1703045 (Refugee)

[2017] AATA 1046

1703045 (Refugee) [2017] AATA 1046 (8 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703045

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:8 June 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 08 June 2017 at 2:38pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Pakistan – Religion – Ahmadi Muslim – False information – Kidnapping claims – Official discrimination – No State protection – Relocation not possible

LEGISLATION
Migration Act 1958, ss 5, 5J, 36(2)(a), 48, 91WA, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 108(a), 109, 116, 128, 134B, 140, 197C, 198, 418, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Act 2014, Schedule 5, s 2

Migration Regulations 1994, r 2.41

CASES

Abebe v The Commonwealth (1999) 197 CLR 611

BGM16 v MIBP [2017] FCAFC 72

Chen v MIBP [2014] FCCA 497

COT15 v MIBP (No.1) [2015] FCAFC 190

MIAC v Khadgi (2010) 190 FCR 248

MIMA v Teoh (1994) 183 CLR 273

S395/2002 v MIMA (2003) 216 CLR 473

Suleyman v MIMA [2000] FCA 610

Tien v MIMA (1998) 89 FCR 80

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.

INTRODUCTION

1. The applicant is a citizen of Pakistan. She was born in Punjab state in Pakistan on [date]. She has claimed that her religion is Ahmadi Muslim. She arrived in Australia on a [temporary] visa in early August 2013.

2. The applicant made an application to the Department of Immigration for a Subclass 866 (Protection) visa [in] August 2013. She was interviewed by the delegate of the Minister for Immigration [in] November 2013. The applicant made several claims relating to her fear of harm on the basis of her religion, including that her husband had been injured during an attack on Ahmadis and her son was kidnapped. The delegate did not accept that the applicant’s son was kidnapped, but accepted that she is of the Ahmadi faith and there was a real chance that she would be persecuted on the basis of her religion. The delegate found, therefore, that the applicant had a well founded fear of persecution for one of the five reasons set out in the Refugees Convention, and she was owed protection obligations. The applicant was granted a Protection visa [in] January 2014.

3. Following the grant of the Protection visa, the applicant’s [husband] lodged an application for a Subclass 100 (Partner) visa in [City 1]. Their [children], [named], were included in the application as dependents of [the applicant's husband]. The applicant’s husband and son were interviewed in [City 1] [in] March 2015 in relation to the Partner visa applications.

4. The delegate of the Minister for Immigration made a decision to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act [in] February 2017. The applicant’s Protection visa was cancelled on the basis that she had provided incorrect information in her Protection visa application. The delegate found that during the interview for the Partner visa held in [City 1], the applicant’s husband and son provided inconsistent and contradictory information about her son’s kidnapping and the injuries her husband had sustained. The delegate referred to the discretionary factors as to whether, notwithstanding the breach, the applicant’s Protection visa should be cancelled. The delegate stated that the applicant’s claims relating to the kidnapping and injuries to her husband formed the basis for the applicant establishing claims for Australia’s protection, and her visa was granted based wholly or partly on the incorrect information. The delegate accepted that the applicant was involved in the Ahmadiyya community in Australia but placed little weight on this factor. The delegate found that the applicant would be barred by s.418 of the Act from making a further application for a protection visa, but she would have an International Treaties Obligations Assessment (ITOA) completed before a decision was made to remove her from Australia to Pakistan. The delegate found, therefore, that a decision to cancel her visa would not necessarily cause her to be returned to her country of origin in breach of Australia’s non-refoulement obligations under the Refugees Convention.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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 relevant law is attached to this decision.

   RELEVANT EVIDENCE

   The applicant’s Protection visa application

6. As stated above, the applicant lodged an application for a Protection visa in August 2013. The applicant claimed in her Protection visa application that she is an Ahamdi from Pakistan. She claimed that she studied at a [high] school and completed Grade [number] in [year]. She claimed that she ceased her studies because of religious persecution. The applicant stated that she was an active member of the Ahmadi community and involved in the [Ahmadiyya] in [a certain] region. In 1993, the organisation was attacked by a large group of fundamental Mullahs and members of the Khatme Nubuwat organisation. The applicant’s father arranged for her to marry and in November 1993 she was married at the age of [age] years and she relocated to Lahore to live with her husband. The applicant established a [business] in Lahore and later set up another [business]. She maintained a low profile and only a few of her close friends and employees knew that her religion is Ahmadi. Her business was progressing well and she planned to export her [products]. However, [in] May 2010 about [number] Ahmadis were killed by extremists whilst praying at their mosques. The applicant states that her husband experienced minor injuries during the attack. The applicant stated that nothing further happened until [August] 2013 when one of her employees, [Mrs A], came to her company after business hours and stole her stock of [goods]. The applicant and her husband later learned that [Mrs A] had been assisted by some Mullahs who had discovered that the applicant and her family are Ahmadis. The plans to occupy the business were made after the applicant left Pakistan to visit her family in Australia.

