1725683 (Refugee)

1725683 (Refugee) [2019] AATA 6214 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725683
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Rosa Gagliardi
DATE:12 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 12 August 2019 at 5:36pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Afghanistan – race – Hazara – religion – Shi’a Muslim – feared harm by Mujahideen and Taliban – cancellation – incorrect information – applicant is Pakistani national – documentation showing Pakistani nationality not fraudulent – purported to be deceased to enable brother obtain visa – credibility issues – complementary protection – ill health – old age – extended length of stay in Australia – Hazara returning to Pakistan – real risk of significant harm – exercise of discretion – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder had provided incorrect information in respect of the Protection visa application he filed with the Department on 26 May 2012. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
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.
Background
The visa holder arrived on Christmas Island [in] January 2012 by boat as an unauthorised arrival. He identified himself as [Mr A – Surname 1], a citizen of Afghanistan born in [Logar], Afghanistan in [Year 1]. The applicant also identified himself as a Shi’a Muslim and of Hazara ethnicity – a matter which is not in dispute given that the visa holder spoke fluent Hazaragi/Dari and had facial features consistent with those of Hazara ethnicity as was observed by the Department in his initial interview.
He was interviewed in relation to the Protection visa on 26 May 2012. In support of his claimed identity the applicant provided copies of his:
·His Taskera; and
·Driver’s Licence.
At the interview with a Departmental officer the applicant and interpreter read out key details from the documents, including the visa holder’s name ([Mr A]) and year of birth ([Year 2]). The applicant was asked why his year of birth had been recorded as [Year 1] in Departmental systems if he was born in [Year 2]. The visa holder responded that he was unsure how this had occurred but his date of birth was as reflected in his Taskera.
The visa holder was also asked why neither his Taskera nor his Driver’s Licence referred to the surname [Surname 1] and why none of his family members had this surname. The visa holder explained that he had added [Surname 1] to his name when he arrived in Australia so that he would have a surname but his name was [Mr A] as recorded on his Taskera and Driver’s Licence.
The visa holder claimed he had departed Pakistan on a fraudulent Pakistani passport, which was lost in the water in [Country 1].
The visa holder claimed that he fled Afghanistan in 1985 because he was involved in a blood feud with another family and because he feared being harmed by the Mujahadeen. He stated that he feared being harmed by the Taliban because of his Hazara ethnicity and by a family with whom he has a blood feud if he returned to Afghanistan.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance in the following respects:
The visa holder was granted a visa on the basis that he met the criteria for the grant of Protection visa because he was an Afghani national involved in a blood feud and because he feared the Mujahadeen on account of being a Hazara Shiite Muslim and that he had no right to enter and reside in any third country.
The visa holder’s protection visa application included a Departmental Form 866, Part C. In response to question 43 to 48 in this Form, he answered, “Refer to Statutory Declaration” which is a three page document dated 19 May 2012. The visa holder declared, among other things:
(para 4) I am a citizen of Afghanistan. I do not have a right to citizenship or a right to reside in any other country…I left Afghanistan in 1985 because I feared being harmed because I am a member of a particular social group of persons in Afghanistan involved in a blood feud with another family. I also feared being harmed by the Mujahadeen…I feared for my life and fled to Pakistan, where I remained for 25 years. I remained unlawful in Pakistan.
(para 5)…I fear returning to Afghanistan…I believe if I return to Afghanistan I would be at risk of facing serious harm by the Taliban because I am Hazara Shia and [by] [name] and [name] because I am involved in a blood feud with [the second named]’s family.
As a consequence, the visa holder was granted a Protection visa on 22 August 2012 on the basis that he satisfied the Minister’s delegate that he engaged Australia’s protection obligations under the Refugees Convention and him meeting the other criteria for the grant of the visa. The Minister’s delegate found that Afghanistan was the visa holder’s country of reference for the purpose of assessing protection obligations under the Refugees Convention. The delegate was thus satisfied that the visa holder had a well-founded fear of being persecuted in Afghanistan for a Refugees Convention reason.
