1731369 (Migration)

[2019] AATA 6591

1731369 (Migration) [2019] AATA 6591 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731369

MEMBER:Alison Murphy

DATE:23 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 October 2019 at 3:44pm

CATCHWORDS

MIGRATION – cancellation – Refugee and Humanitarian (Class XB) – Subclass 200 (Refugee) – incorrect information – unaware of earlier visa application – no opportunity to correct information – recognised as refugee by UNHCR – fear of persecution due to land dispute, religion and gender – remaining relative in Kabul – health problems – would still have been recognised as refugee by delegate – breach of non-refoulement obligations – no jurisdiction with respect to other applicants – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 46A, 109, 140, 376, 499
Migration Regulations 1994 (Cth), r 2.41

CASES

DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

HISTORY OF PROCEEDING

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant is a [age] year old female from Afghanistan and the second named applicant is her [age] year old daughter. They applied for XB-200 refugee visas in 2013 and those visas were granted to them in April 2015. They were sponsored in their visa applications by their son and brother [Mr A], who arrived in June 2013 as the holder of an XB-200 offshore refugee visa granted to him after he was recognised as a refugee by the UNHCR in [Country 1]. The applicants arrived in Australia in September 2015, having been resident in Quetta, Pakistan between 2002 and the time they travelled to Australia.

3. On 8 December 2017 the delegate cancelled the first named applicant’s visa on the basis that she considered the applicant gave incorrect information in her visa application. In particular she considered the applicant had given incorrect information about her name, date of birth and by stating that none of the persons included in the visa application had previously applied for a visa to Australia. As a consequence of the delegate’s decision to cancel the first named applicant’s visa, the second named applicant’s visa was consequentially cancelled pursuant to s.140 of the Act. On the same date the delegate cancelled the visa of the applicant’s son and brother [Mr A] on a similar basis.

   THE REVIEW PROCEEDING

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. The applicants appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The matter was heard together with the review of the cancellation of the visa of the applicant’s son [Mr A] (AAT case number [number]) and the Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificate

8. The Tribunal has before it the applicant’s Departmental files, including both the grant and cancellation files relating to the 2013 offshore refugee visas.

9. In the case of the cancellation file, the delegate has placed restrictions on some of the material given to the Tribunal by the Department by certifying that disclosure of the material is contrary to the public interest under s.376 of the Act. Where a certificate is issued under s.376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

10. The certificate states that disclosure of the information would be contrary to the public interest because it would reveal confidential Departmental investigative methods used to detect breaches of the law.

11. At hearing I provided a copy of the s.376 certificate to the applicants and their representative.

12. I am satisfied the s.376 certificate is valid on its face. The documents covered by the certificate evidence investigations undertaken by the Department in relation to the applicants and other persons. Much of the adverse material contained in the certificated documents has been disclosed in the s.107 notice and the delegate’s decision. I note that the certificated documents contain personal information relating to third parties and I have not provided the applicants with a copy of that information. I have discussed with them at hearing some details of that information in so far as it relates to the identity of persons named as secondary visa applicants in the other visa applications which the department suspects include the applicants.

    LEGISLATIVE FRAMEWORK

13. 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.

14. 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.

    Is the s.107 notice valid?

15. The s.107 notice in this case sets out in detail the information given by the applicant in her offshore visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

16. 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.

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

17. 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.

18. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and can be summarised as follows:

    ·On 19 December 2013, the applicant was included in an offshore refugee (XB 200) visa application in respect of which the main applicant was [Mr B] and the proposer was their son [Mr A]. In that visa application she was identified as [Ms C], born [date], who was married to [Mr B]. Also included in that visa application was their daughter [Ms D] born [date]. The applicants answered ‘no’ to a question asking if any person included in the application had ever applied for an Australian visa before; 

    ·The s.107 notice set out that [Mr B] died [in] 2014, as a result of which his application was withdrawn and [Ms C] became the main applicant for the visa;

    ·The s.107 notice set out that contrary information had come to the attention of the Department, namely that the applicant was included in two refused Global Refugee visa applications lodged in 1999 and 2005. In both of these visa applications, her name was recorded as [Ms E] and her date of birth was recorded as [date]. A facial image comparison had concluded that images sourced from the three visa applications were images of the same person;

    ·The s.107 notice set out that on the basis of the above information, it was considered the applicant had provided incorrect information about her identity as [Ms C] born [date], as the delegate considered her correct identity was [Ms E], born [date];

    ·The s.107 notice set out that on the basis of the above information, it was also considered the applicant had provided incorrect information about whether she or any other person included in the visa application had applied for a visa in Australia before.

