KHAN (Migration) - [2017] AATA 1657

KHAN (Migration) [2017] AATA 1657 (25 September 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr NEHMATULLAH KHAN
CASE NUMBER:  1620338
DIBP REFERENCE(S):  BCC2016/1589808
MEMBERS:Jan Redfern (Presiding)

Kate Millar
DATE OF DECISION:  25 September 2017
DATE CORRIGENDUM
SIGNED:5 October 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following correction is made to the decision:
·       The reference to footnote 5 on page 8 of the decision should be deleted.

Jan Redfern
Deputy President

Kate Millar
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr NEHMATULLAH KHAN
CASE NUMBER:  1620338
DIBP REFERENCE(S):  BCC2016/1589808
MEMBERS:Jan Redfern (Presiding)

Kate Millar
DATE:25 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 117 (Orphan Relative) visa.

Statement made on 25 September 2017 at 11.45 am
CATCHWORDS
Migration – Cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative)– Notice of intention to cancel – Incorrect or misleading particulars – Failure to set out the effect of cancellation provisions – Reference to policy factors and failure to refer to mandatory factors for discretion – Whether notice defective – AAT’s powers on review where notice defective
LEGISLATION
Migration Act 1958 (Cth),ss 5(1), 103, 107, 108, 109, 111, 112, 496, 499
Migration Regulations 1994, cl 117.211, r 1.14, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Minister for Immigration v Brar [2012] FCAFC 30
Salama v MIBP [2016] FCCA 540
COT15 v MIBP (No.1) [2015] FCAFC 190

References in square brackets denote information that has been omitted pursuant to a written direction and replaced with non-identifying information: s.378(1) of the Migration Act 1958.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Khan came to Australia on a Class AH (subclass 117)(Orphan Relative) visa on 14 August 2010. He is a citizen of Afghanistan, and was living illegally in Pakistan before he came to Australia.
Mr Khan applied for Australian citizenship on 14 August 2014, and the Department of Immigration and Border Protection (the department) requested verification of his taskira, the Afghani identity document. The taskira was provided by Mr Khan with his application for citizenship. The Population Registration Department in Ghazni advised the department that this taskira was not registered and is ‘fraudulent’. As a result, a delegate of the Minister for Immigration and Border Protection cancelled Mr Khan’s subclass 117 visa on the basis that he had provided a bogus document to the department.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. Mr Khan says he was not aware the document was not a genuine document, that it was issued by the Afghani Consulate in Quetta in Pakistan, and that he was a minor at the time it was provided.
Mr Khan appeared before the Tribunal on 27 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his sister, Ms Amina Muradi, and a friend, Mr Khuda Nazar Abdullahi. He was represented by his registered migration agent. The Tribunal requested that Mr Khan obtain a DNA evidence of his stated relationship with his sister. This evidence was provided on 2 August 2017.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
STATUTORY FRAMEWORK AND QUESTIONS FOR DETERMINATION
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 117 (Orphan Relative) visa under s.109(1) of the Migration Act 1958 (the Act).
The requirements for a subclass 117 visa are set out in Part 117 of Schedule 2 of the Migration Regulations 1994. A key requirement for a subclass 117 visa is that the applicant is the orphan relative of an Australian citizen, Australian permanent resident or eligible New Zealand citizen (cl.117.211). The term ‘orphan relative’ is defined in r.1.14 of the Regulations, and to meet the definition the person must be under 18 years of age, not have a spouse or defacto partner, and be a relative of the Australian citizen, Australian permanent resident or eligible New Zealand citizen. The applicant must also meet the requirements that he or she cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts, and there is no compelling reason to believe the grant of the visa would not be in the best interests of the applicant.
Subdivision C of Division 3, Part 2 of the Act, namely ss 97 to 115, contains provisions relating visas that are based on incorrect information and, amongst other things, sets out the circumstances under which such visas may be cancelled.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with, among other things, s.103 of the Act. Relevantly, s.103 states a non-citizen must not give to an officer, or to the Minister, a bogus document.
A ‘bogus document’ is defined in section 5(1) of the Act as:
… a document the Minister reasonably suspects is a document that:
(a)   purports to have been, but was not, issued in respect to the person; or
(b)   is counterfeit or has been altered by a person who does not have authority to do so; or
(c)   was obtained because of a false or misleading statement, whether or not made knowingly.
To cancel a visa under s.109 of the Act, the Minister must first issue a notice under s.107 of the Act. To issue a notice under s.107 of the Act the Minister must consider that the holder of a visa did not comply with, relevant to the facts of this case, s.103 of the Act. The notice must also comply with the provisions of s.107.
Section 107(1) sets out the requirements for a notice and provides:
Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance--shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response--when that notice is given; or
(ii) if the holder gives the Minister a written response within that period--when the response is given; or
(iii) otherwise--at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non-compliance by the holder--to tell the Minister the changed address.