In his protection visa application the visa holder stated that his son [Mr B] was [a certain age] at the time of the visa holder’s protection visa. The Department of Homes Affairs, found that the visa holder’s son “[variation of Mr B] S/O [Mr A]” was a citizen of Pakistan with a Pakistan Computerised National Identity Card (CNIC) number. CNIC numbers are only allocated to citizens of Pakistan.
In his protection visa application the visa holder stated that his son [Mr B] was born in Afghanistan. If so, then it is likely he became a citizen of Pakistan by descent because his parent (the visa holder) was a citizen of Pakistan at the time of his birth. Section 5 of the Pakistan Citizenship Act 1951 states:
Subject to the provision of section 3, a person born after the commencement of this Act shall be a citizen of Pakistan by descent if his parent is a citizen of Pakistan at the time of his birth.
The Department stated in its decision that there was further evidence that the visa holder was a citizen of Pakistan because he had resided in Pakistan for about 25 years and had employment there and was issued a labour card. The visa holder’s family were also in stable accommodation in Pakistan, although the Tribunal has not directly sighted such evidence. Importantly, the second instance of non-compliance in the notice was that that it appeared from incoming passenger cards signed by the visa holder, that he had travelled back to Afghanistan from [November] 2013 to [March] 2014, during an overseas trip, thereby undermining his claims that he actually had a well-founded fear of persecution in Afghanistan.
It is argued by the Department in its cancellation decision of 19 October 2017, that the delegate’s finding on 22 August 2012 that the visa holder was a person to whom Australia had protection obligations under the Refugees Convention, was based on incorrect information provided by the visa holder that he is a citizen of Afghanistan who was unlawfully resident in Pakistan before he first entered Australia on 7 January 2012. It was also found that the successful application was based on incorrect information provided by the visa holder that he feared persecution in Afghanistan.
The migration agent in her detailed submission of 8 March 2019 sets out the circumstances of the visa holder having fled Afghanistan to Pakistan. She also wrote:
[Mr A] lived in [City 1] where he worked at a [location]. [City 1] is about [a number of] hours’ drive from Quetta city. In about 1988 or 1989, [Mr A]’s friend [assisted] him in contacting an agent to obtain a fake Pakistani national identity card. [Mr A] used this card to show to the authorities in Pakistan so that he would not be harassed or ask for bribes from authorities. [Mr A] also obtained a fake ‘B Form’ which assisted [Mr B] to obtain a fake national identity card. This ‘B Form’ would be the equivalent to the Pakistani National Database & Registration Authority (‘NADRA’) Child Registration Certificate.
…
In November or December 2011, [Mr A] departed Pakistan, paying the first instalment of [amount] and was subsequently provided with a fake Pakistani passport that enabled him to travel from Pakistan to [Country 2]. [Mr A] then made his way to [Country 1]. On the way from [Country 1] to [Country 3], [Mr A]’s fake Pakistani passport was thrown into the water. From [Country 3], [Mr A] then travelled to Australia, arriving on Christmas Island [in] January 2012.
…
Since [Mr A] has been in Australia he has travelled back to Pakistan on four occasions to visit his family. [Mr A]’s family reside in Quetta, Pakistan. [Mr A] has not returned to Afghanistan and he does not have any family there.
This decision also ought to be read in conjunction with Decisions: [specified] as made by the Tribunal as currently constituted.
In those decisions the Tribunal found that the visa holder and his brother, Mr [C], appeared to have been part of an elaborate plan to enable family members to travel to Australia when they would otherwise have had no right to do so. In particular, Mr [C] told the immigration authorities that his brother, the visa holder, was deceased in order to permit him to be granted a [specified visa], when clearly this was not the case. The Tribunal found in those decisions that the visa holder and his family members, on the basis of the information provided by the Department, were Pakistani nationals and did have a right to enter and reside in a third country: Pakistan. The Tribunal refers to this matter only as it relates to the visa holder’s credibility as it was not the subject of the NOICC dated 18 May 2017
The Tribunal has had regard to the migration agent’s submissions arguing that the grounds for cancellation of the visa holder simply do not exist. It is argued that the visa holder is not a national of Pakistan and that he did not travel to Afghanistan as set out in the NOICC.
