1710844 (Refugee)

[2021] AATA 1643

1710844 (Refugee) [2021] AATA 1643 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710844

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Shahyar Roushan

DATE:8 April 2021

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 April 2021 at 3:08pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan –  incorrect information in application – bogus document – imputed political opinion – pro-western – religion – Shi’a – race – Hazara – voluntary return to Afghanistan – visited sick mother – non-genuine Taskera – contribution to community – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 33

Migration Act 1958 (Cth), ss 5J, 36, 101,102, 103, 107, 109

Migration Regulations 1994 (Cth), r 2.41; Schedule 2

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336
FCS17 v MHA [2020] FCAFC 68
McDonald v D-G of Social Security (1984) 1 FCR 354
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Sullivan v CASA (2014) 226 FCR 555
Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [age]-year-old national of Afghanistan. He arrived in Australia [in] February 2011 as an Unauthorised Maritime Arrival and was granted a protection visa on 20 July 2011.

3. On 15 May 2017, a delegate of the Minister cancelled the Protection visa under s. 109 of the Migration Act, on the basis that the applicant had provided incorrect information on his protection visa application form and on his passenger cards, and that he had provided a bogus document.

4. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Protection visa application

5. In his protection visa application Form 866C, in response to questions 42 to 46, the applicant answered, ‘please refer to my statutory declaration’. At question 65 on Form 866C, the applicant declared that the information he supplied on or with Part C of Form 866 is complete, correct, and up to date in every detail. In the statutory declaration, which was dated 15 May 2011, the applicant made the following claims.

   ….

   (1)   Introduction:

   (2)   I am a citizen of Afghanistan. I do not have any citizenship of any other country. I do not have right to reside in any other country.

   (3)   I am an ethnic Hazara

   (4)   I am a Shia Muslim an unaccompanied minor and engaged

   (5)   I was born in [date]

   (6)   I was born in [Village 1], Jaghouri Ghazni Afghanistan

   (7)   The reasons I left Afghanistan:

   (8)   My late father was working on the land producing various crops in around our village [Village 1]

   (9)   The first time he was threatened by the Taliban just prior to his untimely death around two years go.

   (10) He used to obtain [products] from Ghazni and it was at this time that a number of Taliban threatened him and he then ceased going there.

   (11) Then my late father sent my eldest brother [to] Ghazni to obtain [products], however prior to his arrival at Ghazni he was stopped by number of Taliban and they severed and cut his right forearm and hand off.

   (12) He was treated at the village local doctor and nurse, however three days later he left the village and we have never seen or heard from him since this time. My mother has been informed by a relative that he is in [Country 1].

   (13) In our village there was a man called Mr [A], who originally was a Hazara, but had denounced his heritage and announced to all that he was now a Sunni and associated with the Taliban.

   (14) My late father had an argument with him about water for the land and produce. The argument became very animated and resulted in my late father going to the local Police and reporting this incident which led Mr [A] to attend the Police.

   (15) Mr [A] was detained overnight after questioning by the Police. On release he visited our family land and cut down our [fruit] trees.

   (16) My late father and other neighbours witnessed this drama with our trees. He confronted Mr [A] who responded to him that one day all the lands and trees will belong to him and that my father and family would be thrown out of the area and country.

   (17) After a brief period of this incident, my father travelled towards Ghazni for business purposes and shortly afterwards my mother was informed that he was found murdered by the use of knives with many body injuries on the side of the road. His body was recognized by a group of neighbours travelling by car in that area and his body was brought back to the village and we held his funeral.

   (18) It is my mother and family's belief that possibly Mr [A] and the Taliban may have been the perpetrators of this horrific incident. This is due to the fact that it is well known by all there that Mr [A] was working and associated with the Taliban.

   (19) After a week later Mr [A] with another two men who had covered their faces they entered our home in a ferocious manner and attacked all members of my family.

   (20) Even though the others had covered their faces, I was able to recognize Mr [A] as one of the group. He singled me out and sought from me the family's land title. I told him immediately that I did not know where it was.

   (21) I was required to sign a document then if I did not provide this land title. I again informed them that I did not know of it. Whereupon they then took me by force to the mountains.

   (22) At the mountain, they asked me gain the same questions and sought me to sign the document I ignored this and they started beating and torturing me until l fell unconscious.

   (23) When I became conscious I found that I was alone in the mountain, and I returned to my home. My mother saw me and was happy to see me as she thought that I had been killed. She informed me that Mr [A] and his men had taken the shop keys and did not know what had happened to it.

   (24) The following night the same people came again and left a note seeking that the document be signed by the following night or else they would kill all the family.

   (25) Then my mother forced me to leave the home I went to [District 1] and stayed there overnight and then to Ghazni and then to Kabul. Whilst there located a smuggler and he arranged for my escape to [Country 2] after paying him US$7,000 (family savings and shop) . I obtained a false Afghan passport and travelled via [Country 3] and arrived in [Country 4].

   (26)I remained there several months and then travelled to [Country 2] where I was detained by the [Country 2] police and placed in the detention [centre]. I remained there around 4 months and then luckily escaped from there and went to [a city] and attended the UNHCR office there and gave my correct details and they provided me a letter to enable me to stay there and move around the city freely.

   (27) I then was able to secure another smuggler and paid him US$ 5,000 or US$5,500 to him and arrangements were made and I was placed on a boat arriving here [date] February 2011.

   (28) What I fear may happen to me if I return:

   (29) I left because I am Hazara and Shia Muslim

   (30) I undertook this trip as the eldest son of the family in Afghanistan with the blessings and support of my family members.

   (31) Given the fact that the area of origin [Village 1], Jaghouri is totally surrounded by the Taliban, the Pashtun and supporting insurgent groups. likewise, the constant daily killings of the Hazara has constantly made decide me never to return there.

   (32) I fear for my life given what had happened to my late father and eldest brother and from those mentioned there in Afghanistan

   (33) Harm that I have previously experienced

   (34) As highlighted above

   (35) Who might harm me if I return:

   (36) It is obvious the main perpetrators, include Mr [A], the Taliban, Pashtun and supporting insurgent groups.

   (37) I will be detained, questioned and possibly beaten and abused by these groups given I am Hazara

   (38) I will face this ongoing persecution as I am from a minority group. Also, my appearance and language will impact upon me.

   (39) Why I think that might happen to me if I return:

   (40) As I have indicated, I am Hazara, the Taliban, Pashtun and Sunni Muslims are against us.

   (41) As conveyed that the concerns and my fears to return to [Village 1], Jaghoun Afghanistan due to the personal issues raised against my family and me.

   (42) The Taliban and their supporters call us infidels and non-believers. This has placed us in a precarious position that leads to the Hazara Being killed.

   (43) The Taliban are totally against the Hazara and those who do not conform to their ways. They are very fundamentalists and comply and adhere to Sharia Law.

   The cancellation

   The notice

6. On 14 December 2016, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his protection visa, on the basis of non-compliance with s.101(b), s.102(a) and (b), and s.103 of the Act.

7. The NOICC stated that the applicant had provided incorrect answers to questions 42 to 46 and the declaration at question 65 of Form 866C because, according to information he had provided to the Australian Federal Police at Brisbane International Airport and to Immigration Officers in Brisbane, he had spent two and a half months in Afghanistan between [August] 2014 and [November] 2014. In particular, he had travelled to Jaghori, where he claimed to fear harm from Mr [A], the Taliban, Pashtuns and other insurgent groups. The NOICC stated that the fact that the applicant voluntarily returned to Afghanistan, including to Jaghori, staying, for a two-and-a-half-month period without apparent harm, indicates that he did not hold the adverse profile claimed in his protection visa application.

