1811497 (Refugee)

[2020] AATA 3810

1811497 (Refugee) [2020] AATA 3810 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811497

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kate Millar

DATE:23 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 23 July 2020 at 6:07pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect answer in application – evidence of citizenship in another country – applicant accused of crime under another name – applicant travelled under fraudently obtained identity documents – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 46A, 101, 107, 109, 189, 197C, 198, 424A
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant, Mr A,] came to Australia by boat in 2010 and claimed to be an Afghani national seeking protection.   In 2016 the Department of Immigration (the Department) was advised that he had a Pakistani national identification card and was known as [Mr B].  It was further alleged [Mr B] was involved in the murder of a Pakistani citizen in a period [the applicant, Mr A,] was in Pakistan.

2. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled [the applicant]’s protection visa because the delegate found he had answered questions on his protection visa application incorrectly, including that as he did not disclose the identity [Mr B].  The delegate also found he was a citizen of Pakistan and therefore that the claims in his application for a protection visa were incorrect.

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

4. The issues are whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. [The applicant] appeared before the Tribunal 12 February 2020 and 1 April 2020 to give evidence and present arguments and was represented by his registered migration agent. On 1 April 2020 the hearing was adjourned for Tribunal to consider the effect of a document not being released to [the applicant].  Before scheduling a further hearing, the Tribunal reconsidered the matter, and was able to make a favourable decision on the material before it, and decided a further hearing was not necessary. 

6. For the following reasons 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.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Is [the applicant] a citizen of Pakistan?

10. At the core of this matter is whether [the applicant] is a citizen of Pakistan.  The delegate found that he was.  This resulted in the delegate finding that a number of answers to questions in his protection visa application were incorrect, as his application was made on the basis that he was a citizen of Afghanistan.  Whether he is a citizen of Pakistan also informs the exercise of the discretion to cancel the visa, as it in turn affects whether the grant of the visa was based on incorrect information.

11. While this is not the only piece of incorrect information relied on by the delegate, it is the most significant.  For the following reasons, I do not consider it has been established that he is a citizen of Pakistan. 

    The degree of satisfaction required

12. In looking to the degree of satisfaction required to make such a finding, in Sun v Minister for Immigration and Border Protection,[1] Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making.   

    [1] [2016] FCAFC

13. However, the Tribunal is mindful of the gravity of the consequences of cancelling a visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[2]

    [2] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20]

14. In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal.”[3]

    [3] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119]

15. In looking at whether it has been established that [the applicant] is a citizen of Pakistan, the Tribunal has kept in mind the gravity of the decision and the central relevance of such a finding and it has exercised caution in evaluating the factual foundation for such a finding.

    Information provided by the Department

16. The delegate relies on:

    ·     A first information report lodged [in] May 2014 in [City 1], Pakistan in which it is stated [Mr B], also known as [Mr A], was identified as the perpetrator of a shooting in which a person was killed. It is stated this report has been verified by the Australian High Commission in Islamabad and that [City 1] police confirmed [Mr B] is a Pakistani national. 

    ·     Departmental officers interviewed family members of the victim who have a description of [the applicant] as [Mr B] and accurately named his siblings [Mr C], [Mr D], [Mr E], [Ms F], and [Ms G] as well as his wife [Ms H].  These are the same names provided for his siblings and wife in his visa application. 

    ·     An integrity check with the Pakistani National Database and Registration Authority (NADRA).  The delegate states according to NADRA [Mr B] is the holder of a Pakistani Computerised National Identity Card (CNIC) number [CNIC 1].

17. The Department was sent an email by the cousin of the alleged victim stating his cousin [Mr I] was killed on [date] May 2014 by   [Mr B], son of [Mr J] and known as [Mr A] who has Australian citizenship.  It provides [Mr A]’s Australian travel document number.

18. The same person sent the CNIC number for [Mr B] of [CNIC 2].  The Australian consulate in Pakistan sent this to NADRA which confirmed this record exists on the database.

19. Further information was obtained by email from the cousin of the alleged victim.  This gave [Mr B’s] father’s name as [Mr J], the mother as [Ms K] and siblings [Mr L], [Mr C], [Mr D], [Mr E] and sister [Ms M], [Ms F] and [Ms G].  This is similar, but not identical, to [the applicant]’s family structure.  It does not have the same names for his parents.

20. A record dated [in] August 2016 records that an officer at the Australian Consulate called [a named] Police Station in [City 1] and spoke to an officer.  The FIR report number was provided.  The officer confirmed the FIR is genuine and that [Mr B] is a Pakistani national. 

21. A further note dated [in] September 2016 states an officer talked to the informant who said the deceased [Mr I] was his maternal cousin.  He was told [Mr I] had been shot and went to [Hospital 1] in [City 1] but subsequently died.  It is stated his cousin was an eyewitness.  It is stated [Mr B] lived on the same street and after this incident the whole family moved elsewhere in [City 1].

22. The FIR states that [Mr B]/[Mr A] is the neighbour of the person who reported the offence and that he was approached by [Mr B]/[Mr A] outside his house when armed with a [rifle].  He says he was pushed towards the victim’s house.  The weapon was fired at the house, and when the complainant came out he saw his cousin injured from the firing.  He said two other witnesses were present and they took the victim to [Hospital 1].  It is stated he has a property dispute with [Mr B].

    Information provided by [the applicant]

23. [The applicant] provided a statement on 14 November 2014 with his application for a protection visa.  As it relates to his identity, he states:

    ·     He was born on [date] in [Uruzghan].  He lived in a village with 300 – 400 Hazara families.

    ·     He has [number] brothers and [number] sisters.

    ·     He is married with two children.

    ·     He left Afghanistan because one evening he went to a Pashtun mosque with a friend.  He went inside to light a lamp and his friend tried putting fuel in another lamp.  A fire started and he tried to stop the [fire].  He told his family what happened, and his father said the only choice was to leave because they were surrounded by Pashtuns and the Taliban.

24. In his application, he lists his father as [Mr N], his mother as [Ms O], his brothers as [Mr C], [Mr D], [Mr P] and [Mr E] and sisters as [Ms F], [Ms Q] and [Ms G].  He states he has a wife [Ms H] and two children, a son [named] and a daughter [Ms R].

25. The decision record granting [the applicant] a protection visa states he possesses the physical features of the Hazara people and demonstrated fluency at interview in the Dari and Hazaragi languages.

26. [The applicant] submits he is a citizen of Afghanistan, and left Afghanistan in 1996 as a teenager after an incident where a local mosque [was damaged] and the family fled.

27. He states he purchased an authentic CNIC in 2008 by paying approximately AUD4,000 to an identity agent, and used his CNIC to obtain a passport.  He purchased the identity card because he was harassed by police and other government officials about his residency and work papers.

28. It is stated in submission that he told immigration officials he had travelled on a false passport.

29. [The applicant] provided a birth registration and national identity card for Afghanistan, an extension of visa issued by the Pakistan Government, passports of his wife [Ms H] and daughter [Ms R], national identify card (taskiras) for [Ms H] and [Ms R], polio vaccination certificate and English language Program achievement cards for [Ms R].

    Information under 424A of the Act

30. Information contained in the notes from the entry interview with [the applicant] on 30 July 2010 was that he told the interviewer that he travelled on a Pakistani passport which was taken off him in [Country 1].  On being asked if it had his name and photograph, he answered I did not read it.  It had my photograph. 

31. At hearing, he said that when he asked the agent he used to get documents for a passport he was asked for his old identity card and he arranged a passport in the same name.  He read the passport and saw the name in English and his photograph, with the name on his passport being [Mr B] and he read it in English in the passport.  The name on the passport was [Mr B].  He said the identity card and passport were taken from him in [Country 2].  In his statement dated 5 February 2020, he stated if he was asked what name was on the passport he would have told them. 

32. Information obtained by the Department from NADRA was put to [the applicant] under s.424A of the Act, in particular that NADRA had confirmed that it had issued the identity card.  [The applicant] said he did not dispute it was a genuine card, but it was obtained by fraudulent means. 

    Document verification

33. The Tribunal sought verification of the taskiras of [Mr A], [Ms H] and [Ms R] though the Department.  These documents were confirmed as genuine.

34. [The applicant]’s wife obtained his taskira in Afghanistan and had to provide his name, his father and grandfather’s name.  His wife’s brother [named] was the witness to obtain the taskira.

    Fraudulently obtained CNIC cards, passports and first information reports

35. The Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 20 February 2019 states in regard to document fraud for computerised national identity cards (CNIC’s) and smart national identity cards (SNIC’s) that:

    CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

    Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

    Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

36. It was reported in 2015 by The Nation newspaper in Pakistan that:

    National Databases and Registration Authority (NADRA) is the premier body of Pakistan for issuing nationality related credentials to citizens. Established in early 2000s, NADRA has earned praise for developing a huge database with a reasonable degree of security. Under-developed countries like Sri Lanka have also used the services of NADRA to develop their own nationality database. However, lately several officers of NADRA have been involved in issuing illegal Computerized National Identity Cards (CNICs) and that has resulted in serious problems especially in Balochistan.

    This week it was reported that 40 NADRA officials had been found to be involved in issuing CNICs to terrorists. High profile Al-Qaeda and Taliban terrorists, who were foreigners, possessed Pakistani CNICs. The report had further revealed that 22,000 fake CNICs were issued in 2014 and 64,000 in just seven months of 2015. Although fake CNICs have been issued all over Pakistan but Balochistan is the center stage of this practice where Afghan refugees are the beneficiaries.[4]

    [4] >

    [The applicant] claims to have obtained a genuine NIC using fraudulent means.  He paid for the NIC using an agent who was well known as a person who could obtain a good quality NIC and who was connected with a network of government officials who were involved in the production of these types of identity documents.  He paid about AUD4,000 for the NIC which he understood involved finding a ‘match’ for him given his photograph and age in the national identity database.  He used this card to show officials when asked for identification, but otherwise continued to us his own name.  As he worked as a [occupation], travelled around [City 1] and nearby regions and had experienced constant harassment by police and other government officials in relation to his residency and work papers.  As a Hazara, he was stopped by police and had to pay bribes to avoid being detained. 

37. [The applicant]’s account of obtaining a Pakistani NIC is consistent with country information.  He states it is a genuine card but was obtained by fraudulent means to allow him to travel without being harassed in Pakistan. Given this account and as the taskiras provided to the Tribunal were verified by the Department as genuine, the Tribunal is not satisfied that it has been established that [the applicant] is a citizen of Pakistan, or that his identity is other than [Mr A].

38. The delegate has also relied on a first information report of an offence where [Mr B] is alleged to have murdered a Pakistan national.  In relation to the first information reports (FIRs), DFAT states:

    FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

39. [The applicant] states he was in Pakistan from [date] February until [date] September 2014 but was not involved in any shooting.  He could not explain why he has been identified as [Mr B] and as the alleged perpetrator of the shooting.  He submits he does not think he was in [City 1] at the item of the shooting.  He states that enquiries with friends who live in [City 1] revealed that the person who died was a Hazara, the death was by suicide and the family of the deceased did not want it reported as suicide. He was not arrested or questioned and submits it is not plausible he would be allowed to leave Pakistan if he was the alleged perpetrator of this crime.  He was given an extension to his visa to remain in Pakistan [in] September 2014, and the Government did not take any action against him on extending his visa. 

40. It is not for this Tribunal to consider or determine criminal matters.  Given the country information reports regarding FIR’s and [the applicant]’s account, it has not been established that [the applicant] was involved in the shooting or that the Pakistani Government has shown interest in [the applicant] before he left Pakistan, many months after the alleged shooting. 

41. [The applicant], his wife and daughter all hold Afghan identity documents which the Department has verified as being genuine.   He was noted by the Department to have the physical features of a Hazara and be fluent in Dari and Hazaragi.   He has provided a plausible explanation for holding a Pakistani NIC which is supported by country information.  I am not satisfied that the FIR establishes he is a citizen o0f Pakistan, or is genuine in circumstances where he was able to extend his visa to remain in Pakistan and to leave Pakistan without any intervention from government authorities. 

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

42. 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 s.101 with the Act in the following respects:

    ·     At Question 4 of Part C of the Form 866 it asks What other names have you been known by? [The applicant] did not provide an answer. 

1. The delegate found this was a breach of s.101(a) of the Act as it did not answer a question.

2. [The applicant] did not provide the name ‘[Mr B]’, and this is an incorrect answer. 

3. The notice of intention to cancel [the applicant]’s visa contains a number of other pieces of information which the delegate found to be incorrect. 

4. These are recorded in the notice of intention to cancel the visa as follows:

   Question 1 of Part C of the Form 866, stated: ‘What is your full name?’ the visa holder answered: ‘[Mr A]’. I consider this answer to be incorrect as the of the Pakistani Police report, CNIC number confirmation through NADRA, and investigations carried out by departmental officers in Pakistan indicates his genuine name at the time of the Protection visa application was [Mr B].

   Question 20 of Part C of the Form 866, stated: ‘Your current citizenship (if different at birth)’, the visa holder answered: ‘Afghanistan’. I consider this answer to be incorrect as the visa holder holds a Pakistan CNIC number which is strong evidence he is a citizen of Pakistan.

   Question 21 of Part C of the Form 866, stated: ‘Do you hold any other citizenship or are you a national of any other country?’ the visa holder answered: ‘No’. I consider this answer to be incorrect as the evidence available to the Department indicates the visa holder holds a Pakistan CNIC number which is strong evidence he is a citizen of Pakistan.

   Question 41 of Part C of the Form 866 stated: ‘I am seeking protection in Australia so that I do not have to return to (Give name of country of countries)’ the visa holder answered: ‘Afghanistan’. I consider this answer is incorrect because the visa holder appears to hold a Pakistan CNIC number, which is strong evidence he is a citizen of Pakistan.

   Question 42 of Part C of the Form 866 stated: ‘Why did you leave that country?’ the visa holde answered: ‘Please refer to my statutory declaration’. In his statutory declaration the visa holder stated he had to flee Afghanistan because he was persecuted as an ethnic Hazara and the Taliban and the Pashtun population dispossessed his family of his land and presented a danger to him. I consider this answer to be incorrect as it appears the visa holder is a Pakistani citizen, and was so at the time of his Protection visa application. As a Pakistani citizen the visa holder would have the same rights as other Pakistani citizens, with the right to reside there, meaning his claims against Afghanistan are immaterial and he did not hold the claimed adverse profile for that country as claimed in his Protection visa application. The visa holder presented claims as a person known as [Mr A], who was involved in an incident in Afghanistan wher a mosque [was damaged], I consider this claim to be incorrect because he is actually known as [Mr B] and is from [City 1] in Pakistan. The visa holder’s answer is incorrect as he does not hold the claimed identity of [Mr A].

   Question 43 of Part C of the Form 866, stated: ‘What do you fear will happen to you if you go back to that country?’ the visa holder answered: ‘Please refer to my statutory declaration’. In his statutory declaration the visa holder stated if he was to return to Afghanistan he would face a real chance of being discriminated against, persecuted or killed because he is an ethnic Hazara who has given up religion. I consider this answer to be incorrect as the visa holder’s claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates he is actually a Pakistani citizen.

   Question 44 of Part C of the Form 866, stated: ‘Who do you think may harm/mistreat you if you go back?’ the visa holder answered: ‘Please refer to my statutory declaration’. In his statutory declaration the visa holder stated he would face harm from the Taliban, Pashtuns, religious leaders and even fellow Hazaras. I consider this answer to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates he is actually a Pakistani citizen.

   Question 45 of Part C of the Form 866, stated: ‘Why do you think this will happen to you if you go back?’ the visa holder answered: ‘Please refer to my statutory declaration’. In his statutory declaration the visa holder answered: ‘The government cannot protect themselves’. I consider this answer to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates he holds a Pakistan CNIC number which is strong evidence he is a citizen of Pakistan.

   Question 46 of Part C of the Form 866, which states: ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’ the visa holder answered: ‘Please refer to my statutory declaration’. In his statutory declaration the visa holder answered: ‘I cannot relocates anywhere because as an atheist I would I be persecuted wherever I move to in Afghanistan’. I consider this answer to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates he holds a Pakistan CNIC number which is strong evidence he is a citizen of Pakistan.

   I consider these answers are incorrect because the evidence available to me indicates the visa holder is a documented Pakistani citizen and was so at the time of the Protection visa application. As a citizen of Pakistan the visa holder would have had access to a range of opportunities, government services, benefits and protections available to all Pakistani citizens. I consider the visa holder’s claims in regard to Afghanistan are incorrect.

5. These findings are generally predicated on [the applicant] being a citizen of Pakistan and his account of leaving Afghanistan to be false.

6. I am not satisfied he is a citizen of Pakistan. At hearing, [the applicant] provided a detailed account of his reasons for leaving Afghanistan and the process and route by which he left Afghanistan.  His account was consistent with the entry interview on arriving in Australia and his application for a protection visa, and I am not satisfied this account is incorrect.

7. As it has not been established that his identity is other than [Mr A] and that he is a citizen of Afghanistan, and as his account  over a substantial period of time is consistent, there is insufficient information on which to be satisfied that the remaining particulars provide incorrect information.

8. However, as [the applicant] failed to answer a question about other names he has been known by and by omission of the name ‘[Mr B]’ provided an incorrect answer by omission, the ground to cancel his visa in s.101 of the Act has been established.

   Should the visa be cancelled?

9. 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).

10. 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.

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

    A.   Prescribed circumstances

    The correct information

12. In this case, the correct information is that [the applicant] also used the name ‘[Mr B]’.

    The content of the genuine document (if any)

13. The content of documents provided to the Department is not in issue in this matter

    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

14. It is accepted that [the applicant] is a citizen of Afghanistan and that he left Afghanistan for the reasons provided in his protection visa application.  In these circumstances, I do not consider the decision to grant the visa was based wholly or partly on incorrect information.     

    The circumstances in which the non-compliance occurred

15. At the time, [the applicant] arrived in Australia as the circumstances in Pakistan were deteriorating for Afghans of Hazara ethnicity.  The circumstances weigh in favour of not cancelling his visa. 

    The present circumstances of the visa holder

16. [The applicant]’s wife and daughter remain in Pakistan, following [the applicant] applying for a spouse visa for them to come to Australia.  He has also applied for Australian citizenship.  It appears neither application has been decided pending the outcome of this matter. 

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

17. The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

18. No information has been put forward that [the applicant] has otherwise not complied with his obligations.

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

19. No information has been put forward to show there are any other instances of non-compliance. 

    The time that has elapsed since the non-compliance

20. It is now nine years since [the applicant] applied for the visa.  He has settled in Australia and has been employed in Australia and is involved in the local Hazara community.

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

21. There is no record of [the applicant] having beached any law in Australia.  I am not satisfied I could rely on the FIR in Pakistan to show he has beached a law in Pakistan. 

    Any contribution made by the holder to the community

22. [The applicant] has volunteered for [Association 1] assisting Hazaras to integrate into Australian society. 

    B.   Other circumstances

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

23. [The applicant] arrived in Australia as an irregular maritime arrival.  Under s.46A of the Act if his visa is cancelled he cannot make a visa application except with the authorisation of the Minister.  This includes a further bridging visa, and as a result the effect of the cancellation would be that [the applicant] is liable to be detained under s.189 of the Act. 

24. Under s.198(5) of the Act, he would be removed from Australia as soon as practicable.  Under s.197C of the Act, Australia’s non-refoulement obligations are irrelevant to removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations.  This means the potential harm to [the applicant] if he is removed would not be considered before removing him from Australia. 

    Whether there would be consequential cancellations under s.140

25. Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

26. In this case there are no consequential cancellations that would result form the cancellation of [the applicant]’s visa.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child 

27. The facts of this case give rise to Australia’s international obligations in regard to non-refoulement.

28. The principle of non-refoulement is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

29. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).   

30. Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture.  Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed. 

31. [The applicant] was found to be a refugee in granting him a visa.  While he failed to provide a name by which he had previously been known, the facts that underpin the finding he is a refugee remain, and it has not been established that these are incorrect.  It follows that if cancelling his visa resulted in him being liable to detention and removed from Australia, this would breach Australia’s non-refoulement obligations. 

    CONCLUSION

32. The incorrect information was failure to provide another name.  This is relatively minor when weighed against the circumstances.   He had fled Afghanistan and conditions for Hazaras were deteriorating in Pakistan.  If returned to Afghanistan, this would be a breach of Australia’s international obligations.  [The applicant] has settled in Australia over the last nine years. 

33. While there was non-compliance by [the applicant] in one of the ways described in the notice given under s.107 of the Act, having regard to all the relevant circumstances the visa should not be cancelled.

    DECISION

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

    Kate Millar

    
    

    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.