2119363 (Refugee) - [2022] AATA 1775

2119363 (Refugee) [2022] AATA 1775 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2119363
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Alison Murphy
DATE:14 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 14 April 2022 at 1:47pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – identity details – family composition – race – Hazara – protection obligations – visa would still have been granted – contribution to the community – consequential cancellations – indefinite detention – best interests of the Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 195-198, 425, 431, 440
Migration Regulations 1994, Schedule 2, cl 050.212; r 2.41
CASES
Akter v MIBP [2018] FCCA 3604
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
MIAC v Khadgi (2010) 190 FCR 248
Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Sankey v Whitlam (1978) 142 CLR 1
Singh v MIBP [2020] FCA 783
SZMTA v MIBP [2017] FCA 1055
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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review. In addition to the material on the Departmental file, further submissions and documents were provided to the Tribunal on 4 April 2022.
The applicant was represented in relation to the review. This matter was constituted and decided together with the related cases of [Relative A] (AAT proceeding 2119365) and [the applicant’s wife] (AAT proceeding 2119364).
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside pursuant to s 425(2)(a) of the Act.
BACKGROUND
The background to the review is set out in the Department’s s 107 notice dated 29 June 2020. It records the applicant arrived at Kingsford Smith International Airport in Sydney [in] September 2008 as an unauthorised air arrival, identifying himself as Afghan national [the applicant’s name], a widow with two sons, [Relative B] and [Relative A].
On 1…

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 2119363 (Refugee)

Details

AGLC: 2119363 (Refugee) [2022] AATA 1775
Case: [2022] AATA 1775
Decision Date: 14 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Afghan national. The applicant had arrived in Australia in 2008 and was granted a protection visa in 2009. Subsequently, his step-brothers were granted humanitarian visas based on his claimed relationship as their father. In 2017, during an identity interview, adverse information regarding his identity and family composition was raised. The applicant later provided a statutory declaration admitting to providing incorrect information about his name and family composition in his original protection visa application, stating that the individuals he claimed as his sons were in fact his step-brothers. This led to the Department of Home Affairs issuing a notice of intention to cancel his visa.

The primary legal issue before the Tribunal was whether the applicant's failure to provide correct information in his protection visa application, specifically regarding his name and family composition, constituted a ground for cancellation under the Migration Act 1958 (Cth). The Tribunal was required to determine if the visa grant was based, wholly or partly, on this incorrect information and, if so, whether the visa should be cancelled. The Tribunal also considered the applicant's ethnicity as a Hazara Shia and the historical persecution faced by this group in Afghanistan.

The Tribunal found that the applicant had indeed provided incorrect information regarding his name and family composition in his protection visa application. It accepted that this non-compliance meant the Department was denied the opportunity to conduct full character and security checks before granting the visa. Consequently, the Tribunal concluded that the decision to grant the protection visa was based, in part, on the incorrect information provided. However, the Tribunal also noted that, apart from the identity issue, there was nothing in the material to suggest the visa would not have been granted had the correct information been known, particularly given the applicant's Hazara ethnicity and the ongoing risks faced by this group in Afghanistan. The Tribunal weighed the seriousness of misrepresenting identity against the circumstances of the non-compliance.

The Tribunal set aside the decision to cancel the applicant's protection visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside pursuant to s 425(2)(a) of the Act.BACKGROUND The background to the review is set out in the Department’s s 107 notice dated 29 June 2020. It records the applicant arrived at Kingsford Smith International Airport in Sydney [in] September 2008 as an unauthorised air arrival, identifying himself as Afghan national [the applicant’s name], a widow with two sons, [Relative B] and [Relative A]. On 1 October 2008 he lodged an application for a protection visa, again identifying himself as Afghan national [the applicant], father to [Relative B] and [Relative A]. He stated he was also known by the name [Alias A], as he had left Pakistan with a false Pakistani passport organised by a people smuggler. On 15 January 2009 he was granted the protection visa. On 8 October 2009 [Relative B] lodged an application for an offshore humanitarian visa naming [himself] and [Relative A] as dependent applicants. That visa application was proposed by the applicant based on his claimed relationship of father to [Relative B] and [Relative A]. Humanitarian visas were granted to [Relative B] and [Relative A] on 30 April 2013. On 4 December 2014, the applicant lodged an application for Australian citizenship and on 27 June 2017 he participated in an identity interview at which certain adverse information about his identity and family composition was put to him. On 20 January 2018 the Department’s Citizenship Section wrote to the applicant inviting him to comment on adverse information about his identity and family composition. In a statutory declaration made 31 May 2018, the applicant declared his correct name was [Alias B] and that he had given incorrect information about his name and family composition in his protection visa application. In that statutory declaration he outlined his correct family composition, stating that [Relative B] and [Relative A] were in fact his step-brothers and not his sons and their parents are the applicant’s father, [Father A], and step-mother, [Stepmother A]. On 29 June 2020 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s 107 of the Act (the s 107 notice), advising him that they were considering the cancellation of his protection visa on the ground that he appeared to give incorrect information in his protection visa application. The s 107 notice alleges the applicant provided incomplete and/or incorrect information in his protection visa application in the following respects:·At question 1 of the Form 866C when he stated his full name was [the applicant’s name];·At question 4 of the Form 866C when he stated he had also been known by the name [Alias A];·At question 9 of the Form 866C when he gave details of his family members who were not in Australia to include [Relative B] and [Relative A], whom he identified as his sons. The s 107 notice invited the applicant to comment on the information contained in the notice.

