1837029 (Refugee)
[2021] AATA 5026
•30 November 2021
1837029 (Refugee) [2021] AATA 5026 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1837029
COUNTRY OF REFERENCE: Pakistan
MEMBER:James Lambie
DATE:30 November 2021
PLACE OF DECISION: Brisbane
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 30 November 2021 at 1:48pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information in the visa application – nationality – Pakistan citizenship – identity and age details – bogus documents – race – Hazara – false identity documents – Pakistan citizenship – false identity consistent with the information provided by the applicant’s brother – real chance of serious harm in Pakistan – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 2CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with sections 101(a) and 101(b) of the Act in respect of answers he had provided in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 February 2021 to give evidence and present arguments. The hearing was, by consent, jointly held with his son and nephew’s cases, as his son’s visa was cancelled under s.140(2) of the Act on the basis of similar information, and his nephew’s visa was automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the applicant’s visa. The Tribunal also received oral evidence from the applicant’s son-in-law, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the applicant has not complied with one or more of the relevant provisions.
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?
On 15 August 2018, the delegate issued a notice under s.107 of the Act advising that he considers that the applicant did not comply with sections 101(a) and (b) of the Act, that is, the Notice of Intention to Consider Cancellation under s.109 of the Act (NOICC). The non-compliance was identified and particularised in the s.107 notice in the following respects:
Evidence of non-compliance:
[In] March 2010, you arrived at Christmas Island with your nephew, [Nephew A], as an undocumented irregular maritime arrival (IMA). On 04 April 2010, the Department conducted an entry interview with you at Christmas Island. You made claims you were a Hazara from Afghanistan who was living in Pakistan illegally and did not have effective protection in a safe third country.
The Department initiated a Refugee Status Assessment (RSA) in order to consider your protection claims. On 17 June 2010, the RSA delegate was not satisfied that you were someone to whom Australia owes protection.
As a result of the RSA negative assessment, on 08 July 2010, you lodged a request for an Independent Merits Review (IMR). On 21 September 2010 the IMR delegate recommended that you were someone to whom Australia owes protection obligations.
Following the IMR positive assessment, on 11 March 2013, you lodged a Protection (subclass 866) visa application which included your nephew [Nephew A] as a dependant applicant. Your Protection visa was granted on 25 March 2013.
Evidence held by the Department:
On 11 March 2013 you lodged a Form 866 - Application for a Protection (Class XA) visa where you provided the following information, as well as an accompanying statement of your protection claims dated 09 June 2010.
Question 1 of Part C of Form 866, which stated: 'What is your full name?' you answered: '[Alias A]'.
Question 4 of Part C of Form 866, which stated: 'What other names have you been known by?' you left the space blank.
Question 19 of Part C of Form 866, which stated: 'Your citizenship at birth' you answered: 'Afghanistan'.
Question 20 of Part C of Form 866, which stated: 'Your current citizenship (if different at birth)' you answered: 'Afghanistan'.
Question 21 of Part C of Form 866, which stated: 'Do you hold any other citizenship or are you a national of any other country? ' You answered: 'No'.
Question 41 of Part C of Form 866, which stated: 'I am seeking protection in Australia so that I do not have to return to (Give name of country of countries) ' you answered: 'Afghanistan'.
Question 42 of Part C of Form 866, which stated: ' Why did you leave that country?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:
Around 1993 I had a dispute with my family.
My grandfather had 2 wives and we all lived close by.
Before the Taliban came into power there were 7 political groups within my village. The second wife (not my grandmother) her children belonged to these political groups. The political groups were called Sepah, Naser, Shara ltefq, Nehezad and Harakat lslami.
These uncles wanted us to leave the village or for us to join the political groups. If we did not join then we were threatened by them to give our animal stock and land to them.
These uncles were armed and threatened to kill us if we did not do what they asked. I had 2 uncles from my grandfather's first wife and my mother.
Around end of 1997 the eldest uncle was tied up to a tree and was beaten to death by my grandfather's second wife's children who were involved in one of these political groups.
The youngest uncle was fortunately living in Iran at this time so he escaped persecution.
Around 2 to 3 months later one night we fled the village to Pakistan. We waited 2 to 3 months because we needed to bury my uncle and deal with the mourning.
Around 10 to 15 days I left my family in Pakistan and went by myself to Iran. I Went to Iran to try to find work.
After 3 years later my brother [Brother A] left Pakistan to migrate to Australia. He wanted to sponsor my family to migrate to Australia but was told that he could not do this.
In around February 2008 my brother in law ([Nephew A’s] father) died of cancer and I had to care for my sister and her [children].
The current situation in Pakistan was increasingly getting difficult as the Pakistan authorities keep threatening me and my life was in danger.
I worked as [an occupation 1] in a shop in Pakistan and before I fled Pakistan the 2 shop owners nearby were killed because they were Hazaras.
Around March 2009 I spoke to a smuggler who was a customer my shop. I asked him if he could assist my family and I to flee Pakistan. I gave him US$14,000 to help us.
I organised my family to flee Pakistan and I stayed back to be the provider for my sister's family.
Around August 2009 my family were in Jakarta and were found by the Indonesian Authorities who then organised to deport them back to Afghanistan. My [Brother A] who lives in Australia flew to Jakarta to assist with the deportation.
I immediately organised a smuggler (driver) to assist my family to cross the border and come back to Pakistan where I was living.
As soon as my family were deported and came back to Pakistan I decided to flee with my nephew as it was becoming too dangerous for him and I to stay in Pakistan.
I witness so many deaths and injuries in Pakistan of Hazaras. I took the injured to the hospital and assisted anyway I could.
I witness a shop owner close to me was killed by a Taliban in broad daylight in front of his customers because he is a Hazara.
