1814873 (Migration)

[2020] AATA 3304

1814873 (Migration) [2020] AATA 3304 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814873

MEMBER:Kate Millar

DATE:27 May 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 (155) (Five Year Resident Return) visa.

Statement made on 27 May 2020 at 12:56pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection  visa application – family composition – educational history – alleged death of colleagues – consideration of discretion – contribution to Australian community – non-refoulement obligations – current situation for Hazaras in Afghanistan – decision under review set aside

LEGISLATION
Australian Citizenship Act 2007, s 50

Migration Act 1958, ss 46A, 101, 107, 107A, 109, 189, 197C, 198

Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] claims to be a citizen of Afghanistan. He arrived in Australia by boat [in] May 2010, applied for a Protection (Class XA) visa which was granted on 29 March 2011.  On 30 March 2015, he applied for conferral of Australian citizenship.  

2. On 10 October 2016, he was granted a Subclass (155) (Five Year Resident Return), and left Australia on this visa [in] February 2017.

3. [The applicant]’s Subclass 155 visa was cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 15 May 2018 on the basis that [the applicant] had provided incorrect information in his application for the Protection (Class XA) visa. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) to cancel the [the applicant]’s visa under s.109(1) of the Migration Act 1958 (the Act). The issues in this matter are whether a ground to cancel [the applicant]’s visa has been made out, and if so, whether his visa should be cancelled.

5. [The applicant] appeared before the Tribunal on 3 December 2019 to give evidence and present arguments and was represented by his registered migration agent. The Tribunal also received oral evidence from [Ms A], [Mr B], [Mr C], [Ms D], and [Mr E]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

   ALLEGED INCORRECT INFORMATION

7. As there is considerable information included both in the s.107 notice and in the decision record, it is useful to summarise the incorrect information [the applicant] is alleged to have provided in his application for a Protection (Class XA) visa.

8. In summary, the delegate found that [the applicant] has provided incorrect information in his application for a protection visa due to differences between his protection visa application and information provided in his citizenship application and citizenship interview, in particular differences about:

   ·     Whether his brother [Mr F] died as an adult or a child. In his application for a protection visa he declared he had a brother [Mr F] who died in 2008 aged [age] years, whereas during his citizenship interview he said that his brother [Mr F] died as a child.

   ·     His period of residence in Afghanistan and Pakistan.  He listed different periods of residence in Afghanistan and Pakistan in his protection visa application when compared with is citizenship interview.

   ·     The period during which he attended particular schools in Afghanistan and Pakistan.  He listed different periods during which he was at school in Afghanistan and Pakistan in protection visa application to those stated at his citizenship interview.

   ·     The period during which he was employed as a [Occupation 1] in Afghanistan.  He provided different periods in which he was self-employed as an [Occupation 1] in Afghanistan between his protection visa application and his application for citizenship.

9. The delegate found that [the applicant]’s claim that he had to leave Afghanistan because his father had been threatened by the Taliban and did not want [the applicant] to be killed like his brother and friends was incorrect because at the citizenship interview he stated his brother died as a child and was therefore not killed by the Taliban in 2008 as claimed

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Section 109(1) of the Act allows the Minister to cancel a visa if (among other reasons) the visa holder has failed to comply with s.101 of the Act. Section 101 requires a non-citizen to fill in or complete his or her application in such a way that all questions on it are answered, and no incorrect answers are given or provided.

11. The exercise of the cancellation power under s.109 of the Act requires that the Minister has issued 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.  

12. If, as in this case, the alleged non-compliance is in respect to a previous visa application and does not relate to the visa the person currently holds, s.107A allows that the possible non-compliances that can be specified in a notice under s.107 and can be constituted a ground for cancellation under s.109 include non-compliances that occurred at any time, including non-compliance in respect of any previous visa held by the person. 

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

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.

14. In the present matter, the Tribunal is satisfied that due to the differences identified between the protection visa application and the citizenship application and interview that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

15. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

16. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act which is alleged to be providing incorrect information in Form 866, which is the application for a protection visa and an accompanying statutory declaration. 

