1710637 (Migration)

[2020] AATA 3045

1710637 (Migration) [2020] AATA 3045 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710637

MEMBER:Alison Murphy

DATE:10 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 June 2020 at 12:06pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in protection visa – previous residence and unsuccessful asylum application under another name in third country – use of incorrect information admitted – consistent and credible evidence – documentation confirming identity – exact date of birth unknown – Hazara ethnicity, Shia religion, imputed political opinion and work for foreign agency – country information – general conditions and specific attacks on Hazaras – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

CASES
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she considered the applicant had given incorrect information in his protection visa application. 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. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

5. The applicant is a young male arrived in Australia by boat [in] October 2009 and applied for a protection visa, identifying himself as a citizen of Afghanistan of Hazara ethnicity. On the basis of information provided in his protection visa application, he was granted a Class XA Subclass 866 protection visa on 16 December 2009 and a subclass 155 resident return visa on 13 November 2015.

6. On 18 January 2017 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising him that she was considering the cancellation of his protection visa on the ground that she was not satisfied as to his identity. 

7. Correspondence between the delegate and the applicant’s former representative identified that the notice dated 18 January 2017 contained a number of factual errors including information that did not appear to relate to the applicant.

8. As a consequence a further s.107 notice was sent to the applicant by email on 13 February 2017. In summary, the s.107 notice sets out the following:

   ·In his protection visa application, he identified himself as [the applicant], born [Date 1, Year 1]. He stated he had not been known by any other names (questions 1, 3, 4 and 7);

   ·In response to questions asking for details of countries in which he had travelled, resided or transited through before his arrival in Australia, he listed these countries as Afghanistan, [Country 1], [Country 2] and [Country 3] (questions 32, 33 and 34);

   ·In response to questions asking whether he had ever applied for refugee status or applied to migrate to a country other than Australia, he answered no (questions 56 and 57);

   ·On the basis of this information, he was granted a protection visa on 16 December 2009;

   ·As part of his protection visa application process, the applicant provided biometric information including his fingerprints. On 10 October 2014 the Department of Immigration (the Department) became aware that his fingerprints had been matched to those of [Alias], born [Date, Year 2], who resided in [Country 4] between [April] 2002 and [October] 2006 before being removed from [Country 4] after his asylum application was refused and he had exhausted all appeal rights;

   ·The biometric information indicated the applicant had given incorrect information in his protection visa application as to his name, date of birth, his countries of former residence and travel and his migration history;

   ·On 13 November 2015, the applicant lodged an application for a Subclass 155 resident return visa, in which he provided personal information consistent with his protection visa application. The biometric information indicated he had also provided incorrect information in his resident return visa application as to his name, date of birth and whether he had been known by any other names.

9. The s.107 notice invited the applicant to comment on the information contained in the notice.

10. The applicant responded to the s.107 notice by way of documents and submissions provided to the delegate on 27 February 2017. In a statutory declaration dated 27 February 2017 the applicant acknowledged that he was in [Country 4] between [April] 2002 and [October] 2006 where he used the name [Alias]. He stated that this is not his real name, rather his real name is [the applicant]. He stated (in summary):

    ·He is a Hazara Shia from [Town], Jaghuri and the details he provided about his family in his protection visa application are correct. Apart from his statements about attending school in Afghanistan after 2002, all the information in his statutory declaration made 13 November 2009 is correct;

    ·He was very young when he went to [Country 4], about [Age 1] years old. The decision to send him to [Country 4] was made by his family for his safety. He travelled overland with a group, following the directions of an agent. He gave his real name [the applicant] when the group were first interviewed by government officials in [Country 5] and the group continued to travel through [Country 6] to [Country 4]. The agent and others in the group told him not to use his real name in [Country 4] or he would be sent back to the first country in which he had registered, being [Country 5]. When they arrived in [Country 4], he gave his name as [Alias]. When he was asked his age, he told the [Country 4] officials he was [Age 1] and they assigned him a date of birth;