I took my nephew [Nephew A variant], as he was the oldest male in the family.
The areas surrounding my village in Afghanistan are controlled by the Taliban. We have heard incidences of young people being killed and kidnapped by the Taliban therefore it is not safe for my young family to live in Afghanistan.
My nephew [Nephew A variant’s] uncles are also involved in these political groups and are active in Afghanistan. These uncles are prepared to kill [my nephew] and any other family members should we return to Afghanistan.
Question 43 of Part C of Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:
I fear going back because of these political groups that are still active in Afghanistan. My uncles are still in their political groups and if I am found they will kill me. [Nephew A’s] uncles are also in high positions within these political groups and will kill him, his family and also mine.
Question 44 of Part C of Form 866, which stated: 'Who do you think may harm/mistreat you if you go back?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:
These political groups are all linked together, my uncles know me and if they find out that I am back in Afghanistan they will kill me before they ask any questions. This also applied to [Nephew A] and his family.
Question 45 of Part C of Form 866, which stated: 'Why do you think this will happen to you if you go back?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:
I fear going back because of these political groups that are still active in Afghanistan. My uncles are still in their political groups and if I am found they will kill me.
We cannot relocate anywhere in Afghanistan, especially in Jaghori. Even though Jaghori has a high population of Hazaras there are still Pushtuns there who kill Hazaras.
Question 46 of Part C of Form 866, which stated: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered: 'Please refer to my statutory declaration '. In the statement of your protection claims dated 09 June 2010 you stated:
The government cannot protect themselves how can they protect the people in Afghanistan? Recently in [name] which is a village close to ours was attacked by Taliban. There were more than 100 people killed and thousands left homeless. The Afghan government is not strong and there is no future for Afghans as it is not safe.
On 3 August 2010, as part of your Protection visa application interview, you provided a copy of your Afghan birth document, known as a taskera, along with an English translation. You also provided a copy of your nephew ' s taskera with translation. The issue date of your taskera is [in] July 2010, approximately four months after you arrived in Australia. Country information for the time period in which this taskera was issued states that taskeras were only issued locally inside Afghanistan and that it can only be issued to the applicant.
[In] September 2016, you lodged an application for Australian citizenship. You were interviewed by an officer of the Department's Complex Identity Advice section on 31 August 2017 for the purpose of an identity assessment. When it was put to you in the identity interview that your taskera could not have been genuinely issued to you in Afghanistan, you stated you had contacted a friend while he had been in immigration detention and asked for his brother to arrange taskeras for you and your nephew. You advised that you did not know exactly how or where the taskera had been obtained. As you confirmed that the taskera had not been issued to you directly in Afghanistan, it is likely that it is non-genuine.
As part of the identity assessment you also provided a copy of your marriage certificate as evidence of the relationship between you and your claimed wife, [named]. Integrity checks requested by the Complex Identity Advice section were undertaken by the Department' s Islamabad office in relation to this document with the result being that the marriage certificate was not issued by the Afghan Consulate in Quetta and is not a genuine document.
I note that [number] of your children, [named] arrived in Australia [in] October 2010, as dependent applicants on [Sister-in-law A’s] [Partner] visa. This visa was sponsored by your brother [Brother A], who is the husband of [Sister-in-law A]. At the time, your children had claimed that their parents (you and your wife) were no longer alive and that they were dependent on [Sister-in-law A], who was their older sister. On 5 June 2013, you contacted the Department to discuss the custody of the [number] children who travelled as dependent applicants on [Sister-in-law A’s] Partner visa. You claimed that the dependent applicants were your children and you were concerned about guardianship since your brother sponsored them. As noted above, the children had claimed to be orphaned and travelled to Australia as dependent applicants of [Sister-in-law A]. DNA testing confirmed that you are the biological father of [these children]. The children were withdrawn from the Partner visa application after it was confirmed that they were not orphaned and were not the dependents of [Sister-in-law A].
On 27 October 2017, you lodged a Partner visa application for your wife and [number] youngest children. As a part of this application, you provided copies of Afghan passports and taskeras for them. The documents list the birthplace of your children as Bamiyan in Afghanistan. In your application for a Protection visa you advised that only one of your children was born in Afghanistan and that the rest were born in Pakistan.
As part of your Protection visa application you stated that you were an Afghan refugee living in Quetta, Pakistan before you travelled to Australia. You claimed that you lived in Querta for a period of approximately 10 years, and during this period you did not register in Pakistan as an Afghan refugee or have any other official identity documents. At your identity interview on 31 August 2017, you maintained your claims of being an undocumented Afghan refugee in Quetta and stated that you had never needed a Proof of Residence (POR) card or any other identity documents. Country information indicates that Afghan refugees living in Pakistan would be unable to access a range of important government services nor be able to own property without a POR card2, and yet during another identity interview, the Department became aware that you owned the house in Quetta that your family were living in.
The Department obtained a copy of your Pakistani Computerised National Identity Card (CNIC), [number] in the name [the applicant’s name], son of [Father A], date of birth [DOB 1]. I note that in your Entry Interview conducted on 04 April 2010 with the Department following your arrival in Australia you stated that you father' s name was [Father A variant]. This information is consistent with the father's name on the CNIC. This CNIC was verified with the Pakistani National Database and Registration Authority (NADRA) who confirmed that the holder is a Pakistani citizen.
On 19 July 2018 the identity assessment concluded that your claimed identity was not supported and that your true identity is [the applicant’s name], date of birth [DOB 1], and you are a citizen of Pakistan.
Consideration of evidence
Your Protection visa was granted on the basis you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed you could not return to Afghanistan due to the threat of persecution from Pashtuns and the Afghan Taliban and because of your imputed political opinion. You claimed you were living illegally in Pakistan with no right to reside there and could not obtain effective protection in any safe third country. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.
