1933890 (Refugee)

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.