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
Section 108 provides that the Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109(1) provides:
The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 as follows:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
While the factors specified in r.2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248.
We may also have regard to lawful government policy. The relevant policy is set out in the department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
The Minister may delegate any of his or her powers under the Act to another person (s.496) and may issue directions about the performance of those functions and the exercise of those powers by others (s.499). There is no dispute in this case that the Minister delegated the power under s.109 to an officer of the Department of Immigration and Border Protection.
While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in the administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied, not on the former visa holder to establish the facts or grounds do not exist.[1]
[1] This is in contrast to the ‘responsibility’ of non-citizens making claims for protection to specify all particulars of his or her claim and to provide sufficient evidence to establish the claim (s 5AAA of the Act)
In cancellation cases, the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised. However, this does not place any obligation on the visa holder to establish that the visa should not be cancelled.
As observed by the Federal Court in Zhao v MIMA,:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[2]
[2] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.119, in our view, the Federal Court’s comments would be equally applicable to s.109.
Furthermore, while the Tribunal is not bound by the rules of evidence and the principles stated in Briginshaw v Briginshaw[3] have no direct application in the context of administrative decision making, in deciding whether the ground for cancellation is made out it is appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[4] Relevant to the facts of this case, the cancellation of a permanent visa where the visa holder has been residing in Australia for seven years has serious consequences and, in our view, any factual findings should be based on logical and probative material.
[3] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.
[4] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]
The questions for determination are therefore:
(1)Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?
(2)If the answer to (1) is yes, was the notice valid?
(3)If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?
(4)If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?
BACKGROUND FACTS, EVIDENCE AND FINDINGS OF FACT
The Tribunal was provided with the department cancellation file but not the original department file in respect of the application made for the subclass 117 visa. Clearly this file was relevant to the review and was therefore requested from the department prior to the hearing. The department reported that the file had been destroyed in a storage facility fire in Dubai and the only information available was the information retained in its electronic records. This information was provided and comprised of case note records in the department’s electronic system, with a summary of the notes made in respect of the application of the applicant’s younger sister, Saliha, for a subclass 117 visa. A copy of the taskira provided by Mr Khan in support of his application for a subclass 117 visa was not provided, although a copy of a taskira for Mr Khan and a translation of this document were included in the cancellation file. The provenance of this taskira was not specified and we have referred to this issue in more detail later in these reasons.
In addition to the department files, the Tribunal was provided with statements from Mr Khan, a letter from the Embassy of the Islamic Republic of Afghanistan Canberra, a copy of an original taskira and a translation of the taskira for his father Juma Khan, a second taskira that was not translated, and an untranslated document said to be his father’s employment certificate, copies of photographs, and statement regarding his current employment and a letter regarding his suitability for working with children together with the statements to the following effect:
(1) Zahra Anwari, who states she in engaged to Mr Khan and they are planning to marry in the next year. It states she is from Afghanistan and it is not safe for her to return to Afghanistan.
(2) Ms Amina Muradi, Mr Khan’s sister and his sponsor for the subclass 117 visa. Ms Muradi states she came to Australia in 2005, and now has three daughters. She states she is like a mother to Mr Khan and if he has to leave it will badly affect her family. She states her younger sister Saliha suffers from scoliosis and is in pain. Her brother Hayatullah is a full time student and is finding it difficult to concentrate on his studies because of the potential cancellation of Mr Khan’s visa. She confirmed that Mr Khan is engaged to Ms Anwari and further states that if Mr Khan is required to leave Australia it will traumatise her and her children, who see him regularly.
(3) Mr Khan’s friend, Muhammed Medhi, who states he works with Mr Khan in Murray Bridge. Mr Medhi attests to Mr Khan’s good character.
(4) Mr Khan’s friend, Syed Shah, who states he worked with Mr Khan at Ingham’s, and that Mr Khan also now drives a taxi for Mr Shah part time. Mr Shah also attests to Mr Khan’s good character.
(5) Mr Khan’s supervisor at Ingham’s, Mr Gurnham Singh, who states Mr Khan works well in a team and has excellent problem solving skills. Mr Singh states that Mr Khan has the ability to work independently and follow instructions, is a hard worker and is of good character.
(6) A fellow taxi driver, Mr Hussain Ali Muradi, who states Mr Khan has been driving his taxi, is honest and hardworking and is of good character
(7) The Chairperson of the Afghan United Association, Mr Hussain Razaiat, who states Mr Khan is well known to the organisation. The Association is said to deliver cultural, social and settlement services. Mr Razaiat states that he can confirm Mr Khan is a member of the Hazara community from Afghanistan.
(8) Character references from friends, Mr Ramzan Jafari, Tawk Lian Sung Za Thang and Zahir Saidi.
Mr Khan gave evidence that he is a citizen of Afghanistan. He went to Pakistan in 2000 when he was very young with his parents, his sister, Saliha, and his brother, Hayatullah. He says that his father died in 2002 from cancer which left his mother himself and two sisters and a brother in Pakistan. This is consistent with information in the electronic department file regarding his family composition. Mr Khan’s father died from cancer of the oesophagus in 2002.