7. The applicant also referred in her statement to the kidnapping of her [son], which occurred in Pakistan [in] August 2013 when some terrorists came to their home. The applicant stated that her husband and family could not do anything to protect the applicant’s son because terrorists openly fired on them. The applicant claimed that her husband contacted the local Ahmadi community and told them about the incidents and they moved to [Town 1], but their son has remained in the custody of the terrorists. 

8. During an interview with the delegate, held [in] November 2013, the applicant expanded on her claims and stated that her husband reported the kidnapping of his son to the authorities but he did not receive a favourable response and he subsequently paid a ransom of [number] rupees and [his son] was released after one month. Since the attack on their home and business, the family has relocated to [Town 1], where with the assistance of the Ahmadi community, they have found accommodation. They remain in hiding and the applicant’s children do not attend school.

   Delegate’s decision

9. The delegate accepted on the basis of the letter which the applicant provided from the Ahmadiyya Muslim Association of Australia that she is a member of the Ahmadi faith. The delegate stated that the Ahmadiyya Association has assured the Department that letters of support are only issued to genuine Ahmadis and background checks are undertaken to ensure they are genuine. The applicant also presented her Pakistan passport which also lists her religion as Ahmadiyya.

10. The delegate did not accept that the applicant’s business was ransacked and her family attacked by fundamentalists following her arrival in Australia. The delegate found the applicant’s evidence in relation to the attack on her business and her family was “vague and unconvincing” and “even allowing for the applicant’s lack of familiarity with the interview setting and failure to anticipate that her claims would be scrutinised, I formed the impression that she was making up a story and improvising on occasions”. The delegate also referred to the applicant’s claims in relation to her son’s kidnapping. The delegate stated that the applicant applied for protection at a time when her son was allegedly kidnapped, rather than returning home to assist her husband with their son’s release. The delegate stated that the applicant’s actions did not “reflect a genuine concern” for her son’s wellbeing and she has fabricated her claims relating to the kidnapping in order to strengthen her claim for refugee status.

11. The delegate concluded that there are concerns about the applicant’s overall credibility, but considered that she was nevertheless forthright about her experiences as an Ahmadi in Pakistan. The delegate noted that she appeared to be genuinely fearful of persecution for reasons of her religion. The delegate noted that there were no inconsistencies between the applicant’s written claims and the evidence she presented at interview in relation to the practise of her religion. The delegate stated that the applicant is unable to practise her religion freely and is unable to call herself a Muslim, attend prayer ceremonies at a mosque, organise and attend religious gatherings, or meet with other Ahmadi Muslims publicly. The delegate stated that the applicant’s fears are consistent with independent reports by credible human rights commentators on the situation of Ahmadis in Pakistan, and there is no evidence contradicting her claims. The delegate accepted that the applicant was involved in the Ahmadiyya community in Pakistan and was forced to curb the practise of her religion for fear of serious harm. The delegate also accepted that the applicant has a genuine interest in practising her religion openly and has acted in this way in Australia where she lives without the fear of the recrimination she felt whilst in Pakistan.

12. The delegate referred to Pakistan’s laws which create a “precarious” situation for Ahmadi Muslims, whereby they run the risk of prosecution if they declare themselves to be Muslims or practise their religion openly. The delegate also referred to laws which prohibit Ahmadis from engaging in Muslim practices, as well as criminal charges which are imposed on Ahmadis who call themselves Muslims, and the incorporation of these laws which have left Ahamdis at risk of unfair interpretation and application of the blasphemy laws. 

13. The delegate also referred to the decision in S395/2002 v MIMA[1] in which the High Court found that the need to act discreetly to avoid the trheat of serious harm for a Convention reason may in itself constitute persecution. The delegate stated that the existence of ‘Anti-Ahmadi’ laws severely inhibits its followers ability to practise in Pakistan, and Ahmadis are required to mofidfy their behaviour for fear of harm. The delegate further stated that the attitude of the Pakistani government has created an atmosphere of impunity whereby certain hard line Muslim groups who view the Ahmadiyya as heretics are able to target them without fear of legal consdequences. The delegate cited reports from the US Commission on International and Religious Freedom which has reported that Pakistan’s blasphemy and other religiously intolerant legislation has created an atemposhpere of violent extremism and vigilantism. The reports state that the Pakistan authorities have consistently failed to bring perpetrators to justice or take action against those who have incited religiously motivated violence. A number of militant groups have been linked to the extended campaign of violence. The failure to prosecute the perpetrators for various attacks on Ahmadis was also highlighted by Human Righs Watch and reports referring to limited state protection for Ahamdis were also discussed.