Subject of NOICC – Pakistani nationality
In respect of the visa holder’s incorrect information provided to the Department in claiming he was an Afghani national, and was never a Pakistani national, the Tribunal has also taken into account the migration agent’s submission putting forward country information that would point to the possibility that the process for attaining Pakistani national identity cards, and nationality generally, can be compromised and that the Tribunal should not take any evidence of Pakistani nationality at face value. The agent submits:
…We submit in the strongest possible terms that the notion that only Pakistani nationals are able to obtain a CNIC is simply not borne out by the country information. There is a wealth of authoritative country information which demonstrates that NADRA continues to be liable to bribery and fraud whereby Afghani refugees can obtain fake identities. If the information in 2019 concludes that NADRA is liable to bribery and fraud it can clearly be the case that in 1988 or 1989, [Mr A] was able to obtain a fake Pakistani national identity card under the previous Personal Identity System of Pakistan. As such, the conclusion that [Mr A] is a Pakistani national, being so since 1988, because [Mr B] holds a CNIC number is an erroneous conclusion.
Further, it is posited that the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Pakistan, dated February 2019, confirms that the NADRA continues to be susceptible to bribery and fraud whereby Afghani refugees can obtain fake identities in Pakistan. The DFAT report specifically states:
Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreement, references, and ownership deeds.
Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents…
Corruption is also common (see corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return to bribes as low as USD 100. Since then MOL has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT accesses that government efforts have reduced the incidence of bribery and fraud but have not eliminated it.
The migration agent has also pointed out to an article by the Immigration and Refugee Board of Canada which published the following research response, dated 14 January 2015:
In an article published by IFEX, a global network of NGOs that promotes freedom of expression as a fundamental right (IFEX n.d), Nighat Dad, a lawyer based in Pakistan, with experience in criminal, civil and corporate law (Future Challenges n.d), indicates that despite the security features of CNICs, “identity fraud is still a massive issue” in Pakistan (ibid. 23 July 2014). Dad interviewed an “identity agent” who does travel arrangements for Afghans entering Pakistan and who indicated that:
The process can involve finding a Pakistani family willing to sell their own identity for a hefty amount in exchange for registering aliens as family members and providing the necessary documentation for registering [them] as siblings. Alternatively, it can also involve using already available identity cards from banks, universities and government offices where people provide copies of their CNIC as part of documentation…The last step in the fraud is to educate the applicant about his ‘parents’ and ‘siblings’ so he can identify them when interviewed by NADRA officials…
On 22 September 2012, the Express Tribune reported that NADRA had initiated a national crackdown against holders of fake CNICs (The Express Tribune
[1] Courtesy of migration agent:
22 Sept.2012). The initiative came after the FIA arrested 24 NADRA and Immigration and Passports officials in July 2012 for issuing fake CNICs in Lahore (ibid)…[1]
The migration agent has also pointed to a similar case involving a protection visa cancellation N03/45769 [2003] RRTA 433. On review by the Tribunal it was found that there was not the requisite degree of satisfaction on the evidence to conclude that the visa holder had provided incorrect answers about, among other things, his nationality.
The Tribunal concedes that the country information clearly shows that NADRA is not a perfect system and that it is possible for fraud to occur and that identities can be purchased in Pakistan. The country information is compelling. Nonetheless, in this case, the Tribunal has serious reservations on account of the applicant’s marred credibility in purporting to be deceased to enable his brother, [Mr C], achieve a migration outcome to Australia. Given the incorrect information provided by the family generally, it is open to the Tribunal to adduce that the visa holder is not a witness of truth about significant aspects of his case. As such, the Tribunal does not accept that the visa holder ever held fraudulent documentation that showed he was a Pakistani national. The Tribunal prefers to rely on the evidence relied upon by the Department in cancelling the visa instead.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the visa holder in the way described in the s.107 notice in relation to the visa holder’s nationality.
Subject of NOICC – Travel back to Afghanistan
It is argued that the visa holder did not return to Afghanistan between [November] 2013 and [March] 2014. Further, that he has not returned to Afghanistan since his arrival in Australia because of his fears of the Sipah group and commander and that their connections with the Mujahadeen. He also fears returning to Afghanistan due to his Shiite Muslim Hazara ethnicity.