    Did the applicant provide incorrect information about her identity as [Ms C] born [date]?

19. The applicant responded to the s.107 notice by email dated 27 July 2017, denying she had applied for any earlier visa prior to the 2013 visa application. She stated her birth name was [Ms C] but her husband called her [Ms F] after her marriage. She stated she was not aware her husband had applied for any earlier visas but he was very worried about the conflict with his brother [a person] and it is very common in Afghan culture for men to keep their thoughts and plans to themselves and not share them with their wife.

20. At hearing the applicant maintained that she was unaware her husband had made visa applications for the family in 1999 or 2005 and that it was not uncommon for men not to share such matters with their wives. She stated her birth name was [Ms C], ‘[first name of Ms C]’ meaning ‘[info deleted]’ and ‘[last name of Ms C]’ meaning ‘[info deleted]’, but her husband, who loved her very much, called her ‘[Ms F]’, meaning ‘[info deleted]’ or ‘[info deleted]’.

21. Her son [Mr A] confirmed at hearing that their father called their mother [Ms F] and he hadn’t been aware her legal name was [Ms C] until he saw the documents when making the visa application. This is consistent with an earlier statutory declaration dated 10 December 2013 lodged in support of the visa application, in which son, [Mr A], stated he had always known his mother as [Ms F] and only became aware her legal name was [Ms C] after seeing the documents for the visa application.

22. Similarly the applicant disclosed in her Form 80 that she was also known by the name [Ms F], at question 8, as did the applicant’s husband (now deceased) and their daughter [Ms D] in their own Form 80s. Further, the Departmental file contains a record of interview with the applicants conducted at the Australian High Commission in Islamabad on [in] 2014, in which the applicant tells the interviewer that [Ms F] is the name her husband gave her and [Ms D] tells the interviewer that her mother was known by that name at home.

23. In these circumstances it is clear that the applicant did not try to conceal from the Department the fact that she was also known by the name [Ms F]. Rather this was openly disclosed by all the visa applicants at the time the visa application was lodged.

24. The applicant’s legal identity as [Ms C] is confirmed by a large number of documents contained on the Departmental file including her marriage certificate, a passport, a taskera submitted to the Department in 2013 and a further taskera submitted to the Tribunal in 2018. I note the details contained in those taskeras are consistent with each other and the applicant’s Afghan passport.

25. Taskeras are the primary identification document in Afghanistan. They are usually issued at the provincial level by the local provincial Population Registration Department, and are not subject to a centralised system or computerised recording for registration and oversight[1]. The required information for the issue of a taskera includes the father’s name, place and year of birth and attestation of identity, which is required before approval by the local authority and the issue of the taskera[2].

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

    [2] Norwegian Refugee Council 2016 Access to Tazkera and other civil documentation in Afghanistan, 8 November, CIS38A80123743, pp. 16-17. 

26. The applicant and her daughter [Ms D] have provided two original taskeras during these proceedings. The first was provided in support of the visa application lodged in 2013. The photographs in those taskeras are identifiably photographs of the applicants and the information in those taskeras is consistent with that in the 2013 visa application form. The applicant gave evidence that she was first issued a taskera as a child in Afghanistan, but she and her husband and children fled Afghanistan for Pakistan in 2002 without any documents. Her husband obtained new taskeras for the family while they were living in Quetta, but she is not sure whether he did this through the authorities in Pakistan or those in Kabul. It was these taskeras that were submitted to the Department along with the 2013 visa application.

27. The applicant and her daughter [Ms D] gave evidence that after their visas were cancelled in December 2017, they thought the Department believed there to be something wrong with their taskeras issued in Pakistan, so they travelled to the Afghan Embassy in Canberra with the applicant’s son [Mr A] in about January 2018 and obtained application forms for new taskeras. They were interviewed by an Embassy official and advised to appoint a relative in Afghanistan to act on their behalf. They appointed the applicant’s son-in-law in Kabul (the husband of [Ms D]) to act on their behalf to obtain the taskera from the Ministry of Foreign Affairs in Kabul and mailed him the applications obtained from the Embassy. He travelled to their hometown in Jaghori to get the forms completed in their home village, then took them to [an official] in Kabul to have them verified. Some months later they received the taskeras in the mail from Afghanistan. They sent copies of them to the Afghan Embassy, which conducted checks to verify their identities before issuing them Afghan passports.