I consider that your provision of non-genuine Afghan identity documents in regard to you and your family members, including non-genuine taskeras and marriage certificate, suggest that none of your family are Afghan citizens . I consider the DNA testing outcomes of your [number] eldest children who came to Australia as orphan relatives indicates that you and members of your extended family are prepared to provide incorrect information in order to obtain positive migration outcomes. I consider this raises serious concerns regarding the credibility of your claims in relation to you being an undocumented Afghan.
Significantly, I consider your Pakistani CNIC, [number] in the name [the applicant’s name], date of birth [DOB 1] is evidence of your genuine identity and Pakistani citizenship.
On the material presently before me, I consider you have not complied with sections 101(a) and 101(b) of the Migration Act in relation to answers provided in your statement of claims declaration dated 09 June 2010 and to the following answers you provided in your Protection visa application lodged on 11 March 2013:
Question 1 of Part C of Form 866, which stated: 'What is your full name?' you answered: '[Alias A] '. I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number], lists your genuine name as [the applicant’s name].
Question 4 of Part C of Form 866, which stated: 'What other names have you been known by?' you left the space blank. I consider the omission of an answer is non-compliance with section 10l(a) because you did not answer that you are also known as [the applicant’s name].
Question 20 of Part C of Form 866, which stated: 'Your current citizenship (if different at birth)' you answered: 'Afghanistan '. I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number] strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application, meaning that your claims against Afghanistan were incorrect.
Question 21 of Part C of Form 866, which stated: 'Do you hold any other citizenship or are you a national of any other country?' You answered: 'No ' . I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number] strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application, meaning that your claims against Afghanistan were incorrect.
Question 41 of Part C of Form 866, which stated: 'I am seeking protection in Australia so that I do not have to return to (Give name of country of countries)' you answered: 'Afghanistan'. I consider this answer to be incorrect because the evidence available to the Department strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application , meaning that your claims against Afghanistan were incorrect.
Question 42 of Part C of Form 866, which stated: 'Why did you leave that country? ' you answered: 'Please refer to my statutory declaration '. In your statement you declared that you had to flee Afghanistan because you were persecuted by Pashtuns and the Afghan Taliban, and because of your imputed political opinion. I consider this answer to be incorrect because the evidence available to the Department strongly suggests that you are a Pakistani citizen, and were so at the time of your Protection visa application. As a Pakistani citizen you would have the same rights as other Pakistani citizens, with the right to reside there, meaning your claims against Afghanistan are incorrect and you did not hold the claimed adverse profile for that country as claimed in your Protection visa application.
Question 43 of Part C of Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you answered: 'Please refer to my statutory declaration '. In your statement you declared that if you were to return to Afghanistan you would face a real chance of being killed by Pashtuns and the Taliban because of your Hazara ethnicity and imputed political opinion. I consider this answer to be incorrect as your claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.
Question 44 of Part C of Form 866, which stated: 'Who do you think may harm/mistreat you if you go back?' you answered: 'Please refer to my statutory declaration'. In your statement you declared that you would be killed by Pashtuns and the Taliban. I consider this answer to be incorrect as your claims were based on being from Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.
Question 45 of Part C of Form 866, which stated: 'Why do you think this will happen to you if you go back?' you answered: 'Please refer to my statutory declaration'. In your statement you declared that if you were to return to Afghanistan you would face a real chance of being killed by Pashtuns and the Taliban because of your Hazara ethnicity and imputed political opinion. I consider this answer to be incorrect as your claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.
Question 46 of Part C of Form 866, which stated: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered: 'Please refer to my statutory declaration '. In your statement you declared that the Afghan Government cannot protect themselves let alone the general population. I consider this answer to be incorrect as your claims were based on being a citizen of Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.
I consider you have not complied with sections 101(a) and 101(b) of the Migration Act in relation to the answers given in your Protection visa application. I consider these answers are incorrect because the evidence available to me indicates you are a Pakistani citizen and were so at the time of the Protection visa application; and as such you would have had access to a range of opportunities, government services, benefits and protections available to all Pakistani citizens. I consider your claims in regard to Afghanistan are incorrect.
The delegate states in the NOICC that they considered that the applicant has not complied with sections 101(a) and 101(b) of the Act as he has provided incorrect answers to questions 1, 4, 20, 21, 41, 42, 43, 44, 45 and 46 in Form 866C of his application for a protection visa.
If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided, his visa may be cancelled. The NOICC states that by failing to comply with sections 101(a) and 101(b) of the Act, the applicant’s Class XA, Subclass 866 (Protection) visa is liable for cancellation under s.109 of the Act.
Response to the NOICC
The applicant responded to the NOICC through his representative on 7 September 2018. The delegate summarised the applicant’s response in her decision record as follows:
The visa holder has submitted that he provided incorrect information about his identity and nationality in order to protect his brother, [named] but known to the Department as [Brother A], who arrived himself as an IMA around 2000, having incorrectly claimed that he was an Afghan citizen by the name of [Brother A].
The visa holder has submitted that he did not want to harm his brother's status in Australia.
The applicant submitted the following reasons why the visa should not be cancelled (as summarised by the delegate in her decision record):
The visa holder has provided information in which he confirms that he is a Pakistani-born citizen of Pakistan, and not an Afghan citizen as claimed.
The visa holder has submitted that although he is a Pakistani citizen, he is also an ethnic Hazara and as such he is subject to persecution in Pakistan. He has submitted that if he returned to Pakistan there is a real risk that he would be banned or killed.