17. The notice under s.107 states [the applicant] provided the following incorrect information:

    ·     At question 11 of Part B of Form 866 [the applicant] included the details of his brother [Mr F] who he claimed died in 2008 aged [age].  The delegate considered this incorrect because he claimed at his citizenship interview on 4 August 2018 that his brother [Mr F] died as a young child.   

    ·     At question 34 of Part C of the 866 Form where it asked for: "Details of countries of former habitual residence of transit before arrival in Australia" he included information that he moved from Afghanistan to Pakistan in 1997, and then returned to Afghanistan in the period 2005 until 2009.  The delegate considered this information to be incorrect because:

    (a)  At the citizenship interview he claimed to have lived in [Afghanistan] from birth until 2000;

    (b)  He claimed to have travelled to Quetta for the first time with his father in 2000.

    (c)   He further claimed he resided in Quetta with his uncle for two to three years from 2000.

    (d)  At question 17 in Part D of his Form 80 submitted in support of his citizenship application he claimed he lived in Pakistan from January 2006 until January 2010.

    ·     At question 36 of Part C of the 866 Form where it asked: "Give full details of all the education you have undertaken (in any country)" [the applicant] claimed to have attended [School 1] from 1990–1995 and [School 2] in Quetta from 1997–2003.  The delegate considers this incorrect information because:

    (a)  In his citizenship application he stated he attended [School 1] from 1996–2000 and [School 2] from 2000 until 2003.   

    (b)  He claimed in his citizenship interview that he completed Year 11 and commenced Year 12 of education at [School 1] in Afghanistan however did not complete the school year and travelled to Kabul to source alternate education.

    ·     At question 40 in Part C of the 866 Form where it asked: "Give details of all your past employment" [the applicant] provided the following information:

Position/occupation	Employment dates	Name & address of Employer
Assistant shopkeeper	1997 - 2003	[location], Pakistan
[Occupation 1]	2003 - 2005	[School 2], Quetta
[Occupation 1]	2005 - 2009	Self Employed, Afghanistan
Unemployed	From 2009	Pakistan

The delegate considered this information to be incorrect because:

(a)  [The applicant] stated at question 19 in Part F of his Form 80 of his citizenship application that he had been employed as a [Occupation 1] at a private school in Afghanistan from 2000–2009.

(b)  This contradicts the information provided in his protection visa application form that he resided in Pakistan from 1997 until 2005.

·     At question 42 of Part C of the 866 Form where it asked: "Why did you leave that country?" [The applicant] claimed he had to leave Afghanistan because his father had been threatened by the Taliban and didn't want [the applicant] to be killed like his brother and his friends.

The delegate found this incorrect as the visa holder stated during his citizenship interview his brother died as a child and therefore he would not have been killed by the Taliban as the visa holder claimed in his Protection visa application.  

·     At question 43 of Part C of the 866 Form it asks: "What do you fear may happen to you, if you go back to that country?" [The applicant] claimed that if he returned to Afghanistan he would be persecuted by the Taliban and interrogated and killed like his associates had been. The visa holder also claimed his brother had been killed by the Taliban in 2008 and the visa holder was afraid he would also be killed by the Taliban.

The delegated considered this to be incorrect as [the applicant] claimed during his citizenship interview that his brother had died as a child and that if his brother had died as a child he could not have been killed by the Taliban in 2008 when he was [age] years old.

·     At question 65 in part C of the 866 Form — "Declaration" [the applicant] signed a declaration that the information he provided was complete, correct and up to date in every detail.  

The delegate considered this information to be incorrect because of the incorrect answers provided to questions 11 of Part B of the 866 Form and questions 34, 36, 40, 42 & 43 in part C of the 866 Form.

·     The delegate refers to a number of other inconsistencies but does not rely on these inconsistencies as being incorrect information. 

1. [The applicant] concedes he provided incorrect information in his protection visa application. 

2. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice, specifically that he provided incorrect information about the time he lived in Afghanistan, his education, the death of his brother and the response of his father.

   Should the visa be cancelled?

3. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

4. In considering whether to cancel [the applicant]’s visa, the Tribunal must consider prescribed factors, and may also take other matters into account, such as those considered under Departmental policy.

