1801951 (Migration)

[2020] AATA 5179

1801951 (Migration) [2020] AATA 5179 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801951

MEMBER:Meena Sripathy

DATE:19 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 November 2020 at 4:11pm

ACATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass (155) (Five Year Resident Return) – incorrect information and bogus documents in previous protection visa application – earlier humanitarian visa application in another name and with another date of birth – humanitarian visa made by sister without applicant’s knowledge – facial image comparison – usage of names in Afghanistan – religious name and surname based on father’s given name – unaware of exact age, but over 18 – under-stated age as minor to avoid offshore processing – age determination process – country information – lack of documentation in rural areas – Hazara and son of religious lecturer and politician – family members’ protection visa in Australia and another country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Hernandez v Minister for Home Affairs [2020] FCA 415
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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s101 and s103 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa be cancelled.

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

4. The applicant appeared before the Tribunal on 9 November 2020 to give evidence and present arguments. The applicant made available several witnesses to give evidence in support of his application, including his sister, however the Tribunal did not find it necessary to take oral evidence from them.  

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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.

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

   Notice of intention to consider cancellation under s.107 

9. A notice of intention to consider cancellation (NOICC) was sent to the applicant on 30 October 2017.  The notice indicated that the delegate reached a state of mind that the applicant has not complied with the Act by giving incorrect information and giving bogus documents in the protection visa application Form 866 he lodged on 21 July 2012 in the name [the applicant].

10. The notice provided particulars of the following allegedly incorrect information given by the applicant in his Form Part C of the protection visa application:

    ·Q1 What is your full name – he responded “[the applicant – alternative spelling 1]”

    This was considered to be incorrect because [the applicant] applied for an Offshore Humanitarian visa on 22 August 2011 in the name of [Alias 1], which reflects the applicant’s correct full name.

    ·Q4 What other names have you been known by – he responded “[Alias 2], [the applicant]”

    This was considered to be incorrect because [the applicant] applied for an Offshore Humanitarian visa on 22 August 2011 in the name of [Alias 1] and did not disclose this name in answer to the question.

    ·Q 7 Date of Birth – he responded [Date 1].

    This was considered to be incorrect because [the applicant] applied for an Offshore Humanitarian visa on 22 August 2011 in the name of [Alias 1] providing DOB [Date 2]. This date of birth was also on the Afghani passport [Number 1] provided with that application.

    ·Q 31 Have you ever had, or used, any other passport or travel document – he responded “Afghan passport, unknown number, unknown name, smuggler provided and discarded

    This was considered to be incorrect because [the applicant] provided a valid Afghani passport [Number 1] in the name of [Alias 1] issued [in] 2007 with his previous Offshore Humanitarian visa application on 22 August 2011.

    ·Q 53 Did you have difficulties obtaining a travel document (such as a passport) in your home country – he responded “Yes, smuggler arranged”

    This was considered to be incorrect because [the applicant] applied for an Offshore Humanitarian visa application on 22 August 2011 in the name of [Alias 1] DOB [Date 2] and he provided a valid Afghani passport [Number 1] in the name of [Alias 1] issued [in] 2007 with his previous application.  This application was lodged offshore, prior to the applicant’s arrival to Australia as an IMA with claimed assistance of a people smuggler.

    ·Q65 He signed the declaration declaring that the information supplied on Part C of Form 866 is complete, correct and up to date in every detail. 

    This was considered to be incorrect because of his incorrect answers to the above questions.

11. The notice provided particulars of the following non compliance with s103 of the Act because he provided a bogus document:

    ·Taskera from Afghanistan [Number 2] in the name of [the applicant’s given name alternative spelling 2] s/o [Mr A, given name] s/o [Mr B].

    This document was considered to be a bogus document because the applicant submitted a copy of an Afghani passport [Number 1] in the name of [Alias 1] issued [in] 2007 when he applied for an Offshore Humanitarian visa on 22 August 2011 in the name of [Alias 1] DOB [Date 2].  This document was considered to be bogus as it relates to an alias utilised in a second visa application after the initial refusal of the previous application.

12. The NOICC set out the following evidence for the alleged non compliance:

    ·A facial comparison analysis conducted by the Department of various photographs submitted in association with visa applications and passport photographs for [the applicant], DOB [Date 1] and [Alias 1], DOB [Date 2] that found that they were the same person. 

    ·Departmental records indicate that [Alias 1] , DOB [Date 2] lodged an application for a Offshore Humanitarian visa on 22 August 2011, sponsored by his sister [Ms C], DOB [Date 3], an Australian citizen.  The applicant provided a valid Afghan passport [Number 1] in the name of [Alias 1] issued [in] 2007 with the application. This application was refused on 7 October 2011 on the basis of the delegate not being satisfied there were compelling reasons for giving special consideration to granting a Humanitarian visa. 

13. On 21 and 22 November 2017 the applicant provided a Statutory Declaration and a number of supporting documents and character references in response to the NOICC.  The Statutory Declaration, in summary provided the following information:

    ·His complete name is [the applicant with middle name] son of [Mr A, given name] which can sometimes be rendered as [the applicant with middle name and Mr A’s given name].

    ·He was a refugee Iran where he was known by the religious name under which his father registered him at school, [Alias 1].  [Alias 1 given name] is a religious name and his friends called him by that name in Iran where his father was a mullah.  He was enrolled at school in that name to protect him as he had no legal status there and religion is very important.

    ·He, like his father before him, was born in [Location], Afghanistan so the name [the applicant’s surname] comes from the place he was born.

    ·His father is a well known person in Afghanistan as a mullah, teacher and politician and had been targeted by the Taliban and other extremist groups.  He travelled frequently between Afghanistan and Iran because he was teaching at the University in Iran where he was known as Haji [Alias 1 surname]. Thus in Iran he was known as the son of [Alias 1 surname] – hence his name [Alias 1].

    ·They moved to Iran for safety when he was around [Age 1] or [Age 2] years old (1995-1997) and remained there as refugees.

    ·He is not certain of his date of birth as this is not traditionally important and there were no birth records or certificates. He estimated the dates of birth of all of his family members.

    ·The taskera he provided to the Department in detention was not genuinely obtained because he was not in Afghanistan as required by law when issued.

    ·He arrived in Australia by boat [in] May 2012 when he was [Age 3] or [Age 4] years of age.  He was extremely scared and unwell upon arrival. He refers to an explanatory account of his time in [Country 1] which he gave to the Department.  He explains how and why his UNHCR card had the name [Alias 2]. 

    ·When he arrived in Australia he was aware from the smugglers and general gossip of Australian government policy to send boat arrivals for processing to Nauru or Manus Island but no unaccompanied minors under 18 year olds would be transferred offshore. He was told that as he looked young he should say he is under 18 for this reason.

    ·He told the interviewing officers he did not know his age but thought he was 17.5 years old. He was sent for an age determination process and they determined he was 16 years and therefore he was not transferred offshore.

    ·He never wanted to lie about his identity so fundamentally the basic details of his story are correct. His father is highly regarded in Afghanistan where he was a member of the Loya Jirga in [Year] as the representative from [City 1]. He did live in Iran where he studied until he was deported from there back to Afghanistan where he was immediately in trouble so he was forced to flee for my life and ended up in Australia.

    ·His sister [Ms C] lives in Melbourne as an Australian citizen where she is known by their father’s name of [Mr A, given name]. 

    ·He has 2 older brothers, three sisters ([Ms C], [Ms D] and [Ms E])  and an adopted brother ([Mr F])

    ·His sister [Ms C] lodged the application for an Offshore Humanitarian visa for him in 2011 because he had been deported from Iran to Afghanistan and she did not know what had happened to him. She used the name he had been known by in Iran. The passport used in that application was issued to him by the Afghanistan Embassy in Iran for the purpose of his university admission in Iran.

    ·His father was always legal in Iran because he lectured at the University. He never registered the family separately because they were there as his family and they were never asked about their status.

    ·His father was employed at the university as Haji [Alias 1 surname] and used [Alias 1 surname] as his family name, and this is why he was enrolled at school as [Alias 1].

    ·He did very well at school and was offered a place in University in Iran, which is when he applied for the Afghan passport to be able to get a renewable visa to stay in Iran.

    ·In 2011 has deported from Zabul in southern Iran to Afghanistan where he was badly treated and traumatised and this led him to flee the country to via [Country 2], [Country 3], [Country 4], [Country 5] and [Country 1] until he arrived in Australia.

    ·The claims he made in his protection visa about his refugee status are consistent and basically correct.

    ·He admits that he provided a taskera to the Department knowing it was not a true document because his age was incorrect.

    ·Since he has been in Australia he has applied himself to being a useful and productive member of society, he has made many friends and is proud of his achievements here.

    ·He refers to the references he has submitted which encapsulate who he is as a person. He has neer committed any crime since coming to Australia.  He recognises the folly and seriousness of providing incorrect and bogus documents to the Department.

    ·He regrets that he lied ot the Department officers on arrival and later, particularly when he was recently interviewed and acknowledges it was the wrong thing.

14. The following supporting documents and references were provided:

    ·Copy of letter “Explanation How I received a UNHCR Card in [Country 1] and why my name was incompletely/incorrectly recorded”

    ·Copy of a transcript from Sharif University of Technology in the name of [Alias 1] - showing results from 3 semesters between 2007-2009

    ·Copy of “Statement of [Ms G] dated 22 February 2013 describing her efforts to return to Afghanistan to get documents to live in Iran legally and her experiences in Afghanistan. Documents supporting events described in this statement are attached, including Report of an attack from Ministry of Labour, Social Affairs, Martyrs and People with Disability, Islamic Republic of Afghanistan, medical report relating to [Ms G]; copy of passport page of [Ms G] showing Iran visa; death certificate for [Mr B]

    ·Translations of identity cards for [Mr F], [Ms D], [Ms E]

    ·Copy of a memorial medal for Haji [Mr A, given name] dated 19/6/2002

    ·Translation of a documents relating to  Haj [Mr A, given name, surname] ‘s political activities including document stating he was elected as a member of [Assembly]  dated [date]/3/2002, card naming him as candidate for Afghanistan Elections 2005 , Voter identification card 2003-20004, 2005, photo of haji [Mr A, surname]’s speech at 2002 Loya Jirja and other photos

    ·Newspaper article [Newspaper], [January] ,2015, referring to the applicant

    ·13 references attesting to the applicant’s character, achievements and progress in Australia, including from [Mr and Ms H] who were his custodians from 2013-2015, [Ms I] of [Organisation 1], [Ms J],  [Mr K], Head of Campus, [University], [Ms L], [City 2] Senior Secondary College, [Cr M], Mayor City of [City 2]

15. On 24 January 2018, the delegate of the Minister made a decision to cancel the visa, having considered the applicant’s response to the NOICC and the matters relevant to exercising the discretion whether or not to cancel the visa.   The delegate was of the view that the applicant’s true identity is [Alias 1], DOB [Date 2] and that the applicant applied for the Protection visa which was granted on 10 October 2012 under an alias and submitted a bogus document to facilitate the grant of the Protection visa, and decided, having considered the circumstances prescribed in r.2.41,  and other additional relevant factors, to cancel the visa.

16. On 25 January 2018 the applicant lodged an application for review of the cancellation decision to the Administrative Appeals Tribunal.

    Evidence before the Tribunal

17. On 22 April 2019 the applicant provided to the Tribunal a copy of a new Afghan passport issued in Canberra to the applicant [in] 2019 and valid to [2024], indicating his name as [the applicant] and date of birth [Date 1].

18. On 15 June 2020, upon the matter being constituted to the present Tribunal, a letter was sent to the applicant advising him that his review was under consideration and inviting further submissions.

19. On 30 June 2020 the Tribunal received the following documents:

    ·Statement from the applicant providing an update on his community activities since the visa cancellation. The applicant lists various events and activities he has been involved in, including fundraising efforts in aid of the 2019 bushfire disaster in Victoria and assisting to deliver health messages to his local community in the context of the current Covid 19 crisis, among other activities.  The applicant also provided information that his immediate family (including father, mother, and three siblings moved to [Country 6] in March 2020, having been accepted as refugees and another brother will also be moving there following the lifting of Covid 19 restrictions.  He refers to the continuing dire security situation in Afghanistan and Iran facing Hazaras and other minorities and ongoing threats from groups such as Taliban and ISIS.

    ·Letter from Head of Campus, [University] dated 21 November 2017 confirming the applicant’s enrolment in [the] program.  

    ·Newspaper article, [Title] dated [January] 2020

    ·Thank you letter from [a] MP to applicant as representative of [Organisation 1] dated 21 January 2020, reference to her mention of him in Parliament and in a [social media] post

    ·[Newspaper article], [May] 2020

    ·CGVSRA, COI Focus, Afghanistan Security Situation in Kabul City, 8 April 2020 (Update)

20. On 29 July 2020, in response to a request for further information and submissions by the Tribunal, the applicant’s representative provided the following information:

    ·Regarding Iran – the applicant advises he is not a citizen of Iran and has no right to enter and remain there. He previously lived in Iran as a refugee but cannot re-enter without a visa.  The situation for Afghans in Iran at present is particularly dangerous and there are a large number of media articles reporting ill treatment of Afghans attempting to enter, leave or live in Iran. One such article is attached (Ezzatullah Mehrdad, Afghan migrants continue to die in the hands of Iranian authorities, 12 June 2020, Global Voices, )

    ·Evidence is provided of the grant of permanent residence to the applicant’s parents in [Country 6] including copies of email correspondence between [Country 6] authorities and the applicant’s father regarding issue of his visas; e-Medical documents for applicant’s mother and father referencing their ‘refugee -overseas’ case; correspondence from [Government department, Country 6] advising applicant’s family of access to pre-arrival services; copy of applicant’s mother’s [Country 6] visa issued 22 January 2020 and correspondence of [Official document]; email correspondence between [Government department, Country 6 agency in Country 7] and applicant’s father inviting him to an interview  concerning his application for permanent residence on 4 July 2018.

    ·Thank you letter to applicant from [a Charity] for donation organised by him on behalf of Afghan community to their Bushfire Appeal 2020.

21. On 2 November 2020 the representative wrote to the Tribunal to confirm that the applicant seeks to rely on evidence and material previously provided to the Department in response to the NOICC and to the Tribunal upon request. He also advises that he has been diagnosed for some time with mental health conditions and provides documentation dated 2017-2018  in support of this. He also refers to the Tribunal to a decision in Hernandez v Minister for Home Affairs [2020] FCA 415 . Copy of medical documents and a [University] Learning Access Plan for November 2019-Feb 2021 referring to applicant’s disability for which he seeks adjustments in context of his study.

1. On 9 November 2020 the applicant provided the Tribunal further country information recently issued relating to the danger facing Hazaras in Afghanistan, including an opinion from Professor William Maley released on 8 November 2020, and a copy of a new Taskera of the applicant with authentication and translation.  

2. At the hearing the applicant provided evidence about his current circumstances, family composition in Australia and elsewhere, background of his migration history and the circumstances that gave rise to the non compliance.  He answered the Tribunal’s questions on matters arising from the material. Details of relevant evidence he gave is included in the discussion below.

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

3. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101 and s103 of the Act as set out above.

4. In his response to the NOICC provided to the Department on 21 November 2017 the applicant provided a Statutory Declaration in which he declared his name as [the applicant] and that he was known by and used the name [Alias 1] in Iran. He explained that he does not know exactly when he was born because traditionally dates of birth are not important and people do not have birth records, but estimated he was born around [Year *]-[Year *] and was [Age 3] to [Age 4] years old upon arrival to Australia.  He explained the circumstances of his arrival in Australia and why he misrepresented his age downwards to immigration officials at that time. He explained the circumstances of the offshore humanitarian application made on his behalf by his sister, and the Afghan passport in his name of [Alias 1] that she lodged with this application. He acknowledged that the Taskera he lodged with the Department did not correctly reflect his age and may not be a true document.

5. At the hearing the Tribunal discussed the allegations of non compliance made in the NOICC  with him. He acknowledged that he had not provided correct information by not mentioning the name [Alias 1] as one he was also known by and confirmed that the date of birth he provided was not correct.  However he maintained that his correct name is [the applicant] as stated in his application, contrary to the delegate’s view that his correct name is [Alias 1].  He pointed out that he never intended to deceive the Department about his name, and in fact made references to both the names [Alias 1 given name] and [Alias 1 surname] in the application.  Specifically, he said he gave the name [Alias 2] as used by the UNHCR and told the Department his father was known as Haji [Mr A, given name, surname] when he ran for office in Afghanistan. The Tribunal observes that his evidence on this is consistent with documents on the Department file.[1]

6. Regarding his date of birth, he agreed that although he does not know his exact date of birth, he was aware the date of birth attributed to him following the age determination assessment was incorrect, given that he had completed secondary school and several years of tertiary education in Iran prior to coming to Australia.  He conceded that he knew he was over the age of 18 years when he arrived in Australia. 

7. On the issue of the Afghan passport submitted with the offshore humanitarian application lodged by his sister in 2011, the applicant told the Tribunal he was unaware of this application until informed by the Department at the identity interview.  His sister made the application on his behalf and he had no knowledge of it.  He had already by this time begun his journey from Afghanistan to Australia. The passport she submitted was obtained for him in Iran to enable him to enrol in university in Iran, and for this reason it was obtained in the religious name he used in Iran for his education. The Tribunal notes that this evidence is consistent with the documents relating to this application provided to the Tribunal by the Department which show neither the Form 842 Application for an Offshore Humanitarian visa nor the accompanying typed statement was signed by the applicant. The associated Form 681 Refugee and special humanitarian proposal was signed by the applicant’s sister, [Ms C], and lodged on 22 August 2011 in Victoria.[2]

8. Regarding the issue of the taskera he submitted to the Department, the applicant explained that he did not have an Afghan passport or birth certificate as he was born in a rural area.  He asked his father to obtain a taskera for him, and was aware that his father was unable to travel to Afghanistan to obtain it, but he got one and sent it to him and this is the document that he provided to the Department.  The applicant said he has since learned that this may not be genuine because at that time, it was a requirement to apply for a taskera in person and neither he nor his father were able to do that.  To that extent he is prepared to accept that taskera document may be non genuine.  The applicant said, since then he applied to the Afghan Embassy for a new taskera in 2017.  To obtain this he was asked to provide his father’s taskera, identification documents issued to him in Australia and the identity document of a person in Afghanistan to represent him.  He did all of that and was issued with a new taskera, which he has provided to the Tribunal.  This taskera is a genuine one and it is in the name of [the applicant], naming his father and grand father.  He used this document to then apply for an Afghan passport which he has also provided to the Tribunal. This document also states his name as [the applicant].

9. The applicant told the Tribunal that while he acknowledges that he gave incorrect information in his application to the extent that he failed to mention that he has also been known by the name [Alias 1] , and that his date of birth was incorrect, he maintained that he did not intend to deceive or mislead the Department as to his identity.  He acknowledges that he did not apply for the taskera in person and, to the extent that the independent information about the requirements of obtaining a taskera at that time suggests this was not a genuine document, he concedes that point. 

10. The Tribunal has considered the non compliance described in the notice, the applicant’s response in writing and orally in his evidence to the Tribunal.  On the basis of this evidence, it finds that the applicant provided incorrect information in his protection visa applicant as to the names he has been known by, his date of birth and whether he has used any other passport or travel document.  It finds that his failure to provide the name [Alias 1] was incorrect because it was a name he was known by in Iran.  The Tribunal finds the  declaration of his birth date as [Date 1] was incorrect on the basis of his own concession of that fact, and the evidence of his past life experiences and level of education attained prior to his departure from Iran.  His response to the question about the use of any other passport was incorrect because he conceded that he had been issued an Afghan passport in the name [Alias 1] in Iran for the purposes of his study and failed to mention this.

11. On the issue of the taskera from Afghanistan [Number 2] provided to the Department, the applicant has conceded that neither he nor his father obtained this document in person in Afghanistan and on this basis he cannot be certain of how it was issued. However, he submits that he has recently applied for and been issued a taskera by the Afghan Embassy and this document is genuine and contains the same information as to his name, father’s name and grandfather’s name and place of birth. Having considered the definition of bogus document in s. 5 of the Act,[3] and the consistent identification information contained in the earlier taskera, the Tribunal considers it has insufficient basis to reasonably suspect the document was not issued in respect of the applicant, or that it is counterfeit or was altered by a person without authority or that it was obtained because of a false or misleading statement.

12. Therefore, on the basis the applicant’s concessions and the above findings, the Tribunal concludes there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. However, as indicated above, it is not satisfied there was non compliance with s103 in respect of the provision of the Taskera.

    Should the visa be cancelled?

13. As the Tribunal has decided that there was non-compliance with s101 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).

14. 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).

15. The Tribunal below discusses the prescribed circumstances set out in r.2.41 of the Regulations, taking into consideration the submissions and evidence put forward on behalf of the applicant.

    ·     the correct information

16. The Tribunal has found, above, that the applicant is also known by the name [Alias 1] and that [Date 1] is not his correct date of birth. The Tribunal accepts that he does not have any record of his actual date of birth, but it is clear from the evidence of his life experiences and level of education attained prior to coming to Australia that he was over the age of 18 years when he arrived. The Tribunal also found, above, that he was issued an Afghan passport in the name of [Alias 1] in 2007.

    ·     the content of the genuine document (if any)

17. The Tribunal concluded above that there is insufficient basis to reasonably suspect the taskera document was not issued in respect of the applicant, or that it is counterfeit or was altered by a person without authority or that it was obtained because of a false or misleading statement, and on that basis it cannot be characterised as a bogus document. 

18. He has, before the Tribunal, submitted a new taskera issued by the Afghan Embassy in Australia which the Tribunal is prepared to accept as genuine. It notes that this document contains the same information as to his name, father’s name and grandfather’s name and place of birth as the previously submitted one.

    ·     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

19. The applicant’s protection claims were assessed onshore on the basis that he was a minor.  He was referred for an age determination assessment because he originally put forward that he was 17.5 years old.  As a result of that age determination assessment he was assessed as being 16 years old and given the date of birth of [Date 1].  As a result of being determined by the Department’s own process as a minor, his claims for protection were assessed onshore. 

20. The decision record relating to his protection visa application indicates that his claims were assessed on the basis of risk of harm to him as a member of the particular social group of unaccompanied Hazara male minors from Afghanistan and found that his circumstances as a minor made it unreasonable for him to relocate.  On this basis the Tribunal is satisfied the findings of the delegate on whether there was a well founded fear of persecution relied on the incorrect information of his age being under 18 years.  

21. The Tribunal has considered the applicant’s argument that, even if the correct information about his age and names he was known by, was provided, he would have been found to be a refugee on the basis of his claims as to his ethnicity and religion, and as his father’s son.  However, given the policy at that time meant that only unaccompanied minors were invited to lodge claims for protection and be assessed onshore, it is not likely that he would have obtained a favourable decision but for the incorrect information as to his age.

22. This factor weighs in favour of cancelling the visa.

    ·     the circumstances in which the non-compliance occurred

23. The Tribunal has considered the applicant’s explanation for the circumstances in which he came to tell the interviewing officers that he was under 18 years old.  It notes his claims that he had been seriously ill and afraid upon arrival in Australia, and there were rumours and gossip going around about the plan to send all boat arrivals for processing offshore at Manus Island and Nauru and it was suggested to him to claim to be under 18 years because he looked young.  The Tribunal also notes that the Department did not accept the applicant’s assertion as to his age at face value and conducted its own age determination assessment, and it was on the basis of this assessment of his age, even younger than he had claimed, that his application was assessed in Australia. 

24. It was, however, the applicant’s provision of incorrect information in the first instance that triggered the Age Determination Assessment. The Tribunal considers it relevant to take into consideration the circumstances of vulnerability, confusion and fear that the applicant would have been in at the time of arrival following a boat journey to Australia. 

25. It accepts that the significant change of policy by the Australian Government at that time to process boat arrivals at offshore centres would have triggered panic and misinformation amongst arrivals and smugglers and that the applicant’s account of his circumstances at that time is plausible and credible.

26. Taking all of this into account and considering this factor now with hindsight and the ongoing situation for many asylum seekers processed offshore, the Tribunal is prepared to give the applicant’s explanation of the circumstances of the non compliance some weight against cancellation of the visa. 

    ·     the present circumstances of the visa holder

27. The applicant is presently living and studying in [City 2], Victoria where he has lived for the past number of years. He is well integrated and highly regarded in the community.  He states that since his arrival, he has applied himself to being a useful and productive member of society.  In support of his claims he has submitted numerous supporting letters from a range of individuals and organisations.  This evidence, news clippings and support letters and commendations about his activities indicate that he has undertaken various voluntary, community work and fundraising activities with, and on behalf of, his local community and the Tribunal accepts that he is clearly an active and engaged member of the community and continues to be involved in activities.

28. The Tribunal notes the applicant achieved an impressively high ATAR score following the completion of the VCE and is currently undertaking a Bachelor of [Subject 1] in [Specialisation]/Master of [Specialisation] at [University] that he commenced in March 2015.   At the hearing it put to him that the underestimation of his true age, and previously attained level of academic achievement, could suggest he was at an unfair advantage in the Australian education system upon arrival which could undermine this achievement.  In response he explained that even as a student in Iran he faced many difficulties as an Afghan refugee, including discrimination and harassment for his political views. In Australia he spoke little English when he arrived and struggled living in a rural area and with no family support.  He suffered mental health issues but tried to do his best.  He does not think in those circumstances that he had any unfair advantage in terms of his education achievement. He added that he also acknowledges that he received a lot of support and is very appreciative for all the support he has been given by many people here. 

29. The Tribunal accepts that the applicant is presently studying for a Bachelor of [Subject] and is well integrated and has made valuable contributions to his local community in [City 2]. It gives this factor significant weight against cancellation of the visa.

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

30. In 2013 the applicant lodged a Humanitarian application in support of a visa for his mother and younger siblings, and in doing so perpetuated the incorrect information about his age and family composition previously put forward.  He did not come forward of his own accord to correct the information, and only conceded the non compliance in the course of this cancellation process. 

31. The Tribunal gives this factor some weight in favour of cancellation of the visa.

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

32. There are no other instances of non compliance by the visa holder known to the Tribunal.

33. The Tribunal gives this some weight against cancellation of the visa.

    ·     the time that has elapsed since the non-compliance

34. The applicant was granted a Protection visa in October 2012 and has been living here and is well integrated in the community for over 8 years.  The Tribunal gives this factor significant weight against cancelling the visa.

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

35. There is no evidence the applicant has breached the law since the non compliance.  This is a factor that weighs against cancellation of the visa

    ·     any contribution made by the holder to the community.

36. As referred to above, the Tribunal accepts the applicant is well integrated into the local community and has been an active volunteer and participant and young leader in his community, as evidenced by the numerous support letters and news clippings provided.  He has clearly made a strong favourable impression on a range of people in his community, who attest to his achievements and contributions. 

37. The Tribunal gives this factor significant weight against cancellation of the visa.

    ·Other relevant considerations

38. 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 Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations, hardship to the visa holder and any other relevant matters.

39. The applicant has submitted that in March 2020 most of his remaining close family members, being his parents and three of his siblings, were granted refugee status in [Country 6] and have moved to [City 3].  He provided evidence of this. The only family member he now has in Afghanistan is [Mr F], his adopted brother.  His other brother is in Iran.  The applicant has no right to enter or reside in Iran. 

40. He submits that if the visa is cancelled, he will face a real risk of persecution in Afghanistan on the basis of his religion and ethnicity and also his association as the son of his father, who was a prominent Hazara politician who was himself at risk of harm and fled the country first in Iran and now to [Country 6].  The Tribunal notes the claims made by the applicant regarding that his father was a prominent mullah and politician and the evidence provided in support of these claims.  Evidence of his father’s Candidate for Lower [House] -  card provided to the Tribunal, and other evidence of his father’s claimed political activities were previously provided to the Department.[4]

41. In addition to the country information submitted by the applicant to support that he is at risk of harm if returned, the Tribunal has considered other sources of country information regarding the security situation in Afghanistan generally and specifically, the risk of harm to Shia Hazaras. The Tribunal’s research confirms that the conflict in Afghanistan remains one of the deadliest in the world for civilians. The United Nations Assistance Mission in Afghanistan (UNAMA) documented, in the first quarter of 2020 documented alone, 1,293 civilian casualties (533 killed and 760 injured) caused by all types of violence.[5] Afghanistan is also facing major food insecurity, a major health crisis and crippled economy.[6] 

1. Kabul remains a violent city, with attacks by anti government elements ongoing in 2020 and crime is also rising in the city, creating further insecurity for civilians. Reports indicate Shia Hazaras are targeted in Kabul by anti government elements. The most notable attacks in 2020 include on 6 March in Kabul, an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed. The same ceremony was also attacked in 2019; ISK claimed responsibility for the attacks in both 2019 and 2020.  In an attack on 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shia neighbourhood and home to a large Hazara population. 24 people were killed, including two newborn babies.  While no group claimed responsibility, the attack has been attributed to ISK.[7]

2. Sources also indicate that returnees from the west have been targeted by anti government elements in major cities. Instances of targeting of returnees have occurred due to associations with ‘Western’ elements or influence, including due to having travelled in or lived in Europe, holding Western identity documents, or adopting ideas that are seen to be ‘un-Afghan’, ‘Western’ or ‘European’ following time spent outside Afghanistan; the scale and prevalence of such targeting is difficult to quantify.[8]

3. The Tribunal considers the above country information strongly supports the conclusion that the applicant, as a Shia Hazara, returnee from the west, with little family support or network,  would be at risk of serious harm if returned to Afghanistan, and therefore cancellation may put Australia in breach if its non refoulement obligations.  It also supports a conclusion that the applicant would suffer significant hardship if returned to Afghanistan, where he has no family support or network and in the face of such dire security conditions.

4. The Tribunal has also taken into consideration the consequence, if the visa is cancelled, of the applicant being subject to mandatory and possibly indefinite detention, because he was a boat arrival who would be barred from making a valid application under s46(1).

5. In conclusion, the Tribunal has carefully considered and weighed all of the above factors and evidence.  In doing so, it concludes the factors against cancelling clearly outweigh those in favor of cancelling and the Tribunal therefore concludes the visa should not be cancelled.

6. In its assessment the Tribunal acknowledges that the applicant gave incorrect information about his true age which was relied on in the decision made by the delegate to  grant him a protection visa and this factor weighs strongly in favour of cancellation in this case, as does his subsequent proposal (in which he again provided the incorrect information) of his mother and siblings’ humanitarian application for family reunion (even though those visas were not eventually granted).  However against these factors, the Tribunal has considered, and given weight to the applicant’s explanation of the circumstances of the non compliance, and his present circumstances including the significant academic achievement and community integration and contributions he has made since the grant of his visa.  Apart from the noncompliance the subject of this cancellation process, there is no other evidence of non compliance or breaches of the law by the applicant.  Finally the Tribunal takes into consideration the circumstances of ongoing volatility and insecurity in the applicant’s country of nationality that he would in the reasonably foreseeable future, as a member of a persecuted minority.  

7. For all the above reasons, 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

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

   Meena Sripathy
   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.

   103Bogus documents not to be given etc.

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

   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.

   
   

[1] [File number deleted] folios 6, 1-5.

[2] [File number deleted]

(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.

[4] [File number deleted] folios 95-104

[5] Afghanistan Protection of civilians in armed conflict first quarter report - 1 JANUARY - 31 MARCH 2020', United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020, p. 1, 20200507100951  

[6] 'The situation in Afghanistan and its implications for international peace and security June 2020', United Nations Secretary-General, 17 June 2020, p. 12, 20200622101216, Coronavirus overwhelms Afghanistan’s war-ravaged hospitals', Secunder Kermani, BBC News, 30 June 2020, 20200630142051;     

[7] Eg. Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020, 20200624105105; Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul', The Defense Post, 06 March 2020, 20200316093404 ; Babies among 24 killed as gunmen attack maternity ward in Kabul', Aljazeera, 13 May 2020, 20200624104037    

[8] 'Afghanistan: Individuals targeted under societal and legal norms', European Asylum Support Office, 12 December 2017, p. 94, CISEDB50AD7870  

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