1810640 (Migration)

[2019] AATA 6716

1810640 (Migration) [2019] AATA 6716 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810640

MEMBER:Alison Murphy

DATE:18 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2019 at 12:55pm

CATCHWORDS
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant provided incorrect answers about protection claims – Hazara ethnicity – Shia religion – well-founded fear of persecution – applicant admitted to the non-compliance – decision to grant the visa was not based in any part on the incorrect information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 101, 107, 107A, 109, 119, 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
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27
SZATV v MIAC (2007) 233 CLR 18
Zhao v Minister for Multicultural Affairs [2000] FCA 1235

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 applicant is a [age] year-old male, a national of Afghanistan formerly resident in Pakistan. He arrived in Australia [in] May 2010 by boat and was subsequently granted a Subclass 866 (Protection) visa.  On 18 February 2016 he was granted a Subclass 155 (Five Year Resident Return) visa.

3. On 11 April 2018 the delegate cancelled the visa on the basis that the applicant breached s.101 of the Act by providing incorrect answers about his protection claims in his visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 15 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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.

   LEGISLATIVE FRAMEWORK

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. Section 107A makes clear that possible non-compliances in connection with a previous visa may be grounds for cancellation of a current visa. Extracts of the Act relevant to this case are attached to this decision.

   Is the s.107 notice valid?

9. In considering whether the s.107 notice in this case is sufficiently particularised, I have had regard to the comments of the Full Federal Court in the case of Zhao v Minister for Immigration and Multicultural Affairs:[1] 

   Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as maybe open.[2]  

   [1] [2000] FCA 1235.

   [2] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 at [25]‑[26].

10. Although that case dealt with s.119 of the Act rather than s.107 of the Act, the Full Federal Court has since indicated that the statements in the Zhao case ‘are of assistance in terms of the proper interpretation and application of s 107’.[3]  

    [3] Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [57].

11. Further, the Federal Magistrates Court in SZEEM v Minister for Immigration stated:

    the requirement of ‘particulars’ must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.[4]

    [4] SZEEM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 27 at [38].

12. The s.107 notice is dated 19 September 2017 and was given to the applicant by registered post. It advises the applicant that his visa may be cancelled under s.109 of the Act because it was considered that he had failed to comply with s.101(b) by providing incorrect answers in his protection visa application.

13. The s.107 notice sets out in some detail the claims made by the applicant in his protection visa application about his original protection claims, as well as particulars of the basis which cause the Department to consider that those claims were not correct. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

14. In the present matter, I am 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?

15. 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.

16. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).

17. The s.107 notice records that in his protection visa application, the applicant answered questions by referring to an attached written statement setting out (in summary):

    ·He left Afghanistan when he was [age] because his father believed his family was in danger from the Taliban because they were Hazara Shias;

    ·He and his family moved to Pakistan, where they lived with a family friend called [Mr A] before moving into their own accommodation;

    ·In 2002 his father and [Mr A] returned to Afghanistan to sell their land. Neither of them returned to Pakistan and they are believed to have been killed by the Taliban;

    ·The situation in Pakistan has deteriorated and in March 2004, a suicide bomber jumped into a crowd near the applicant and killed 48 people. The applicant was taken to a medical centre for treatment and half an hour later walked [home];

    ·He believed he was residing illegally in Pakistan because there were always problems with the police, who would make their life miserable by attacking them and making them pay;

    ·He fears for his life in Quetta, Pakistan because the Taliban are there;

    ·He witnessed a fellow Hazara being gunned down with a machine gun and believes the shooters were Taliban;

    ·Following this the Hazaras and Pashtuns began to fight;

    ·Following the applicant’s arrival in Australia, the applicant’s close friend [Mr B] was killed in a bomb blast in Pakistan at the same spot as the previous bomb blast in 2004.

18. The s.107 notice records that on the basis of the applicant’s claims, he was granted a protection visa, after which he travelled to Pakistan between [January] 2013 and [April] 2013. After being granted the resident return visa on 18 February 2016, the applicant departed Australia [in] February 2016 and returned [in] May 2016.

19. The s.107 notice sets out that on 3 September 2014, the applicant’s wife [lodged] an offshore application for a Subclass 309 (partner) visa based on her marriage to the applicant. In support of the application, the applicant submitted phone records containing two Pakistani phone numbers. A departmental officer rang both numbers on 4 November 2014 and spoke to the applicant’s wife [and] a person who identified himself as the applicant’s father, [Mr C].

20. The s.107 notice sets out that [Mr C] stated that he left Afghanistan with his family because they did not have food to eat, that while many people in Afghanistan were beaten up his family were never touched, that he had no property in Afghanistan and had never returned there, that [Mr A] was his brother-in-law who currently resides in Quetta and that he did not know any of the applicant’s friends in Pakistan, including [Mr B].

21. The s.107 notice sets out that given the information provided by the Department’s overseas post, and given that the applicant had returned to Pakistan twice, for three months on each occasion, it was considered the applicant had provided incorrect information in his protection visa application. The incorrect information was stated to be:

    ·     The applicant’s claim that he feared harm from the Taliban in Afghanistan who may harm or mistreat him because he is a Hazara and a Shia, when in fact his family left Afghanistan because of hunger;

    ·     The applicant’s claim that his father returned to Afghanistan with [Mr A] to sell their land and are presumed to have been killed in that country, when in fact his father and [Mr A] never returned to Afghanistan and remain living in Quetta;

    ·     The applicant’s claims in relation to Pakistan including that:

    o   the situation in Pakistan had deteriorated with a suicide bomber killing 48 Hazaras in 2004;

    o   his friend [Mr B] was killed by a suicide bomber in 2010;

    o   the Pakistani authorities would persecute him and not protect him because his family were residing illegally in Pakistan;

22. The s.107 notice sets out that these claims were considered to be incorrect because the applicant’s father did not mention any discrimination or persecution from the Pakistani authorities when telephoned and stated he was unaware of the incidents in Pakistan described by the applicant and that he didn’t know the applicant’s friend [Mr B]. The notice stated his is father provided information that he owned a [business] in Quetta, which indicated he had sufficient residency rights to operate a business. The applicant’s claim to hold an adverse profile in Pakistan was also considered to be incorrect because he returned to Pakistan on two occasions without apparent harm.

    Did the applicant provide incorrect information about his fear of harm from the Taliban in Afghanistan because his family were Hazara Shias?

23. According to the s.107 notice, the applicant gave incorrect information at Question 41 of his protection visa application when he claimed to fear returning to Afghanistan and Pakistan due to the Taliban. The s.107 notice states that this is considered to be incorrect, because the Department has information that his family left Afghanistan because they did not have enough food to eat.

24. The interview notes relating to the applicant’s father record that he stated he left Afghanistan with his family because they did not have enough food to eat and that while many people were beaten up by the Taliban, they never touched him.

25. The applicant’s family left Afghanistan in 1994, when the applicant was approximately [age]. The applicant made his claims for protection in a written statement dated 13 November 2010. In the intervening years, the Taliban rose to power and in 1996 it took over most of Afghanistan including Kabul, resulting in a period of repression and conflict for Hazara Shias. Following Al-Quaeda’s 2001 attacks on targets in the United States, international forces launched a military operation which removed the Taliban from power. Even after the Taliban lost power, they continued to wage a guerrilla campaign against the international and Afghan security forces[5].

    [5] DFAT Thematic Report: Hazaras in Afghanistan and Pakistan 26 March 2014 at 2.15 – 2.18.

26. DFAT reports the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. DFAT assesses that while Afghans of all ethnicities feel uncertain about Afghanistan’s future, the Hazaras’ previous experience of life under the Taliban have caused many to feel particular concern about the long-term prospects for their community and is an important factor contributing to the decision of many Hazaras to leave Afghanistan[6].

    [6] DFAT Country Information Report: Afghanistan 27 June 2019 at 3.9.

27. In these circumstances, I accept the applicant had a genuine fear of the Taliban in Afghanistan at the time he lodged his protection visa application in 2010. This is not negated by the fact the applicant’s family left Afghanistan in 1994 before the Taliban came to power and his father cited hunger as the family’s reason for leaving Afghanistan at that time. It follows that I do not consider the applicant gave incorrect information when he stated he feared harm from the Taliban for reasons of his Hazara ethnicity and Shia religion in his protection visa application.

    Did the applicant provide incorrect information about his father’s return to Afghanistan and presumed death at the hands of the Taliban?

28. In his protection visa application, the applicant claimed that in 2002 his father went back to Afghanistan with a friend to sell his land and they had not been seen again. He claimed that his family believed his father was killed by the Taliban.

29. The s.107 notice sets out that on 4 November 2014, a departmental officer spoke with the applicant’s father by phone who told him that he had been living in Pakistan for 25 years and that he had never returned to Afghanistan. In his response to the s.107 notice, the applicant conceded his father did not return to Afghanistan and was not missing and he had fabricated that part of his claims. At the Tribunal hearing the applicant confirmed that he had been untruthful about this aspect of his claims on the advice of the people smuggler.

30. It is clear that the applicant gave incorrect information about his father’s return to Afghanistan and his presumed death at the hands of the Taliban in that country. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice as to his father’s return to Afghanistan and his presumed death at the hands of the Taliban in that country.

    Did the applicant provide incorrect information about his experiences in Pakistan?

31. The s.107 notice sets out that the applicant’s claims against Pakistan were considered to be incorrect because the applicant’s father did not mention any discrimination or persecution from the Pakistani authorities and stated he didn’t know the applicant’s friend [Mr B] and was unaware of the incident in which he had been killed. The s.107 notice sets out that his father stated that he owned a [business] in Quetta which indicated he had sufficient residency rights to operate a business.

32. The interview notes contained on the departmental file relating to the applicant’s father record that he does not know any of the applicant’s friends in Pakistan and does not know anyone by the name of [Mr B]. The notes do not suggest that the applicant’s father was asked any other questions about the applicant’s claims relating to Pakistan. At hearing the applicant told me that [Mr B] was a friend who lived in the next street and they played soccer together. He stated [Mr B] was killed in a bomb blast in September 2010 after the applicant arrived in Australia and his photo was published on [social media] together with photos of all the other people who died.

33. Independent country information confirms that the Taliban conducted attacks on Hazara Shias in Quetta during the period described by the applicant in his protection claims. Consistently with the applicant’s statement, reports indicate that an Ashura parade was attacked in Quetta in March 2004, leaving 42 people dead, mostly Hazaras[7]. In September 2010, a suicide bombing at a Shia rally in Quetta killed around 50 people, with the Taliban claiming responsibility for the attack[8].

    [7] Dawn Timeline: Hazara Killings in Balochistan 11 January 2013 at Department of Foreign Affairs and Trade, 30 July 2010, Conditions for Asylum Caseloads: Hazaras in Quetta.

34. DFAT reported in July 2010 that the security situation in Baluchistan and Quetta was ‘generally poor’, noting that the Hazara community was specifically affected by sectarian killings of Shia by armed Sunni groups as well as targeted killings of minorities and ‘outsiders’ by ethnic Baluchi elements. It noted Hazaras were also affected by kidnappings for ransom, which had become a lucrative way for armed militant groups in Baluchistan to raise money.

35. I do not consider that the fact the applicant’s father did not recognise the name of the applicant’s friend some years after the incident in question indicates that the information provided by the applicant in his protection claims was incorrect. Nor do I consider the fact the applicant’s father operates a [business] in Quetta indicates the family are Pakistani citizens or that they did not suffer discrimination in Pakistan. Country information indicates that the informal economy in Pakistan is prevalent, generating almost 37% of GDP in 2012, with a high proportion of employment in non-agricultural work being informal[9]. A significant proportion of Afghan refugees living in Baluchistan are reported to be self-employed or involved in small trade and shopkeeping work[10]. DFAT assesses that Hazaras in Pakistan face high risk of societal discrimination and violence outside of enclaves in Baluchistan[11].

    [9] Agriculture accounts for approximately two-fifths of employment. Central Intelligence Agency 2014, CIA World Factbook 2014 – Pakistan, 20 June Tahir, N & Tahir P 2012, ‘Is Informal Sector Employment Marginal to Formal Sector Growth?’, Pakistan Development Review, vol. 51, no. 4 (Winter 2012), p. 544, on Pakistan Institute of Development Economics website Afghan Research and Evaluation Unit (AREU), Collective for Social Science Research 2006, Afghans In Quetta. Settlements, Livelihoods, Support Networks and Cross-Border Linkages (Case Study Series, [31] January), p. 4, on UNHCR Refworld <

    [11] DFAT Country Information Report: Afghanistan 27 June 2019 at 3.47

36. I note the statement in the s.107 notice to the effect that the applicant’s return to Pakistan on two occasions without apparent harm suggests the applicant does not hold the adverse profile as claimed in his protection visa application. As the applicant was living in Pakistan as a refugee, he does not have any right to return to that country. This is evidenced by the fact he obtained visas to enter Pakistan on each occasion he has returned. While the applicant has described some details of his life in Pakistan in his protection claims, he does not make claims for protection against Pakistan because that is not his country of nationality. In these circumstances it is illogical to conclude that his returns to Pakistan since his arrival in Australia indicate he does not hold the profile he claims to hold in Afghanistan. Nothing about his returns to Pakistan indicates that any of his claims against Afghanistan are incorrect.

1. It follows that I am not satisfied the applicant gave incorrect information about his experiences in Pakistan.

   Conclusion on non-compliance

2. Given my finding that the applicant provided incorrect information in his protection visa application about his father’s return to Afghanistan and his presumed death at the hands of the Taliban in that country, I find that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

   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 (the Regulations).

5. The correct information: I consider the correct information is that the applicant’s father did not return to Afghanistan in 2002 and was never missing. Rather he continues to reside in Quetta, Pakistan.

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: The Department’s Refugee Status Assessment Record dated 5 March 2011 (RSA Record) set outs a significant amount of country information concerning the situation for Hazara Shias in Afghanistan from 1994 until the time of the decision. It records that the Taliban became prominent in Afghanistan in 1994 after they promised to restore peace and security in Afghanistan and enforce their own version of Sharia law. It records that the Taliban, mainly ethnic Pashtuns, regarded Hazaras as infidels who didn’t worship in the manner Muslims should worship, besieging the Hazarajat and burning villages to render the region uninhabitable[12].

   [12] Refugee Status Assessment Record dated 5 March 2011 at p.10.

8. The RSA record states that the information provided by the applicant suggested the original reason the family left Afghanistan was due to the civil war, which was not Convention related. However the delegate accepted that given the Taliban were taking control of Afghanistan and targeting Hazara Shias at the time, “it was possible the applicant’s family fled their village not only because of the civil war but also because of the strong, imminent threat of persecution from the Taliban because of their ethnicity and religion”. It noted his claims about his father’s return to Afghanistan and subsequent disappearance and records that the applicant has no known relatives in Afghanistan[13].

   [13] Refugee Status Assessment Record dated 5 March 2011 at p.18.

9. The RSA delegate records that she has concerns about the applicant’s return to Afghanistan given his young age and lack of a supportive family network, noting UNHCR’s advice that unaccompanied minors are at greater risk of forced recruitment, sexual violence, forced labour and human trafficking. She concludes that he faces a real chance of persecution because he is a Hazara Shia and because of his profile as a minor who has no experience of living in Afghanistan.

10. It is apparent that the applicant’s claim that his father had disappeared upon return to Afghanistan was considered by the RSA delegate. However the delegate’s findings do not indicate that her conclusions about the applicant’s risk on return would have been different had it had been known that his father was in fact alive and living with his other family members in Quetta, Pakistan, given the applicant has no right of return to that country. Rather the findings made by the delegate suggest that knowledge of the fact the applicant’s father was alive and living in Pakistan would not have changed her assessment that the applicant was at risk in Afghanistan as an unaccompanied minor Hazara Shia returning to Afghanistan without family support in that country.

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

12. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2010 visa application.  At that time he was [age]. He claims he gave the incorrect information because he was advised by the people on the boat he should say this to bolster his claims and obtain refuge in Australia. He gave evidence to the Tribunal that he deeply regretted making the false claim about his father and was now facing the consequences.

13. The present circumstances of the visa holder: The applicant is a [age] male living in a shared house in [Suburb 1]. Since arriving in Australia he has completed a number of English language and vocational courses. He lived in the [two states] before settling in Melbourne where he has worked [in various workplaces]. He is currently working as an [Occupation 1]. He married in 2013 in Pakistan but has been unable to bring his wife to Australia because of his visa cancellation. He has no family members in Australia.

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 noted that in his response to the NOICC, the applicant admitted to the non-compliance and stated that his father was never missing as claimed in his protection visa application.

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 his statement in support of his visa application in November 2010 and approximately nine 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 is a member of the [Organisation 1], which he told me is a [community] organisation. A support letter from the secretary of that organisation states the applicant has been known to them for more than two years and regularly attends their celebrations and events and visits their office in [Suburb 1].

    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, ‘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, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia[14].

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

    [14] 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 1994 and 2010. Since arriving in Australia he has returned to Pakistan on three occasions, each time using his Australian Titre de Voyage containing a visa to enter Pakistan. There being no evidence before me that would indicate the applicant is a citizen of Pakistan or any other country, I find he is a citizen of Afghanistan and I have assessed his claims against that country.