   A.   Prescribed factors

5. In exercising the power to cancel this visa under s.109, 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) of the Act. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994.

   The correct information

6. There are several areas in which the correct information is an issue:

   (a)  Family composition

7. [The applicant] states his parents live in Quetta, Pakistan.  He has two brothers and a sister.  His [brother] and [sister] live in Pakistan.  [The applicant] has a [wife] and three [children] who live in Pakistan.  He states his children are approximately [age], [age] and [age] years of age. 

8. His brother [Mr F] was not killed and is now a permanent resident of Australia. In the statutory declaration that accompanied his visa application, [the applicant] claimed that in 2008 his brother was a driver, and travelled to [a location] to get more passengers and was killed, his body was found the day after he was killed. 

9. In his protection visa application, [the applicant] said he claimed [Mr F]’s wife and children were his dependents. 

   (b)  Education

10. [The applicant] states he grew up in Pakistan and attended [School 1 ] in Quetta, Pakistan from 1990–1995 and [School 2] from 1996–2000.  From 2000–2003, he studied [a course] at [a] College in Quetta.  From 2005–2007, he attended [another] College in Quetta.  He commenced a Master’s Degree at [a] University in 2008 but did not complete this course.

11. [The applicant] said he was able to pursue his study as his family arranged for fraudulent Pakistani identification for him in the name [Alias 1].

12. [The applicant] said he minimised his education in his protection visa application.

    (c)  Time in Afghanistan

13. [The applicant] said he minimised his time in Pakistan.  His visa application states he lived in Afghanistan until 1997, whereas he now states his family left “in the 1980’s”.  [The applicant] was born in [year] or [year].  He maintains he was born in [City 1], Ghazni province, Afghanistan. 

14. His visa application includes a claim he worked in Afghanistan from 2005 until 2009 working as an [Occupation 1].  He now states he went to Afghanistan in the period 2008-2009.

    (d)  Alleged death of colleagues

15. In the course of the hearing, [the applicant] acknowledged that while he said in his protection visa application that the two colleagues he established an English school with in Afghanistan were killed, they were not killed and returned to Pakistan. 

16. The number of incorrect information weighs in favour of cancelling the visa.

    The content of the genuine document (if any)

17. The content of documents is not an issue in this matter. 

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

18. [The applicant] claims he is a citizen of Afghanistan and provided a taskira to the Department.  On being asked how he obtained this taskira, he said his wife and children went to [City 1] Afghanistan with his mother-in-law and younger brother.  They were the witnesses required to obtain his taskira.  He was asked about the need to attend in person to obtain a taskira, and said people knew his mother-in-law who told the authorities his parents were from the area.  [The applicant] said his parents do not have taskira, and said they were made a long time ago and were lost.  He said his brother [Mr F] has a taskira, but he does not know about his sisters as they live separately.  [The applicant] provided the taskiras for his wife and children.

19. The Tribunal accepts [the applicant] is an Afghani citizen of Hazara ethnicity.  At the time he arrived he was Shi’a Muslin.  He claimed to have been targeted by the Taliban as a result of establishing an English language school in Sange-e-Masha.  The statutory declaration accompanying his application states he cannot go back to Afghanistan because he will be killed due to being an [Occupation 1].  He states the Taliban have his picture and can identify him. 

20. A considerable amount of incorrect information was provided to bolster his claims, and this forms part of the reason for the grant of the visa.  However, the Tribunal accepts the central claim made in the application that [the applicant] was an [Occupation 1].  It also accepts he is an Afghan of Hazara ethnicity.  This factor weighs slightly in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

21. [The applicant] said in 2008 he returned to Afghanistan, re-entering Afghanistan with a people smuggler. He travelled with two colleagues, [named], who were two Afghanis also living in Pakistan that he met while teaching English.  They travelled to Sang-e-Masha in Jaghori, Ghazni.  He says he chose Sang-e-Masha as it was safer.

22. He said together they rented a building to establish an English school, which they called [name].  They took books with them from Pakistan, and were told by others that because they were teaching English, if the Taliban caught them, they would be dead.  He said the school was set up at [a location], and they had two levels of a building near the mosque and had 200–300 students of different ages.