    [1] (2003) 216 CLR 473 per McHugh and Kirby JJ at [40].

14. The delegate concluded that the applicant has sought to conceal her Ahamdi religion for fear of provoking arrest and serious assault at the hands of the Pakistani authorities, and for fear of a violent response from persons within the local Muslim community. The delegate stated that the country information indicates that the applicant would be unable to practise her religion freely because if she were to do so it would provoke local forces of intolerance, and she would then face a real chance of persecution for reasons of her religion.

    The section 107 notice

15. [In] November 2016, prior to the cancellation of the applicant’s Subclass 866 visa, the applicant was sent a s.107 Notice (Notice of Intention to Consider Cancellation) of her Protection visa. In the s.107 notice the delegate referred to the applicant’s Protection visa application and the evidence she had provided in her application as to why she feared harm in Pakistan.

16. In the Notice, the delegate set out the applicant’s claims made in her Protection visa application. The delegate referred to the applicant’s claims that her husband had been involved in an attack on a mosque in Lahore and had sustained minor infjuries. The delegate also referred to the interview attended by the applicant’s husband and her children [in City 1], stating that when her husband was asked during the interview whether he was ever involved in any terrorist attacks or had been a victim of any bomb blasts, he had said no. The Notice also referred to the applicant’s claims relating to [Mrs A] and her claims that her [son] was kidnapped following an altercation between [Mrs A] and terrorists. The Notice referred to [her son]’s interview [in City 1], and the applicant’s husband’s statement that none of his children had been kidnapped or received threats, none had decided to move to another city and none of them had gone missing. The delegate also stated in the s.107 Notice that during the interview [in City 1], [her son] had said that he was kidnapped for a period of two days, but he was unable to provide any details and when it was put to him that his father had said that none of his children had been kidnapped, he said that “maybe he couldn’t have known about this. Maybe nobody told him about this. Because he’s depressed”. [The son] then said that he was kidnapped in October 2014 whilst riding his motorcycle. The Notice also referred to [the son]’s comments when advised of the inconsistent nature of his statements and when he was asked during the incident if this incident had actually occurred, he then stated “No, I was very much confused. I am really sorry because I was asked and I told you. These things happen with many Ahmadis. I feel very much insecure. Please forgive me”. He also stated that he had said these things because “just to make the matter serious. Because some officer considers more if you talk about kidnapping and all. But please trust me, that I am telling you now the truth, the complete truth. He stated that he had been kept for two or three hours by some men who saw him on the street and called him into their shop and threatened him.

17. The s.107 Notice also stated that the applicant had claimed that her shop had been stolen from her, but “it was noted that it was only on a rental basis”. The Notice concluded by stating that it is apparent that incorrect information in her Protection visa application was provided. The delegate stated that the Protection visa was granted on the basis that the applicant satisfied Australia’s protection obligations under the Refugees Convention. This determination was based on the information she provided and as that information was incorrect it “appears that you may not have engaged Australia’s protection obligations”. The delegate concluded that the applicant had not complied with s.101(1)(b) of the Act as she provided incorrect answeres in her application at interview, and in information provided in support of her application for Protection.

    The applicant’s response to the Department’s s.107 Notice

18. In response to the Notice of Intention to Consider Cancellation of the applicant’s Subclass 866 (Protection) visa, the applicant’s representative provided a submission to the Department. The representative submitted that the applicant did not know the “true facts” of her son’s kidnapping and [he] was in fact kidnapped by his friend’s family in order for ransom money to be paid. The friend’s family has some connection with [Mrs A] who also has a connection with extremist religious groups and Khatme Nubuwat. It is these connections that the applicant fears.  [The son] is currently living in Lahore with his father, in a suburb away from their previous residence, and the children are residing with their maternal grandparents in [Town 1] for safety reasons. The representative submitted that the incident with [Mrs A] is true and the story has not altered, except for the fact that the applicant now strongly believes that [Ms A] and [her son]’s family friend have some connections.

19. The applicant also provided a statutory declaration, dated 17 November 2016, in which she stated that when she was in Pakistan she received many threats regarding killing and kidnapping. When her business was robbed by [Mrs A] they threatened her family so they relocated to [Town 1] for their safety. The applicant states that [in] August 2013 her [son] called her and said that he has been kidnapped by [Mrs A] and her associates. She states that four weeks after [her son] was released she learned that the kidnappers were not [Mrs A] and her associates, but [her son]’s friend’s family members who kidnapped [her son] and then asked for [number] lacs ransom for his release. Her family already had threats and she felt that her son’s life was at risk so she did not tell anyone about the kidnapping, even her husband, because she was already under great stress and she did not want to lose her son. She states that she decided to pay the ransom money. She states that she paid [number] lacs and her son was released. She states that her husband and [son] currently reside in Lahore and her other children live with her mother in [Town 1].