    Well-founded fear of persecution

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

27. 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

28. The applicant is a [age] year old male originally from [Jaghuri] district of Ghazni province, Afghanistan. He was [age] when his family left Afghanistan for Quetta, Pakistan. He arrived in Australia by boat [in] 2010.

29. It is not in dispute that he is of Hazara ethnicity and Shia Muslim religion. The applicant has participated in the visa grant and cancellation processes with the assistance of interpreters in the Hazaragi language and has the distinct visual features shared by Hazaras.

    The applicant’s fear of harm in Afghanistan

30. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. In assessing his claims I note the contents of the most recent DFAT report dated 27 June 2019 as well as other sources summarised below.

    The general security situation in Afghanistan

31. DFAT reported in June 2019 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[15].

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

32. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the Afghan National Defence and Security Forces (ANDSF) and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[16].

    [16] Ibid.

33. DFAT reports that the United Nations Assistance Mission in Afghanistan (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[17];

    [17] Ibid at 2.60 – 2.69.

34. 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[18]. 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[19].

    [18] Ibid at 2.75 – 2.80.

    [19] Ibid at 2.70 – 2.74.

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

35. 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[20].

    [20] Ibid at 3.8.

36. 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.

37. 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’[21].

    [21] Ibid at 3.7 – 3.16.

38. 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[22].

    [22] Ibid at 3.42 – 3.46.

39. 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[23].

    [23] Ibid at 3.29 – 3.35.

40. In June 2019, DFAT assessed that Shia face a high risk of being targeted by Islamic State Khorasan Province (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[24]. 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[25].

    [24] Ibid at 3.29 – 3.35.

    [25] >

    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[26].

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

    Analysis of the applicant’s claims

1. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion. He originates from [Afghanistan’s] Jaghuri district but he left Afghanistan when he was [age] and has no known relatives in that country.

2. DFAT reports 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[27].

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

3. DFAT reports that there is no legal impediment to internal movement within Afghanistan and returnees are not legally required to return to their home provinces. Kabul offers greater opportunities for employment and Hazaras are estimated to comprise 40-50% of Kabul’s population, making it the largest ethnic group in that city.

4. Given the deteriorating security situation in Jaghuri and the fact the applicant has not lived there since 1994 and has no known relatives remaining in the area, I consider that if removed from Australia he is likely to return to Kabul rather than Jaghuri.

5. The DFAT report indicates that Hazaras and Shias in Kabul have been subjected to ongoing major attacks since mid-2016, that those attacks are religiously motivated and have recently targeted Shia majority or ethnic Hazara neighbourhoods. DFAT assesses that Shias in Afghanistan face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities, including Kabul[28].

   [28] Ibid at 3.29 – 3.35.

6. 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[29]. 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[30].

   [29] Ibid at 3.7 – 3.16.

   [30] Ibid at 3.42 – 3.46.

7. In view of the DFAT advice, I accept there to be a real chance the applicant will face serious harm if he returns to Kabul, now or in the reasonably foreseeable future, for the essential and significant reasons of his Shia religion and Hazara ethnicity.

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

9. As to whether the applicant will receive protection from the Afghan state from the harm that he fears, DFAT indicates that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest[31]. 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[32].

   [31] Ibid at 5.1 – 5.4.

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

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

11. 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[33]. 

    [33] SZATV v MIAC (2007) 233 CLR 18.

12. I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. I have accepted he has no known relatives anywhere in Afghanistan. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence, the fact that the applicant has not lived in Afghanistan since he was a [child] and has no relatives or connections in Afghanistan, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

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

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

15. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant has no family members in Australia or Afghanistan. His parents, wife and siblings live in Quetta, Pakistan where the applicant has no right of return. I accept that if his visa remains cancelled, the applicant will be subjected to significant hardship.

    EXERCISE OF DISCRETION

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

    ·Had the correct information about the applicant’s father been known to the delegate when the decision to grant the visa was made in 2011, I am satisfied the applicant would still have been recognised as a refugee on the basis of his profile as an unaccompanied minor of Afghan nationality, Hazara ethnicity and Shia religion, who had resided as a refugee in Quetta, Pakistan since 1994;

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

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

    ·The material before me indicates the applicant has not breached any laws since arriving in Australia, nor committed any other acts of non-compliance.

    CONCLUSIONS

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

    DECISION

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

    Alison Murphy
    Member

    
    

    
    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)    requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    107A     Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)   may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)   if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

    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.