1621222 (Refugee)

[2017] AATA 587

1621222 (Refugee) [2017] AATA 587 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621222

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Giles Short

DATE:21 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 21 March 2017 at 3:38pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Afghanistan – Non-Compliance – Incorrect information – Race – Hazara – Religion – Shia – Contribution to Australian community – Australia’s legal obligations

LEGISLATION

Migration Act 1958, ss 36(2B)(a), 101(b), 107, 109(1), 140

Migration Regulations 1994, Schedule 2, r 2.41

CASES

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
Saleem v Migration Review Tribunal [2004] FCA 234

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

INTRODUCTION

1. [The applicant] was granted a Subclass 866 (Protection) visa [in] July 2012. In a statutory declaration made [in] January 2012 to which he referred in his application for a protection visa made [in] June 2012 [the applicant] said that his father had been killed by the Taliban in front of his own eyes and that around nine months before the date of his statutory declaration his wife and their [children] had been killed when they had been travelling from Pakistan to Kabul to visit his wife’s family in Kabul. The Department of Immigration subsequently became aware that [the applicant]’s father was in Australia, having arrived here before him in 2010, and in 2013 [the applicant] himself sponsored a partner visa application by his wife and their [children]. In a notice issued under section 107 of the Migration Act 1958 [in] June 2016 a delegate of the Minister for Immigration informed [the applicant] that he considered that he had not complied with paragraph 101(b) of the Migration Act in that he had provided incorrect information in his application form for a protection visa. No issue arises in this review as to the validity of this notice. On [date] December 2016 a delegate of the Minister for Immigration cancelled [the applicant]’s visa and on 12 December 2016 [the applicant] applied to this Tribunal for review of the decision. A summary of the relevant law is set out at Attachment A. The issues in the review are whether there was non-compliance in the way described in the notice sent to [the applicant] and, if so, whether the Tribunal should exercise the discretion to cancel the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Was there non-compliance as described in the section 107 notice?

   [The applicant]’s application for a protection visa

2. [The applicant] is a citizen of Afghanistan.  He arrived in Australia in November 2011 by boat.  In his application for a protection visa he said that he was a member of the Hazara ethnic group and a Shia Muslim, that he had been born in [Town 1] in the Jaghori district of Ghazni province and that he had spent two periods living in Quetta in Pakistan before coming to Australia in 2011.  As referred to above, in his statutory declaration made [in] January 2012 he said that his father had been killed by the Taliban in front of his own eyes in approximately 2007/2008.  He said that his mother, his wife and his [children] had all been killed by [when] they had been travelling from Pakistan to Kabul to visit his wife’s family in Kabul around nine months before the date of his statutory declaration (so in around April or May 2011).  He said that his [a few of his siblings] had gone missing approximately 18 months before the date of his statutory declaration.  He said that he had a [sibling] with [number] dependent children living in Quetta.

3. [The applicant] said that he and his family had first left Afghanistan in 1995/1996 when he had been about [age] years old because it had not been safe for them, as Shia Hazaras, to remain there when the Taliban had been in power.  He said that he had returned to Afghanistan in approximately 2007/2008 and that his father had returned about one year before him.  He said that his father had been working as a [driver] from Kandahar to Kabul and that the company for which his father had been working had also carried out work for [foreigners] in Afghanistan.  He said that in around 2007/2008 his father had been targeted and killed by the Taliban.  He said that he had been with his father and they had been intercepted by four or five members of the Taliban who had accused his father of working with [foreigners] and had [killed him].  He said that he himself had been taken to a detainment facility where he had been kept for [days], interrogated and tortured before he had managed to escape by pushing bricks out of the wall of the room in which he had been being held and hitching a ride to Kabul.

4. [The applicant] said that after his escape he had remained for around two months in Kabul and that during this time he had assisted the Afghan [Army].  He said that he had then remained in Pakistan for four to five years but it had not been safe for him to remain there either because the Taliban were prevalent throughout Pakistan and he feared harm from them.  He said that he feared that if he returned to Afghanistan he would be killed or otherwise seriously harmed by the Taliban.  He said that he would not be able to access his land in Jaghori due to a land dispute which had taken place between his family and a [relative] of his father named [Mr A] in 1985.  He said that he did not think that he would be safe in Kabul as he would be targeted and killed by the Taliban and their associated insurgent groups.  He said that Shia Hazaras continued to be targeted in Kabul and he referred to the attack on the Ashura procession in Kabul in 2011.  He said that he did not have any family or relatives in Kabul and that, given his limited education and work experience, he did not think that he would be able to survive in Kabul.

   The Notice of Intention to Consider Cancellation and [the applicant]’s response

5. As referred to above, [the applicant] was granted a protection visa [in] July 2012. As mentioned above, and as referred to in the decision under review (a copy of which [the applicant] provided to the Tribunal along with his application for review), a person who could be identified as [the applicant]’s father by their common family details had in fact arrived in Australia before him in 2010. Furthermore, in 2013 [the applicant] sponsored a partner visa application by his wife and their [children]. In a ‘Notice of Intention to Consider Cancellation’ dated [June] 2016 a delegate of the Minister for Immigration informed [the applicant] that he considered that he had not complied with paragraph 101(b) of the Migration Act in that he had provided incorrect information in his application form for a protection visa. The notice referred specifically to the fact that [the applicant]’s father and his wife and children were not dead, as he had claimed.

6. Under cover of a response dated [July] 2016 [the applicant]’s then representatives produced a statutory declaration made by [the applicant] [in] July 2016 in which he said that it was true that his father and his wife and children had not been killed in Afghanistan but that he still feared that he would be killed or seriously harmed by the Taliban if he returned to Afghanistan.  He said that when he had made his statutory declaration in 2012 he had been told by someone from the same area as him that his wife and children had been killed.  He said that, when he had been in Kabul and had been making plans to leave Afghanistan, a person with whom he had been working who had recently visited Jaghori, where his wife and children had been living, had said something like ‘your family has all died’.  He said that after he had been granted a protection visa in 2012 he had contacted his mother’s family in Pakistan and had been told that his family were alive.  He said that he had not informed the Department of Immigration of this because he had not known the rules and he had not been aware that he had to tell them.  He said that he had not planned to hide the truth from the Department which was why he had applied for a partner visa for his wife and children.

7. [The applicant] said that the events which he had described in his statutory declaration had happened but it had not been his father but another driver named [Mr B] who had been killed.  He said that he had worked with [Mr B] on two or three occasions before the incident which he had described in which they had been intercepted by the Taliban.  He said that it was true that after he had escaped from the Taliban he had spent approximately two months in Kabul and he said that it had been during this time that he had been told that his wife and children had died.  He said that when he had been in [Country 1] on his way to Australia he had been advised by a smuggler to say that it had been his father who had been killed and he had taken this advice.  He said that he had not known that his father had been in Australia until after he himself had moved to [City 1] in around 2013.  He said that Shia Hazaras were still suffering at the hands of the Taliban and that the Afghan Government could not keep them safe.  He said that he had never meant to mislead or deceive the Department.

8. In their covering submission [the applicant]’s representatives submitted that the delegate should exercise his discretion not to cancel [the applicant]’s visa as failing to do so would contravene Australia’s non-refoulement obligations and would place [the applicant] at real risk of serious or significant harm. They submitted that [the applicant]’s answers in relation to his wife and children had not been incorrect because [the applicant] had genuinely believed that his wife and children had been dead. However section 100 of the Migration Act makes it clear that an answer to a question is incorrect even though the person who gave or provided the answer did not know that it was incorrect. [The applicant]’s representatives also submitted that the incorrect information particularised in the notice was that [the applicant] had said that his wife and children were deceased rather than the fact of them being deceased and they referred in this context to Saleem v Migration Review Tribunal [2004] FCA 234. However I consider that this misunderstands the decision of Allsop J (as he then was) in Saleem: it must be obvious that a notice under section 107 which relates to the ground in paragraph 101(b) (incorrect answers) will always relate to something which the visa holder has said but whether the answer is incorrect is to be judged by the objective evidence. In Saleem the visa holder had said that he and his wife had lived together and the section 107 notice suggested that they had never lived together. Similarly in the present case the question is whether it was correct, as [the applicant] said, that his father and his wife and children had all been killed.