28. The Afghan embassy in Canberra has previously provided the Department’s Country of Origin Information Service with advice of the processes it undertakes for verifying a person’s Afghan identity:

    1.     The Embassy of Islamic Republic of Afghanistan in Canberra is the only entity in Australia to assist all the Afghan nationals in Australia who requires verification for their Afghan identity.

    2.     The applicant must visit the Embassy (Monday and Friday only) for a formal interview and fill up the application form. After the interview, the Embassy collects all the required documents (details are available in Embassy website) from the applicant and send them to Ministry of Foreign Affairs and Ministry of interior of Afghanistan to verify his/her Afghan nationality. After receiving confirmation from Kabul, the Embassy contacts the applicant and issue a letter confirming his/her Afghan Nationality by the Embassy.

    3.     The Embassy of Islamic Republic of Afghanistan do not issue Tazkira (Afghan National Identity), however after receiving confirmation of the applicant’s Identity from Kabul, the Embassy issues a letter (in English) confirming his Afghan Nationality.

    4.     This is a lengthy process and may take months. We advise to nominate a representative by the applicant in Kabul to accelerate this process[3]. 

    [3] Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia

29. I consider the applicants’ evidence as to the process by which they obtained their Afghan taskeras and Afghan passport to be consistent with the advice from the Afghan Embassy and I accept those documents to be genuine. As the Afghan Embassy does not itself issue taskeras (it only issues letters confirming Afghan identity), I accept the applicants obtained their taskeras using their appointed representative in Kabul. I accept the Afghan Embassy issued them passports after receiving the taskeras and conducting checks with the Afghan authorities.

30. In assessing whether the applicant’s correct name and date of birth are as given in the 1999 and 2005 visa applications, or the provided identity documents which are consistent with the 2013 visa application, I note that copies of the earlier visa applications are not contained in the material provided to the Tribunal by the Department, nor is there any evidence before me indicating what identity documents, if any, were submitted in support of those applications.  

31. In contrast to the significant number of identity documents showing the applicant’s legal name to be [Ms C], born [date], there are no identity documents before the Tribunal which identify the applicant as [Ms F] or [Ms E] born [date]. Neither the s.107 notice nor the cancellation decision give any reason for preferring the identities of [Ms F] or [Ms E], born [date], over that of [Ms C], born [date]. Indeed the cancellation decision records that it is accepted that [Ms E] and [Ms C] are the same person and I agree that they are.

32. Given the very significant amount of documentary evidence before me which indicates the applicant’s correct name and date of birth to be [Ms C], born [date], the lack of any identity documents indicating that her correct or legal name and date of birth is [Ms F] or [Ms E], the fact she disclosed at the time of the visa application that she was also known by the family nickname, [Ms F], and the consistent evidence of her family members at the time the visa application was lodged that [Ms F] was in fact her family nickname and [surname of Ms E] her husband’s name, I find the applicant’s legal name and date of birth are [Ms C], born [date], as stated in her 2013 visa application. It follows that I do not accept she provided incorrect information in that visa application about her name or date of birth.

    Did the applicant provide incorrect information about whether she or any other person included in the visa application had applied for a visa in Australia before?

33. In her response to the s.107 notice, the applicant denied she had been included in any earlier visa application. At hearing she maintained that she was not aware of the earlier visa applications in which her husband is named as the main applicant, that he had not discussed those applications with her at the time and as he has since died, she is unable to ask him.

34. I am satisfied that the applicant and her two children [Ms D] and [Mr A] were included in two refused Global Humanitarian visa applications lodged in 1999 and 2005, given their husband and father is named as the main applicant and each of the applicant and her children are named as his dependants (along with a number of other dependants). The Departmental files relating to those visa applications have not been provided to the Tribunal and the provided material does not contain copies of the application forms or any other documents from those files. Rather the information set out in the s.107 notice appears to have come from ISCE screens reproduced in the material covered by the non-disclosure certificate.

1. Consequently, I cannot establish who signed the visa applications lodged in 1999 and 2005, what relationship the other dependants named in the application were stated to have with the main applicant (the applicant’s deceased husband), the identity of the proposers or what other documents may have been provided in support of the applications. However, as I am satisfied that the applicant and her children were included in those visa applications, it follows that I am satisfied that the applicant provided incorrect information in the 2013 visa application when she stated that no-one included in the visa application had previously applied for a visa to Australia. In making this assessment, I note that s.100 of the Act makes clear that an answer to a question is incorrect even though the person providing the answer did not know that it was incorrect.