    ·He was granted a visa to remain in [Country 4] until he was [Age 2] and when this expired, he had to go to court and re-apply. His application was refused because [Country 4] said the situation in Afghanistan had improved, especially in big cities like Kabul, and it was safe for him to return. He went through the appeal processes available to him but in the end had no choice but to return to Afghanistan;

    ·On return to Afghanistan, he went back to his family land in Jaghuri, but there was no work so he could not stay permanently. He found a job working in the [Agency] in Kabul (being an international aid agency discussed in the November 2009 statutory declaration accompanying his protection visa application) working first as [an Occupation 1] in a [facility] and later being promoted to [an Occupation 2]. [The] Agency were part of USAID and working for them was a risk, but he was desperate for work and there were no other jobs available;

    ·He did not feel safe in Kabul, where he finished work late at night [and] had to travel back to his accommodation. He also travelled from Kabul back to Jaghuri to see his family and vehicles he travelled in were stopped three times by the Taliban on the road back to Jaghuri. There were attacks happening in the city often and on two occasions he was close to locations where suicide bombers attacked. His brother [Mr A] went missing in early 2009 and the applicant made the decision to leave Afghanistan again, fearing he would be at risk of kidnapping because he worked for a foreign agency;

    ·Having already been returned from Afghanistan to [Country 4], he didn’t know if he was allowed to put in applications in more than one country and feared being sent back to Afghanistan again if he said he had already applied for asylum in [Country 4].

    ·He is unsure of his exact age or date of birth as such things are not recorded in Afghan culture, but he worked out his year of birth from the taskera issued to him by the local government office in Jaghuri after his return to Afghanistan from [Country 4]. He chose [Date 1, Year 1] as his date of birth when he came to Australia in order to avoid being assigned the date 31 December or 1 January.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Did the notice comply with the requirements in s.107? 

13. As noted above, a notice under s.107 was first sent to the applicant on 18 January 2017 but that notice was quickly identified as containing a number of errors, including information that did not relate to the applicant.

14. As a consequence a further s.107 notice was sent to the applicant by email on 13 February 2017. No issues have been raised about the validity of the notice by the applicant or his representative. The Tribunal observes that it sets out in some detail the information given by the applicant in his protection and resident return visa applications that is now said to be incorrect, as well as the basis on which that information is now said to be incorrect. The Tribunal is satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

15. 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.

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

16. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

    Incorrect information as to travel and visa history

17. The applicant concedes he gave incorrect information in his protection visa and resident return visa applications about his migration history, including that he had been resident in [Country 4] between 2002 and 2006 and had applied for asylum in that country. He also concedes that he was known by the name of [Alias] in [Country 4]. I find the applicant gave incorrect information in his protection visa applications as to whether he was known by any other name, the countries in which he had travelled, resided or transited through before his arrival in Australia and whether he had ever applied for refugee status or applied to migrate to a country other than Australia (questions 4, 32, 33, 34, 56, 57).

    Incorrect information as to identity

18. The applicant does not dispute the biometric match referred to in the s.107 notice matching him to a person known to the [Country 4] authorities as [Alias]. Indeed he has produced to the Tribunal further documents from the [Country 4] authorities (the GCID records) which confirm that he was known to the [Country 4 Government agency] as [Alias], an Afghan national born [Date, Year 2]. Those documents indicate that he was refused asylum in [Country 4] [in] April 2002 but apparently granted leave to remain for a period because of his young age. He became liable for removal in July 2006 and was detained by police [in] September 2006 and charged with offences related to the presentation of a counterfeit [Country 5] passport. It appears he was held in detention until his deportation back to Afghanistan from [Country 4] in October 2006.

19. While the applicant concedes he was resident in [Country 4] between 2002 and 2006 where he was known by the name of [Alias], he denies [Alias] is his correct identity or that [Date, Year 2] is his correct date of birth. Rather he asserts that the identity under which he was granted the visa in Australia is his true identity, being [the applicant] son of [Mr B] born around [Year 1].

