1621309 (Refugee)
[2017] AATA 226
•2 February 2017
1621309 (Refugee) [2017] AATA 226 (2 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621309
COUNTRY OF REFERENCE: Pakistan
MEMBER:Robert Titterton
DATE:2 February 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 02 February 2017 at 4:37pm
CATCHWORDS
Refugee – Protection visa – Pakistan - Cancellation – Political – Membership of MQM – Religion – Barelvi – Incorrect information provided in protection visa application –
Reasonable credible explanations for return to trips to Pakistan since visa granted – Funeral of murdered father – Mother’s illness – Ongoing fear of harm
LEGISLATION
Migration Act 1958, ss 5, 65, 97-101, 107, 107(2)
Migration Regulations 1994, Schedule 2
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 the applicant had provided incorrect information in his application for a protection visa. 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 31 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent, a solicitor, [name].
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Preliminary
The Tribunal notes that the applicant had made a Freedom of Information request in relation to the Departmental file. On the file appeared a Certificate Regarding Disclosure of Certain Information to the Administrative Appeals Tribunal issued pursuant to s 375A of the Act.
It is appropriate to address the validity of the certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. Three reasons were given in the certificate in respect of three groups of documents. The first was certain of the folios contained information regarding the cancellation referral. The second was that other folios contained a priority assessment tool used for internal government purposes of tracking the status of a case. The third reason was that a further set of folios contained communications with an education provider about the applicant’s enrolment at university. However, having considered the information covered by the certificate, the Tribunal is not satisfied there was a sufficient basis for public interest immunity. The Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. In the circumstances, the material contained in the Department’s file was disclosed to the applicant in full.
Background
The applicant first arrived in Australia [in] October 2007 as the holder of a valid [temporary] visa. He departed [in] June 2009 to travel to Pakistan. He returned to Australia [in] July 2009 and returned to Pakistan [in] November 2009 before returning to Australia most recently [in] January 2010.
The [temporary] visa expired in September 2009. After this visa expired, the applicant reapplied for a [further temporary] visa and waited for an outcome for 11 months. At the conclusion of this 11 month period, the applicant was informed that his visa had been cancelled and that he would need to appeal to the then Migration Review Tribunal (MRT).
However, [in] August 2011, the applicant applied for a protection Visa, and attended an interview with a delegate of the Minister [in] July 2012. The applicant claimed:
· he was [name], son of the late [name] from Karachi, Pakistan.
· he fears harm as an Urdu speaker in Karachi owing to high levels of generalised violence in Karachi.
· Urdu speakers in particular are not safe in Karachi and face targeted killings and generalised violent acts including suicide bombing.
· since 2008 more than four thousand people have died in targeted killings.
· crime rates are very high and theft is very prevalent.
· his father asked him to go to Australia as there were fewer life threats here.
· his home locality is the centre of the pro-Urdu speaking Muthadida Quami
Movement (MQM).
· his father was a member of MQM and so are his [relatives]. Both his father and
· [relatives] were imprisoned for MQM activities.
· his father was assassinated on the morning of [date] June 2009. His father had been receiving threatening calls prior to this incident.
· his [relatives] have been continuously threatened and these threats continued when
· he returned to Pakistan for his father’s funeral.
· he may be targeted upon return to Pakistan and his property may be damaged and his life would be made miserable.
The applicant’s legal representative submitted further claims in a detailed submission dated [in] January 2012 in which it was claimed that the applicant:
· feared harm on account of his religion as a member of the Barelvi sect of Islam, his actual and imputed political opinion as a supporter of political ideologies of Muttahida Qaumi Movment, and his membership of the particular group ‘member of a family unit which engage in promoting the political ideologies of MQM’ and that
· owing to the current ongoing human rights problems and political and religious instability in Pakistan that it was not possible for the applicant to seek effective protection from Pakistan’s state authorities.
At interview, the applicant added the following information:
· he left Australia in June 2009 to Pakistan, returned to Australia in July 2009.
· he left in November 2009 to Pakistan and returned to Australia in January 2010.
