1607110 (Refugee)

1607110 (Refugee) [2016] AATA 4721 (11 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607110
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Stuart Webb
DATE:11 November 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 11 November 2016 at 4:14pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that documents provided by the applicant were fraudulent and were bogus documents as defined in the Act, and as such the applicant did not comply with s103 of the Migration Act. The delegate also considered that the applicant provided incorrect information and had not complied with s101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Ms A]. The Tribunal attempted to contact a witness from Pakistan as requested by the applicant, a [Mr B], who had provided a letter in support of the applicant[1]. The applicant’s advisor provided two phone numbers that accorded with the contact detail on the bottom of the letter. The applicant also provided a mobile number. The Tribunal rang all three numbers at the hearing but all went to an answering machine service. The Tribunal was unable to speak to [Mr B].
[1] AAT Folio 80
The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’ decision to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing 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. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Relevant Background Information.
Relevant Information pursuant to s.107 Notice
The s.107 Notice advised that a delegate of the Minister considered that the applicant may not have complied with s.101(b) and s.103 of the Migration Act. Section 101 and s103 state:
Section 101: Visa applications to be correct
s101. A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered, and
(b) no incorrect answers are given or provided.
Section 103: Bogus documents not to be given etc.
A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided
Bogus documents are defined in s.5(1) of the Migration Act as:
"bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of 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.
The delegate in this instance provided 3 s.107 Notices to the applicant. The First Notice was sent to the applicant in March 2015 by registered post. However this first Notice was identified as defective, as an attachment as provided with the notice in Urdu was not the correct attachment, and the delegate considered the applicant was not given the correct particulars of the possible non-compliance. This Notice was sent again with the correct attachments in March 2016[2]. The two Notices are ostensibly the same[3]. This Notice identified the following issues for the applicant, as taken from the March 2016 Notice.
[2] The defective Notice error was notified in an email sent to the applicant’s representatives in March 2016. DIBP File [number] Folio 149
[3] DIBP File [number] Folio 33-36, 148-144
1.       [In] October 2011 you applied for a Protection Visa, documents relating to this application are contained on Department of Immigration and Border Protection (DIBP) file [number]. Included in your application are the following documents.
2.       A two page statutory declaration made by you [in] November 2011 that I have attached to this notice and marked "attachment 1". In that statutory declaration you state that you are a member of Shia community Fiqah Jaffaria and that you came to Australia on a student visa in desperation to leave Pakistan where you were being arrested and persecuted because of your faith.
3.       A one page document in the Urdu language contained on folio 39 of DIBP file [number], which I have attached to this notice and marked "attachment 2".
4.       A one page document purporting to be an English language translation of the document described in paragraph 3, which I have attached to this notice and marked "attachment 3".
5.       [In] June 2014 your [father] was interviewed by DIBP officers in relation to his application for a [temporary] visa. A documentary record was made of the answers he gave to questions asked by DIBP officers. On this document it is recorded that he gave DIBP officers the following information:
•         He does not belong to any political or religious organisations and has no leadership position in the Shia community.
•         No one in his family has ever been attacked. No one has ever shot at his family with a gun. He has no bodyguards or security guards. Everything is normal for his life and his family's life in Pakistan.
•         There has never been any problems with his shop.
•         You had only been hurt twice, in a car accident and a bike accident. There was no one in the car with you at the time of the car accident, you were returning from college alone. No one else in your family was injured in a car accident.
6.       In July 2014 DIBP officers made inquiries with the [Location 1] Police Station, who purportedly authored the document described in paragraph 3. In response to these inquiries an officer from [Location 1] Police Station stated in a one page document that the document described in paragraph 3 "is totally fake and not registered in the FIR book of P.S. [Location 1]." I have attached this document to this notice and marked it "attachment 4".
7.       Based on the information in paragraphs 5 and 6, I consider that the information in paragraphs 6, 8, 9, 11, 13 and 15 of the document described in paragraph 2 is incorrect.
8. Based on the information in paragraph 6, I consider that the document described in paragraph 3 is a "bogus document" as that term is defined in section 5 of the Act as it purports to have been issued by [Location 1] Police Station but was not in fact so issued. It appears that you caused this document to be given to an officer performing a function under the Migration Act (deciding your protection visa application).
The applicant’s statement, which is referenced by paragraph in this statement, is as follows.
1.       I was born on [date], in Islamabad, Pakistan.
2.       I arrived to Australia [in] July 2010.
3.       I initially came to Australia on a student visa.
4.I came on a student visa in desperation to leave Pakistan where I was being persecuted because of my faith.
5.       I am a member of Shia community Fiqah Jaffaria.
6.[In] May 2010 [number] persons intruded into my father's shop where I was working and beat me with sticks and fists and threaten that they will kill me. I have a scar [from] this incident.
7.The people that threatened me belong to Lashkar-e-Jhangvi, an anti-Shia group.
8.Shortly after I came to Australia I was advised that my family had been attacked again.
9.[In] June 2011 at 2:00pm, my family were driving from [our] native village, and they were followed by a car. This car intentionally crashed into my family car and my family were all seriously injured.
10I have provided medical certificates relating to my mother, [siblings], and father as a result of this incident.
11.My father is [an official] of Tahreek Jaffaria, which is a Shia Muslim religious group. This body holds records of all Shia Muslims in Pakistan.
12.My father is a very well known man and he received several threatening phone calls after this incident, telling him that he has to change his religion.
13.Shortly after this my [brother] was going to college on his bike and some people shot at him, however he was fortunate enough to escape.
14.If I were to return home and relocate I would still not be safe. The Tahreek issued me with a letter confirming that I have been the subject of serious threats. The Tahreek rarely issues such letters unless it is warranted.
15.My father's high profile and position within the Tahreek means that I too am well known and easily identifiable.
16.If I return to my country I fear for my life because of the threats on my family. These people know where my family live and work.
17.      I am persecuted in my home town because of my faith.
18.      The police have done nothing to intervene and protect us.
19. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
Declared at [city] [in] November 2011
In response to the first Notice sent in March 2015, the applicant provided the following statement.
I … received my residence [in] august 2014.
I have been supporting myself by working full time at [Workplace 1] and obtaining a part time job in 2015 within [Workplace 2, details deleted].
I am currently studying a [course] to further my education which is to be completed at the end of 2015, and I am determined to further my education, and intend to complete a [higher qualification] in the coming year and become a [occupation] to work within a [facility] so I can help [details deleted].
I take pride in knowing that I am helping others who are in need and will never stop caring for them all. I have also made close relationships with the [people in Workplace 2, details deleted].
I take pride in my role within [Workplace 1], offering my service to [people], whether it be for a general inquire, [or to others], as well and providing [assistance] for minor and serious incidence that may [arise], I have commenced [training, details deleted].
I have always helped others throughout my life and wish to do so here in Australia. I have established myself here because this is my home now. I recently proposed to my girlfriend and we have been planning to get married soon so we can build family together. This is what I have achieved so far since being here. I came here and had started from nothing and with the help of God I made myself who I am today. I am supporting myself, I have made a life here I am a full time student and I am also fulltime worker, it may be hard but I am working towards my future and with the motivation that in return gaining my qualification and begin to help others in [a certain] field, I am a hard and responsible worker and only wish to prove that I am a hard worker and that I am able to provide for my soon to be wife and my children to come this is all anyone wants in their life, it is what I want as well.