8. The NOICC also stated that the applicant provided incorrect answers on his passenger cards. It was explained that on his outgoing passenger card, dated [date] August 2014, the applicant indicated that the country where he planned to spend most time abroad was Pakistan. On his incoming passenger card, dated [date] November 2014, the applicant did not provide an answer to the question asking in which country he spent most of his time abroad. The NOICC stated that on [date] November 2014, the applicant was interviewed at Brisbane International Airport and advised the Australian Federal police that he had travelled to Pakistan and was smuggled from there to Afghanistan. The applicant advised that he visited Kabul, the town of Ghazni, and his family home and spent the majority of the time he was away from Australia in Afghanistan. In addition, the NOICC stated that photographs sighted on the applicant’s phone confirmed that he had travelled to Afghanistan.

9. The NOICC stated that, on 7 January 2016, the applicant attended an interview in relation to his application for citizenship and advised two immigration officers that he had travelled to Pakistan in 2014. He advised them that he paid a driver to transport him to and from Afghanistan and that he had stayed in Afghanistan for a period of two and a half months, visiting his sick mother in Jaghori.

10. The NOICC further stated that the applicant had submitted a bogus document with his protection visa application. The Notice explained that when the applicant applied for a protection visa, he supplied a copy of a Taskera [from] Jaghori district of Ghazni province, belonging to[Name]. The NOICC stated that the document is not registered and is fraudulent.  

    The applicant’s response

11. In response to the NOICC, the applicant’s then migration agent, Ms [B], submitted a Statutory Declaration declared by the applicant on 6 January 2017. In his statutory declaration, the applicant stated that he did not provide false information in his protection visa application or on his passenger cards, and that he has a reasonable explanation for providing a bogus Taskera.

12. In relation to his visit to Afghanistan in 2014, the applicant stated that his mother became extremely unwell in 2012. Due to limited medical services in Jaghori, she was taken by his uncle, [to] Kabul for treatment. [She] became unwell again three months after her [surgery], and his uncle took her to Kabul for a second operation. The applicant stated that he spoke to his mother over the phone and she told him that she wanted to see him before she died. The applicant decided to take the risk to travel to Pakistan, to arrange for medical treatment for his mother. He stated that he planned to meet his mother and younger brother in Islamabad. However, his uncle was not able to bring his mother to Islamabad as he was afraid he would be killed on the roads to Pakistan. The applicant stated that he decided to travel to Jaghori to see his mother after being let down by his uncle. He spent one day in Islamabad before travelling to Peshawar. The applicant stated that he was fearful about being identified, captured, tortured, and killed by the Taliban and other extremists. 

13. The applicant stated that he received assistance from hotel staff who arranged a driver to take him to Kabul. The next day, another driver took him from Kabul to Jaghori. He stated that he kept a low profile, avoided going out, and tried to hide as much as he could in Afghanistan, by wearing traditional Afghan clothes, sunglasses and a shawl. He left his Australian passport with a friend in Islamabad as he feared that he would be killed if the Taliban caught him with the document. He intended to take his mother to Pakistan, however, when he realised she was too ill to survive the trip, he decided to leave straight away. He stated that he managed to get out of Jaghori after about two and a half months and travelled back to Islamabad via Kabul. 

14. The applicant stated that he planned to stay in Pakistan with his mother and younger brother and had no intention of travelling to Afghanistan. Therefore, he wrote ‘Pakistan’ as the country where he will spend most time abroad on his outgoing passenger card. He stated that he has difficulties reading and writing in English and received help from the person sitting next to him to complete the card. On his return to Australia, he did not complete his incoming passenger card as he could not ask anyone for help and was not confident in writing an answer.

15. The applicant stated that he was issued with a Taskera at [a] Taskera office when he was [age]. He left the Taskera at his home in Jaghori when he fled Afghanistan. When he arrived in Australia in 2011, the Department asked him to provide a Taskera, so he asked his mother to send his Taskera to him. The applicant stated that he did not know that his mother sent him a copy instead of his original Taskera. However, after receiving the NOICC, he spoke to his mother and she explained that she had obtained a duplicate copy through an agent as his original Taskera had been misplaced. He stated that as a woman, it was difficult for his mother to travel to the Taskera office and it was quite far from their home. Therefore, she gave someone passport-sized photos of the applicant and that person travelled to the Taskera office on her behalf. This person told the applicant’s mother that the Taskera was a genuine document and his mother had no reason to suspect otherwise.

16. On 10 January 2017, Ms [B], provided a separate submission in response to the NOICC. Ms [B] submitted that the applicant’s fear of persecution is supported by the available country information and that he has a reasonable explanation for returning to Afghanistan despite his fear and his adverse profile. It was submitted that the security situation across the country has deteriorated and that the applicant continues to be at risk of harm due to his Shi’a Hazara background, his imputed pro-western political opinion, his residence in Australia, and his involvement in a land dispute.

17. In relation to the applicant’s reasons for returning to Afghanistan in 2014, Ms [B] stated that despite his fears for his life, the applicant decided to risk visiting his mother in Afghanistan as he believed that it could have been his final opportunity to see her before she died. In addition, although he wanted to leave quickly, the applicant remained in Afghanistan for two and a half months to wait for a safer time to travel. It was submitted that the fact that the applicant was not harmed during this time, is not indicative of the safety of the country. Ms [B] stated that the applicant kept a very low profile in order to avoid detection by the Taliban and their agents. However, if forced to return to Afghanistan permanently, the applicant would be required to leave the house in his daily life to find work and would not be able to modify his behaviour to avoid persecution.

18. In relation to the applicant’s passenger card, Ms [B] stated that at the time the applicant filled out the outgoing passenger card, he intended to spend most of his time abroad in Pakistan. Therefore, he did not provide incorrect information in contravention of s.102(a) of the Act. Ms [B] acknowledged that there was noncompliance with s.102(b) of the Act in respect of the applicant’s omission in his incoming passenger card. However, it was submitted that the applicant failed to understand the question and the noncompliance was not fraudulent in intent. Furthermore, it was submitted that when the applicant was interviewed by the Department upon his return to Australia on [date] November 2014, and during his citizenship interview on 7 January 2016, he was refused an interpreter. This calls into question the reliability of the information gathered from these interviews.

19. Ms [B] also acknowledged that there was non-compliance with s.103 of the Act as the applicant provided a fake Taskera to the Department. However, it was submitted that the applicant was not aware that the document was not his genuine Taskera and that he was not attempting to defraud the department. Ms [B] stated that the applicant expresses sincere regret about providing it to the Department. It was also submitted that despite the bogus document, the applicant provided sufficient evidence about his identity and his ethnicity as a Hazara Shi’a from Afghanistan.

20. Ms [B] submitted that the cancellation of the applicant’s visa and his subsequent removal to Afghanistan would result in a breach of Australia’s non-refoulment obligations as there is a risk that he would be tortured, killed, detained and subject to cruel, inhuman or degrading punishment. If returned to Afghanistan, the applicant would have to travel home to Jaghori via Kabul, and his return would likely be communicated to the Taliban through the extensive network of informers present in Kabul. In addition, the Taliban may be able to access biometric information about the applicant, from the Afghan government, making it impossible for the applicant to hide his identity. It was submitted that the applicant faces a greater risk of being targeted by the Taliban now than in 2014, having spent several years in Australia and having adopted English skills, and western dress, mannerisms and values.  There is no ‘safe area’ in Afghanistan where the applicant can safely and legally access and where he would not face persecution.

21. In addition, it was submitted that the applicant has established a life in Australia, over a number of years and has made a significant contribution to the Australian community, including providing extensive resettlement support to other new arrivals. He has also started his own business and could potentially employ a large number of people in future.

1. In support of the response, Ms [B] provided to the Department copy and translation of a statutory declaration dated 6 January 2017 and declared by the applicant’s close friend and business partner, Mr [C].  In his statutory declaration, Mr [C] stated that he has known the applicant since 2011 and they live together. He stated that the applicant talks to him regularly about his fears for his family’s safety and wellbeing in Jaghori. He stated that he was shocked that the applicant had gone to Afghanistan as he is aware that it is dangerous for him. However, he understands that the applicant had no choice if he wanted to see his mother one last time before she died.

