1701026 (Refugee)

[2017] AATA 372

1701026 (Refugee) [2017] AATA 372 (6 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701026

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Stuart Webb

DATE:6 March 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2017 at 10:17am

CATCHWORDS

Refugee – Cancellation – Protection visa –– Unauthorised maritime arrival – Afghanistan – Identity – Particular social group – Christian convert – Religious persecution –  International Treaties Obligations Assessment not conducted – Australia’s legal obligations

LEGISLATION

Migration Act 1958, ss 46A(1), 48(1B), 116(1AA), 116(3), 360(2)(a)
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014

CASES

MIBP v SZSSJand MIBP v SZTZI [2016] HCA 29

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2016 to cancel the applicant’s Subclass 866 Protection (Class XA) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that they were not satisfied as to the identity of the applicant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. The applicant was represented in relation to the review by his registered migration agent. The applicant provided the Tribunal with a copy of the delegate’s decision.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA)). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1AA) – Not satisfied as to identity

7. A visa may be cancelled under s.116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014, (at p.24) of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.

8. The delegate in their decision has provided an extensive history in relation to the history of the matter, and the information that the applicant has provided. The delegate has provided information regarding the information provided by the applicant and as gathered by the Department. This includes information provided at an Entry Interview conducted [in] December 2009; a RSA application form and statement dated [in] January 2010; a RSA interview held [in] January 2010; a second RSA application form, statement and Form 80 dated [in]January 2010; Australian citizenship application lodged [in] July 2014; citizenship interview [in] September 2014; an identity interview [in] October 2014; and a second identity interview held [in] October 2014. The delegate referenced a fingerprint referral which provided a result [in] January 2010; an application for an Offshore Humanitarian visa lodged [in] December 2005; and his [sibling’s] protection visa application in Australia. The delegate also noted that the applicant provided a year [grade] certificate, a Taskera, a UK Removal Direction and his father’s [official documents][1].

   [1] AAT File 37-41, Delegate’s decision pp 2-9

9. The Tribunal notes that the [January] 2010 application form, described as a ‘second RSA application’ is in fact a completed and signed Form 866B and Form 866C, being an application for a Protection (Class XA) visa[2]. This document was formally ‘lodged’ [in] July 2010 when the RSA was completed. Pursuant to the protection assessment process undertaken at that time a Refugee Status Assessment (RSA) was required to be undertaken prior to a substantive visa application being permitted to be lodged. Once the RSA was completed, with the finding that a protection obligation existed, the formal visa process was conducted on the same day, leading to the grant of the visa.

   [2] DIBP Cancellation File [number] Folios 3-38

10. Having reviewed the information available, the Tribunal considers that, aside from this misnomer, the delegate has provided an accurate depiction of the information as available in this matter.

11. The delegate considered that:

    As information shown above indicates throughout numerous contacts with the department and other authorities, the visa holder has provided inconsistent and contradictory information in relation to his name, date of birth, aliases, immediate & extended family composition and marital status that would have otherwise assisted in confirming the visa holder's identity. To date his correct identity is still not known.

12. The delegate noted that the applicant had provided some submissions in response to the Notice of Intention to Consider Cancellation, sent to the applicant [in] November 2015. A very limited submission was provided, which stated that the applicant had sought to correct the record on separate occasions, as the Act permits him to do, and that the applicant had acted in good faith. The applicant provided a Taskera to the Department.

13. The delegate noted that the applicant had come forward, after the initial Identity Interview, with new information and admitted to providing false information. However the delegate was not convinced that the applicant had not declared his ‘full life account and identity’, that he is in possession of genuinely issued travel documents, but has withheld this information from the Department in an attempt to continue concealing his true identity.

14. The delegate noted inconsistencies and irregularities in the documents as provided by the applicant and as have been available to the delegate, and the Tribunal has also reviewed this information, and details this as follows.