Mr Khan, Saliha, Hayatullah and their mother applied for a protection visas on 27 January 2009, and Mr Khan says that not long after his mother abandoned them. He estimates at this time he was 14 or 15 years old and his brother was approximately 10 years old.
His older sister, Ms Muradi, was sponsored to come to Australia on a spouse visa in 2005, and it was after Ms Muradi had left Pakistan that his mother suffered a mental breakdown and went missing. He says there was no-one to care for them in Pakistan and he became responsible for this younger siblings. They remained in the same house they were living before his mother left and his sister Ms Muradi paid the rent and helped them financially. He says that he made some money selling plastic bags in the bazaar.
Mr Khan said they applied for the orphan relative visas after his mother went missing and before the outcome of the protection visa application was known, but also later said he thought his mother knew the outcome of the protection visa application before she left them. The department file records that the protection visa applications were refused on 23 May 2009 and Mr Khan applied for an orphan relative visa on 19 August 2009.
There is a report on the electronic department file that a letter from a doctor at Civic Hospital Quetta was provided for the application for a subclass 117 visa that states his mother “… is my patient she is heart patient as well as psycho, since last year she has not come to my clinic for treatment – I know from son Hayatullah and Nematullah Khan and daughter Salkiha Khan that she has left in [illegible].” There is also a report of a letter from a neighbour to the effect that the mother left her children and went away about a year before as well as a report of a farewell letter from Mr Khan’s mother saying goodbye and telling them to forget her. As already noted, there are no original documents as the file was destroyed, and the record comprises notes from officers of the department. Given the department granted subclass 117 visas to Saliha, Hayatullah and Nematullah Khan it is evident that the department accepted that they were orphans at this time.

Mr Khan said that he has not left Australia since he arrived seven years ago and has not had any contact from his mother in this time. He states his brother-in-law went to Pakistan to search for her, but could not find her and the family now think she is deceased.
The circumstances in which his mother went missing are unusual, however this is a fact that was accepted by the department following interview with Mr Khan and is not in issue before us. There is no evidence that Mr Khan’s mother was alive at the time of the application for a subclass 117 visa and any assertion to the contrary was not the basis for the cancellation.
Mr Khan was questioned about how he obtained the taskira. He said he obtained the taskira after Ms Muradi asked him to get a passport and a taskira from the Consulate in Quetta. He said he took his father’s taskira and his father’s employment certificate to the Consulate together with their photographs and paid 2,500PKR. He had to bring two witnesses who were Afghan and who had a taskira. His father had two taskiras, one issued in Ghazni where his father was born and one issued in Kabul. He says he sent his sister copies of the passports and taskiras. Mr Khan acknowledged that the document on the department for the cancellation (being the document provided for his citizenship application) was the taskira provided in support of his subclass 117 visa.
Mr Khan was a minor at the time he applied for the taskira. He says, and we accept, that he followed advice from people in the community and from Ms Muradi that this was the way to obtain a taskira. The taskira was accepted for the purpose of granting the subclass 117 visa. It seems the alternative, which Mr Khan said he was not aware of, was to return to Afghanistan to obtain a taskira. Mr Khan says he did not realise that the taskira was not legitimate.
Information in the taskira includes Mr Khan’s identity, nationality and date of birth. By extension, the names of his father and grandfather contained in the taskira are relevant to establishing his identity as it is the means of establishing identity in Afghanistan.[5] Mr Khan states that the names, dates of birth, place of birth and father’s identity are correct in the taskira that was issued. He says that taskiras were also obtained for Saliha and Hayatullah from the Consulate in Quetta. Mr Khan, Saliha and Hayatullah were all interviewed separately by the department and then granted orphan relative visas.
[5] Insert reference to requirement to attend with father or grandfather taskira.
Mr Khan says his younger siblings have successfully applied for Australian citizenship. He applied for Australian citizenship and passed the test, and was waiting for the citizenship ceremony but was told it was deferred. He does not understand why there has been a different approach taken to his application.
Reports from 2009, the year in which Mr Khan applied for the visa, were that the Afghan Consulate in Quetta had issued false documentation in return for payment.
Post (DFAT and DIAC) consider documentation issued by the Afghan Consulate General in Quetta as unreliable. The Afghan Embassy in Islamabad has advised post that, on one or more occasions, the Afghan Consulate General in Quetta has issued false documentation in exchange for payment. The Consulate General has then taken further payment to corroborate the documentation if queried. Post cannot comment on reliability of certifications by other Afghan authorities.[6]
[6] Department of Foreign Affairs and Trade 2009, DFAT Final Report 1055 – MRT/RRT Information Request PAK35414, 3 December 2009.