9. [The applicant]’s representatives submitted that, even if the incorrect information were to be disregarded, [the applicant] had still been interrogated and tortured by the Taliban in 2007/2008.  They submitted that he had been subjected to harm because of his involvement with [a foreign] company and that he had been subject to discrimination as a result of his Hazara ethnicity and his Shia religion.  They submitted that Shia Hazaras had been subject to attacks in Afghanistan for a number of years.  They submitted that Hazaras travelling by road faced a greater risk of kidnapping than other ethnic groups, citing the DFAT Thematic Report - Hazaras in Afghanistan (8 February 2016), and they referred to the fact that DFAT had said in that report that there had been a spike in kidnappings and executions of Hazaras in 2015 in Ghazni and Zabul provinces and that ‘the security situation for Hazaras remains fluid’.[1]

   [1] DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraphs 2.14 and 2.15.

10. [The applicant]’s representatives referred to the fact that it had been reported that on 2 June 2016 at least 17 people from the Shia Hazara community had been kidnapped in northern Afghanistan.  They also submitted that returned asylum-seekers were targets for kidnapping for ransom and they referred to uncorroborated news reports suggesting that in 2014 a Hazara from Jaghori, Zainullah Naseri, had been abducted and tortured by the Taliban following his deportation from Australia.  They submitted that [the applicant] faced a significantly greater risk of harm by virtue of being a returned asylum-seeker from the West.  They referred to the fact that DFAT had said that most areas of Afghanistan outside Kabul and the Hazarajat generally had high levels of insecurity and were considered dangerous for people of all ethnicities, including Hazaras, and that the security situation in Ghazni province appeared to have deteriorated since the beginning of 2014, including in some of the majority-Hazara areas such as Jaghori district.[2]

    [2] DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraphs 2.23 and 2.24.

11. [In] September 2016 [the applicant]’s representatives provided the Department with an expert opinion from Professor William Maley dated 24 July 2016 in relation to the return of Hazaras to Afghanistan.  They noted that Professor Maley referred to travel advice issued by the Australian Department of Foreign Affairs and Trade and the US State Department warning Australians and US citizens against travel to Afghanistan because of the security situation and the high threat of terrorist attack.  They referred to the fact that Professor Maley said that it was essential to appreciate that the situation in Afghanistan was extremely fluid and that, like the DFAT Report, he mentioned the spike in kidnappings and executions of Hazaras in 2015, noting that UNAMA had reported that between 1 January and 31 December 2015 at least 146 members of the Hazara community had been abducted by anti-government elements in 20 separate incidents in Ghazni, Balkh, Sari Pul, Faryab, Uruzgan, Baghlan, Wardak, Jawzjan and Ghor provinces.  They noted that Professor Maley had also said that, with the withdrawal of the foreign forces, there was a great deal of apprehension amongst Afghans about the future of the country and that there was a grave risk that people who despised the Taliban would shift their support to them because they thought that they were going to come out on top anyway.  He said that this would create especially grave risks for Hazaras since targeting Hazaras might be a device whereby other groups might seek to establish their credentials in the eyes of the Taliban.

12. [The applicant]’s representatives referred to the fact that Professor Maley had said that, given the fluidity of the security situation, it was a serious mistake to conclude that Afghanistan was safe for Hazaras.  He mentioned in this context the suicide bomb attacks at Ashura in Kabul and Mazar-e-Sharif in December 2011 and the suicide bombing at a demonstration by Hazaras in Kabul on 23 July 2016 for which ISIS claimed responsibility.  He said that this attack displayed a commitment to attack on the basis of religious identity and that it highlighted particular dangers for Hazaras who were overwhelmingly Shiite and physically distinctive.  He said that this attack meant that it was completely unsustainable to say, as DFAT had done in its February 2016 report, that the threat of conflict-related violence faced by Hazaras was similar to that faced by other ethnic groups and that DFAT was not aware of any credible evidence that everyday Hazaras were currently being systematically targeted on the basis of their Shia religion.

13. [The applicant]’s representatives also referred to the fact that Professor Maley had mentioned the abduction and torture of Zainullah Naseri in 2014 and the killing of an Australian citizen of Afghan Hazara origin, Sayed Habib Musawi, in September 2014, and that he had mentioned that a 2013 study highlighted how difficult reintegration could be, even if people had associates in the region to which they were returned.  They highlighted the fact that Professor Maley had said that the mere fact that there might be people of similar ethnic background living in a potential relocation destination did not overcome this problem since ethnic identities did not in and of themselves give rise to the tie of personal affinity and reciprocity that arose from family connections.  Professor Maley said that a Hazara who was returned to a region where he lacked strong cultural connections was likely to end up destitute or to be exposed to gross exploitation or criminal predation.  [The applicant]’s representatives reiterated their submission that his protection visa should not be cancelled.

14. [In] November 2016 [the applicant]’s representatives provided the Department with a media report in relation to the suicide attack on a Shia mosque in Kabul on 21 November 2016 which killed at least 32 civilians and injured more than 50 others.  The media report noted that this incident followed two similar attacks in October 2016 against Shia Muslim congregations during Ashura that had claimed at least 29 civilian lives, for one of which Islamic State of Iran and the Levant (ISIL/Daesh) had claimed responsibility.  [The applicant]’s representatives noted that the DFAT Thematic Report on Security Conditions in Afghanistan: 1 January - 31 August 2016 (5 September 2016) had said at paragraph 2.9 that it was too early to say if the attack on Shia Hazaras on 23 July 2016 (mentioned above) was an isolated incident or if it represented a change in the modus operandi of insurgents by introducing a sectarian dimension to attacks or if it heralded the beginning of a targeted and sustained campaign in Afghanistan by groups pledging allegiance to ISIL.  [The applicant]’s representatives submitted that these more recent attacks were evidence that the attack on 23 July 2016 had not been an isolated incident but instead part of a targeted and sustained campaign against Shias in Kabul.

    The decision to cancel [the applicant]’s visa and submissions on review

15. As referred to above, [in] December 2016 a delegate of the Minister for Immigration proceeded to cancel [the applicant]’s visa on the basis that he had not complied with paragraph 101(b) of the Migration Act in that he had provided incorrect information in his application form for a protection visa and on 12 December 2016 [the applicant] applied to the Tribunal for review of the decision. [The applicant] was initially invited to attend a hearing in [City 1] on 8 February 2017. On 16 January 2017 his current representatives advised the Tribunal that he had moved to [City 2] over the Christmas period. Accordingly he was invited to attend a hearing in [City 2] on 17 February 2017. On 6 February 2017 [the applicant]’s representatives requested that the hearing be further postponed on the basis that they had serious concerns for [the applicant]’s mental health and that they had had considerable difficulty working with him. They said that he would be seeing a psychologist [in] February 2017 and that they did not want to finalise his statement until he had met with the psychologist. The hearing was therefore further postponed until 17 March 2017.

16. Under cover of a submission dated 2 March 2017 [the applicant]’s representatives produced a statutory declaration made by him [in] February 2017 in which he said that he had made numerous errors in his application for a protection visa which he attributed to the enormous pressure he had been under when he had first arrived in Australia, his culture, his fear, what people had told him to say and his lack of understanding of Australian laws and regulations.  He said that both his parents were still alive and that his father was living in [City 1] while his mother was living with his wife and children and one of his [siblings] in Quetta.  He said that the [partner] of the [sibling] who he had said in his application had been [spouseless] was in fact alive, in Australia and trying to sponsor his [sibling] to come here.  He said that he had [number] other [siblings] whom he had not mentioned in his application for a protection via, one of whom was also in Australia while the [others] were in Pakistan.  He said that he also had a [sibling] in Australia who he had said in his application was his [relative].  He said that the [siblings] whom he had said were missing had not in fact been his [siblings] but his wife’s [siblings] and they had not been missing: they were in [Country 2].