The visa holder has submitted that his [age] year old son [Son A], who has lived in Australia since he was [age], is heavily reliant on him, both financially and emotionally, and that if he was compelled to return to Pakistan his son would have to return with him as he would not be able to manage in Australia on his own. The visa holder has submitted that his son would not be able to adapt to life in Pakistan as he does not have the necessary linguistic or life skills to manage.
The visa holder has submitted that his son is receiving ongoing medical treatment for [an injury he sustained] in 2013.
The applicant submitted the following documents in response to the NOICC:
(a)written submissions from his representative dated 7 September 2018;
(b)a statutory declaration from the applicant, sworn on 7 September 2018;
(c)local Certificate of the applicant;
(d)assorted rental agreements and deeds as evidence of property dealings; and
(e)country advice on Pakistan published by the Refugee Review Tribunal on 3 May 2011.
Departmental decision to cancel the applicant’s visa under s.109 of the Act
The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 10 December 2018.
The delegate found that there was evidence of non-compliance by the applicant insofar as he had failed to give correct information regarding his identity and protection claims in Form 866C of his protection visa application. The delegate made the following findings:
The visa holder has submitted that his motivation to provide incorrect answers in regard to his identity and nationality was in order to protect his brother, [named] but known to the Department as [Brother A], who had arrived several years earlier as an IMA and made incorrect claims regarding his nationality and reasons for seeking protection.
I consider the visa holder's motivation for linking his identity to that of his brother was because he was aware that his brother had successfully claimed protection and subsequently Australian citizenship by claiming to be an Afghan, and that by identifying as part of the same family unit his claim to be from a persecuted cohort would at least in part be already validated.
It stands to reason that the use of the [family] name and similar protection claims was due to his brother's earlier success when engaging Australia's protection obligations.
I consider the visa holder's primary motivation to provide incorrect information was in order to gain a positive migration outcome for himself, rather than to protect his brother, who was already an Australian citizen.
Having considered the visa holder's reasons for the non-compliance, I do not consider the circumstance he describes was one which was out of his control. The visa holder has acknowledged that non-compliance occurred and having considered his response, I am satisfied that ground for cancellation identified in Part B of this decision record exists.
…
The visa holder claimed that he could not return to Afghanistan due to the dangers he faced as an ethnic Hazara who could not count on the protection of the Afghan state; however the evidence available to the Department, including an acknowledgement from the visa holder which indicates that the visa holder is actually known as [the applicant’s name] and is a citizen of Pakistan undermines this claim. As a Pakistani citizen he is afforded the same rights and privileges as other Pakistani citizens, and as such his protection claims which were based on him not being able to return to Afghanistan are incorrect.
I find that the visa holder has provided incorrect answers in regard to his identity and adverse profile; as well as in regard to his fear of retuming to Afghanistan due to his status at the time of the Protection (subclass 866) visa application.
Having decided under section 108 of the Act that there was non-compliance in the way described in the notice issued under s 107 of the Act, I have considered all of the prescribed matters set out in regulation 2.41 of the Migration Regulation 1994, and I am not satisfied that there are any compelling reasons why the visa should not be cancelled.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicant’s protection visa application which was submitted on 11 March 2013;
(b)The applicant’s identity documents being copies of his Pakistani Local Certificate, Afghan taskera and visa evidence card, provided to the Department;
(c)The Notice of Intention to Consider Cancellation under Section 109 of the Act dated 15 August 2018;
(d)The Notification of Cancellation and Record of Decision of Whether to Cancel under Section 109 of the Act, both dated 10 December 2018 (‘delegate’s decision’)
(e)The application for review form dated 18 December 2018, which included a copy of the delegate’s decision;
(f)Department files [numbered] concerning the applicant’s protection visa application and the cancellation of his protection visa, which include the following documents
·The applicant’s NOICC response, as outlined at paragraph 16;
·Statutory declarations from the applicant, sworn on 9 June 2010 and 2 July 2010;
·Written submissions from the applicant’s representative dated 21 July 2010 and 29 July 2010; and
·A letter from registered psychologist, [named] dated 12 February 2011.
(g)All documents submitted to the Tribunal in support of the applicant’s review application, including:
·Pre-hearing submissions from the applicant’s representative dated 19 February 2021 and all attachments;
·A statutory declaration from the applicant, sworn on 17 February 2021;
·A pre-hearing witness statement from the applicant’s son-in-law, [Mr A variant]; and
·Post-hearing submissions from the applicant’s representative dated 26 March 2021;
(h)Country information from the applicant’s submissions and other sources, discussed below.
Hearing:
The Tribunal conducted an in-person hearing on 25 February 2021. The hearing was, by consent, jointly held with his son and nephew’s cases, as his son’s visa was cancelled under s.140(2) of the Act on the basis of similar information, and his nephew’s visa was automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the applicant’s visa. The Tribunal also received oral evidence from the applicant’s son-in-law, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Home Affairs (the Department) to cancel his protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in his application for a protection visa. As a result of this, the applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of sections 101(a) and 101(b) of the Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his identity and protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a Class XA, Subclass 866 (Protection) visa on 25 March 2013. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and his representative that the Tribunal might take the applicant’s claims for protection in his protection visa application lodged with the Department of Home Affairs on 11 March 2013 as having been read. The applicant and representative agreed.
A preliminary issue which arose for consideration in this matter is the effect of two certificates purporting to restrict the disclosure of information pursuant to s.438 of the Act.
The Certificate dated 20 December 2018 states that the material contained in folios 11-14 of Department file [number] should not be disclosed to the applicant because the “information was given to an officer of the Department of Home Affairs in confidence. The Department considers that this document and the matter or information contained in the document should not be disclosed to the applicant or his representative because it contains an Identity Assessment Report which is a deliberative process (internal working) document. This is contrary to the public interest because the document contains information that would reveal confidential Departmental investigative methods used to detect breaches of the law.”