· the purpose of travel of these trips was to attend his father’s funeral after he died [in] June 2009.[1]
[1] This is what was recorded in the decision of the delegate. While the statements is correct in relation to the best Pakistan in June 2009 (that is that he returned to Pakistan to attend as far the funeral), the applicant told the Tribunal that the reason he travelled to Pakistan in November 2009 was because his mother was ill. This is explained a greater length in the applicant’s statutory declaration, and the Tribunal accepts this evidence.
The delegate accepted the applicant’s claims that his father was killed by extremists for political reasons, and that the applicant himself and his family were threatened. Based on the applicant’s testimony, the delegate accepted that his father’s killing was for reasons of his political opinion.
While the delegate did not accept that the applicant faced a real chance of persecution for reasons of his own actual political opinion, the delegate was satisfied that the applicant’s family had been targeted for reasons of the applicant’s father’s political involvement in support of the MQM. The delegate found that the applicant had provided a convincing account of continuing threats against his [relatives] who are also supporters of the MQM. As the applicant’s father had already been killed in a target killing, the delegate found that she could not conclude that the chance of harm faced by other members of the family, including the applicant, for reasons of their imputed political opinion, was a remote chance of harm.
The delegate then considered whether the applicant’s religion as a Barelvi Muslim may add to his cumulative claims to holding a well-founded fear of persecution in Pakistan. The delegate found that this claim may cumulatively add to the applicant’s chance of harm in Pakistan from religious extremists.
The delegate discussed with the applicant why he did not lodge an application for protection in Australia earlier than 2011, as he stated that interview that he wanted to apply for protection 2009. The delegate found that the applicant gave a logical and convincing explanation and did not make an adverse finding against the applicant for reasons of what he described as significant delay in apply for protection.
The delegate found that State protection was not available to the applicant owing to endemic corruption and ineffectiveness.
In relation to relocation, the delegate stated:
I have found the applicant to be a credible witness and his claims of facing threats from the Pakistan Taliban threatening harm regardless of where he travelled in Pakistan appeared credible. In the absence of any evidence to the contrary, I accept to be true the applicant’s claims that he faces a real chance of harm regardless of his location in Pakistan. The applicant provided convincing testimony supporting his claims that the Taliban were able to locate him shortly after his arrival in Pakistan. I have placed weight on this finding in considering the applicant’s claim that he faces a risk of being located by those from whom he fears harm should he return to Pakistan in the reasonably foreseeable future.
DOCUMENTS RECEIVED PRIOR TO THE HEARING
Prior to the hearing, the Tribunal received a statutory declaration of the applicant sworn [in] January 2017, together with submissions from the applicant’s agent, also dated [in] January 2017.
Statutory Declaration of the applicant
The statutory declaration is very detailed and addresses each of the delegate’s reasons which caused her to conclude that the applicant’s protection Visa should be cancelled. By way of example only, in relation to the applicant’s two visits to Pakistan in 2013 and 2015, part of the statutory declaration reads as follows:
9. After the death of my father my mother was basically left to fend for herself. I think she has been struggling to come to terms with the brutal death of my father. My mum does have [siblings] however they are not close, either physically or emotionally. Most of my mum's family lives in the far north of Pakistan. I am not sure why they do not help her much, however it could be because they are afraid about what will happen to them by association, because of what happened to my father.
10. I have [siblings]. I am my mother's [son]. My [siblings] are all married, [number] of my [siblings] live overseas in [country] with their [spouses], and one (the eldest) lives in 20 to 30 kilometres away with [spouse] and visits only occasionally.
11. The [relative] I speak to is my father's [family member], who lives in Karachi. [Relative] has [own] family, with [number] children, [Relative] only sees my mother around once every two weeks or so.
12. In November 2009 1 received call from my [relative] that my mother was sick and in hospital. She was having [pain] and she was taken to [a] Hospital. She was in hospital for around [number] days. I was on a bridging visa at the time and I applied for a Bridging Visa B and I submitted evidence that my mother was in hospital. I unfortunately do not have a copy of that document now. I travelled to Pakistan and spent time with her while she recovered.
13. In 2013 I received a call from my [relative] who told me that my mother had a [problem] and could not walk. He told me that she was not well enough to talk to me on the phone and he said that I should come straight away because it is serious and she is in hospital. I arranged my ticket and left for Pakistan within around 2 weeks of hearing this news.