   The delegate’s decision

2. On 15 May 2017, a delegate of the Minister, after considering the prescribed circumstances, decided to cancel the applicant’s visa on the basis that he had provided incorrect information in connection with his application for a protection visa on the basis of non-compliance with ss.101, 102, and 103 of the Act. Having considered all of the prescribed matters set out in regulation 2.41 of the Migration Regulations 1994, the delegate was not satisfied that there were ‘any compelling reasons’ why the visa should not be cancelled.

   Application for review

3. The applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. He was represented in relation to the review by Ms [D]. A copy of the delegate’s decision record was provided to the Tribunal for the purposes of the review.

   Information provided before the hearing

4. The applicant’s representative submitted a statement by the applicant dated 10 December 2020. In his statement the applicant provided further details about his protection claims. He stated that he was born in the village of [Village 1], Jahori district, Ghazni province, Afghanistan. He has four brothers and one sister. Two of his brothers were granted asylum [in other countries], one brother fled to [Country 1], and his youngest brother lives in Kabul and supports his mother. He stated that his family lived off the income from his father’s agricultural land. His father assisted an international non-government organisation to distribute supplies to the local population in Jaghori, which put him into danger as he had to travel to and from the NGO headquarters through Ghazni city.

5. His father had a longstanding dispute with a neighbouring landowner, [Mr A] , who was a Shi’a Hazara. The applicant submitted that his original statement of claims states that [Mr A] was a Sunni, however this is incorrect, and he cannot recall stating that. The applicant stated that the Talban had their spies amongst various communities, including amongst the Hazara and there was talk amongst the village that [Mr A] was associated with the Taliban and passed information to them.

6. He stated that when he applied for protection, he told the Department that his father was taken and captured by the Taliban, while he was travelling from their village to Ghazni. He stated that he lied when he said his father was dead; his father’s body was never found after his capture. The applicant stated that he was told it was better to tell the Department that his father was dead rather than say that he was missing.

7. The applicant clarified that after he was released from detention in 2012, he received a call from his mother stating that his father had been released and found his way back home. His father was still alive but extremely sick and weak. The applicant was too afraid to disclose this in his response to the NOICC. When he told his parents that he planned to meet them in Pakistan, they were both terribly sick and his father could not move from the bed. His mother told him that his father could not join them in Quetta. The applicant returned to Jaghori to help them receive medical treatment. He did not leave the house and did not meet with anyone or attend medical appointments with his mother. Both his parents were very unwell and the doctors were never able to provide a diagnosis for his father’s condition. His father passed away in December 2016 in Jaghori. After his father’s death, his mother lived with his brother. She is still in a weak condition.

8. The applicant stated that according to his first Taskera, he was born in [year], however he does not know the exact day or month. His mother said he was around [age] years old when he left Afghanistan in 2009 and that he had been born in Spring.  When he attended the Taskera office, his father’s friend provided all the details and he was not asked for a date of birth. When he fled to Australia, he left his Taskera with his mother for safekeeping. When asked by immigration for proof of identity, he asked his mother to send him a copy of his Taskera but she could not find it. He heard from some people in Australia that it is possible to get a ‘Musana’ or a duplicate of a Taskera, if the original had been lost. He gave instructions to his mother to obtain the ‘Musana’. She paid a man from their village to obtain the Taskera. He was disturbed to learn that the Taskera was a bogus document as the man was adamant that he obtained it through the right channels.  He provided a copy of his father’s Taskera to the Afghan Embassy in Canberra and was provided with a document to prove his Afghan nationality.

9. The applicant stated that when questioned at Brisbane Airport about his trip in 2014, he was honest about where he had been and did not try to hide it.

10. The applicant stated that he has been in Australia for the past ten years. After his release from detention he worked as [an occupation] and sent money to his parents to pay for their medical treatment. He stated that there are reports all the time of terrible dangers to Hazaras in Afghanistan, including attacks by the Taliban and he is extremely stressed about the uncertainty of his situation.

11. The following documents were also submitted to the Tribunal:

    ·A letter of support by [a] psychologist from [a specified clinic], dated 14 June 2017. [She] stated that the applicant attended three psychological sessions from 5 June 2017. She stated that he presented with a high level of anxiety and distress in relation to the recent cancellation of his visa and received psychotherapy to improve his coping and functioning.

    ·A statement by [Mr E], director of [a company], dated 7 December 2020. Mr [E] stated that he has known the applicant for three years and hires the applicant as a subcontractor for [work]. He stated that during the downturn due to COVID-19, he kept the applicant in work as he is ‘one of the best workers’ he has had. Mr [E] stated that if the applicant is sent back to Afghanistan, his business would suffer a huge loss and operations would be down by ten percent. His turnover in a good business year would be in excess of $2 million.

    ·Copy and translation of a document titled ‘Verification form of Afghan’s identity and other services residing outside the country’. The document was issued on 3 January 2017 by the Islamic Republic of Afghanistan, Ministry of Interior, Directorate of Census Registration and Electronic Tazkira Division. The document lists the name and details of the applicant and indicates that he was applying for a new Tazkira/Birth Certificate.

    ·Copy and translation of a Taskera belonging to the applicant’s father, [issued] on 23 January 2010.

    ·Copy of an Asylum Residence Permit issued to the applicant’s brother, [in] April 2019.[1]

    [1] This appears to be a [specified country] residency permit.

12. In a covering submission, dated 10 December 2020, Ms [D] provided a summary of the applicant’s personal history and the information contained in his statutory declaration submitted to the Tribunal.

13. Ms [D] made legal submissions in relation to the validity of the s.107 notice, including whether a valid instrument of delegation was promulgated, and whether the Tribunal has the power to conduct the review. The submission essentially states that whilst it is not clear if there was a valid instrument of delegation, she does not have issues with the contents of the notice, as it is sufficiently particularised.

14. Ms [D] stated that the applicant maintains that he provided the correct information on his outgoing passenger card as his intention at the time was to spend most of his time abroad in Pakistan. However, the applicant accepts that he breached s.102(a) of the Act in relation to his incoming passenger card, completed on his return from Pakistan in 2014, as he had mistakenly failed to complete the question directed at where he had spent the most time abroad.

15. Ms [D] submitted that there is an insufficient basis to conclude that the applicant breached s103 of the Act. She noted that, in her submissions, the applicant’s previous representative had ‘accepted’ the Taskera to be bogus, however, the applicant had never made this concession. Ms [D] clarified that the applicant had acknowledged that the document was a duplicate copy of his original Taskera, and that there ought to have been nothing untoward in the method by which his mother had obtained the document in Jaghori. She submitted that neither the Notice nor the Department’s decision record specify how the Department attempted to verify the document, and without this information, the Tribunal cannot be satisfied that the Taskera provided by the applicant was a bogus document. Ms [D] referred to country information, including the 2019 DFAT Report, which indicates that there is an absence of centralised record keeping in Afghanistan.

16. Ms [D] submitted that the applicant insists he did not breach s.101 of the Act by returning to Afghanistan in 2014.  She stated that he feared for his safety but was compelled to return due to his parent’s ill health. However, she submitted that the applicant did provide an incorrect answer in relation to the death of his father prior to his arrival in Australia. This was not known to the delegate at the time and was not a focus of the Notice, however, she acknowledged that the Notice was sufficiently broad and it is open to the Tribunal to find that the applicant breached s.101 of the Act.

17. Ms [D] further submitted that if the Tribunal finds that the applicant breached s.101 or s.102 of the Act, the prescribed considerations at r 2.41 weigh in the applicant’s favour. She submitted that had the Department become aware in 2011 that the applicant’s father was missing but that his death had not been confirmed, the applicant would still have been entitled to protection under s 36(2) of the Act. This is based on the country information reports available at the time which confirmed the threat to Hazara Shi’as, including during road travel into and out of Jaghori district as well as the effective control by the Taliban of surrounding regions.