20. In response to the s.107 Notice, the applicant also provided affidavits by her husband and son and letters relating to [her son]’s cessation of studies. In his affidavit, the applicant’s husband states that he was injured at the Lahore mosque [in] May 2010 when he went for prayers. He states he was not specifically asked, during the interview in relation to the Partner visa application, whether he was injured in the mosque attack. He misunderstood the question and because his injuries were minor he did not consider it seriously as there were dozens of others who were injured and were in a “worse off” situation. The applicant’s husband also states that he was not aware that his [son] was kidnapped because he left for [Town 1] with his [other] children and stayed there for six months. He states that his wife did not disclose this to him for fear that he may report the incident to the authorities and this would compromise the payment of a ransom.

21. In his affidavit, [the son] states that he gave misleading information because he wanted to hide the true story of the kidnapping and he believed his life would be at risk if the true circumstances were disclosed. He stated that the kidnappers told him that they would kill him if he gave information to anyone. [He] further states that he gave three false stories to the visa officer during the interview he attended in [City 1] because “I was upset, confused and did not know how I can hide the real kidnapped story”.

    The applicant’s evidence to the Tribunal

1. Following the lodgement of the application to the Tribunal, the applicant provided documents in relation to her medical condition. She also provided a statement from the President of the Ahmadiyya Muslim Association in [location], dated [May] 2017, stating that she underwent severe persecution in Pakistan due to her religious beliefs and the situation in Pakistan has worsened for members of the Ahmadiyya community since the applicant departed. Many members of the Ahmadi community have been killed and the international media has reported on these killings, and they have been attributed to an increase in intolerance towards members of the Ahmadi community. The President states that the applicant is a law abiding and helping person and she has been a positive and productive member of the Ahmadi Muslim Association [chapter]. The President also states that if the applicant’s Protection visa is cancelled and she is sent back to Pakistan she will have a great risk to her life.

2. A copy of the submission and supporting documents provided to the Department were also provided to the Tribunal. 

3. At the hearing, the Tribunal discussed the information the applicant had provided in relation to the kidnapping and advised the applicant that it had serious concerns that she had provided untrue information about this incident. The applicant was advised that despite this, the Tribunal would nevertheless consider whether she is in fact of the Ahmadi religion and if Australia would be in beach of its international obligations if she was refouled to Pakistan. The Tribunal also advised the applicant that it would consider the other discretionary factors.

4. The applicant and her [sibling], who also attended the hearing, indicated that they wished to give evidence in relation to the kidnapping. The applicant stated that she relied on what her son told her and she was in Australia and did not know the full circumstances of his kidnapping. The applicant stated that she did not tell her husband about the kidnapping and he did not know about it. She stated that her son was held for a month and released after a ransom was paid. The applicant’s [sibling] stated that the applicant is confused about the kidnapping and [her son] was “brainwashed” by his friend to make up a story that they had been kidnapped so they could make some money. [The sibling] stated that when the applicant telephoned [her son] he told her that he had been kidnapped and asked for [number] lacs. The applicant paid [number] lacs to secure his release. The applicant did not tell her husband about the incident due to cultural reasons.

5. The Tribunal commented that the applicant and her family members have provided several inconsistent versions of the kidnapping. The Tribunal advised the applicant that it was unfortunate, despite the fact that she and her [sibling] had taken an oath on the Koran to tell the truth to the Tribunal, that they had continued to provide untruthful evidence in relation to this issue. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Did the applicant breach s.101 of the Act in the way describe in the s.101 Notice?

6. The Tribunal must consider whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the Notice of the Intention to Consider Cancellation (NOICC). The non-compliance identified and particularised in the s.107 notice dated November 2016, was non-compliance with s.101 of the Act which states as follows:

   A non-citizen must fill in or complete his or her application form in such a way that:  (b) no incorrect answers are given or provided.

7. In considering whether there was non compliance in the manner described in the s.107 Notice, the Tribunal has had regard to the terms of the s.107 Notice as it is described above, as well as the applicant’s response to the Department and the submissions to the Tribunal.

8. 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. 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.

9. As indicated above, the delegate found that the applicant had provided incorrect information in relation to her son’s kidnapping in August 2013 and the injuries her husband purportedly sustained during an attack on a mosque in Lahore. The applicant has given various explanations for the inconsistencies at different times in relation to these incidents. The Tribunal does not accept any of these explanations. The Tribunal considers that the applicant’s evidence in relation to these incidents is confused, inconsistent and not credible. The Tribunal does not accept that the applicant’s son was kidnapped or that her husband was injured in an attack on a mosque. The Tribunal finds that this information was incorrect and the applicant did not complete the application form in such a way that no incorrect answers were given. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

10. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. These are discussed below.