It is argued that the visa holder instead travelled to Pakistan to visit his family on four occasions, including from [November] 2013 to [March] 2014. To this end the Tribunal notes that the visa holder has submitted a copy of his outgoing passenger card dated

[November] 2013, stating that the country he would be spending most of his time abroad in was Pakistan. In addition, the Tribunal has sighted copies of the visa holder’s travel document containing the Pakistani visa issued before he travelled to Pakistan, and a copy of the Pakistani visa extension that was issued in Quetta during his visit to Pakistan from

[November] 2013 to [March] 2014.
It is argued that the visa holder’s English was not proficient to enable him to fill out his incoming passenger card and that he asked assistance from another passenger who assumed the visa holder had travelled to Afghanistan.
In his statutory declaration the visa holder has stated:
My wife and children continue to live in Pakistan. My wife and [a number of] my children, [live] together in one house and my son, [Mr B] and his wife, [who] is my [daughter], live together with their [children] in another house. I have been to Pakistan to visit them. It has been two years now since I have visited my family in Pakistan and I miss my family very much…

The Tribunal has assessed the evidence before it and places significant weight on the documentation submitted showing that the visa holder intended to travel to Pakistan and that he had a visa extension issued in Quetta. On the basis of this information, the Tribunal finds that there was no non-compliance with s.101(b) by the visa holder in the way described in the s.107 notice but only in relation to the visa holder’s travel outside Australia.
Should the visa be cancelled?
As the Tribunal has decided that there was some non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The Tribunal finds that the correct information is that the visa holder has the right to enter and reside in Pakistan and that his documentation showing Pakistani nationality was not fraudulent. The Tribunal has made this finding on the basis of the visa holder and his extended family’s other attempts to mislead immigration officials.
The content of the genuine document (if any)
Not applicable.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision to grant the visa holder a protection visa was based partly on the incorrect information advanced that he was an Afghani national and could not return to Afghanistan or any other third country.
The circumstances in which the non-compliance occurred
The visa holder maintains at the time of review that he is an Afghani national and was living illegally as a refugee in Pakistan. It is further claimed that he did not inform the Department that he obtained a fraudulent national identity card. It is argued that this omission must be understood in the context of the situation he found himself in, as an illegal refugee living in a precarious situation in Pakistan trying to provide for his family. The visa holder obtained a national identity card, it is claimed, in an attempt to avoid being harassed and asked to pay bribes to Pakistani authorities which, if not paid, could lead to his detention and deportation from Pakistan. This national identity card, it is claimed, was supposed to provide the visa holder with some security; more than afforded to illegal refugees living in Pakistan, and allowed him to work, have accommodation and provide education or his children.
As the Tribunal has rejected that the visa holder never held Pakistani nationality, it rejects the visa holder’s submission in this regard. Rather, the Tribunal finds that the visa holder deliberately concealed from the Department that he was a Pakistani national in order to enhance his claims that he could not return to Afghanistan.
The present circumstances of the visa holder
It is argued that extreme and irreversible harm would be visited upon the visa holder should his visa cancellation remain in force. The visa holder is now [a certain] age, although his photograph depicts someone who is of more advanced years, possibly due to his early life, at least in Afghanistan, where he would have endured war and deprivation and a fear of the Taliban. The visa holder used to work in a [location] in [City 1], outside Quetta but it is unlikely that the visa holder would be able to find similar work were he to return to Pakistan on account of his age. The Tribunal has serious concerns that were the visa holder’s visa to remain cancelled that his ability to find work to support himself and his family in Pakistan would be so compromised as to pose a real threat to his capacity to subsist, given his age.
The Tribunal has also taken into account that the visa holder’s age and background mean that attempting to re-settle in Pakistan currently would present serious challenges, possibly constituting serious harm. While the Tribunal has found that the visa holder is a Pakistani national of Hazara background, the country information regarding the treatment of Hazaras in Pakistan per se, and regardless of nationality, leaves the Tribunal to have serious concerns about the visa holder attempting to adjust to an environment where Hazaras are systematically discriminated against and targeted as he becomes older and the prospects of being employed diminish.
