2215743 (Refugee) - [2023] AATA 2549

2215743 (Refugee) [2023] AATA 2549 (6 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Caitlin White
CASE NUMBER: 2215743

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Wayne Pennell
DATE:6 June 2023
PLACE OF DECISION: Brisbane
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 06 June 2023 at 2:50pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – race – Hazara – religion – apostacy – mental health issues – employment for the US military – Pakistan citizenship – non-refoulement obligations – contribution to the community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140, 424AA
Migration Regulations 1994, r 2.41
CASES
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 (‘the Delegate’) to cancel the Applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Delegate cancelled the visa on the basis that the Applicant provided incorrect information and answers to his application for a protection visa and therefore he did not comply with section 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the Applicant’s Protection visa should be cancelled.
The Applicant appeared before the Tribunal on 26 May 2023 and 5 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Psychologist A], a psychologist.[1] In addition to that evidence, the Applicant further relied upon the statutory declarations of [Declarant A] ,[2] [Declarant B][3] and [Declarant C],[4] along with a statement from [Mr A].[5]
[1][Psychologist A] had provided a report regarding a psychological assessment of the Applicant dated 17 May 2023.
[2]Dated 25 May 2023.
[3]Dated 19 May 2023.
[4]Dated 18 May 2023.
[5]Dated 6 May 2023.
The Applicant was represented in relation to the review and the hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s Protection visa should be set aside.
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 sections 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,…

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 2215743 (Refugee)

Details

AGLC: 2215743 (Refugee) [2023] AATA 2549
Case: [2023] AATA 2549
Decision Date: 6 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Protection visa. The applicant had arrived in Australia in May 2009 and was subsequently granted a Protection visa on 28 July 2009. The Minister later cancelled this visa under section 109 of the *Migration Act 1958* (Cth) due to the applicant providing incorrect information in his visa application regarding his place of birth and nationality. The applicant claimed to be a Hazara Shia Muslim born in Afghanistan, who had worked for the US military and feared persecution from the Taliban. However, his father, who later arrived in Australia, declared in his own visa application that he was a Pakistani citizen born in Pakistan, with Afghan parents, and had held Pakistani passports.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Protection visa under section 109 of the *Migration Act 1958* (Cth) was valid. This required the Tribunal to determine if the applicant had failed to comply with the provisions of the Act concerning the provision of truthful information in his visa application, and if the Minister had followed the correct procedural steps in issuing the notice of cancellation. A secondary issue involved the consideration of a section 438 certificate issued by the Department, which restricted the disclosure of certain documents on public interest grounds related to investigative methods.

The Tribunal reasoned that while the delegate had reached the necessary state of mind to engage section 107 and the notice of cancellation complied with statutory requirements, the evidence presented did not ultimately support the cancellation. The Tribunal acknowledged the public interest in protecting the Department's investigative methods, as evidenced by the section 438 certificate, and did not disclose the certified information beyond broad terms. However, after considering the applicant's claims and the conflicting information provided by his father, the Tribunal concluded that the decision to cancel the visa should be set aside.

The Tribunal ordered that the decision to cancel the applicant's Protection visa be set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the documents to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the Applicants.Background information The Applicant arrived in Australia [in] May 2009 as an irregular maritime arrival. He later lodged a request for a Refugee Status Assessment,[8] and subsequently, the Delegate found him to be a refugee.[9] At a later time, the Applicant requested the Minister lift the section 46A(1) to allow him to lodge an application for a Protection visa (subclass 866). That application was lodged with the Department and the Applicant was subsequently granted a Protection visa.[8]On 28 July 2009.[9]On 21 September 2009. When completing the application for the Protection visa, there were numerous questions which required truthful answers in respect to the Applicant’s personal details, citizenship and the reasons or claims as to why he was seeking a Protection visa. Those questions were answered by the Applicant, however, he provided incorrect information in his answers in the application regarding his place of birth and nationality. In the application, the Applicant claimed that he was born in [Village 1], Ghazni Province, Afghanistan on [DOB 1]. The Applicant went on to claim in his application that he was a Shia Hazara born in Afghanistan and he left Afghanistan for Pakistan in about 1990. He claimed he later returned to Afghanistan in late 2005 where he was employed by the ‘US military’ at various military bases, initially as an [occupation 1] and then as an [occupation 2]. The Applicant claimed he was in danger from the Taliban because of that employment. He claimed that he was told by a ‘source’ that the Taliban had his photograph and were aware that he was [working] for the US military as they had seen him travelling with the US military through Kandahar. He went on to claim that his cousin, who was also an [occupation 2] for the US military, had been killed as were many other [occupation 2]. He claimed that he was unable to return to Pakistan as his family lived there illegally as refugees and he feared for their safety; and it was dangerous for illegal refugees who are known to be Hazara and Shia. In making his application, the Applicant completed the details in regard to his family members living in Pakistan. At a subsequent time,[10] the Applicant’s father, [Declarant B], arrived as an irregular maritime arrival. He was granted a temporary Humanitarian Stay visa, followed by a Safe Haven Enterprise visa (‘SHEV’) which was issued on 30 November 2020. [10]Arrived [in] November 2012. Within his SHEV application, [Declarant B] declared he is a Hazara Shia Muslim and was born in Pakistan and, apart from Australia, has lived nowhere else. He claimed that his parents were born in Afghanistan and were Afghan citizens. They moved to Pakistan and he was born there. He said he was a Pakistani citizen and has previously held [number] Pakistani passports, copies of which he submitted with his application, together with two national identity cards and his local certificate to validate his identification.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s Protection visa should be set aside.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 sections 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 section 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under section 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in section 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. In the present matter, the Tribunal is satisfied that the Delegate had reached the necessary state of mind to engage section 107 and that the notice issued under section 107 complied with the statutory requirements.Section 438 Certificate The Tribunal has been provided with the Department’s file in relation to the cancellation of the Protection visa held by the Applicant. The Department has placed restrictions on a number of documents contained within that file and had issued a certificate pursuant to section 376 of the Act.[6] Subsequently, that certificate was revoked and another certificate pursuant to section 438 of the Act was issued.[7] [6]Certificate issued 10 March 2022.[7]Revocation of section 376 certificate and issuing of a section 438 certificate took place on 24 March 2023. The purpose of the certificate being issued was the disclosure of the nominated documents would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. During the hearing, a copy of the section 438 certificate was provided to the Applicant’s representative. The certificate was signed and clearly relates with the state public interest reasons on the certificate. Neither the Applicant or the Applicant’s representative made submissions and the certificate’s validity was not challenged. The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the documents to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the Applicants.Background information The Applicant arrived in Australia [in] May 2009 as an irregular maritime arrival. He later lodged a request for a Refugee Status Assessment,[8] and subsequently, the Delegate found him to be a refugee.[9] At a later time, the Applicant requested the Minister lift the section 46A(1) to allow him to lodge an application for a Protection visa (subclass 866). That application was lodged with the Department and the Applicant was subsequently granted a Protection visa.[8]On 28 July 2009.[9]On 21 September 2009.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.