14. My [relative] did not tell me that she had been in a traffic accident, and I only found that out when I arrived and saw her. By the time I arrived, she had been released from hospital. I stayed with her and helped her to recover. My mother was unable to walk without assistance and I had to help move around the house. If she needed to go out for a doctor's appointment, we would use a wheelchair. I prepared meals (as she could not stand up to cook) and was in charge of giving her the prescribed medication. While she was capable of eating, she needed to be pushed to eat because she did not want to eat anything. I also went with her to hospital when she was having [certain] pains. By the end of October she was moving more freely and did not require my assistance to move about the house and I returned to Australia,
15. During my visit I hardly left the family home, I really only went out of the house when my mother needed to go to a medical appointment, like visiting the doctor or going to hospital, Whenever I left the house I tried to keep my helmet on to avoid being identified. I also grew a beard while I was there so that people would not recognise me. When we went to an appointment I would put my mum in a cab and then lead the way on a motorbike so that I would not be identified by being in a car with my mother. I did not tell my friends that I was back, as the more people that knew I was in Pakistan the more likely that the Taliban would find out. I did not have a mobile phone with me either.
Return to Pakistan 2016
16. In 2015 my mum again became very sick. My [sibling] told me that my mother was in the emergency room at hospital and that she had [pains]. This would have been around 10 days before I travelled. I spoke to my [relative] and he told me she had a [medical event].
17. During that four week visit I think I only left the house about 3 times. I spent most of the time in hiding in the house. I did not have a mobile phone with me either, I left the house on one occasion because my [sibling] had just had a [procedure] and [was] bleeding through the dressing. [Sibling] called my mother and asked me to take [sibling] to the hospital as [spouse] was away. I went the next morning in a car and took [sibling] to hospital. I wore spectacles to try and change my appearance as I was worried about being identified, I again grew a beard, however it was not as big as the previous time I was in Pakistan. The only other times I left the house were to take my mother to get medical assistance.
The statutory declaration also deals with the applicant’s fears for his safety whilst in Pakistan, and explains, again in considerable detail, the security precautions he and his family took to ensure his safety during the visits to his mother.
The applicant also states that:
My [relative] has told me that he has received threatening calls from the Taliban who say that they know I will return to attend my mothers' funeral when she eventually passes away, They have also threatened my [relative]. My [relative] had not old me this before as he knows it is stressful for me, he only mentioned it after I told him about the Notice of intention to cancel my visa that I received. My [relative] has a personal guard at all times, and even then he does not feel safe and he keeps a low profile.
The applicant’s submissions
As noted, [solicitor] provided lengthy, detailed and persuasive submissions based on the applicant’s evidence. The submissions conclude that the applicant has not submitted incorrect answers to the questions identified by the delegate. It is submitted that the applicant has given reasonable credible explanations for his return to trips to Pakistan since his protection Visa was granted, including how he managed to spend a limited amount of time there without harm. It is submitted that it was on the fact of two trips to Pakistan and the fact that the applicant obtained a Pakistani passport alone that the delegate concluded that the information provided in the application was not correct. The applicant submits there is not enough information to draw this conclusion and, and in fact the evidence provided supports a conclusion that the applicant continues to have a fear for his life Pakistan. It is submitted that the evidence points to the conclusion that the applicant was truthful in his answers, and in particular, that he feared that his life could be in danger and that he could be targeted by the people he killed his father.
In the alternative, if the Tribunal were to find that there was non-compliance with s 101(b) of the Act in the manner set out in the Notice, it is submitted that the considerations in favour of the applicant for not cancelling his protection visa greatly and significantly outweigh the reasons for cancelling the isa.
The applicant’s evidence at the hearing
As noted, the Tribunal had the benefit of seeing and hearing from the applicant himself. As was the case with the delegate who granted him his protection Visa, the Tribunal formed a very positive view of his credibility and his demeanour. The Tribunal asked him about many of the matters appearing in a statutory declaration and on all occasions the applicant gave spontaneous evidence which was consistent with what had appeared in his submissions to the delegate who cancelled his protection Visa, and with the submissions he had given to the delegate who granted him his protection Visa, and with the evidence he presented orally at the interview held [in] July 2012.