The Tribunal accepts that the visa holder growing up in Afghanistan would not have had access to adequate medical services and that those he received in Pakistan as someone of Hazara background, would also have been of a lesser standard. In his response to the section 107 notice, the visa holder submitted a psychologist’s report referring to the visa holder suffering from mental ailments, including depression, anxiety and physical [ailments]. The Tribunal places significant weight in favour of the visa holder as relates to his mental and physical well-being and on concerns that his access to health care in Pakistan would not be of a standard that he would receive in Australia.
The Tribunal also understands that the visa holder has lodged a Partner visa application and that his wife and children living there would clearly be affected by an adverse decision not to substitute the Department’s decision to cancel the visa holder’s visa as head of the family. Having said this, the matter of whether the visa holder is in a genuine and continuing spousal relationship with the person he wishes to sponsor to Australia is a matter for the Department to determine.
The Tribunal is mindful that the visa holder has spent almost eight years in Australia now and that he has approached older age in this country and has now integrated in the way of life here. His extended family live in Australia, and [a number] of his children are living here. The Tribunal places some weight on these matters.
Policy also requires a decision-maker to consider the following four matters:
·If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the bests interests of the children;
·Australia’s international obligations;
·PAM3: Compliance and Case Resolution – Case Resolution – Guiding principles – Treatment of children; and
·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 and inhuman or degrading treatment or punishment.
The Tribunal is also required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether upon cancellation a person would become an unlawful non-citizen.
Non-refoulement obligations
While the applicant has not filed a protection visa against Pakistan the Tribunal has regard to the treatment of Hazaras in Pakistan, particularly in and around Quetta (Balochistan) where Hazaras leaving Afghanistan live, regardless of whether or not they are Pakistani nationals. The country information indicates that Hazaras in Pakistan generally have been targeted by extremists for practising their faith and the Tribunal has limited evidence before it that having a Pakistani identity card acts to protect Hazaras from the targeting of Hazaras generally.
Hazaras in Pakistan are easily identifiable in terms of their features and whether they are citizens or not is of no consequence to extremists.[2] Home grown terrorist groups view Shiites as apostates, such as the Sunni jihadist group Sipah-e-Sahaba Pakistan, which spawned a virulent offshoot known as Lashkar-e-Jangvi (LeJ).[3] The current government is publicly expressing support for the Hazara community and has offered to improve security, however, as expressed in an article:
High walls around the neighbourhoods of Pakistan’s embattled Hazara community in Quetta are designed to protect them from extremist militants, but also serve as a constant reminder of the threat they face.
Soldiers and security checkpoints greet visitors to Hazara town, one of two large guarded neighbourhoods in the capital of Baluchistan, where religious and sectarian groups often target the mostly Shia Hazaras with bombs and guns.
Despite improved security in recent years, partly because most Hazaras have moved in the guarded enclaves, hardline militants keep up attacks….[4]
[2]
[3] ‘Pakistani Hazaras face a constant threat of targeted violence. Many say the security response has been ghettoizing and ineffective’, Sabrina Toppa, Global Post, 31 May 2018, accessed on 30 July 2019.
[4] “’Under siege’: Fear and defiance mark life for Pakistani’s Hazaras’”, accessed on 30 July 2019.
Further:
“We are living under siege for more than 1-1/2 decades due to sectarian attacks” said Sardar Sahil, a Hazara lawyer and rights activist.
“Though all those checkposts were established for our security, we feel we were ourselves cut off from other communities”.[5]
[5] Ibid;
The year 2018 saw several attacks on Hazaras by way of isolated shootings in Pakistan with two persons of Hazara ethnicity being shot in Quetta in March.[6] In April 2018 gunmen attacked a vehicle in Quetta, killing a member of the Shia Hazara community [7] and later that month a shopkeeper in the Shia Hazara community was shot and killed [8]. On 28 April two other shopkeepers in the Hazara community were shot and killed in Quetta.[9] Attacks were not limited to these instances.
[6] ‘Pakistan: A Shia Muslim martyred, other injured in terrorist attack in Quetta’, Pak Tribune, 10 March 2018, accessed on 30 July 2019.
[7] ‘Hazara man shot dead in Quetta”, The Nation, accessed on 30 July 2019.
