1812238 (Refugee)

[2019] AATA 6565

1812238 (Refugee) [2019] AATA 6565 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812238

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Alison Murphy

DATE:20 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2019 at 11:30am

CATCHWORDS

REFUGEE – cancellation – protection visa – Pakistan – Religion – Ethnicity – Hazara – Shia – incorrect information provided – allegations of non-compliance – claim father died –  claim to be Afghani ethnicity – national of Pakistan – father is alive – real chance of persecution – identifiable by appearance – breach of non-refoulement obligations – decision under review set aside   

LEGISLATION

Migration Act 1958 (Cth), ss 36, 46A, 65, 101, 107
Migration Regulations 1994 (Cth), r 2.41

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a [age] year old male from Pakistan of Hazara ethnicity and Shia religion. He arrived in Australia [in] December 2011 and lodged an application for a protection visa on 16 May 2012. The visa was granted on 15 June 2012.

3. On 12 April 2018 a delegate of the Minister cancelled the visa on the basis that it was considered the applicant breached s.101 of the Act by providing incorrect information in his visa application. The particulars of the information stated to be incorrect are set out in the s.107 notice dated 11 January 2018.

4. The issues before the Tribunal are:

   ·Whether the s.107 notice was sufficiently particularised; and if so

   ·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.

5. The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   LEGISLATIVE FRAMEWORK

8. 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.

9. 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.

10. 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 s.107 notice sufficiently particularised?

11. Section 107 of the Act states the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s.101 of the Act (as asserted in the present case) s.107(1)(a) requires the notice to give “particulars of the possible non-compliance”.

12. The s.107 notice was issued to the applicant on 11 January 2018.  It stated that the author of the notice (who was in this case also the delegate) considered there had been non-compliance with s.101 of the Act (visa applications to be correct). It set out the details of that alleged non-compliance as follows (in summary):

    ·The applicant stated in his protection visa that he was [the Applicant] born on [date] in Uruzgan Province, Afghanistan, that he was a citizen of Afghanistan and no other country and that his father [Mr A] was murdered by the Taliban in Afghanistan when he was very young. Based on the information provided, the applicant was assessed as engaging Australia’s protection obligations on account of his race and religion in Afghanistan;

    ·The Department subsequently became aware that a person who appeared to be the applicant’s father [Mr A] had arrived in Australia [in] February 2013 and identified himself as a Pakistani citizen. [Mr A] had produced to the Department documentation confirming his identity and Pakistani citizenship and identified his son as [Applicant’s first name] born [date]. In a later visa application [Mr A] stated he had a son [variation of the Applicant’s name] born [date] in Karachi, Pakistan. At an interview with a Departmental officer on 10 January 2017 [Mr A] confirmed the applicant is his son and a Pakistani national;

    ·On 25 November 2016, the applicant applied for Australian citizenship. As part of that process, he was invited to comment on concerns raised by a delegate assessing his application concerning his identity and good character. On 15 June 2017 the applicant responded to those concerns and provided a Pakistani birth certificate showing his date of birth was [date] and his place of birth was Karachi, Pakistan, a Pakistani national identity card showing his date of birth and Computerised National Identity Card number and a Pakistani driver’s licence;

    ·The delegate considered that the above matters indicated that the applicant had given incorrect information in his protection visa application about his age and date of birth, his country of birth, his country of nationality and the death of his father at the hands of the Taliban.

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

13. 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 in respect of his age and date of birth, his country of birth, his country of nationality and the death of his father at the hands of the Taliban.

14. In his written response to the s.107 notice and at hearing before me, the applicant acknowledged providing incorrect information in his protection visa application about his age and date of birth, his country of birth, his country of nationality and the death of his father at the hands of the Taliban. The applicant maintains that the other information he provided about his experiences as a Hazara and a Shia resident in Quetta, Pakistan were correct.

15. As the applicant concedes he provided incorrect information in his protection visa application about his age, his date and country of birth, his country of nationality and the death of his father, the Tribunal finds 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?

16. 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).

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

18. The correct information: I consider the correct information is that the applicant is a Hazara Shia born in Karachi, Pakistan on [date], that he is a citizen of Pakistan and that his father was not killed by the Taliban.

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

20. 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: While it is not in dispute that the applicant is of Hazara ethnicity and Shia religion, I accept the decision to grant the applicant a protection visa was based in large part on his claims that he was a [age] year old Afghan national, born in Afghanistan but formerly resident in Pakistan as a refugee.

21. The protection visa decision record dated 15 June 2012 makes clear that the applicant was assessed as a Shia Hazara who was a minor (when he was in fact aged [age]) and a national of Afghanistan born in that country and not Pakistan. It is not clear that the applicant’s claims as to his father’s death at the hands of the Taliban in Afghanistan had any real bearing on the delegate’s assessment, noting the delegate’s statement that the applicant was only able to provide limited information regarding this incident and his conclusion that ‘on the limited evidence available, it is not possible for me to confidently accept his father’s death occurred as claimed’.

22. I accept though that the applicant’s claims were assessed on the basis he would be returned to Afghanistan rather than Pakistan, and involved an assessment of the risk of harm to the applicant as a Hazara Shia should he be returned to his home area of Uruzgan Province in Afghanistan. The delegate assessed the situation for civilians in Uruzgan to be ‘severe’ and noted that Hazaras, being a minority in the area, were particularly at risk. The delegate accepted the applicant had a well-founded fear of persecution in Uruzgan Province based on country information referred to in the decision and the delegate’s assessment that relocation within Afghanistan was neither reasonable nor practicable for the applicant.

23. For the following reasons I consider that even had the correct information been known, it is likely that the applicant would still have been granted a protection visa on the basis of his profile as a Hazara Shia who was a Pakistani national:

    ·The Jamestown Foundation’s Terrorism Monitor reported that attacks on Quetta’s Hazara minority began in 1997 with virtually all attributed to Lashkar-e-Jhangvi (LeJ) supported by Saudi and Iranian state patrons in the context of a religious proxy conflict on Pakistani soil[1];

    ·DFAT reported in July 2010 that the security situation in Balochistan 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[2];

    ·In May 2012, the United Nations High Commissioner for Refugees (UNHCR) assessed that members of the Shia community in Pakistan may be in need of international refugee protection on account of their religion and/or imputed political opinion. It reported Shias were the target of violent attacks by Sunni fundamentalist groups throughout Pakistan, particularly in areas where Taliban-affiliated groups were active, including Balochistan and urban centres such as Karachi. The UNHCR Guidelines referenced numerous attacks on Shias, including Hazaras, reporting that by October 2011 over 100 Hazara Shias had been killed in targeted attacks in Balochistan Province alone and large numbers were reported to be fleeing the province. It reported bomb blasts targeting Shia processions in Karachi in February 2010 and January 2011 as well as the murder of three Shia lawyers in a Karachi court in January 2012[3];

    ·In July 2012, the Asian Human Rights Commission reported that killings of Shia Muslims continued unabated in those areas under the control of military and paramilitary forces including Balochistan, noting the banned militant groups were operating alongside military organisations who provided safe passage to them. It reported that in Karachi alone, not a month passed without target killings of Shias and the militant organisations overtly took collections from streets to fund their operations[4];

    ·In 2012 the United Kingdom’s Home Office reported that widespread fear of harassment, discrimination and killings had prompted some Hazaras to consider leaving the country, even by illegal means. It noted that in 2010, the Human Rights Commission of Pakistan reported that over 260 members of the Hazara community in Quetta were killed and more than 1000 injured in targeted killings between 2003 and 2009[5]. The Australian reported in April 2010 that a senior official in Pakistan’s Federal Investigation Agency informed the paper that in Quetta eight to 10 Hazaras were being murdered every week[6];

    ·The Department’s statistics show that in the 2010/11 and 2011/12 financial years, being the financial years in which the applicant applied for and was granted a protection visa, the final protection visa grant rates for applicants who arrived in Australia by boat from Pakistan were 80.3% and 74.1% (after primary and review processes were completed)[7]. While those statistics do not indicate the profile of those assessed as engaging Australia’s protection obligations, the Department’s ICSE records indicate the applicant’s father was granted a temporary protection visa after being found to have a well-founded fear of persecution for reasons of his Hazara race and Shia religion.

    [1] Jamestown Foundation, Sectarian Violence Escalates in Balochistan as Shi’a Holy Month Approaches, 21 October 2011, Terrorism Monitor Volume: 9 Issue: 38, available at: Department of Foreign Affairs and Trade 2010, Conditions for Asylum Caseloads: Hazaras in Quetta, 30 July.

    [3] United Nations High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, HCR/EG/PAK/12/02, 14 May, pp.37-39,

    [4] Asian Human Rights Commission, July 4 “Pakistan: Killings of Shiite Muslims under the very nose of the military  the ‘independent judiciary’ turns a blind eye while the government continues its policy of appeasement’”, 

    [5] UK Home Office 2011, Country of Origin Information Report – Pakistan, 17 January, Section 20.06 < Hodge, A. 2010, “Officials ridicule visa rethink”, The Australian, 13 April, FACTIVA.

    [7]

The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his visa application, his accompanying statutory declaration and at interviews conducted in respect of his protection claims.  The applicant initially repeated the incorrect information in his citizenship application, but later provided the correct information to the Department in response to queries raised during the processing of that application.

The present circumstances of the visa holder: The applicant told me at hearing that he lives with and cares for his father in [City 1], who has been granted a temporary protection visa and suffers from medical conditions. After being granted the visa the applicant worked for some years [in an occupation] and managed to purchase a house in Australia. When his visa was cancelled, he lost his right to work in Australia and was forced to sell his property. At the time of the Tribunal hearing, the applicant and his father were living off the proceeds of the sale of the applicant’s property and his father’s Centrelink benefits.

A character reference from [name deleted], [position deleted] (submitted in support of the applicant’s citizenship application and dated 30 April 2017) confirms the applicant worked at [a business] for approximately four years, where he was considered to be a well-liked and hard-working employee. His personal trainer and coach, [name deleted], also submitted a character reference at that time stating among other things that he believed the applicant to be of good character, who was generous with his time and assistance.

In 2013, the applicant returned to Pakistan and married his spouse [Ms B]. He lodged an application for a spouse visa on 31 December 2013, but it appears the visa application was first delayed pending the applicant’s citizenship application and later refused after the applicant’s own visa was cancelled. At the Tribunal hearing the applicant advised that [Ms B] remains in Quetta and he hopes to sponsor her to join him in Australia on a partner visa if his visa is not cancelled.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: In his response to the s.107 notice and an accompanying statutory declaration dated 31 January 2019, the applicant conceded he had provided incorrect information in his protection visa application and provided the correct information and supporting identity documents.

Any other instances of non-compliance by the visa holder known to the Minister: The applicant provided incorrect information in his citizenship application lodged on 25 November 2016, but later corrected that information in submissions lodged by his former representative on 9 May 2017.

The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in December 2011 and approximately seven and a half years have elapsed since then.

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.

Any contribution made by the holder to the community: The applicant gave evidence that he is a passionate body builder who has been successful in competitions and would have been eligible to represent Australia in a recent competition in [another country], had he held a visa allowing him to return to Australia. At hearing I was shown digital photographs of the applicant competing as a body builder at competitions in Australia and copies of those photos were submitted to the Tribunal after the hearing.

Other factors to be considered

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

1. 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 for 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[8].

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

   [8] DMH16 v MIBP [2017] FCA 448

2. 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.

3. 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.

4. 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.

5. In this case the delegate’s decision records that the Department had not conducted an International Treaties Obligation Assessment, nor has the Tribunal received any submissions from the applicant’s representative as to whether the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s non-refoulement obligations.

6. At hearing the applicant gave evidence that it was not safe for him to return to Pakistan as a Hazara Shia. Despite his earlier claims to have resided in Pakistan as a refugee from Afghanistan, it is not now in dispute that the applicant is of Hazara ethnicity and Shia religion and he is a national of Pakistan. The applicant has provided a number of identity documents to the Department confirming his Pakistani nationality and I have assessed his protection claims on this basis.

7. I accept the applicant is of Hazara ethnicity and Shia religion, noting that he participated in the Tribunal hearing using the services of a Hazaragi interpreter and DFAT reports that most Hazaras are Shia. At hearing he gave evidence that he was born and undertook his schooling in Karachi where his father ran [a business], but after finishing his schooling he spent most of his time working in Quetta, Balochistan. He gave evidence that his grandmother and elder brother remain living in Quetta, where his family still owns a house inherited by his father from the applicant’s grandfather.

8. At hearing I expressed my doubts that the applicant had spent his post-schooling years in Quetta or that he would return to that city rather than Karachi, given the volatile security situation for Hazaras in that city and his evidence that his mother and sisters remain living in the family’s property in Karachi. However I note the applicant’s father’s original identity card shown to me at hearing and other information on the departmental file indicating the applicant’s father has presented to the department various identity documents indicating he lived in Quetta in the early to mid-1970s and continues to have family members residing in that city. I accept the applicant’s own identity card records his address as Quetta, Balochistan.

9. In any case, I consider the applicant has a well-founded fear of persecution in both Quetta and Karachi for the essential and significant reasons of his Hazara ethnicity and his Shia religion. In making that assessment I note the contents of the most recent DFAT report (in summary):

   ·Shia Hazaras face official and societal discrimination in Pakistan and are targeted by militant Sunni groups such as LeJ because of their sectarian affiliation. DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their Shia religious beliefs and that they face a higher risk than other Shias due to their distinct appearance and segregation;

   ·There remains an ongoing risk to and targeting of Hazaras by militant groups despite overall improved security measures by the community and general improvement in the security situation in Pakistan. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan; 

   ·The Hazara community in Quetta lives in two major enclaves. While security measures taken by Hazara communities partly mitigates the risk of violence inside the Hazara enclaves, Shias travelling outside of these enclaves face a high risk of discrimination and violence, both within and outside of Balochistan; 

   ·Hazaras report that the overall security situation in Quetta has become so restrictive and the likelihood of attack so high that Hazaras are reluctant to travel outside of these enclaves including for basic services such as food, education, health care and employment;

   ·Hazaras that can afford to leave Quetta do so and outside Balochistan, Hazaras report finding it safer to live separately amongst the general community than to relocate to live near other Hazaras where they can be easily profiled and targeted.

   ·Outside of Quetta, smaller but significant populations of Hazaras reside in major urban centres such as Karachi. The few Hazara enclaves in Karachi, such as Mungo Pir, are unsafe and have only arisen out of necessity where poorer Hazaras have had to pool resources;

   ·While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats;

   ·The LeJ has claimed several attacks on Shias in recent years, including in Karachi. While security operations and the highly visible presence of the paramilitary Rangers in that city have led to a significant decrease in violence, at least two sectarian attacks targeted Shia in Sindh Province in 2017, resulting in at least 90 deaths, while another attack and death occurred in 2018. DFAT notes that the sustainability of recent security force efforts to reduce violence in Karachi is not yet clear[9].

   [9] DFAT Country Information Report Pakistan, 20 February 2019 at 3.27 – 3.48, 3.100

10. The UNHCR’s most recent Eligibility Guidelines (January 2017) report that Shias across Pakistan are subject to violent sectarian attacks by militant groups acting with impunity and Hazara Shias are disproportionately vulnerable to such attacks due to their visibility. It cites reports indicating that Shias are most targeted in Karachi, Quetta and Peshawar. As a result, Hazara Shias report living in constant fear and threats and risk of attacks reportedly impose severe restrictions on their freedom of movement and consequently their access to livelihoods and education. The UNHCR Guidelines conclude that it considers members of Pakistan’s Shia community may be in need of international refugee protection on account of their religion, ethnicity, (imputed) political opinion and other relevant grounds[10].

    [10] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan  January 2017

11. In its most recent country report on human rights practices in Pakistan, the US State Department reported that although sectarian violence decreased significantly across the country, targeted killings of religious minorities continued including of Shia Hazaras:

    Societal violence due to religious intolerance remained a serious problem. There were occasionally reports of mob violence against religious minorities, including Christians, Ahmadiyya Muslims, Hindus, and Shia Muslims.

    Members of the Hazara ethnic minority, who are Shia Muslim, continued to face discrimination and threats of violence in Quetta, Balochistan. According to press reports and other sources, Hazara were unable to move freely outside of Quetta’s two Hazara-populated enclaves. Community members complained that increased security measures had turned their neighborhoods into ghettos, resulting in economic exploitation. Consumer goods in those enclaves were available only at inflated prices, and Hazaras reported an inability to find employment or pursue higher education. They also alleged government agencies discriminated against Hazaras in issuing identification cards and passports. To avoid causing violent incidents, authorities confined Shia religious processions to the Hazara enclaves[11]. 

    [11] US State Department, Country Reports on Human Rights Practices for 2018 - Pakistan, March 2019, section 6, >

    Human Rights Watch reports that although there were fewer deaths by Islamist militants in 2018 in Pakistan than in previous years, however, ‘strikes primarily targeting law enforcement officials and religious minorities killed and injured hundreds of people’.[12]

    [12] Human Rights Watch, World Report 2019, Pakistan Events of 2018,

12. In view of the above information, I consider that the applicant has a well-founded fear of persecution for the essential and significant reasons of his Hazara ethnicity and his Shia religion if he returns to his home areas of Quetta or Karachi, now or in the foreseeable future.

    Availability of state protection

13. 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 Pakistani 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. 

14. Country information suggests that Pakistani authorities are generally willing to protect minorities and continue to implement counter terrorism strategies across the country to protect civilians.[13]  However multiple sources also indicate that militants operate with impunity throughout Pakistan, that they are believed to have infiltrated security forces and that resource and capacity constraints hamper the Pakistani state’s ability to protect Hazaras.