Evidence

Evidence Before The Court

For these reasons I can see no logical, probative or rational basis for finding that disclosure of that material covered by the certificate would be contrary to the public interest. I do not consider the information covered by the certificate provides a basis for the stated public interest immunity reasons listed on the certificate and I find the s 438 certificate to be invalid. It follows that the applicant is entitled to see the documents and I have directed that the names and contact details of the departmental officers be removed and the documents otherwise released to the applicant.CONSIDERATION OF CLAIMS AND EVIDENCE 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, 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. No issues have been raised as to the validity of the notice. 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 when he stated that his full name was [the applicant’s name] and he had also been known by the name [Alias A], and when he gave details of his family members who were not in Australia as including his sons [Relative B] and [Relative A]. The applicant concedes that he gave incorrect information in response to questions 1 and 4 of the protection visa application when he stated that his name was [the applicant’s name] and when he did not disclose that his correct name is [Alias B]. In his statutory declaration dated 31 May 2018, the applicant confirms his correct name is [Alias B] and that [Relative B] and [Relative A] are his step-brothers and not his children, born of the applicant’s father [Father A] and stepmother [Stepmother A]. While not specified in the s 107 notice, it is apparent that the applicant also gave incorrect names for them and that their correct names are in fact [Relative BB] and [Relative AB], rather than [Relative B] and [Relative A].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).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 Department’s file contains a copy of the decision record dated 15 January 2009 in respect of the applicant’s protection visa application. The decision record indicates the applicant is a Hazara Shia from Malistan district who was found to be a refugee on the basis of his imputed political opinion arising out of his [Relative C’s] connection to [a named] party, perceived by the Mujahadeen who controlled the area as having [opposing party] ties. The decision record cites country information indicating that while Afghanistan’s small Hazara population had found some peace in post-Taliban Afghanistan, Hazaras were critical of the Karzai government’s favouring of Pashtuns in the context of the historical genocide perpetrated against them and that those Afghans perceived as critical of factions or individuals exercising control over a region are at risk of harm. The delegate accepted the applicant’s claims to be plausible and concluded there was a real chance the applicant would be targeted for harm by the local mullahs and representatives of the ruling Wahdat party if he returned to Malistan. The delegate records in the cancellation decision that the applicant’s failure to provide his correct name and family composition meant that relevant character and security checks were not undertaken against his correct identity and concluded that the visa grant was based, in part, on the incorrect information. The Tribunal accepts that a person’s identity is always an important component of a decision to grant a visa and that the provision of the incorrect information about the applicant’s name meant the Department was denied the opportunity to carry out the usual character and security checks before the protection visa was granted in 2009. Subject to the outcome of those checks, there is otherwise nothing in the material before the Tribunal that would indicate that the decision to grant the protection visa would have been different had the Department been aware of the applicant’s correct name and family composition. In particular, it is not in dispute that the applicant is a Hazara Shia or that Hazaras are readily identifiable by their distinctive East Asian appearance and Hazaragi language and that they have historically faced persecution in Afghanistan and continue to be assessed as at high risk of harassment and violence from both the Taliban and Islamic State – Khorasan Province (ISKP).[7][7] DFAT Country Information Report Afghanistan 4 January 2022 at 3.2 and 3.5 In these circumstances, the Tribunal concludes that the decision to grant the applicant the protection visa was based in part on the incorrect information about the applicant’s identity. As noted above, it is a serious matter to misrepresent one’s identity in a visa application and I weigh this factor in favour of the cancellation of the visa.The circumstances in which the non-compliance occurred