1933888 (Refugee)

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.