20. For the following reasons I accept that to be true.

21. Firstly, the applicant has provided a plausible explanation as to why he falsely identified himself to the [Country 4] authorities, being to prevent his return to the place he first registered as a refugee in the EU:

    ·The applicant has explained that he travelled to [Country 4] with the assistance of a people smuggler via [Country 1], [Country 7] and [Country 8] before entering [Country 9] by boat where he registered with the UNHCR under his correct name of [the applicant]. He crossed the border from [Country 9] into [Country 5] by boat, where he was arrested and fingerprinted by the [Country 5] police, again giving his name as [the applicant];

    ·He travelled on to [Country 4] via [Country 6] by train and on arrival in [Country 4] did not give his real name because he knew that having been registered in [Country 9] and [Country 5], existing EU policy meant he faced being sent back to the country of his first arrival in the EU. [Country 4] had a reputation among asylum seekers as having more work and a simpler process for claiming asylum and he was advised by the people smuggler not to give the [Country 4] authorities his real name.

22. Secondly, the applicant has produced a significant number of identity documents that support his claimed identity of [the applicant], son of [Mr B]:

    ·A certified copy of an Afghan taskera and English language translation confirming his claimed identity as [the applicant], son of [Mr B]. The delegate’s cancellation decision records that this taskera was provided by the applicant both at the time of his initial arrival in 2009 and again in response to the s.107 notice. It records that it was issued in 2007, which is consistent with the applicant’s evidence he obtained it after his deportation from [Country 4] back to Afghanistan. Taskeras are the primary identification document in Afghanistan, usually issued by the local provincial Population Registration Department and are not subject to a centralised system or computerised recording for registration and oversight.[1] The absence of security features on taskeras means it is not possible to reach a complete state of satisfaction about the genuineness of that document, however it is consistent with the details provided in his protection visa application and other documents provided in support of his partner visa application, including his marriage certificate;

    ·Two Afghan passports in the identity of [the applicant], issued [in] [2009] and [2020] respectively. The latter document was issued by the Afghan Consulate in Canberra and a certified copy has been provided to the Tribunal;

    ·An Afghan marriage certificate in the identity of [the applicant] evidencing his marriage to [Ms C] [in] June 2013 in [Country 1] and recording his father’s name as [Mr B];

    ·A student card from Kabul, Afghanistan in the identity of [the applicant] recording his father’s name as [Mr B];

    ·A tourist visa issued by [Country 10] [in] May 2009 in the name of [the applicant], son of [Mr B].

    [1]UNHCR May 2005 Frequently Asked Questions: A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras) CIS9BE2467847, p.2; Immigration and Refugee Board of Canada 2011, Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features, September at

23. By contrast there are no identity documents before me that would indicate that the applicant has ever been known as [Alias] other than by the [Country 4] authorities, nor is there anything in the documentation before me from the [Country 4 Government agency] that would suggest the applicant provided it with identity documents under the name of [Alias]. I have viewed the correspondence dated 2 June 2020 between the applicant’s representative and the [Country 4 Government department] in relation to their request for further records and I accept the [Country 4 Government department] holds no further data in relation to the applicant under the names of [Alias] or [the applicant].

24. Thirdly, the applicant’s claimed identity is supported by the evidence of a number of witnesses who knew the applicant or his family in Afghanistan. [Mr D] states he is originally from Jaghuri, Ghazni province where he knew the applicant and his father [Mr B]. [Mr D] has provided the Tribunal with a copy of the front pages of his Australian passport as proof of his identity. [Mr E] from [Location], Jaghuri, Ghazni states he knew the applicant, his brother [Mr F] and his father [Mr B] in Jaghuri, Afghanistan. [Mr E]’s daughter [Ms G] is married to the applicant’s brother [Mr F]. [Mr E] has also provided the Tribunal with a copy of the front pages of his Australian passport as proof of his identity. [Mr H] is a [Country 4] citizen who was sponsored to Australia by his wife, an Australian citizen. He met the applicant in [Country 4] where they played football together as part of the Afghan community. He knew the applicant as [the applicant’s given name] in [Country 4]. [Mr H] has provided the Tribunal with a copy of his Australian visa grant notice as proof of his identity.

