved to Perth for work and to deal with his immigration issues. The applicant and his fiancée plan to marry next year. His fiancée lives with her mother and siblings and is an Australian citizen. This was supported by a statement from his fiancée submitted following the second hearing.
136. The applicant’s parents and two of his siblings remain in Pakistan. Another sister is in [Country 1].
137. The Tribunal accepts that the applicant would like to continue to reside in Australia and settle here with his fiancée. In these circumstances, the Tribunal is of the view that the cancellation of the applicant’s visa would cause him and his fiancée hardship resulting from his visa cancellation.
138. Having regard to the above considerations, the Tribunal gives this factor weight exercising the power to cancel 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
139. Subdivision C of Division 3 of Part 2 of the Act contains obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
140. As noted above, the applicant has acknowledged that he has provided incorrect information to the Department in relation to his SHEV application. As discussed with the applicant at the hearing, the applicant became aware of the earlier visa application after he was released from detention in around October 2013. However, he failed to do so, lodging the visa application in October 2015 and denying the earlier application in his response to the NOICC in July 2019.
141. In addition, he continued to provide untruthful information under oath before the Tribunal. The Tribunal considers that to be a serious issue. The applicant has allowed the incorrect information to remain unchanged over many years and provided untruthful evidence before the Tribunal.
142. The Tribunal considers that the applicant’s subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
143. As noted above, the applicant provided information that his brother was deceased, which he knew was not the case. He also failed to provide the alias used by his brother or to identify that he had two siblings living in Australia, [Mr C]/[Mr C Alias] and [Ms D]/[Ms D Alias]. The Tribunal finds he did so in order to maintain the false information submitted by family members as to their claimed Afghan citizenship and to facilitate securing a favourable visa outcome for those and other family members.
144. The applicant has given incorrect or untruthful information to the Department and the Tribunal including during these proceedings. This weighs in favour of cancelling his visa.
The time that has elapsed since the non-compliance
145. The relevant non-compliance in the present case took place when the applicant provided incorrect information in connection with his SHEV application which was lodged in October 2015. Almost eight years have passed since the non-compliance, which the Tribunal acknowledges is a lengthy period.
146. The Tribunal gives this factor weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
147. At the second hearing he told the Tribunal he had been ‘busted’ for being in possession of prescription drugs. He pleaded guilty to the offence and was fined. He told the Tribunal he has no other convictions.
148. The Tribunal considers the applicant’s breach of the law weighs in favour of cancelling the visa, however the Tribunal does not consider the breach to be serious given the penalty was a fine and considers that it only weighs slightly in favour of cancelling the applicant’s visa.
Any contribution made by the visa holder to the community
149. Evidence provided by the applicant suggests that he works in [Work sector]. He testified that he has been an active sportsperson, including at a representative level, though his visa status has prevented him from participating in international events.
150. The letter from [Mr K], President of [Organisation 1], states that the applicant is a ‘dedicated community worker’ and has been a member since 2015. The letter notes he has been an active volunteer and is committed to the community. The letter from [Mr L], Trustee of [Organisation 2], states that he has known the applicant as a community member since 2015 and that he is an active participant/volunteer in cultural, community and religious activities. He states that the applicant has supported the [Organisation] physically and financially.
151. The Tribunal accepts the applicant has been active member of the community since his arrival and considers the applicant’s contributions to the community weigh in favour of not cancelling his visa.
Other considerations
152. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[16] set out a number of matters that, under policy, should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, including:
[16] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21 August 2016)
Whether there are persons in Australia whose visas would, or may, be cancelled under s 140

Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

154. There are no consequential cancellations that would occur if the applicant’s visa were to be cancelled.
International obligations
155. It is government policy that when considering whether to cancel a visa any relevant obligations arising under international treaties must be taken into account. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[17] Other than the UN Convention on the Rights of the Child (CRC), non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[18]
[17] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)
[18] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21 August 2016)
Best interests of children
156. As a signatory to the CRC, Australia has certain obligations, including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16). The CRC also includes integrated but wider considerations including education[19] and health and disability considerations[20] for children within the jurisdiction of the State party. Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[21]
[19] Article 28
[20] Articles 23 and 24
[21] Article 22
157. When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship.[22]
[22] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122
158. There was no specific information before the Tribunal that any minor children would be negatively impacted by the decision. However, the Tribunal acknowledges the applicant has close family in Perth including nieces and nephews, some of whom he currently lives with and others who he sees regularly. The Tribunal considers that it is in the best interests of these children that he remains in Australia.
159. The Tribunal notes [Ms I] made reference to her siblings in her statement, however there was no information before the Tribunal as to whether they are children.
160. The Tribunal considers the best interests of the children impacted by the decision weighs strongly in favour of not cancelling the visa.
Australia’s non-refoulement obligations
161. It was submitted that Australia would be in breach of its non-refoulement obligations if the applicant’s visa remained cancelled and he was returned to Pakistan.
162. The Tribunal notes the applicant was assessed to be owed protection based on his family composition and history as a Pakistani Hazara. The Tribunal accepts he is a Pakistani Hazara.

