2200104 (Refugee)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) by a male applicant against the Minister's decision to cancel his Subclass 790 (Safe Haven Enterprise) visa. The applicant arrived in Australia in April 2013 and was granted the visa in March 2017 based on his claim of being an Afghan national of Hazara ethnicity fleeing threats from the Taliban due to his work for NATO forces. The Department later received information suggesting the applicant held a Pakistani passport under an alias, which Pakistani authorities confirmed as authentic. This led to the Department issuing a notice of intention to cancel the applicant's visa under section 109 of the Migration Act 1958 (Cth) for providing incorrect information regarding his identity, citizenship, right to enter another country, and passport history.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Act, as alleged in the notice of intention to cancel, and if so, whether the visa should be cancelled. Specifically, the Tribunal had to consider whether the applicant's declarations concerning his identity and citizenship were incorrect, and if the visa grant was based on this incorrect information. The Tribunal also had to assess the discretionary factors relevant to visa cancellation, including Australia's non-refoulement obligations.

The Tribunal found that while the applicant had provided incorrect information regarding his identity and citizenship in his visa application, the visa would likely have been granted regardless of this non-compliance. This was because the applicant's claims regarding his ethnicity, religion, imputed political opinion, and employment with foreign forces were substantiated and would have met the criteria for protection. The Tribunal accepted that the applicant was an Afghan national who had used fraudulently obtained Pakistani identity documents while in Pakistan. Crucially, the Tribunal concluded that the decision to grant the protection visa was not based on the incorrect information provided, but rather on the applicant's genuine claims for protection.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. The Tribunal determined that the applicant's long residence in Australia, his education and work, and his financial support of family members overseas were significant factors. Furthermore, the Tribunal considered that voluntary return was unlikely and prolonged immigration detention was a possibility, alongside the volatile security situation in Afghanistan, which weighed against cancellation.