25. Fourthly, the applicant’s claimed identity is consistent with visa applications made by his family members. The delegate’s cancellation decision records that the applicant’s brother, [Mr F], has been in Australia as the holder of a partner visa since 2015. [Mr F] declared the applicant to be his brother [the applicant] in his Australian visa application, prior to the applicant being notified that consideration was being given to cancelling his visa. [Mr F] and his wife [Ms G] have also provided written evidence to the effect that the applicant is [the applicant], brother of [Mr F].

26. In relation to his date of birth, I accept the applicant’s evidence that he has never known his exact date of birth as such things are not recorded in Afghan culture. The Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon, and the reporting of dates of birth is unreliable and reported dates are likely to be approximate[2]. I accept the applicant believed himself to be about [Age 1] years old when he arrived in [Country 4] in 2002 and reported this to the [Country 4] authorities, who assigned him a nominal birth date of [Date, Year 2]. When he returned to Afghanistan, his mother told him that he was about [Age 3] years old in 2007 and his Afghan taskera issued in that year records that his determined age is [Age 3] years in 2007. His first Afghan passport issued in 2009 records his date of birth as [Date 2, Year 1], which I accept to be an approximation.

    [2] DFAT DFAT Country Information Report: Afghanistan at 5.49

1. I accept the applicant chose the date [Date 1] when he arrived in Australia and was required to provide a full date of birth in order to avoid being assigned a nominal birth date of 1 January or 31 December. The Afghan passport issued by the Afghan Embassy in Canberra in [2020] records his date of birth as [Date 1, Year 1], consistently with his date of birth in Australia.

2. For these reasons I am satisfied the correct identity of the applicant is [the applicant]. While the exact date of his birth is not known to him and cannot otherwise be established, I accept that to the best of his knowledge he was born in the year [1]. For the purposes of this review I find that his date of birth is that which he provided to the Australian authorities, [Date 1, Year 1], acknowledging that the day and birth month are merely approximations.

   Conclusion on non-compliance

3. For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application as to whether he was known by any other name, the countries in which he had travelled, resided or transited through before his arrival in Australia and whether he had ever applied for refugee status or applied to migrate to a country other than Australia (questions 4, 32, 33, 34, 56, 57). I have not accepted he gave incorrect information about his name and date of birth (questions 1 and 7).

4. For these reasons, I find that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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 Migration Regulations 1994 (the Regulations).

7. The correct information: I consider the correct information is that the applicant was resident in [Country 4] between 2002 and 2006, applying for asylum in that country before being removed from [Country 4] to Afghanistan in 2006. I consider he was known to the [Country 4] authorities as [Alias], an Afghan national born [Date, Year 2].

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

9. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Department’s Protection Visa Decision Record (decision record) and Refugee Status Assessment Record (RSA record) need to be read together to assess the basis on which the applicant was granted a protection visa. While the decision record makes bare findings about the eligibility of the applicant for the protection visa, the RSA record contains the analysis and assessment of his claims and the country information considered. Both documents were authored by the same delegate.

10. On the basis of those documents, I am satisfied the applicant’s protection visa was granted because the delegate was satisfied he faced a real chance of persecution by the Taliban or other insurgents for the combined reasons of his Hazara ethnicity, his Shia religion and his imputed political opinion arising out of his employment for [the] Agency.  The delegate records that he found the applicant a generally credible witness who answered the questions asked of him in a forthright manner, including questions relating to his employment as [an Occupation 1] and [Occupation 2] for the [Agency].

11. The applicant’s ethnicity and religion are not in dispute. His employment with the [Agency] occurred after he was returned to Afghanistan from [Country 4] in 2006. The situation for Hazaras in Afghanistan deteriorated between 2006 and 2009, with the delegate citing country information in his decision indicating that 2008 was the most violent year in Afghanistan since 2001 and January 2009 recorded 75% more security incidents than January 2008 as insurgents continued to expand their presence in previously stable areas of the country. For these reasons I am satisfied that the applicant would have been granted the protection visa by the delegate even had he disclosed his [Country 4] travel. This is particularly the case given the delegate who made the decision to cancel the protection visa recorded in her decision that 99.2% of protection visa applications lodged by citizens of Afghanistan in the 2009/10 financial year in Australia were granted.

12. For these reasons I am not satisfied the decision to grant the visa was based in any part on the incorrect information.

13. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2009 protection visa application and again in his citizenship application in 2014. He states he gave the incorrect information because he was advised by the people in the detention centre that he should not mention his trip to [Country 4] and his efforts to seek asylum there and that he is deeply sorry for not disclosing this information. I accept he was still very young when he arrived in Australia and had experienced difficult personal circumstances, including travelling alone and undocumented to [Country 4] at a young age and being detained by both the [Country 5] and [Country 4] authorities before being deported back to Afghanistan and undertaking a dangerous boat journey to reach Australia.

14. The present circumstances of the visa holder: The applicant is a [Age 4]-year-old male living with his brother and his brother’s wife in [Suburb], Victoria. Since arriving in Australia he has learned to [do a job task], working with [an Occupation 3] until he was skilled enough to become an independent contractor. In about 2014 he went into partnership with another person to run [Company 1] and in 2016 he started his own business, [Company 2]. He was a director of that company until his visa was cancelled but took his name off the business as he did not want to work unlawfully and is now just a shareholder in the business. The business is now run by his brother, who was trained as [an Occupation 3] by the applicant in Australia. The business employs [a number of] people and had a total income of $[Amount] in the last financial year as evidenced by the financial statements provided to the Tribunal.

15. The applicant married [Ms C] in 2013 in [Country 1] but has been unable to bring his wife to Australia because of his visa cancellation. [Ms C] remains in Kabul with the applicant’s family and they have been separated for seven years.

16. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant admitted to the non-compliance in his response to the s.107 notice and has provided further information about his travel to [Country 4].

17. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that the applicant again provided the same incorrect information in his citizenship application in 2014.

18. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his statement in support of his visa application in late 2009 and approximately 10 years have elapsed since then.

19. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

20. Any contribution made by the holder to the community: The applicant states he has contributed to the community by gaining experience as [an Occupation 3], starting a business that employs and trains others and providing business advice to his brother [Mr F], who has taken over the business since the applicant’s visa was cancelled.

    Other factors to be considered

21. While 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 Procedures Advice Manual, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

22. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

23. As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

24. In relation to the Refugees Convention, the Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    -    there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    -    the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

25. In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made.

    Well-founded fear of persecution

26. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity, his Shia religion and his political opinion.

27. In assessing those claims I have taken account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.

28. For the reasons set out above, I have found the applicant is [the applicant], Afghan national and I have assessed his claims against that country. As noted above, the applicant’s Hazara ethnicity and Shia religion are not in dispute and the delegate accepted the applicant’s account of his employment as [an Occupation 1] and [Occupation 2] for [the] Agency after his return to Kabul following his deportation from [Country 4] in 2006. The applicant grew up in [Town], Jaghuri. However prior to travelling to Australia in 2009, the applicant lived and worked in Kabul for several years and his family have also relocated from Jaghuri to Kabul. For these reasons I find he would return to Kabul if returned to Afghanistan.

29. DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, with the worst recorded massacre in recent history occurring in 1998, when the Taliban massacred at least 2,000 Hazara in Mazar-e-Sharif, leading many Hazara to flee Afghanistan[3].

    [3] Ibid at 3.8.

30. DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains, however the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups.[4]

    Future risk of harm

    [4] Ibid at 3.7 – 3.16.

31. DFAT reports that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. A number of anti-government elements (AGEs), most significantly the Taliban, remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence[5].

    [5] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.

32. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the Afghan National Defence and Security Forces (ANDSF) and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[6].

    [6] Ibid.

33. The United Nations Assistance Mission in Afghanistan (UNAMA) reports that conflict related civilian casualties rose considerably between 2013 and 2014 and have remained high in subsequent years. DFAT notes that of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, which increased by 48% in 2018, causing 1,404 deaths and 2,721 injuries[7].

    [7] Ibid at 2.60 – 2.69.

34. UNAMA also documented 271 incidents of conflict-related abductions carried out by AGEs in 2018, affecting 1,857 civilians and resulting in the death of 53 and the injury of 33[8]. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence[9].

    [8] Ibid at 2.75 – 2.80.

    [9] Ibid at 2.70 – 2.74.

35. DFAT states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’[10].

    [10] Ibid at 3.7 – 3.16.

36. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[11].

    [11] Ibid at 3.42 – 3.46.

37. In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, Islamic State Khorasan Province (ISKP) emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city[12].

    [12] Ibid at 3.29 – 3.35.

38. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul[13]. Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack[14].

    [13] Ibid at 3.29 – 3.35.

    [14] >

    In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, have significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads[15].

    [15] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at

1. The DFAT report indicates that Hazaras and Shias in Kabul have been subjected to ongoing major attacks since mid-2016, that those attacks are religiously motivated and have recently targeted Shia majority or ethnic Hazara neighbourhoods. DFAT assesses that Shias in Afghanistan face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities, including Kabul[16].

   [16] Ibid at 3.29 – 3.35.

2. DFAT also reports that Hazaras have distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan and are widely perceived as being supporters of the government[17]. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban, and that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[18].

   [17] Ibid at 3.7 – 3.16.

   [18] Ibid at 3.42 – 3.46.

3. Other more recent sources note some progress on long awaited peace talks between the Taliban and the Afghan government currently on foot in Afghanistan. In the lead up to February 2020, the US and the Taliban engaged in talks to reach an agreement allowing for a phased withdrawal of US troops in Afghanistan amid a permanent ceasefire, counter-terrorism assurances from the Taliban and intra-Afghan dialogue. Those talks largely excluded the Afghan government[19].

   [19] ‘Reintegration of Ex-Combatants: Lessons from the U.S. Experience in Afghanistan’, 19 September 2019, Special Inspector General for Afghanistan Reconstruction, 20191101102841;

4. In February 2020, a deal signed between the US and the Taliban stipulated that the Afghan government would release 5000 Taliban prisoners while the insurgents would free about 1000 Afghan security force personnel ahead of long-awaited peace talks between the Afghan government and the Taliban. Violence across Afghanistan reportedly spiked following the peace deal, leaving record numbers of civilians dead and inflicting heavy casualties on Afghanistan’s security forces. As a result President Ashraf Ghani halted prisoner releases and put his forces back on the offensive. The situation appeared to improve in May 2020 when the Taliban declared an unexpected three day ceasefire over the Eid al-Fitr holiday and both sides began releasing prisoners again[20].

   [20] >

   However as at the time of the Tribunal’s decision, formal peace talks have not commenced. Commentators report that both sides have made their priorities clear – the Afghan government wants the country to remain a republic with regular elections; while the Taliban wants a country governed by Islamic law. Analysts report that the Taliban has been emboldened by the deal with the US and Afghan officials reported more than 3800 attacks since it was signed in February 2020, killing 420 civilians and wounding 906[21].

   [21]

5. In May 2020 UNAMA reported rising numbers of civilian casualties in Afghanistan, noting the Taliban were responsible for 208 casualties in April 2020, an increase of 25% on April 2019. UNAMA documented the following major insurgent attacks in May 2020 to include:

   ·An attack on a Kabul hospital on 12 May, targeting its maternity ward, which resulted in at least 24 civilians killed, almost all of whom were female patients;

   ·An ISKP-claimed suicide attack at a funeral in Nangarhar on 12 May, which resulted in at least 19 civilians killed and many more injured;

   ·A Taliban-claimed suicide truck bomb attack on 14 May in downtown Gardez, which injured at least 33 civilians;

   ·An ANSF airstrike in Balkh on 11 May, which killed nine civilians and injured 13 while those civilians were being forced by the Taliban to destroy a road to block ANSF[22].

   [22] UNAMA Rising Civilian Casualty Numbers Highlight Urgent Need to Halt Fighting and Re-Focus on Peace Negotiations 19 May 2020 at >

   In view of the sources cited above, I consider it too early to conclude that there will be any lasting or durable change to the security situation in Afghanistan in the foreseeable future. Rather I accept DFAT’s assessment that it is dangerous, complex and highly fluid, varying considerably by location.

6. In view of DFAT’s advice about the situation for Shias, Hazaras and persons associated with the Afghan government or international community, I accept there to be a real chance the applicant will face serious harm if he returns to Kabul, now or in the reasonably foreseeable future, for the essential and significant reasons of his Shia religion, his Hazara ethnicity and his imputed political opinion.

7. In this case, the harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect him from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. 

8. As to whether the applicant will receive protection from the Afghan state from the harm that he fears, DFAT indicates that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest[23]. In such circumstances I find that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect[24].

   [23] Ibid at 5.1 – 5.4.

   [24] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

9. It follows that I accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion, his Hazara ethnicity and his imputed political opinion if he is returned to Kabul, now or in the reasonably foreseeable future.

10. In considering whether the applicant could reasonably relocate to another part of Afghanistan to avoid the harm he fears in Kabul, I note he originates from [Jaghuri] and at the time he left Afghanistan in 2009 his family still had some farmlands there.

11. Ghazni province forms part of the Hazarajat and DFAT assesses that Hazara residing within the Hazarajat generally face a lower risk of conflict related violence than those residing in other parts of the country, particularly Kabul. However DFAT also reports the security situation in Jaghuri deteriorated significantly in 2018, with large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, leading to protracted fighting and large scale displacement since August 2019.[25]

    [25] DFAT Country Information Report Afghanistan 27 June 2019 at 2.60 – 2.69.

12. The applicant’s remaining family members have relocated to Kabul since his arrival in Australia and his wife lives with the applicant’s family in Kabul. In these circumstances I do not consider it reasonable for the applicant to relocate to Jaghuri, notwithstanding the fact he lived there until [Age 1]. The material before me does not identify any other place to which the applicant could reasonably relocate and I find that relocation is not reasonable in his particular circumstances.

13. Further I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence, the fact that the applicant has not lived in Afghanistan for more than a decade and has no family outside of Kabul, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

14. For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Shia religion, his Hazara ethnicity and his imputed political opinion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations. It is therefore not necessary for me to go on and consider the applicant’s other claims to protection.

15. Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) of the Act has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia[26].

    [26] DMH16 v MIBP [2017] FCA 448.

16. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant married [Ms C] in 2013 in [Country 1] but has been unable to bring his wife to Australia because of his visa cancellation. [Ms C] remains in Kabul with the applicant’s family and they have been separated for seven years. I accept that if his visa remains cancelled, the applicant and his wife will be subjected to significant hardship.

    EXERCISE OF DISCRETION

17. Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa.  In particular I give significant weight to the following matters:

    ·Had the correct information about the applicant’s residence and application for asylum in [Country 4] been known to the delegate when the decision to grant the visa was made in 2009, I am satisfied the applicant would still have been recognised as a refugee on the basis of his profile as a young male of Afghan nationality, Hazara ethnicity and Shia religion, who had resided in Jaghuri, Ghazni province in Afghanistan until 2002, [Country 4] between 2002 and 2006 and Kabul between 2006 and 2009;

    ·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara race, his Shia religion and his imputed political opinion;

    ·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. I am satisfied that his removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;

    ·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather since his arrival in Australia he has trained as [an Occupation 3] and opened a business which operates at a profit, pays taxes and employs [a number of] other people. If the applicant’s visa remains cancelled, he will be unable to bring his wife [Ms C] to Australia which will cause them both significant hardship.

    CONCLUSIONS

18. 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. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Alison Murphy
    Member

    
    

    
    ATTACHMENT – Migration Act 1958 (extracts)

    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.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.