In summary, the applicant gave sworn evidence attesting to the truth of the contents of his statutory declaration is oral evidence to the Tribunal was entirely consistent with his previous evidence to delegates. The applicant was a careful and impressive witness whose evidence the Tribunal had no reason to doubt.
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.
Was the Notice valid?
[In] October 2016, the Department issued a Notice of Intention to Consider Cancellation under s 109 of the Act to the applicant (the Notice).
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. The applicant’s agent, a solicitor, submitted that he had detected no error in the s 107 notice that would render the Notice invalid.
Non-compliance
The second issue before the Tribunal is whether there was non-compliance in the way described in the Notice.
The delegate found that the applicant had provided incorrect answers to questions 41, 43, 44 and 45 in his protection Visa application Form 866C. The Tribunal will consider each of these questions and answers in turn.
Question 41
The delegate’s decision [in] December 2016 records at par [2]:
At question 41, the Visa holder answered “Pakistan” to the question of “I am seeking protection in Australia so that I do not have to go back to”.
The delegate found this answer to be incorrect, stating:
this is incorrect as he was issued with a Pakistani passport five days after being granted a protection Visa and he first voluntarily returned to Pakistan less than nine months after being granted a protection Visa and again less than three years after being granted a protection visa.
Question 43
The delegate’s decision [in] December 2016 records at par [3]:
At question 43, what do you fear may happen to you if you go back to the country?”, The Visa holder answered:
The Place where I live in Karachi [suburb] is main stream of MQM (Mathuhida &mini Movement). MOM mainly struggle for the rights of Urdu Speaking community of Karachi since 1983. Since it's the only party which represents Urdu speaking community in Pakistan and most of the Urdu speaking people are the activist of MQM. My father was also a regular member of MQM and so are my [relatives]. Since the foundation of MQM there are groups which are anti Urdu speaking community and anti MQM There had been several operations against MQM since 1992 and many members of the party were targeted. Lots of people who were regular members and were striving for their rights lost their live in the major operation that was carried out by then- government in Jane 1992, My father was also jailed in 1992 and my [relatives] were also sent to jail. Life had been very miserable since then as we kept on fighting for our rights in as Karachi is the only city where most of the Urdu speaking people are residing. We were used to have late night's raids at our houses. It was a severe sat back for us, Since then we struggled so hard to live our lives. Things were starting to settle down as the number of Urdu speaking people were increasing in Karachi. It was a night of [date] of June 2009 at 0100 when my father was assassinated while going on a bike to buy some stuff from the market as shops are opened till late night when [number] guys on bike shot [number] bullets on my father and he fell down immediately with serious wounds he called my other [relative] and he rushed to him in few minutes. At the time he was receiving some threat calls by some unknown people but he was just struggling to live there because he was the only person to take care of my Family as I have .[siblings] and I came to Australia for studies so all burden was on my .father's shoulders. After my father’s assassination my [relatives] are being threatened continuously and when I visited Pakistan to attend my father’s funeral we were threatened on call and specially they took my name that I may he targeted as no one knows their objectives. So my mother and my [relatives] want me to live away from Pakistan and do not come back, If I go back to my country I might be targeted as not only my life would be in danger but they would also try to damage our property and make our lives miserable.
The delegate found this answer to be incorrect, stating:
At question 43, where he stated that when I visited Pakistan to attend my father’s funeral we were threatened on call and specially they took my name that I may he targeted as no one knows their objectives. . . . If I go back to my country I might be targeted as not only my life would be in danger but they would also try to damage our property and make our lives miserable, this is incorrect information because he voluntarily travelled back to Pakistan twice for a combined total of [number] weeks. Notably, the first trip was less than nine months after being granted the protection Visa, and his second trip was less than three years after being granted a protection Visa. I consider therefore that he did not believe that his life would be in danger if he returned to Pakistan.
The ellipses appear in the delegate’s decision. The Tribunal is uncertain that the delegate meant to omit the missing words, or wishes the reader to assume their presence. The missing words are “So my mother and my [relatives] want me to live away from Pakistan and do not come back”.