The Certificate dated 8 February 2021 states that the material contained in the document with TRIM reference [number] of Department file [number] should not be disclosed to the applicant because disclosure of this information would be contrary to the public interest, as it contains documents or information of internal detection and referral processes. The Certificate states that disclosure would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or be likely to prejudice the effectiveness of those methods.
The Tribunal considered the validity of the Certificates. On examination of the material covered by the Certificates, the Tribunal determined that the Certificates are valid for the reasons claimed but the material was not relevant to the facts and matters the subject of the review and that no regard would be had to the material.
The Tribunal took the applicant to his statutory declaration of 17 February 2021. He confirmed that it was his statutory declaration and that the contents of it were correct. The Tribunal took him to paragraphs 3 to 7 of the statutory declaration, in which he apologises for providing incorrect information to the Department and says that he takes responsibility for it. The explanation he gives there is that:
Family members of mine came to Australia in 1999, prior to my arrival. False information was provided regarding our family’s nationality and my identity. When I arrived in Australia, I chose to provide information that was consistent because I thought that this was the best for my family and I didn’t want to put them at risk of being returned to Pakistan or to endanger them.
The members of my family are all Shia and ethnic Hazaras, which means that we face threats to our lives in Pakistan and Afghanistan. I left Pakistan to come to Australia because I feared for my life and the lives of my family.
I did not anticipate the consequences of providing false information that I take full responsibility for it. As the Urdu saying goes, one has to tell 100 lies to hide one lie.
I want to make it clear that the applications of [Son A] and [Nephew A variant], they had no say in the information that was provided to the Department on their behalf. [Nephew A variant] came with me but he was neither interviewed nor asked any questions. Both he and [Son A] were minors at the time of entry to Australia and they still only now just young men dealing with this.
The applicant gave evidence that his younger brother came to Australia in 1999 under the purported name of [Brother A] and as a purported citizen of Afghanistan. The brother’s visa application stated that he had an older brother by the name of [Alias A], then living in Pakistan.
The applicant told the Tribunal that, because his brother’s claim had been accepted, he felt that, if he used that name, his own application would be less likely to cause problems for his brother. He said that, when he arrived in Australia, most of the people he had travelled with were Pakistani Hazaras. He said the Department officers were not accepting these applicants and that, when he was given a form which asked him to list all the members of his family, he had no option but to provide his brother’s assumed name and, therefore, the name by which his brother had referred to him in 1999. On being questioned by the Tribunal, he accepted that he and his brother had agreed this stratagem in advance of the applicant’s coming to Australia.
The applicant gave evidence that, until coming to Australia, he had lived in Quetta all his life. He said that he has always known that life was difficult for Hazaras in Pakistan, and that they face great danger from the Pashtun majority. He agreed that Quetta is an enclave for Hazaras but described it a form of prison – Hazaras are detained within the enclave and are at great risk if they move outside it. The Tribunal put to him that country information is to the effect that there are significant Hazara populations in Lahore, Karachi and Islamabad. He said that, usually, they are only there to study or on other temporary business. He confirmed that his daughter, [Daughter A], is studying in Lahore, but says that she does not leave the campus. When she returns home during breaks in study, she travels by air but still faces risks in the trip from Quetta airport to the family home. He said that, even in Quetta, it is not safe for Hazaras. He told the Tribunal that someone was killed directly opposite his shop in 2006 or 2007.
The applicant told the Tribunal that he had operated [an occupation 1] business which was wound up in about 2004 or 2005. After that, he set up a [different business] in [a location in] Quetta. He wound that business up in 2009 when, he said, it was becoming too dangerous for business conditions to support his family.
He told the Tribunal that he would not be able to provide for his family were he to return to Pakistan because of the security situation.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in 866C of his application for a protection visa are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with subsections 101(a) and 101(b) in the following respects: that he gave incorrect answers to questions 1, 4, 20, 21, 41, 42, 43, 44, 45 and 46 in Form 866C of his application for a protection visa. In summary, the applicant did not hold the claimed profile of a displaced Afghan citizen without the right to reside in Pakistan.
For these reasons, the Tribunal finds that there was non-compliance with subsections 101(a) and 101(b) of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
· the content of the genuine document (if any)
· 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 circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
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.
The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (noting that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The correct information
The correct information is that the applicant’s name in [the applicant’s name variant] and not, as claimed, [Alias A].
The correct information is that the applicant is, and was at all material times, a citizen of Pakistan and not, as claimed, a citizen of Afghanistan who did not hold any other citizenship.
The correct information is that the applicant departed from Pakistan and did not, as claimed, flee Afghanistan because of persecution by Afghan Pashtuns and the Afghan Taliban.
The correct information is that, at all times material to his claims, the applicant was a citizen of Pakistan, most probably resident in Quetta, and did not decide to leave Afghanistan because his uncle was tied to a tree and beaten to death in an Afghan village.
The correct information is that the applicant was, at all material times, a citizen of Pakistan and did not fear, as claimed, returning to Afghanistan because he faced a real chance of being killed by Pashtuns and the Taliban because of his Hazara ethnicity and imputed political opinion.
The correct information is that the applicant was, at all material times, a citizen of Pakistan and did not hold a fear, as claimed, that the Afghan government would be unable to protect him.
The content of the genuine document (if any)
In addition to the copy of the National Identity Card obtained by the Department, the applicant provided a Local Certificate in his name ([the applicant’s name], son of [Father A variant], of Hazara caste and resident in the Quetta Hazara community). On 13 October 2021, the Tribunal, having noted that the National Identity Card number on the Local Certificate does not correspond with the National Identity Card obtained by the Department, sought the applicant’s comments.