1. [The applicant] said that when he had been about [age] years old he and his family had moved to Ghazni City and that he had helped his father who had had a shop there.  He said that he had not gone to Mazar-e-Sharif with his family as he had said in his application for a protection visa: he had gone to [Country 2] to work.  He said that he had remained there for four to five years before travelling to Pakistan in approximately 1998.  He said that he had met his wife in Pakistan and they had married in [year].  He confirmed that they had [number] children.  His representatives produced Afghan Citizen - Proof of Registration cards for him and his wife and [number] of their children but [the applicant] said that the dates of birth on these cards were wrong.  He said that after his marriage he had gone back to [Country 2] to work for several years.  He said that after he had returned to Pakistan he had worked [in] Quetta but Quetta had been becoming unsafe so he had returned to Afghanistan to work.

2. [The applicant] said that it was not correct that he had been working in Afghanistan with his father.  He said that he had found work as a truck [driver] through friends and that the [company] for which he had worked had often transported goods between Kabul and Kandahar for the [foreign military].  He confirmed that he had been intercepted by the Taliban when working with a driver named [Mr B], that [Mr B] had been killed, and that after he himself had escaped he had worked for the Afghan Army in Kabul for six to eight weeks.  He said that he had then arranged with a people smuggler to fly to [Country 3] with the intention of coming to Australia but he had been detained in [Country 3] and imprisoned for two years before being deported to Afghanistan.  He said that from the airport in Kabul he had travelled to Pakistan to see his wife and children.  He said that he had found the situation there so dangerous that he had only stayed for a few months before returning to Afghanistan.  He said that someone had lent him some money to pay a people smuggler to come to Australia.

3. In contrast to what he had said in his statutory declaration made [in] July 2016 he said that it had been when he had been in [Country 1] that someone had told him that his wife and children had been killed [when] they had been on their way to see his wife’s parents in Kabul.  He said that he had been severely affected by the torture he had suffered at the hands of the Taliban and his time in prison in [Country 3] and also by this shocking news.  He said that when he had been in immigration detention in Australia he had received treatment for his mental health issues but after he had been released he had not received further treatment.  He said that at the time he had been released from immigration detention his father had been in Pakistan visiting his mother and that it had been at this time that he had been told that his wife and children were still alive.  He said that he could not return to Afghanistan because he had already been targeted by the Taliban and had escaped from them.  He said that if they caught him they would kill him, especially if they also discovered that he had been living in a western country.  He said that all the Hazaras were being targeted by the Taliban and now also by Daesh and that the Afghan Government could not offer them any protection.  He said that the roads were controlled by the Taliban and that even in Kabul Hazaras were not safe.

4. [The applicant]’s representatives also produced a report dated [March] 2017 from a psychologist in Adelaide who said that he had interviewed [the applicant] [in] February 2017 and that in his opinion [the applicant] was suffering from a severe depressive condition and that his symptom pattern was indicative of a post-traumatic stress syndrome.  [The applicant]’s representatives also produced a letter dated [August] 2010 written to them by the same psychologist relating to the psychological assessment of victims of trauma and the impact of trauma on memory.  They also produced a record of a telephone interview which they had conducted with [the applicant]’s wife in Pakistan in which she said that she had been born in Ghazni province, that she had met her husband in Pakistan and that she did not know the dates of birth of her children but that they were in [school levels].  She said that when her husband had left Pakistan to go to [Country 3] she had been five months pregnant and when he had returned their youngest child had been walking.  She said that he had not stayed long when he had returned because it was not safe in Quetta but he had been back to see them twice from Australia.  [The applicant]’s representatives also produced a record of a telephone interview which they had conducted with [the applicant]’s mother who said that the family had moved from [Town 1] to Ghazni to Kabul and then to Mazar-e-Sharif before returning to Ghazni but that when [the applicant] had been at the age when he would have gone into the army he had left to go to [Country 2].

5. In their covering submission [the applicant]’s representatives asked the Tribunal to note [the applicant]’s claims of past torture and trauma and to give weight to his remorse and the explanations he had given for providing incorrect information. They submitted that, based on the information provided by [the applicant]’s wife regarding the years the children were in at school, their approximate years of birth would be [years]. They submitted that it had been in around 1994 that [the applicant] had gone to [Country 2] to work and that it had been in 1998 that he had gone to Pakistan where he had met and married his wife. They said that [the applicant] accepted that there had been non-compliance as described in the section 107 notice in relation to the claim that his father had been killed but not in relation to the claim that his wife and children had been killed because he had believed this to be correct at the time. However, as referred to above, section 100 of the Migration Act makes it clear that an answer to a question is incorrect even though the person who gave or provided the answer did not know that it was incorrect.

6. [The applicant]’s representatives submitted that he had been granted a protection visa on the basis of his claimed fear of persecution as a Shia Hazara and that the decision to grant him a visa would not have been adversely affected if he had told the truth in his application.  They submitted that he had been in immigration detention at the time he had made his application for a protection visa and that he claimed that he had been in very poor mental health but they said that they had not been able to confirm this as yet from IHMS records.  They said that it was understandable that there would be discrepancies and omissions in his story due to his mental health.  [The applicant]’s representatives produced a work reference from a former employer in [Australia] and a letter dated [February] 2016 (apparently a mistake for 2017 since the letter gives his address in [state]) from [a Hazara association] stating that he was a member of the Hazara community, that they believed that he was an honest and trustworthy person, that the situation of Hazara people in Afghanistan was deteriorating and that [the applicant]’s life would be at risk if he returned from a western country.  [The applicant]’s representatives said that prior to the cancellation of his visa [the applicant] had been working and that he had been involved in social and cultural activities in the Afghan community.

7. [The applicant]’s representatives produced an updated expert opinion from Professor William Maley dated 22 November 2016 which is substantially identical with that dated 24 July 2016 except that it refers to the attacks on Shia mosques in Kabul on 11 October and 21 November 2016 mentioned above.  With regard to the sentence in the DFAT Thematic Report on Security Conditions in Afghanistan: 1 January - 31 August 2016 (5 September 2016) suggesting that it was too early to say if the attack on Shia Hazaras on 23 July 2016 was an isolated incident or if it represented a change in the modus operandi of insurgents by introducing a sectarian dimension to attacks, Professor Maley said that in light of the subsequent attacks it was untenable to treat the attack on 23 July 2016 as an isolated incident.  [The applicant]’s representatives submitted that the DFAT reports issued in 2015 and February 2016 were out-dated and that the report issued in September 2016 largely repeated findings made by UNAMA.

8. [The applicant]’s representatives quoted advice provided to the Refugee Review Tribunal by the Director of the Ghazni Rural Support Program in March 2013 suggesting that Hazaras travelling to and from districts like Jaghori had to pass through Taliban-dominated areas and were subject to ‘ethnic targeting’ by the Taliban who saw all Hazaras as the agents of foreigners and collaborators with the occupiers.  They also quoted from a report by UNAMA suggesting that in several cases anti-government elements had tracked victims of abduction after their release but, with respect, it is difficult to see how this can be relevant in [the applicant]’s case, given that his claimed abduction took place almost ten years ago.  They also submitted that it was highly likely that his true identity as a former captive would be discovered but once again this seems far-fetched given the lapse of time.  They referred to information suggesting that the Taliban had been able to track down ‘well known or well positioned opponents’ but once again this information would not appear to be applicable in [the applicant]’s case.  They submitted that the Taliban could come to know the identity of an ‘ordinary traveller’ from informants but the example they gave related to a former Provincial member of Ghazni province who could hardly be regarded as an ‘ordinary traveller’.  They also submitted that [the applicant] would be imputed to be a spy but they referred to no evidence in support of this submission.

9. [The applicant]’s representatives quoted from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (19 April 2016) with regard to the situation of internally displaced persons in Kabul.  They referred to the threat posed by Islamic State in Kabul and they also quoted comments by a representative of Human Rights Watch to the effect that the recent targeted attacks on Shia Hazaras underscored their increasing vulnerability, even in big cities under firm government control.  They also quoted a paragraph from the UNHCR Eligibility Guidelines stating that anti-government elements reportedly targeted individuals who were perceived to have adopted values and/or appearances associated with western countries.  [The applicant]’s representatives submitted that relocation was unlikely to be able to provide durable safety for [the applicant], referring to DFAT’s advice that no part of the country could be considered free from conflict-related violence and that attacks continued in Kabul against targets linked to the Afghan Government and international security forces.