18. Ms [D] stated that the applicant inadvertently failed to list Afghanistan as the country where he spent most time abroad. However, the applicant did not intend to attempt to hide details of his overseas travel and that his candour and the circumstances surrounding the breach should be considered in his favour. She also stated that the fact that the applicant voluntarily disclosed a further breach of s.101 demonstrates his candour.

19. Ms [D] submitted that the applicant’s significant contribution to the community should be weighed in his favour. She stated that the applicant has worked consistently since his arrival in Australia and is a valued contractor for [a] construction firm based in Queensland.

20. Ms [D] also extracted country information from sources including the 2019 DFAT Report, and a large number of online news articles published between July 2016 and March 2020, in relation to the worsening violence against the Hazara and Shias throughout Afghanistan. She submitted that the Hazara are widely perceived to be supporters of the government and hold the risk profile of people who are associated with the government and/or the international community.

21. The submission also referred to multiple examples of recent attacks by the Taliban and other insurgent groups throughout Afghanistan.  Ms [D] submitted that the Afghan government cannot offer adequate protection to civilians in Afghanistan against targeted attacks by anti-government elements, including the Taliban, Islamic State militants and other insurgents. She submitted that the applicant could not safely live in Ghazni, Kabul, or any other location in Afghanistan, and it would not be reasonable for him to relocate within Afghanistan, having lived in Australia since 2009.

    The hearing

22. The applicant appeared before the Tribunal on 14 December 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Where relevant, the applicant’s evidence at the hearing is referred to in the Tribunal's reasons below.

    Information provided following the hearing

23. On 3 February 2021, Ms [D] provided a submission in relation to the matters discussed with the applicant at the hearing. The submission, however, specifically addressed the prospect of the applicant’s relocation to Kabul by reference to recent relevant country information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

24. 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.

25. 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.

26. 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.

27. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[2] Whilst a visa holder, whose visa is being considered for cancellation, must be invited to show that the ground for cancellation does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[3]

    [2] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; and Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.

    [3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

28. While that case was concerned with cancellation under s.119 of the Act, the Court’s comments would be equally applicable to s.109.

29. In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it.[4] In that case, Flick and Perry JJ said that:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[5]

    [4] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120].

    [5] At [120].

30. The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[6] The Court noted that s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, which provided that the Tribunal is not ‘bound’ to apply rules of evidence, was not a prohibition upon the Tribunal applying those rules. It said that imposing a requirement for the Tribunal to apply the rule in Briginshaw in making its factual findings, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role.[7]

    [6] Ibid, at [121]. Flick and Perry JJ referred to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.

    [7] Ibid, at [122].

31. 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.

32. For the reasons outlined below, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice in relation to ss.101 and 102 of the Act, but that there was no non-compliance with s.103 of the Act.

    The applicant’s return trip to Afghanistan

33. As the contents of the NOICC demonstrate, the delegate considered the applicant’s responses to Questions 42-46 in his Form 866C. The delegate then referred to the applicant’s trip to Afghanistan as set out in the NOICC  and determined that the applicant’s voluntary return to Afghanistan without experiencing any harm or impediment indicated that he did not hold the adverse profile as claimed in his application for a protection visa.

34. The delegate’s conclusion that the applicant had provided incorrect answers in his Form 866C was based on the applicant’s return to Afghanistan without apparent issues and remaining in that country for the duration of his trip. The Tribunal appreciates that, broadly, an applicant’s act of returning to the country where they claim to fear being persecuted may raise questions in relation to his or her subjective fear of harm and the credibility of their claims for protection. However, the mere fact of return is not necessarily inconsistent with the claimed fear. The individual circumstances of the case and the precise claims which were made must be carefully examined. 

35. In paragraph 17 of the statutory declaration submitted in support of his protection visa application, the applicant had stated that his father had ‘travelled towards Ghazni for business purposes and shortly afterwards my mother was informed that he was found murdered by the use of knives with many body injuries on the side of the road. His body was recognized by a group of neighbours travelling by car in that area and his body was brought back to the village and we held his funeral.’ In paragraph 32 of the same declaration, the applicant stated: ‘I fear for my life given what had happened to my late father and eldest brother and from those mentioned there in Afghanistan.’

1. In particularising the non-compliance in the NOICC, the delegate repeatedly referred to the applicant’s claim, amongst others, that he feared for his life given what had happened to his father and his brother as a basis for his responses to Questions 42-44 of his protection visa application. The delegate considered the applicant’s answers to be incorrect as he had voluntarily returned to Afghanistan. In his response to the NOICC the applicant denied that his answers were incorrect. He went on to provide an elaborate account of the circumstances that had apparently compelled him to return to Afghanistan. Specifically, the applicant referred to his mother being seriously ill in 2012 and her desire to see him before she died. He referred to his plan to travel to Pakistan and to meet his mother and younger brother in Islamabad. As his uncle was not able to bring his mother to Islamabad, the applicant decided to travel to Jaghori to see his mother after being let down by his uncle.

2. Nevertheless, in his statement of 10 December 2020, which was submitted in support of the application for review, the applicant made the following admission:

   I would like to tell the Tribunal the truth about my father now. Once I was released from detention, around 2012, I cannot remember the exact date, my mother called me crying. She told me that my father had been released and had found his way back home. My mother was living with her brother at the time. She said that he was still alive but he was extremely sick and weak. From that time, I was desperate to see him again. By that time, I had been granted my Protection visa. I did not update the Department about this fact. When I responded to the Notice of Intention to Consider Cancellation of my visa, I was too afraid to disclose this. But it is the truth.

3. The applicant’s evidence in relation to his father casts serious doubt on his credibility and the credibility of the key aspects of his evidence. The Tribunal is not persuaded that his explanations satisfactorily address his failure to rectify the false information he had provided in relation to his father.

4. In her submission of 10 December 2020, Ms [D] acknowledged that the applicant had provided an incorrect answer in relation to the death of his father prior to his arrival in Australia. She submitted that whilst this was not known to the delegate at the time and was not a focus of the NOICC, the Notice ‘was issued in sufficiently broad terms that the Tribunal is permitted to consider this matter as a breach of s.101 of the Act.’ The Tribunal agrees and is satisfied that the applicant had provided incorrect information in his application for a protection visa and the accompanying statement in relation to his father’s death and his fear of harm in Afghanistan on that basis. The Tribunal has reached the necessary state of satisfaction that the applicant provided incorrect information in response to Questions 42-44 of his application for a protection visa. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   The applicant’s passenger cards

5. As noted by the delegate in the NOICC, on his outgoing passenger card dated [date] August 2014, the applicant indicated that the country where he will spend most time abroad was Pakistan. On his incoming passenger card dated [date] November 2014, the applicant did not provide an answer to the question which asked which country he spent most time abroad.

6. In his response to the NOICC, the applicant stated that he planned to stay in Pakistan with his mother and younger brother and had no intention of travelling to Afghanistan. Therefore, he wrote ‘Pakistan’ as the country where he will spend most time abroad on his outgoing passenger card. He stated that he has difficulties reading and writing in English and received help from the person sitting next to him to complete the card. On his return to Australia, he did not complete his incoming passenger card as he could not ask anyone for help and was not confident in writing an answer.

7. In a statutory declaration, dated 6 January 2017 in response to the NOICC, the applicant stated that he had arranged with his uncle to bring his mother and brother to Pakistan, but his uncle had changed his mind, prompting the applicant to change his plans and travel to Afghanistan to visit his mother. He stated that he had planned to stay in Pakistan with his mother and younger brother and had no intention of travelling to Afghanistan.