It is reported that in 2009, violence by the Taliban in Afghanistan was at its peak.[7] It was reported by the United Nations High Commissioner for Refugees (UNHCR) that in 2009 the security situation deteriorated, particularly in the south, created protection issues for civilians.[8] There were tensions following the August Presidential elections, and the process of reconstruction was intermittent reducing access to essential services.[9] UNHCR reports policy and operational difficulty in distinguishing between economic migrants, people displaced by conflict and people in need of protection due to irregular movements within and from Afghanistan.[10] The possibility of Mr Khan safely returning to Afghanistan as a minor to obtain a taskira, even if he had been aware this was required, seems remote.
[7] (accessed 21 June 2017), (accessed 21 June 2017)
[9] ibid
[10] ibid
Mr Khan provided a letter from the Embassy of the Islamic Republic of Afghanistan in Canberra dated 18 November 2016 in which it is stated
“Mr Nehmutullah s/o Juma Khan was born in Ghazni –Afghanistan on [date].”
This letter is signed by the Consul of the Embassy. In his statutory declaration, Mr Khan states this was obtained after we went to Canberra to the Consulate with his father’s original taskira. He was advised it would take four weeks because they had to send copies of his father’s taskira to Kabul. This was consistent with his oral evidence about how he obtained the letter from the Embassy.
Mr Khan brought his father’s original taskiras and a work certificate to the hearing. One taskira and the work certificate were not translated and were therefore of limited evidentiary value. The second taskira was translated and included the information that his father’s name is Juma Khan (surname not stated), Juma’s Khan’s father is Gulam Haidar. The registration is cited as [numbers].
The volume number on Mr Khan’s father’s taskira is not the same as volume number for his father’s taskira that appears on the translation of Mr Khan’s taskira. Mr Khan could not explain this and did not seem to realise, until it was drawn to his attention that the number of his father’s taskira that appears on his taskira is different to the volume number that appears on this father’s taskira. His grandfather’s name is stated to be Ghulan Rasoul and not Gulam Haidar. While this raises some doubt as to whether the taskira of Mr Khan’s father was used as the basis for the taskira obtained in Pakistan as asserted by Mr Khan, given the country advice about the unreliability of documents obtained from the Afghan Consulate at this time, we place little weight on the inconsistency.
Ms Muradi provided a statement regarding Mr Khan’s age to the effect that she had to guess Mr Khan’s age relative to her own for both the protection visa and the orphan relative visa applications. She said that they come from a remote area where there is no hospital or school, and that people who lived there were not educated to a degree they could record a person’s birth date or year. In regard to his age, we accept that there is little emphasis on a date of birth in Afghanistan and that dates of birth are often not recorded. Ms Muradi said she advised Mr Khan to go to the Consulate for the taskiras as that was where she obtained her taskira. We are satisfied on the basis of Mr Khan’s oral evidence of the sequence of events and approximate ages of himself and his siblings that the date of birth provided in the taskira and the visa application approximates his age at the time.
Mr Abdullahi gave sworn evidence that he knew Mr Khan’s father and grandfather. Mr Khan’s father would work for Mr Abdullahi for two to three months of the year until 1997 when Mr Abdullahi came to Australia. He said he did not know much about his family, but he saw that Mr Khan’ father had little children when he went to collect him for work. Mr Abdullahi was put forward as a witness who could give evidence in support of Mr Khan’s identity. While statements of witnesses may be a way to establish identity for Afghanis, Mr Adullahi did not meet Mr Khan in Afghanistan. At best this evidence establishes that he knew Mr Khan’s father and his father had little children about the age of Mr Khan and his siblings.
There was some concern that Mr Khan’s year of birth was stated to be [year] in the protection visa application and [year] in the orphan relative visa application. Both these birth years result in Mr Khan being under 18 at the time of the visa application in 2009 as required for the grant of the visa. Mr Khan’s description of his approximate age and that of his siblings at various points in time is consistent with the age on the taskira, which is [age] years old in 2009. Mr Khan says his sister would be unable to check the dates on a visa application forms. In light of this, we are not satisfied that the age stated in the taskira is false.
During the hearing, Mr Khan offered to provide DNA evidence to support his identity and, in particular, his stated relationship with his sister Ms Amina Muradi. The DNA test results show they are siblings to a probability of over 99.9%, and we are satisfied he is her brother.
Having regard to the available evidence, we make the following findings of fact about Mr Khan’s identity and the document provided in support of his application for a subclass 117 visa :
(1) Mr Khan made application for a subclass 117 visa on 19 August 2009 after being earlier refused a protection visa. Mr Khan’s older sister, who resided in Australia at that time, sponsored his application. Mr Khan’s younger siblings also made applications for visas under subclass 117.
(2) In support of this application, Mr Khan submitted a taskira that he obtained from the Afghan Consulate in Quetta, Pakistan. We accept that the taskira was not registered and was not a genuine document. As such, the taskira was a bogus document within the meaning of s 5(1)(b) of the Act. However, we also accept that Mr Khan was not aware of this at the time he submitted it.