10. Under cover of an email message dated 11 March 2017 [the applicant]’s representatives produced a statutory declaration made by [the applicant]’s [brother] [in] March 2017 in which he said that he had visited [the applicant] in prison in [Country 3] on three occasions, in [2009] and [2010].  [The applicant]’s representatives said that they were endeavouring to obtain a copy of his brother’s passport to confirm these trips to [Country 3].

    Discussion of the issues

11. At the hearing before me on 17 March 2017 [the applicant] confirmed that he was a citizen of Afghanistan and that his wife and his [children] were living in Quetta in Pakistan along with his mother while his father was in Australia.  He said that his wife’s parents had been in [Country 2] for six or seven or eight years.  He confirmed that he came from [Town 1] in the Jaghori district of Ghazni province and that he had moved to Ghazni City when he had been about [age] years old.  He said that he had not returned to [Town 1] after that.  He confirmed that, as he had said in his application for a protection visa, he had lived in [a town] in the Jaghori district for around two months in 1998/1999 but that apart from this he had not been back to the Jaghori district at all since he had left when he had been [age] years old.

12. [The applicant] confirmed that when he had been around [age] years old he had gone back to Afghanistan from Pakistan to work.  He confirmed that he had worked as a truck [driver], that he had been captured by the Taliban but he had escaped and that he had then spent six to eight weeks in Kabul.  He said that one of his friends had worked for the army and he had stayed with this friend.  He said that this had been towards the airport in Kabul.  I noted that in his application for a protection visa he had said that he had spent this period in [Town 2] in Kabul.  [The applicant] said that he had gone to [Town 2] but then he had been taken from there to the place where he had stayed with his friend.

13. [The applicant] confirmed that he had then paid a smuggler to go to Australia but that he had been detained at the airport in [Country 3] and he had spent two years in prison in [Country 3].  He confirmed that he had then been deported to Afghanistan and from there he had travelled back to Pakistan by road to see his family but that he had only stayed in Pakistan for a few months and he had then returned to Afghanistan by car.  He said that he had returned thinking of working there and that he had gone to Kabul.  He said that on this occasion he had stayed with acquaintances from his area of Afghanistan in [Town 2] and [Town 3].  He said that he had been doing [work].  He said that for a while he had been doing [Occupation 1] but he had done whatever had come up.  He said that on this occasion he had been in Afghanistan for approximately a year to two years, not longer.

14. I explained to [the applicant] that the first question I had to look at was whether he had given incorrect answers in his application for a protection visa in the way described in the notice that had been sent to him in relation to the cancellation of his visa. I noted that in that application he had referred to a statutory declaration which he had made in which he had said that his father had been killed by the Taliban. [The applicant] confirmed that he accepted that this had been incorrect. I referred to the fact that he had also said in that statutory declaration that his wife and children had been killed. [The applicant] confirmed that he had been told this by another person and that at the time he had given this information he had believed it to be true. I explained to him that for the purposes of the Migration Act it did not matter whether he had known this information to be incorrect or not (see section 100).

15. [The applicant] confirmed that, as he had said in his statutory declaration which he had made with the assistance of his current representatives on 9 February 2017, he had been told that his wife and children had been killed when he had been in [Country 1] on his way to Australia.  I referred to the fact that in the statutory declaration which he had made [in] July 2016 with the assistance of his previous representatives he had said that he had been told this when he had been in Kabul after he had escaped from the Taliban.  He had said that he had been working with a person who had come from the same area as him in Jaghori and who had recently visited Jaghori, where his wife and children had been living at the time, and that this person had said something like ‘your family has all died’.  [The applicant] said that his wife’s parents’ house had been in Kabul and he repeated that he had been in [Country 1] when he had been told that his family had died.  He said that his wife had lived with her parents in Jaghori before they had been married but after their marriage she had not lived in Jaghori.

16. I explained to [the applicant] that if I found that he had given incorrect answers in his application this did not mean that his visa had to be cancelled: I had a discretion as to whether his visa should be cancelled or not and in exercising this discretion I was required to have regard to certain matters.  I noted that his representatives had made submissions in relation to these matters so I did not propose to go through all of them with him at the hearing.  I noted that one of the matters was the circumstances in which the non-compliance had occurred and that he had said that he had been advised by a smuggler to claim that it had been his father who had been killed by the Taliban.  [The applicant] said that he had told the smuggler that he thought that it would be better if he just said that he was a Hazara and a Shia because everyone knew that Hazaras and Shias were at risk but the smuggler had stressed that it would be better for him if he claimed that his father had been killed.  He said that he had not travelled on such a journey before and he had not known the rules.  He said that everybody had been telling him something.

17. I indicated to [the applicant] that another matter I had to consider was his present circumstances which I noted really related to his circumstances before his visa had been cancelled.  He said that before his visa had been cancelled he had been working as [Occupation 1] and that he had been doing this for approximately four years.  I noted that his representatives had also produced a letter from a [company of another industry].  [The applicant] said that he had worked for this company [when] he had first come to Australia, before he had started working as [Occupation 1].  He said that he had had his own [company] in partnership with another man.  He said that after his visa had been cancelled a fellow Afghan for whom he had done work had refused to pay him $[amount] that this man had owed him.  He said that his workers were asking him for their money and he did not have money of his own to pay them.  [The applicant] confirmed that since he had come to Australia he had been back to Pakistan on three occasions to see his family.  He said that after his visa had been cancelled his sleeping and everything had worsened.

18. I indicated to [the applicant] that another matter I had to consider was any contribution he had made to the community.  [The applicant] said that he had not committed any offences and he had done whatever he could for people.  He said that in five years he had only had one demerit point on his driver’s licence.  I noted that his representatives had said that he had been involved in social and cultural activities in the Afghan community.  [The applicant] said that when there had been a party or celebration he had assisted the community by taking the chairs to the venue or taking them back.  He said that he had performed whatever activities had been assigned to him for the community.  I noted that a letter had been produced from an organisation in [City 2] but that as I understood it [the applicant] had spent most of his time in [City 1].  [The applicant] said that there had not been a particular organisation with which he had been involved in [City 1].  He said that he performed his daily prayers but that he had not attended a mosque in Australia.  He said that he had attended celebrations of Muharram in [City 1] and once in [City 2].

19. I explained to [the applicant] that government policy also required that I consider certain additional matters and that one of these matters was whether the cancellation would lead to his removal from Australia in breach of Australia’s obligations under various international agreements not to return people to countries where they would face persecution or other forms of harm such as death or torture.  I noted once again that his representatives had made submissions in relation to these matters but I invited him to say anything he wanted in relation to his removal from Australia to Afghanistan.  [The applicant] said that everyone was aware that even the capital, Kabul, was not safe, let alone other places.  He said that he looked at the news on Facebook.  He said that it was on the news that the government itself was co-operating with the Taliban and Daesh and that it had a hand in things which were happening.  He said that when incidents took place, instead of taking people to court and keeping them accountable, the government was promoting them and giving them high-ranking positions.  He said that whatever happened to the people who were truly serving the country happened.

1. [The applicant] added that it had also been said in the United Nations and in the USA that Hazara officers or generals were usually sent to the frontlines.  He said that this was a discriminatory policy.  He said that if they were working in cities they were simply treated as paid labour.  I asked him who had been saying that the government was co-operating with the Taliban and Daesh.  [The applicant] said that this was being told by the news, by the civil society and by the United Nations: everyone was saying this.  I put to him that I did not think that the United Nations would be saying this.  [The applicant] said that he had heard this.  He said that in the areas that were populated by the Hazaras they came inside the mosques during the prayers and exploded themselves.  He said that this was in the capital.  I indicated that I was aware that Daesh had claimed responsibility for a number of attacks on mosques in the last six months.

2. [The applicant]’s representative at the hearing [said] that they had talked outside the hearing about the address to the United Nations in New York by Sima Samar, the head of the Afghan Human Rights Commission, about the possibility of persuading western governments not to send Hazaras back to Afghanistan at this time because of the complete instability of the country.  She referred to the fact that she had met Professor William Maley during the week before the hearing, noting that he was on his way back to Afghanistan again and that he had had plenty to say about the ongoing worsening situation for Hazaras in the country.  She submitted that [the applicant] should be viewed as a victim rather than an instigator of defrauding the Australian Government.  She submitted that his mental health had not been great but he had been able to work in a skilled job and to create a business and the fact that he had been left out of pocket by $[amount] just added to his stress levels.