If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act. He is then liable to be removed under s 198, however, for the purposes of s 198, as a protection finding has been made for him, the Act does not require or authorise his removal (s 197C(3)).

164. 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).
165. 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.
166. In such a scenario, however, cancellation may lead to prolonged detention for these reasons. This is considered further below.
167. As the Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation, the Tribunal considers this factor weighs neutrally in the applicant’s circumstances.
Mandatory legal consequences
168. The policy provides that the Tribunal should have regard to whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.
169. If the visa is cancelled and the applicant exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen.[23] However, as a protection finding has been made for him he would not be liable for removal but would be detained.
[23] Sections 82(10), 82(7A) of the Act, cls 010.511, 020.511, 030.511 of the Regulations.
170. As the applicant arrived by sea at an excised offshore place (Christmas Island) after that place was excised (in the case of Christmas Island 2001) the applicant is an ‘unauthorised maritime arrival’ (s 5AA) for the purposes of s 46A of the Act. Under s 46A of the Act if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa.

This means he will face detention until a decision is made under s 197D that a protection finding would no longer be made, or the Minister personally decides to grant him a visa under s 195A, or the Minister decides under s 48A it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.

172. Under s 195A, the Minister may grant the applicant a visa (whether or not on application). Additionally, the Minister has discretion under s 197AB to move a non-citizen into ‘community detention’ where it is in the public interest to do so. As the Minister’s powers are non-compellable and discretionary, all these possibilities are speculative and any that do eventuate could take considerable time meaning the applicant faces the prospect of prolonged detention according to s 196.[24]
[24] Commonwealth v AJL20 [2021] HCA 21.
173. The Tribunal accepts the Minister’s powers to lift the bar for the applicant to make an application or to be otherwise granted a visa are non-compellable and discretionary and has weighed this accordingly in considering the mandatory legal consequences of cancelling the applicant’s visa.

174. Cancellation of the applicant’s visa would impact his ability to be sponsored for any other visa including a Partner visa. This is likely to cause significant hardship to the applicant and his fiancée and delay their plans to start a family together.
175. Given the significant legal consequences of cancellation and the impact on the applicant, his fiancée and his family, the Tribunal considers this factor weighs against cancelling the visa.
Conclusions
176. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in his application for a SHEV and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act for the questions identified above.
177. The Tribunal has found that there are strong considerations in favour of cancelling the applicant’s visa. The Tribunal gives weight to the fact that the applicant intentionally misled the Department on a number of matters at the visa application stage, including with respect to a prior visa application and his family connections. He continued to deny family connections and a prior visa application through the initial response to the notice. The Tribunal also places weight on the fact that the applicant provided untruthful information in evidence before it.
178. However, the Tribunal finds there are strong countervailing considerations weighing against the cancellation of the applicant’s visa and considers that these outweigh those weighing in favour in the applicant’s case. The Tribunal has also found that much of the information the applicant provided was correct, though not consistent with the weight of information and documentation provided by other family members in support of visa applications made by them, including on his behalf.
179. The applicant was granted his visa based on the correct information. He was assessed to be owed protection as a Pakistani Hazara who was the son of a Pakistani [Occupation]. The Tribunal accepts that is his correct profile. The cancellation of the visa would likely result in prolonged separation of the applicant from his fiancée and delay their plans to start a family in Australia. Further, the Tribunal takes account of the applicant’s relatively young age throughout the process which likely rendered him more susceptible to family pressure to protect other visa applicants making claims inconsistent with those he had made on arrival and later in his SHEV application. While that does not excuse providing incorrect information in circumstances such as the applicant’s it lends weight against cancelling his visa.
180. Accordingly, having regard to all the relevant circumstances, the Tribunal considers that the discretion to cancel the visa should not be exercised.
DECISION
181. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.
Simone Burford
Senior 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.