    The correct information

11. The Tribunal finds that the correct information is that the applicant’s son was not kidnapped. The Tribunal considers that the applicant and her family’s willingness to continually provide false information about this incident and to continue to do so whilst under oath at the Tribunal hearing casts considerable doubts on their overall credibility and the entirety of their claims. However, the applicant has provided evidence to both the Department and the Tribunal establishing that she is an Ahmadi and the Tribunal accepts that this information is correct. As discussed below, the delegate, when assessing her Protection visa application, also found that the applicant is an Ahmadi. The Tribunal accepts that the applicant’s evidence as to her experiences and the suppression of her religious beliefs as an Ahmadi is consistent with the independent evidence indicating extreme suppression of the Ahmadi faith and an inability of its adherents to practise their religion without fear of serious harm. The Tribunal is also prepared to accept that the applicant’s husband sustained minor injuries in the blast on the Ahmadi mosque in 2010 and that the applicant’s business, which was owned and not rented, was forcibly taken over by an employee, [Mrs A], who had learned about the applicant’s religion.

12. The Tribunal finds, therefore, that the correct information is that the applicant’s son was not kidnapped, but that the applicant is an Ahmadi who was subject to suppression and an inability to freely practise her faith in Pakistan.

    The content of the genuine document (if any)

13. This is not relevant to the Tribunal’s assessment.

    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

14. The delegate found that the decision to grant a visa to the applicant was based wholly or partly on the incorrect information or the bogus document. The Tribunal does not agree with the delegate’s assessment in relation to this matter. The decision record in relation to the grant of the applicant’s Protection visa indicates that the delegate did not accept the applicant’s claims relating to the kidnapping or her husband’s injuries in an incident at the mosque in 2010. In fact, the delegate noted serious problems in relation to the applicant’s credibility, but in a detailed and balanced decision referred at length to the independent evidence relating to the situation for Ahamdis in Pakistan, including the suppression of their religion, the use of blasphemy provisions to penalise Ahmadis, and the unwillingness of the Pakistani state to give Ahmadi’s protection. The delegate in the Protection visa matter also correctly cited the principles set out in the High Court decision of S395 v MIMA[2] which is discussed in further detail below.

    [2] (2003) 216 CLR 473 per McHugh and Kirby JJ.

15. The Tribunal finds, therefore, that the decision to grant the applicant a Protection visa was not wholly or partly based on incorrect information. The delegate granted the Protection visa, notwithstanding the findings that the applicant had provided incorrect information in an attempt to embellish her claims for protection in Australia.

    The circumstances in which the non-compliance occurred

16. The Tribunal considers that the non compliance by the applicant was intentional and she was aware that she was providing false information about the kidnapping of her son. The Tribunal considers that the applicant did so in an attempt to embellish her claims for Australia’s protection. As stated above, the Tribunal considers it problematic that the applicant was willing to fabricate evidence.

    The present circumstances of the visa holder

17. The applicant is currently residing in Australia with her [sibling] and [family]. She is actively involved in the Ahmadi community. She has provided evidence of her commitment and involvement in the Ahmadi community. The applicant has provided evidence that she is currently suffering from medical and psychological problems, the latter problems arising due to her separation from her family and her concern for their wellbeing.

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

18. As stated above, the Tribunal considers that the applicant provided incorrect information. She has not rectified this and has continued to provide incorrect information about the kidnapping of her son in Pakistan.

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

19. The Tribunal is not aware of any other instances of non-compliance and none are set out in the delegate’s decision record.

    The time that has elapsed since the non-compliance

20. The initial non compliance occurred in 2013 when the applicant lodged her application for a Protection visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

21. The Tribunal is not aware of any breaches of the law and none are set out in the delegate’s decision record.

    Any contribution made by the holder to the community.

22. As indicated above, the applicant has claimed that she has contributed to the community in terms of her involvement with the Ahmadi community in [location]. At the hearing, her [sibling] spoke of the applicant’s involvement in assisting [people]. The Tribunal accepts that the applicant has made some contribution to the Australian community.

    Department’s Guidelines

23. Whilst the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’. They are:

    ·whether there are persons in Australia whose visas would, or may, be cancelled under s.140;

    ·whether there are mandatory legal consequences to a cancellation decision; for example

    §  whether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with non-refoulement obligations;

    § whether there are provisions in the Act preventing the person from making a valid application for any visa without the Minister’s personal intervention (e.g.s.46A, s.46B, s.48, 48A etc.); and

    § whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s.189 and removed under s.198

    §  whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[3] for example, if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration;[4]

    §  whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations - that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment;[5] and

    ·any other relevant matter.[6]

    [3] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16) and PAM3: Act – Compliance and case resolution – Guiding principles – Treatment of children (issue date 1/1/12).