Question 44
The delegate’s decision [in] December 2016 records at par [4]:
At question 44, “who do you think may harm/mistreat you if you go back?”, the Visa holder answered:
As I described in detailsI can also be targeted cause before my father’s assassination he was also receiving threat calls and that was the reason he unmanaged to send me to Australia to get education with the security of my life so I believe When I visited to attend my father's funeral I was not allowed to go out as my [relatives] asked me to remain at home all the time because the people who killed my father were still out there as nobody could identify them and they were moving freely in the city. My [relatives] wanted to file an FIR hut we were threatened that if we file an FIR we could face more troubles and I would be in trouble if they go to police and proceed in the case and they even took my name and later on I got a threat call that I might suffer ill didn't stop my [relatives] in proceeding the case to police and 1 will be in danger if we take any further action against them.
So my [relatives] filed an FIR on unknown persons as we knew who were giving us threats but we couldn't give any names to police as we were threatened not to give any names to police. My [relatives] asked me to leave the country as soon as possible because he didn't want to put me in trouble. I came back to Australia just after [number] days and I couldn't even attend the whole mourning period of my father. Keeping in view all the .facts my [relatives] and my mother strongly directed me not to come back to Pakistan in any case.
The delegate found this answer to be incorrect, stating:
at question 44, where he believed that “the biggest harm for me is that my life could be in danger. Further, the Visa holder stated that his mother directed him “not to come back to Pakistan in any case”. The Visa holder provided incorrect information as he voluntarily travelled back to Pakistan twice for a combined total of [number] weeks. Notably, the first trip was less than nine months after being granted the protection Visa, and his second trip was less than three years after being granted a protection Visa. I consider therefore that he did not believe that his life would be in danger if he returned to Pakistan.
Question 45
The delegate’s decision [in] December 2016 records at par [5]:
At question 45, “why do you think this will happen to you if you go back?”, The Visa holder responded:
I think because my .father has also been assassinated and it was a serious shock for our whole family to lose our father. As my father was an active member of AVM and he used to take active part in the party's struggle for the rights of our community. Situation in Karachi went from bad to worst and it still is getting worst as groups against our community are very active at this point of time. At the time of my father’s assassination Pakistan's 1B (Investigation Bureau) ISI (inter Services Intelligence) and Some officials representative of Sindh Govt. called my [relative] to appear in Sind Secretariat on Jan [date] and later February [date] to discuss about the assassination of my father and asked us if we suspect anyone in this case. But we were not in a position to risk more lives and we opted to remain quite. The situation in Karachi is worst nowadays. Every day in newspapers you can find 30, 40 people are being died each day. Security officials in Pakistan have completely failed in providing its citizens with the security they need. There are armed peoples moving in the city freely in the presence of the police but our police is unable to cope with the situation. I am the [son] of my parents and if I go back to my country I would have to do something to cope with the financial needs of my family but the situation in Karachi is no good for my cause as every day people are moving from the country, investors are withdrawing their money .from the business. I would want myself and my family to be secured against those killings. I won't he able to do anything for my family if I wouldn't be given my life security. There are severe financial crisis in the country. Most of the days in the week the city shops and business are closed because of target killings and blasts. People are. scared to go out in the Open air and opt to be at their houses all the time The security agencies don 7t even car-e who is killed and Who is still safe. Even the security official themselves are not safe as they are also getting attacked by those groups. Maybe if I go there I could be targeted by the people who involved in my .father’s assassination. Couple Of times I went to Pakistan to see my family first time at the time of my father assassination on [date] June 2009 and second time on November 2009 because of my mother's ,health problem. But I couldn't move freely outside my home because there were still some Security concerns that's why I wasn't allowed.
The delegate found this answer to be incorrect, stating:
at question 45, where he stated “[m]ay be if I go there I could be targeted by the people who involved in my father’s assassination”, I consider that this is incorrect information because he voluntarily travelled back to Pakistan twice for a combined total of [number] weeks. Notably, the first trip was less than nine months after being granted a protection Visa, and again less than three years after being granted a protection Visa. I consider therefore that he did not believe that he would be targeted by the people he specified if you return to Pakistan.
Applicant’s submission
The applicant submits that there is no evidence of an incorrect answer to question 41, and that the answer in fact was correct. The applicant submits that “the submission of [the protection Visa] application is an act “seeking protection in Australia”. Further, it is submitted that the applicant is a Pakistani national, and had previously resided in Pakistan (before Australia). He submits that the answer of “Pakistan” was correct as Pakistan was the country to which the applicant was required to return, and that even if the applicant was later found not to be owed protection/non-refoulement obligations, this answer was still correct.
