A happy outcome for the client, but we should expect better from the Department of Home Affairs

by | Feb 12, 2024

We are starting our week at Lenton Migration Law with a lovely cake from a happy client.

We received notice on Thursday last week that we had won her Administrative Appeals Tribunal case, overturning the Department of Home Affairs’ decision to cancel her permanent residency visa. So there are lots of reasons to celebrate.

So while this is a happy moment, and you can tell from my face how thrilled I am that we won, I do want to tell you a little more about this particular case. I think that the details here help to illustrate the significant human cost of poor decision-making out of the Department of Home Affairs.

So the background:

My client is from Afghanistan, and is a Hazara Shi’a Muslim, which is a minority ethnic group in Afghanistan, subject to significant persecution.

She came to Australia almost 15 years ago, as the wife of another Hazara Shi’a from Afghanistan, who was granted a protection visa when he arrived to Australia a few years earlier.

The family settled down in Australia, and had two children. The husband has been working, paying taxes, and my client has taken care of her children and her household. Her husband and both children are Australian citizens.

3 years ago (and 11 years after she first arrived to Australia), she received a Notice of Intention to Cancel her visa from the Department of Home Affairs under section 116(1AA), arguing that the Afghanistan government had provided advice to the Australian government that her identity documents were fraudulent.

On the basis of the document verification from the Afghani government, the Department of Home Affairs cancelled my client’s visa. (There are a few more details to this case which I have left out for privacy reasons, but this was the core of their evidence against my client).

I have been working with the client since January 2021, and eventually we were able to go to her Tribunal hearing in January 2024. The Tribunal Member accepted my submissions that it would amount to an instance of legal unreasonableness to rely upon a document verification completed by the Afghani government.

This is because the Afghan identity document records system is wholly unreliable, not centrally digitised, and subject to extensive corruption. This is recognised by the Department of Foreign Affairs and Trade, in their country information report on Afghanistan. To make a decision that a person’s identity document is fraudulent on the basis that the Afghani government could not find the document in their records is a factual and legal absurdity.

As a result, the Tribunal Member appropriately found that the power to cancel the visa in this case is not available, because there was insufficient evidence for the Member to reach a state of real satisfaction that the section 116 cancellation power was triggered.

So a good outcome in the end for this client, right? Yes, but it does not account for the 4 years of stress and uncertainty suffered by the client – significantly heightened when the Taliban returned to power in late 2021. Or the thousands of dollars that the family had to spend on legal fees and AAT lodgement fees to get to this outcome.

The decision by the Department of Home Affairs’ official in this case was entirely inappropriate, absurd on the facts, and not legally available. It never should have happened in the first place.

Our jobs as immigration lawyers are essential to protect and assist clients who find themselves in these kinds of situations. But more importantly, the Department of Home Affairs has the responsibility to ensure that their decision-makers are well-trained and supported, and that decision-making is subject to appropriate and regular quality control and quality assurance.  They wield enormous power over individuals, and decisions like this are an incredible abuse of that power.

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