    [4] This is consistent with the High Court’s decision in MIMA v Teoh (1994) 183 CLR 273, and with Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC) which states: ‘In all actions concerning children … the best interests of the child shall be a primary consideration’. For guidance on what constitutes an ‘action concerning children’ see Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000) at [38] and Tien v MIMA (1998) 89 FCR 80 (Goldberg J, 3 December 1998) at 105.

    [5] Non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16).

    [6] This overlaps with s.108(a). For example, in Chen v MIBP [2014] FCCA 497 (Judge Cameron, 25 March 2014), the applicant submitted to the Tribunal that their integration into Australian society was relevant to the exercise of the s.109 discretion. The Tribunal’s reasons indicated it gave no weight to this matter, as any such integration was only possible because of the applicant’s fraud in obtaining her visa. The Court found that as a person’s integration into society was not a mandatory consideration under r.2.41, whatever the Tribunal’s approach to that issue was, it would not constitute a jurisdictional error and, in any event, the Tribunal’s approach to the claim was unexceptional.

24. As indicated above, the delegate found that although the applicant would be subject to s.48 of the Act, and would be prohibited from making a further application for a Protection visa, an ITOA assessment would be undertaken if she was subject to removal proceedings. In such circumstances, the delegate declined to consider whether Australia would be in breach of its non-refoulement if the visa was cancelled.

25. In considering these issues, the Tribunal firstly agrees with the delegate’s findings that the applicant would be subject to s.48 and would be prevented from making a further application for a Protection visa, without the Minister’s personal intervention. The Tribunal considers it unlikely in the current environment that the applicant would be permitted to lodge another application for a Protection visa. The Tribunal has also had regard to the delegate’s comments that an ITOA assessment would be conducted prior to the applicant’s removal from Australia. The Tribunal has no information before it as to whether such assessments are routinely conducted prior to a person’s removal from Australia. However, the Tribunal notes s.197C of the Act which was introduced in 2014 which appears to allow for the removal of a person from Australia, regardless of any non-refoulement obligations.[7]

    (1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non citizen

    (2) An officer’s duty to remove as soon as reasonably practicable an unlawful non citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australian’s non-refoulement obligations in respect of the non-citizen.

    [7] Section197C was inserted by amendments to the Migration Act made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Act 2014 (Act No.135 of 2014), s.2 of part 1 of Schedule 5.

26. The provision was briefly considered by the Full Court of the Federal Court in BGM16 v MIBP.[8] In that case, the Minister had argued that even if the applicant was “precluded from obtaining a protection visa … this does not relieve Australia of its non-refoulement obligations. Mortimer and Wigney JJ found that this submission fails to address the amendments made by s.197C which purports to render Australia’s non-refoulement obligations “irrelevant to the performance of the duties of removal elsewhere set out in the Migration Act”. Mortimer and Wigney JJ further found that “whether Australia has such obligations at international law is a different matter, but that is of no comfort … given the presence of s.197C and its purported effect”.[9]

    [8] [2017] FCAFC 72 Federal Court of Australia, Siopis, Mortimer and Wigney JJ, 5 May 2017. This matter concerned the interpretation of s.91WA of the Act.

    [9] BGM16 v MIBP at [74] to [75].

27. The Tribunal acknowledges that the Full Federal Court in COT15 v MIBP (No.1)[10] upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa, whereby the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a Protection visa. However, the Tribunal considers that different factors apply in relation to the cancellation of a Protection visa matter, given that the visa was granted on the basis of findings that the applicant was owed Australia’s Protection obligations. Furthermore, given the introduction of s.197C and the fact that Departmental policy as set out above continues to include a specific reference to Australia’s non-refoulement obligations, the Tribunal considers it appropriate that it have regard to this matter in considering whether the applicant’s Protection visa should be cancelled. The Tribunal has, therefore, considered Australia’s non-refoulement obligations, having regard to international conventions, which includes the Refugees Convention, and its incorporation into the Migration Act.

    [10] [2015] FCAFC 190 (North, Collier and Flick JJ, 22 December 2015) at [38].

28. As stated above, although the Tribunal has found that the applicant has been untruthful about some aspects of her claims, it has been accepted that she is an Ahmadi from Pakistan. As such, the Tribunal has considered whether notwithstanding her willingness to fabricate some aspects of her claims, whether the fact that she is an Ahmadi means that Australia will be in breach of its non-refoulment obligations if she is returned to Pakistan.[11] The Tribunal has referred above to the evidence cited by the delegate in the Protection visa decision in relation to the treatment of Ahmadis in Pakistan, and the delegate’s reference to the High Court decision of S395 v MIMA.[12] The Tribunal has also had regard to the most recent report by the Department of Foreign Affairs and Trade which states the following in relation to the situation for the Ahmadi community in Pakistan:

    There are approximately 500,000 Ahmadis in Pakistan. Ahmadis mostly live in Punjab, including Rabwah, the location of the movement’s headquarters. A larger population of Ahmadis lives outside Pakistan, including Africa, Indonesia, the United Kingdom (UK) and the United States. This includes the Supreme Head of the movement, who has lived in the UK since 1984.

