1933890 (Refugee) - [2023] AATA 2905

1933890 (Refugee) [2023] AATA 2905 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Teresa Lee (MARN: 2217901)
CASE NUMBER: 1933890

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 10:29am

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – family composition – identity details – death of father – previous visa application – Hazara – Shia – separation from family – 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 (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 [Town 1 variant], 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 aunt, [Mother A]. She is married to [Husband A] ([DOB 1]) who is in Australia and holds a Safe Haven Enterprise visa (granted 17 May 2017).
The applicant applied for a SHEV on 27 October 2016, based on her claimed status as an orphaned Shia Hazara from Afghanistan. She was granted a SHEV on 8 May 2017. That visa was cancelled on 21 November 2019 and is the subject of this review.
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 must be given in the visa application process and that information must be updated when it is not correct.
The…

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 1933890 (Refugee)

Details

AGLC: 1933890 (Refugee) [2023] AATA 2905
Case: [2023] AATA 2905
Decision Date: 7 July 2023

CaseChat Overview and Summary

The applicant, a woman claiming to be an orphaned Shia Hazara from Afghanistan, sought review of the cancellation of her Safe Haven Enterprise visa. The delegate had cancelled the visa on the grounds that the applicant had provided incorrect information in her visa application, contrary to section 101 of the Migration Act 1958 (Cth). The applicant had arrived in Australia in 2012 and was granted a SHEV in May 2017. The cancellation notice issued in April 2019 cited discrepancies between information provided in her SHEV application and details from a previous Global Special Humanitarian visa application lodged by her mother in 2005.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with section 101 of the Act by providing incorrect information in her SHEV application, and if so, whether the visa should be cancelled. Section 101 requires visa applicants to provide correct information and to update it if it becomes incorrect. The Tribunal also considered whether the notice of intention to cancel the visa issued under section 107 of the Act was valid and whether the particulars of the alleged non-compliance were sufficiently detailed.

The Tribunal noted that section 109 of the Act empowers the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101. The exercise of this power is contingent on the issuance of a valid notice under section 107. In this instance, the Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. Crucially, the applicant's representative acknowledged that the applicant had provided incorrect information in her SHEV application, thus admitting non-compliance with section 101, with the sole exception of the question regarding her father's death.

The Tribunal accepted that the applicant's father, [Father A], was likely deceased, meaning her statements in that regard were not incorrect, despite the uncertainty surrounding the timing of his death due to conflicting and non-genuine documents. However, given the applicant's admission of providing incorrect information on other aspects of her SHEV application, the Tribunal found that the ground for cancellation under section 101(b) was made out. The decision under review was set aside.

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 [Town 1 variant], 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 aunt, [Mother A]. She is married to [Husband A] ([DOB 1]) who is in Australia and holds a Safe Haven Enterprise visa (granted 17 May 2017). The applicant applied for a SHEV on 27 October 2016, based on her claimed status as an orphaned Shia Hazara from Afghanistan. She was granted a SHEV on 8 May 2017. That visa was cancelled on 21 November 2019 and is the subject of this review. 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 29 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 by her mother, [Mother Alias A] (born [DOB 2]), on 3 October 2005, in which the applicant was listed as a secondary applicant for the visa. In support of the SHEV application, the applicant provided a passport issued [in] 2007 by the Afghan consulate in Quetta, Pakistan stating she was born in [year], and was the daughter of [Father A]. She also provided an English translation of an Afghan Taskera which she claimed to have lost the original. This was issued [in] October 2005 in [Town 2], Afghanistan. She stated it was obtained by her Uncle [Uncle A], while she was living in Quetta, Pakistan. Both documents stated she was born in [year] and was the daughter of [Father A]. In the SHEV application the applicant stated that her mother’s name was [Mother Alias A] and she is deceased. She also referred to a humanitarian visa lodged in 2005 to bring her family to Australia. The NOICC identified that visa application as the GSH visa application lodged by [Mother Alias A] in Islamabad on 3 October 2005.

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 biographical details 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 father 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 her father is deceased. For the reasons details further below, the Tribunal accepts that [Father A] is likely deceased and as such the Tribunal accepts that her answers in that respect were not incorrect though the timing of his death remains uncertain in light of conflicting information and non-genuine documents provided to the Department reading his death.