    His Name

15. The applicant has provided alternative information about his name.

16. The applicant arrived in Australia and claimed his name, as written down, was [Mr A] at the Arrival interview held [in] December 2008. .[3] He used the name [Mr B] in the documents he provided as part of his RSA application, including in the Form 80, reasons for being a refugee, the Form 956 and in the statement attached to the application.[4] The applicant maintained this information at the first RSA interview, conducted [in] January 2010. It is recorded that the applicant answered no to the question whether he had used any other name.[5]  

    [3] [File number] Folio 14

    [4] [File number] Folios 15 – 63

    [5] [File number]Folio 77

17. At the interview [in] January 2010 the applicant was informed about the fingerprint match from the UK, that a separate identity and immigration history existed for him.

18. The applicant provided [in] January 2010 a new statement, Form 80 and reasons for being a refugee.[6] In this information he disclosed his name was [Mr C]. He stated that he previously lied because he was afraid of being deported to Afghanistan.

    [6] [File number] Folios 79 - 105

19. The Tribunal notes that in all subsequent information the applicant has maintained his name as [Mr C]. This includes the Taskera as provided by the applicant.

20. The Tribunal notes that the Departmental records pertaining to the applicant arising from the Offshore Humanitarian visa application of December 2005 identified the applicant as [Mr C].[7]

    [7] DIBP Cancellation File [number deleted] Folio 40, [File number] Folios 3 – 14

21. The Tribunal notes that the cancellation delegate records that the UK records, which matched the applicant’s fingerprints, had named the applicant as [Mr D].

22. The Tribunal also notes that the cancellation delegate records the applicant’s [sibling’s] protection application had identified a brother called ‘[Mr E]’ born around the same time as the applicant.

23. The Tribunal considers that the applicant’s name has been provided with significant alterations over a period of time. The true name of the applicant is not clear from the information as provided.

    His Family

24. The applicant has provided alternative information about his family. This information is quite varied. The Tribunal notes that the applicant provided incorrect information about his children, parents and broader family in the arrival interview and first RSA application, maintaining the name [Mr A]/[Mr B].[8]  He named his wife as [Ms F]. He did not reference a [sibling] resident in Australia in this application.

    [8] [File number] Folios 11, 43 – 45

25. In the second RSA application, the applicant removed the [Mr B] name, and did not provide a family name for his [Child A], parents and broader family. He named his wife as [Ms F].[9] He removed the name of a [Child B], saying he did not have a [Child B]. He did not reference a [sibling] resident in Australia in this application.

    [9] [File number] Folios 97 – 100

26. The cancellation delegate’s decision notes that in his citizenship application lodged [in] July 2014 the applicant again referenced his parents, daughter and broader family as having the [B] family name.

27. Asked about the [Mr B] name, the applicant at an interview stated it was a nickname of his father and no other members of the family were known by that name. He stated that he had made up the name [Mr A] for his [siblings].

28. The delegate noted that in the offshore application the applicant had referenced his family with the family name of ‘[G]’. Asked about this at the first identity interview of October 2014 the applicant stated it was a mistake.

29. The applicant provided a further Form 80 to the second identity interview held [in] October 2014. This document removed the [Mr B] name again, left out his wife and [Child A], and for the first time included a [sibling] ‘H’ who resided in Australia. This was the [sibling] who lodged [his/her] own protection application.

30. The applicant provided further information to the second identity interview. He disclosed he was not married and did not have children; he had [number] [siblings], not [number], and [number] [siblings], not [number].

31. The Tribunal considers the applicant’s family background and connection has been provided with significant alterations over a period of time. The true names of the applicant’s family members, including parents, siblings and broader family is not clear from the information as provided. The applicant has most recently denied having a wife and children.

    His Date of Birth

32. The Tribunal notes that the applicant’s date of birth is not entirely clear. He has claimed it to be [date], which in itself is a rounding to the end of the year, a common practice in Afghan culture when the actual birthdate is not readily recorded. The Tribunal notes that there is a requirement to change dates from the Persian calendar, as has traditionally been used in Afghanistan to the Western calendar. This further complicates the calculation of dates. The Tribunal notes that the applicant has also recorded his birthdate as [date], and the Taskera he provided states that he was [age] in 2007, making his date of birth to be around [year].