23. [The applicant] said he returned to Pakistan two or three times while in Afghanistan to see his family, again with the assistance of a people smuggler. 

24. He said he received threats from the Taliban to close the school because it was Western and taught girls. He said they were scared and wanted to go back to Pakistan.  He stayed for 1–2 days after the threats and then he and his colleagues left separately.  He said the journey was difficult, but that they travelled safely to Pakistan. He said when they crossed the borders people bullied them because of their religion and because they are recognisable due to distinctive eyes and nose.  On crossing the border, he said Pashtuns threw stones at them and abused them, and they had to pay more to cross the border.

25. He said he did not know where his colleagues are now, however they did return to Pakistan.  It was of interest then, that one of the witnesses for [the applicant], [Mr B] said that [the applicant] could not continue with the English school as one of his colleagues was killed, and that he was told this by the community.  As [the applicant] concedes this is incorrect, this does not reflect well on the credit of [Mr B].

26. [The applicant] said that he provided incorrect information on the advice of the people smuggler and that because those who went with the people smuggler had suffered torture and trauma, the people smuggler had a big influence. He said the torture and trauma they suffered was a result of the boat trip [because] they were caught in a storm and came close to drowning. He said that on arriving in Indonesia they were fearful to go to buy food. They were in [Country 1] for 26 days and because they were together formed a connection. They ended up going back to [Country 1] and were sent by boat to Christmas Island. He said he also had trauma counselling due to the period he was in Sang-e-Masha because he was bullied and mistreated. 

27. The Tribunal considered it of considerable significance whether or not [the applicant] was Afghani and Hazaragi as he claimed.   [The applicant] provided a copy of his taskira.  The Tribunal sought verification of this document through the Department, however as this work is outsourced to the International Organisation for Migration, it was advised it would take more than a year to verify this document, and no definitive timeframe could be provided for verification.  It follows that the Tribunal does not have any information that would show that this is not a genuine document, and it supports that [the applicant] is Afghan as claimed. 

1. [The applicant] has travelled to Pakistan since his arrival in Australia and the grant of permanent residency.  He provided a titre de voyage showing entry and exit stamps and a visa for Pakistan.

2. On being asked about his current contact with the Hazaragi community, [the applicant] said he was vice president of the community until his visa was cancelled, and he was involved in events and activities.  [The applicant] provided information that shows he is accepted by the Afghan community.

3. The Tribunal finds [the applicant] is a citizen of Afghanistan, and was living illegally in Pakistan when he came to Australia.  The circumstances for this Afghans in Pakistan are poor, although [the applicant] has been able to access a high level of education.  The Tribunal accepts the circumstances of his travel to Australia made him vulnerable to suggestion from the people smuggler and others on what to put on his visa application. 

4. The Tribunal considers this factor weighs slightly in favour of not cancelling the visa. 

   The present circumstances of the visa holder

5. [The applicant] said after being granted a protection visa in 2011 he has been working. He lived in a shared house with friends but then bought a house in 2014, which he shares with his brother [Mr F], who is now a permanent resident. After his visa was cancelled he moved to NSW with his brother following losses incurred by his brother in a [business].  His brother now does casual work as a [Occupation 2].

6. [The applicant]’s wife and children are in Pakistan, and he is anxious about their welfare.  His witnesses gave evidence that [the applicant] is concerned about the welfare of his family

7. [The applicant] said was assaulted and [injured] when working [in] 2017.  His car was crashed and it was not insured so he is now in financial hardship.  He provided an unsigned copy of his statement to Police and screen shots of a [news] report of the event. He provided an insurance assessment stating it was uneconomical to repair his car, however this also appeared to show a payment made for the car.  He also included a letter from the State Prosecutor advising of the outcome of prosecution of the offender and thanking him for providing a victim impact statement. 

8. [The applicant]’s current circumstances weigh slightly in favour of not cancelling his visa. 

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

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

10. There is no information to show [the applicant] provided incorrect information on subsequent applications or passenger cards.  His circumstances have not changed since his arrival.  He did not provide particulars of incorrect answers as required.  This factor does not weigh for or against cancelling his visa.

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

11. Section 50 of the Australian Citizenship Act 2007 creates offences for knowingly making a misrepresentation or concealing a material circumstance.  [The applicant] continued to maintain parts of the incorrect information in his citizenship application at a citizenship interview.  [The applicant] conceded he subsequently also provided incorrect information on his citizenship application.  

12. Apart from the non-compliance particularised in the notice under s.107 of the Act [the applicant] has conceded that he provided incorrect information when he said that the other teachers from the school in Sang-e-Masha were killed.  This factor weighs in favour of cancelling his visa. 

    The time that has elapsed since the non-compliance

13. [The applicant] provide incorrect information in his visa application lodged March 2011, and there is more than nine years since the non-compliance.  This weighs in favour of not cancelling his visa. 

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

14. There is nothing before the Tribunal to show [the applicant] has been convicted of any other breaches of the law or sanctions imposed.  He provided a police clearance in 2017 which did not disclose any convictions and there is nothing to indicate he has breached the law since.  This weighs slightly in favour of not cancelling his visa. 

    Any contribution made by the holder to the community

15. On arrival in Australia, [the applicant] volunteered to teach English at [the] Immigration Detention Centre, and received a certificate of recognition for his efforts. 

16. From August 2011, he was employed by [Organisation 1] and provided a reference stating he is hardworking, professional, reliable and a great team player.  His reference notes he is engaged with the community on a voluntary basis to teach English on Sundays and organising community events.  He provided references from three managers at the [Organisation 1].  [Mr E] attended the hearing to give oral evidence in support of [the applicant]. 

17. [Mr C] gave evidence to the Tribunal, and said he was a colleague of [the applicant] at the [Organisation 1].  When working at the [Organisation 1], [the applicant] gave support and assistance to clients.  [Mr C] said he gave 100% to his job and was always there for anyone who needed help.  [Mr C] said this work is not a 9–5 job, and that assistance can be required 24 hours. 

18. [The applicant] said he was working two jobs and paying taxes.  He says he was actively involved in [Organisation 2].  [Organisation 2] is stated by its president to be a non-profit organisation incorporated in 2014 to actively engage the Afghan community.  A reference from the President of [Organisation 2] states [the applicant] has volunteered teaching English to asylum seekers, refugees and migrants, and supervised and taught at the Dari language school.  He states he was involved in obtaining a grant [and] has successfully applied for grants for the organisation.  It states he has taken part in Refugee Day.  He assisted in workshops on domestic violence.  At the time of the reference, he was vice president of [Organisation 2].   

19. [The applicant] worked for [Organisation 3] as a bilingual support worker in [their] program. A reference from [a named person] dated 1 February 2018 states he commenced in October 2017 and is a diligent and professional staff member and a valued member of the team.

20. [The applicant] provided various certificates including one that states he completed a Viral Hepatitis B Ambassador Program Training of Community Facilitators, a family violence program, an Incidental Counsellor: responding to trauma behaviours course, Applied Suicide Intervention Skills Training, child protection, mental health first aid and standard first aid, and holds a Diploma of Community Services Work.

21. [The applicant] has made a significant contribution to the Australian community since his arrival in Australia.  This weighs heavily in favour of not cancelling his visa. 

    B.   Other factors

22. 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.

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

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

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

25. This weighs in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

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

27. There are no consequential cancellations that would occur if [the applicant]’s visa is cancelled, and does not weigh for or against cancelling his visa.

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

28. The delegate refers to an International Treaties Obligation Assessment being conducted prior to removal of [the applicant].  As non-refoulement obligations do not apply if he is removed, the conduct of the assessment will not prevent his removal. 

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

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

31. [The applicant] makes claims that relate to non-refoulment, and indirectly through his witness about the rights of the child. 

    Non refoulement

32. [The applicant] claims that if he is returned to Afghanistan he will suffer harm due to his status as a freethinker and an atheist, and that would face a real risk of significant harm arising from need to travel by road in Afghanistan. 

33. At hearing, he said if he returned to Afghanistan he feared harm based on his ethnicity and as a non-religious person.  He said because he has not spent a long time in Afghanistan he has an accent and no network in Afghanistan, and would be at risk of unemployment.  He feared that in getting to [City 1] he would be killed by the Taliban.  He said he has been in Australia for a decade and follows Western culture.   His family and children are in Pakistan.