3. [The representative] said that she had been involved in a lot of these cancellations and that she did not think that in this case anything that [the applicant] had embellished would have made any difference to the outcome of his application for a protection visa: he would most likely have been granted a protection visa whether he had said that his father and his wife and children were dead or not.  She submitted that this should be viewed as [the applicant]’s second attempt to come to Australia, the first having resulted in him spending two years in a [Country 3] gaol which from all reports sounded as if it had been an extremely harsh and hard time.  She submitted that whilst not condoning people saying the wrong thing in their protection visa applications one could see how on the second time around he would have been desperate and he would have taken any advice to enhance the possibility of him staying in this country.  She submitted that for [the applicant] it was extremely serious to have his visa cancelled because he would not be able to apply for a further protection visa.

4. I asked [the applicant] if there was anything he wanted to say before I closed the hearing.  He said that his family had UNHCR registration cards in Quetta but these days the authorities were coming there nightly conducting raids and taking people away to deport them.  He said that also the Hazaras in whichever country to which they had gone had never committed any offence: they had not done anything wrong and they had kept doing service to these countries and working hard.  He said that even in their own country they had not committed any felonies and they did not have any dangerous individual members who had harmed anyone.

   Conclusion

5. As referred to above, [the applicant] admits that he gave incorrect information in the statutory declaration to which he referred in his application for a protection visa in that he said that his father had been killed. He has said, and I accept, that he genuinely believed at the time that his wife and their [children] had also been killed but, as referred to above, section 100 of the Migration Act stipulates that an answer is incorrect even though the person who gave the answer did not know that it was incorrect. I note that I accept that it is not correct that, as was said in his statutory declaration made [in] July 2016 (as referred to in paragraph 6 above), he was told when he was in Kabul after having escaped from the Taliban that his family had all died. I consider that this must have been a misunderstanding and I note in this connection that the statutory declaration was prepared within tight time constraints and that his current representatives said that they had had difficulty taking a statement from him. I accept that the statutory declaration made on 9 February 2017 which he prepared with their assistance gives an accurate record of his movements, supplemented in one or two respects by his oral evidence at the hearing before me. Given that his father and his wife and their [children] had not been killed, I find that there was non-compliance by [the applicant] with paragraph 101(b) of the Migration Act in the way described in the notice sent to him under section 107 of the Migration Act.

   Should the visa be cancelled?

6. As I have found that there was non-compliance in the way described in the section 107 notice, it is necessary to consider whether to exercise the discretion to cancel the visa under subsection 109(1) of the Migration Act. I have considered [the applicant]’s response to the section 107 notice and I have also had regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

7. The correct information: As referred to above, [the applicant] admits that the correct information is that both his father and his wife and their [children] are alive.

8. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the section 107 notice relied solely on section 101, not on section 103 (relating to bogus documents).

9. 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: As referred to above, [the applicant]’s representatives have submitted that he would have been granted a protection visa even if he had said that it had been a man named [Mr B] rather than his father who had been killed and that he genuinely believed at the time that his wife and children had been killed.  While it is true that, as referred to in the decision under review, the delegate who made the decision that [the applicant] was owed protection obligations referred to his claims that his father and his wife and children had been killed, I accept that, as submitted, these claims played no role in her assessment of the risk to him if he returned to Afghanistan which was grounded in her acceptance that he had been identified by the Taliban as someone engaged in working for [foreigners] and that he had personally been detained, tortured and threatened with death in that regard.

10. The circumstances in which the non-compliance occurred: As referred to above, [the applicant] has said, and I accept, that he genuinely believed that his wife and children had been killed when he made his statutory declaration.  In his statutory declaration made [in] July 2016 he said that when he had been in [Country 1] on his way to Australia he had been advised by a smuggler to say that it had been his father who had been killed and he had taken this advice.  At the hearing before me he said that he had told the smuggler that he thought that it would be better if he just said that he was a Hazara and a Shia because everyone knew that Hazaras and Shias were at risk but the smuggler had stressed that it would be better for him if he claimed that his father had been killed.  He said that he had not travelled on such a journey before and he had not known the rules.  He said that everybody had been telling him something.

11. In his statutory declaration made on 9 February 2017 [the applicant] said that he had made numerous errors in his application for a protection visa which he attributed to the enormous pressure he had been under when he had first arrived in Australia, his culture, his fear, what people had told him to say and his lack of understanding of Australian laws and regulations.  He said that at the time he had arrived in Australia he had been severely affected by the torture he had suffered at the hands of the Taliban, his time in prison in `[Country 3] and also by the shocking news in relation to his family.  His representatives produced a report from a psychologist saying that in his opinion [the applicant] was suffering from a severe depressive condition and that his symptom pattern was indicative of a post-traumatic stress syndrome.  In their covering submission [the applicant]’s representatives asked the Tribunal to note [the applicant]’s claims of past torture and trauma and to give weight to his remorse and the explanations he had given for providing incorrect information.  I accept that, as he has said, he relied on bad advice from a smuggler in claiming in his application that his father had been killed.

12. The present circumstances of the visa holder: I accept that after his arrival in Australia [the applicant] worked initially as [occupation] and then as [Occupation 1].  I accept that before his visa was cancelled he had his own [company] in partnership with another man.  I accept that the cancellation of his visa has had a devastating impact on him, resulting in a fellow Afghan refusing to pay him $[amount] for work he had carried out.  At the hearing before me he became visibly distressed when talking about this and I accept the opinion of the psychologist that he is suffering from a severe depressive condition.  I accept that, as he said, since his visa has been cancelled his sleeping and everything has worsened.

13. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: As referred to above, [the applicant] himself sponsored a partner visa application by his wife and their [children] in 2013 and I accept that, as he said in his statutory declaration made [in] July 2016, he would have informed the Department of Immigration that he had found out that his family were alive if he had known the rules. In response to the section 107 notice he admitted that he had not told the truth about his father being killed.

14. Any other instances of non-compliance by the visa holder known to the Minister: On the basis of the evidence before me there are no other instances of non-compliance by [the applicant] known to the Minister.

15. The time that has elapsed since the non-compliance: As referred to above, the relevant non-compliance took place when [the applicant] made his application for a protection visa in June 2012 so over four and a half years have elapsed since then.

16. Any breaches of the law since the non-compliance and the seriousness of those breaches: On the basis of the evidence before me [the applicant] has not breached the law since the relevant non-compliance.

17. Any contribution made by the holder to the community: I accept that before his visa was cancelled [the applicant] had established a business which was providing employment to others within the community.  I also accept that he has been involved in social and cultural activities in the Afghan community.

18. Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations under relevant international agreements: I accept that [the applicant] is a Hazara and a Shia Muslim and that he comes originally from [Town 1] in the Jaghori district of Ghazni province although he has not been back there since he was [age] years old and his family moved to Ghazni City.  While Ghazni province is estimated to be 49 per cent Pashtun and 46 per cent Hazara,[3] Jaghori district is almost entirely inhabited by Hazaras.[4]  The European Asylum Support Office (EASO) reported in November 2016 that security in the province of Ghazni as a whole was fragile and that anti-government elements posed a major challenge, targeting the Afghan national security forces, district governors, tribal leaders and NGO workers.  It said that civilians had also suffered heavy casualties but it referred to only a single incident in Jaghori district, in November 2015, when Uzbek members of Islamic State abducted Hazara people from Jaghori district and killed them in Zabul province.[5]  The United Nations Assistance Mission in Afghanistan (UNAMA) reported in February 2017 that, in contrast to 2015, it had documented no incidents of the abduction of Hazara civilians in Ghazni province in 2016.  It said that sources reported that abductions in previously affected areas might have been deterred by the establishment of security check-posts by Afghan national security forces.[6]

    [3] Gina Bergh with Christian Dennys and Idrees Zaman, ‘Conflict analysis: Jaghori and Malistan districts, Ghazni province’, CPAU, April 2009, page 5.