33. Given the uncertainty regarding the recording of dates in Afghan culture, including birthdates, the Tribunal considers that the applicant’s different birth dates is of no consequence in this matter.  

    Can the visa be cancelled

34. The Tribunal has considered the information as provided. The Tribunal is conscious that as it has made the decision in this matter on the information already before it, the applicant has not provided further submissions to the Tribunal regarding his identity. The Tribunal notes that the submissions as provided to the Department in response to the Notice of Intention to Consider Cancellation are very limited.

35. The Tribunal notes the submission that the applicant had come forward and sought amend his record on two discrete occasions.[10] The applicant provided information pertaining to his himself and his family, including providing a Taskera and high school certificate.

    [10] DIBP Cancellation File [number] Folio 70

36. As noted in the cancellation delegate’s decision, there are concerns with the Taskera given an addition in roman numerals, not in Dari, in a different pen.[11] The delegate noted that a formal document examination assessment determined that genuineness of the document was ‘inconclusive’.  It was further noted that the applicant had previously claimed his Taskera was lost. This document clearly has issues as to its provenance, and should be given limited weight.

    [11] DIBP Cancellation File [number] Folio 81 – 80

37. The Tribunal does also note that the applicant participated in two identity interviews, [in] October 2014. The applicant able to detail more information to a department delegate experience in identity related enquiries. The applicant provided evidence and responded to questions about his identity. The Tribunal notes that the Identity Unit delegate determined that the applicant’s responses to be inconsistent, vague and misleading. The cancellation delegate noted that the Identity Unit delegate had determined that his identity was ‘indeterminate[12]’.

    [12] AAT File 38, Delegate’s decision p 8

38. Having considered this information, and the materials before it, the Tribunal considers that the applicant’s identity is not clear from the information as provided. The Tribunal considers that the applicant’s identity is correctly stated as ‘indeterminate’, and as such, it cannot be satisfied that the applicant is who he says he is.

39. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

40. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    A procedural matter in the delegate’s decision

41. The Tribunal has reviewed the PAM3 with respect to a number of matters. It would appear that the delegate has decided not to follow the guidance of the PAM3 with respect to cancellations, which is of concern to the Tribunal.

42. The PAM3 Guidance on ‘Matters that should be considered’ states:

    It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:

    ·The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

    ·The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

    ·The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

    ·The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder. [bolded in original]

    ·The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

    ·Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

    ·Whether there are mandatory legal consequences to a cancellation decision – as three examples:

    ·whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

    ·Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:

    ·If there are children in Australia whose interests could be affected by the   cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:

    Australia's international obligations and

    PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.

    ·     Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment – where these factors appear to relate to a visa holder, and delegates require further guidance, they should consult Refugee and International Law Section. Delegates must turn their mind to whether removal in breach of Australia’s international obligations would be a legal consequence of a cancellation decision. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia and non-refoulement obligations are assessed prior to removal.

    ·     Any other relevant matters.

    If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.[13]

    [13] PAM3 Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140)’ – s116 - Deciding whether to cancel – Matters that should be considered (re-issue date 21/8/16).

1. The Tribunal has also considered the specific guidance provided around s116(1AA) – not satisfied as to identity. This states:

   A delegate may cancel a visa under 116(1AA) if they are not satisfied as to the holder’s identity, such as in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is not known.

   This ground should be used only if the delegate is not satisfied as to the holder’s correct identity. A notice should not be issued unless the delegate considers that there has been identity fraud; it is not enough that the delegate simply has doubts about a person’s identity.

   Section 117(2) does not apply to cancellation under s116(1AA) and as such, unlike cancellations under s116(1), this ground can be used to cancel permanent and temporary visas irrespective of the whereabouts of the visa holder. This means that a permanent visa can be cancelled under s116(1AA) if the visa holder is in Australia and has been immigration cleared.

   In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.