    [13] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016 at 2.3.1; and DFAT Country Information Report Pakistan, 20 February 2019 at 2.15 – 2.82

15. In 2018, the US Department of State reported that there was a culture of impunity throughout the country due to civilian authorities’ failure to punish abuses, and that corruption was pervasive in politics and government, including among the police and in the judicial system.  With respect to the protection of religious minorities – including Ahmadiyya Muslims, Christians, Shia Muslims, and Hindus – the report states that police often failed to protect members of such groups from attacks; that community members frequently refrained from reporting crimes, because they believed the police would not act; and that community members also accused law enforcement of treating minorities particularly harshly when they are accused of crimes[14].

    [14] US State Department, Country Reports on Human Rights Practices for 2018 - Pakistan, March 2019, sections 1d and 4, >

    In its November 2016 report on Hazaras in Pakistan, the UK Home Office reports that ‘capacity constraints and a lack of resources may hamper the state’s ability to protect Hazaras’[15]. 

    [15] UK Home Office, Country policy and information note, Pakistan: Hazaras, November 2016

16. DFAT reports that the police are known to provide escorts to Hazara groups in Quetta who wish to travel to and from their workplaces and the Pakistani government provides some security to Hazara enclaves. However DFAT also reports that while the paramilitary Frontier Corps maintains checkpoints on roads leading to Hazara Town, it is known to routinely discriminate against and harass Hazaras at checkpoints and Hazaras reportedly fear security forces operating checkpoints in Balochistan as they fear they may be involved in attacks against the community.[16]

    [16] DFAT Country Information Report Pakistan, 20 February 2019 at 3.30

17. DFAT notes that local sources attribute much of the improvement in the security situation for Hazaras to measures taken by the Hazara community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups.  DFAT notes the Human Rights Commission of Pakistan issued a statement following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018 highlighting ‘the lack of an effective and sustained response from the state’.[17]

    [17] Ibid at 3.31 and 3.33

18. As well, DFAT identifies ‘weak executive, judiciary and law enforcement institutions’ as part of the key underlying conditions for militancy in Pakistan which continued in 2018 and continue to do so in 2019.  DFAT assesses that the cycles of violence are likely to continue until these conditions change[18].  More broadly DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors and political will:

    Despite measures introduced to curb violence across the country under the NAP -strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.[19]

    [18] Ibid at 2.71

    [19] Ibid at 5.2

19. The above information causes me to consider that the security situation for Hazara Shias in Pakistan remains volatile, with continuing terrorist attacks being undertaken by militant groups with an openly anti-Shia agenda.  I find that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that I accept that the applicant faces a real chance of persecution for reasons of his Hazara race and Shia religion if he returns to Pakistan, now or in the reasonably foreseeable future.

    Relocation

20. 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[20].  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.

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

21. As noted above, DFAT reports that outside of Quetta, smaller but significant populations of Hazaras reside in major urban centres such as Karachi and that citizens of Pakistan have the right to relocate within Pakistan. However it also reports that while living in ethnically diverse locations affords increased security to Hazaras, they still experience societal discrimination and security threats across Pakistan and they face a higher risk of violence than other Shias due to their distinct appearance[21]. Given this information I consider that relocation within Pakistan is not reasonable for the applicant.

    [21] DFAT Country Information Report Pakistan, 20 February 2019

22. For these reasons I accept the applicant has a well-founded fear of persecution in Pakistan for reasons of his Hazara ethnicity and imputed Shia religion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Pakistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.

23. 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.

24. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant lives with and cares for his father in [City 1], who has been granted a temporary protection visa. As set out above, he has a wife in Quetta, Pakistan from whom he has been separated since 2013.

    EXERCISE OF DISCRETION

25. 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  been known to the delegate when the decision to grant the visa was made in 2011, the applicant would still likely have been recognised as a refugee on the basis of his profile as a Pakistani national who is a Hazara Shia from Quetta and Karachi;

    ·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Pakistan 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 Pakistan would breach Australia’s non-refoulement obligations;

    ·The applicant lives with and cares for his elderly father, who has been granted a temporary protection visa on the basis of his Hazara ethnicity and Shia religion. Prior to his visa being cancelled, he was regarded by his Australian employer as a well-liked and hard-working employee. He managed to purchase residential property in Australia and continues to be active in the Australian body building community;

    ·Nothing in the material before me suggests the applicant has breached any Australian laws since arriving in Australia (other than by providing the incorrect information the subject of this review) or that he otherwise poses any threat or risk to the Australian community.

    CONCLUSIONS

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

   DECISION

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

   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.