8. In the statement dated 9 December 2020 and submitted to the Tribunal, the applicant acknowledged that he had provided incorrect information in his outgoing and incoming passenger cards. He further explained that he had planned to travel back to Pakistan and arrange for a smugger to bring his parents and younger brother to Pakistan. He then ‘communicated the plans’ to his parents, but ‘they were in no position to move from Jaghori’, so he decided to visit his parents in Afghanistan instead.

9. In her written submissions to the Tribunal, Ms [D] stated that, in relation to his outgoing passenger card, the applicant maintains that he correctly declared his intention at the time to spend most of his period abroad in Pakistan. However, in relation to his incoming passenger card, he accepts that he ‘mistakenly failed’ to answer the question in relation to where he had spent most of his time abroad.

10. With regard to his incoming passenger card, the applicant stated that he had asked someone sitting next to him to help him, but this person did not record the information on the card. When it was put to him at the hearing that this explanation was not consistent with the explanations put forward in his response to the NOICC, he said he had not been assisted by an interpreter when responding to the NOICC. When it was put to him that he was represented by a registered migration agent at that time, he said he not sure if the interpreter assisting him was qualified and that he only had 14 days to respond to the NOICC. The Tribunal considers the applicant’s responses and explanations highly unpersuasive and finds his evidence to be unreliable and lacking in credibility.  

11. In relation to his outgoing passenger card, the applicant stated at the hearing that initially he had no intention of travelling to Afghanistan. He decided to travel to Afghanistan four days after arriving in Pakistan and only after he had failed to bring his parents to Pakistan due to the state of their health. As it was put to him, given his parents’ health, it is difficult to believe that he did not know they were unable to travel to Pakistan until after he arrived in that country. In response, the applicant stated that he tried his best to bring his parents to Pakistan, but he was unable to do so. The Tribunal did not find this explanation convincing. Furthermore, as it was put to him, it is difficult to reconcile this evidence with the contents of his statement of 9 December 2020 that he had communicated his plans to his parents, but they were unable to travel to Pakistan. According to the applicant’s own evidence, both his parents were in poor state of health for some time. It would be reasonable to assume that making arrangements for them to travel across the border to Pakistan would have required the applicant to give notice to his parents and make an assessment of their ability to travel well in advance of his own travel to Pakistan. The Tribunal does not accept that the applicant had become aware of his parents’ inability to travel to Pakistan only after his arrival in that country, which had then prompted him to travel to Afghanistan. The Tribunal finds that the applicant has been persistently untruthful in relation to this aspect of his evidence. In reaching this view, the Tribunal has taken into consideration the applicant’s unreliable evidence in relation to his incoming passenger card, as well as his previously persistent false evidence in relation to his father.   

12. The Tribunal finds, having reached the necessary state of satisfaction, that that the applicant had provided incorrect information in both his outgoing and incoming passenger cards in the manner particularised by the NOICC. The Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

    The Taskera

13. According to the NOICC, when the applicant applied for a protection visa, he supplied a copy of a Taskera [from] Jaghori district of Ghazni province, belonging to [name]. The Department had subsequently received information that the Taskera ‘is not registered and is fraudulent.’ The NOICC stated that the applicant had submitted a bogus document with his protection visa application.

14. In submissions made to the Department by the applicant’s former representative in response to the NOICC, it was stated that the applicant ‘accepted’ the document to be bogus. In her submissions to the Tribunal, Ms [D] stressed that this purported admission is ‘expressly disowned’ and that the applicant ‘never made any such concession.’ The applicant had merely acknowledged that the document was a duplicate copy of the original Taskera issued to him by the same authority in Jaghori.

15. As noted by Ms [D], the NOICC did not contain any further information in relation to the process of verification. The Tribunal is also mindful of the country information before it, indicating that prior to the launch of the electronic Taskeras in May 2018,

    …taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.[8]

    [8] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

16. According to the Organization for Security and Cooperation in Europe,

    Civil registration in Afghanistan has struggled to evolve from the paper-based taskera system that has existed for some decades.  The tazkira is a plain paper document that lacks any security features and is considered of limited value as a national identity document.[9]

    [9] Organization for Security and Cooperation in Europe, Islamic Republic of Afghanistan: Presidential and Provincial Council Elections, 20 August 2009.

17. On the basis of the information before it, the Tribunal is not satisfied that the document submitted by the applicant to the Department is a copy of a bogus document, fraudulently obtained. It follows that the Tribunal cannot be positively satisfied that the applicant had not complied with s.103 of the Act by presenting to the Department a bogus document or had caused such a document to be given or provided.

    Should the visa be cancelled?

18. As the Tribunal has decided that there was non-compliance with s.101 and s.102 of the Act in the way described in the notice given to the applicant under s.107, 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 its discretion, the Tribunal has considered the applicant’s responses to the s.107 notice about the non-compliance. The Tribunal must also have regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 and to the other matters required to be considered as a matter of government policy as set out below.

    The correct information

19. The Tribunal considers that the correct information is that the applicant’s father was not murdered ‘by the use of knives with many body injuries on the side of the road’ during a business trip to Ghazni; that his body was not identified by travelling neighbours or that a funeral was held in the village. The Tribunal finds that the correct information is that the applicant’s father had returned to the village and continued to reside in the village until his death in 2016.

20. With regard to his passenger cards, the Tribunal finds that the correct information is that the country the applicant had spent most of his time while abroad was Afghanistan.

21. The Tribunal gives this factor significant weight towards the visa being cancelled.

    The content of the genuine document (if any)

22. The Tribunal has found that the there was no breach of s.103 of the Act in this case.

    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

23. The Tribunal is of the view that the decision to grant the applicant the protection visa was at least partly based on the incorrect information provided by the applicant to the Department in connection with his protection visa application. However, the Tribunal is also cognisant of the fact that the applicant’s Hazara ethnicity and Shi’a faith, which are undisputed, were central to the grant of the protection visa. On balance, the Tribunal gives this factor some weight towards the visa being cancelled.

    The circumstances in which the non-compliance occurred

24. The non-compliance arose when the applicant provided incorrect information to the Department in connection with his protection visa application and in his passenger cards. The applicant has acknowledged that he had lied to the Department and provided incorrect information in relation to his father’s circumstances. However, he has also claimed that he became aware of the correct information subsequent to lodging his protection visa application and that he was too afraid to correct the information subsequently. The Tribunal does not accept these explanations as credible. Whilst the applicant has acknowledged his non-compliance with s.102 of the Act, the Tribunal has also found his explanations for the circumstances in which the non-compliance occurred unsatisfactory and lacking in credibility. The Tribunal gives this factor moderate weight towards the visa being cancelled.

    The present circumstances of the visa holder

25. The applicant arrived in Australia in 2011 at the age of [age]. In the subsequent 10 years, he has been continuously employed and has learned new skills. He has established strong ties to Australia and meaningful connections within the community. The Tribunal gives some weight to the present circumstances of the applicant in favour of not cancelling the visa.

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

26. As noted above, whilst the applicant has acknowledged providing certain incorrect information to the Department, he has maintained that he did not give incorrect information in relation to other information provided in connection with his application for a protection visa.

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

27. On the basis of the evidence before the Tribunal, there are no other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this some weight towards the visa not being cancelled.

    The time that has elapsed since the non-compliance

28. The relevant non-compliance in the present case took place when the applicant presented written evidence to the Department in relation to his claims for protection in 2011, so nearly 10 years have elapsed since then. The relevant non-compliance also arose when the applicant provided incorrect information in his passenger cards some seven years ago in 2014. The Tribunal gives this moderate weight in favour of the visa not being cancelled.

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

29. On the basis of the evidence before the Tribunal, the applicant has not breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.

    Any contribution made by the holder to the community

30. The Tribunal accepts that the applicant continues to be employed and has considered the character references submitted by him. The Tribunal gives this consideration some weight in favour of the visa not being cancelled.