In a letter dated 10 November 2021, the applicant’s representatives submitted:
The Applicant instructs that he believes there is an error in the national ID card number included in the document in question, “Local Certificate of [the applicant’s name]” by reason of a human error. The local certificate, such as that submitted by [the applicant], are obtained from local authorities with details transcribed by hand from the National identity documents provided by those applying for a local certificate. As is noted by the Tribunal’s invitation to comment, the National ID Card number stated on [the applicant’s] local certificate is [number]. This answer is slightly different to the numbers listed on both [the applicant’s] old national ID card [copies provided] and modern ID cards [copies provided]. The ID numbers listed on all cards is [number variant] and reflects [the applicant’s] correct national ID card number. The very slight difference between the numbers shown on his ID card and in the local certificate further support the conclusion that this occurred by human error.
The applicant also instructs that he believes his national ID card number change when Pakistan transitioned from a physical to digital national identification card system. This transition is evidenced by the inclusion of the [number variant] listed as his old NIC number on the bottom right of the back of the ID card shown in [copy provided]. The applicant instructs that both the old and new national ID card numbers continue to be used in tandem. [The applicant’s] new national ID card number, as shown on the ID card [copy provided] is [number].
In view of the submissions, and having had regard to the relevant country information, the Tribunal is satisfied that the documents now available in relation to the applicant’s identity are genuine.
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 applicant, in the submissions made on his behalf by his representatives, accept that the decision to grant him the protection visa were ‘affected’ by incorrect information. However, it was submitted that the decision to grant the visa was not based wholly on incorrect information. It was submitted that, had the correct information been provided, there is nothing to indicate that the application would have been refused. Thus, although it was acknowledged that false information was provided in support of the applications, the provision of the false information was not critical to the outcome.
The applicant’s own evidence was to the effect that he considered his application more likely to succeed if he presented as coming from Afghanistan. Further, it cannot be ignored that bogus documents were provided along with the false information and that the applicant presented a lurid account of the violence meted out to members of his family that no longer forms part of his evidence. The Tribunal takes note that the granting of protection visas to Pakistanis of Hazara ethnicity since 2010 have needed to weigh the availability of state protection and the feasibility of internal relocation to a degree that does not apply to applicants from Afghanistan.
Further, the applicant would not have been granted a visa at all if it had been known that he had given incorrect answers about his claims in his application for the visa.
The Tribunal considers that the decision to grant the visa was based, at least partly, on incorrect information and bogus documents. However, the claims now made by the applicant are relevant to the issue of non-refoulement, considered below.
The circumstances in which the non-compliance occurred
As discussed at the hearing, the applicant claims the non-compliance occurred to ensure that the information he provided in his application was consistent with the information provided by his brother. It is further claimed that his decision to lie was to protect his brother from being returned to Pakistan where he may face the risk of serious harm.
It was submitted on behalf of the applicant that he acknowledged that providing false information to the Department was wrong and that doing so was not outside of his control. It was submitted, however, that he was placed in a dilemma of either exposing his brother to serious harm or to proceed with the provision of false information.
The Tribunal questioned the applicant about the logic of this submission. It was put to him that there was no reason for the Department to suspect a family link with his brother were he to provide his own true name and nationality. The Department was not aware of the brother’s true name and nationality. It was therefore put to the applicant that the use of the false name and nationality was a matter of convenience, motivated by the success with which his brother had used them.
In the post-hearing submission, the applicant’s representatives pointed to the level of practical connection between the immediate family members of the applicant and his brother, who had been sponsored by the brother. Further, the brother had been in direct contact with the Department prior to the finalisation of the applicant’s visa to notify the Department that they were family members. The representatives also point to the applicant’s subjective understanding of the situation which was that the Department was somehow aware of the connection before the application was made.
The Tribunal has weighed the applicant’s evidence and submissions carefully. It accepts that the element of a dilemma, created by the brother’s earlier provision of false information is plausible. Against this, the Tribunal weighs the elaborate steps taken to create a false identity and background and the provision of details of claimed persecution that are no longer maintained. In the final analysis, the Tribunal declines to accept a multiplicity of falsehoods as a reason to compromise the integrity of the visa process.
The present circumstances of the visa holder
The applicant gave evidence of his present circumstances in his statutory declaration of 17 February 2021 and in his testimony to the Tribunal. Detailed submissions were also made by his representative.
[The applicant] lives in [a named town], Queensland, with his son. [Other children] live in Victoria with their [spouses]. He has [number] grandchildren in Victoria, all aged under [age].
[The applicant] gave evidence that he works [number] nights a week as [an occupation 2] (subject to the exigencies of COVID-19 restrictions). In addition to providing for himself and his son, he makes remittances to his family in Pakistan, on which they are wholly dependent. Copies of bank transfers were attached to his statutory declaration and indicate that the remittances are substantial. His evidence is that the remittances allow his family to remain in relative safety in [a location in] Quetta, but that, were they to cease, his family would expose themselves to the risk of harm in seeking employment or live in poverty, which itself entails an increased risk of harm.
I have given these matters weight in favour of the exercise of the discretion.
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 applicant’s representatives acknowledge that he has acted in contravention of his obligations under Subdivision C of Division 3 of Part 2 of the Act and that this weighs against the exercise of the discretion. However, I have also given weight to his admission of the non-compliance. On balance, I have treated this consideration as neutral.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate found that there are no other instances of non-compliance by the applicant known to the Minister and gave this a little weight in his favour. I see no reason to disturb this finding.
The time that has elapsed since the non-compliance
The applicant first arrived in Australia on 24 March 2010. He first provided false information between the period of April 2010 and September 2010, that is, between the date of his initial entry interview and the date on which it was recommended that he be recognised as a refugee. In furtherance of the information provided during that period, he lodged his protection visa application on 11 March 2013.