(3) While the taskira may be ‘bogus’, we are not satisfied that the information contained in the document was incorrect.
(4) On balance and in light of the taskiras provided for Mr Khan’s father, the letter from the Consulate and Mr Khan’s oral evidence we are satisfied that while the document is a bogus document, the information about Mr Khan’s identity and approximate age contained in the document is correct.
(5) We are satisfied that the applicant is ‘Nehmatullah Khan’, that he was born in Afghanistan and was under 18 years of age at the time of the application for a subclass 117 visa. We are also satisfied that Mr Khan has three siblings and that the sponsor for his subclass 117 visa was his older sister.
CONSIDERATION
Was s.107 engaged?
Section 107 is only engaged if the Minister or, as in this case, the delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). Whether the Minister or delegate reached the requisite state of mind at the time of the issue of the notice is a question of fact to be determined on the basis of the evidence.
In this case, the department sought verification of the taskira provided with the citizenship application and was advised by the Population Registration Department of Ghazni that it was not registered and is fraudulent. In these circumstances we are satisfied the delegate had reached the necessary state of mind to engage s.107, namely that the department had been provided with a bogus document.
Was the notice issued valid?
The Minister (or the delegate) must also issue 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.
A notice under s.107 of the Act is required to give the particulars of the possible non-compliance (s.107(1)(a)). A notice was issued on 12 September 2016 which relevantly stated as follows:
On 10 April 2015 the department performed an identity verification check with the Tazkira that you submitted to support your identity for the grant of the subclass 117 visa. The department received the following advice from the Population Registration Department of Ghazni province:
“Tazkira with [registration details] from Jaghori district of Ghazni province belonging to Nematullah s/o Juma Khan s/o Ghulam Rasool is not registered and is fraudulent.”
Therefore it appears that the Taskira that you submitted to support your identity at time of lodgement for your subclass 117 visa was fraudulent.
This means that you have not complied with section 103 of the Migration Act because in support of your subclass 117 visa you submitted a bogus document to an officer of the department.
There is a problem with this proposition, given that the file that relates to Mr Khan’s application for a subclass 117 visa was destroyed in a storage facility fire in Dubai in August 2014. If it was destroyed in August 2014 that taskira could not have been provided for verification on 10 April 2015. It is likely that the document provided for verification was the taskira provided by Mr Khan in support of his application for citizenship. There is no evidence provided in the department’s cancellation file as to whether the delegate made any enquiries about this or whether there was an acknowledgement by Mr Khan that the taskira submitted to the department in support of his application for citizenship was the same as the taskira submitted in support of his subclass 117 visa. Nor is there any analysis recorded as to whether and, if so how, the delegate formed the view that the taskiras were the same. In the absence of any such evidence we find that the particulars provided in the notice were incorrect or, at the least, misleading.
Neither Mr Khan nor his representative raised concerns about the form or content of the notice at the hearing or in written submissions and the hearing proceeded on the substantive issues about whether there the taskira was bogus and, if so, whether the visa should be cancelled. This is not surprising as there was nothing contained in the notice or the delegate’s decision to alert Mr Khan, his representative or indeed the Tribunal to this issue. Notwithstanding this, the issue was identified by the Tribunal as a result of its enquiries about the files and this matter is clearly relevant to our task of making the correct or preferable decision.
The question that arises from this material is whether the notice complied with s 107(1)(a) in circumstances where the notice provided incorrect or misleading particulars of the non-compliance. The notice stated that the taskira submitted with the subclass 117 visa application was checked. For reasons already stated, this cannot be the case. What the notice should have explained is that this taskira was not available for verification because the file had been destroyed but that the taskira submitted with Mr Khan’s application for citizenship to support his identity was sent for verification and found to be bogus, the inference being that the taskira provided for citizenship was the same as the taskira provided in support of the application under subclass 117. If the delegate had done so, Mr Khan would have responded as he responded at the hearing. He acknowledged at the hearing that the taskira held on the department file relating to the cancellation of his visa was the taskira provided with his subclass 117 visa and was the document he provided in support of his application for citizenship.
Mr Khan does not dispute that the taskira submitted to the department, whether it be in support of the subclass 117 visa or in support of his citizenship application, was a bogus document within the meaning of the Act. Mr Khan contends this he did not know it was bogus but nonetheless contends that the taskira correctly represents the facts about his identity. Mr Khan asserts that he is an Afghani, he was born in [year] and his father was Juma Khan.
The Full Federal Court has considered the nature of the particulars to be provided in the s.107 notice in Minister for Immigration v Brar.[11] In this case, it was stated in the s.107 notice that Mr Brar had provided a bogus reference to obtain TRA (Trades Recognition Australia) skills assessment. This assessment was not in fact required for the grant of the visa as asserted in the notice.