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

31. There are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act.

    If there are children in Australia whose interests could be affected by the cancellation

32. There are no children in Australia whose interests could be affected by the cancellation.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

33. If the applicant’s visa is cancelled, he will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening. However, the applicant is a citizen of Afghanistan and it would appear that he can obtain a passport or other travel document and return to Afghanistan and be admitted to the country. The Tribunal's concerns in relation to what may happen if he were to return to Afghanistan have been considered below.

    Other considerations

34. In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[10] set out a number of matters that under policy should be taken into account, where relevant, in relation to the discretion to cancel a visa under s.109, including:

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation;[11] for example 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

    Mr [A]

    [10] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16).

    [11] 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).

35. The false information provided by the applicant regarding his father casts serious doubt in relation to his claims regarding Mr [A] and his role in harming his father and other members of his family, including the applicant himself. The Tribunal’s view is reinforced primarily by other aspects of the applicant’s evidence and explanations concerning provision of incorrect information, which the Tribunal has found to have lacked credibility.

36. More significantly, the Tribunal found it odd that Mr [A] appears to have taken no other action against the applicant’s father or any other member of his family following the applicant’s departure from Afghanistan. Indeed, in his protection visa application the applicant had referred to Mr [A]’s desire to possess his family’s land trees and expelling the applicant’s family from the area. The applicant had also claimed that Mr [A] had kidnapped and threatened the applicant in order to force him to sign over to Mr [A] the family's land title. However, the applicant did not claim that any other action had been taken by Mr [A] to harm the family, including his father or take possession of the land subsequent to the applicant’s departure from Afghanistan.

1. At the hearing, the applicant was asked why he believed Mr [A] had not taken any further action to harm his family or dispossess them of their land at any point after his departure. He responded that Mr [A] had stopped the water flowing to the land, killing the trees. The Tribunal does not find this explanation to satisfactorily address the Tribunal’s concerns. It would be reasonable to assume that by possessing the land, Mr [A] being in control of the water could have revitalised the land and profited from it. It is unclear why no such action was ever taken. The applicant’s evidence in this regard, as well as the credibility concerns referred to above, cast serious doubt on the applicant’s claims concerning Mr [A]. For these reasons, the Tribunal does not accept any of the applicant’s claims regarding Mr [A].

   Being a Hazara Shi’a

2. The applicant’s ethnicity and religion, however, are not in dispute. The Tribunal accepts that he is of Hazara ethnicity and belongs to the Shi’a sect of Islam. The Tribunal has assessed whether the applicant would be at risk of harm in Afghanistan for the reasons of his race and religion.

3. The applicant was born in [Village 1]  in Jaghori district of Ghazni Province. He resided there until his departure from Afghanistan. His mother and his wife continue to reside in the same area and when he returned to Afghanistan in 2014, he resided with his family in the same location. If the applicant were to be removed from Australia, he is likely to return to his village.

4. Ghazni is located in Hazarajat, ‘a mountainous region consisting of the provinces of Bamiyan and Daykundi and parts of the provinces of Ghazni, Ghor, Uruzgan and Wardok which is the traditional homeland of the Hazara.’[12] DFAT’s 2019 Afghanistan Country Information Report assessed that Hazara residing within the Hazarajat face a lower risk of experiencing conflict-related violence than are those residing in other parts of the country. Those residing in the Hazarajat are also at a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority. However, the report also noted that because Hazara are widely perceived to be supporters of the government, the risk profile attributed to those associated with the government or international community is applicable to them, as well as the risk profile attributed to Shi’as.[13] Furthermore, according to other sources, the Taliban control large areas of Ghazni province and, in November 2018, the Taliban tried unsuccessfully to capture Jaghori district.[14]

   [12] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

   [13] Ibid.

   [14] Department of Home Affairs (DHA), Return and Relocation, Afghanistan, Country of Origin Information Services Section (COISS), 23 October 2020.

5. Regardless of whether or not the applicant may be exposed to a real chance or serious harm in his home area for the reasons of his race, religion and imputed political opinion, a key question that arises is how he will be able to return to his home district should he be removed from Australia.

6. Kabul International Airport handles the vast majority of international flights into and out of the country. Limited international services also operate from airports in Herat, Kandahar, and Mazar-e-Sharif.[15] The Tribunal finds that if the applicant were to be removed or returned to Afghanistan, he is likely to fly to Kabul and then travel to Jaghori. However, there appear to be considerable impediments to a returnee’s ability to safely access Hazarajat, Bamiyan has the only functioning airport in Hazarajat. The Tribunal has found no reliable information in any of the open sources consulted to suggest that there are currently any flights to Bamiyan from Kabul. Hence, in order to access any area in Hazarajat, the applicant would be required to travel by road.

   [15] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

7. More generally, the ability to travel by road in Afghanistan is affected by the poor quality of the road network, particularly in the mountainous central highlands involved in travel around the central provinces and Hazarajat region of Afghanistan. The government’s capacity to undertake construction and maintenance of its roads, like other infrastructure and administrative services, is negatively affected by various factors including political disunity, the struggling economy and government corruption.[16] In its 2017 Thematic Report on Hazaras in Afghanistan, DFAT also observed that snowfall makes travel in winter difficult in these areas, and ‘can prevent travel on roads at higher altitudes for extended periods.’ This information also applies to road travel between Jaghori, Ghazni province and neighbouring Wardak to the south, where travellers may face similar logistical problems.[17]

   [16] DFAT, Thematic Report on Hazaras in Afghanistan, 18 September 2017.

   [17] Ibid.

100.   DFAT’s Thematic Report on Hazaras in Afghanistan stated:

The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road… DFAT assesses that Hazaras face a greater risk than other ethnic groups of being targeted for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, particularly while travelling to or from the Hazarajat. In addition, economic and employment opportunities may be more limited in the Hazarajat than in other parts of the country.[18]

[18] ibid.

101.   In its June 2019 report, DFAT reiterated these views:

Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common…

Criminals and insurgents on roads tend to target people who appear wealthy, or are associated with the government or the international community… People from all ethnic groups are vulnerable to these attacks. It can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity.

In-country sources have advised that ethnic targeting can play a role in the selection of victims once an abduction is in progress, and that Hazara are particularly at risk in this regard. In one November 2015 case, militants stopped a number of buses travelling through Zabul province en route from Kandahar to Kabul. After demanding identification from passengers, the militants reportedly took away only the Hazara passengers. In-country sources also continue to report the issue of ‘spotters’ at bus stations calling ahead to tell insurgents or criminals which buses are carrying Hazaras. As a result, some bus companies have reportedly refused to sell tickets to Hazaras because of a perception that having them on board increases the probability that insurgents or criminals will stop their buses.

DFAT assesses that while abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped. [19]

[19] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

102.   Information published by the website Dangerous Roads, indicates that Behsud-Kabul Highway is the main road connection of Kabul with Hazarajat. It is noted: ‘This road tests the skill, and courage, of any driver. It’s definitely not for anyone suffering from vertigo or a fear of landslides.’[20] According to one report, a local driver stopped accepting requests to drive passengers from Kabul to the Hazarajat, because he did not want to see his passengers being kidnapped or killed:

[20] ‘Unai Pass’, Dangerous Roads,

There are no statistics available charting the number of killings that have taken place along “Death Road”, but the growing sense of insecurity has seen Mohammad Zaman, who used to drive passengers in and out of Hazarajat, finally admit defeat.

“I gave up driving and sold my car because … I did not want to witness my passengers being kidnapped or killed again,” he tells AFP.

The protests which swept Kabul on November 11 appeared to catch authorities off guard and highlighted increasing fury at the Hazaras’ sense they have been left unprotected by the government…

But for the Hazaras, the road to Bamyan is still marked with terror.