[8] ‘Hazara shopkeeper gunned down in Quetta’, DAWN.COM, AP, 18 April 2018.
[9] ‘Two killed in sectarian attack in southwest Pakistan:police’, Gul Yousafzai, accessed on 30 July 2019.
More recently in April 2019 in an attack on Hazaras in Quetta 20 persons were killed and dozens more were injured as a suicide bomber disguised as a labourer exploded himself at a vegetable market.[10]
[10] ‘20 Killed in Quetta attack on Hazaras, Agencies, 13 April 2019, accessed on 30 July 2019.
Other areas in which extremists operate and have been known to target Shiite Hazaras include Lahore, Peshawar and Sehwan.
Under these circumstances, the Tribunal accepts that the life of the visa holder would be considerably diminished were he to return to Pakistan, so much so that there is a real chance he may face serious harm due to the targeting of Hazaras in Pakistan over the years, and the limitations on their freedom of movement. The Tribunal places significant weight on the circumstances the visa holder would face on return to Pakistan and considers that such circumstances would mean that Australia’s non-refoulement obligations would be breached if the visa holder were compelled to return there. It is not fanciful or remote that the visa holder and his family could be subject of acts of terror or other attacks on the basis of his ethnicity and that he is particularly vulnerable given his profile as an older, unwell man.
Even if the Tribunal were to make a finding that he does not meet the relevant criteria for the grant of a protection visa on the basis of his Hazara ethnicity in Pakistan, the Tribunal finds that at its lowest, the visa holder would face danger such that there is a real risk that he will be subjected to degrading treatment or punishment as per Australia’s complementary protection regime. The Tribunal considers that this matter is overwhelming in its considerations, above and beyond whether the visa holder intended to mislead the immigration authorities.
While the migration agent has provided persuasive evidence of the harm the visa holder would face in Afghanistan if he returned there, the Tribunal has found that the visa holder is a national of Pakistan and has not referred to that country information.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The visa holder continues to maintain that he does not have Pakistani nationality and that concomitant identification documentation was fraudulent and fraudulently obtained to facilitate his ability to live in Pakistan without harassment. Even after providing this incorrect information he did not advise the Department that he was alive and living in Australia which meant that his brother [Mr C] was able to obtain a [specified] visa. The Tribunal places some adverse weight on this matter.
Any other instances of non-compliance by the visa holder known to the Minister
Apart from the above instances of non-compliance the Tribunal is not aware of any other attempts by the visa holder to provide incorrect information as defined in the Act.
Time that has elapsed since the non-compliance
The non-compliance is not recent (now seven years) and the Department acknowledged that the period since the non-compliance (at that stage in 2017) was “lengthy”. The visa holder and some family members, including extended family members, have become a part of Australian society over several generations. The Tribunal also takes into account the well-being of the visa holder which is now further compromised with age. His ability to cope with ill health has now diminished over seven years. The Tribunal places significant weight on this matter in favour of the visa holder.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal notes that the visa holder continued the fiction that he was a citizen of Afghanistan to gain Australian citizenship. This is something that the Tribunal considers serious and the Tribunal places considerable weight on this matter.
Conclusion
The Tribunal has found that the visa holder did provide incorrect information to the Department of Home Affairs in his application for protection in 2012. Of itself this is enough to cancel a visa. The Tribunal has, however, taken into account the current circumstances of the visa holder, being his health, age and his background as a Hazara returning to Pakistan and has found that there is a real risk that he would face significant harm if returned to that country. The Tribunal has exercised its discretion in this case in favour of the visa holder.
Accordingly, 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Rosa Gagliardi
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Canada: Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents, including non-identity documents such as academic qualification documents, travel documents, First Information Requests (FIRs), land ownership titles and newspaper articles, and identity documents including identity cards and birth certificates; methods of obtaining fraudulent documents and accessing he credibility of fraudulent documents (20-December 2014), 14 January 2015, PAK105021.E, available at:

‘The Trouble with being Hazara in Pakistan’s Quetta city’ Syeda Sana Batool, Mariam Ahmed,
4 April 2019, accessed on 30 July 2019.

[2019] AATA 6214

12 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies