1813689 (Refugee)

[2020] AATA 348

1813689 (Refugee) [2020] AATA 348 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813689

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Christopher Smolicz

DATE:31 January 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 31 January 2020 at 3:15pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – ground for cancellation – incorrect information in visa application – personal details – previously known under a different identity – right of residency – previous application for protection – identity card issued by a third country – consideration of discretion – dissociation with earlier failed visa application to Australia – lost right to temporary residence in third country – incorrect information not directly relevant to grant of visa – provided incorrect information to the Department in the past – time elapsed since non-compliance – non-refoulement obligations – Hazara Shia from Afghanistan – provision of false information underpinned by genuine fear of persecution – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 107, 109

Migration Regulations 1994 (Cth), r 2.41

CASES

DMH16 v MIBP [2017] FCA 448

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 male from Afghanistan who arrived in Australia [in] March 2010 and identified himself as an Afghan national of Shia religion and Hazara ethnicity born [Date 1].

3. On 7 May 2018 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that she considered the applicant had given incorrect and incomplete information in his protection visa application about his name, date of birth, place of birth, right of residency and previous application for protection.

   THE REVIEW PROCEEDING

4. The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s brother [Mr A].

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

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

   Non-disclosure certificate

7. As a preliminary issued, the Tribunal has before it the Departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal under s.438 of the Act.

8. Specifically a certificate dated 15 May 2018 states that the information subject to the certificate relates to internal working documents that contain information about third parties, the disclosure of which may result in a breach of privacy. 

9. The documents covered by the certificate evidence investigations undertaken by the Department in relation to the applicant and other persons. The Tribunal notes however that the material subject of the certificated has been disclosed to the applicant in the decision cancelling approval of his Australian Citizenship.

10. The Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid. The Tribunal discussed the gist of the information with the applicant at the hearing.

11. The Tribunal wrote a letter to the applicant and provided him with a copy of the certificate seeking his comments. The applicant did not make any comments in response to the Tribunal letter.

    LEGISLATIVE FRAMEWORK

12. 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.

13. 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.

    Did the notice comply with the requirements in s.107? 

14. The s.107 notice is dated 15 December 2017 and was sent to the applicant by email.

15. The notice sets out in detail the information given by the applicant during his Refugee Status Assessment (RSA) and his Protection visa application (Form 80 and Form 866C) that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. The Tribunal is satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

16. In written submissions dated 7 January 2020 the applicant’s representative confirmed that the validity of the notice was not in issue.

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

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

18. 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.

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

20. On 25 May 2010 the applicant took part in a RSA in which he provided the following information:

    ·     His name is [the applicant] and he is [Age 1] years old

    ·     His parent’s names are [Mr B] and [Ms C]

    ·     He was born in Uruzgan Province

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

    ·     His eldest brother, [Mr A] was abducted by the Pashtuns and is missing

    ·     Before he came to Australia he was living in [Country 1] and before that he was living illegally in [Country 2]

    ·     His family went to [Country 2] illegally and have no official documents in [Country 2]

    ·     He was deported from [Country 2] in late 2009

    ·     He has no family left in Afghanistan

    ·     He provided details of persecution suffered by his family in Afghanistan and the reasons why he is seeking protection in Australia.

21. The applicant also provided a form 80 ‘Personal particulars for character assessment’ where he outlined the details of his family composition.

22. On 25 October 2010 the applicant lodged an application for a protection visa and submitted a form 866C in which he provided the following information:

    ·     His full name was [the applicant] (Q.1)

    ·     He has not been known by any other names (Q.4).

    ·     His date of birth is [Date 1] (Q.7)

    ·     His place of birth [District 1], Uruzgan, Afghanistan (Q.8)

    ·     He does not have a right to enter or reside (temporarily or permanently) in any country other than his country of nationality (Q.22)

    ·     He is seeking protection so that he does not have to return to Afghanistan (Q.41)

    ·     He has not ever applied for refugee status in any country other than Australia (Q.57)

23. Based on the information provided by the applicant, he was granted a protection visa on 27 October 2010.

24. On 9 January 2015 the applicant made an application for Australian citizenship and as part of the assessment the applicant was interviewed on 19 August 2016 and stated:

    ·     He was actually born in [Year 2] and had provided an incorrect date of birth in his Protection visa application because he wanted to sponsor his parents to Australia and believed it would be more advantageous if he was younger.

    ·     He stated that his ‘missing’ brother [Mr A], was not missing as claimed in his protection visa application and resides in Australia and attempted to sponsor him to Australia on two previous occasions in 2007 and 2009 on [a family] Visa.

25. In his application for the [family] Visa lodged [in] August 2007 the applicant declared that his name was ‘[Alias 1]’ and that he was born on [Date 2]. He also provided details of his family composition which was different from what he provided in support of his RSA. He claimed that his parents and two younger siblings disappeared in [Country 2].

26. The applicant provided a scanned copy of his Afghan passport issued on [in] 2007 at the Afghan Embassy, [Country 2]. The passport stated that he name was [Alias 1], son of [Mr D], born on [Date 2] in Kabul.

27. The [family] visa application was refused [in] November 2007 because the delegate was not satisfied that his parents were missing. The delegate noted that the applicant was issued with an Afghan passport in [Country 2] and for this to occur he would have to provide evidence that he was legally residing in [Country 2]. This decision was affirmed by the Migration Review Tribunal (MRT) [in] August 2008. The MRT did not accept the claim that the applicant’s parents are of unknown whereabouts, dead or permanently incapacitated.

28. The applicant lodged a second [family] visa application on 19 November 2009. Notes from the case detail that the applicant advised that his parents were presumed to have been killed by the Taliban after they were departed from [Country 2]. The application was refused on 14 December 2011.

29. The applicant claimed during his citizenship assessment interview that he had never been issued with any identity documents in Afghanistan.

30. During the same interview the applicant stated that he held [an identity] card ([Country 2] identity document) in the name [Alias 1] and that his father held an [identity] card in the name [Alias 2].

31. The notice states that [identity] cards are granted by the [Country 2] government to people that are considered legally registered as refugees.

32. Based on the above information the delegate concluded that the applicant provided incomplete and incorrect information in response to question 1, 7, 8, 22 and 57 and he did not provide a response to question 4 of his protection visa application.

33. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.

34. The applicant responded to the s.107 notice on 16 January 2018. The applicant has admitted that he has provided incorrect answers to questions 1, 7, 8, 57 and failed to provide information in response to question 4. The applicant maintains however that his answer to question 22 (right of residency) is correct.

    Conclusions on compliance

35. Having regard to the applicant’s admissions that he gave incorrect and incomplete information in his protection visa application about his name, date of birth, that he was not known by any other alias and that he had not ever applied for refugee status in any country, the Tribunal finds that there was non-compliance with s.101(a) and s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

36. 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).

37. 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. Briefly, they are:

38. The correct information: The applicant conceded he was born on [Date 2] (not [Date 1]) and that his real name is [Alias 1]. It was submitted that his father obtained an official registration letter from the [Country 2] authorities issued to another Afghan citizen called [Alias 2]. The letter was issued to [Alias 2] inviting him to apply for [an identity] card. This person no longer had use for the letter because he was departing [Country 2] and the applicant’s father purchased the letter so that he could obtain an [identity] card in the false name. It was submitted that this was a common practice among Afghan refugees in [Country 2]. He claims the [Country 2] authorities gave his father the name of ‘[Alias 2]’ and he was forced to use the name or face deportation to Afghanistan. The children therefore had to acquire the family name ‘[Surname 1 (which is the surname of Alias 2)]’. He therefore used the name [the applicant] as it has been used in [Country 2] and he did not have any documents to identify him as [Alias 1]. In support of this evidence the applicant’s father provided a statutory declaration and a translated copy of his [Country 2 identity card] which lists his name as ‘[Alias 2]’, citizen of Afghanistan. He confirmed that all of his family have fled [Country 2] and are residing in [Country 3] where they have been issued with UNHCR cards. He provided copies of his siblings and parents’ UNHCR cards to the Tribunal. The Tribunal notes that his father’s name is listed on the card as ‘[Mr D]’.

39. The applicant submitted that he was an ‘impressionable young man’ who listened to the ‘erroneous advice of third parties’ when he was in immigration detention. He feared for the safety of himself and his family if he was sent back to Afghanistan as he did not have the legal right to reside in any other country. He provided an incorrect year of birth to make it easier to sponsor his parents. The applicant submits that he used the name [the applicant] ‘due to advice of others in the detention centre’. He claims that [the applicant] is the name recorded on his [identity] card. The applicant also said he lost his [identity] card and could not produce it to the authorities. The applicant had no identity documents in the name [the applicant].

40. The applicant maintains that his correct place of birth is [District 1], Uruzgan, not Kabul. He has always declared that his place of birth is Uruzgan and the only time Kabul is stated as his place of birth is on his Afghan passport which was issued by the Afghan Embassy in [Country 2] in 2007. He was [age] years old at the time and paid someone to get his passport on his behalf. He had no personal involvement in obtaining his passport. He maintains that the passport incorrectly states he was born in Kabul.

41. The Tribunal has some concerns about the applicant’s explanation. The Tribunal finds the applicant’s explanation that people in the detention centre told him to use the name [the applicant] lacking in credibility. The Tribunal notes that the applicant was issued with an Afghani passport in the name of [Alias 1]. A copy of the passport was provided to the Department with his [family] visa application. The Tribunal therefore finds that the applicant did have an identity document issued in his real name. The Tribunal also finds that when the applicant arrived in Australia by boat in 2010 his brother was living in Australia and was able to give him advice and verify his identification. The Tribunal finds that the applicant did not use his real name, date of birth or disclose that his brother ([Mr A]) was residing in Australia when he applied for the protection visa because he did not want to be associated with this earlier failed application for the [family] visa where he provided false information about the death of his parents. The Tribunal finds that the applicant provided incorrect information in his protection visa application so that he could sponsor his parents to Australia in the future.

42. The applicant claims that he does not have a legal right to reside in [Country 2] and that his answer to question 22 (Form 886C) is correct. He held an [identity] card to retain temporary residence in [Country 2] under the name [the applicant], however this was not his legal name and therefore he did not have a right to legally reside in [Country 2].

43. The applicant claims that his father was the first person in his family to register for an [identity] card. He and his family were subsequently issued with the cards. He claims the [Country 2] police confiscated his card when he was deported from [Country 2] in 2009. Once the police took his car he could not get it back and lost his right to temporary residence.

44. The Tribunal was referred to the country information published by Human Rights Watch (HRW) in 2013. The HRW report confirms that [Country 2] is failing to provide newly arrived asylum seekers access to protection because a functioning asylum system does not exist [Country 2] and the authorities are subjecting many Afghans to a range of rights abuses including arbitrary arrests and detentions. The report confirms that it has become increasingly difficult for registered Afghan refugees in [Country 2] to retain their refugee status. This has been particularly true since the introduction of periodic registration exercises in 2000 and the establishment of the [specified] registration system in 2003. The report states that the vast majority of Afghans arriving in [Country 2] since the registration exercise in 2003 have not been allowed to register for an [identity] card. It is reported that in practice, [identity] card-holders face an increasingly complex and bureaucratic process with the [Country 2] authorities to retain their status, in which the smallest mistake can result in permanent loss of refugee status. It is reported that [identity] card holders are regularly required to renew their cards. Since the original registration of several hundred thousand Afghans in 2003, there have been nine re-registration exercises with a different colour card provided each time. The cards, which refugees must pay for, are generally valid for one year. When a card expires the card holder is considered to be unlawfully present in [Country 2] and may be deported. If a card holder fails to register for a new card as soon as the old one has expired, he or she become undocumented and is subject to deportation. It is reported that another problem is that Afghans being deported from [Country 2] are given no opportunity to challenge their deportation, such as by explaining that they previously had refugee status but lost it through no fault of their own or that they were prevented from requesting asylum or protection.[1]

    [1] Human Rights Watch, [document], available at: [source deleted]

45. The Tribunal has had regard to the report and finds that it is consistent with the applicant’s explanation about the use of [identity] cards by Afghani refugees in [Country 2]. The Tribunal accepts that upon being deported from [Country 2] in 2009 and having his [identity] card confiscated the applicant lost his temporary right to reside in [Country 2].

46. 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).

47. 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 Tribunal finds that the failure to disclose his real name, date of birth and family composition was not directly relevant to the grant of the protection visa. The Tribunal finds that the applicant was granted a protection visa because he is Hazara, Shia from Afghanistan. As detailed above the Tribunal has had regard to the HRW report and accepts that upon being deported from [Country 2] in 2009 and having his [identity] card confiscated the applicant lost his temporary right to reside in [Country 2].

1. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his protection visa application lodged on 25 October 2010.

2. The present circumstances of the visa holder: The applicant is single and has no dependent children. Since arriving in Australia he has entered into an arranged relationship with a woman in [Country 2]. He said that he was engaged although he has not personally met his fiancé. Before his visa was cancelled he was working part time and studying a [qualification] at [a] University. He had to cease studying when his visa was cancelled. He has no health issues. He is contributing money to help support is family in [Country 3].

3. 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 Tribunal notes that the applicant did respond to the s.107 notice and acknowledged that he had provided incorrect information as detailed above. The Tribunal finds however that not all of his responses have been forthcoming. As detailed above the Tribunal does not accept the applicant’s explanation that he made false statements because he listened to the erroneous advice of third parties when he was in immigration detention. The Tribunal finds that applicant’s brother was a resident of Australia and the applicant was in a unique position to obtain advice and assistance from his brother who had successfully applied for protection and could verify his identity. The Tribunal also notes that his brother had previously attempted to sponsor the applicant to Australia under the [family] visa with the assistance of a migration agent. The Tribunal therefore does not accept the applicant’s explanation that he provided incorrect information because he listened to the erroneous advice of third parties when he was in immigration detention. The Tribunal also finds it concerning that the applicant did not concede at the hearing that he was motivated to use a false name, date of birth and not disclose that his brother was living in Australia because he had previously provided false information in is [family] visa application and did not want to be associated with this past application.

4. Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal finds that the applicant has provided incorrect information to the Department in the past. As detailed above in 2007 and 2009 the applicant made an application for an [family] visa, he first declared his parents were missing and in a latter application declared they were deceased. The [family] visa is for relatives of Australian citizens/permanent residents who are under 18 years old, unmarried and whose parents are either dead or otherwise unable to care for them. The Tribunal finds that the information provided in the [family] visa applications was incorrect. The applicant has now declared his parents are alive and residing in [Country 3]. In assessing the weight to be placed on the false information the Tribunal has taken into consideration the applicant was only [age] years old at the time the first application was lodged.

5. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in October 2010 and approximately 10 years have elapsed since then. The applicant was [age] years old at the time. The Tribunal finds that the applicant’s life has changed significantly since he has arrived in Australia. He has commenced university studies and has integrated into the Australian community and is now fluent in the English language. The Tribunal has given this consideration some weight in the visa holder’s favour.

6. 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.

7. Any contribution made by the holder to the community: The applicant presented as an articulate and intelligent young man who is actively involved in the Australian Afghan community. He provided evidence that he has been involved with [Organisation 1], [Organisation 2] and [Organisation 3]. The applicant has also provided evidence that he previously volunteered for [Organisation 4] for approximately three years in [a specified program]. He said he was motivated to study a [qualification] so that could gain the knowledge to further assist members of Australian Afghan community. He explained to the Tribunal that as a new arrival he experienced difficulty in working out the study options available to him and he now wants to use his own person experience to help other new arrivals to Australia.

   Other factors to be considered

8. While these 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.

9. 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) of the Act 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[2].