   Section 116(1AA) will not apply if:

   ·the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed or

   ·in response to a notice under s119, the visa holder satisfies the delegate as to their true identity.[14]

   [14] Ibid

2. Finally, the PAM3 provides the following guidance.

   Cases requiring National Office consultation

   Protection visas

   As a matter of policy, delegates are to consult/email Refs Help Onshore when considering cancellation under s116 if the visa being considered for cancellation is a protection visa.

   When considering cancellation of a protection visa, if:

   ·the visa holder is in Australia , (under s116(1AA) or s116(1AB)), or:

   ·the visa being considered for cancellation would result in the consequential cancellation of a protection visa of a person in Australia under s140(1) or (3).

   an International Treaties Obligations Assessment (ITOA) must be conducted to determine whether non-refoulement obligations will be breached if the visa is cancelled and the person is removed from Australia. Delegates may issue a s119 notice prior to seeking an ITOA, however an ITOA should be completed before deciding whether or not to cancel the visa.[15]

   [15] Ibid

3. The Tribunal notes that the delegate has not followed the procedure as stated in the PAM3 in cases requiring National Office consultation. The delegate in their consideration of the discretionary factors has not required that an ITOA be conducted and completed prior to deciding whether to cancel the visa or not. The delegate in fact did not request an ITOA be undertaken, rather determined:

   If the visa holder's visa were cancelled, an International Treaties Obligations Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. I therefore consider that a decision to cancel the visa holder's visa would not necessarily cause him to be returned to his country of origin in breach of Australia's non-refoulement obligations under the Refugees Convention. An ITOA would assess, among other things, whether the visa holder would be at risk of harm in his country of origin.[16]

   [16] Cancellation Decision p12, AAT Folio 36

4. The Tribunal does note that the delegate has approached this matter with some regard to the PAM3 guidance on the factors to be considered whether to cancel the visa, as specified above, that:

   Delegates must turn their mind to whether removal in breach of Australia’s international obligations would be a legal consequence of a cancellation decision. It is important to note that a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection, as a cancellation decision is not, in and of itself, a decision to remove a person from Australia and non-refoulement obligations are assessed prior to removal

5. However it is clear that the delegate has not turned his mind to this in this decision, relying on the post cancellation processes that exist as the explanation for his failure to do so. This pre-removal assessment is not part of the cancellation decision itself, and should not be used as a de-facto arrangement to avoid a proper consideration of this aspect as to whether to cancel the visa. The Tribunal is very concerned by this failure by the delegate to consider the international obligations that would be breached as a result of the cancellation of the visa. The delegate’s determination that an ITOA could be completed after the cancellation of the visa is not a consideration of this discretionary factor.  The delegate’s determination on this aspect of the discretionary power circumvents the process of assessment that has been put in place in all cancellation of protection visa matters.

6. There are reasons why the PAM3 is so specific in the direction to undertake an ITOA. The Tribunal notes the determination of the High Court in the matter of MIBP v SZSSJ and MIBP v SZTZI [2016] HCA 29, that procedural fairness is required in the undertaking of that process[17]. The High Court stated that:

   Characterisation of an ITOA as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act leads directly to the conclusion that procedural fairness is required in the undertaking of that process.

   Why that conclusion follows is that it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation.  The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual.  The presumption operates unless clearly displaced by the particular statutory scheme.

   [17] MIBP v SZSSJ and MIBP v SZTZI [2016] HCA 29 at 74-79

7. It is a procedural fairness to the applicant that he is permitted to provide information pertaining to the relevant international agreements where they may affect his interest. The international agreements are a relevant consideration in the discretionary aspects of the s116 cancellation process. To fail to engage in this consideration is not procedurally fair on the applicant, and putting it off to a post cancellation ITOA is not a consideration of this aspect of the factors as to whether to cancel the visa.

8. The Tribunal further notes that the s119 notice sent by the applicant fails to reference the legal issues that are part of the discretionary consideration whether to cancel the visa. The Tribunal notes that other s119 notices sent to other applicants before the Tribunal[18] are told that the delegate will take into account ‘the legal consequences of a decision to cancel the visa’. The Tribunal notes that this standard template line was not included in the s119 notice sent by the delegate to the applicant in this instance.[19] This is not good practice, in particular when legal consequences of the decision to cancel are so relevant when cancelling a protection visa. The legal issues arising from Australia’s international agreements are one of the most significant aspects of this decision.

   [18] Non Protection matters

   [19] DIBP [file number] Folio 56

9. The Tribunal considers that by failing to request an ITOA and consider the outcome of that assessment the delegate has abrogated the required procedural fairness that is inherent in assessing whether there are international obligations that would be breached by the cancellation of the visa.

10. There is another aspect of the failure to request and conduct an ITOA prior to cancelling the visa, the Tribunal itself does not have the advantage of considering the information an ITOA could have provided. The applicant has identity issues, which go to a significant aspect of his protection claim, that he is a Hazara from the Jaghori region of Afghanistan. An ITOA could have explored the applicant’s knowledge and understanding of this location in Afghanistan, and provided some guidance as to the applicant’s identity arising from his responses to questions of this nature. The ITOA could have made findings that would have been useful to the delegate and the Tribunal, including making possible findings that the applicant is not a Hazara and/or from Jaghori, Afghanistan. This was not done. It should have been.

11. The Tribunal’s review of this visa cancellation does not include a protection visa eligibility assessment. The Tribunal’s does not have a responsibility in this process to make a further assessment of Australia’s protection obligations for the applicant, that is what the ITOA process has been created for. The applicant’s personal circumstances that led to the grant of the protection visa have not been determined to be incorrect. The Tribunal in this review of the decision to cancel is not required[20] to make a new assessment of the applicant’s protection claims. The Tribunal notes the guidance in the PAM3 which states that ‘a cancellation delegate is not required to undertake a full analysis of whether a person is owed protection’. The Tribunal’s role is to consider the legal effect of the decision to cancel, such as whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. This entails considering the settled findings as to the applicant’s protection claims against the present situation in Afghanistan.

    [20] It may even be beyond its powers

12. Considering this aspect as to whether the visa should be cancelled, the Tribunal notes the following findings of the delegate in the Refugee Status Assessment Record.[21]  The delegate held three interviews with the applicant, with ‘the latter two exploring his conversion, I am satisfied that the claimant is a Christian in both belief and practice’[22]. The issue of the applicant’s changed identity information was raised and discussed. The delegate stated that ‘[a]fter three interviews with this client I am satisfied he is [Mr C], an Afghani citizen’.[23] The delegate stated that ‘the claimant believes if he is returned he will be killed because he is Hazara and a Christian’.[24] The delegate determined that ‘it is reasonable to conclude that the claimant has a genuine basis for his fear of return to Afghanistan, and that his religion is central to any risk he may face upon return’[25]. The delegate went on to find that the applicant was a citizen of Afghanistan, has no other nationality, does not have a right to enter and reside in a third country, and that ‘having carefully considered the claimant’s account in terms of detail, internal consistency and credibility in relation to country information, I am satisfied that the claimant’s fear of persecution as defined under the Refugees Convention is well-founded’.[26]

    [21] [File number] Folios 192-196

    [22] RSA decision p8, [file number] Folio 193.

    [23] RSA decision p2, [file number] Folio 196

    [24] RSA decision p4, [file number] Folio 195

    [25] RSA decision p9, [file number] Folio 192

    [26] RSA decision p10, [file number] Folio 192

13. As detailed, the delegate found he was a Christian and from Afghanistan. There was no explicit finding as to his Hazara ethnicity in the decision, though the Tribunal that this may be implicit in the finding regarding ‘internal consistency and credibility in relation to country information’, and that a finding to the contrary would be expected if this was not accepted. The Tribunal notes that the images of the applicant are consistent with ethnic Hazara.[27]

    [27] See for example DIBP [file number] Folio 49

14. Based on the findings of the delegate, the Tribunal accepts that the applicant is a Christian Hazara from Jaghori Afghanistan.

15. The Tribunal notes the most recent country information regarding Afghanistan from DFAT. With respects to Hazaras, DFAT states:

    3.13 While conditions for Hazaras have improved greatly since 2001, they still face some societal discrimination, partly as a result of earlier practices of official discrimination. For example, until 2001 there were few Hazaras employed in senior government positions. Due to the important role that ethnic, tribal and familial connections play in day-to-day life for all Afghans, Hazaras are still underrepresented in senior levels of government—Vice President Danish is the only Hazara in Cabinet. The historical enmity between Afghanistan’s Pashtun and Hazara communities contributes to the Hazara community’s perceptions of ongoing discrimination and targeting for violence.

    3.14 All Afghans are vulnerable to violent attacks associated with insurgent and/or terrorist groups. DFAT has no evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone. DFAT assesses that, with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan.

    3.15 While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a risk which is greater than other ethnic groups. It is unclear whether this is due to ethnic targeting or is a result of the high numbers of Hazaras travelling on this route. Nonetheless, DFAT assesses that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than Pashtun passengers.[28]

    [28] DFAT Country Information Report Afghanistan 18 September 2015

16. With respect to religion, the following information was provided.

    3.16 As with ethnic groups, we lack reliable data about the size of religious groups in Afghanistan, but it is generally accepted that approximately 99 per cent of the population identify as Muslim—around 80 per cent Sunni and 19 per cent Shia. Other groups, including Christians, Sikhs, Hindus and Baha’is, make up the remaining one per cent of the population. According to the US State Department, there is one known Jewish citizen.

    3.22 There are no religious facilities in Afghanistan that are available to Afghan Christians. There are some publicly accessible religious facilities for Hindus and Sikhs, including in Kabul, but many non-Muslims do not openly practice their religion because of the risk of discrimination or violence According to the US State Department, members of the Hindu and Sikh communities have complained about restrictions on their ability to cremate the remains of the deceased in accordance with their customs—this reportedly involves mainly societal restrictions such as harassment, but also indirect official restrictions around land allocation and use. The government provides free electricity to mosques, but not for other religions’ places of worship. DFAT is not aware of any person being detained by the government for practising a minority faith. However, prominent public figures, including members of parliament and provincial governors, are known to call for the punishment of converts from Islam.

    3.23 Although there is some official discrimination on the basis of religion, DFAT assesses that the main impediment to religious freedom in Afghanistan in practice is societal discrimination against non-Muslim religious minorities. Christians, Sikhs and Hindus may suffer discrimination by members of the Muslim majority in the form of unequal access to government or private-sector jobs and harassment in their schools. Violence against non-Muslims is rare, although this is primarily due to the small numbers of non-Muslim religious practitioners in Afghanistan and the low profile these practitioners maintain to avoid discrimination and violence. DFAT has no current evidence of violence specifically targeted at non-Muslims in Afghanistan.[29]

    [29] Ibid

17. A New York Times article regarding a Christian convert from Islam in Afghanistan states:

    In official eyes here, there are no Afghan Christians. The few Afghans who practice the faith do so in private for fear of persecution, attending one of a handful of underground churches that are believed to be operating in the country. Expatriates use chapels on embassy grounds, but those are effectively inaccessible to Afghans.

    Only a few Afghan converts have surfaced in the past decade, and the government has typically dealt with them swiftly and silently: They are asked to recant, and if they refuse, they are expelled, usually to India, where an Afghan church flourishes in New Delhi.

    In a country of crippling poverty, ethnic fault lines and decades of war, Islamic piety offers many Afghans a rare thread of national solidarity. To reject Islam is seen as tantamount to treason.

    “Religious identity is the only thing that Afghans can claim,” said Daud Moradian, a professor at the American University in Afghanistan. “They do not have a national identity, they do not have an economic identity, and there is no middle or working class here.”

    That leaves Josef almost nowhere to turn for protection. The police would be no help. Converts report being beaten and sexually abused while in custody. His family in Afghanistan is also a dead end: His uncles are hunting for him now, too.[30]

    [30] A Christian Convert, on the Run in Afghanistan 21 June 2014

18. The Tribunal considers that based on the present country information regarding a person of the applicant’s accepted background, Australia has a non-refoulement obligation with respect to the applicant. The Tribunal considers that a consequence of the cancellation of the visa is that the applicant could be removed from Australia to Afghanistan, in breach of Australia’s legal obligations. The Tribunal places significant weight on this factor in its determination.

19. The Tribunal has considered the other factors whether to cancel the visa. The applicant arrived in Australia as an Unauthorised Maritime Arrival (UMA) and sought a protection visa at the earliest opportunity to do so. His purpose in coming to Australia was to seek asylum, and given the finding of the delegate as to his protection claims, was justified in doing so. The Tribunal places some weight on this aspect of the consideration.

20. The cancellation delegate notes in their decision that there is no information to indicate that the applicant has breached any visa condition, and no subsequent information has come before the Tribunal to demonstrate that the applicant has breached any condition of his visa. The Tribunal places no weight on this factor.

21. The Tribunal notes that the cancellation will cause hardship for the applicant and his family. Should the cancellation occur, the applicant will have his permanent residence revoked. As the delegate and the PAM3 note, this does not automatically mean that the applicant will be removed from Australia, there is a pre-removal process in place that may be undertaken.  However the Tribunal notes that the cancellation of the visa has the effect of barring the applicant from making any further visa application, pursuant to s46A(1), so he is not entitled to a Bridging Visa, and is also barred from pursuing a further protection visa pursuant to s48(1B). So even if the pre-removal assessment finds that he is at risk of harm on return to Afghanistan, the applicant will require the Minister to personally intervene and either permit the applicant to lodge a further protection visa or provide a visa directly. This could take some time. Clearly the applicant would face hardship in this process. He also faces the prospect of being detained while this process is being undertaken, given he is not entitled to apply for a visa.

1. The determination that the ground for the cancellation exists provides prima facie evidence that the applicant has provided inconsistent information to the Department. The delegate has detailed clearly the information that has been provided by the applicant over time, which has led to this visa being cancelled by the Department. The Tribunal considers that the applicant has provided inconsistent information to the Department.

2. The Tribunal considers that the integrity of the visa grant process is founded on the premise of being able to rely upon the information being provided for the assessment, and circumstances which demonstrate that such information has questionable authenticity or is incorrect has a detrimental effect on this process. The information is relevant to the application of Australia’s law with respect to permission to enter and reside in the Australian community. Departure from those laws must be taken seriously in any consideration as to whether a visa holder should be entitled to continue to hold that visa, and deliberate breaches of the law should be given significant scrutiny in determining whether the visa should remain.

3. However, the Tribunal is conscious that to cancel a visa is also a serious decision to be made and one that is not done without serious consideration of all the factors, as detailed above. As discussed with the applicant, the Tribunal considers the cancellation of a protection visa one of the most serious matters that could come before it, given that it involves the cancellation of a permanent visa and would be returned to the country where he states he will face serious harm. This was originally accepted in a protection assessment, and the applicant and his wife have established their family and settled in Australia.

4. The Tribunal has considered the international obligations that arise in this instance, as detailed above. The Tribunal considers in these circumstances to be highly relevant in a consideration of a matter like this, and as detailed, have not been properly considered until this determination. The legal consequences of a decision of this nature are a high priority in matters like this, as rightfully recognised by the drafters of the PAM3. No ITOA has been completed that establishes a contrary position to the applicant’s circumstances to that as found by the RSA delegate in the first instance, he is owed protection. From a very preliminary view of the country information, he still is. Australia will breach its legal obligations if the applicant was removed from Australia to Afghanistan.

5. Having weighed up the circumstances as to whether the visa should be cancelled, the Tribunal considers on the present information that it should not be. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

   Stuart Webb
   Member