Accordingly, it has been eight years since false information was provided in support of the application. The applicant told the Tribunal that he and his family have become established in Australia and that they consider themselves Australian. The Tribunal gives some weight to this in favour of the exercise of the discretion.
However, the Tribunal also takes into account that the applicant has been in Australia for this period of time by reason of his visa, the grant of which was based on his provision of incorrect information and the maintenance of the false claims until they were discovered.
Accordingly, the weight given to this factor is neutral.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant submits that he has not breached any law since the non-compliance and there is no information before the Tribunal to suggest otherwise. His representatives submit that this should be weighed strongly in his favour. The Tribunal takes the view that further breaches of the law should be weighed strongly in his disfavour and, in accordance with community expectations that those present in Australia on a visa should comply with Australian law, gives a very marginal degree of weight to this factor in the applicant’s favour.
Any contributions made by the visa holder to the community
The applicant told the Tribunal that the heavy workload he has assumed as [an occupation 2] to support family members both in Australia and in Pakistan has left him little time for active community engagement. The Tribunal does give weight to the applicant’s work history which, by the provision of his services and his payment of taxes, is a positive contribution.
I have also had regard to the statutory declaration and oral evidence of [Mr A variant], the applicant’s son-in-law. He describes the applicant as a good person and as a treasure to the family. I give a degree of weight in favour of the applicant to this consideration.
Whether there are mandatory legal consequences to a cancellation decision
Should the visa be cancelled, the applicant would be subject to Section 46(1) of the Act, which bars him from making an application for a further visa. Also, as an IMA the applicant would become an unlawful non-citizen and would be subject to Section 46A(l) and barred from making a valid application for a further visa, including bridging visas, and may be detained. Further, a consequence of cancelling the Protection visa is that he would become subject to Section 48A(1B) of the Act barring him from making a further application for a Protection visa while in the migration zone. The applicant will be unable to make any visa application while in Australia unless the Minister intervenes and lifts the decision bar.
If the applicant’s visa is cancelled, he will become an unlawful non-citizen and may be liable for detention under Section 189 of the Act and removal from Australia under Section 198 of the Act. However, this can be mitigated by voluntary departure.
The Tribunal considers these to be the standard consequences flowing from a visa cancellation. The Tribunal gives these considerations a minimal degree of weight in the applicant’s favour.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations
The delegate found that:
If the visa-holder’s visa was cancelled, an International Treaties Obligation Assessment (ITOA) would be completed by a departmental officer before a decision was made to remove the visa-holder to his country of origin. I therefore consider a decision to cancel the visa-holder’s visa would not necessarily cause him to be returned to his country of origin in breach of Australia’s non-refoulement obligations under the Refugee Convention. An ITOA would assess, among other things whether the visa-holder would be at risk of harm in his country of origin.
The delegate did not further consider this factor.
The Tribunal accepts that any visa cancellation would not automatically lead to the applicant’s removal. However, the Tribunal cannot agree that it is maintainable that, because cancellation of the visa would not automatically lead to the applicant being removed from Australia, that the non-refoulement issue does not arise. The effect of cancellation would leave no legal pathway for the applicant to seek a further visa in Australia. Therefore, for the purposes of the exercise of its discretion, the Tribunal considers it appropriate to consider whether the applicant’s removal would enliven Australia’s non-refoulement obligations even where, in practice, the Department would conduct an ITOA before the time of removal.
The Tribunal considered country information it had obtained from the DFAT Report on Pakistan in relation to Hazaras and Shia Muslims:
Hazara
3.27 The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.
3.28 Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.
3.29 Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ (see Security Operations) have targeted Hazaras in Pakistan for their sectarian affiliation.
3.30 The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps (see Police, Frontier Corps and Rangers) maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.
3.31 Government forces also provide security for Shi’a religious processions (see Shi’a). Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.
3.32 Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.
3.33 Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’
3.34 An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta.
3.35 Local sources consider the road from Quetta airport to the city and Double Road to be dangerous for all travellers, regardless of ethnicity. Local sources, including from the Hazara community, consider Giant Road to be dangerous for both Hazaras and Frontier Corps. Militants have targeted Shi’a pilgrims on the road through Balochistan during pilgrimage to Iran and Iraq and Hazara Shi’a are easier targets because of their distinctive appearance. Local sources claim that government security for Shi’a undertaking religious pilgrimage (see Shi’a) is more readily available for non-Hazara Shi’a, and the government provides escorts for Hazaras only every couple of months.
3.36 Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.
3.37 Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.
3.38 Hazaras claim that there are two government colleges within the enclaves, open to all children, offering the equivalent of Australian year six to 12, and that no universities are located in the enclaves. DFAT is unable to verify these claims. Hazaras seeking education outside the enclaves face a high risk of discrimination and violence. The high frequency of attacks against Hazaras, such as on 4 October 2016 when a gunmen attacked a bus in Quetta, killing at least four Hazara women, have led many education and health facilities in Quetta to deny Hazaras access to transportation or attendance, in order to protect non-Hazaras clients and students. Many Hazaras now refuse to take the bus to attend university outside of Hazara enclaves due to increased fear in the wake of attacks on transportation.
3.39 Hazaras claim that Hazara town has one hospital and one government hospital clinic, both staffed by Hazara doctors. Members of the community who can afford it travel to Karachi for treatment; those who cannot risk the journey for treatment in Quetta outside Hazara enclaves. Hazaras claim a private charity ambulance provides emergency transport in and out of Hazara town, but abductions of ambulance workers have led Hazaras to fear travel in the ambulance. DFAT is unable to verify these claims.