“The roads are insecure, many people are being beheaded,” Shaima Abedi, a Hazara university student, tells AFP.

“I just wish one day to be able to travel to Hazarajat without fear of being killed on the way.”[21]

[21] Hunted Hazaras travel 'Death Road' through Afghanistan’, Business Standard, 5 December 2015,

103.   Moreover, as a consequence of Taliban’s unsuccessful attempt to capture Jaghori, the roads that connects Ghazni City to the Hazara populated districts of Nawur, Jaghori and Malistan are controlled by the Taliban, who regularly stop cars and question the occupants. Hazaras travelling to and from the Hazarajat by road have faced an increased risk of kidnapping and abduction based on their ethnicity.[22]

[22] Department of Home Affairs (DHA), Return and Relocation, Afghanistan, Country of Origin Information Services Section (COISS), 23 October 2020.

104.   Having regard to the country information before it, the Tribunal finds that if the applicant were to return to Ghazni, there is a real chance that will be seriously harmed in his home area or en route to his home area or any other area in Hazarajat for reasons of his race, religion and/or imputed political opinion.

105.   Under s.5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country. Whilst this consideration does not require an assessment of whether it would be reasonable for an applicant to relocate to another part of the country, the areas in which there is freedom from persecution must be areas where there is safe human habitation and to which safe access is lawfully possible.[23] In FCS17 v MHA [2020] FCAFC 68, the majority of the Court held that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[24]

[23] See FCS17 v MHA [2020] FCAFC 68 at [81], [21].

[24] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [80]. Allsop CJ expressed general agreement with the reasons of White and Colvin JJ: at [1].

106.   The sources consulted by the Tribunal indicate that there are areas in Afghanistan, namely Kabul and Mazar-e-Sharif in Balkh Province, that may be considered safe for Shi’a Hazara returnees.

Kabul

107.   According to DFAT, ‘returnees from western countries almost exclusively return to Kabul’ and that ‘many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces.’[25] In April 2020, the Office of the Commission General for Refugees and Stateless Persons (Belgium) stated:

[25] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

Many returnees end up in Kabul City because of relatively higher security than in their regions of origin and because of expectations of more job opportunities, better services and support facilities and prospects of social acceptance.[26]

[26] Office of the Commission General for Refugees and Stateless Persons (Belgium), COI Focus - Afghanistan: Security Situation in Kabul City', 8 April 2020.

108.   According to DFAT, there has not traditionally been a significant sectarian divide between Sunni and Shi’a in Afghanistan and conflict between communities has instead tended to be along either ethnic or political lines. Between 1 January 2009 and 31 December 2015, the United Nations Assistance Mission in Afghanistan (UNAMA) documented five incidents against Shi’as, with perpetrators and motives behind most incidents not being clearly determined.[27]

[27] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

109.   In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi’a targets, including political demonstrations and religious gatherings. The number and scale of attacks on Shi’as increased throughout 2017. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.[28]

[28] Ibid.

110.   In its 2018 Annual Report on Protection of Civilians in Armed Conflict, UNAMA provided the following information:

[ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.[29]

[29] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019,

111.   In 2017, UNAMA had observed:

Since its emergence in Afghanistan, ISKP has been responsible for some of the deadliest attacks in the country, refusing to discriminate between Afghan forces, civilians, and other established anti-government forces such as the Taliban. UNAMA in its 2016 report noted that the groups’ primary tactics were suicide attacks and targeted killings, particularly targeting members of the Shia Muslim religious minority.[30]

[30] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2016’, February 2017, ort_2016_final280317.pdf. See also Khan, A, ‘Islamic State Khorasan Province (ISKP) in Afghanistan – An Assessment’, Islamabad Paper, Institute of Strategic Studies, Islamabad, January 2019,

112.   In 2018, UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi’a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern about ‘the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.’[31]

[31] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019,  UNAMA also observed that while the majority of sectarian-motivated attacks against Shi’a Muslims in 2017 occurred in places of worship, the majority of attacks against Shi’a Muslims in 2018 occurred in other civilian areas, including in Shi’a Muslim majority or ethnic Hazara neighbourhoods. UNAMA’s report referred to the following examples:

[In] Kabul city, on the morning of 22 April, a suicide attacker detonated a body-borne IED outside the entrance of a tazkira (national identification card) distribution centre in a Hazara populated area where a large crowd of local residents were gathered to collect their tazkiras as the first step of the voter registration process. As a result, 60 civilians were killed, including 23 women and 11 children, and another 138 were injured, including 65 women and 17 children. Daesh/ISKP claimed responsibility for the attack explicitly citing a sectarian motive. On 15 August, in another egregious incident, in Dasht-i-Barchi, a Shi’a Muslim majority area of Kabul, a suicide attacker detonated explosives inside a classroom of an educational centre. As a result, 40 civilians were killed, including at least 14 females, some of whom may have been under 18, and 67 were injured, including at least five children and 14 women.[32]

[32] Ibid.

114.   In relation to Kabul specifically, the report observed that the attacks perpetrated in Kabul mainly targeted civilians, including the civilian Government administration, places of worship, education facilities, election-related sites and other ‘soft’ targets. UNAMA concluded:

Attacks on Shi’a Muslims infringe their right to freedom of religion, and the wide scope of these attacks beyond places of worship – at education centres, sports clubs, celebratory events and other social gatherings – directly impede their ability to carry out normal lives.[33]

[33] Ibid.

115.   In May 2019, the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) referred to a number of sources in observing that Kabul is ranked high in the category of districts where the inhabitants are most impacted by the conflict and a continuing pattern of ISKP attacks on soft targets in the western Shi’a/Hazara neighbourhoods of the capital, where the group has attacked schools, mosques and training centres.[34] CGRS referred to numerous incidents in the reporting period where Shi’a Muslims were, for example, deliberately targeted in the ISKP-claimed attacks in Kabul:

[34] CGRS, Afghanistan, COI Focus - Security Situation in Kabul City, 15 May 2019,

Kabul remains a violent city, with attacks by anti-government elements (AGE) ongoing in 2020. Violent attacks have been perpetrated by AGE, including the Taliban and ISK against civilian targets during the first six months of the year. The most notable attacks in Kabul include an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed.[35] The same ceremony was also attacked in 2019 and ISK claimed responsibility for both attacks.[36] In an attack on 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shi’a neighbourhood and home to a large Hazara population, killing 24 people, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISK.[37]

[35] Najim Rahim and Mujib Mashal, 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', The New York Times, 6 March 2020.

[36] Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul', The Defense Post, 6 March 2020, Stefanie Glinski, Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Foreign Policy, 14 May 2020,

116.   The Tribunal further accepts that, as a Hazara Shi’a, the applicant will continue to identify and associate with the Hazara Shi'a community should he return to Kabul. The Tribunal accepts the applicant’s evidence at the hearing that he practiced his Shi’a faith in Pakistan by regularly attending the mosque and participating in Shi’a religious ceremonies and commemoration rituals. The Tribunal finds that, if the applicant were to return to Kabul, he would likely reside in majority Shi'a/Hazara areas of Kabul, such as Dashte Barchi, and would continue to practice his religion in the same manner he has in the past.  As noted by the sources referred to above, attacks on Shi’as in Kabul have been wide in scope and not confined to places of worship.

117.   The Tribunal is mindful of the fact that the security situation in Afghanistan overall is fluid. However, on the basis of the current evidence before it, the Tribunal is of the view that there is a real chance that the applicant would be subjected to serious harm in Kabul as a result of violence perpetrated by anti-Shi’a groups, including ISKP.

Mazar-e-Sharif

118.   Mazar-e-Sharif is the capital of the Balkh Province, in the far north of Afghanistan bordering Uzbekistan, Tajikistan, and Turkmenistan. In June 2019, DFAT noted that Mazar-e-Sharif maintains extensive economic links with other northern provinces and with Kabul and is the most popular destination for migrants.[38] In 2008 Mazar-e Sharif was reported to have had an approximate population of 375,181.[39] The city’s population is reported to be comprised of a mix of Sunnis (including ethnic Pashtuns, Turkmen, Uzbeks, and Tajiks) and Shia (Hazaras and Qizilbash), including Shia Ismailis.[40]

[38] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.

[39] Ministry of Rural Rehabilitation and Development (MRRD), Balkh Provincial Profile, 1 January 2008, US Department of State, Afghanistan - International Religious Freedom Report July to December 2010, 13 September 2011, Sec. 1,

119.   According to the website flightconnections.com, Mazar-e-Sharif Airport is the second largest airport in Afghanistan.[41] There are currently regular direct flights from Kabul to Mazar-e-Sharif.[42]

[41] See

[42] See, for example,  In 2014, DFAT assessed that the Government of Afghanistan maintains effective control in Mazar-e Sharif.[43] While pockets of insecurity were reported in the western districts, Balkh and its capital, Mazar-e Sharif, were reported to be among the most secure areas in Afghanistan and to be flourishing economically.[44] However, more recent reports indicate that the security situation in the northern region around Mazar-e-Sharif city and in Balkh province has deteriorated. In the weeks from 22 June to 12 July 2020, Balkh province had the highest number of security incidents of the five northern provinces as classified by the United Nations Office for the Coordination of Humanitarian Affairs.[45] A Pajhwok Afghan News article, on 22 July 2020, reported the deteriorating security conditions in, and surrounding, Mazar-e-Sharif city. The report noted the ‘insecurity had reached the four gates of Mazar-i-Sharif City’ and ‘residents of the province due to lack of security could not walk in the evening and could not come out of homes after evening.’ According to the report, police in Mazar-e-Sharif city are potentially negligent in their lack of control of crime and illegally armed men.[46]

[43] See the DFAT Country Report – Afghanistan, 26 March 2014, paragraphs 2.28, 3.14 and 5.2.

[44] Insecurity may grip several Balkh districts’, The Frontier Post, 10 June 2015, "The 2015 Insurgency in the North (3): The fall and recapture of Kunduz", Afghanistan Analysts Network, 16 October 2015, (Opens in a new window).

[45] UN Office for the Coordination of Humanitarian Affairs, Afghanistan Weekly Humanitarian Update (22 June – 28 June 2020), 01 July 2020, p. 2; and Afghanistan: Weekly Humanitarian Update (29 June – 5 July 2020) – p. 2.

[46] 'Police found negligent to be terminated: MoI', Khwaja Basir Fitri, Pajhwok Afghan News -Afghanistan, 22 July 2020,  Attacks in Mazar-e-Sharif through 2020 include, a bomb attack on 14 January 2020, killing two children. This was followed by a secondary explosion when people arrived at the scene, wounding another seven civilians and the district governor’s bodyguard.[47] On 16 March 2020, a bomb attached to a motorbike killed one police officer and wounded four people, including three civilians. One civilian was killed and another wounded on 1 July when a roadside bomb was detonated. A secondary device was detonated when security forces responded to the original attack. Five other civilians and five members of the security forces were also wounded.[48] This information points to the deterioration of the security situation in Mazar-e-Sharif and it can longer be said that it is one the most secure areas in Afghanistan.

[47] Fahim Abed and Fatima Faizi, 'Afghan War Casualty Report: January 2020', New York Times Magazine, 30 January 2020, Ibid.

122.   In addition, the Tribunal is mindful of reports indicating that Mazar-e-Sharif is experiencing severe food insecurity and has been ‘severely hit by the impact of COVID-19 on the economic accessibility to food.’[49] In May 2020, the Agency for Technical Cooperation and Development (ACTED), a French humanitarian NGO, initiated a project to provide ‘immediate life-saving food security assistance to 38,500 protracted IDPs (5,500 Households) in vulnerable employment status and facing significant decrease in purchasing power in Mazar-e-Sharif’.[50] ACTED stated on its website:

[49] Giuliano Battiston, Afghanistan and Pakistan: The Never-Ending Crisis', Italian Institute for International Political Studies, 09 July 2020, ACTED, Provision of emergency food assistance through vouchers to most vulnerable protracted IDPs in Mazar-e-Sharif, May 2020, the outbreak of COVID-19 and consequent lockdown measures, disrupted livelihoods and reduced income coupled with chronic underlying poverty have further challenged families’ capacity to purchase essential food supplies, while food insecurity is already severe across Afghanistan.[51]

[51] Ibid.

123.   The European Country of Origin Information Network (ECOI) has reported that, according to forecasts by the Famine Early Warning System Network, in the period April to September 2020, Mazar-e Sharif would reach ‘the third highest level of the classification system’.  At this ‘crisis ‘level, ‘households either have food consumption gaps which are reflected by high or above-usual acute malnutrition; or are marginally able to meet minimum food needs but only by depleting essential livelihood assets or through crisis-coping strategies.’[52]

[52] ECOI, Security situation and socio-economic situation in Herat-City and Mazar-e Sharif, 30 April 2020,

124.   On the basis of the information before it, the Tribunal considers Mazar-e-Sharif to be unsafe. The Tribunal also finds that, in view of the current prevailing conditions in the city, the applicant would be exposed to ‘a likely inability’ to find food, as well as work.[53]

[53] See FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [80].

125.   The Tribunal, therefore, finds that the applicant’s real chance of persecution relates to all areas of Afghanistan.

126.   The Tribunal accepts on the evidence before it that there is a real chance that the applicant will face persecution involving serious harm as required by s.5J(4)(b) of the Act for one of the reasons mentioned in s.5J(1)(a) of the Act, including his Hazara race, Shi’a religion and imputed political opinion.

127.   If the applicant’s visa is cancelled and he is returned Afghanistan, the Tribunal finds that Australia will be in breach of its non-refoulement obligations and it has given this factor a very significant degree of weight that supports not cancelling the visa.

Conclusions

128.   The Tribunal has carefully considered the above factors. In the present case, the Tribunal remains concerned that the applicant had provided incorrect information in connection with his application for a protection visa and in his passenger cards. Protection visa applicants who provide untruthful accounts of their circumstances undermine the integrity of the migration system. The applicant has engaged in such conduct and the Tribunal considers his conduct to be serious.

129.   The Tribunal also recognises the serious consequences which flow from the decision to cancel the applicant’s visa. In Sullivan v Civil Aviation Safety Authority,[54] the Full Court of the Federal Court considered a review by the AAT of a decision to cancel an aviation licence.  In that case, Flick and Perry JJ said that:

[54] (2014) 226 FCR 555

When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[55]

[55] At [120]

130.   In this matter, the consequences of the cancellation are particularly grave. The delegate granted the visa on the basis that the applicant is a Shi’a Hazara at risk of serious harm from the Taliban, as well as other actors. The Tribunal has also found that the applicant would face a real chance of persecution on return to Afghanistan for the same reasons, in breach of Australia’s international non-refoulement obligations. The Tribunal gives significant weight to this factor. To a lesser extent, the Tribunal also gives weight to the time that has elapsed since the non-compliance. Overall and on balance, the Tribunal considers that these matters outweigh the considerations supporting the cancellation of the applicant’s visa. 

131.   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. However, having carefully considered all the relevant circumstances, as discussed above, the Tribunal concludes that, in the particular circumstances of this case, the visa should not be cancelled.

DECISION

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

Shahyar Roushan
Senior 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.

102Passenger cards to be correct

A non‑citizen must fill in his or her passenger card in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Natural Justice

• Jurisdiction

• Statutory Construction

• Remedies

AI Chat Citations

Actions

Download as PDF Download as Word Document

---

Citations

1710844 (Refugee) [2021] AATA 1643

---

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Zhao v MIMA [2000] FCA 1235

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

See 4 more citations

Return