[11] [2012] FCAFC 30
The Full Court stated the purpose of the notice is to ensure the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations. The issue before us is not whether the notice under s.107 contained a false particular or wrongly asserted a matter. The issue is whether there was non-compliance by the visa holder in the way specified in the notice. In this case the issue was whether Mr Khan had provided a bogus document, specifically his taskira for a subclass 117 visa.
The notice contained sufficient particulars to let Mr Khan know that the Minister was alleging he had submitted a bogus taskira but on the material before us, there is doubt as to whether there was sufficient detail to allow Mr Khan to properly respond the allegation. For instance, if Mr Khan had submitted a different taskira at the time of his application for a subclass 117 visa, any response he made would have proceeded on the incorrect assumption that the taskira the delegate was referring to the first taskira. This would have resulted in confusion and would have defeated the purpose of the notice and s.108. Section 108 requires the Minister to have regard to any response by the visa holder to the s .07 notice and to decide whether there was non-compliance by the visa holder in the way described in the notice. Section 108 is not expressed in terms that the Minister must decide whether there is non-compliance having regard to any response to the notice, but rather that the Minister must undertake both enquiries. Clearly it is not intended that the Minister be confined to any response in forming a view about non-compliance but given the scheme set out in Subdivision C, s.108 contemplates that any response would be taken into account when making that decision. On the facts of this case there was no confusion because the taskiras were the same, which was acknowledged by Mr Khan at the hearing. However, this is not the test and in our view the question of whether particulars are sufficient must be objectively assessed by reference to the form and content of those particulars, not by subsequent events.
The requirements set out in s.107 serve an important purpose and the service of a valid notice is a precondition for the exercise of what is invariably a serious, albeit discretionary, power. Considerable care should be taken in the issue of notices under s.107 because these notices are a key step in the process which may lead to the cancellation of a visa under s.109. Their purpose is to provide visa holders with particulars of the non-compliance alleged, details of other relevant related matters and, importantly, a reasonable opportunity to respond to those issues.
While it is arguable that the particulars of non-compliance were insufficient on their face, ultimately this is not determinative of the issue of validity for the reasons that follow.
The other requirements for a s.107 notice are contained in ss.107(1)((b) to (f). The notice provided to Mr Khan complies with ss.107(1)(b) and (c) but does not comply with ss.107(1)(d) or (e). It does not set out the effect of ss. 108,109,111 or 112 of the Act, as required by s.107(1)(d). Nor does the notice inform Mr Khan about the holder’s obligations under s.104 and 105, as required by s.107(1)(e). These provisions are significant because they are integral to the statutory scheme of cancellation set out in Subdivision C of Division 3, Part 2 of the Act.
As already noted, the procedural requirements set out in s.107 are mandatory preconditions to the exercise of the power to cancel visa under s.109. The failure of the notice to address paragraphs (d) and (e) is not a minor or trivial omission or a technical breach (in contrast to Salama v MIBP [2016] FCCA 540 at [23]). We therefore conclude that the notice issued does not comply with the provisions of s.107. These defects cannot be cured by the Tribunal (refer SZEEM v MIMIA [2005] FMCA 27). Accordingly, the notice is not valid and we cannot find that there was non-compliance by the visa holder in the way described in a notice properly given under s.107, as required by s.108. The decision to cancel Mr Khan’s subclass 117 visa must therefore be set aside and substituted with a decision not to cancel.

A further issue of concern, which was not raised by Mr Khan or his representative and is not determinative because we have already found the notice was not valid, is that the notice contained other information that was misleading.
The notice referred to the discretion under s.109 and recorded the matters that the delegate would take into account under PAM3 but did not list the prescribed circumstances set out in r 2.41. These are the matters that the Minister, or the delegate, must have regard to when making a decision to cancel a visa (s.109(1)(c) of the Act). Section 107 does not provide that the notice must set out the ‘prescribed circumstances’ in the notice but where the delegate has chosen to set out the factors that he or she will consider and has invited the visa holder to respond to those matters, those factors should be correct. On a fair reading of the notice, the inference is that these matters are the only relevant matters. This is misleading. However, the fact that a notice is misleading or at best confusing does not of itself impact on whether the notice complies with s.107. This is a matter that could be cured by review in any event.
However, in appropriate cases it may be helpful for this Tribunal on review to provide guidance to primary decision-makers on significant issues that may arise in cases such as this.
The statutory regime in Subdivision C of Division 3, Part 2 of the Act establishes a number of steps that must be satisfied before the Minister or a delegate can exercise the discretion to cancel a visa under s.109. Cancellation is a serious matter with significant consequences, especially in respect of a permanent visa. However, it is a very serious matter for visa holders to provide incorrect information or bogus documents in support of their applications which has the potential to undermine the integrity of the visa system. The statutory regime, by establishing a clear process that includes the issue of a formal notice with specified content and time to respond and prescribes that matters to be considered when exercising the power, seeks to balance these competing matters. In summary, there are four critical steps. First, there must be grounds to issue the s.107 notice. Secondly, the notice that is issued must comply with the requirements of s.107. Thirdly, the Minister or the delegate must decide whether there is non-compliance in the way described in the notice and must also have regard to any response to the notice. Fourthly, having found there was non-compliance the Minister or the delegate must consider the exercise of the discretion to cancel and in so doing must have regard to the prescribed circumstances and any response to the notice.
