DSD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 23
•8 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 23
File number(s): SYG 2495 of 2019
SYG 2499 of 2019
SYG 2501 of 2019Judgment of: JUDGE OBRADOVIC Date of judgment: 8 September 2021 Catchwords: MIGRATION – Applications to review decisions of the Administrative Appeals Tribunal – findings of non-compliance with ss.101 and 103 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicants’ evidence – whether the Tribunal failed to consider Australia’s non-refoulement obligations – no jurisdictional errors made out. Legislation: Australian Citizenship Act 2007 (Cth) s 25
Family Law Regulations 1984 (Cth)
Migration Act 1958 (Cth) ss 101, 103, 107, 107A,109, 348
Migration Regulations 1994 (Cth), r 2.41Cases cited: Minister for Home Affairs v Omar [2019] FCAFC 188
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63Division: Division 2 General Federal Law Number of paragraphs: 112 Date of hearing: 9 November 2020 Place: Parramatta Counsel for the Applicants: Mr Poynder Solicitor for the Applicants: WB Legal Counsel for the Respondents: Mr Johnson Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 2495 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSD19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Application filed 4 February 2020 is dismissed.
2.The applicant pay the respondent's costs assessed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
SYG 2499 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSE19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Application filed 4 February 2020 is dismissed.
2.The applicant pay the respondent's costs assessed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
SYG 2501 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Amended Application filed 30 January 2020 is dismissed.
2.The applicant pay the respondent's costs assessed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
BACKGROUND
These are reasons for judgment in respect of three related matters which are before the Federal Circuit Court and Family Court of Australia (“the Court”). The three applications seek judicial review of decisions of the Administrative Appeals Tribunal (“Tribunal”) which affirmed decisions of a delegate of the first respondent (“Minister”) to cancel the visas held by each of the applicants pursuant to s.109 of the Migration Act 1958 (Cth) (“Act”).
Their claims, while distinct, are interrelated. The applicants are Afghani nationals. They are a family unit: son (DSD19), father (DSE19) and mother (DSF19). The decisions of the Minister to cancel the visas held by each of the applicants were based on consideration of the same facts and findings and were determined by the same delegate. The applications to review the decisions of the Minister were heard and determined by the same Tribunal member. In light of the connection between the three matters, the Court has heard and determined the applications together.
On 18 June 2009, DSD19 entered Australia at Sydney Kingsford Smith Airport. On arrival DSD19 told a border officer that he came to Australia without any travel documents, including a passport. Flight information suggested that DSD19 had probably travelled from Abu Dhabi using an Australian passport in the name of [person A], which was shortly thereafter reported lost by [person A]. DSD19 was refused immigration clearance on arrival and was detained in detention.
On 19 June 2009, DSD19 lodged an application for a protection visa. He provided to the Department an Afghan tazkera and a copy of his birth certificate as evidence of his identity. DSD19 claimed protection on the basis that he was born in Afghanistan in 1992, that he converted to Christianity from Islam and that his uncle, [person X], who was a Mujahideen commander, threatened to kill him. DSD19 stated that a people smuggler helped him leave the country and he was not aware of a passport being used for his travel. He also stated that he had no relatives in Australia, did not have contact with anyone in Australia, and had not previously applied for an Australian visa
DSD19 was granted a permanent visa in September 2009.
In October 2010, DSD19 proposed offshore refugee and humanitarian visas for his family (“the 2010 application”). His father (DSE19) was listed as the primary applicant and his mother (DSF19) and two siblings were listed as secondary applicants. In support of the visa application DSE19 provided a statement stating that their son (DSD19) converted to Christianity and that his brother [person X], a Mujahideen commander, threatened to kill his son; that DSD19 fled Afghanistan in 2009; that he and his wife DSF19 has also converted to Christianity; that in their hometown in Afghanistan he and DSF19 were forced by [person X] to regularly attend a mosque and were subjected to mistreatment; that he and DSF19 fled their home town to [name of city removed]; and that their Christianity eventually became known in [name of city removed] also.
In 2012, DSE19 and the two children included in the 2010 application were invited to attend an interview with a delegate. DSE19 advised the delegate that his children would not be attending because his daughter had been abducted and possibly murdered and his son had died from cardio respiratory arrest caused by chemical poisoning. Consequently, the siblings’ visa applications were necessarily refused. DSE19 and DSF19 were granted protection visas and came to Australia in 2013.
DSD19 made three applications for Australian citizenship in the period between October 2013 and October 2014. In support of his third and final application DSD19 provided the tazkera he provided to the Department in 2009 as well as an Afghan passport which had been issued on the basis of the tazkera. The Department referred the tazkera to Afghan authorities for verification. On 18 November 2015, Afghan authorities notified the Department that that the 2009 tazkera supplied by DSD19 was not registered with the relevant Afghan authorities and “was made fraudulently”. One year prior, on 15 November 2014, the Department approved DSD19 for the grant of Australian Citizenship. DSD19 did not make a citizenship pledge and never became an Australian Citizen.
By letter dated 15 July 2017, the Department notified DSD19 of a decision to cancel the approval of the application for conferral of Australian Citizenship on the basis that he no longer met the eligibility criteria because he was not of good character pursuant to s.25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth). This assessment was based on a finding that DSD19 has perpetrated identity fraud against the Department. DSD19 sought review of the decision to cancel the approval of citizenship with the Tribunal. This is not the decision which is the subject of these proceedings.
Following notification from the Afghan authorities that the tazkera supplied by DSD19 was not registered with Afghan authorities, the Department made further enquiries and reached the conclusion that the applicants had provided false information and supplied bogus documents in their visa applications. On 28 June 2019, a delegate of the first respondent sent the applicants each a Notice of Intention to Consider Cancellation (“NOICC”) issued under s.107 the Act regarding their respective visas.
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. 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. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
Reasons for Considering Cancellation of the Applicants’ visas
The non-compliance identified and particularised in the s.107 notices was non-compliance with ss.101 and 103 of the Act, that incorrect information and bogus documents had been given to the Department. This was based on the following findings:
(a)After considering Country Information, “that in Afghanistan, there is a lack of uniform registration of civil identity. Birth certificates are not issued and are virtually non-existent”, the Department concluded that the birth certificate DSD19 supplied in 2009 was a bogus document.