34. On being asked why he would return to [City 1] if he returned to Afghanistan, [the applicant] said he does not know anyone in Kabul and does not know any other places in Afghanistan apart from the one year he spent in Sange -e- Marche.  He said he would not be able to re-establish himself as he has a Pakistani accent.  On being asked why he could not teach English, as he had in the past he said Jaghori was the safest place but there was no guarantee of his safety.

    Claims to be a freethinker/atheist

35. [The applicant] says he is now a non-religious freethinker/atheist.  Until 2010 he was a practicing Shi’a Muslim but did not agree with the hijab.  He considered converting to another religion, but said his mind was not accepting of another religion.  On being released from immigration detention in 2010, he said he joined a group of freethinkers on Facebook and posted the reasons he left Islam.  He said people would know he was a freethinker because he would not go to the mosque and would not keep quiet in Afghanistan. He said people would doubt his faith as he spent a decade in Australia and he is reluctant to go to the mosque.

36. He said he has never attended a mosque in Australia.  He stated he did not mention his freethinker beliefs in response to the Notice of Intention to Consider Cancellation of his visa because he only told his close circle friends about being a freethinker.  His freethinker/atheist beliefs were first raised in a response on 26 November 2019 to a request for submissions about Australia’s non-refoulment obligations.  He did not provide any copies of Facebook entries. 

37. [Mr B] said when [the applicant] was in Pakistan he had to practice as a Muslim while travelling, but that [the applicant] had decided not to have a religion.  [Mr B] said he has not seen him practicing as a Muslim. 

38. [Ms A] gave evidence that [the applicant] said he does not believe in any religion.  She did not know if he practices a religion. 

39. [Mr C] gave evidence that he believed [the applicant] was a Muslim but is not practicing, and since he had become “Australianised” he does not practice a religion.  His colleague, [Ms D], gave evidence that [the applicant] identifies as an atheist, and that she knew this as he did not use the facilities they had at work for prayer.

40. While [the applicant] only claimed to be a freethinker or atheist immediately prior to the Tribunal hearing and the Tribunal has some reservations about the evidence of [Mr B],  the independent evidence of [Ms A] and [Mr C] is that, at the very least, he is not a practicing Muslim.  [Ms D] said he identifies as an atheist.  Given this evidence, the Tribunal finds [the applicant] would not attend a mosque.  While [the applicant] refers to posting on Facebook, he also states his atheist beliefs are only known to his close circle of friends. He did not provide any of the Facebook posts or information on how this would be widely known. The Tribunal considers he would not promulgate these beliefs but would be identified in the community as a non-believer by not attending the mosque. 

41. Persecution for reasons of religion may include persecution because a person does not have a religion.[1]

    [1] Prashar v MIMA [2001] FCA 57

42. The Department of Foreign Affairs and Trade (DFAT) reports that 99% of Afghans are Muslim.[2]  People of a non-Muslim religion have generally left Afghanistan and those who remain are assessed as facing considerable societal discrimination.[3] Individuals converting from Islam have reported they risk the annulment of their marriages, rejection by their families, and communities, loss of employment and possibly the death penalty, although DFAT did not have additional information in relation to these assertions or in relation to the number of people attempting to convert.[4]  The DFAT report does not states if this also applies to people who are atheist. 

    [2] Department of Foreign Affairs and Trade (27 June 2019) Country Information Report Afghanistan at [3.17]

    [3] ibid

    [4] At [3.17]

43. Generally attacks by anti-Government elements in Afghanistan have been against religious leaders and places of worship.  However, those accused of apostasy are reported to be highly vulnerable to societal discrimination which may take the form of extreme violence.[5]

    [5] At [3.26]

44. The Tribunal considers [the applicant] would be at risk if he was return to Afghanistan on the basis of his atheism.

    Returnee from the West

45. [The applicant] has been in Australia for approximately 10 years.  He states he will return to Afghanistan with an accent that is Pakistani.  [The applicant] is an [Occupation 1] and as such will also be associated with the West or with the Government.

46. DFAT assesses that most returnees take steps to conceal their association with the country from which they have returned and keep a low profile.  DFAT assesses people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile.[6]

    [6] At [5.43]

47. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan states there are reports that returnees from the West have been “threatened, tortured or killed by anti-Government elements on the grounds that they were perceived to have adopted values associated with these countries, or they had become “foreigners” or that they were spies for or supported a Western country. Returnees are reportedly often treated with suspicion by the local community as well as by State officials, leading to discrimination and isolation.”[7]

    [7] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018, available at: p.46-47

48. The Norwegian Refugee Council and Samuel Hall found that seven out of ten Afghan refugees who return home are forced to flee again due to violence, with many of them ultimately becoming internally displaced.^127[8] The circumstances are exacerbated for Afghans born in Iran or Pakistan and/or who lived there for a long period of time, who are subject to the compounding factors of lack of shelter and work, and support networks to seek shelter and work; lack of customisation to Afghan norms and expectations; and the development of strong ‘foreign’ accents.[9]

    [8] ‘Kabul’s tent dwellers struggle to survive’, Norwegian Refugee Council, 22 January 2019, 20190123111605

    [9] Country Guidance: Afghanistan’, EASO, June 2019, p. 75, 20191125104658

49. The Tribunal considers that being a returnee from the West with a Pakistani accent in combination with [the applicant]’s atheism and his profile as an [Occupation 1] would mean that he would face a real chance of serious harm if he were to be returned to Afghanistan on the basis of his religion and as a member of a particular social group. 

50. As a result, the Tribunal considers removal of [the applicant] from Australia would be in breach of its international obligations relating to non-refoulment. This weighs heavily in favour of not cancelling his visa.

    Bests interests of the child

51. [Mr B] gave evidence that [the applicant] has a good relationship with [Mr B]’s sons who have been upset because [the applicant] has been unable to contact them.  He said his son wants his ‘uncle’ to have a fair go. 

52. It was not apparent to the Tribunal how [the applicant] has been unable to contact others since his visa was cancelled.  He is not in detention, and the Tribunal considers he could maintain a relationship with [Mr B]’s sons regardless of his location.  The Tribunal notes that this is not a parental role, and does not consider this weighs for or against cancelling his visa.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

53. [The applicant]’s wife and children are in Quetta, Pakistan.  He has sought to bring them to Australia.  Shi’a Hazaras in Quetta are targeted by Lashkar-e-Jhangvi (LeJ), a Sunni paramilitary terrorist group. ISKP reportedly supported LeJ as a proxy in Afghanistan to target Shia.[10]

    [10] Department of Foreign Affairs and Trade (20 February 2019) Country Information Report Pakistan [2.89]

54. [The applicant]’s wife and children remain at risk in Quetta where they live.  This weighs in favour of not cancelling his visa.

    CONCLUSION

55. [The applicant] is a highly educated man. He has skills that mean he could gain employment if he were removed from Australia.

100.   However, the Tribunal accepts he is Hazara and from Afghanistan. His family are in Pakistan. The current situation for Hazaras in Afghanistan is poor, and those perceived as supporters of the West or Westernised are targeted. Removing [the applicant] from Australia may be a breach of Australia‘s international obligations. He would face difficulty travelling to an area in which he could live and access services. [The applicant] has been in Australia for a long time and has made significant contributions to the community. He suffered a serious assault in Australia.

101.   As a result, while the Tribunal has decided that there was non-compliance in the way specified in the notice under s.107, having regard to all the relevant circumstances the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

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

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

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

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

(A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

(f)      requiring the holder:

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

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

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

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

(b)     otherwise—14 days.

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

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

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

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

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

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a)  the correct information;

(b)  the content of the genuine document (if any);

(c)  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; 

(d)  the circumstances in which the non-compliance occurred;

(e)  the present circumstances of the visa holder;

(f)  the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g)  any other instances of non-compliance by the visa holder known to the Minister;

(h)  the time that has elapsed since the non-compliance;

(j)  any breaches of the law since the non-compliance and the seriousness of those breaches;

(k)  any contribution made by the holder to the community.

Note:    Under s109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.