    Pakistan’s Ahmadi community is comparatively well-educated and relatively prosperous. Although there are no formal restrictions on entry into Pakistan’s civil service or security forces, Ahmadis reportedly experience difficulties regarding promotion into the senior levels of these organisations. Unlike some Shia names, it is generally not possible to identify Ahmadis by name alone.

    A number of discriminatory laws inhibit Ahmadis’ rights to practise their religion openly. Although Ahmadis identify as Muslim, the Constitution describes them as non-Muslim. Under Ordinance XX – upheld by the Supreme Court – Ahmadis may not identify, or ‘pose,’ as Muslims. They are also barred from worshipping in non-Ahmadi mosques or public prayer rooms; performing the Muslim call to prayer; using the traditional Islamic greeting in public; publicly quoting from the Quran; preaching in public; seeking converts; or producing, publishing and disseminating religious materials. These acts are punishable by imprisonment for up to three years. Ahmadis also have no representation in Pakistan’s Council of Islamic Ideology. Ahmadis are exempt from the otherwise mandatory 2.5 per cent zakat deductions on personal income.

    Ahmadis continue to experience political discrimination. Changes to the electoral system in 1985 established a separate registration list for non-Muslims. While electoral reforms in 2002 removed the distinction between Muslims and non-Muslims, Ahmadis must still register on a separate, Ahmadi specific list. In the 2013 general elections, many Ahmadis refused to register on this list and were therefore unable to vote.

    The Ahmadi community has told DFAT that Pakistani authorities have demolished, restricted access to, or forcibly occupied Ahmadi places of worship. Mobs have also reportedly set fire to some Ahmadi places of worship, and Ahmadi graves have been desecrated and their dead disinterred. The Ahmadi community has also reported the closure of Ahmadi publications, removal of Ahmadi students from schools and universities, and reporting of Ahmadi communities en masse to local police forces for unspecified crimes.

    Since the promulgation of Ordinance XX, there has been an increase in the number of physical attacks against the Ahmadi community in Pakistan. According to the Human Rights Commission Pakistan (HRCP), 11 Ahmadis died in sectarian violence in 2014. On 17 July 2014, for example, an Ahmadi grandmother and her two granddaughters died when a mob set fire to their house in Gujranwala, Punjab.

    According to the Ahmadi community, authorities have colluded and participated in some of these attacks. The leaked Abbottabad Commission report also suggests that police in Lahore protected perpetrators of violence against Ahmadis in 2010. DFAT is unable to verify these claims.

    DFAT assesses that Pakistan’s Ahmadi community is subject to a high level of official discrimination, which impacts their ability to freely practice religion and limits the extent of their political engagement. Ahmadis are also subject to a moderate level of societal discrimination and a low level of violence, although this violence is generally mitigated by Ahmadis’ relatively high socioeconomic status.[13]

    [11] Abebe v The Commonwealth (1999) 197 CLR 611 per Gummow and Hayne JJ at [190]-[193]. See also Kirby J at [211] where his Honour agreed that, even if an applicant is disbelieved, the primary decision-maker and the Tribunal must still consider whether, on any other basis asserted, a fear of persecution exists which is well-founded so as to ground the protection claimed.

    [12] (2003) 216 CLR 473 per McHugh and Kirby JJ.

    [13] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report: Pakistan, 15 January, pp. 10 to 11.

1. On the basis of this independent information, the Tribunal accepts that Ahmadis in Pakistan suffer from official discrimination as a result of the “anti-Ahmadi” laws. They are prevented from calling themselves Muslim, they are prevented from holding conferences or gatherings and their right to worship is restricted. The laws prohibiting blasphemy continue to be used disproportionately against Ahmadis and, even if those accused under such laws are ultimately acquitted, they may spend long periods in gaol where they face discriminatory treatment for reasons of their religion. Ahmadis also continue to be victims of sectarian violence instigated by religious extremist groups. The Tribunal accepts that DFAT’s assessment is consistent with other sources considered by the Tribunal and the delegate in the Protection visa decision, that the Ahmadi community in Pakistan is subject to a high level of official discrimination, and they are unable to freely practice their religion. A report provided to the Tribunal by the applicant during the hearing, by the Ahmadiyya Muslim Community of Australia also refers to continuing attacks against the Ahmadi community in Pakistan, noting that these attacks have primarily occurred in the Punjab. The report also indicates that in 2016 counter terrorism forces raided Ahmadi offices in Rabwah.