(b)In October 2006, an offshore application for refugee and humanitarian visas was made (and subsequently refused) by [person C] and [person D] and their four dependent children from Afghanistan (“the 2006 application”). The couple were sponsored by their Australian citizen son, [person A], who is the holder of the passport which the Department believes DSD19 used to enter Australia in 2009. The primary visa applicant, [person C] claimed that he was a Shi’ite who held a high-profile position in the Northern Province in Afghanistan. [Person C] also claimed that he had advocated for better conditions and the release of members of the Taliban who were held captive in terrible conditions by the Mujahideen. Following the fall of the Taliban in 2001 [person C] was regarded by the Shi’ite community as having an affiliation with the Taliban and feared persecution by Mujahideen warlords. [Person C] claimed that he and his family fled Afghanistan in 2001 and were living in Iran.
(c)A comparison of a photograph of [person A] and a photograph of DSD19, which were both acquired by the Department in 2009, reveals a strong resemblance. The Department concluded that the resemblance was strong enough to infer that they are siblings and that DSD19 would have been able to successfully use [person A’s] passport to travel to Australia.
(d)[Person A] had arrived in Australia in January 2001 and was living with a spouse at an address in Merrylands. [Person A] advised the Department in 2018 that he was still residing at the Merrylands Address. The Department’s records show that DSD19 has also been residing at that same address in Merrylands since at least October 2013 indicating that [Person A] and DSD19 have been living together for at least five years.
(e)Both [person A] and DSD19 had been sending international money transfers to the same people in Afghanistan.
(f)On a 2012 incoming passenger card [person A] listed his spouse, [person E], as an emergency contact. On 11 October 2014, [person E] uploaded a photograph on Facebook of herself and DSD19 with the caption “my handsome brother-in-law”. Another Facebook user commented on the photograph referring to DSD19 as [person B’s fist name].
(g)One of the children included in the 2006 application was [person B]. An Afghan tazkera for [person B] was included in support of the 2006 application. That tazkera contained the same photograph as the photograph contained in the tazkera DSD19 provided to the Department in 2009.
(h)The first names of two of the other siblings included in the 2006 application proposed by [Person A] had the same first names of the two siblings proposed by DSD19 in the 2010 application.
(i)In her visa application DSF19 identified her father's name as [person F]. In [person C’s] earlier visa application, [person D] identified her father's name also as [person F].
(j)DSE19 provided to the Department his son’s death certificate in support of the claim that one of the two children included in the 2010 application had been murdered. The death certificate states that the father of the deceased was [person C], not DSE19.
In consideration of all the information above, the delegate formed the view that DSD19 and [person A] are siblings; that DSD19 was previously known as [person B]; that DSD19 used [person A’s] passport to enter Australia in 2009; that DSE19 is [person C]; that DSF19 is [person D]; that each of the applicants had given false identities to the Department in their visa applications; that each of them had earlier applied to the Department for visas using different identities; and that they each provided incorrect information and bogus documents to the Department in order to be granted visas in Australia.
The Applicants’ responses the NOICC
In accordance with ss.107 and 108 of the Act the applicants were given the opportunity to comment on whether the grounds for cancellation were made out and to give reasons as to why their visas should not be cancelled. On 12 July 2018 the applicants provided responses and documents in support of their responses to the Department. Their explanations can be summarised as follows:
(a)At the time that DSD19 travelled to Australia he was only 17 years old and was not familiar with the documents required to travel overseas. All the travel arrangements were organised by a people smuggler who did not give DSD19 any travel documents. It could be possible that [person A’s] passport was used by DSD19 to travel to Australia but DSD19 was not aware of it at the time of travel.
(b)There was a translation error on the serial numbers of the tazkera that was sent to the Afghan authorities for verification. The correct serial number has been verified by the Afghan Embassy in Canberra. DSD19 also provided an updated tazkera which had been verified from the Afghan Embassy in Canberra.
(c)There was a translation error on the response from the Afghan authorities verifying the authenticity of the tazkera. The original Dari response states that the tazkera “is not registered” not that it was “made fraudulently”.
(d)The Country Information indicates that there is no uniform registration process of births in Afghanistan. It does not state that birth certificates don’t exist but rather that there are many different processes for recording births in Afghanistan. DSD19’s tazkera and birth certificate may not be accurately recorded in the Afghani government records due to a lack of communication between national government and the province leadership due to political conflicts.
(e)The photograph on [person B]’s tazkera and the photograph on DSD19’s tazkera are not the same, although very similar and this similarity may be because they are from the same city in Afghanistan where there is only one passport photographer who insists that each person being photographed be dressed in the same Western outfit, hairstyle and pose. Additionally, [person B] and DSD19 have the same racial background which may account for similarities in appearance.
(f)DSD19 and [person A] met in in 2010 through DSD19’s flatmate at the time. Before 2010 DSD19 had never heard of [person A].
(g)DSD19 moved into the Merrylands address and lived with [person A] in 2013.
(h)DSD19 and [person A] became close friends and [person A] helped DSD19 through a difficult time. When DSD19 introduced [person A] to his parents he introduced him as his “saviour ... who sheltered [him] when [he] was at [his] worst”.
(i)DSD19 has never formerly been known as [person B] however some of [person A’s] in-laws began to call him [person B’s first name] “as a gesture of inclusion”.
(j)It is a tradition in Afghan culture to refer to close friends as “brother”. That [person E] referred to DSD19 as her “brother-in-law” was a sign of affection rather than an indication of familial relation.
(k)It is a coincidence that the first names of two of the other siblings included in the 2006 application proposed by [Person A] had the same first names of the two siblings proposed by DSD19 in the 2010 application. Both names are popular amongst Afghanis. Additionally, the other names of the family members in each application are not the same.