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

   [2] DMH16 v MIBP [2017] FCA 448

10. 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.

11. 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.

12. 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.

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

    Country of nationality

14. The applicant has at all times claimed to be an Afghan national who resided in [Country 2] before he arrived in Australia. The Department has accepted him to be an Afghan national and assessed his claims as a Hazara Shia from Afghanistan. The Tribunal finds he is a citizen of Afghanistan and has assessed his claims against that country.

    Well-founded fear of persecution

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

16. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has 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

17. The Tribunal finds that the applicant is [age] years old. He was born in [District 1], Uruzgan, Afghanistan. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion. The applicant has participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and has the distinct visual features shared by Hazaras.

18. The Tribunal has assessed the applicant’s claims against his home province of Uruzgan which is located in the central part of Afghanistan.

19. The applicant was a young child when his family left Afghanistan traveling to [Country 1] in 1997. In 2000 they relocated to [Country 2]. The applicant briefly returned to Afghanistan in 2009 when he was deported from [Country 2] and then travelled to Australia. The Tribunal finds that he has no close family members remaining in Afghanistan. His brother is in Australia and the remainder of his family are now all living in [Country 3] and are registered with the UNHCR.

    The applicant’s fear of harm in Afghanistan

20. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. For the reasons set out below, and having regard to the most recent DFAT report dated 27 June 2019 as well as other sources discussed below, the Tribunal accepts that to be the case.

    The general security situation in Afghanistan

21. The United Nations Assistance Mission in Afghanistan (UNAMA) has a bleak appraisal of the current security situation in Afghanistan:

    The UN Assistance Mission in Afghanistan (UNAMA) is gravely concerned about the unprecedented levels of violence harming civilians during the third quarter of 2019. From 1 July to 30 September 2019, UNAMA documented the highest number of civilian casualties that it has recorded in a single quarter since it began systematic documentation in 2009. While in the first half year of 2019 UNAMA documented a decrease in civilian casualties in comparison to previous year, in July, August and September extreme levels of violence brought the civilian casualty levels back to the unacceptable high levels of previous years. Furthermore, in the month of July, UNAMA documented the highest number of civilian casualties that the Mission has recorded in a single month. For the sixth year in a row, UNAMA has recorded more than 8,000 civilian casualties in the first nine months of the year, underlining that Afghans have been exposed to extreme levels of violence for many years, despite the statements of parties to the conflict to prevent and mitigate harm to civilians. [3]

    [3] UNAMA Quarterly Report on the Protection of Civilians in Armed Conflict 17 October 2019 >

    The Tribunal finds that the UNAMA report echoes Professor Maley warning that it is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the situation in late 2019 and beyond.[4]

    [4] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.

22. The Tribunal finds that DFAT’s report also indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province (ISKP) 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.[5]

    [5] Ibid at 2.52 – 2.59

23. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[6].

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

24. 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[7].

    [7] DFAT Country Information Report Afghanistan 27 June 2019 at 2.70 – 2.74

25. In relation to attacks on Hazaras, the European Asylum Support Office (EASO) states: 

    Attacks by insurgent groups, in particular by ISKP, have significantly affected the Hazara population in 2018. Attacks by ISKP targeted places where Hazara/Shia gather, such as religious commemorations or political demonstrations, and sites in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat. Such attacks could be related to their religion (see the profile on Shia). Among other reasons, the ISKP also reportedly targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria.[8]

    [8] European Asylum Support Office Country Guidance Afghanistan June 2019 p.69

26. The EASO report provides the following information on the current security situation in the Uruzgan:

    Throughout 2018, Taliban militants were active in the province. They expanded their operations to areas which until then had been spared, like the district of Khas Uruzgan. Sources also reported activity of ISKP in the province, particularly in Chora district.

    Four districts of Uruzgan province are categorised by LWJ as contested and one is categorised as under Taliban control.

    According to GIM, 220 incidents related to insurgents were reported in the period of January 2018 – February 2019 (average of 3.7 incidents per week).