    [4] Finnish Immigration Service, ‘The Current Situation in the Jaghori District of Ghazni’, 10 December 2009, page 1.

    [5] EASO, EASO Country of Origin Information Report - Afghanistan: Security Situation, November 2016, pages 94-97.

    [6] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, page 68.

19. It is normal for people from Jaghori to travel to other countries for work.[7]  While [the applicant] might arguably be able to live in the Jaghori district without fear of being persecuted or otherwise suffering harm for reasons of his race as a Hazara, his religion as a Shia Muslim or the period he has spent living in a western country, as the Finnish Immigration Service observed in 2009, the main problem concerning Jaghori district is getting in and out of it.[8]  The European Asylum Support Office reported in November 2016 that anti-government elements had blocked the main roads in Ghazni province several times, especially the strategic Kabul-Kandahar highway.[9]  The Australian Department of Foreign Affairs and Trade reported in February 2016 that insecurity compounded the poor condition of Afghanistan’s limited road network, particularly those roads that passed through areas contested by insurgents.  It said that the Taliban, other anti-government groups and criminal elements targeted the national highway and secondary roads, and that unofficial checkpoints manned by armed insurgents were common.  It said that official checkpoints operated by Afghan National Army (ANA) or Afghan National Police (ANP) with the aim of improving the security on the roads could be operated by poorly-trained, poorly-paid personnel, and that corruption was common.  It said in this context that there were reports that, in some cases, Hazara truck drivers were prevented from passing through these checkpoints and that only Pashtun drivers are allowed to pass.[10]

    [7] Finnish Immigration Service, ‘The Current Situation in the Jaghori District of Ghazni’, 10 December 2009, page 1.

    [8] Finnish Immigration Service, ‘The Current Situation in the Jaghori District of Ghazni’, 10 December 2009, page 3.

    [9] EASO, EASO Country of Origin Information Report - Afghanistan: Security Situation, November 2016, page 94.

    [10] DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraph 2.26.

20. The Department assessed that Hazaras travelling by road between Kabul and the Hazarajat faced a greater risk than other ethnic groups and that, for example, if a bus with a mixture of ethnic groups was stopped in these areas, Hazaras were more likely to be selected for kidnapping or violence than Pashtun passengers.[11]  Having regard to this assessment I accept that there is a real chance that the applicant will be targeted for kidnapping or violence for reasons of his race as a Hazara while travelling on the roads between Kabul and the Jaghori district as he would have to do in order to return to his birthplace in the Jaghori district.  For that reason I have not pursued the question of whether he would also be at risk there because of the land dispute between his family and a [relative] of his father named [Mr A] which he mentioned in his statutory declaration made [in] January 2012.

    [11] DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraph 2.33.

21. The policy set out in the Department’s Procedures Advice Manual in relation to the interpretation of Australia’s non-refoulement obligations under the Refugees Convention and Protocol, the Convention Against Torture and the International Covenant on Civil and Political Rights in the context of visa cancellations (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’) indicates that decision-makers should refer to the PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines and Refugee Law Guidelines for guidance on Australia’s non-refoulement obligations. Those guidelines refer to Australia’s domestic law and recognise that, whereas the test for refugee assessments under paragraph 5J(1)(c) of the Migration Act is whether a person has a real chance of persecution relating to all areas of a receiving country, this test is significantly different to the test used for complementary protection assessments and that, in particular, in this latter context, decision-makers are required to consider for the purposes of paragraph 36(2B)(a) of the Migration Act whether it would be reasonable, in the sense of practicable, for a non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. The guidelines state that decision makers may draw guidance from the case law which had developed on the internal relocation principle as developed in the context of the Refugees Convention because paragraph 36(2B)(a) was intended to reflect that case law and that this approach was endorsed in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614.[12]

    [12] See ‘PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines’, Section 37, Internal relocation, and see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [36]-[40] per Marshall J.

22. In light of this guidance in the interpretation of the government’s policy I have therefore considered whether it would be reasonable, in the sense of practicable, for [the applicant] to relocate to an area of Afghanistan where there would not be a real risk that he will suffer significant harm.  It is relevant in this context that sources agree that, as the Australian Department of Foreign Affairs and Trade observed in its most recent report, the security situation in Afghanistan continues to deteriorate.[13]  In his most recent report to the UN Security Council the UN Secretary-General said that:

    ‘The overall security situation continued to deteriorate throughout 2016 and into 2017. The United Nations recorded 23,712 security incidents, an almost 5 per cent increase compared with 2015 and the highest number in a single year ever recorded by UNAMA. While the fighting remained particularly prevalent in the five southern and eastern provinces of Helmand, Nangarhar, Kandahar, Kunar and Ghazni, where 50 per cent of all incidents were recorded, the conflict spread in geographical scope, with increasing Taliban activities in northern and north -eastern Afghanistan, as well as in Farah in the west. The Taliban continued to put pressure on the Government’s control of the provincial capitals of Farah, Kunduz, Lashkar Gah, Helmand Province, and Tirin Kot, Uruzgan Province. International and Afghan air support and the deployment of Afghan special forces remained critical to the holding of these cities. In late November, the Taliban captured the Ghorak district administrative centre of Kandahar Province, bringing to 14 the total number of districts claimed by the Taliban to be under their control. In addition, the control of a number of districts has been contested, with some reports claiming an increase in the percentage of Afghan territory under Taliban influence. The fighting evolved further in character as the number of armed clashes between the Taliban and Government security forces increased by 22 per cent in 2016, accounting for 63 per cent of all security incidents, the majority of which were initiated by the Taliban. Improvised explosive device attacks continued to decline in 2016, however, and were 25 per cent lower than during the previous year.’[14]

    [13] DFAT Thematic Report on Security Conditions in Afghanistan: 1 January - 31 August 2016, 5 September 2016, paragraph 2.1.

    [14] UN Secretary-General, ‘The situation in Afghanistan and its implications for international peace and security’, 3 March 2017, A/71/826–S/2017/189, paragraph 13.

1. With regard to sectarian attacks on the Shia Muslim minority, the United Nations Assistance Mission in Afghanistan (UNAMA) reported in its Annual Report on Protection of Civilians in Armed Conflict: 2016 that:

   ‘In 2016, the emerging pattern of deliberate sectarian attacks against the Shia Muslim religious minority, mainly claimed by Daesh/ISKP, raised grave concerns regarding the right to freedom of religion or belief and the protection of minorities.

   In the second half of the year, UNAMA recorded five separate attacks against Shia Muslim mosques and gatherings:

   ·On 23 July 2016, two suicide attackers targeted a peaceful demonstration in Deh Mazang Square of Kabul city protesting a decision relating to a cross-country power line project, killing at least 85 civilians and injuring 413 others – the deadliest attack recorded by UNAMA since 2001. Nearly all victims were men and members of the Shia Muslim religious minority of Hazara ethnicity. On the same day, Daesh/ISKP, claimed responsibility for the attacks through a Twitter account affiliated with the Amaq News agency, linking the attacks to the reports of Hazaras’ alleged participation in fighting in Syria on the side of the government. Anti-Shia Muslim statements were delivered in the same message. A Truth-Finding and Investigative Committee was appointed by the President on 25 July 2016 following this incident, but it has not yet published any report.

   ·On 11 October 2016, the day of Ashura, a major Shia Muslim commemoration, an attacker disguised in an Afghan national security force uniform entered the Karte Sakhi Mosque in Kabul, opened fire at Shia worshippers and used a hand grenade, killing 19 civilians and injuring 60 others. The attack caused minor damage to the mosque. Daesh/ISKP also claimed responsibility for this attack by issuing another online statement containing hate language targeting the Shia Muslim religious minority.

   ·On 12 October 2016, an explosion occurred at the entrance of a mosque where Shia worshippers had gathered for the religious commemoration in Khojagholak area of Balkh district, Balkh province. This incident killed 18 civilians and injured 67 others, including 36 children, and also caused minor damage to the gate. No group claimed responsibility for this incident.