(l)When DSD19’s brother was murdered in Afghanistan in 2012, the family feared attending a burial ceremony due to the dangers posed by their radical relatives. DSD19 shared his family’s fears to [Person A] who then offered to contact his father living in Afghanistan and ask him to assist with the burial ceremony. [Person A’s] father agreed to assist. The Ministry of Public Health must have assumed that [person C] was the deceased’s father. The applicants never noticed the error on the birth certificate.
(m)DSE19 and DSF19 made two return trips from Afghanistan to the Australian Embassy in Islamabad to attend their visa interviews as well as to pick up their visas prior to their travel to Australia in 2013. DSE19 and DSF19 cannot therefore be [person C] and [person D] because [person C] and [person D] had fled to Iran before 2006. This is evidenced by entries in their passports, copies of which were provided in support of this claim.
The delegate gave consideration to the responses provided by the applicants but was not persuaded. The delegate determined that the applicants failed to comply with ss.101(b) and 103 of the Act and the grounds for cancelling their visas outweighed the reasons for not cancelling their visas. On 23 October 2018, a delegate of the Minister cancelled DSD19’s Subclass (155) (Five Year Resident Return) visa and DSE19 and DSF19’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Act.
THE TRIBUNAL REVIEWS
On 24 October 2018, the applicants each filed an application for review of the decisions of the delegate. On 22 July, the Tribunal invited DSD19 to attend a hearing on 19 August 2019 and DSE19 and DSF19 to attend a hearing on 20 August 2019. It was requested that any additional documentation that the applicants may wish to rely on during their hearings be provided before 12 August 2019. Written submissions were provided by DSD19 to the Tribunal on 14 August 2019. DSE19 and DSF19 provided written submissions to the Tribunal on 15 August stating that they also wished to rely upon the written submissions provided by DSD19.
Attached to DSD19’s submissions were DNA testing reports for DSD19, DSE19, DSF19 and [person A] from an accredited DNA testing laboratory that satisfied the requirements for DNA sample collection pursuant to Part IIA of the Family Law Regulations 1984 (Cth), which in the Departments own policy guidelines is a reliable service provider. The DNA results established that [person A] was not related to the applicants. It was submitted by the applicants that by extension, it can be inferred from the DNA results that if DSD19 and [person A] are not related, and [person A] and [person B] are brothers, DSD19 cannot be [person B].
DSD19: Tribunal Decision
At his Tribunal hearing DSD19 gave evidence of the DNA process. He told the Tribunal that the applicants and [Person A] had their photographs and identifications cards authorised by a Justice of the Peace and again checked by a General Practitioner before the General Practitioner took samples for the DNA test.
The Tribunal Member asked DSD19 whether any other tests were conducted by the Justice of the Peace or General Practitioner other than a visual comparison of [person A’s] identity documents with the person before them and if not, given that DSD19 purports that people have difficulty distinguishing people of the same ethnic background, how can the Tribunal Member be certain that it was in fact [person A] who was before the Justice of the Peace when the documents were authorised and before the General Practitioner’s when the DNA sample was taken. In the Tribunal’s quest to determine how much weight should be attributed to the DNA test the Tribunal Member stated:
…your photograph and [person A’s] photograph look very similar. You say well, that’s all a coincidence because we’re all from the same background, so you can’t judge by the photograph. But that’s the only assessment that was done by the JP and GP when the samples were collected. So why should I be placing weight on that, to say that it was definitely [person A] giving the sample, when you claim that all the other evidence can’t be given any weight?
….
DSD19: I think they knew that that is a serious matter, and then it should be checked properly, and then they checked properly.
The written submissions submitted by the applicants’ representative referred to a report prepared by the Department’s Forensic Facial Image Examiner who compared two photos of DSD19 with the photo of [Person B] and determined that it was “inconclusive” as “it was not possible to form an opinion as to whether they are the same person or not”.
At the Tribunal hearing the Tribunal Member asked DSD19 whether he “thought it was odd” that of all the people DSD19 could have befriended and lived with in Australia, DSD19 happened to befriend the person whose passport he had used to come to Australia and who is of strong resemblance to him. DSD19 pointed to the fact that he and [Person A] are of a similar background and age.
Noting the centrality of [Person A] to DSD19’s claims and their asserted closeness, the Tribunal member asked DSD19 why [person A] was not available to give evidence at the Tribunal hearing. DSD19 explained that he thought the best way to prove that [Person A] was not a part of the applicants’ family unit was through a DNA test.
The Tribunal gave weight to reasons provided by DSD19 for the similarities identified by the delegate however the Tribunal concluded that the various similarities to which the delegate refers in the NOICC cannot be explained by mere coincidences. The Tribunal accepted that the evidence may be circumstantial but it considered the combination of such evidence to be persuasive and sufficient to enable the Tribunal to reach a positive satisfaction that incorrect answers were given by the applicants to the Department.
38. …The Tribunal does not accept that it can be coincidental that the applicant is likely to have used [person A’s] passport to enter Australia, then became a close friend with that person and shared accommodation with him and that they then ‘fell out’ at the time when [person A] may have supported the applicant’s case by providing oral evidence to the Tribunal. (While the applicant told the Tribunal that [person A] was not available to give oral evidence to the Tribunal, the applicant’s representative explained that the friendship is no longer there.) The Tribunal gives weight to the similarities in the photographic evidence and does not accept that these were due to the fact that they are of the same background or used the same photographer. The Tribunal places weight on the fact that there is a close match between various personal names used in the two applications and not only that the names are commonly used in the Afghan culture but that similar names were used for ‘similar’ relatives. That is, the names of the children and the names of the siblings were similar, rather than the same names being used for different relatives. The Tribunal places weight on the fact that [person A’s] father was identified as the father of the applicant’s brother [name removed] and the Tribunal does not accept that the family would not have noticed the incorrect information over the years. The Tribunal places weight on the Facebook record of [person A’s] wife when she not only refers to the applicant as her brother-in-law (which may be a sign of close friendship as the applicant claims) but also by the name of [person B]. Again, while the reference to the applicant being the brother-in-law may be a cultural form of endearment, the combination of this reference, as well as the use of the name [person A], offers strong evidence, in the Tribunal’s view, that the reference is to the same person who was previously included in the application of [person C] as his son [person A].
46. Overall, the Tribunal has formed the view that the information contained in the NOICC and the primary decision record concerning the previous application made by [person C] to be credible and more persuasive than the evidence put forward by the applicant. [T]he Tribunal finds that the applicant was previously known by another name, as [Person A], and that he was included in the application made by [person C] in 2006. The Tribunal finds that when making the application in July 2009, the applicant completed the application form in a way that incorrect answers were given in the following respects:
a. The applicant’s name and date of birth in response to Question 1 of Form 866.
b. By stating that he had not made any other type of application to the Department, in response to Question 3 of Form 866.
c. By stating that he had no close relatives in Australia in response to Question 10 of Form 866.
d. By providing his father’s name as [DSE19] in response to Question 11 of Form 866.
e. By stating that he has not travelled outside of his home country or country of residence before travelling to Australia, in response to Question 33 of Form 866.
f. By stating that he had lived in [city name removed], Afghanistan from June 1992 until June 2009 in response to Question 35 of Form 866.
g. By stating the reasons he left Afghanistan, what would happen to him if he were to return to Afghanistan, who may harm him and why, in response to Questions 41 to 45 of Form 866.
The Tribunal concluded that:
The coincidence is just too strong… each one of those things could perhaps be explained as a coincidence, but when taken all together, I just think the chances of all of them being a coincidence are really… it just doesn’t sound plausible to me that all of that would just be a pure coincidence.
On 22 August 2019, the Tribunal affirmed the decision of the delegate on the basis that DSD19 did not comply with s.101 of the Act. Having found that the he did not comply with s.101 of the Act, the Tribunal determined that it was not necessary to determine whether there was also non-compliance with s.103 of the Act, meaning that a determination on whether the documents were bogus was not required.
DSE19: Tribunal Decision
When considering DSE19’s application the Tribunal had regard to the same facts and information as contained in DSD19’s and DSF19’s applications. The Tribunal found that the explanations given by DSE19 were “unconvincing” and formed the view that the information contained in the NOICC and the Department’s primary decision record was more persuasive. In reaching this decision the Tribunal considered “a variety of evidence that offers a strong basis for its findings”. It did not exclusively rely on the image similarities or the DNA sampling method.
The Tribunal found that DSE19 and [person D] are the same person. The Tribunal also noted:
…that if the information in the first [2006] application was correct, and the family left Afghanistan in 2001, then the various claims made in the 2010 application, as set out in the primary decision record, which refer to the incidents in Afghanistan, could not have occurred.
The Tribunal summarised its findings of DSE19’s non-compliance with s.101 of the Act at [39]:
(a)The applicant's given and family names and dates of birth.
(b)His wife's given and family names and dates of birth.
(c)By stating 'no' in response to the question whether any person included in the application had previously applied for an Australian visa.
(d)By stating there are no other relatives residing in Australia and failing to mention [person A] as his son.
(e)By specifying the addresses in Afghanistan between 1992 and 2009.
(f)By setting out the reasons for fleeing Afghanistan in the statements that accompanied the application.
(g)By referring to his employment in Afghanistan between 1990 and 2009.
Unlike in the DSD19 Tribunal decision, the Tribunal did make findings that DSE19 provided bogus documents in support of his visa application, contrary to s.103 of the Act. At [42] the Tribunal made the following findings:
(a)His son [name removed] states that his father is [DSE19]. His death certificate shows that his father's name is [person C]. The Tribunal finds it is a bogus document within the meaning of s. 5(b) of the Act.
(b)The applicant's tazkera states that his name is [DSE19] and that he was born around 1958. As the Tribunal has found that his real name is [person C], and he was born in February 1955, the tazkera is a bogus document within the meaning of s. 5(b) of the Act.
(c)The tazkera for the applicant's spouse identifying her as [DSF19], born around 1960. As the Tribunal has found that her real name is [person D], and she was born in June 1959, the tazkera is a bogus document within the meaning of s. 5(b) of the Act.
In determining whether it should exercise its discretion and cancel DSE19’s visa under s.109 of the Act, the Tribunal had regard to the applicant’s response to the s.107 NOICC as well as the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). This included consideration of DSE19’s medical evidence that details his diagnosis of anxiety, depression and post-traumatic stress disorder. At [71] - [72] the Tribunal explains its reasons for cancellation.
The Tribunal considers that there are strong reasons why the visa should not be cancelled. In particular, a long time has passed since the non-compliance and the applicant has been living in Australia for a lengthy period and is settled in Australia. The applicant suffers from a number of medical ailments and is receiving treatment (although he has not satisfied the Tribunal that adequate treatment would not be available to him if the visa is cancelled). The Tribunal places significant weight on the applicant's evidence as to why he cannot return to Afghanistan and, to give the applicant the benefit of the doubt, the Tribunal is prepared to accept that Australia's non-refoulement obligations may arise in that case. These offer a strong reason why the visa should not be cancelled.
However, the Tribunal also places weight on the nature of the breach and the circumstances in which it occurred. The Tribunal has formed the view that the applicant had previously made an application for a visa using a different identity. The claims made in that application were substantially different to those made in the subsequent application that resulted in the grant of the visa. The applicant's identity and the nature of his claims were central to the assessment of his eligibility for the visa and the Tribunal has formed the view that the applicant has not been truthful in these matters. The Tribunal finds that such matters outweigh other considerations.
On 23 August 2019, the Tribunal affirmed the decision of the delegate to cancel DSE19’s Subclass 202 (Global Special Humanitarian) Visa on the basis that DSE19 did not comply with s.101 and s.103 of the Act.
DSF19: Tribunal Decision
In her application to the Tribunal, DSF19 relied on DSD19’s written submissions and the explanations contained therein. The Tribunal had regard to the same facts and information as contained in her son and her husband’s applications.
At [38] of its reasons the Tribunal found that DSF19 and [person D] are the same person and that the information provided by the applicants in the 2006 application was the true version of events. The Tribunal summarised its findings of DSF19’s non-compliance with s.101 of the Act at [39]:
(a)The applicant's given and family names and dates of birth.
(b)The applicant's husband's given and family names and dates of birth.
(c)By stating 'no' in response to the question whether any person included in the application had previously applied for an Australian visa.
(d)By stating there are no other relatives residing in Australia and failing to mention [person A] as her son.
(e)By specifying the addresses in Afghanistan between 1992 and 2009.
(f)By setting out the reasons for fleeing Afghanistan in the statements that accompanied the application.
(g)By referring to her husband's employment in Afghanistan between 1990 and 2009.
The Tribunal also made findings that DSF19 provided bogus documents in support of her visa application, contrary to s.103 of the Act. At [42] the Tribunal made the following findings:
(a)Her son [named removed] tazkera states that his father is [DSE19]. His death certificate shows that his father's name is [person C]. The Tribunal finds it is a bogus document within the meaning of s.5(b) of the Act.
(b)Her husband's tazkera states that his name is [DSE19] and that he was born around 1958. As the Tribunal has found that his real name is [person C], and he was born in February 1955, the tazkera is a bogus document within the meaning of s.5(b) of the Act.
(c)The applicant's own tazkera identifying her as [DSF19], born around 1960. As the Tribunal has found that her real name is [person D], and she was born in June 1959, the tazkera is a bogus document within the meaning of s.5(b) of the Act.
When considering whether it should cancel DSF19’s visa the Tribunal found that the applicant’s untruthfulness and breaches of ss.101 and 103 of the Act outweigh any reasons as to why her visa should not be cancelled.
On 23 August 2019 the Tribunal affirmed the decision of the delegate to cancel DSF19’s Subclass 202 (Global Special Humanitarian) Visa on the basis that DSF19 did not comply with s.101 and s.103 of the Act.
APPLICATIONS IN THIS COURT
The applicants initiated proceedings in this Court on 26 September 2019. Each matter was allocated to a docket judge in accordance with the Court’s docket system that was in operation at that time. On 3 February 2020 the first respondent wrote to the Court requesting that the related matters be heard together. Orders were made in chambers transferring the matters to the same docket judge. The matters have thereafter travelled together and were listed alongside each other for final hearing on 9 November 2020.
The applicants each rely on Amended Applications filed on 30 January 2020 (DSF19), and 4 February 2020 (DSD19 and DSE19). Two grounds of review are advanced in each Application.
The first ground relied on by each applicant was that the Tribunal failed to carry out its statutory task of reviewing the primary decision required by s.348 of the Act, by failing to give meaningful consideration to evidence and submissions made by the applicants. Each applicant has distinct particulars for this ground, which pertain to their individual Tribunal decision.
The second ground of review in each of the Applications is the same; that the Tribunal failed to give meaningful consideration to the likelihood of the applicants facing persecution or other significant harm if they were forced to return to Afghanistan.
DSD19: Ground One
DSD19’s first ground is particularised as follows:
1.The second respondent (the Tribunal) failed to carry out its statutory task of reviewing the primary decision required by s.348 of the Act by failing to give meaningful consideration to evidence and submissions made by the applicant in relation to the claim that he was not related [person A].
Particulars
a.The Tribunal, at [30], gave "no weight" to facial recognition examinations undertaken by the first respondent which were ‘inconclusive’ as to whether the applicant was related to [person B].
b.The Tribunal, at [43], found that DNA test results that the applicant was not related to [person A] were not probative of there being no relationship between the applicant and [person A] because the identity of the person providing the DNA sample may not have been [person A]. This finding failed to consider, or to make findings on, the following evidence:
(a)Evidence that the DNA sample had been obtained by a registered medical practitioner, and that the sample had been placed in a sealed container, immediately after it was taken, in the presence of the donor, in accordance with Part IIA of the Family Law Regulations 1984 (Cth).
(b)Evidence that the identification of [person A] by the general practitioner taking the DNA sample was confirmed because the general practitioner personally knew [person A].
c.The Tribunal failed to consider or make any findings on the genuineness of a Taskera and a birth certificate provided by the applicant as evidence of his identity in his protection visa application in 2009.
d.The Tribunal failed to consider or make any findings on the genuineness of a Taskera provided by the applicant in 2018 as evidence of his identity.
Determination as to Ground One
Particular (a): Facial Recognition Examination
The Tribunal made a number of findings in respect of the perceived similarities between the tazkera photograph of [person B] which was provided with [person B’s] 2006 visa application compared to the tazkera photograph of DSD19 which was provided with his protection visa application.
The Tribunal considered the actual documents, namely the photographs, as well as the results of the document examiner.
As conceded by DSD19, the Tribunal was entitled to form its own view of whether the photos showed similarities over the expert view of the document examiner who could not conclude either way (applicant’s written outline of submissions at [47]).
The specialist found that the results were inconclusive and it was not possible to form an opinion as to whether they are the same person or not. DSD19 had submitted to the Tribunal that “the facial image analysis of the Applicant is inconclusive and therefore cannot be given weight in a finding that the Applicant is [person B]”. The Tribunal at [30] found as follows:
With respect to the facial recognition examination, the applicant submits that the findings are inconclusive and cannot be relied on.
Strictly speaking, this was not the DSD19’s submission to the Tribunal. However, for the purposes of the judicial review, the slight inaccuracy in stating the applicant’s submission, does not instil the Tribunal’s decision with jurisdictional error.
The Tribunal then went on to say at [30]:
The Tribunal accepts that due to the findings being inconclusive, these reports cannot be considered probative and the Tribunal has given these no weight.
Before this Court, DSD19 argued that the Tribunal erred in the requisite sense of jurisdictional error, in attributing the report no weight – when what it should have done is attribute the findings some weight, in that the findings were inconclusive as to whether DSD19 and [person B] were the same person. That is, the applicant submits, it should have afforded this inconclusive finding some weight as supportive of the position that the applicant and [person B] were not the same person.
If the report cannot be given any weight in finding that the applicant is [person B] then it is completely nonsensical to argue that it should be given some weight in finding that the applicant is not [person B]. It is a report that is inconclusive either way, which is precisely what the Tribunal said. Therefore the Tribunal did not fail to give meaningful consideration to critical evidence and submissions made by DSD19. It considered DSD19’s submissions, and in fact applied his argument to the findings as a whole. It therefore carried out its statutory task of reviewing the primary decision as required by s.348 of the Act.