    Examples of incidents include intense battles between local Hazara militia and the Taliban. The fighting, accounting for many casualties and internally displaced people, mostly among the Hazara civilian population, went on almost one month until late November 2018. There are also reports of travellers being kidnapped and later killed by the Taliban. Ongoing military operations in order to clear the Kandahar-Uruzgan highway from Taliban insurgents were reported in February 2019.[9]

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

    [9] European Asylum Support Office Country Guidance Afghanistan June 2019  p.117

27. Professor Maley reports that when the security situation in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In particular he states ‘there is a long history of persecution of and discrimination against members of the Hazara Shia minorities in Afghanistan’. He states that given the fluidity, ‘it is a serious mistake to conclude that Afghanistan is safe for Hazaras.’[10]

    [10] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.

28. DFAT reports 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’[11].

    [11]DFAT Country Information Report Afghanistan 27 June 2019 at 3.7 – 3.16

29. 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.[12]

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

30. In relation to the risk profile for ‘Shia’, the EASO reports that the ‘Shia community is disproportionately represented among civilian casualties in Kabul and Herat. There are reports of attacks against the Shia, especially on places where Shia gather, such as mosques, and during religious commemorations and political demonstrations. In 2018, the majority of ISKP attacks on religious sites reportedly targeted Shia communities.[13]

    [13] European Asylum Support Office Country Guidance Afghanistan June 2019 p.70

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

    [14] Ibid at 3.29 – 3.35

32. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul[15].

    [15] Ibid at 3.29 – 3.35

33. Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack[16].

    [16] type="1">

34. In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, 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, closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[17]

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

35. In view of the applicant’s personal profile and the evidence outlined in the country information cited above indicating the strong and growing presence of the Taliban in much of Afghanistan, the potential for further sectarian violence, the increased presence of ISIS and the ongoing ethnic and sectarian tensions and discrimination against Hazaras and Shias noted by Professor Maley, the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Afghanistan. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.

36. For the reasons set out above, the Tribunal accepts 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 Afghanistan, now or in the reasonably foreseeable future.

37. The Tribunal finds that the applicant 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.

38. 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.

39. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): In conclusion, the Tribunal is of the view that there is no justifiable excuse for the applicant providing false information in his protection visa application. The Tribunal does however accept that there are credible explanations which mitigate the applicant’s conduct. The Tribunal accepts that his family fled war-torn Afghanistan in the late 1990’s when the applicant was a young child. The Tribunal accepts that the applicant has been living as refugee in [Country 1] and [Country 2] since this time. The Tribunal accepts that the applicant comes from an ethnic and religious minority group that has historically faced persecution. The Tribunal accepts that the applicant’s actions in providing false information were underpinned by a genuine fear of being sent back to Afghanistan. The Tribunal also notes that family is the single most important aspect of life in Afghanistan. Afghan culture is very collectivistic and people generally put their family’s interests before their own. This means that family responsibilities tend to hold a greater importance than personal needs.[18] The Tribunal accepts that as a young Afghan male arriving in Australia by boat the applicant would have experienced a level of cultural pressure and family obligation to assist his parents’ future travel to Australia. For example the Tribunal notes that in January 2011, soon after he was granted his protection visa, the applicant unsuccessfully applied to sponsor his parents to Australia. The Tribunal finds that if the applicant had disclosed his true identity this may have exposed the false information he provided in his [family] visa application and prevented him from sponsoring his parents to Australia.

    [18] >

    The Tribunal also notes that the essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[19] Professor Maley cautions that returnees to Afghanistan face difficulties reintegrating even where they have associates in the region to which they return. He states that Hazaras who returned from abroad with no social ties would be in an even more perilous position. As detailed above, the applicant left Afghanistan as a young child. He has no remaining family in Afghanistan. In the circumstances the Tribunal finds that he would face a very severe degree of hardship if his visa was cancelled and he was forced to return to Afghanistan.

    [19] ICG 2009, UNHCR 2010, Still Human Still Here 2012

    EXERCISE OF DISCRETION

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

    DECISION

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

    Christopher Smolicz
    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.