2. As set out in the delegate’s decision record and discussed above, in S395/2002 v MIMA[14] the High Court found that an applicant cannot be required to take steps, reasonable or otherwise, to avoid offending his or her persecutors, or to modify some attribute or characteristic to avoid persecution. According to S395 v MIMA, where an applicant may avoid persecution by acting discreetly or otherwise modifying his or her behaviour, the decision-maker must consider why the applicant will act in that way; and what would happen to the applicant if she or he did not do so. If the reason for the modification is the applicant’s fear of persecution, and that fear is well founded that person may be a refugee within the meaning of Article 1A(2). In view of the considerable amount of evidence regarding the extent and level of persecution of Ahmadis in Pakistan, including at the official level, the Tribunal is satisfied that the applicant would be unable to openly and freely practice her religion if she returns to Pakistan. The Tribunal accepts that if the applicant returns, or is refouled to Pakistan, she will be forced to modify her behaviour and practice her religion discreetly in order to avoid harm in Pakistan. Such modification would include not praying in public, she would be unable to call herself Muslim, and she would be unable to attend Ahmadi mosques without fear of harm. The Tribunal accepts she would modify her behaviour as a result of the threat of harm, and this need to modify her behaviour in relation to her personal religious belief in itself amounts to persecution. The Tribunal accepts that it is impermissible for the Tribunal to require the applicant to return to Pakistan and practice her religion discreetly in order to avoid persecutory harm. The Tribunal is satisfied that the applicant would be unable to freely practise her religion throughout Pakistan. The blasphemy laws also apply to the entire country and the applicant fears arrest, serious assault or death on the basis of her Ahamdi faith and she fears harm from both the State and non-State options. The Tribunal finds in such circumstances that the applicant cannot relocate to avoid the harm she fears and she is also unable to access State Protection. The Tribunal finds, therefore, applying the legislation in place at the time of the grant of the Protection visa, that there is a real chance she would be persecuted for one or more of the reasons set out in the Refugees Convention, and the real chance of persecution relates to all areas of the relevant country. The Tribunal finds that the applicant has a well founded fear of persecution for a Convention reason, being her Ahmadi religion.

   [14] (2003) 216 CLR 473 per McHugh and Kirby JJ at [40] and per Gummow and Hayne JJ at [80].

3. In the alternative, the Tribunal has also considered the legislation which applied at the time of the cancellation or that which would apply if a Protection visa was granted at the time of this Tribunal’s decision.[15] The Tribunal has found above that the Ahmadi community in Pakistan is subject to considerable suppression and there are considerable risks for persons who identify as Ahmadi and attempt to publicly practise his or her faith. The Tribunal finds, therefore, that the applicant has a well founded fear of persecution for reasons of her religion, as set out in s.5J(1) of the Act. The Tribunal also finds that the applicant is not excluded by s.5J(1). This is because the Tribunal is satisfied that she could not take reasonable steps to modify her behaviour to avoid a real chance of persecution in Pakistan, as that modification would require her to alter her religious beliefs, including by concealing her true religious beliefs, or ceasing to be involved in the practice of her faith.[16]

   [15] There is no judicial consideration of the applicable legislation in relation to his issue. At the time the applicant’s visa was granted in January 2014 s.36(2)(a) of the Migration referred specifically to the Refugees Convention. The amended version of 36(2)(a) (post 14 December 2014) refers only to Australia’s Protection visa obligations. However, both the pre and post December legislation (s.5J(1)) refers to the requirement which is drawn from the Refugees Convention that Australia’s protection obligations are owed to someone who has a well founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion

   [16] s.5J(3)(c)(i).

4. The Tribunal finds, therefore, that the applicant is owed Australia’s protection obligations. The Tribunal also finds that Australia would be in breach of its international obligations as set out in the Refugees Convention in terms of the non-refoulement as it has been incorporated into the Migration Act.[17]

   Conclusions on discretionary factors

   [17] Section 36(2)(a) or s.5J(1).

5. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. The Tribunal has found, that the incorrect information was not wholly or partly a basis for the grant of the applicant’s Protection visa and considers it evident that notwithstanding the breach of s.101 she would have been assessed as meeting the criteria for the grant of a Protection visa on the basis of her Ahmadi faith and her inability to practise this faith without suffering serious harm in Pakistan. The Tribunal has also found that the applicant is owed Australia’s Protection obligations as a result of her Ahmadi faith and that Australia would be in breach of its international obligations if she was refouled to Pakistan. Accordingly, having regard to all the relevant circumstances, as discussed above, 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) visa.

   Susan Pinto
   Member

   
   

   ATTACHMENT – Relevant Extracts from the Migration Act 1958:

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)     stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)     requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.