The Tribunal also considered the submissions and explanations provided by DSD19 as to why the photographs appeared to be of the same person. This was done by the Tribunal at paragraph [17], where the Tribunal expressly did not accept the submission made by DSD19 as in its view the similarities in the photographs could not be explained through use of the same photographer or by virtue of the fact that the persons photographed were from the same racial background. The Tribunal then went on to say that the similarities in the two photographs, supported by the fact that DSD19 was identified as [person B] on Facebook, offers very strong evidence that he had previously used the identity of [person B].
No jurisdictional error is made out.
Particular (b): DNA Results
It is evident from a proper reading of the Tribunal’s decision that the Tribunal did not seek to go behind the integrity of the DNA testing procedure. It was not the results per se which the Tribunal found troubling, but rather, the Tribunal did not accept that there was sufficient evidence to prove that the samples were indeed taken from [person A] for the purposes of conducting the test.
DSD19 submits to the Court that the Tribunal failed to consider his evidence that the identification of [person A] by the GP was accurate because the GP personally knew [person A].
The evidence about whether [person A] was known to the GP arose as a result of the Tribunal’s questions to the applicant. There was no evidence from the GP nor [person A] before the Tribunal.
The evidence before the Tribunal was as follows:
Member: Has your doctor ever met [person A] before?
DSD19: Sorry?
Member: Has you GP, your doctor, has he ever met [person A] before?
DSD19: He did, yeah.
Member: So what, you’re using the same doctor?
DSD19: No, it’s just a medical centre in our area, local area. Bur everyone goes there. Like I personally see different doctors every time.
Member: So has your doctor, the one who’s taken the samples, has he ever met [person A] before, was this the first time?
DSD19: He said he did, yes.
In oral submissions to the Tribunal the applicant expanded upon his assertions:
Applicants’ Legal Representative: And we also say that in the response that our client has given in regards to the general practitioner, when you ask whether or not the general practitioner himself knows [person A], the response was yes, and we say that that’s further proof that any possibilities that there might have been an error of IDing [person A] show be removed, because the GP has met and has the patient before in the past. Therefore we respectfully submit that the DNA evidence is [unintelligible 00:41:42] evidence, and should be given the weight and holistically, by looking at all the evidence, that the DNA evidence should be relied upon to determine questions.
While the Tribunal did say at [42] “… the local doctor and a JP with no knowledge of the parties” such must be read in context. It is clear that the Tribunal was alive to the fact that the applicant claimed that [person A] was known to the GP. In fact, the Tribunal noted “the applicant claims that [person A] used the same GP and was known to him”.
While the Tribunal’s focus was more concentrated on other matters, it cannot be said that the finding failed to consider the applicant’s claim about [person A] attending the same medical practice and therefore being known to the GP. The Tribunal is not obliged to mention or grapple with every piece of evidence relevant to a finding made: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 per Allsop J at [79]. There can be no obligation on the Tribunal to make findings about every piece of evidence and whether or not such evidence is accepted.
The evidence of DSD19 was considered by the Tribunal, as were other matters noted at [42], in coming to the conclusion that it could not be completely satisfied that the person who gave the sample was in fact [person A].
No jurisdictional error is made out.
Particulars (c) and (d): Genuineness of Tazkera and Birth Certificate provided in 2009 and The 2018 Tazkera
DSD19 submits that it was open to the Tribunal to make a finding as to the genuineness of the tazkeras and the birth certificate, thus confirming that he could not be [person B]. It was in the applicant’s submission, that it was not open for the Tribunal to simply side-step the issue as it would have assisted in the determination of whether or not the applicant breached s.101 of the Act
DSD19 submits that the Tribunal, in failing to consider or make any findings as to the genuineness of his 2018 tazkera provided as evidence of his identity, was jurisdictional error.
It is correct that the Tribunal did not make any findings as to the genuineness of the tazkeras nor the birth certificate which were provided by the applicant as evidence of his identity in his protection visa application in 2009. The reason why the Tribunal did not do so is noted at [24] above. The Tribunal found that the applicant did not comply with s.101 of the Act and therefore determined that it was not necessary to determine whether there was also non-compliance with s.103 and the issue of the “bogus documents” was deemed irrelevant.
The Tribunal at [27] placed no weight on “any concerns that the delegate may have expressed with respect to” the new tazkera in 2018 because it “was not part of the NOICC”. The Tribunal’s task was to decide whether there was non-compliance by the applicant’s described in the notice issued under s.107, namely the NOICC. As noted earlier in these reasons, the Tribunal is not obliged to mention or grapple with every piece of evidence relevant to a finding made.
The 2018 tazkera was obtained after the NOICC was issued, and it was provided as an additional document as part of the applicants’ responses dated 12 July 2018, presumably to support that DSD19 was not [person B], but no such particular submissions were made. All that was said by DSD19 in the written response of 12 July 2018, was that he had asked for a transfer of his tazkera details, who then issued a new tazkera which according to the applicant is “in some places different to the detail of the earlier tazkera which described me 9 years ago.” At the Tribunal hearing, DSD19 said “the new one that I provided, that’s the genuine tazkira, and then that was approved by the Embassy as well.” This was the extent of the oral submissions on the genuineness of the 2018 Tazkera.
The delegate found that the process described by DSD19 in obtaining the 2018 tazkera did not reflect the process indicated by the Afghan Embassy in Canberra. Furthermore, noting the process by which DSD19 said he obtained the tazkera (transfer of details), the delegate concluded that the new tazkera was counterfeit or has been altered by a person without authority, and was therefore also a bogus document.
It is worthwhile repeating the well-known passage of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The Tribunal gave several detailed reasons for its conclusion that DSD19 had given incorrect answers in his visa applications. That decision is not undermined because the Tribunal did not express a determinative view about the birth certificate or the tazkeras submitted by DSD19 in his visa application or later to the Tribunal.
The Tribunal was alive to the evidence and submissions made by DSD19 in respect of the 2009 tazkera and the birth certificate, and in particular that “… the applicant outlined the processes relevant to obtaining his tazkera and the birth certificate and stated that the two documents verified by the Department had an incorrect identification number and the document that was found to be unregistered did not have the correct identification number. The applicant states that his tazkera has been verified by the Afghan embassy in Canberra... The applicant states that it cannot be categorically concluded that his birth certificate is a bogus document.” The Tribunal was also alive to what DSD19 said about the 2018 tazkera.
Importantly, for the purposes of his application to the Tribunal, the applicant identified that the issues for the Tribunal’s determination were as follows:
a.Whether the applicant’s tazkera was a bogus document, for the purposes of s.103 of the Act.
b.Whether the applicant’s birth certificate was a bogus document, for the purposes of s.103 of the Act.
c.Whether the applicant gave incorrect answers in relation to his identity and whether he is in fact [person B]…
At [26] and [28] of its reasons the Tribunal noted DSD19’s submissions with respect to the 2009 tazkera and the birth certificate and that they were not bogus documents. The Tribunal also noted the applicant’s submissions with respect to the 2018 tazkera at [27] of its reasons.
It was not the applicant’s case before the Tribunal that if the Tribunal made findings as to the genuineness of the tazkeras and/or the birth certificate, that the Tribunal would then be satisfied as to the applicant’s identity. The applicant never made such submissions or ran that argument on review.
In one sense, not making any findings about the tazkeras and the birth certificate, is arguably to the benefit of DSD19. The Tribunal might have, as the delegate did, found that the 2009 tazkera and the birth certificate were bogus documents. It might also have found, as the delegate did, that the 2018 tazkera was a bogus document. It is however, not only unhelpful but impermissible to speculate as to what findings the Tribunal might have made had it considered the matters. This is precisely what the applicant is inviting the Court to do – to speculate that the Tribunal would have made a finding that the documents were genuine, and that such a finding would have otherwise had a material effect on its conclusions as to the identity of DSD19.
The Tribunal was only bound to deal with the application before it, even one which may not have been “…clearly articulated by an applicant, but [which]… arises on the basis of evidence and material before…[it]” (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] (“NABE”)). It is well accepted that such an unarticulated claim must be raised squarely on the material before the Tribunal (NABE at [68]).
It cannot have been jurisdictional error for the Tribunal to have failed to draw a conclusion about the genuineness of the two documents (namely, the 2009 tazkera and birth certificate) for the purposes of DSD19’s identity, particularly in light of the application as framed and the arguments which were presented to the Tribunal.
No jurisdictional error is made out.
DSE19: Ground One
DSE19’s first ground is particularised as follows:
1. The second respondent (the Tribunal) failed to carry out its statutory task of reviewing the primary decision required by s.348 of the Act by failing to give meaningful consideration to evidence and submissions made by the applicant in relation to the claim that he was not related [person A].
Particulars
(a)The Tribunal, at [27], gave “no weight” to facial recognition examinations undertaken by the first respondent which were inconclusive as to whether the applicant was related to [person c].
(b)The Tribunal, at [33], found that DNA test results that the applicant’s son – [DSD19] – was not related to [person A], were not probative of there being no relationships between the applicant’s son and [Person A] because the identity of the person providing the DNA sample may not have been [person A]. This finding failed to consider, or to make findings on, the following evidence:
(i) Evidence that the DNA sample had been obtained by a registered medical practitioner, and that the sample had been placed in a sealed container, immediately after it was taken, in the presence of the donor, in accordance with Part IIA of the Family Law Regulations 1984 (Cth).
(ii) Evidence provided by the applicant’s son at a hearing before the same Tribunal member the previous day that the identification of [person A] by the general practitioner taking the DNA sample was confirmed because the general practitioner personally knew [person A].
(c)The Tribunal failed to consider or make any findings in relation to evidence that on 27 November 2012 the applicant and his wife had travelled twice from Afghanistan to Islamabad, Pakistan, which was inconsistent with the account (accepted by the Tribunal) that the applicant’s name was [person C] and that he had been living in Iran since 2001.
(d)The Tribunal failed to consider or make any findings in relation to the applicant’s claim that his visa ought not to be cancelled because he was suffering from a serious psychological condition.
Determination as to Ground One
Particular (a): Facial Recognition Examination
This particular is the same as that relied on by DSD19 & DSF19.
For reasons explained earlier in respect of DSD19, no jurisdictional error has been made out.
Particular (b): DNA Results
This particular is in all material respects identical as that relied on DSD19 and identical to that as relied upon as DSF19.
For reasons explained earlier, no jurisdictional error has been made out.
Particular (c): Travel
This particular is the same as that relied upon on by DSF19.
DSE19 submits that the Tribunal failed to consider or make any findings in relation to evidence that on 27 November 2012 DSE19 and his wife travelled twice from Afghanistan to Islamabad, which was inconsistent with the fact accepted by the Tribunal that DSE19 was [person C] who had been living in Iran since 2001. In essence, DSE19 could not have been both in Iran (as [person C]) and travelling from Afghanistan to Pakistan as DSE19.
The Tribunal referred to this claim at [18] of its decision record. Immediately following at [19], it went on to find that “[a]s noted above, the Tribunal finds [DSE19’s] evidence unconvincing”. The Tribunal then addressed particular concerns it had with DSE19’s evidence. As such, it can be understood that the Tribunal found DSE19’s claim as to what the passports showed to be unconvincing.
As noted earlier in these reasons, the Tribunal is not obliged to mention or grapple with every piece of evidence relevant to a finding made. It was a matter for the Tribunal to determine whether it accepted, or rejected, DSE19’s claims on the evidence before it.
No jurisdictional error is made out.
Particular (d): Applicant’s Health
This is a particular only relied upon by DSE19.
In considering whether to exercise its discretion to cancel DSE19’s visa, the Tribunal at [53]-[54] referred to DSE19’s medical evidence and claims concerning his psychological condition.
The claim advanced was expressly considered by the Tribunal.
Such evidence was accepted by the Tribunal and the Tribunal at [71], in its consideration of discretionary matters against the cancellation of the visa, gave considerable weight to the evidence of DSE19’s medical ailments. In fact, the Tribunal said that there were strong reasons as to why the visa should not be cancelled.
However, at [72] the Tribunal found that such a consideration was outweighed by other considerations, and it placed more weight on the nature of the breach and the circumstances in which it had occurred.
No jurisdictional error has been made out.
DSF19: Ground One
DSF19’s first ground is particularised as follows:
1. The second respondent (the Tribunal) failed to carry out its statutory task of reviewing the primary decision required by s 348 of the Act by failing to give meaningful consideration to evidence and submissions made by the applicant and otherwise before the Tribunal.
Particulars
(a)The Tribunal, at [28], gave “no weight” to facial recognition examinations undertaken by the first respondent which were inconclusive as to whether the applicant was related to [person D].
(b)The Tribunal, at [33], found that DNA test results that the applicant’s son – [DSD19] – was not related to [person A], were not probative of there being no relationships between the applicant’s son and [Person A] because the identity of the person providing the DNA sample may not have been [person A]. This finding failed to consider, or to make findings on, the following evidence:
(i) Evidence that the DNA sample had been obtained by a registered medical practitioner, and that the sample had been placed in a sealed container, immediately after it was taken, in the presence of the donor, in accordance with Part IIA of the Family Law Regulations 1984 (Cth).
(ii) Evidence provided by the applicant’s son at a hearing before the same Tribunal member the previous day that the identification of [person A] by the general practitioner taking the DNA sample was confirmed because the general practitioner personally knew [person A].
(c)The Tribunal failed to consider or make any findings in relation to evidence that on 27 November 2012 the applicant and her husband had travelled twice from Afghanistan to Islamabad, Pakistan, which was inconsistent with the account (accepted by the Tribunal) that the applicant’s name was [person D] and that he had been living in Iran since 2001.
Determination as to Ground One
Particular (a): Facial Recognition Examination
This particular is the same as that relied on by DSD19 & DSE19.
For reasons explained earlier in respect of DSD19, no jurisdictional error is made out.
Particular (b): DNA Results
This particular is in all material respects identical as that relied on DSD19 and identical to that as relied upon as DSE19.
For reasons explained earlier in respect of DSD19, no jurisdictional error has been made out.
Particular (c): Travel
This particular is the same as relied on by DSE19.
For reasons explained earlier in respect of DSE19, no jurisdictional error has been made out.
Ground Two
The applicants’ second ground which is pressed in each application is:
The Tribunal failed to complete its task of reviewing the primary decision by failing to give meaningful consideration to the likelihood that the applicant[s] would face persecution or other significant harm if [they] were forced to return to Afghanistan, such claim being expressly articulated by the applicant or clearly arising from the materials before the Tribunal.
Particulars
a.The applicant[s] expressly claimed that [they] would face persecution or other significant harm if [they] were forced to return to Afghanistan.
b.The first respondent had also previously found that [persons B, C & D] who the Tribunal found to be the same person[s] as the applicant[s] - was the member of a family unit which faced persecution or other significant harm in Afghanistan by reason of [DSE19’s] perceived affiliation with the Taliban.
Under s.109(1)(c) of the Act the Tribunal must have regard to any prescribed circumstances in r.2.41 of the Regulations including “the present circumstances of the visa holder”. The applicants submit that the “present circumstances” includes a finding that DSD19 was [person B], DSE19 was [person C] and DSF19 was [person D], a family unit that had applied for protection in 2006 and therefore that the claims by [persons B, C & D] in support of their refugee and humanitarian visas would then be relevant, noting that [person C]’s claim of estrangement from the Shi’ite community and fear of persecution by Mujahideen warlords raises concerns relevant to Australia’s non-refoulement obligations.
At [46] of the DSE19 Tribunal decision:
The correct information is that the applicant had previously made a visa application in a different name and offering a different set of claims. The applicant denies having previously made the application and denied that they had left Afghanistan in 2001. The Tribunal has formed the view that the information in the 2010 application for the subclass 202 visa was incorrect and prefers the information that was provided in the earlier application. In that application it was claimed that the family left Afghanistan for Iran in December 2001 and the Tribunal finds that to be the correct information.
At [78] of DSD19’s Tribunal decision the Tribunal accepted that “Australia’s non-refoulement obligations may be engaged in relation to the applicant” and then went on to say it was “mindful of the applicant’s evidence that he may apply for a protection visa and if that is the case, the full assessment of such obligations would be done”. It is the applicants’ submission that this non-finding gives rise to an issue akin to which arose in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”).
The Tribunal’s decisions are clearly distinguishable from that in Omar.
In DSD19, the Tribunal inferred that the non-refoulement obligations existed.
In DSE19, the Tribunal specifically said “to give the applicant the benefit of the doubt, the Tribunal is prepared to accept that Australia’s non-refoulement obligations may arise in that case. These offer a strong reason why the visa should not be cancelled.”
In DSF19, the Tribunal found as follows:
The Tribunal is mindful that the applicant has been granted a Humanitarian visa on the basis of information which the Tribunal now considers to have been incorrect. It cannot be definitively said that if the correct information was known, the applicant would have been granted the visa. Nevertheless, the Tribunal has given the applicant the benefit of the doubt and, for the purpose of this application only, the Tribunal accepts that Australia’s nonrefoulement obligations may be engaged in relation to the applicant.
In each of the applicants’ decisions the Tribunal expressly acknowledged that they claimed they would not be able to return to Afghanistan because they would be killed, or would otherwise be at risk of harm.
The Tribunal recognised that the cancellation of their visas would not, of itself, result in the removal of the applicants to Afghanistan because they could apply for protection visas.
The Tribunal took into account, in the exercise of its discretion, that the applicants may be owed non-refoulement obligations and that this was a “strong reason” as to why their visas should not be cancelled.
No jurisdictional error is made out on the basis of ground two in any of three Tribunal decisions.
For all of those reasons, the application in each matter is dismissed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 September 2021
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