In relation to the answers to all the questions the applicant submits that there are a number of factors which favour a conclusion that the answers given by the applicant in 2011 were in fact correct.
Before doing so, it is useful to summarise the overall reasoning of the delegate which caused her to find that the applicant’s answers were incorrect. In summary, the delegate considered that the following matters caused or appeared to cause the delegate to find that the applicant had not provided correct answers to the four questions:
a) the applicant renewed his Pakistani passport the applicant received;
b) the applicant received his new Pakistani passport [number] days after the protection Visa was granted;
c) the applicant travelled to Pakistan in 2013;
d) the applicant travelled to Pakistan again in 2015;
e) the applicant returned to Australia unharmed following both trips;
f) the applicant’s family could provide care to the applicant’s mother;
g) if security could be hired to protect the applicant then those funds could have been used to hire a carer for the applicant’s mother, a more logical stance than the applicant paying twice to return to Pakistan himself.
Against this, the applicant submits that there are a number of factors which favour are finding that the answers he gave were in fact correct. These factors are as follows:
a)the applicant obtained a passport does not of itself indicate that the applicant was not fearful for his life in Pakistan is claimed;
b)the applicant did not travel as soon as his passport was issued, and waited for nine months;
c)the applicant travelled to Pakistan in 2013 and 2015 as his mother was gravely ill, which is supported by medical evidence before the delegate;
d)the applicant was only unharmed because the family had a private security firm, he avoided leaving the family home, and disguised himself by growing a beard and wearing spectacles;
e)the delegate who granted the protection Visa was aware that the applicant had already returned to Pakistan twice in 2009 because of the health of the applicant’s mother;
f)the delegate had no information or evidence on which to base her conclusions that the applicant’s family could provide care to the applicant’s mother, and if the applicant’s family could hire security to escort the applicant then funds could have been used to hire a carer for his mother;
g)the delegate ignored facts actually available to her including the circumstances particular to the applicant, being his close relationship with his mother, the family situation Pakistan, and the cultural expectations of the applicant as his mother’s [son].
Consideration
Unlike the delegate, the Tribunal had the benefit of the applicant attending the hearing. The applicant gave evidence to the Tribunal consistent with the evidence given to the delegate who granted the protection Visa [in] December 2012. In this respect, the Tribunal notes that that delegate found the witness to be a witness of credit and believed the applicant’s claims that his father was killed by extremists for political reasons and that the applicant himself and his family were threatened. The Tribunal notes that that delegate accepted that the applicant had travelled to Pakistan on in June 2009, following the murder of his father the previous day, and again in November 2009. In other words, the delegate did not find the applicant’s return to Pakistan for his father’s funeral to be an impediment to the grant of protection Visa.
The Tribunal has a number of difficulties with the delegate’s finding that incorrect answers were given by the applicant in his application. The first difficulty is that, save for the answer to question 41, the answers provided by the applicant were extremely lengthy and detailed. The delegate has isolated one or two sentences from a much larger detailed response and, in some respects, repeated could be described as a mantra or formula to conclude that the answer was incorrect. The Tribunal is not consider that the repeated explanation that certain selected information was incorrect because the applicant voluntarily travelled back to Pakistan twice for a combined total of [number] weeks, that “notably” the first trip was less than nine months after being granted the protection Visa, and his second trip was less than three years after being granted a protection Visa to be an adequate explanation for finding that the answers were incorrect. The Tribunal does not understand the significance of the first trip being “less than nine months” after being granted his protection Visa. The Tribunal considers that this factor is equally supportive of the applicant’s position namely that, having obtained his Pakistani, the applicant did not immediately rush overseas, but in fact did not return to Pakistan until his mother was ill some nine months later.