I have a clean record, I have never committed any crime in my life. I have never touched a cigarette or alcohol, and never plan to and I am a responsible taxpaying resident of Australia. Australia has given me so many opportunities from having freedom in such a beautiful country to speak and believe what you will, to walk along the street without feeling afraid, a wonderful education system with so many pathways, Australia has given me everything I desire in my life, and so much more, I feel extremely privileged to live in such an amazing country and I don't for any chance wish to leave everything I have planned and everything I have worked extremely hard for.
I have come a long way and as per the letter by immigration I have been notified that my visa is under consideration for cancellation which was big shock for me and I would like immigration to consider the facts that I am going to provide them before they go ahead and take a decision. As my father was desperate to see his son and the statement he gave over there was under extreme psychological and mental strain. I have contacted the police station as well because I was in shock that why the first information report hasn't been verified and they have send me a letter saying that they have found it which I am going to attach over here with my statement and also I have attach the declaration from my that dad as well.
I would like your highness to consider all these facts before you go ahead and take a decision on this matter it might be an everyday case for the immigration department but it will be a big turnaround in my life.
The applicant also provided a letter from his father and a document stating it was from the P.S. [Location 1] regarding the FIR, and that the FIR records had been lost but had now been found[4].
[4] DIBP File [number] Folio 40
The delegate also sent a different Notice to the applicant, in November 2015[5]. This identified other issues with the applicant’s protection visa application and possible non-compliance with s103 of the Migration Act.
[5] DIBP File [number] Folio 84-87
[In] October 2011 you applied for a Protection Visa. Included in your application are two documents described in paragraphs 2 and 3 below.
A one page document in the Urdu language which I have attached to this notice and marked "attachment 1".
A one page document purporting to be an English translation of the document described in paragraph 2. It is stated in this document that the document in paragraph 2 is a "First Information Report [FIR] Needing Police Intervention in Crimes Reported Under Section 154 of Criminal Procedure, No.[number]" from the records of Book [number], [Location 2] Police Station, Islamabad. I have attached this document to this notice and marked it "attachment 2".
It is stated in the document described in paragraph 3 that the document described in paragraph 2 relates to a report made by [the applicant’s father] [in] 07/2011 of a crime committed under section [number] relating to threats from Lashkar-e-Jhangvi threatening to kill him and his family member if he does not stop "to preach shiaism".
According to the document in paragraph 3, it is also recorded in the document described in paragraph 2 that the "informer" stated:
"Respected SHO Police Station [Location 2], Islamabad....Yesterday due to this matter few accomplices of the terrorists open fire on my [son] but by the sake of God he will escaped from the scene and save his life..."
According to records of the Department of Immigration and Border Protection (DIBP), two DIBP officers, one of whom speaks Urdu, visited the [Location 2] Police station to verify the document described in paragraph 2. According to the record made by these DIBP officers:
"The police were very forthcoming and the officers were able to inspect the FIR log book and determined that while there was a file number that corresponded to [the document described in paragraph 2] it in no way matched [it] and revolved around completely different people and circumstances."
A senior officer at [Location 2] Police Station stated in relation to the document described in paragraph 2 that the FIR [number] on their records related to a petition filed by a different person relating to a different crime and that the document described in paragraph 2 is "fake and self-made"
[In] June 2014, your [father] was interviewed by DIBP officers in relation to his application for a [temporary] visa. A documentary record was made of the answers he gave to the questions asked by DIBP officers. On this document it is recorded that he said to DIBP officers that he had only filed one FIR with the police and that related to a car accident.
Based on the information in paragraphs 3, 6, 7, and 8, I reasonably suspect that the document described in paragraph 2 is a bogus document as that term is described in section 5 of the Act, as I reasonably suspect that it is a document that purports to be, but is not a record of [Location 2] Police Station, Islamabad and is therefore counterfeit.
Your migration agent gave the document described in paragraph 2 to the Department [in] November 2011 in connection with your visa application. I therefore infer that you gave this document to your migration agent and caused this document to be given to an officer performing a function under the Migration Act (deciding your protection visa application).
The applicant’s agent provided a response to this second Notice. This stated in part that:
Under paragraphs 6 and 7 of the letter you stated that through an investigation conducted by your department you discovered that the report did not exist on the [Location 2] Police Station's system of records, and that the senior officer of that station identified the document in question as "fake and self-made".
…
The Applicant stated that his father had approached the [Location 2] Police Station in July 2011 after having received threats on his life. He was seeking protection from prominent terrorist organization Lashkar E-Jhangvi. The Applicant was in Australia at the time, having arrived in [city] [in] July 2010.
The Applicant's, father said that the police were not behaving as he expected. It was common knowledge that Lashkar had a great influence in Islamabad at the time but the father was surprised as to how timid the police had become because of their growth. They were too scared to provide any realistic help and rather advised his father to remain quiet and keep out of trouble. After insisting on help and reminding the police of their duties, the officers at the time said they would file a report and make an attempt.
The Applicant's father was provided with a document that he believed to be a legitimate police report at the time. He did not think much would come of it in terms of protection but did not seek to question the validity, naively believing that the police would not fabricate documents. Looking back in hindsight the document provided was most likely a fabrication given to the father to grant him false hope that the police would fulfill their duties aid him.
The intimidating presence of Lashkar can be seen as a realistic reason as to why a fabricated document was handed to the Applicant's father. In addition to this, Shiite Muslims have been persecuted and are seen as a dangerous minority to associate with during those troubled times. It should be noted that the police officers of [Location 2] station would have not only been intimidated by the power of Lashkar but would also have held their prejudices against the Shiite minority This would make it unlikely for them to have provided the Applicant's father any help and more likely that they would have fabricated a document to convince the father that they were conducting an investigation.
The nature of this situation would mean that the report given to the Applicant's father would not have been recorded into the computer system at the station. The Applicant claims that even had the report been legitimate then it may not have been placed on the system as he has experience of authorities in Pakistan being fairly disorganized. It would furthermore be difficult to trace the officer who provided the report as the Applicant claims that police officers are regularly transferred every few months.
We further wish to place the investigation conducted by your department into question. We note as above that it was [Location 2] station's senior officer who held the view that the document was fake and self-made and that it did not exist on the record, We note that the senior officer would not have put his station or the reputation of the police force of Pakistan into jeopardy by claiming that an error or a fraud was committed on their part.
…
The Applicant's father had received the document from the police believing it to be legitimate. The document was then sent as a scanned copy to the Applicant in the early days of August 2011 via email while the original copy was sent by mail. The Applicant received the document believing it to have been a legitimate police report.
The Applicant stands firmly by the claims he made in the statutory declaration submitted to the department at the time his protection visa application was made. He denies having intentionally provided the department any fake or fraudulent documents.
The Applicant provided several other documents which were proven to have been legitimate and aided his claims for protection to a much greater extent than the document in question. He was not in a desperate situation that required him to fabricate documents to support a weak position.
…