The issue of the notice and the opportunity for the visa holder to respond are an important part of the process. As noted in the cases referred to above, the Courts have taken a common sense approach to the construction of the relevant provisions, including s.107, as should the Tribunal. It is nonetheless relevant to note that the issue of a notice under s.107 and the form and content of that notice are the foundation for the exercise of the power of cancellation. As such, the issue and preparation of these notices should be approached with care and diligence. The mandatory matters set out in s.107 must be included and if there are other matters included which are misleading or at the least confusing, this has the potential to diminish the effectiveness of the notice. A notice under s.107 that complies with the legislative provisions but is otherwise misleading or confusing would not be defective but would compromise the effective operation and discharge of the obligations under s.108 and s.109. While this can be cured on review by the Tribunal, it is highly desirable and in the interests of good administrative practice in decision-making by primary decision-makers that such notices are clear, accurate and comply with any legislative provisions.
Other matters
In this case, we have decided that the notice purportedly issued under s.107 was not valid and we are not satisfied there was non-compliance in the way described in any notice given under s.107. This being the case, we need to go no further.
However, given Mr Khan concedes the taskira submitted by him in support of his subclass 117 visa is the same as that submitted for his citizenship application and given that this taskira has found to be a bogus document, the Minister, or a delegate, could issue a further notice under s.107 addressing the issues raised.
Because the issue about the validity of the notice was not raised by Mr Khan or his representative either before or during the hearing, the Tribunal considered whether there was non-compliance by Mr Khan in the manner specified in the notice and, if so, whether the visa should be cancelled. While the Minister or any delegate is not bound by our conclusions on these matters, having undertaken a review and been provided with further evidence by Mr Khan, we set out our findings to assist in any further consideration of the matter.
Based on the evidence from the Population Registration Department in Ghazni and Mr Khan’s evidence that the taskira submitted for the subclass 117 visa was the same as the taskira submitted for his citizenship application, if the notice under s.107 had included these details, we would have been satisfied there was non-compliance. The taskira was bogus because it not registered with the Population Registration Department of Ghazni province.
This does not mean that the taskira included incorrect information and that Mr Khan is not who he says he is or that he has a false identity. As noted above, while we accept that the taskira is a bogus document, based on the material before us we are satisfied that the information about Mr Khan’s identity and approximate age contained in the document is correct.
Having regard to the mandatory considerations set out in r 2.41, we would have set aside the decision to cancel the visa in any event for the following reasons:
(1)Regulation 2.41(a) requires that the decision maker take into account the correct information. On the material before us that information would be to the effect that the information about Mr Khan’s identity and approximate age contained in the document is correct. This would weigh against cancellation.
(2)Regulation 2.41(c) requires the decision maker to take into account whether the decision to grant the visa was based, wholly or in part, on incorrect information or the bogus document. While we have not been provided with the subclass 117 visa file, it is likely that the decision was at least in part based on the taskira. As such, this factor would weigh in favour of cancellation.
(3)Mr Khan was granted a subclass 117 (Orphan Relative) visa in 2010. The requirements for the grant of this visa include that Mr Khan is the orphan relative, as defined in the Regulations, of an Australian citizen. Mr Khan’s sister is the Australian permanent resident. At the time Mr Khan applied for the visa in 2009, to meet the definition of orphan relative the person must be under 18 years of age at the time of the application, not have a spouse or de facto partner and be unable to be cared for by either parent because both parents are deceased, permanently incapacitated or of unknown whereabouts.[12] Mr Khan’s taskira is relevant to his relationship with his Australian sponsor and his age. The available evidence, including the DNA evidence, supports a finding that Mr Khan would have complied with the criteria for a subclass 117 visa at the time of his application. In the absence of evidence to the contrary, we are not satisfied that the visa would have been refused if all the facts had been known. While this is speculative and therefore would not carry significant weight, this matter, which is related to the prescribed circumstances in r 2.41(a) and (c), would tend to weigh against cancellation.
(4)Based on the material before us, which we accept in the absence of evidence to the contrary, it would appear that the circumstances referred to in paragraphs (d), being the circumstances in which the non-compliance occurred, (e) being the present circumstances of the visa holder, (h) being the time that has elapsed since non-compliance and (k), being the contribution made by the visa holder to the community, are all in favour of Mr Khan and would weigh against cancellation of the visa.
(5)At the time Mr Khan applied for the subclass 117 visa to obtain a valid taskira, a person was required to travel to his or her place of origin in Afghanistan.[13] Mr Khan says he was unable to read and write at that time and he followed the advice of his sister and community members in obtaining the taskira, and provided his father’s taskira and two witnesses as he was required to do. At the time he obtained the taskira he was a minor and responsible for his younger siblings. We are persuade by Mr Khan’s evidence that he considered his taskira to be genuine, which is reflected by him again providing the taskira in his application for Australian citizenship. As Mr Khan said, if he had known the document was not genuine he would not have again provided it to the department.
(6)Mr Khan has been in Australia for nearly seven years. Mr Khan gave evidence that as his older sister had limited ability to financially support the three siblings when they first arrived in Australia, the family made a decision about who received an education. He has two sisters and a brother in Australia and lives with his brother and younger sister. His brother went to school and Mr Khan got a job delivering catalogues while he learned English from his brother. He then started work at the meat factory in Murray Bridge and worked there for 16 months but struggled with English. He worked for vegetable growers in Two Wells de-leafing plant before getting a job at the Ingham Chicken Factory in 2012 where he continues to work.
(7)Mr Khan’s brother recently completed a degree in Mechanical Engineering, but is not currently working. His sister younger sister has scoliosis which means she cannot stand for long and finds it difficult to do household tasks, but does not require assistance with personal care. His brother and sister are Australian citizens, and we are satisfied he has financially supported his siblings and continues to do so. His elder sister Ms Muradi is also an Australian citizen. She has three children, who he sees most days.
(8)Mr Khan is engaged to Ms Zarah Anwari who is an Australian citizen. Ms Muradi said in accordance with their culture she proposed on behalf of Mr Khan. Ms Muradi gave evidence that she attended their engagement and sees them together as they visit her at home. Mr Khan’s fiancée Ms Zahra Anwari provided a statement to the department. She states she is from Afghanistan and arrived on a protection visa with her family. She says it is not safe for her to return to Afghanistan, and she would not be able to do so. She says they were engaged on 9 April 2016 and had planned to get married the following year. Photographs were provided stated to be from the engagement ceremony.
(9)Mr Khan provided a letter from the Chairperson of the Afghan United Association stating Mr Khan is well known to the organisation, and attends programs. The letter confirms he is a member of the Hazara community. He also provided letters of support from friend and co-workers, and a copy of child –related employment screening showing he is suitable for volunteer work with children.
(10) The Tribunal accepts Mr Khan is well established in the community, and has been employed since arriving in Australia and has a number of connections with Australian citizens. He is engaged to an Australian citizen. He has supported his younger brother in completing his tertiary education and supports his younger sister. All of his immediate family are in Australia.
(11) Mr Khan acknowledges he provided his taskira to the department with his application for Australian citizenship, and states this is because he was not aware it was not a genuine document. The Tribunal accepts he was not aware it was not a genuine document until advised by the department that this was the case. He has not since sought to dispute the document. Nor is there any evidence of other instances where Mr Khan may have breached his obligations under Subdivision C (refer r 2.41(f)). Subject to that fact that Mr Khan does not hold a bridging visa and was therefore unlawful at the time of the hearing following the cancellation of his visa, there is no evidence of other instances of non-compliance or breaches of the law by Mr Khan since non-compliance (refer paragraphs (g) and (j)). The fact that Mr Khan did not apply for a bridging visa was an issue of concern raised by the Tribunal given he has a registered migration agent representing him. While Mr Khan must take responsibility for his immigration status, he sought advice following the cancellation and was not advised to apply for a bridging visa. If he had done so, there is no reason to believe he would not have been granted a bridging visa pending the Tribunal’s review. These matters are relevant to the seriousness of his non- compliance. On balance, the foregoing matters would weigh against cancellation.
[12] Cl.117.211 of Schedule 2 of the Regulations and r.1.14 of the Regulations
[13] See, for example, Canada: Immigration and Refugee Board of Canada, Afghanistan: The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December 2011, AFG103918.E, available at: 8 June 2017]
A further issue raised in PAM3 is whether Australia would breach its international obligations if the visa were cancelled. If Khan’s visa is cancelled, he may apply for a protection visa. As a result the cancellation of this visa would not entail a breach of the non-refoulement obligations [14] and this would not weigh against cancellation.
[14] see, e.g., COT15 v MIBP (No.1) [2015] FCAFC 190
If the Minister or a delegate decide to reconsider this matter and issue a further notice under s.107 based on the same material, clearly they would not be bound by our findings on the exercise of the discretion. This would be particularly pertinent if there is new material available that is adverse or contrary to any of the evidence.
CONCLUSION
Mr Khan has provided a bogus taskira to the department, but his visa should not be cancelled because the notice under s.107, which grounds the power to cancel, was defective. This defect cannot be cured on review and the decision to cancel therefore must be set aside.
Even if the notice had been valid, we would made a decision that the visa not be cancelled based on the material before us.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 117 (Orphan Relative) visa.
Jan Redfern
Deputy President

Kate Millar
Member