In relation to the answer to question 41, the delegate’s analysis is based on two factors. The first factor is that the applicant was issued with a Pakistani passport [number] days after being granted the protection Visa. The fact that the passport was issued [number] days after being granted the protection Visa is a matter of chance. The applicant would not have known when his renewed passport was to be issued nor whether the Department was going to grant him a protection Visa. The second, and more important factor, is that the applicant returned twice to Pakistan after being granted protection. The Tribunal does not find that the return to Pakistan in the circumstances claimed by the applicant) which the Tribunal accepts), means that the answer to question 41 is incorrect. The application was completed [in] August 2011. The applicant did not travel (for the purposes of the Notice) until August 2013 and [in] July 2015.
The Tribunal does not find travelling to Pakistan in 2013 and 2015 to be inconsistent with the applicant stating in 2011 that he feared returning to Pakistan. This would not be the case even if the applicant had no such fears in 2013 and 2015 (which the Tribunal does not find to be the case). But in any event, the Tribunal accepts the evidence contained in the applicant’s statutory declaration and confirmed in his oral evidence of the hearing and finds that the applicant was extremely fearful when he returned to Pakistan in 2013 and 2015. This claim is corroborated by the applicant’s evidence that he made every effort to secure his security while he was there (including personally paying for the security guards who looked after him), tried to disguise himself and kept inside the house as much as possible. Furthermore, the Tribunal accepts the applicant’s evidence given at the hearing, that at the time of the hearing he still holds concerns of fear of harm were he to return to Pakistan.
In the circumstances, the Tribunal finds that the answer given by the applicant to question 41 of his protection Visa application was correct.
As to the applicant’s answers to questions 43, 44 and 45, as noted above the reasoning provided by the delegate for finding the answers to be incorrect information was that the applicant:
voluntarily travelled back to Pakistan twice for a combined total of [number] weeks. Notably, the first trip was less than nine months after being granted the protection Visa, and his second trip was less than three years after being granted a protection Visa. I consider therefore that he did not believe that his life would be in danger if he returned to Pakistan.
Appearing elsewhere in the delegate’s decision, were various considerations which the Tribunal are summarised at par [44] above. In summary, the Tribunal does not find that any of these factors individually, or collectively, compel it to a conclusion that the applicant provided incorrect answers to any these questions. The fact that the applicant renewed his Pakistani passport of itself does not mean that any of the answers were incorrect. The Tribunal accepts the applicant’s explanation that he wanted to get a new passport in case he received another call from family about an emergency (as was indeed the case), and he needed to travel urgently. The Tribunal accepts that he did not want to use the travel document issued by the Australian government (titres du voyage) and that the Pakistani authorities would know on his arrival that he had sought protection in Australia. In this respect, the Tribunal that the DFAT Report states that
5.23 In practice, returnees generally leave Pakistan for interim destinations on valid travel documents and consequently do not commit immigration offences. Those who return voluntarily with their own, valid travel documents are processed like any other Pakistani citizen returning to Pakistan. Only those who return involuntarily, on charter flights, or who have emergency travel documents are likely come to the attention of authorities at airports. This includes involuntary returnees from the Gulf states, who are often victims of trafficking or labourers and workers whose visa status has changed because of local policies in these countries.
Nor does the Tribunal accept that the very act of returning to Pakistan, in the circumstances claimed by the applicant, and which the Tribunal accepts, indicates that any of the answers were incorrect. The applicant had rational and persuasive reasons for returning to Pakistan and took a calculated risk in doing so. Fortunately for the applicant, he was not harmed in doing so.
Further, the Tribunal does not accept that travelling to Pakistan in 2013, some nine months after receiving his renewed passport (let alone in 2015, almost 3 years after receiving the passport) is a persuasive reason for the delegate to find that the answers that the applicant gave in 2011 in his protection Visa application were incorrect.
In summary, the Tribunal does not accept that any of the reasons identified by the delegate, either individually or in combination, warrant a finding that the answers to the questions were incorrect. The Tribunal concludes therefore the answers given by the applicant to the questions stated in the Notice were correct.
CONCLUSION
For the reasons set out above, the Tribunal finds that there was no non-compliance by the applicant in the way described in the Notice. As the Tribunal is not satisfied that there was non-compliance in the way described, it follows that the discretionary power to cancel the applicant’s Visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
R. C. Titterton
Member
ATTACHMENT – Relevant Extracts from the Migration Act 1958:
Interpretation
(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.
Interpretation
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).
Completion 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.
Information 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.
Incorrect 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.
Visa 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.
Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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