In response to the third Notice, sent in March 2016, the following submission was provided from the applicant’s agent. The submission sought to impugn the alleged fabricated documents, that the applicant had no hand in the acquisition or delivery of the police report, it was his father who provided this to the applicant. It was submitted that there are reasons, given the political and judicial landscape of Pakistan, why a police report was not on the system. It was submitted that the Pakistani police force may be corrupt and its members may have displayed malicious intention towards the applicant on filing the police report, stemming from the applicant’s religious or ethnic background; the standards of the Pakistani Police Force may not be as high as that in Australia; the police may have been afraid to report on terrorist activity; or a mistake could have been made in the system.
With respect to the incorrect information as provided by the applicant’s father, it was submitted that his father had his own individual claims. It was acknowledged that there was an overlap of claims and that there was a contradiction in the claims, and that ‘we acknowledge that, as no explanation has been provided for the conflict in claims, the Applicant appears to have fabricated the claims in attachment 1’.[6] The submission then went on to state that ‘the father had intended to submit only the claims that he believed would aid his efforts and felt that certain issues should not be raised. In particular, the father shied away from raising many political claims as he believed they would adversely affect his chances of being granted protection’, he could not speak English, only certain things should be raised and had an agent who provided the information who was ‘unaware of the adverse effects these claims may have on the applicant.’ It was submitted in the response to November 2015 Notice that the applicant’s father was desperate to get a [temporary] visa to see his son and made the incorrect statements to DIBP officers under extreme psychological and mental strain. It was submitted that the applicant’s father was a high profile figure. The submission went on the raise issues in the Punjab, Shia, and about the applicant’s father.
[6] DIBP File [number] Folio 158
The submission also noted that the applicant had an Australian girlfriend, and had completed qualifications in Australia that would benefit the community.
S.109 Cancellation decision
The delegate outlined the Notices that had been sent to the applicant and the responses received over this time. It detailed the information provided by the applicant in his application for protection and the information as provided by the applicant’s father during an interview by DIBP officers in relation to an application for a [temporary] visa. It included information about a documents described as bogus, including details as to DIBP investigations into the FIR provided as part of the applicant’s visa application. The delegate determined that the applicant caused two bogus documents, as defined by section 5 of the Act, to be provided as part of his protection visa application. The delegate determined that the applicant did not comply with s103 of the Migration Act for this reason. The delegate determined that information contained in the applicant’s statement [in] November 2011 in support of his protection application as provided by the applicant was incorrect information. For this reason the delegate determined that the applicant had not complied with section 101 of the Migration Act. The delegate noted the submissions as made in support of the applicant.
The delegate also noted the independent enquiries made by DIBP officers in Pakistan that identified that the document purportedly from the [Location 1] Police Station was described by a [Location 1] Police Station officer as ‘totally fake and not registered in the FIR book of P.S. [Location 1]’ [the [Location 1] FIR] . The delegate also noted the independent enquiries made by DIBP officers in Pakistan that identified that the document purportedly from the [Location 2] Police Station, and that the DIBP officers were able to ‘inspect the FIR log book and determined while there was a file number that corresponded to [the document provided by the applicant] it no way matched [it] and revolved around completely different people and circumstances’, and that ‘a senior officer of the [Location 2] Police station stated that FIR [number] related to a petition filed by a different person relating to a different crime and that the document [provided by the applicant] is “fake and self-made”’[7] [the [Location 2] FIR}.
[7] Delegate’s decision, paras 31, 34, 35, AAT folios 21-22
The delegate noted that in response to the First Notice (March 2015) the applicant claimed the [Location 1] FIR was a genuine document, and provided a letter purportedly from the [Location 1] P.S. stating that the FIR was found, despite floods that occurred in 2013 that damaged the records.
The delegate noted that in the Second Notice (November 2015) the [Location 2] FIR was fake, and had been given to his father by the police for various reasons.
The delegate did not accept the submissions of the applicant. The delegate determined that there was strong evidence the documents were fabricated, that the explanations of the applicant were not credible. The delegate determined that the [Location 1] FIR and [Location 2] FIR were fabricated, and were bogus documents as defined by s.5 of the Migration Act. The delegate determined that they had been presented to an officer processing the applicant’s protection visa applicant by the applicant. the delegate determined that the applicant did not comply with s103 of the Migration Act.
The delegate considered that the evidence as provided by the applicant’s father to DIBP officers while being interviewed pursuant to a [temporary] visa application was consistent with the finding that the [Location 1] and [Location 2] FIR provided were false. The delegate considered the statement of the applicant’s father to the DIBP officers was correct. The delegate determined that the statement as made by the applicant [in] November 2011 in support of his application for protection contained incorrect information, and that the applicant had therefore not complied with s.101(b) of the Migration Act.
The delegate considered the relevant provisions whether the visa should be cancelled under Reg 2.41.
With respect to 2.41(a), the delegate determined that had the correct information was that the applicant’s father was not [an official] of the Shia group Tahreek Jaffaria; his father was not well known for his Shia connections; had not received threatening phone calls; had not had his shop broken into; the applicant was not assaulted during that incident; a car did not intentionally crash into the family car; and no-one shot at the applicant’s [brother].
With respect to 2.41(b), the delegate determined that the applicant had provided two non genuine documents, and that the information contained therein was fabricated and incorrect.
With respect to 2.41(c), the delegate determined that the decision to grant the applicant a Protection visa relied significantly upon the incorrect information provided by the visa holder that his family had suffered various attacks as claimed, that his father held a prominent office in a Shia organisation, and that his family had been attacked because of his father’s office and their Shia religion.
With respect to 2.41(d), the delegate determined that the applicant knowingly and willingly provided the incorrect information to secure asylum and permanent residency, and the circumstances were not beyond the control of the applicant.
With respect to 2.41(e), the delegate noted that the applicant worked full-time at [Workplace 1] and part time at [Workplace 2]. He has been in a relationship with an Australian citizen since September 2012. The delegate noted that the applicant may be able to apply for a partner visa.
With respect to 2.41(f), the delegate determined that the applicant continued to claim he has not provided incorrect information and fraudulent documents.
With respect to 2.41(g), the delegate determined that there were no other instances of non-compliance known.
With respect to 2.41(h), the delegate determined that 4 years had elapsed since the non-compliance.
With respect to 2.41(j), the delegate determined that there were no known breaches of the law since the non-compliance.
With respect to 2.41(k), the delegate noted that the applicant wanted to add to the community through his ongoing education as a [occupation], his work in [Workplace 2] and was financially supporting himself.
With respect to other factors, the delegate noted that the applicant would likely be subject to a 3 year exclusion from applying for further visas pursuant to Public Interest Criteria (PIC) 4013. He was liable for detention and removal from Australia.
The delegate considered whether there were any international obligations arising. The delegate noted that an International Treaties Obligations Assessment (ITOA) was undertaken by Onshore Protection in relation to the applicant. The delegate noted that the applicant’s protection claims regarding sectarian violence against Shia Muslims in Pakistan had been considered in the ITOA and had been determined that there was not a real chance that the applicant will be subject to persecution nor a real risk of significant harm should he be returned to Pakistan. The ITOA determined that the applicant was not a refugee, and that Australia did not have any non-refoulement obligations to the applicant pursuant to the Refugees Convention, the Convention Against Torture, or the International Covenant on Civil and Political Rights.
The delegate determined to cancel the visa.
Evidence before the Tribunal
The applicant provided a submission to the Tribunal the day prior to the hearing. It was stated that:
The applicant is a Shia Muslim from Pakistan. His father is [an official] for Tahreek Jaffaria, "which is a well-organised outfit, which effectively represents the interests of the Shia community in Pakistan". His father has a very high profile and is well known. This group is significant as it keep records and details about all Shia Muslims in Pakistan. As a result of his father's high public profile and position, the applicant himself was quite well known, and identifiable as he was often seen with his father.
It was submitted that:
The Applicant's claims are based on
The legitimacy of the documents and claims and his compliance with section 101 and 103 of the Act;
Recent events in Pakistan and the increasing attacks against minority groups;
His long-term relationship with an Australian citizen; and
The qualifications he has attained showing his willingness to be involved in this society.
His current mental health
It was submitted that the applicant will not be afforded protection in Pakistan, sectarian violence has a long history, the police are corrupt and there are issues with the justice system.
It was submitted that the applicant’s father had applied for a [temporary] visa and was desperate to see his son. It was submitted that the agent told the father to not say anything political as this would result in his application being refused. The father denied any political associations and any attacks. It was submitted that the applicant had not provided incorrect information and continued to rely on information provided in support of his application, including a letter from [Mr B] Advocate who is [an official], to [a] leader who represents the Shia community. It was submitted that this person would not provide false information. Photos of the applicant’s father were provided. A letter of support from a local Shia organisation was provided.
The submission stated that they had explained why the ‘[Location 1]’ FIR was not available, and that the sworn statement of the document identifies solely that the records do not exist and no other reason was specified. It was submitted that the [Location 1] FIR was ‘obtained by the father of the applicant when the applicant was in Australia. The Applicant had no hand in its acquisition nor its delivery and should thus not be held culpable for its possible fabrication.’ It was submitted that the police officer who attested that this FIR was a fabrication was never spoken to directly and that was an incomplete investigation. It was submitted that because a record was no in official records does not mean it is bogus.
It was submitted that the applicant has been diagnosed with depression and anxiety. A medical report was provided regarding this. It was stated that the symptoms were due to his case being under consideration of cancellation, having experienced significant shock when notified of the consideration of the cancellation of his visa. Some information about health services in Pakistan was provided, and it was submitted that ‘we find it difficult to imagine that the applicant will have access to the necessary health services to treat the conditions of his severity’.
It was submitted that the applicant was in a committed relationship with an Australian citizen, that separation would prove disastrous to the couple. It was submitted that ‘we ask the Department to consider the adverse effect that the applicant's return to Pakistan will have on her and her mental health. We attach Psychological report for her’.
It was submitted that the applicant had completed study in Australia and intended to do a [course of study]. He was registered with [a certain agency]. It was submitted that:
it is within the public interest to ensure that the Applicant remain in the country. The applicant did not arrive in Australia on a study visa as a pathway to apply for protection and then not continue studying. The applicant has continued his education and filled an occupation where Australia has a shortage. On the basis of his qualifications the applicant could have continued his studied and apply for skilled migration to become Permanent Resident. The applicant is a hardworking and honest individual his case should be considered on his merit, his credibility and the support provided with his application.
It was submitted the applicant has and will continue to suffer from persecution should he return to Pakistan.
The applicant at the hearing stated that his father was an honest man. However he had provided information to the Department at the [temporary] visa interview regarding his personal circumstances that were not true. The applicant stated that this was on the advice of an agent who had counselled that the visa would not be granted if all the information was provided.
The applicant provided photographs of his father at various events. It included information that the applicant’s father was in close proximity to significant people in the community, such as [a prominent person] of the Shia community in Pakistan. Photos were also provided showing the applicant with a man he described as [a senior official] of Tehreek-e Jaferia. The applicant continued to assert that his father had a significant role within the Shia community.
The Tribunal discussed with the applicant the statement of his father, putting it to him by way of the provisions of s424AA of the Migration Act. The Tribunal noted that there were numerous inconsistencies between the information as provided by the applicant’s father to the Department in an interview as held [in] June 2014 and as provided by the applicant in his own statement for protection and subsequent information provided in support of his protection claim. The applicant confirmed that the applicant’s father’s interview with Department Officers in Pakistan was after he had been granted a protection visa and that his father was aware that this visa had been granted.
The Tribunal identified in the applicant’s father’s interview that he had provided information that the situation was normal and he was not receiving any threats; provided information about a car incident where the applicant’s brother was coming back from college alone when the car was hit and his suffered a minor injury; that a FIR was lodged about this incident but that this was the only FIR filed with the police; that he has a link with Fikar-e Jafira but does not have any leadership position; no-one had ever shot at his family; and that there had not been any problems at his shop.
The Tribunal identified that this information contradicted the applicant’s statement to the Department with his application, in particular paragraph 6 which stated that the applicant had been attacked by intruders in his father’s shop; paragraph 9 where the applicant stated that that his family were driving back from their native village when they were attacked by a car causing serious injury; paragraphs 11 and 12 which state that the applicant’s father was [an official] of Tahreek Jaffaria, was well known and received threats; and paragraph 15 which stated that due to the applicant’s father’s profile it meant that the applicant was well-known and easily identifiable.
The applicant responded by stating that his father had been advised to not discuss his role or responsibility in order to get the visa. The applicant referred to the declaration as provided by the applicant’s father that he had been under pressure at the interview because he did not want the visa to be refused[8].
[8] AAT Folio 72
The Tribunal expressed its concern about the significant difference in information as provided by the applicant’s father, including when asked questions that discussed incidents that the applicant had claimed occurred. The Tribunal noted that the applicant’s father had been questioned directly about incidents that the applicant had claimed occurred, such as the attack at the shop, the attack on the family driving home from the village, and the shooting incident. The applicant’s father had stated that there had not been an incident at the shop, that no-one had ever shot at the family, and that the incident with the car had not included the family being seriously injured but had been a minor injury to his son returning from college. The account given by the applicant’s father was different to that as provided by the applicant in his statement.
The applicant again stated that his father was advised by the agent to withhold information and had been stressed at the time of the interview.
The Tribunal also discussed the FIRs that the applicant had provided by the applicant in support of his application. The applicant has provided three FIRs, the [Location 1] FIR and the [Location 2] FIR, both of which were identified by the Department in s107 Notices as bogus documents, and a third FIR which was lodged at the [Location 3] Police station [in] June 2011[9]. The [Location 1] FIR referenced the claimed incident [in] May 2010 where the applicant claimed to have been beaten at his father’s shop, the [Location 3] FIR was a report of an attack on the applicant’s family while driving [in] June 2011, and the [Location 2] report [in] July 2011 was of shots fired on the applicant’s brother. The applicant confirmed he had provided these documents to the Department with his protection application.
[9] AAT Folio 92
The Tribunal expressed its concern regarding these documents. The Tribunal expressed its concern that the [Location 1] FIR and the [Location 2] FIR were bogus documents and that the applicant had given these documents to the Department as part of his protection application, in breach of Section 103. The applicant stated he had been given these documents by his father and assumed they were genuine documents. The applicant’s agent in their submission had noted that the applicant had not had any part in the document’s acquisition or delivery and should not be held culpable for its delivery. The Tribunal noted the provision of s103 held the applicant responsible as he had provided these documents to the Department.