   CONCLUSION ON NON-COMPLIANCE

2. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice in respect of her statement in the 2013 visa application that no person included in that application had previously made a visa application to Australia.

   Should the visa be cancelled?

3. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

4. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994.

5. The correct information: I consider the correct information is that the applicant and her daughter [Ms D] were included in two Global Humanitarian visa applications lodged in 1999 and 2005.

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

7. 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: Although there is no decision statement in the Department’s materials provided to the Tribunal, the s.107 notice set outs that the applicant’s visa was granted on the basis of her identity as [Ms C], a married woman born [date] from [Village 1], Afghanistan. It states that the visa was granted on the basis that the applicant satisfied the Minister that her split family conditions engaged Australia’s protection obligations under the Refugees Convention and that her status as an Afghani person was fundamental to this determination.

8. Nothing in the s.107 notice or the cancellation decision suggests that had her visa history been known, it would have impacted on the decision to grant her the visa. Nor is there anything in the s.107 notice or the Departmental file that would suggest the applicant and her family are not Afghan citizens or that they are citizens of any other country.

9. Having found the applicant’s identity is as set out in the 2013 visa application, and there being no suggestion that she is not an Afghani person or that any of the refugee claims made by the applicant in that visa application were incorrect, I am not satisfied the decision to grant the visa was based in any part on the incorrect information.

10. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in her 2013 visa application.  I note she has consistently denied knowing she had been included in the earlier visa applications and there is no evidence before me that she signed or was otherwise aware of those earlier visa applications. I accept her evidence in that regard.

11. The present circumstances of the visa holder: The applicant is a [age] year old female living with her adult daughter and adult son in [Suburb 1], [State 1] where she has formed close links with the Hazara population resident in [City 1] and surrounding areas. She is illiterate and cannot read or write in any language. She suffers from a range of health problems, including [various medical illnesses]. Since her visa was cancelled in December 2017 she has suffered [other medical illnesses].

12. After being granted the visa she attended TAFE for some time to study English until her health deteriorated. She keeps house for her daughter and son and has struggled financially since her Centrelink benefits were cancelled as a result of her visa cancellation. She left Afghanistan in 2002 and has no close relatives remaining in Afghanistan. Her sister has passed away, with the result her sister’s extended family in Kabul had to assist her to prove her identity and obtain her most recent taskera.

13. The family moved to [State 1] after the applicant’s son obtained a job in a factory and he worked there for 2.5 years before getting a job [in an occupation], where he continues to work. Her daughter has undertaken a number of training courses in Australia and currently works [in an occupation]. Her daughter’s husband lives in Kabul with his family, where he is [employed in a position] with his own [company]. The family are active in the [City 1] Afghan community.

14. 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 delegate considered the applicant did not seek to correct the incorrect information before the visa was cancelled. As I accept the applicant was not aware of the earlier visa applications, I accept she had no opportunity to correct the incorrect information before her visa was cancelled.

15. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that there is no information suggesting any other non-compliance by the applicant.

16. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made her visa application in 2013 and six years have elapsed since then.

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

18. Any contribution made by the holder to the community: The applicant lives with her adult children and has close contacts in the Afghan Hazara community.

    Other factors to be considered

19. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

20. If the applicant’s visa is cancelled, she will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) has the effect that she will be statute barred from making another application for a protection visa. If detained, she is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that she is owed non-refoulement obligations by Australia[4].

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

    [4] DMH16 v MIBP [2017] FCA 448

21. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

22. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

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

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

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

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

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

24. In this case the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.

    Country of nationality

25. The applicant has at all times claimed to be an Afghan national who resided in Quetta, Pakistan as a refugee between 2002 and 2015. As set out above, the s.107 notice sets out that the applicant’s identity as an Afghani person was fundamental to the decision to grant her the visa. This statement would seem to suggest that the delegate suspected the applicant may not be an Afghan national.

26. However I cannot find any basis in the material for such a suspicion. In particular I cannot locate anything in the s.107 notice, the cancellation decision or any other document contained in the Departmental file that would suggest the applicant is not an Afghan citizen, that she is a national of any other country or even that inquiries or investigations are being undertaken as to her country of nationality. She has produced two original taskeras attesting to her Afghan citizenship and for the reasons set out above I have accepted those documents to be genuine.

27. There being no evidence before me that would indicate the applicant is a citizen of any other country, I find she is a citizen of Afghanistan and I have assessed her claims against that country.

    Well-founded fear of persecution

28. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of her Hazara ethnicity, her Shia religion, her gender and a land dispute involving the applicant’s now deceased husband and his brother.

29. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have taken account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.

    The applicant’s personal background

30. The applicant is a [age] year old female from [Village 1] in the Jaghuri district of Ghazni province, Afghanistan. She was widowed in 2014 following the death of her husband (after he had applied for the visa but before it was granted) and she has two adult children here in Australia. Another son died in Afghanistan in about 2002, at about age [age]. Her only remaining close family member in her home village, her sister, has died since the applicant’s departure from Afghanistan.

31. It is not in dispute that the applicant and her family are of Hazara ethnicity and Shia Muslim religion. The applicant and members of her family have participated in the visa grant and cancellation processes with the assistance of interpreters in the Hazaragi language and have the distinct visual features shared by Hazaras.  The applicant has consistently stated her family left Afghanistan in 2002 for Quetta, Pakistan and have not returned. At hearing the applicant told me the family fled Afghanistan after her late husband’s brother killed her eldest son (then aged [age] or [age]) in the context of a land dispute with her husband. Her evidence at hearing is consistent with the family’s statements in the 2013 visa application.

32. The family lived as refugees in Pakistan until the applicant’s son [Mr A] was granted an XB-200 offshore refugee visa after registering with the UNHCR in [Country 1] and subquently sponsored the applicant and her daughter to Australia on split family XB-200 offshore refugee visas. They applied for those visas in December 2013, the visas were granted in April 2015 and the applicants arrived in Australia in September 2015.

33. I accept the applicant’s account of her personal circumstances and I have assessed her claims for protection on the basis that she is a [age] year widowed female originating from the Jaghuri district of Ghazni province, Afghanistan but resident as a refugee in Quetta, Pakistan between 2002 and 2015. I accept that in view of her age, gender and lack of remaining family in her own village, she will not return to her village in Jaghuri district, Ghazni province if she is removed from Australia.

34. I note that in any case, the DFAT report indicates the security situation in the applicant’s home area of Jaghuri district, Ghazni province deteriorated significantly in 2018. Ghazni province forms part of the Hazarajat. While the security situation in the Hazarajat has been considerably better than in most other parts of Afghanistan in recent years, DFAT reports that security conditions in some parts of the Hazarajat deteriorated significantly in 2018. This included large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, leading to protracted fighting and large scale displacement since August 2019. It reports the Taliban began offensive operations in the Jaghuri and Malestan districts of Ghazni province, with UNAMA verifying 20 civilian deaths and six injuries in Jaghuri, while Ghazni province reportedly saw an 84% overall increase in civilian casualties in 2018[5].

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

35. In light of the deteriorating security situation in Ghazni province as well as the applicant’s personal circumstances, I find that if the applicant’s visa remains cancelled she will return to Kabul where her daughter’s husband resides.

    The applicant’s fear of harm in Afghanistan

36. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of her Hazara ethnicity, her Shia religion, her gender and a land dispute involving the applicant’s now deceased husband and his brother.

37. I consider the applicant has a well-founded fear of persecution in Afghanistan for the essential and significant reasons of her Shia religion, her Hazara ethnicity and her membership of the particular social group of ‘women in Afghanistan’. In making that assessment I note the contents of the most recent DFAT report dated 27 June 2019 as summarised below.

    The general security situation in Afghanistan

38. The DFAT report indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence[6].

    [6] Ibid at 2.52 – 2.59

39. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[7].

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

40. DFAT reports that UNAMA has documented 32,114 civilian deaths and 59,561 civilian injuries across Afghanistan since 2009, but given UNAMA’s stringent methodology for recording conflict-related casualties the true figures are likely to be higher. Conflict related civilian casualties rose considerably between 2013 and 2014, and have remained high in subsequent years. DFAT reports that of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, which increased by 48% in 2018, causing 1,404 deaths and 2,721 injuries[8];

    [8] Ibid at 2.60 – 2.69

41. UNAMA documented 271 incidents of conflict-related abductions carried out by AGEs in 2018, affecting 1,857 civilians and resulting in the death of 53 and the injury of 33[9]. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence[10].

    The applicant’s fears on the basis of her ethnicity and religion

    [9] Ibid at 2.75 – 2.80

    [10] Ibid at 2.70 – 2.74

42. DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, with the worst recorded massacre in recent history occurring in 1998, when the Taliban massacred at least 2,000 Hazara in Mazar-e-Sharif, leading many Hazara to flee Afghanistan[11].

    [11] Ibid at 3.8

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

1. DFAT assesses that Hazara residing within the Hazarajat, particularly in Bamiyan province, face a lower risk of conflict related violence than those residing in other parts of the country, particularly Kabul. It states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’[12].

   [12] Ibid at 3.7 – 3.16

2. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[13].

   [13] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42 – 3.46

3. In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city[14].

   [14] Ibid at 3.29 – 3.35

4. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul[15]. Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack[16].

   [15] Ibid at 3.29 – 3.35

   [16] >

   In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, have significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads[17].

   The applicant’s fears on the basis of her gender

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

5. DFAT assesses that the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of official and societal discrimination and significant restrictions on their participation in the workforce. It assesses Afghan women face a high risk of gender based violence including sexual assault and domestic violence, while those working outside the home in non-traditional areas such as policing or advocating for women’s rights also face a high risk of violence, including targeted killings. Women are reported to be particularly vulnerable to the effects of Afghanistan’s continuing armed conflict and at elevated risk of conflict-related death or injury.

   Analysis of the applicant’s claims

6. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia she will return to an ethnic Hazara neighbourhood in Kabul, where her daughter’s husband lives.

7. The DFAT report indicates that Hazaras and Shias in that city have been subjected to ongoing major attacks since mid-2016, that those attacks are religiously motivated and have recently targeted Shia majority or ethnic Hazara neighbourhoods. DFAT assesses that Shias in Afghanistan face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities, including Kabul[18]. DFAT also reports that Hazaras have distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan and are widely perceived as being supporters of the government[19]. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban, and that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack[20].

   [18] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29 – 3.35

   [19] Ibid at 3.7 – 3.16

   [20] Ibid 3.42 – 3.46

8. In view of the DFAT advice, I accept there to be a real chance the applicant will face serious harm if she returns to Kabul, now or in the reasonably foreseeable future, for the essential and significant reasons of her Shia religion and Hazara ethnicity. I further accept her risk profile is elevated because of her gender.

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

10. As to whether the applicant will receive protection from the Afghan state from the harm that she fears, DFAT indicates that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest[21]. In such circumstances I find that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect[22].

    [21] Ibid at 5.1 – 5.4

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

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

12. A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so.  What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country[23]. 

    [23] SZATV v MIAC (2007) 233 CLR 18

13. I have accepted that the applicant is identifiable as a Hazara Shia from her physical appearance, her practise of the Shia religion and her language, Hazaragi. I have accepted she has no living relatives in Afghanistan except her daughter’s husband in Kabul. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence and the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of official and societal discrimination and gender based violence, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

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

15. Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains cancelled, she will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent her from making a valid application for any visa without the Minister personally intervening.

16. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant lives with and cares for (and is cared for by) her adult son and daughter in [Suburb 1], [State 1]. Her son was granted an offshore refugee (XB 200) visa and his visa has also been cancelled in similar circumstances. Her daughter is married to an Afghan man resident in Kabul Afghanistan, whom she hopes to sponsor to Australia on a partner visa.

    EXERCISE OF DISCRETION

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

    ·Had the correct information about the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2015, I am satisfied the applicant would still have been recognised as a refugee on the basis of her profile as a widowed woman of Afghan nationality, Hazara ethnicity and Shia religion, who had resided as a refugee in Quetta, Pakistan since 2002;

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

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

    ·The applicant lives with her adult daughter and son. Her son was granted an offshore refugee (XB 200) visa in 2013 on the basis of his Hazara ethnicity and Shia religion and the cancellation of that visa is also the subject of review proceedings before this Tribunal. Her daughter’s visa has been consequentially cancelled as a result of the cancellation of the applicant’s visa, with the result that the applicant’s daughter will also be liable for detention and removal to Afghanistan if the applicant’s visa remains cancelled;

    ·Nothing in the material before me suggests the applicant or her daughter have breached any Australian laws since arriving in Australia, nor that they otherwise pose any threat or risk to the Australian community. Rather the material before me indicates they are closely connected into their local Afghan Hazara community.

    CONCLUSIONS

18. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.

20. The Tribunal has no jurisdiction with respect to the other applicant.

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)    requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

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