3.40 Hazara youth understand the risks of illegal migration, but are increasingly frustrated by the security situation. The enclaves have limited entertainment options. Community leaders are concerned that long-term exposure to security threats is creating psychological issues for Hazara youth.
3.41 Hazaras claim access to services, including mobile SIM cards and internet connections, within the enclaves does not require formal documentation, such as a passport or CNIC (see Documentation ). However, travel in and out of, or between, the enclaves, involves document checks that can serve to block access to services. While most Hazaras in Pakistan can obtain formal identification such as CNICs, Hazaras claim the National Database and Registration Authority (NADRA) officials have at times caused delays for Hazaras applying for official documentation. Hazaras have suffered lethal attacks outside the NADRA office in Quetta, located outside the enclaves, while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclave to apply for documentation. Hazaras claim access to services, including mobile SIM cards and internet connections, within the enclaves does not require formal documentation, such as a passport or CNIC (see Documentation
3.42 Hazara children born in Pakistan are entitled to Pakistani citizenship. Hazara arrivals from Afghanistan typically do not have citizenship, but have access to immigration cards, which provide some rights such as access to drivers’ licences (see Afghan Refugees).
3.43 Notwithstanding the risk of obtaining documentation, Hazaras that can afford to leave Quetta do so. Outside Balochistan, Hazaras report finding it safer to live separately amongst the general community than to relocate to live near other Hazaras, where they can be easily profiled and targeted. Hazaras’ preferred options for internal relocation are, in order, Lahore, Karachi and Islamabad. Hazaras report that the few Hazara enclaves in Karachi, such as Mungo Pir, are unsafe and have only arisen out of necessity where poorer Hazaras have had to pool resources.
3.44 While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.
3.45 DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.
3.46 DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.
3.47 DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation. Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.
3.48 While DFAT assesses Hazaras do not typically require official documentation to access non-government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health, emergency care and education services.
Shi’a
3.100 The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’
In Mariabad and Hazara Town, there are limited economic and higher education opportunities, and limited access to employment and to consumer goods, necessitating travel outside of these areas, including into the central market district of Quetta.[9] Hazara Town and Mariabad have been subject to heightened restrictions on movement imposed by the provincial government in response to COVID-19. In late March 2020, the United States Commission on International Religious Freedom (USCIRF) reported grave concern that the Hazara community in Quetta was being targeted by the provincial government of Balochistan in relation to COVID-19 measures.[10] Reportedly, Hazara Town and Mariabad were ‘completely sealed off’ as part of a lockdown in Quetta, and social media users had ‘made allusions to coronavirus as the “Shi’a virus,” given fears of its spread by pilgrims returning from Iran’. USCIRF warned that such further stigmatising of the Hazara minority could limit their ability to access medical care.[11]
[9] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p.47; ‘World Directory of Minorities and Indigenous Peoples - Pakistan : Shi'a and Hazaras’, Minority Rights Group International, June 2018.
[10] 'USCIRF Troubled with Targeting of Hazara Shi’a in Pakistan amid Coronavirus Lockdown', US Commission on International Religious Freedom, 31 March 2020.
[11] 'USCIRF Troubled with Targeting of Hazara Shi’a in Pakistan amid Coronavirus Lockdown', US Commission on International Religious Freedom, 31 March 2020.
The Hazara population outside of Quetta is small. It is difficult to estimate the number of Hazaras living outside Quetta.[12] In May 2016, an officer at the Pak Institute for Peace Studies stated that a few wealthy Hazara families live in Islamabad and ‘a few families’ live in Lahore among the Shia population, while an estimated 25,000 Hazaras families live in Karachi, concentrated in the Hussain Hazara Goth and Mughal Hazara Goth areas.[13]
[12] ‘Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, November 2019, p.14.
[13] ‘Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, November 2019, p.14-15.
The Tribunal accepts that the applicant is a Hazara Shia male who was born in and holds citizenship of Pakistan. At all times relevant to the matters before the Tribunal, he and his family lived in Quetta. The Tribunal considered this issue with a degree of caution because of the questions that arose as to the authenticity of the Local Certificate (see paragraphs 52 and 53 above). Had the Tribunal not been satisfied as to the authenticity of those documents, and given the circumstances in which the grounds for cancellation arose, it is likely that the applicant’s claim to be a Hazara Shia would not have been accepted.
Having regard to the country information referred to and quoted above, the Tribunal accepts that if the applicant returned to Pakistan now or in the reasonably foreseeable future, there is a real chance (that is, one that is not remote), that he would be seriously harmed for reasons of his religion and ethnicity. The Tribunal accepts that the government of Pakistan has shown itself to be unable or unwilling to protect the applicant and other Hazara against the harm feared. There is a strong basis to conclude, therefore that the applicant faces persecution if returned to Pakistan.
Accordingly, the Tribunal finds that Australia’s protection obligations are invoked by the applicant’s circumstances and that, as a result, a decision to cancel his visa would place Australia in breach of its non-refoulement obligations.
Conclusion
On the basis of the findings above, the Tribunal is satisfied that the applicant’s provision of false information and bogus documents amount to a serious non-compliance with Australia’s migration laws which have potentially undermined the integrity of the migration program. The Tribunal is satisfied that the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a protection visa, notwithstanding the remorse he has now expressed.
Weighing the discretionary factors, the Tribunal has given some weight to the substantial period of time the applicant has now spent in Australia and the support he has thereby been able to give his family. However, by far the greatest weight has been given to the effect of any decision to remove him on Australia’s non-refoulement obligations.
Accordingly, and not without the maintenance of concerns about the applicant’s credibility, the Tribunal finds that the considerations in favour of the applicant outweigh the grounds for cancellation and the preferable decision is that the visa should not be cancelled.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
James Lambie
Senior MemberATTACHMENT – 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.
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