Regarding the [Location 1] FIR, the Tribunal noted the history of this document. It purports to be a police report made by the applicant after being attacked at his father’s shop in May 2010. The Department in July 2014 asked for confirmation of this FIR from the police station, to be advised that the file number as discussed by the Department was totally false and not registered in the FIR book of PS [Location 1].
This information was put to the applicant for comment by the Department. The applicant provided a letter from the police station that they had searched the FIR database and had found the record book, in which FIR [number] was present. It stated further that the record had been damaged and it was difficult to find.
The Tribunal noted the submissions as made by the applicant and his agent about this document. The Tribunal noted that the applicant had provided a number of reasons, including police corruption and malicious intent against Shia, fear of insurgents or the fallibility of the system in Pakistan. It was also submitted that the police officer who signed the document had not been personally interviewed and so it should stand as an incomplete investigation.
The Tribunal put adverse information to the applicant regarding this document. The Tribunal noted that the Department in November 2015 had attended the [Location 1] Police Station and confirmed that the FIR [number] existed and that it was issued [in] August 2010 regarding a different person and a different incident. The Tribunal noted that the investigation of the Department was completed by this site visit, where they had demonstrated that the [Location 1] FIR as provided by the applicant as part of his application was a false document. The applicant stated that he did not know why the police had provided his father with this false FIR.
Regarding the [Location 2] FIR, the Tribunal noted the history of this document. It purports to be a police report made by the applicant’s father in relation to shots being fired at the applicant’s brother in July 2011. The Department in July 2014 asked for confirmation of this FIR from the police station, and subsequently the Department went to the police station with two officers to inspect the FIR log book. It was determined that a FIR [number] existed, however the FIR as provided by the applicant in support of his application did not accord with that as recorded in the [Location 2] Police station FIR log book. The police stated that the FIR as provided by the applicant to the Department was fake.
In response to this information the applicant stated that the documents he had provided to the Department were legitimate. The applicant had previously also submitted that the intimidating presence of Lashkar can be seen as a realistic reason as to why a fabricated document would be handed to the applicant’s father. the police could also have prejudice against Shia.[10]
[10] DIBP Folio 91
The Tribunal noted country information to the applicant regarding document fraud in Pakistan. DFAT’s current advice on Pakistan states:
5.46 Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. For example, it is relatively simple to fraudulently produce police-issued FIRs using existing FIR book numbers. FIRs are hand-written standard forms. There is credible evidence of police in Pakistan accepting bribes to verify fraudulent FIRs. The existence of an FIR does not therefore constitute evidence that the described events actually occurred[11].
[11] DFAT Country Information Report Pakistan [15 January 2016]
The applicant stated that there was a third FIR which had not been investigated, and the Tribunal noted that the Department had not mentioned it in its s107 Notices. The Tribunal identified that the third FIR, issued by the [Location 3] Police Station, discussed the purported attack on the family in June 2011. The Tribunal noted that the applicant’s father had provided a significantly different account of this incident when asked about it by the Department at interview, referring to an incident happening to the applicant’s brother alone. The Tribunal noted that the applicant’s father had been prepared to discuss an incident regarding the applicant’s brother, but had not discussed this as a family incident, which was different to the applicant’s claims and this FIR. The Tribunal expressed its concern that the FIR again discussed a different set of information as compared to what the applicant’s father had mentioned in the interview, and that the Tribunal itself may have concerns about the genuineness of this FIR, in particular as there were serious concerns regarding the other to documents. The Tribunal noted that this was not an issue regarding non-compliance around the s107 notice but may be relevant in the discretionary consideration. The applicant claimed it was correct information.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notices was non-compliance with s101(b) (no incorrect information) and s103 (bogus documents not to be given).
The Tribunal considers that the applicant has provided bogus documents with his visa application. The Tribunal notes the investigation by the Department of Immigration in Pakistan with respect to the FIR [number] issued by the [Location 1] Police Station and FIR [number] issued by the [Location 2] Police Station. Departmental officers have personally sighted the FIR log book held at each police station and identified that the FIR in the log book does not accord to the respective FIRs as provided by the applicant to the Department as part of his protection application. The FIRs as provided by the applicant in support of his application are not copies of the documents as held by the police. That this has been independently verified by the Department is significant.
The Tribunal has considered the explanation of the applicant regarding these documents. He has maintained that they are genuine documents, as provided by his father to him. The Tribunal notes that the [Location 1] FIR purports to be a report from the applicant himself. His agent in submissions has provided possible reasons why the false documents may have been provided by the police to the applicant’s father[12], and claimed that the applicant should not be held culpable for the acquisition or delivery of these documents[13].
[12] DIBP Folio 158
[13] AAT Folio 82
With respect to the [Location 2] FIR, the applicant has sought to blame the police’s fear of Lashkar-e Jhangvi and police prejudice against Shia for providing a fabricated FIR to the applicant’s father.
The Tribunal has taken into account the statement of the applicant’s father in relation to these two incidents. The applicant’s father was asked whether there had been any incident at his shop, which he denied, and that his family had never been shot at. These were general questions put to the applicant’s father during the course of the interview, and he had responded accordingly. The responses as provided accord with the information that these two FIRs as provided by the applicant are false and do not report on genuine incidents.
As Departmental officers have viewed the log books directly, the claim by the applicant that the records of the Pakistan police were fallible; that a mistake could have been made; or that the police may have been afraid to report an incident involving terrorist groups is not correct. There is a FIR in both the log books of [Location 1] and [Location 2] Police Stations with the reference number as provided by the applicant. Both FIRs report on incidents that do not involve the applicant. The Reports do exist. They are not about the applicant. These reasons can be discounted as to why the FIRs provided by the applicant are false.
The Tribunal has considered the claim that there is some form of malicious intent towards the applicant upon filing the police report, stemming from the applicant’s religious or ethnic background. Again, the Tribunal has serious concerns about this given the true documentary evidence as found in the original log books. The documents as viewed by the Department in person are in the proper sequence of the log book. They are found in the original location to refer to different people and different incidents. The Tribunal considers the original FIR log books at the police stations as viewed by the Department are genuine documents, and have not been concocted or created by the police.
The applicant is claiming that some form of conspiracy has occurred leading to police officers doctoring FIRs and providing them to the applicant’s father. The Tribunal notes that the applicant has in fact relied upon these FIRs to support his claims for protection, to add weight to his claim of being attacked personally, and his brother having been shot at; it is only now when the genuineness of these documents are significantly questioned is he claiming some form of malicious activity on the provision of these documents. The applicant’s and his agent’s submissions do not take into account that the documents that the applicant himself has used in support of his application are the bogus documents. The Tribunal does not accept that the police in these police stations would create FIRs that support the applicant’s protection claims because they fear terrorist groups or have some form of malicious or prejudicial intent towards Shia and the applicant and his family directly. The applicant has claimed that there is some form of conspiracy that has led to these documents not being seen as genuine. The Tribunal considers that there is no conspiracy on the part of the authorities in relation to these FIRs.
The Tribunal does not accept that any act of malicious or prejudicial intent has occurred in the provision of these FIRs. The Tribunal notes the DFAT information as provided, which as discussed with the applicant, specifically notes the existence of fraudulently produced police-issued FIRs from Pakistan.
The Tribunal considers that these documents lodged by the applicant are examples of these fraudulently produced documents, that purports to have been, but were not, issued in respect of the applicant having been provided by the applicant’s father to the applicant to support his protection visa application. The two FIRs identified in the s107 Notices as provided by the applicant to the Department are counterfeit documents. They are bogus documents as defined by the Act.
Noting the provisions of s103 of the Migration Act, the Tribunal finds that the applicant, a non-citizen, has provided these bogus documents to a Departmental officer in support of his application for protection. The Tribunal considers that these documents were then used by the Department and Tribunal when considering the applicant’s protection claims, a function under the Migration Act.
The Tribunal finds that the applicant has not complied with s103 of the Migration Act.
The Tribunal has considered whether the applicant has provided incorrect information in breach of s101(b) of the Migration Act. The s107 notices identify incorrect information as provided by the applicant in his statement attached to his Protection application and dated [in] November 2011, in particular paragraphs 6, 8. 9, 11, 13 and 15[14]. The Tribunal has considered these paragraphs individually.
[14] DIBP Folio 138
Paragraph 6 refers to an incident [in] May 2010 when the applicant claims to have been attacked in his father’s shop by [number] men. The applicant claimed to have lodged the [Location 1] FIR in response to this incident.
The Tribunal notes that there is information that contradicts this information of the applicant. His father, when asked at his interview whether there had ever been any problem at his shop, said no. This contradicts directly what the applicant has claimed occurred. Further, as detailed above, the [Location 1] FIR that the applicant claims supports his claim, as lodged by him at the police station, is a bogus document. No such FIR was lodged at the police station.
The Tribunal has considered the explanation as provided by the applicant about this information and the concerns raised with this information. The applicant has claimed his father was advised not to raise contentious information by an agent. His father was also under mental pressure with a view that his [temporary] visa should not be rejected.
The Tribunal does not accept that this explains the response of the applicant’s father when asked about whether there had been any problems at his shop. The applicant’s father could have mentioned an incident from May 2010 in his discussion with the Department, but did not do so, in fact stated nothing had happened. The Tribunal does not accept that advice not to raise contentious information or the stress of the interview would lead to the applicant’s father to not mention an incident at his shop.
The false FIR further supports this finding. A bogus FIR has been created, purportedly a report by the applicant about this incident. The report has in fact never been made to the police, despite his claim. The Tribunal considers that the supports the conclusion that this incident did not occur.
The Tribunal finds that the applicant provided incorrect information in his protection application about being attacked in his father’s shop in May 2010.
Paragraphs 8 and 9 refer to an incident where the applicant claims his family were intentionally crashed into by another car as they were returning from their tribal village and his family were seriously injured.
The Tribunal notes that there is information that contradicts this information of the applicant. His father, when asked at his interview about a car accident describes an incident involving the applicant’s brother, returning from college alone, being in a car accident where he had a minor injury. This information is significantly different to that as provided by the applicant, despite it being about a car incident. The applicant’s father made no mention of any other incident that may have involved the whole family being seriously injured.
The Tribunal notes that the applicant has provided an FIR from June 2011 about this incident. This FIR has not been the subject of an investigation by the Department. However the Tribunal noted its concern with this document, given that the two other FIRs provided were false documents, and that the evidence of the applicant’s father about a car incident was quite different to that as stated in the June 2011 [Location 3] FIR.
The applicant stated that the FIR was genuine and the incident occurred.
The Tribunal does not accept that this incident occurred. The Tribunal notes that the applicant’s father did reference a car accident, but that it was a very different explanation compared to the applicant’s version of events. The Tribunal does not accept that the applicant’s father would concoct a different incident when discussing an incident of this nature with the Department. Had the incident the applicant claimed occurred to his family, the Tribunal considers that the applicant’s father would have mentioned it, including injuries suffered by the family. The Tribunal does not consider that the advice given to the applicant’s father by an agent or claimed nervousness at the interview would cause such a different set of circumstances around a similar fact incident to be mentioned by the applicant’s father.
The Tribunal finds that the applicant provided incorrect information in his protection application about his family being involved in a deliberate accident and seriously injured in June 2011. The Tribunal does not accept that this incident occurred in the manner as stated by the applicant.
Given the Tribunal does not accept this incident occurred, the Tribunal further finds that the FIR provided in support of this claim is not a genuine document. The Tribunal does not consider this to be a bogus document pursuant to s103 of the Migration Act as this document was not included in the s107 Notice. However as discussed with the applicant the Tribunal can take this into account with respect to the discretionary considerations.
Paragraph 13 refers to the applicant’s brother going to college on a bike and being shot at. The applicant claimed his father lodged the [Location 2] FIR in response to this incident.
The Tribunal notes that there is information that contradicts this information of the applicant. His father discussed at his interview an accident with the applicant’s brother and a friend on a motorbike got hurt. Asked if anyone had ever shot at his family with a gun the applicant’s father said no. This contradicts directly what the applicant has claimed occurred to his brother on the motorbike. Further, as detailed above, the [Location 2] FIR that the applicant claims supports his claim, as lodged by his father at the police station, is a bogus document. No such FIR was lodged at the police station.
The Tribunal considers that the evidence of the applicant’s father, that his brother had been in bike accident, is correct. However the explanation of what else happened in that incident is significantly different, his father stating that there never had been shots fired at any family member. The Tribunal considers that the applicant’s father would have included such a detail when discussing this incident, had it happened. He did not do so.
The Tribunal further notes that no FIR was in fact lodged about the incident, despite the applicant’s provision of the [Location 2] FIR. The Tribunal has found the [Location 2] FIR as provided by the applicant in support of his application is a bogus document.
The Tribunal finds that the applicant’s brother was in a bike accident. The Tribunal finds that no shots were fired at his brother. The Tribunal finds that the applicant provided incorrect information in his protection application about his brother being shot at in July 2011. The Tribunal does not accept that this incident occurred in the manner as stated by the applicant in his protection application.
Paragraphs 11 and 15 refer to the claim by the applicant that his father held a prominent position in the Shia community in Pakistan and that the applicant is identifiable through this association.
The Tribunal notes that there is information that contradicts this information of the applicant. His father, when asked at his interview about his role and responsibility within the Shia community identified he had a link to the community, but denied he had a leadership role or belonged to any political organization.

100. The applicant has provided material to support his application in this regard. This includes a photograph of the applicant’s father in close proximity to [a prominent person] of the Shia community in Pakistan, and other photos with other claimed prominent people. A letter from a Shia community in Australia stated that the applicant’s father was [an official] of Tehreek-e-Jaffaria Pakistan. The Tribunal attempted to contact [Mr B], the person who wrote a letter from Pakistan about the applicant, but was unable to contact them on the numbers as provided. The applicant had claimed that [Mr B] could identify his father and his role in the Shia community in Pakistan. The Tribunal noted pursuant to the provisions of s424AA that [Mr B] who had provided the letter of support to the applicant had been spoken to by the Department about such letters. This person told the Departmental officers that the letters of support have always followed the exact wording and were only issued when someone had gone overseas and claimed asylum. [Mr B] was not always personally acquainted with the subject of the letter. [Mr B] did not identify the applicant, however the information on the file also did not detail that [Mr B] was asked about the applicant and family specifically.

101. The Tribunal questioned the applicant in regard to his father’s claimed position. The applicant was able to identify and discuss the leadership of this group in Pakistan. The applicant was adamant in his evidence that his father had a position of responsibility as claimed in his application.
102. The Tribunal has considered the evidence as provided. The Tribunal notes that the evidence that the applicant’s father was not an influential in the Shia community came from the applicant’s own father at the interview. The Tribunal notes that the claim that the advisor advised that the father not to mention roles and responsibilities has some merit to it. In other instances of incorrect information, the applicant’s father has spoken about incidents that the applicant has mentioned, and provided a different account compared to that of the applicant. In other examples of incorrect information there are documents which were provided by the applicant which have been checked and found to be bogus. In this instance the applicant has been able to provide further documentary information to support his claim as made in the application.
103. Considering the evidence before it, the Tribunal finds that the applicant has not provided incorrect information regarding his father and the responsibility his father has within the Shia community in Pakistan.
104. The Tribunal finds that the applicant has provided incorrect information in breach of s101(b) of the Migration Act in paragraphs 6, 8 – 9 and 13 of the statement he provided with his application for protection, as specified in the s107 Notice [in] March 2016.
105. For these reasons, the Tribunal finds that there was non-compliance with 101(b) and s103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
106. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
107. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information