   ·On 21 November 2016, a suicide attack killed at least 40 civilians and injured 74 others, including many children, at the Baqer-ul Ulum mosque in Kabul during observance of the religious ceremony of Arbaeen, a commemoration on the 40th day after Ashura. The suicide bomber detonated the device at the mosque, deliberately targeting the large congregation composed mainly of worshippers from the Shia Muslim religious minority.123 Daesh/ISKP claimed responsibility for this attack using derogatory expressions and calling for violence against Shia Muslims, as it called in earlier statements.

   ·On 22 November 2016, Anti-Government Elements detonated a remote-controlled IED that injured four Shia Muslim worshippers at the Razaiya Mosque in Herat city. No group claimed responsibility for this incident.

   The attacks against the four mosques accounted for the almost six-fold increase in civilian casualties from attacks deliberately targeting religious persons and places of worship observed in 2016. UNAMA documented 377 civilian casualties (86 deaths and 291 injured) from such attacks in general, a 573 per cent increase from 2015.’[15]

   [15] UNAMA, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016, February 2017, pages 34-35, omitting footnotes.

2. In considering whether it would be reasonable in all [the applicant]’s circumstances to expect him to relocate to some other part of Afghanistan, in particular to a major city like Kabul or Mazar-e-Sharif, it is relevant to take into account the availability of traditional support mechanisms provided by members of an applicant’s extended family or members of his or her ethnic group.  In this connection UNHCR observed in its Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (19 April 2016) that:

   ‘Applicants may be able to fall back on the support of members of their extended family or members of their larger ethnic group. However, the existence of such traditional support networks can be assumed to weigh in favour of the reasonableness of a proposed IFA/IRA [internal flight or relocation alternative] only when the members of the applicant’s extended family or wider ethnic group are assessed to be willing and able to provide genuine support to the applicant in practice, taking into account Afghanistan’s low humanitarian and developmental indicators and the wider economic constraints affecting large segments of the population. Moreover, the presence of members of the same ethnic background as the applicant in the proposed area of relocation cannot by itself be taken as evidence that the applicant would be able to benefit from meaningful support from such communities in the absence of specific pre-existing social relations connecting the applicant to individual members of the ethnic community in question. The extent to which applicants are able to rely on family networks in the proposed area of relocation also has to be considered in light of the reported stigma and discrimination against those who return to Afghanistan after spending time abroad.’[16]

   [16] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 19 April 2016, page 84, omitting footnotes.

3. As referred to above, Professor Maley mentioned in his two expert opinions that a 2013 study highlighted how difficult reintegration could be, even if people had associates in the region to which they were returned.  He said that the mere fact that there might be people of similar ethnic background living in a potential relocation destination did not overcome this problem since ethnic identities did not in and of themselves give rise to the tie of personal affinity and reciprocity that arose from family connections.  Professor Maley said that a Hazara who was returned to a region where he lacked strong cultural connections was likely to end up destitute or to be exposed to gross exploitation or criminal predation.

4. The Australian Department of Foreign Affairs and Trade advised in its September 2015 DFAT Thematic Report - Conditions in Kabul that Kabul’s size and diversity meant that there were large communities of almost all ethnic, linguistic and religious groups in the city and it assessed that there were generally options for members of most ethnic and religious minorities to relocate from other parts of Afghanistan to relative safety in Kabul.  It cautioned, however, that this relocation was more likely to be successful where an individual travelled as part of a larger group or had established networks that could assist with the provision of basic necessities.  It said that in practice a lack of financial resources and a lack of employment opportunities were the greatest constraints on successful internal relocation and that this was compounded by Kabul’s relatively high cost of living, particularly for housing. The Department said that internal relocation to urban areas was generally more successful for single men of working age, ‘provided they are able to make use of family or tribal networks’.[17]  It its DFAT Country Information Report - Afghanistan (18 September 2015) the Department said:

   ‘5.15 Resettlement and reintegration in areas of origin can be difficult because of the ongoing security situation. As is commonly the case in developing countries, the bulk of internal movement within Afghanistan is from rural areas to urban areas. This is true for both IDPs and people moving for economic or educational reasons. Large urban areas such as Kabul are home to mixed ethnic and religious communities, and offer relatively better opportunities for employment, access to services and state protection than rural areas. Nonetheless, Kabul remains one of the poorest and most dangerous cities in the world (see the 18 September 2015 DFAT Thematic Report on Conditions in Kabul). Goods and services, including accommodation, can be significantly more expensive in urban areas, making it difficult for some people to relocate there, particularly unaccompanied women and children. The recent slowdown in economic growth is also having an impact on the availability of employment opportunities.

   5.16 Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society. Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of sustenance. For this reason, people tend to move in large groups, often with several other families. This approach increases the resilience of the members of the group, but can result in rapid growth in population for particular areas and a strain on local infrastructure and services. Large groups of internal migrants often live in informal settlements in poor conditions, with high rates of unemployment and under-employment, limited access to water and a lack of basic infrastructure.’[18]

   [17] DFAT Thematic Report - Conditions in Kabul, 18 September 2015, paragraphs 3.10-3.13.

   [18] DFAT Country Information Report - Afghanistan, 18 September 2015, paragraphs 5.15-5.16.

5. In its DFAT Thematic Report - Hazaras in Afghanistan (8 February 2016) the Department repeated many of these comments:

   ‘4.3 Large urban areas in Afghanistan are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than many other areas. As Afghanistan’s largest urban centre, Kabul provides the most viable option for many people for internal relocation and resettlement. This applies to those internally displaced by conflict and natural disasters, economic migrants and returnees to Afghanistan. Relatively good economic opportunities (compared to the rest of Afghanistan) and greater levels of security are important motivations for migration to Kabul. However, despite having better conditions than the rest of the country, Kabul remains one of the poorest cities in the world and regularly experiences serious security incidents.

   ...

   4.6 Traditional extended family and tribal community structures of Afghan society are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence. People tend to move and settle in large groups, often with several other families, for this reason. As a consequence, large groups of people can arrive in a particular area, resulting in rapid population growth and a strain on infrastructure and services.

   4.7 Kabul’s size and diversity mean that there are large communities of almost all ethnic, linguistic and religious groups present in the city, including Hazaras. Given the growth of Kabul’s population since 2001, many individuals may have members of their extended family in Kabul who can assist with their relocation. Ethnic-based violence in Kabul is rare. Relative ethnic homogeneity in the Hazara-dominated areas of Bamiyan and Daykundi means that these areas are also relatively free of ethnic-based violence.

   4.8 DFAT assesses that, notwithstanding road safety concerns and issues with security in Afghanistan, there are generally options available for members of most ethnic and religious minorities, including Hazaras, to relocate from other parts of Afghanistan to relative safety in Kabul. This relocation is more likely to be successful where the individual travels as part of a larger group, or has already established networks that can assist with the provision of basic necessities.

   4.9 In practice, DFAT assesses that a lack of financial resources and lack of employment opportunities are the greatest constraints on successful internal relocation. This is compounded in Kabul by the city’s relatively high cost of living, particularly the cost of housing.

   4.10 Internal relocation is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.’[19]

   [19] DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraphs 4.3, 4.6-4.10.

6. In terms of the population pressures in Kabul it is relevant that, as [the applicant] himself noted, the Government of Pakistan is now deporting large numbers of undocumented Afghans to Afghanistan.  In his most recent report to the UN Security Council the UN Secretary-General reported that:

   ‘39. The humanitarian situation further deteriorated in 2016 and into 2017, with record numbers of new, conflict-induced internal displacements, a situation compounded by the return of more than 620,000 refugees and undocumented Afghans from Pakistan. The number of newly internally displaced persons in 2016 was recorded as 651,751 in 32 of 34 provinces, with more than 45 per cent of them displaced between October and December. This is the highest number of internally displaced persons recorded in the region, with 220 districts recording conflict-induced displacement and a 38 per cent overall increase compared with 2015. To date in 2017, 12,863 persons have been newly displaced, with 17 of 34 provinces already recording some level of forced displacement. The United Nations and non-governmental organizations provided humanitarian assistance, including cash, health services and supplies, shelter, food and non-food items, to the displaced populations.

   40. The situation was further exacerbated during the second half of 2016 by the surge in the number of refugees returning through the voluntary repatriation programme of the Office of the United Nations High Commissioner for Refugees (UNHCR). As at 31 December, a total of 370,102 Afghans had registered as refugees returned from Pakistan, 2,290 returned from Iran (Islamic Republic of) and 185 returned from other countries. UNHCR suspended activities at encashment centres for the winter period on 15 December. At a tripartite meeting of Afghanistan, Pakistan and UNHCR on 15 February 2017, it was decided to resume the repatriation programme on 1 April. According to the results of extensive monitoring, returnees spent their reintegration cash grant ($400 per person on average) on meeting their immediate needs. Typically, cash grants were expended within two to three months.

   41. The deportation and return of undocumented Afghans from Pakistan also increased significantly during the second half of 2016, with more than 214,000 arrivals, compared with 34,000 for the first six months of the year, for a total of 248,189 arrivals in 2016. This trend continued in 2017; as at 11 February, 8,300 undocumented Afghans had returned from Pakistan, close to the figure for the entire first quarter of 2016 (9,335 arrivals). The rate of arrivals remained steady from the Islamic Republic of Iran, averaging 30,000 to 40,000 per month. This trend also continued in 2017, with 39,151 undocumented Afghans returning from the Islamic Republic of Iran as at 11 February 2017. Of those from Pakistan, 7,563 had spontaneously returned and 737 had been deported. Of those from the Islamic Republic of Iran, 20,912 had spontaneously returned and 18,239 had been deported. Returnees from Pakistan continue to cite increased policing and uncertainty over their status in Pakistan, including fear of eviction, as the main reasons for leaving. The numbers of returnees are anticipated to increase when the UNHCR repatriation programme resumes.

   42. Many of the newly internally displaced and returnee Afghans in Afghanistan remained vulnerable to secondary or repeated displacement owing to the growing severity and reach of the conflict and a rise in commodity prices, as well as a scarcity of services and jobs in areas of high returnee settlement, in particular in the Baghlan, Kabul, Kunduz Laghman and Nangarhar Provinces. Although the large urban centres of Jalalabad and Kabul became a destination of choice, in particular among undocumented returnees, the absorption capacity in urban settings, in particular in terms of access to land, health care and education, was limited. A policy framework for returnees and internally displaced persons that addresses issues such as harmonization of support, free choice of settlement, the provision of identity cards and an action plan for returnees and internally displaced persons was adopted on 14 February.’[20]

   [20] UN Secretary-General, ‘The situation in Afghanistan and its implications for international peace and security’, 3 March 2017, A/71/826–S/2017/189, paragraphs 39-42.

7. [The applicant] gave evidence at the hearing before me that he had lived and worked in Kabul on two previous occasions, briefly before he went to [Country 3] and for approximately a year to two years, not longer, before he left to come to Australia in 2011.  He said that on the latter occasion he had stayed with acquaintances from his area of Afghanistan in [Town 2] and [Town 3] and that he had been doing [work].  He said that for a while he had been doing [Occupation 1] but he had done whatever had come up.  I accept that [the applicant] has shown since his arrival in Australia that he is an enterprising, hardworking and resourceful person but I consider it relevant that, as the Australian Department of Foreign Affairs and Trade has advised, conditions in Kabul have significantly worsened since he was last there in 2011.  I accept that the recent slowdown in economic growth has had an impact on economic opportunities and that the rapid growth in population in Kabul in particular is placing strain on local infrastructure and services, meaning that people in [the applicant]’s situation may be forced to live in informal settlements with high rates of unemployment and under-employment, limited access to water and a lack of basic infrastructure.[21]

   [21] DFAT Country Information Report - Afghanistan, 18 September 2015, paragraphs 5.15 and 5.16.

8. I accept that [the applicant] has no extended family network in Kabul and that, as advised by UNHCR and Professor Maley, the presence of people of the same ethnic background as him in Kabul cannot by itself be taken as evidence that he would be able to benefit from meaningful support from such communities in the absence of specific pre-existing social relations connecting him to individual members of the ethnic community in question.  I also consider it relevant that, while [the applicant] would be returning to Afghanistan on his own, he is responsible for the support of his wife and children who are currently living in Quetta.  His situation is not directly comparable to that of the single men of working age referred to by the Australian Department of Foreign Affairs and Trade for whom internal relocation is generally more successful and even in their case the Department notes that this success is predicated on the availability of family or tribal networks.[22]

   [22] DFAT Thematic Report - Conditions in Kabul, 18 September 2015, paragraph 3.13; DFAT Country Information Report - Afghanistan, 18 September 2015, paragraph 5.20; DFAT Thematic Report - Hazaras in Afghanistan, 8 February 2016, paragraph 4.10.

9. While [the applicant] indicated that he had not attended a mosque in Australia he said that he had attended celebrations of Muharram in [City 1] and once in [City 2].  In his statutory declaration made [in] January 2012 he referred to the suicide bomb attacks at Ashura in Kabul and Mazar-e-Sharif in 2011 also mentioned by Professor Maley and it is apparent from the attack on 23 July 2016 in Kabul that Shia Hazaras are not just at risk of such attacks in Shia mosques but also at other gatherings.  I accept that the series of attacks referred to in paragraph 58 above represents a significant change in the security situation in Afghanistan, and in Kabul in particular, by introducing a sectarian dimension to the attacks.  Having regard to the deteriorating security situation, the slowdown in economic growth, the population pressures in Kabul and other cities from the growth in the number of internally displaced people (including undocumented Afghans from Pakistan) and the lack of basic infrastructure, I conclude that it would not be reasonable, in the sense of practicable, for [the applicant] in all his personal circumstances to relocate to some part of Afghanistan other than his home in the Jaghori district where there would not be a real risk that he will suffer significant harm.  I accept, therefore that the cancellation of [the applicant]’s visa will lead to his removal from Australia in breach of Australia’s non-refoulement obligations.

1. Other matters: On the evidence before me there are no persons in Australia whose visas would or may be cancelled under section 140 of the Act as a result of the cancellation of [the applicant]’s visa nor are there any children in Australia whose interests would be affected by the cancellation. I accept that as a consequence of the cancellation of his visa [the applicant] will become an unlawful non-citizen and that he will be liable to be detained. Since I accept that he is unwilling, owing to his fear of being persecuted, to return to Afghanistan, I accept that indefinite detention is a likely consequence of the cancellation decision.

2. Conclusion: Having given careful consideration to all of the matters set out above, I have concluded that [the applicant]’s visa should not be cancelled.  As I have said above, I accept that he would have been granted a protection visa even if he had not given incorrect information to the Department of Immigration.  I accept that he genuinely believed at the time he made his application that his wife and children had been killed and that he acted on bad advice in claiming that his father had been killed.  I give weight to his mental state at the time and also to the contribution which he has subsequently made to the Australian community.  In the circumstances of the present case I give great weight to the fact that I have concluded that his removal from Australia to Afghanistan would be in breach of Australia’s obligations under various international agreements not to remove a person to a country where there is a real chance or a real risk that they will be persecuted or that they will face other forms of significant harm.  I have also concluded that a likely consequence of the cancellation of his visa would therefore be his indefinite detention in Australia since he is unwilling, owing to his fear of being persecuted, to return to Afghanistan.  I consider that these matters outweigh any considerations supporting the cancellation of his visa.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

4. Subsection 109(1) of the Migration Act 1958 allows the Minister to cancel a visa if the visa holder has failed to comply with sections 101, 102, 103, 104 or 105 or with subsection 107(2) of the Migration 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 their circumstances.

5. The exercise of the cancellation power under section 109 of the Migration Act is conditional on the Minister issuing a valid notice to the visa holder under section 107, giving particulars of the alleged non-compliance. If the Tribunal finds that there was non-compliance in the way described in the section 107 notice the Tribunal must proceed to consider whether to exercise the discretion to cancel the visa under subsection 109(1). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the section 107 notice and it must have regard to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations 1994. These are as follows:

   ·     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.

6. 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: Minister for Immigration and Citizenship 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 Procedures Advice Manual (‘PAM3: Act – Visa cancellation - General visa cancellation powers - (s109, s116, s128, s134B and s140)’). This policy requires that delegates should also consider matters such as whether there are persons in Australia whose visas would, or may, be automatically cancelled under section 140 of the Migration Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation and whether there are mandatory legal consequences to a cancellation decision.