1933888 (Refugee) - [2023] AATA 3205

1933888 (Refugee) [2023] AATA 3205 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Teresa Lee (MARN: 2217901)
CASE NUMBER: 1933888

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Simone Burford
DATE:7 July 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 07 July 2023 at 11:16am

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – family composition – identity details – death of husband – previous visa application – identity documents – Hazara – Shia – diagnosed health and mental health issues – non-refoulement obligations – indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 46, 48, 97-105, 107-109, 140, 189, 195-198, 424
Migration Regulations 1994, r 2.41
CASES
Commonwealth v AJL20 [2021] HCA 21
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 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) visa (SHEV) 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 her SHEV application 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.
Background
The applicant is [an age]-year-old woman who claims to be a citizen of Afghanistan. She claims to be ethnically Hazara and a Shia Muslim born in [her home village in] Daykundi, Afghanistan. According to the delegate’s decision record, she arrived as an irregular maritime arrival [in] December 2012 with a person she claimed to be her niece, [Daughter A].
The applicant applied for a SHEV on 27 October 2016, based on her claimed status as a widowed Shia Hazara from Afghanistan. She was granted a SHEV on 6 April 2017. That visa was cancelled on 21 November 2019 and is the subject of this review.
The Tribunal notes s 107A provides that failure to comply with ss 101(a) and 101(b) of the Act in connection with a previous visa application may be grounds for cancelling the visa holder’s current visa.
The cancellation
The notice
As detailed in the notification of decision, on 15 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her SHEV, on the basis of non-compliance with s 101(b) of the Act. That subsection provides that no incorrect information…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1933888 (Refugee)

Details

AGLC: 1933888 (Refugee) [2023] AATA 3205
Case: [2023] AATA 3205
Decision Date: 7 July 2023

CaseChat Overview and Summary

This case concerned a protection visa holder whose visa was cancelled by a delegate of the Minister. The applicant, an Afghan woman, had been granted a Safe Haven Enterprise visa (SHEV) in April 2017. The delegate's decision to cancel the visa was based on the applicant's alleged failure to comply with section 101(b) of the Migration Act 1958 (Cth), which prohibits the provision of incorrect information during the visa application process. The delegate's conclusion was informed by a previous visa application lodged in 2005 under an alias, which suggested discrepancies in the applicant's identity details and family composition, specifically regarding the death of her husband.

The primary legal issue before the Tribunal was whether the applicant had indeed provided incorrect information in her SHEV application, thereby breaching section 101(b) of the Act, and if so, whether the visa should be cancelled. This involved examining the information provided in the 2016 SHEV application in light of the information presented in the 2005 Global Special Humanitarian visa application, particularly concerning the applicant's marital status and the identity of her husband. The Tribunal was required to determine if the delegate's grounds for cancellation were made out and if the cancellation decision was justified.

The Tribunal found that the applicant's representative acknowledged, in written submissions, that the applicant had provided incorrect information in her SHEV application, thus admitting non-compliance with section 101 of the Act. The applicant herself confirmed this in a statutory declaration, with the sole exception being the assertion that she was a widower. The Tribunal noted that in her SHEV application, the applicant had claimed her husband was [Husband Alias 1], not [Husband A], indicating incorrect biographical details were provided regarding her husband. However, the Tribunal accepted that [Husband A] was likely not deceased, meaning the applicant's statements about her marital status were not incorrect in that specific regard.

The Tribunal set aside the delegate's decision to cancel the applicant's visa. While acknowledging the applicant's admission of providing incorrect information in her SHEV application, the Tribunal's reasoning focused on the specific grounds for cancellation as particularised in the Notice of Intention to Consider Cancellation. The Tribunal concluded that the non-compliance identified in the notice, particularly concerning the marital status and the identity of her husband, was not made out to the extent required for cancellation, especially given the finding that her claim of being a widower was not demonstrably false.

Orders

Orders of the court

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Background

Background to the litigation

The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to her SHEV application 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.Background The applicant is [an age]-year-old woman who claims to be a citizen of Afghanistan. She claims to be ethnically Hazara and a Shia Muslim born in [her home village in] Daykundi, Afghanistan. According to the delegate’s decision record, she arrived as an irregular maritime arrival [in] December 2012 with a person she claimed to be her niece, [Daughter A]. The applicant applied for a SHEV on 27 October 2016, based on her claimed status as a widowed Shia Hazara from Afghanistan. She was granted a SHEV on 6 April 2017. That visa was cancelled on 21 November 2019 and is the subject of this review. The Tribunal notes s 107A provides that failure to comply with ss 101(a) and 101(b) of the Act in connection with a previous visa application may be grounds for cancelling the visa holder’s current visa.The cancellationThe notice As detailed in the notification of decision, on 15 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her SHEV, on the basis of non-compliance with s 101(b) of the Act. That subsection 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 applicant responded to the NOICC on 26 April 2019. The delegate’s decision records the matters details in the NOICC set out as the grounds for the cancellation the applicant’s responses included in her application for the SHEV lodged on 27 October 2016. The NOICC included the responses to questions in part of the application – the Form 790C Personal details for each person included in this application (Part C). The NOICC also detailed responses or information provided in another visa application as information indicating the applicant had provided incorrect answers in her SHEV application, namely an application for a Global Special Humanitarian (subclass 202) visa (GSH visa) lodged under the name of [Alias A] on 3 October 2005. The NOICC detailed that Departmental records show that, on 3 October 2005, [Daughter A’s] mother, [Alias A], (born [DOB 1]), applied for the GSH visa with the Department's Islamabad office. [Daughter A] was included in the application as a dependent child. In support of the application, [Daughter A] provided a copy of her Afghan Taskera supporting her claim [Alias A] is her mother. The applicant provided an Afghan Taskera issued [in] October 2005 and indicating she was born in [her home village] and was [age] years old in 2005. The delegate’s decision records that [Alias A], [Daughter A] and her siblings included in her application were all requested to attend an interview [in] May 2006 at the Department's Islamabad office. [Daughter A] and her siblings attended, but told the interviewer their mother, [Alias A], had recently died, and they provided a copy of a death certificate in her name issued [in] February 2006 by [a named] Hospital, Quetta.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Broadly, the information covered by the certificate relates to internal Departmental communication about the applicant’s identity and related family members. The Tribunal notes this information has already been disclosed to the applicant, and before the Tribunal the applicant acknowledged the information was correct. As such, the Tribunal did not consider there was any information covered by the certificate which had not otherwise been put to the applicant for comment or response.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. 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 (Attachment B). In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.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. 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. In written submissions to the Tribunal, the applicant’s representative acknowledged that the applicant had provided incorrect information in her SHEV application and that there was non-compliance in the way described in the notice issued under s 107 of the Act, except with respect to the question of whether her husband was deceased. In her statutory declaration submitted to the Tribunal, the applicant confirmed that she provided incorrect answers to questions in her SHEV application and that she did not comply with the requirements of s 101 of the Act, with the exception of the fact that she is a widower. With respect to the issue of the applicant’s responses with respect to her husband, the Tribunal notes that with respect to the SHEV application she claimed her husband was [Husband Alias 1] not [Husband A]. It follows that she provided incorrect answers to questions relating to the biographical details of her husband. For the reasons details further below, the Tribunal accepts that [Husband A] is not likely deceased and as such the Tribunal accepts that her answers as to her marital status were not incorrect.