· the content of the genuine document (if any)

· 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

· the circumstances in which the non-compliance occurred

· the present circumstances of the visa holder

· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

· any other instances of non-compliance by the visa holder known to the Minister

· the time that has elapsed since the non-compliance

· any breaches of the law since the non-compliance and the seriousness of those breaches

· any contribution made by the holder to the community.

108. Whilst these factors 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. The Tribunal 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 the visa would have been granted if the correct information had been given, 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.
109. The Tribunal has considered these elements in its consideration as to whether the decision to exercise the discretion to cancel the applicant’s visa. The Tribunal has also considered some further circumstances in its deliberations as to whether the visa should be cancelled or not.
110. The Tribunal discussed the provisions of Regulation 2.41 with the applicant. The applicant, his partner and his representative provided submissions and information pertaining to the regulations. This included maintaining that the applicant feared harm returning to Pakistan. The applicant and his advisor discussed the protection claims of the applicant as a Shia in Pakistan. Submissions were made on the international obligations that may apply. Medical materials were also presented regarding the applicant and [Ms A].
2.41(a) – the correct information
111. With respect to 2.41(a), the Tribunal considers that the correct information is that the applicant’s father is [an official] of the Shia group Tahreek Jaffaria. The Tribunal considers that correct information also includes that the applicant was not attacked in his father’s shop; that a car did not intentionally crash into his family as they were driving home from the tribal village, and that no-one was seriously injured in this incident; and that no-one shot at the applicant’s brother. The Tribunal considers that the applicant has not provided the correct information regarding these matters.
2.41(b) – the content of the genuine document (if any)
112. The Tribunal has found that the applicant has provided two non-genuine documents as detailed in the s107 Notice, the [Location 1] and [Location 2] FIRs. As discussed at the hearing, the Department were able to visit these police stations and view the original documents as recorded. The FIRs as held at the police stations referred to different people and different circumstances, and not that of the applicant. The contents of the genuine FIRs do not reference the applicant.
2.41 (c) – whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or bogus document
113. The decision to grant the applicant a protection visa was strongly predicated on the claims of the applicant as made in his application and as supported by the documents he provided. His father’s responsibility within the Shia community accompanied by the claimed incidents that happened to the applicant and other family members was a significant factor in the decision of the Refugee Review Tribunal to determine that the applicant was owed protection.
114. The applicant provided two FIRs which have been determined to be bogus documents. These documents were provided by the applicant to support his claims for protection. The Tribunal further considers that the [Location 3] FIR provided by the applicant as part of his protection application but not specified in the s107 Notice is also a bogus document. This bogus documents purport to be a police report about an incident that occurred to the applicant’s family which was denied by the applicant’s father and a different situation explained. The applicant provided these documents to the Department in the course of his application for a protection visa.
115. The decision of the Tribunal to recognise the claims of the applicant which led to the grant of the protection visa has relied on the incorrect information for the grounds to be granted a protection visa. The Tribunal considers that, if the correct information about the applicant’s and his family’s personal experiences in Pakistan been provided, the applicant would not have been granted a protection visa.
2.41(d) – the circumstances in which the non-compliance occurred
116. The Tribunal considers that the applicant has knowingly provided incorrect information from the day he lodged his protection visa. He knowingly included claims that he and family members had been harmed when these incidents did not occur or did not occur in the manner as described. He knowingly provided bogus documents as part of his application as these documents described incidents that did not occur and have been determined to be bogus. He included incorrect information when he responded to the NOICC and continued to assert that the claims and documents provided were genuine. The applicant provided false claims to the Tribunal. The applicant permitted a submission based on the incorrect information and bogus documents to be provided on his behalf by his agent. The applicant maintained that the documents that he provided to the Department were genuine to the Tribunal, despite the information provided that demonstrated that they were false.
2.41 (e) – the present circumstances of the visa holder
117. The applicant has provided information that he has been a responsible member of the community, with employment at [Workplace 1] and is presently undertaking education in a [tertiary course]. He provided evidence to the Department of qualifications and education completed, and a letter from a teacher that the applicant is a polite, well-mannered, reliable and honest person. He is in an ongoing relationship with an Australian citizen since 2012 whom he provides support to. It was submitted that the applicant did not have to pursue the protection visa pathway to gain a permanent visa in Australia, that either the partner or skilled visa pathways would have been open to him.
118. The applicant provided a psychological report regarding his health[15]. He was suffering reactive depression and anxiety symptoms due to his case being under consideration for cancellation. The cause of his depression and anxiety was stated to be from the shock experienced when opening a letter from immigration, expecting it to be an invitation to a citizenship ceremony but finding it to be the first NOICC, dated [in] March 2015. He is receiving counselling and had been on medication, including [types of medication], though he has stopped this due to the side effects. He started seeing the psychologist in March 2015 after the receipt of the letter.
[15] AAT Folio 77-78
119. The Tribunal discussed medical services in Pakistan, which while not as good as in Australia, is available. The Tribunal notes the submission on this issue from the applicant’s agent. The applicant stated that he could not get proper treatment The Tribunal noted country information that Shia in Pakistan were not discriminated against, that no laws or government policies discriminate against Shias on the basis of religion. DFAT assesses that there is no specific discrimination against Shias in relation to health care. Access to high quality health care for all Pakistanis, including Shias, is variable and depends on their geographic location and financial resources[16]. The applicant comes from Islamabad, the capital of Pakistan which is a developed urban location. The applicant has stated his father has influence in the community, which would be of assistance should the applicant require medical assistance on return to Pakistan. The Tribunal stated it did not consider that the applicant would be denied treatment as he required it. The Tribunal considers that the applicant will be able to access the treatment he requires on return to Pakistan.
[16] DFAT Thematic Report on Shias in Pakistan, January 2016
120. The Tribunal discussed the relationship of the applicant and [Ms A] at the hearing. [Ms A] stated that she would not travel to Pakistan to be with the applicant, she had grown up in Australia and did not know about Pakistan. She did not feel safe going to Pakistan as she may be kidnapped, claiming that backpackers have been kidnapped and tortured. No supporting information about such incidents was provided, the Tribunal noting country information about Australian citizens being harmed in Pakistan related to a family dispute. She would like to maintain the relationship but it would be difficult in the separation and time differences. [Ms A] stated that neither his nor her family knew of the relationship, though they had been together since 2012. Both families do know that the applicant and [Ms A] are friends. [Ms A] stated that she had not told her family because she was concerned about their judgement, they may have doubts about the relationship. [Ms A] stated that they would like to get married when there is no stress or worries. [Ms A] stated she had converted to Islam in 2009.
121. [Ms A] stated that she was dependent the applicant. including for financial support, she was presently studying and was on Centrelink payments. She had been unwell, and provided a psychological report to the Tribunal, she had recently commenced seeing the same psychologist as the applicant[17]. She had had a [health condition] around the time of the visa cancellation [details deleted]. She would like to start a family with the applicant. She is very stressed and depressed at the thought of losing the applicant.
[17] AAT Folio 78-79
122. The Tribunal has given the circumstances of the relationship with [Ms A] some weight, as she is an Australian citizen who has developed a dependency on the applicant which would be placed under some strain should the applicant be required to leave Australia, and not be permitted to return for at least three years due to exclusion clauses that exist in the Migration Act. The Tribunal notes that the agent’s submission asked for this to be given some weight in the consideration.
2.41(f) – the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
123. The applicant has not conceded that incorrect information or bogus documents were provided by him with respect to protection application. The applicant and his agent have sought to blame others for the incorrect and bogus information, including the Pakistan police, whom they have respectively described as incompetent, inefficient, ineffective, afraid of terrorist groups or maliciously prejudiced against Shia in Pakistan and the applicant and his family in particular. The applicant and his agent have also blamed the Department of Immigration for not investigating the documents properly, when this has in fact occurred. The applicant described his father at the hearing as an honest man, yet in his evidence has depicted a person prepared to lie to the Department of Immigration at a formal interview regarding an entitlement to come to Australia, and has provided him with documents that are bogus. The information as provided by the applicant’s father, which the applicant has relied upon, has not been correct information.
2.41 (g) – any other instances of non-compliance by the visa holder known to the Minister
124. There is evidence that the applicant has been non-compliant in other circumstances. The applicant’s father was asked questions at interview regarding a car accident and provided an account of an instance where the applicant’s brother was involved in an accident on his return from college, when he was the only person in the car. The applicant’s father specifically was asked if there were any family members in the car and said no, and stated that that no-one in his family had been hurt or had to go to the hospital, he had never been to a hospital because of an accident. The [Location 3] FIR, provided to the Department as part of the applicant’s protection visa application, and provided to the Tribunal by the applicant at the hearing[18] purports to be an FIR lodged by the applicant’s father of a car accident which involved the applicant’s father and other family members requiring hospitalisation. The applicant’s father has denied such an incident occurred and in fact provided a different account. The Tribunal considers that the father’s evidence at the interview is the correct information. The [Location 3] FIR details an incident did not occur. . The [Location 3] FIR, which was not referenced in any s107 Notice, is a counterfeit document.
[18] AAT Folio 92
125. The applicant claimed at the hearing that this was a genuine document. It is not. The Tribunal considers this is another instance of non-compliance by the applicant.
2.41 (h) – the time that has elapsed since the non-compliance
126. It is almost 5 years since the non-compliance occurred, when the applicant lodged the documents that led to his being granted a protection visa.
2.41(j) – any breaches of the law since the non-compliance and the seriousness of those breaches
127. There is no information before the Tribunal that the applicant has breached Australian law in any aspect.
2.41(k) – any contribution made by the holder to the community
128. The applicant has stated that he was working in Australia, having provided assistance in [Workplace 2] while undertaking his education. He currently works providing advice at [Workplace 1].[19]. He belongs to the Shia community in Australia, and states he has a clean record in Australia.
[19] DIBP Folio 45
129. The submission of his agent as provided to the Tribunal notes the applicant’s qualifications and present study, with an intention to succeed as a [occupation] in Australia, and that it would be in the public interest to allow the applicant to remain in the country
130. While the Tribunal considers that the applicant has studied in Australia to improve himself, and he has a recent work history in Australia, and that he is a taxpayer (taken from his pay), it is very limited information with respect to the applicant’s contributions to the community. The applicant’s strongest association to the community appears to be that of his relationship with [Ms A], whom he has been with and supported since 2012.
Other relevant factors
131. The prescribed circumstances as listed under Reg 2.41 are considered above. However case law provides that this is not an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case. The Department’s procedural guide also requires delegates to take into account other factors, such as Australia’s international obligations or whether an automatic cancellation may have occurred under s.140 of the Act. The Tribunal has considered the following factors in addition to those as required under Reg 2.41.
Australia’s International Obligations
132. The Tribunal has considered the international obligations that may be relevant in the applicant’s circumstances. The applicant confirmed that he had been invited and attended an International Treaty Obligation Assessment interview with the Department. As detailed in the delegate’s decision, [in] March 2016 the DIBP Onshore Protection section determined that the applicant did not have a real chance of serious harm or a real risk of significant harm should be returned to Pakistan. As detailed in the delegate’s decision, the ITOA determined that the applicant was not a refugee; that Australia does not have non-refoulement obligations to the applicant under the Refugees Convention or under the Convention against Torture (CAT) or International Covenant on Civil and Political Rights (ICCPR)[20]. The ITOA noted in its assessment of these matters that the applicant was a Shia Muslim, had been involved with the ISO and that his father has an involvement with the TeJ.
[20] AAT Folio 16
133. The Tribunal notes that the applicant’s agents provided a submission on 4 April 2016 to the 3rd NOICC letter dated [in] March 2016, post the ITOA outcome. The submission noted some instances of violence against Shia Muslims in Pakistan[21].
[21] DIBP Folio 155 - 156
134. The Tribunal asked the applicant about the assessment and invited his comments on whether there were any relevant international obligations. The applicant stated that he did not agree with the ITOA and it did not reflect his evidence.
135. The Tribunal noted that the findings in the ITOA were consistent with the present country information that the level of sectarian violence in Pakistan had declined. The Tribunal noted the reports of DFAT in this regard, including the Thematic Report on Shia in Pakistan and the Country Information Report on Pakistan, both issued in January 2016, that Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015[22]. The Tribunal noted that the violence had not stopped completely, there were instances of violence, including sectarian violence in Pakistan but that it had diminished. The applicant expressed his concern that the violence would continue and he would be harmed on return to Pakistan.

[22] DFAT Country Information Report: Pakistan, January 2016
136. The Tribunal notes that the applicant’s present circumstances were considered by Onshore Protection in the ITOA, including taking into account the applicant’s religion and personal activities, and his father having a role in the TeJ, which potentially would lead to the applicant having a real chance of serious harm or real risk of significant harm on return to Pakistan. Noting these considerations, the assessment concluded that the applicant did not face a real chance or real risk of significant harm in his circumstances on return to Pakistan, and that no non-refoulement obligations arose from any relevant Treaty or Convention Australia was a party to. The post ITOA submission, while identifying incidents of violence in Pakistan, does not alter that determination.
137. The Tribunal discussed the applicant’s circumstances at the hearing, including his father’s role within the Shia community in Pakistan. The Tribunal has considered the relevant international obligations that apply in the applicant’s circumstances, and determines that Australia has no obligations pursuant to refugee and complementary protection provisions of the Migration Act, or that any of the provisions in the Refugees Convention, CAT or the ICCPR are relevant in the applicant’s circumstances.
138. The Tribunal does not consider that the effect of the cancellation would be to return the applicant to Pakistan in breach of Australia’s non-refoulement obligations, as arise out of UNCAT and the ICCPR; or in breach of any obligations arising under the Refugees Convention or refugee or complementary protection provisions as found in the Migration Act 1958.
Health circumstances of the applicant
139.   As detailed above in the discussion of the present circumstances of the applicant, he has provided information regarding his anxiety and depression, and that he is currently receiving counselling for these issues. He is not presently on any medication, and has previously been prescribed [medication].
140. The Tribunal discussed the treatment available in Pakistan. As detailed, location and means are a determinant in accessing medical support and services. The applicant comes from Islamabad, the capital of Pakistan, where there are a number of public and private hospitals and clinics, including mental health services. The Tribunal also notes that there are hospitals and clinics in nearby [Location 3]. The applicant has claimed his father is influential in the community, which will assist in accessing services as required. The Tribunal has noted above that Shia Muslims are not denied access to such services because of their religion.
141. The Tribunal considers that the applicant will have access to medical services as required to treat his current health concerns, including those exacerbated by his return to Pakistan which the Tribunal accepts would be a traumatic experience.
Integration into society
142. The Tribunal notes the evidence and submissions regarding the applicant’s integration into society, and the claimed current and future prospects for the applicant to provide to the community. As noted above, the applicant has integrated as a student and part time worker into the community, which the Tribunal is true of many temporary visa holders, such as international students. The applicant has in fact not provided much in relation to his integration into the community, aside from his education.
143. His integration into the community appears at its strongest in his relationship with [Ms A], which at the hearing appeared to be a mutual relationship. [Ms A] did appear to have a particular dependency on the applicant, which is supported by the very recent report as provided. The Tribunal has placed some weight on this aspect of this matter.
Effect of the cancellation
144. The Tribunal understands that the effect of affirming the cancellation would cause the applicant to be barred from applying for further visas for a period of time, and may lead to the applicant being detained as an unlawful non-citizen. The Tribunal notes that the applicant presented to the Tribunal a valid Pakistani passport, issued [in] 2014 in Australia and expiring in [2024]. The applicant has access to this passport and would be able to use it to depart from Australia at a time of his choosing, and so would not have to be detained for an extended period.
145. Therefore, the Tribunal finds that indefinite detention is not a possible consequence of the cancellation decision.
146. The Tribunal does note that the effect of the legal bar would cause the applicant to be excluded from making an application for a visa to return to Australia for some time. The applicant is likely to want to return in the future to maintain the relationship with [Ms A], as the Tribunal accepts that she is unlikely to go to Pakistan. The exclusion period would be difficult to the applicant and [Ms A]. The Tribunal places some weight on this consideration.
Conclusion
147. The Tribunal considers that the applicant provided incorrect information when he was going through the process of applying for a protection visa in Australia. He provided incorrect information about harm he personally experienced in Pakistan, and harm that his family experienced in Pakistan, and has continued to maintain this incorrect information. The Tribunal finds that the applicant has provided incorrect information in breach of s.101(b) of the Migration Act, and thus is in breach of this provision of the Act. The Tribunal considers this a significant matter and places significant weight on this aspect of this matter.
148. The applicant has also provided bogus documents as part of his application, and has maintained a claim that they are genuine. He has claimed that there has been some form of deception in Pakistan that has caused the issue with the genuineness or otherwise of the documents provided. The applicant has taken no responsibility for the fraudulent nature of the two FIRs that were provided in the course of his application that were the subject of the s107 notices. The Tribunal finds that the applicant, a non-citizen, has provided these bogus documents to a Departmental officer in support of his application for protection. The Tribunal considers that these documents were then used by the Department and Tribunal when considering the applicant’s protection claims, a function under the Migration Act. The Tribunal finds that the applicant has not complied with s103 of the Migration Act. The Tribunal considers this a significant matter and places significant weight on this aspect of this matter.
149. The applicant has also claimed that a further FIR, that was provided by the applicant in the course of his application for a protection visa, but was not put to the applicant in a s107 notice was genuine. The Tribunal’s determination that the claim that presages this FIR, issued regarding an attack on the family while driving, was incorrect information leads to the proper conclusion that this FIR is also false. As detailed above, the Tribunal has considered this in the discretionary element of this decision. The Tribunal expressed its concern that the applicant would continue to rely on bogus documents.
150. The Tribunal has considered that the international obligations as relevant to the applicant. Country information discussed with the applicant, at the hearing, and in the processes at the Department level supported a determination that that he will not be harmed on return to Pakistan. The Tribunal considers this a significant matter in this consideration.
151. The provision of incorrect information and bogus documents that led to a grant of a visa is a serious issue. The information is relevant to the application of Australia’s law with respect to permission to enter and reside in the Australian community. Departure from those laws must be taken seriously in any consideration as to whether a visa holder should be entitled to continue to hold that visa, and deliberate breaches of the law should be given significant scrutiny in determining whether the visa should remain. The applicant has provided this information, breaching two provisions of the Act in the process, and has taken no responsibility for the provision of this incorrect and false information.
152. In conclusion, after considering all the circumstances of this case, including the circumstances of the applicant will face returning to Pakistan, including his health concerns; and considering the interests of Australian citizens affected by this cancellation, in particular the circumstances of [Ms A], and after considering the prescribed factors pursuant to r.2.41 of the Regulations, and all other factors discussed, the Tribunal finds that the seriousness of the applicant’s actions to deliberately provide incorrect information and bogus documents in the application, without which he would not have been granted a permanent visa, outweigh the factors in favour of not cancelling the visa.
153. The Tribunal is conscious that the cancellation of a visa, in particular the nature of the visa under consideration in this matter, is a very serious matter. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notices given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
154. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Stuart Webb
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of 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.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice 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.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2016] AATA 4721

11 November 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice