1837574 (Refugee) - [2021] AATA 1231

1837574 (Refugee) [2021] AATA 1231 (27 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1837574
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Shahyar Roushan
DATE:27 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Statement made on 27 April 2021 at 4:28pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – risk to the health or safety of individuals in the Australian community – charged with serious violent offences – religion – Christian convert – imputed Shi’a – race – Hazara – imputed political opinion – anti-Taliban – returnee from the west – imputed spy – medical condition – effect of non-refoulement obligations – prospect of indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 48A, 48B, 109, 116, 128, 134B, 140, 189, 195A, 196, 197AB, 197C, 198, 499, 501CA
Migration Regulations 1994 (Cth)
CASES
ATR15 v MIBP [2016] FCCA 1089
FCS17 v MHA [2020] FCAFC 68
FMV17 v MIBP [2019] FCCA 186
Gong v MIBP [2016] FCCA 561
MZAJA v MIBP [2017] FCCA 448
Newall v MIMA [1999] FCA 1624
Tien v MIMA (1998) 89 FCR 80
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s.116 of the Migration Act 1958 (the Act).
Background
The applicant is a [age]-year-old national of Afghanistan. He arrived in Australia [in] April 2012 as an Irregular Maritime Arrival (IMA). In June 2012, he applied for a Protection (Class XA) visa, which was refused by a delegate of the Minister in January 2013. In March 2014, the former Refugee Review Tribunal (RRT) remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. Subsequently, on 23 July 2016, the applicant was granted a Temporary Protection visa (Subclass 785).
On 22 November 2018, the applicant’s Temporary Protection visa was cancelled under s 116(1)(e) of the Act, after he was charged with a number of criminal offences. The applicant has been in custody since October 2018 and he is currently being held at [Correctional Centre 1].
The NOICC
On 10 October 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Protection visa under s 116(1)(e)(ii) of the Act on the basis that his continued presence in Australia may pose a risk to the health or safety of individuals in the Australian community.
The NOICC stated that the applicant was charged with the following offences [in] October 2018 under the laws of [State 1]: [details deleted].
The NOICC stated that the applicant’s alleged behaviour involves offences of a violent nature against people with whom he has had a close personal relationship. The violence not only affects the victim, but the children who were exposed to it, their extended families, friends, work colleagues and ultimately the broader community. The NOICC also stated that the applicant’s conduct appears to show a general disregard for Australian laws and values and disregard for the safety of the persons named as the victims.
The response
In a letter, dated 18 October 2018, the applicant submitted that his visa should not be cancelled because there is a high likelihood that he would be killed if returned to Afghanistan. He stated that he has converted to Christianity which puts him in a ‘high risk category’. He also stated that he has [number] children and one of his children is an Australian citizen. He submitted that his deportation would have ‘devastating consequences’ for his children.
Delegate’s decision
On 22 November 2018, the delegate cancelled the applicant’s protection visa under s 116(1)(e)(ii) of the Act on the basis that the criminal charges are considered serious and relate to the applicant allegedly entering a residential address and committing a violent assault against the occupants, causing them physical harm. Therefore, the delegate was satisfied that the applicant may be a risk to the safety of individuals in the Australian community.
Review application
On 21 December 2018, the applicant applied for a review of the delegate’s decision.
On 13 August 2019, the Tribunal wrote to the applicant, inviting him to comment on the validity of his application for review, which appeared to have been lodged out of time.
On 23 January 2020, a differently constituted Tribunal determined that the Tribunal has jurisdiction in the matter.
In support of his application for review, the applicant submitted a document titled ‘extract from baptismal register’ dated 29 November 2018. The document indicates that the applicant was baptised at [City 1] [a named church in] December 2013.
On 20 September 2019, the applicant made a submission to the Tribunal in relation to the cancellation of his visa and provided the following information.
He has been threatened with ‘a grave, heinous and torturous death’ if he returns to Afghanistan, due to the nature of the allegations against him. His [Relative A] is [Mr B, a senior officer] of the National Afghan Army. There are no checks or balances on a [senior officer’s] power, and [Mr B] is more than capable of carrying out the threats with impunity on the basis of retribution and family honour.
He comes from [Village 1] in Ghazni, which is currently under Taliban control, with Al Qaeda and ISIS also present. He is ethnically Hazara and belongs to the Shi’a sect of Islam. Hazara Shi’as are regarded as ‘heretics, hypocrites and infidels.’ Due to Australia’s direct military involvement in the conflict in Afghanistan, anyone who has lived in Australia is regarded as a ‘cowardly spy who is involved in espionage and traitorous behaviour or thoughts’. He will be captured upon return, tortured, and killed in Afghanistan.
He suffers from [Medical Condition 1] which requires constant medical attention. Afghanistan’s health system is outdated, under resourced and not sufficiently equipped to provide him with the medical care that he requires. If he returns to Afghanistan, his medical condition could turn fatal if untreated.
He has no means to sustain himself in Afghanistan. Due to the ongoing war, public services are non-existent. He has no family or friends, and no savings for housing or food, clean water or sanitation. He will be destitute, unemployed and ‘as good as dead’ if he is returned to Afghanistan.
His son, [named], was born on [date] and is an Australian citizen. He has spent the longest time away from his family in remand and would ‘love to continue building [his] relationship with his family and son’. He is ‘sorry, regretful, and remorseful’ about his past life choices. However, he has ‘progressed, reformed, learnt and improved so much in the past seven years in Australia.’ He hopes to be given a chance to rebuild his life in Australia with his family.
The hearing
The applicant appeared before the Tribunal on 1 February 2021 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
The formulation of ‘good order’ in Tien was adopted in Newall v MIMA,[1] where the Court found that it was open to the delegate to be satisfied that the presence in Australia of the applicant who had recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the ‘health, safety or good order of the Australian community’. In particular, it was open to the delegate to be satisfied, having regard to the seriousness of the offences and the fact that he was still on parole, that the presence of the applicant would ‘create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society’ (per Goldberg J in Tien’s case above). The Court found that such satisfaction might be based on the risk of an adverse reaction by certain members of the community to the applicant's presence in Australia, rather than concern about the likely or possible conduct of the visa holder in Australia.[2] More recently, the Court in ATR15 v MIBP, applying Tien v MIMA and Newall v MIMA, held that it was appropriate for the Tribunal to conclude that the risk to good order was about the risk of adverse reaction by certain members of the Australian society to the applicant’s presence in the country, rather than the concern about the applicant’s likely or possible conduct.[3] There is no requirement that the adverse reaction of the Australian community, or a segment of it, be a reasonable reaction.[4]
[1] [1999] FCA 1624 (Branson J, 24 November 1999) at [22].
[2] Newall v MIMA [1999] FCA 1624 (Branson J, 24 November 1999) at [30].
[3] ATR15 v MIBP [2016] FCCA 1089 (Harland J, 20 May 2016) at [57].
[4] FMV17 v MIBP [2019] FCCA 186 (Judge Riley, 1 February 2019) at [38].
In his response to the NOICC, his submissions to the Tribunal and oral evidence at the hearing, the applicant did not deny the charges against him. The Tribunal appreciates that the applicant has not been convicted of the offences he has been charged with and the case against him is yet to be heard and determined through the criminal justice system. However, the Tribunal is not required to wait until a person is convicted before assessing the risk that they present to the community based upon the information available to it.[5] In Gong v MIBP, Judge Smith considered that as s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence ‘may be a risk’, it can arise on the possibility that some event occurred in the past.[6] In this case, that possibility was supported by the laying of a number of charges against the visa holder. The Court held that there is no requirement that there be a determination of the guilt of a visa holder.[7] However, the Court also said:
I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges. That is an objective assessment of the factual basis for the charges and a comparison of that with the integers of the offence. In order for that inference to be drawn, there must be some evidence of the facts upon which the charges were laid and an assessment of those against the elements of the offence.[8]
[5] MZAJA v MIBP [2017] FCCA 448 at [15].
[6] Gong v MIBP [2016] FCCA 561 (Judge Smith, 8 April 2016) at [41].
[7] Ibid at [45].
[8] Ibid at [55].
Departmental policy indicates that if relying on the existence of a charge to support cancellation under s.116(1)(e), decision makers should consider additional contextual information when deciding whether the existence of the charge justifies an inference that the visa holder engaged in the conduct as charged, and refer to any relevant evidence which forms the basis for finding that a person may or might be a risk.[9] The applicant has been charged with a number of serious violent offences in a domestic violence context. The Tribunal accepts that the applicant has not yet been convicted of these offences, but it is not required to determine the guilt of the applicant. As already noted, s.116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia ‘is’ or ‘would be’ a risk to the safety of the Australian community, but also where it ‘may be’ or ‘might be’, thereby suggesting a very low threshold as to a future possibility. In Gong v MIBP, Judge Smith stated:
Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
[9] PAM3: POLICY - MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140) – s116(1)(e) - Risk to community, public health, safety or good order – Risk to safety (re-issue date 1/7/2017).
The Tribunal, therefore, considers that the possibility that some event occurred in the past can give rise to a ground for cancellation under s.116(1)(e).
The possibility of past conduct by the applicant as alleged in the charges laid against him by the [State 1] police leads the Tribunal to find that his presence in Australia may be a risk to the health, safety or good order of the Australian community, a segment of the Australian community or any individual. The Tribunal, therefore, is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The Tribunal accepts that the applicant arrived in Australia [in] April 2012 as an IMA and was granted a Temporary Protection visa on 23 July 2016. The Tribunal accepts that the applicant’s travel and stay in Australia are consistent with the purpose of his past and current visas. The Tribunal further accepts his oral evidence at the Tribunal hearing that he has no family members or relatives in Afghanistan. The Tribunal gives this factor some weight against cancelling his visa.
The extent of compliance with visa conditions
There is no evidence before the Tribunal to suggest that the applicant has not complied with his visa conditions. The Tribunal has given this factor neutral weight against cancelling his visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In submissions in support of his review application, the applicant stated that he suffers from [Medical Condition 1] which requires constant medical attention. At the hearing, he explained that, when he first arrived in Australia, he was told that his [specified organ] has a problem. When asked if he is currently receiving any related medical treatment, he replied ‘no’ and stated that he is only taking anti-depressants and medication to help him sleep. He told the Tribunal that, before he committed the offences he has been charged with, he had many psychological problems and was on anti-depressants. The applicant submitted no other evidence, including medical evidence to enable the Tribunal to ascertain the exact nature of any current physical or psychological conditions he might have or what medication he is taking.
The Tribunal does not accept that the applicant requires any ongoing treatment in relation to [Medical Condition 1]. It follows that the Tribunal does not accept his written submissions to the Tribunal that his medical condition could turn fatal if untreated in Afghanistan due to the absent of adequate health care. Whilst the Tribunal accepts that the applicant is currently on anti-depressant medication, the applicant did not claim and there was no persuasive information before the Tribunal to suggest, that he will not have access to similar medication in Afghanistan should he continue to need such treatment.
The Tribunal accepts that the applicant has been in Australia since 2012. The Tribunal also accepts that he was working as a [occupation] before his arrest and detention. Whilst the Tribunal appreciates that if the visa is cancelled, the applicant would cease to hold permission to work in Australia, he has been unable to work since October 2018 due to his incarceration. His future employment prospects also depend on whether he will be convicted and sentenced in connection with the offences he has been charged with.
The Tribunal further accepts that the applicant met his second wife in Australia in 2014 and in [year] they had a child together. The Tribunal accepts his wife’s [children] from a previous relationship also lived in the same household. The applicant told the Tribunal at the hearing that, since his arrest, he has had no contact with his wife or any of the children and there is no suggestion that they continue to be dependent on him financially. This is not surprising given that he had allegedly [details deleted]. Considering these circumstances, the Tribunal is of the view that it is highly unlikely that he will have any contact with his wife or children in the reasonably foreseeable future. This separation and the resultant hardship on the applicant are direct consequences of his alleged offences and incarceration and cannot be said to be consequences of any visa cancellation.
The applicant has claimed that he would be at risk of harm in Afghanistan as a Hazara, imputed Shi’a, Christian convert, returnee from the West, and imputed spy. The Tribunal has found elsewhere that there is a real chance he will be subjected to hardship ranging from discrimination and harassment to grave harm, including death. The Tribunal has also found that, if the cancellation of the applicant’s visa were to result in his removal from Australia, the the risk of harm to the applicant may engage Australia’s non-refoulement obligations. However, as discussed further below, the Tribunal has formed the view that the cancellation of the applicant’s visa is unlikely to result in his removal to Afghanistan.

The Tribunal gives this factor some weight in favour of not cancelling the visa.
Circumstances in which ground of cancellation arose
The nature of the charges against the applicant are very [serious]. These violent offences were allegedly committed against members of his own family. The applicant has not denied the offences and has expressed remorse. However, the Tribunal remains concerned that in his evidence to the Tribunal the applicant did not appear to acknowledge the seriousness of his alleged conduct and its likely impact on his second wife and children. According to his own evidence, he had [details deleted] while the children were all at home, although he denied that they had witnessed the attack.
At the hearing, the applicant told the Tribunal that he had married his second wife in Australia while he was still married to his first wife, who resided in Pakistan with their son. He said he believed his second wife was being unfaithful, he had been drinking [alcohol] and was not sure what exactly had happened. The applicant also tried to explain his actions by reference to his depression, the death of his sister in Pakistan and having divorced his first wife at some point in 2018.
The Tribunal has found that the charges against the applicant give rise to a ground for cancellation under s.116(1)(e). The Tribunal considers the charges against the applicant to be very serious. His alleged behaviour towards his second wife was extremely violent in nature and without any doubt his actions have had a significant impact on the children. The Tribunal gives significant weight to the circumstances in which the ground of cancellation arose in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the department
The Tribunal accepts that there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal has given this factor neutral weight against cancelling his visa.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Convention of the Rights of the Child (CROC)
The Department’s PAM 3 policy provides that the ‘obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement’ (Visa cancellation instructions, General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140)). As a signatory to the CROC, Australia has certain obligations, which are referred to in the Department’s policy. These obligations include the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).
the Tribunal accepts that, generally, it is in the best interests of a child to continue to have close contact with his or her father. The applicant and his second wife have a child together. He was born in Australia in [year]. The applicant’s second wife’s [children] from a previous relationship also resided in the same household as their mother and the applicant before his arrest. In his written submissions to the Tribunal, the applicant stated that he has spent a long time away from his family in remand and would ‘love to continue building [his] relationship with his family and son’. The applicant’s oral evidence to the Tribunal also indicated that he had a close relationship with at least one of his [stepchildren].
As noted earlier, the applicant told the Tribunal he has had no contact with his second wife and child and did not have any information or news as to their circumstances. There was no information before the Tribunal from any other source in relation to the current circumstances of his second wife, their biological son and her [children] from her previous relationship. Nevertheless, in view of the nature of the applicant’s alleged offences and his violent behaviour towards his second wife, the Tribunal considers it highly unlikely that he would be able to have any meaningful involvement or even contact with his second wife and all [children].
Furthermore, in the absence of any evidence to the contrary, it would be reasonable to assume that the applicant’s second wife remains the children’s primary carer and she is entitled to feel safe and free from violence or fear of violence. The applicant has denied harming the children and there is no evidence before the Tribunal to suggest that he had ever done so. The fact that the applicant allegedly attempted [details deleted] whilst the children were present in the house at the time of the offence, raises the question as to whether any close contact between the applicant and the children, including his biological son, would in fact serve any of their best interests. The Tribunal is of the view that in the circumstances of this case and in light of the serious nature of the applicant’s alleged offences against his second wife, it is in the best interests of the children involved, including the applicant’s biological son, for the visa to be cancelled.
Non-refoulement obligations
Other than CROC, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[10]
[10] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16).
As noted above, the applicant’s protection visa application was initially refused by the then Department of Immigration. Before the RRT, the applicant claimed to fear harm in Afghanistan on the basis of his Hazara race, his support for a pro-Hazara parliamentary candidate, his imputed anti-Taliban political opinion and his conversion to Christianity. On 31 March 2014, the RRT accepted that the applicant is a Hazara and that he had supported a pro-Hazara political candidate, which had led to threats of harm from the Taliban. The RRT found that the applicant had a well-founded fear of persecution in Afghanistan and that he is a person in respect of whom Australia has protection obligations under the Refugees Convention.
As the applicant was granted a protection visa, he remains a person in respect of whom Australia has non-refoulement obligations. Nevertheless, the Tribunal has considered it necessary to reassess these obligations.
In his submissions to the Tribunal in support of the review application for the decision under review, the applicant stated that he would be at risk of harm in Afghanistan because he is ethnically Hazara and belongs to the Shi’a sect of Islam. Hazara Shi’as are regarded as ‘heretics, hypocrites and infidels.’ He would also be targeted as a returnee from Australia. In his oral evidence to the Tribunal, the applicant reasserted his claims that he had converted to Christianity in Australia.
The Tribunal accepts that the applicant is a Hazara and had identified as a Shi’a Muslim before coming to Australia. At the hearing, the applicant told the Tribunal that he was baptised in [City 1] in 2013 and had attended the local church until his move to [City 2] in 2014. He did not go to church or engage in any Christian related activities in [City 2] between 2014 and 2018 when he was incarcerated. He told the Tribunal that he had been unable to go to church because he was working 6-7 days a week. However, he still considered himself a Christian and had attended ‘worship’ at the correctional centre when services were arranged by a private company. He had stopped attending ‘worship’ when new arrangements were put in place by ‘the government’ following the Covid19 outbreak. Whilst the applicant’s evidence casts some doubt as to the genuineness of his conversion, the Tribunal is prepared to give him the benefit of the doubt and accept that he considers himself a Christian convert. The applicant told the Tribunal that not many people are aware of his conversion to Christianity. However, he also stated that, if removed to Afghanistan, he would be expected to go to mosque and participate in Shi’a religious activities. If he does not conform to these expectations, he will be seen as a non-believer.
According to the Australian Department of Foreign Affairs and Trade’s 2019 Country Information Report in relation to Afghanistan,
Individuals converting from Islam have reported that they risked the annulment of their marriages, rejection by their families and communities, loss of employment, and possibly the death penalty. DFAT does not have any additional information in relation to these assertions, or in relation to the number of individuals attempting to convert.[11]
[11] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.
On the basis of this information, the Tribunal is satisfied that if the applicant’s visa was cancelled and he were to be removed to Afghanistan, there is a real chance that he would face serious harm for the reason of his religious beliefs, regardless of which area he returns to. Even if the applicant’s conversion to Christianity does not become known to others in Afghanistan, for the following reasons, the Tribunal finds that there is a real chance that he would face persecution for the reasons of his ethnicity and imputed Shi’a faith, as the overwhelming majority of Afghan Shi’a are Hazara.[12]
[12] Ibid
The applicant was born in [Village 1] of Ghazni Province. He told the Tribunal that his parents and siblings have all passed away and he has no relatives in Afghanistan. The Tribunal finds that if removed to Afghanistan, the applicant has no incentive to his home village in Ghazni.
According to DFAT, ‘returnees from western countries almost exclusively return to Kabul’ and that ‘many returnees choose to remain in Kabul for economic reasons rather than return to their home provinces.’[13] In April 2020, the Office of the Commission General for Refugees and Stateless Persons (Belgium) stated:
Many returnees end up in Kabul City because of relatively higher security than in their regions of origin and because of expectations of more job opportunities, better services and support facilities and prospects of social acceptance.[14]
[13] Ibid.
[14] Office of the Commission General for Refugees and Stateless Persons (Belgium), COI Focus - Afghanistan: Security Situation in Kabul City', 8 April 2020.
The Tribunal finds that the applicant is likely to return to Kabul and has proceeded to assess his fear of persecution against that place.
In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi’a targets. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.[15]
[15] Ibid.
In its 2018 Annual Report on Protection of Civilians in Armed Conflict, the United Nations Assistance Mission in Afghanistan (UNAMA) provided the following information:
[ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.[16]
[16] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019,
In 2018, UNAMA documented high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi’a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern about ‘the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.’[17]
[17] UNAMA, ‘Afghanistan Annual Report on Protection of Civilians in Armed Conflict: 2018’, February 2019, >
UNAMA also observed that while the majority of sectarian-motivated attacks against Shi’a Muslims in 2017 occurred in places of worship, the majority of attacks against Shi’a Muslims in 2018 occurred in other civilian areas, including in Shi’a Muslim majority or ethnic Hazara neighbourhoods. UNAMA’s report referred to the following examples:
[In] Kabul city, on the morning of 22 April, a suicide attacker detonated a body-borne IED outside the entrance of a tazkira (national identification card) distribution centre in a Hazara populated area where a large crowd of local residents were gathered to collect their tazkiras as the first step of the voter registration process. As a result, 60 civilians were killed, including 23 women and 11 children, and another 138 were injured, including 65 women and 17 children. Daesh/ISKP claimed responsibility for the attack explicitly citing a sectarian motive. On 15 August, in another egregious incident, in Dasht-i-Barchi, a Shi’a Muslim majority area of Kabul, a suicide attacker detonated explosives inside a classroom of an educational centre. As a result, 40 civilians were killed, including at least 14 females, some of whom may have been under 18, and 67 were injured, including at least five children and 14 women.[18]
[18] Ibid.
In relation to Kabul specifically, the report observed that the attacks perpetrated in Kabul mainly targeted civilians, including the civilian Government administration, places of worship, education facilities, election-related sites and other ‘soft’ targets. UNAMA concluded:
Attacks on Shi’a Muslims infringe their right to freedom of religion, and the wide scope of these attacks beyond places of worship – at education centres, sports clubs, celebratory events and other social gatherings – directly impede their ability to carry out normal lives.[19]
[19] Ibid.
In May 2019, the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) referred to a number of sources in observing that Kabul is ranked high in the category of districts where the inhabitants are most impacted by the conflict and a continuing pattern of ISKP attacks on soft targets in the western Shi’a/Hazara neighbourhoods of the capital, where the group has attacked schools, mosques and training centres.[20] CGRS referred to numerous incidents in the reporting period where Shi’a Muslims were, for example, deliberately targeted in the ISKP-claimed attacks in Kabul:
Kabul remains a violent city, with attacks by anti-government elements (AGE) ongoing in 2020. Violent attacks have been perpetrated by AGE, including the Taliban and ISK against civilian targets during the first six months of the year. The most notable attacks in Kabul include an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed.[21] The same ceremony was also attacked in 2019 and ISK claimed responsibility for both attacks.[22] In an attack on 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shi’a neighbourhood and home to a large Hazara population, killing 24 people, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISK.[23]
[20] CGRS, Afghanistan, COI Focus - Security Situation in Kabul City, 15 May 2019,
[21] Najim Rahim and Mujib Mashal, 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', The New York Times, 6 March 2020.
[22] Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul', The Defense Post, 6 March 2020, Stefanie Glinski, Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Foreign Policy, 14 May 2020,
The Tribunal further accepts that, as a Hazara, the applicant will continue to identify and associate with the Hazara community should he return to Kabul. The Tribunal finds that, if the applicant were to return to Kabul, he would likely reside in majority Hazara areas of Kabul, such as Dashte Barchi, and would be perceived as a Shi’a. As noted by the sources referred to above, attacks on Shi’as in Kabul have been wide in scope and not confined to places of worship.
The Tribunal is mindful of the fact that the security situation in Afghanistan overall is fluid. However, on the basis of the current evidence before it, the Tribunal is of the view that there is a real chance that the applicant would be subjected to serious harm in Kabul as a result of violence perpetrated by anti-Shi’a groups, including ISKP. Furthermore, the Tribunal finds that there is a real chance that the applicant’s his conversion to Christianity and his association with Christian churches in Australia may become known in Afghanistan, exposing him to serious harm. The Tribunal finds that the serious harm the applicant will be subjected to includes threats to his life and serious physical harm. The Tribunal is satisfied that such treatment would amount to persecution.
The Tribunal has considered whether the real chance of persecution relates to all areas of Afghanistan, being mindful that the areas in which there is freedom from persecution must be areas where there is safe human habitation and to which safe access is lawfully possible.[24] In FCS17 v MHA [2020] FCAFC 68, the majority of the Court held that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[25]
[24] See FCS17 v MHA [2020] FCAFC 68 at [81], [21].
[25] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [80]. Allsop CJ expressed general agreement with the reasons of White and Colvin JJ: at [1].
The sources consulted by the Tribunal indicate that there are areas in Afghanistan, namely Bamiyan in Hazarajat and Mazar-e-Sharif in Balkh Province, that may be considered safe for Shi’a Hazara returnees.
In its June 2019 Country Information Report, DFAT described Hazarajat as ‘a mountainous region consisting of the provinces of Bamiyan and Daykundi and parts of the provinces of Ghazni, Ghor, Uruzgan and Wardok which is the traditional homeland of the Hazara.’[26]
[26] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.
The same report stated.
The security situation in the Hazarajat, particularly Bamiyan province, has been considerably better than in most other parts of Afghanistan in recent years. There are a number of factors behind this: the Hazara comprise the vast majority of the population in most districts in these provinces, which means there are fewer opportunities for ethnic tension; and because the Hazara are visually distinct, non-Hazara have found it difficult to infiltrate these areas without detection. The mountainous terrain of the Hazarajat also offers a form of natural protection, with few routes for outsiders to traverse these provinces… Security conditions in other parts of the Hazarajat, however, deteriorated significantly in 2018…
DFAT assesses that Hazara residing within the Hazarajat (particularly within Bamiyan province) face a lower risk of experiencing conflict-related violence than are those residing in other parts of the country, particularly those residing in Kabul. Those residing in the Hazarajat are also at a lower risk of experiencing societal discrimination in relation to employment opportunities than those residing elsewhere due to their being in the ethnic majority.[27]
[27] Ibid.

Whilst the above information suggests that there is safe human habitation in Hazarajat, there appear to be considerable impediments to a returnee’s ability to safely access the more secure parts of Hazarajat, namely Bamiyan.
Bamiyan has the only functioning airport in Hazarajat. The Tribunal has found no reliable information in any of the open sources consulted to suggest that there are currently any flights to Bamiyan from Kabul. In order to access any area in Hazarajat, the applicant would be required to travel by road.
More generally, the ability to travel by road in Afghanistan is affected by the poor quality of the road network, particularly in the mountainous central highlands involved in travel around the central provinces and Hazarajat region of Afghanistan. The government’s capacity to undertake construction and maintenance of its roads, like other infrastructure and administrative services, is negatively affected by various factors including political disunity, the struggling economy and government corruption.[28] In its 2017 Thematic Report on Hazaras in Afghanistan, DFAT also observed that snowfall makes travel in winter difficult in these areas, and ‘can prevent travel on roads at higher altitudes for extended periods.’ This information also applies to road travel between Jaghori, Ghazni province and neighbouring Wardak to the south, where travellers may face similar logistical problems.[29]
[28] DFAT, Thematic Report on Hazaras in Afghanistan, 18 September 2017.
[29] Ibid.
According to DFAT, ‘while Bamiyan province and (to a lesser extent) Daykundi province are largely secure, ongoing armed insurgency has affected the provinces surrounding them and road transportation links between the Hazarajat and major cities are far from secure.’[30]
[30] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.
DFAT’s Thematic Report on Hazaras in Afghanistan stated:
The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road… DFAT assesses that Hazaras face a greater risk than other ethnic groups of being targeted for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, particularly while travelling to or from the Hazarajat. In addition, economic and employment opportunities may be more limited in the Hazarajat than in other parts of the country.[31]
[31] DFAT, Thematic Report on Hazaras in Afghanistan, 18 September 2017.
In its June 2019 report, DFAT reiterated these views:
Insecurity compounds the poor condition of Afghanistan’s limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common…
Criminals and insurgents on roads tend to target people who appear wealthy, or are associated with the government or the international community… People from all ethnic groups are vulnerable to these attacks. It can be difficult to ascertain the motivation for attacks, and to separate criminal attacks from insurgent activity.
In-country sources have advised that ethnic targeting can play a role in the selection of victims once an abduction is in progress, and that Hazara are particularly at risk in this regard. In one November 2015 case, militants stopped a number of buses travelling through Zabul province en route from Kandahar to Kabul. After demanding identification from passengers, the militants reportedly took away only the Hazara passengers. In-country sources also continue to report the issue of ‘spotters’ at bus stations calling ahead to tell insurgents or criminals which buses are carrying Hazaras. As a result, some bus companies have reportedly refused to sell tickets to Hazaras because of a perception that having them on board increases the probability that insurgents or criminals will stop their buses.
DFAT assesses that while abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped. [32]
[32] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.
Information published by the website Dangerous Roads, indicates that Behsud-Kabul Highway is the main road connection of Kabul with Hazarajat. It is noted: ‘This road tests the skill, and courage, of any driver. It’s definitely not for anyone suffering from vertigo or a fear of landslides.’[33] According to one report, a local driver stopped accepting requests to drive passengers from Kabul to the Hazarajat, because he did not want to see his passengers being kidnapped or killed:
There are no statistics available charting the number of killings that have taken place along “Death Road”, but the growing sense of insecurity has seen Mohammad Zaman, who used to drive passengers in and out of Hazarajat, finally admit defeat.
“I gave up driving and sold my car because … I did not want to witness my passengers being kidnapped or killed again,” he tells AFP.
The protests which swept Kabul on November 11 appeared to catch authorities off guard and highlighted increasing fury at the Hazaras’ sense they have been left unprotected by the government…
But for the Hazaras, the road to Bamyan is still marked with terror.
“The roads are insecure, many people are being beheaded,” Shaima Abedi, a Hazara university student, tells AFP.
“I just wish one day to be able to travel to Hazarajat without fear of being killed on the way.”[34]
[33] ‘Unai Pass’, Dangerous Roads,
[34] Hunted Hazaras travel 'Death Road' through Afghanistan’, Business Standard, 5 December 2015,
On the basis of the information before it, the Tribunal is not satisfied that safe access to Bamiyan is possible for the applicant.
With regard to Mazar-e-Sharif, the capital of the Balkh Province, DFAT has reported that the city maintains extensive economic links with other northern provinces and with Kabul and is the most popular destination for migrants.[35] In 2008 Mazar-e Sharif was reported to have had an approximate population of 375,181.[36] The city’s population is reported to be comprised of a mix of Sunnis (including ethnic Pashtuns, Turkmen, Uzbeks, and Tajiks) and Shia (Hazaras and Qizilbash), including Shia Ismailis.[37]
[35] DFAT, DFAT Country Information Report – Afghanistan, 27 June 2019.
[36] Ministry of Rural Rehabilitation and Development (MRRD), Balkh Provincial Profile, 1 January 2008, US Department of State, Afghanistan - International Religious Freedom Report July to December 2010, 13 September 2011, Sec. 1,
According to the website flightconnections.com, Mazar-e-Sharif Airport is the second largest airport in Afghanistan.[38] There are currently regular direct flights from Kabul to Mazar-e-Sharif.[39]
[38] See
[39] See, for example, >
In 2014, DFAT assessed that the Government of Afghanistan maintains effective control in Mazar-e Sharif.[40] While pockets of insecurity were reported in the western districts, Balkh and its capital, Mazar-e Sharif, were reported to be among the most secure areas in Afghanistan and to be flourishing economically.[41] However, more recent reports indicate that the security situation in the northern region around Mazar-e-Sharif city and in Balkh province has deteriorated. In the weeks from 22 June to 12 July 2020, Balkh province had the highest number of security incidents of the five northern provinces as classified by the United Nations Office for the Coordination of Humanitarian Affairs.[42] A Pajhwok Afghan News article, on 22 July 2020, reported the deteriorating security conditions in, and surrounding, Mazar-e-Sharif city. The report noted the ‘insecurity had reached the four gates of Mazar-i-Sharif City’ and ‘residents of the province due to lack of security could not walk in the evening and could not come out of homes after evening.’ According to the report, police in Mazar-e-Sharif city are potentially negligent in their lack of control of crime and illegally armed men.[43]
[40] See the DFAT Country Report – Afghanistan, 26 March 2014, paragraphs 2.28, 3.14 and 5.2.
[41] Insecurity may grip several Balkh districts’, The Frontier Post, 10 June 2015, "The 2015 Insurgency in the North (3): The fall and recapture of Kunduz", Afghanistan Analysts Network, 16 October 2015, (Opens in a new window).
[42] UN Office for the Coordination of Humanitarian Affairs, Afghanistan Weekly Humanitarian Update (22 June – 28 June 2020), 01 July 2020, p. 2; and Afghanistan: Weekly Humanitarian Update (29 June – 5 July 2020) – p. 2.
[43] 'Police found negligent to be terminated: MoI', Khwaja Basir Fitri, Pajhwok Afghan News -Afghanistan, 22 July 2020, >
Attacks in Mazar-e-Sharif through 2020 include, a bomb attack on 14 January 2020, killing two children. This was followed by a secondary explosion when people arrived at the scene, wounding another seven civilians and the district governor’s bodyguard.[44] On 16 March 2020, a bomb attached to a motorbike killed one police officer and wounded four people, including three civilians. One civilian was killed and another wounded on 1 July when a roadside bomb was detonated. A secondary device was detonated when security forces responded to the original attack. Five other civilians and five members of the security forces were also wounded.[45] This information points to the deterioration of the security situation in Mazar-e-Sharif and it can longer be said that it is one the most secure areas in Afghanistan.
[44] Fahim Abed and Fatima Faizi, 'Afghan War Casualty Report: January 2020', New York Times Magazine, 30 January 2020, Ibid.
In addition, the Tribunal is mindful of reports indicating that Mazar-e-Sharif is experiencing severe food insecurity and has been ‘severely hit by the impact of COVID-19 on the economic accessibility to food.’[46] In May 2020, the Agency for Technical Cooperation and Development (ACTED), a French humanitarian NGO, initiated a project to provide ‘immediate life-saving food security assistance to 38,500 protracted IDPs (5,500 Households) in vulnerable employment status and facing significant decrease in purchasing power in Mazar-e-Sharif’.[47] ACTED stated on its website:
Following the outbreak of COVID-19 and consequent lockdown measures, disrupted livelihoods and reduced income coupled with chronic underlying poverty have further challenged families’ capacity to purchase essential food supplies, while food insecurity is already severe across Afghanistan.[48]
[46] Giuliano Battiston, Afghanistan and Pakistan: The Never-Ending Crisis', Italian Institute for International Political Studies, 09 July 2020, ACTED, Provision of emergency food assistance through vouchers to most vulnerable protracted IDPs in Mazar-e-Sharif, May 2020, Ibid.
The European Country of Origin Information Network (ECOI) has reported that, according to forecasts by the Famine Early Warning System Network, in the period April to September 2020, Mazar-e Sharif would reach ‘the third highest level of the classification system’. At this ‘crisis ‘level, ‘households either have food consumption gaps which are reflected by high or above-usual acute malnutrition; or are marginally able to meet minimum food needs but only by depleting essential livelihood assets or through crisis-coping strategies.’[49]
[49] ECOI, Security situation and socio-economic situation in Herat-City and Mazar-e Sharif, 30 April 2020,
On the basis of the information before it, the Tribunal considers Mazar-e-Sharif to be unsafe. The Tribunal also finds that, in view of the current prevailing conditions in the city, the applicant would be exposed to ‘a likely inability’ to find food, as well as work.[50] The Tribunal, therefore, finds that there is a real chance that the applicant will face persecution involving serious harm for the reasons of his race, religion and imputed political opinion. The Tribunal finds that the applicant’s real chance of persecution relates to all areas of Afghanistan.
[50] See FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [80].
In his submission of 20 September 2019, the applicant claimed that, due to Australia’s military involvement in the conflict in Afghanistan, he would be regarded as a ‘cowardly spy who is involved in espionage and traitorous behaviour or thoughts’. According to DFAT, most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return. However, people in this situation ‘do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile.’ The Tribunal has already found the applicant to be at risk of harm for the reasons of his race, religion and imputed political opinion.
The applicant has also claimed that, due to the nature of the allegations against him, he has been threatened with harm by his [Relative A], [Mr B], who is a [senior officer] in the National Afghan Army. The applicant raised this claim at the hearing only after he was prompted by the Tribunal. When asked how he knew his [Relative A] is a [senior officer], he said he has seen photos of him posing with bodyguards. The applicant did not offer any further information in support of this claim and the Tribunal finds his evidence in this regard unpersuasive. In reaching this view, the Tribunal has also taken into account the applicant’s vague and highly unpersuasive evidence regarding his second wife and her circumstances. For example, he stated that he did not know when his second wife arrived in Australia, what her immigration status is, if she has any relatives in Australia, or if she was previously married. When it was put to him that, given the length of the relationship, the Tribunal found his lack of knowledge odd, he said he did not know anything about his second wife’s past relationship. The Tribunal finds the applicant’s evidence unconvincing and does not accept his claims in relation to his [Relative A] to be reliable or credible.
The obligation not to refoule a refugee is contained in Article 33(1) of the Refugees Convention. As the Tribunal has found that the applicant faces a real chance of being subjected to serious harm in Afghanistan, the Tribunal finds that Australia may be in breach of its international obligations under the Refugees Convention if the applicant was removed to Afghanistan as a consequence of the cancellation of his visa,
However, Articles 32 and 33 of the Refugees Convention allow a country to return a refugee to their home country on grounds of national security or public order, or where there are reasonable grounds for regarding that person as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. The applicant has not denied the charges against him and should he be convicted of the offences he has been charged with, the Tribunal is of the view that his removal from Australia would not be in breach of Australia’s non-refoulment obligations under the Refugees Convention.
There are no such exceptions in international law under the CAT or the ICCPR and the applicant’s removal may also be in breach of Australia’s obligations under these Conventions. For the same reasons outlined in relation to the applicant’s real chance of facing persecution in Afghanistan, the Tribunal finds that the there is a real risk that the applicant will be subjected to harm amounting to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in s.5(1) of the Act.
Its important to note that the cancelation of the applicant’s visa in itself would not be in breach of any of Australia’s non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia.
An applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is ‘irrelevant’ to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person ‘as soon as reasonably practicable.’ However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements.
In the context of mandatory visa cancellations under s.501CA of the Act, decision-makers are required to consider certain matters contained in Ministerial Direction 90, made under s.499 of the Act. Ministerial Direction 90 provides (as did its predecessors) that the existence of a non-refoulement obligation does not preclude cancellation of a non-citizen’s visa, as Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.[51] It further directs decision makers to weigh the non-refoulement obligation against the seriousness of a non-citizen’s criminal offending.[52]
[51] Ministerial Direction No 90, s 2, para 9.1(3).
[52] Ministerial Direction No 90, s 2, para 9.1(2).
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[53] the Full Court of the Federal Court considered an appeal from the decision of the primary judge dismissing an application for judicial review of a decision of the General Division of this Tribunal not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Act. It was contended before the Full Court that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error when it reasoned that ‘there is only a low risk that Australia will breach its non-refoulement obligations’ in respect of the Appellant. The Tribunal had relied on statement of policy contained in the then Direction 79 (Direction 90’s predecessor) that Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. The Full Court held:
In our opinion, read fairly, all the Tribunal was saying in its finding at [268] was that it took the statement of executive policy at face value: namely that Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. As between one branch of the executive and another, especially where the Direction had binding force on the Tribunal, that could not be said to be an inappropriate position for the Tribunal to take.[54]
[53] [2021] FCAFC 55
[54] Ibid, per Kenny and Mortimer JJ [at 149].

The Court also held that, ‘although in a literal sense the terms of s 197C and the intention of executive policy may pull in different directions’, there is no necessary inconsistency between the terms of s.197C of the Act and the executive policy in the relevant paragraph of Direction 79, which the Tribunal had applied.
Executive policy and s 197C operate on different repositories of power, with different functions within the legislative scheme, and outside it. They are not necessarily inconsistent, although where a person is found to engage Australia’s non-refoulement obligations, any executive policy or executive action which intends to postpone or control the performance of the duty in s 198 could only do so in circumstances which fit within the concept of “as soon as reasonably practicable” as affected by s 197C…[55]
[55] Ibid [at 134].
Direction 90 does not apply to visa cancellations under s. 116 of the Act, and the Tribunal does not purport to consider it in the present case. Nevertheless, it appears to stand as a strong statement of Australia’s commitment to its international non-refoulement obligations. Not to forcibly remove a person to a place where they may be subjected to particular forms of harm is described as a ‘critical component’ of the Department’s status resolution and removal framework.[56] Australia’s commitment to the international human rights instruments it is a signatory to is observed throughout the Department’s status resolution processes which provide opportunities for non-refoulement obligations to be reassessed before removal, where appropriate. For example, in certain circumstances, an International Treaties Obligations Assessment (ITOA) may be conducted to determine whether Australia’s non-refoulement obligations are engaged before a non-citizen is involuntarily removed from Australia.[57] In addition, where a protection visa has been cancelled and the visa holder has been found to engage Australia’s non-refoulement obligations, it may be appropriate for the purposes of status resolution, for the matter to be referred to the Minister for consideration under s.48B and s.195A Ministerial Intervention Powers.[58]
[56] PAM3 Act – Compliance and Case Resolution - Immigration Compliance and Status Resolution Framework (issue date 25/05/2018), para 5.5.
[57] Refugee and Humanitarian instructions - PAM3: International Treaties Obligations Assessments (re-issue date 18/08/2017)
[58] PAM3 - Refugee and Humanitarian instructions - The ministerial intervention power under s48B of the Migration Act 1958 (re-issue date 01/07/2019).
As noted by the Full Federal Court in WKMZ,
[The] operation of s 198 read with s 197C allows for the executive to have time, and to take active and genuine steps, to consider whether there are other alternatives to refoulement: the exercise of personal powers, the grant of other visas or third country resettlement. That list may not be exhaustive. Particularly in the absence of any evidence to the contrary... the Tribunal was entitled to take the approach that the executive would do what its policy says it would do.
In the absence of any other evidence of contraventions of Australia’s non-refoulement obligations, the statements referred to indicate, that as a matter of executive policy, Australia intends to respect and observe the international obligations it has undertaken. Whilst the Tribunal cannot rule out the possibility of the applicant being unwittingly removed in breach of Australia’s non-refoulement obligations, the Tribunal finds that this is unlikely and that there is only a low risk that the cancellation of the applicant’s visa will result in his removal to Afghanistan in breach of Australia’s non-refoulement obligations. The Tribunal, therefore, gives non-refoulement obligations little weight in favour of not cancelling the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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
If the applicant’s protection visa were to be cancelled, he would become an unlawful non-citizen. Under s.46A(l) of the Act, he would be barred from making a valid application for a further visa, including bridging visas. The applicant would also be affected by the operation of s.48A(1B) of the Act, barring him from making a further application for a Protection visa while in the migration zone. Consequently, the applicant will be liable to be detained under s.189 of the Act. Under s.196, a non-citizen will be kept in immigration detention until they are removed from Australia or granted a visa.
Under s.195A of the Act, the Minister may grant the applicant a visa (whether or not on application). Additionally, the Minister has discretion under s.197AB to move a non-citizen into ‘community detention’ where it is the public interest to do so. As the Minister’s powers are non-compellable and discretionary, there is no certainty that the applicant would be granted a visa or that he would be eligible for community detention. Awaiting until the Minister considers whether to exercise his powers under s.195A or s.197AB and exhausting the associated processes may take a prolonged period of time and could mean that the applicant faces the prospect of indefinite detention.
However, the applicant is currently not being detained in an immigration detention facility under the Act. He is being held in [Correctional Centre 1] awaiting his trial in connection with the offences he has been charged with. The Tribunal is of the view that in these circumstances it is highly unlikely that the Minister will exercise his discretion to grant the applicant a visa under s.195A. However, should the applicant escape conviction and be acquitted following his trial, the likelihood of him being granted a visa increases significantly. Should the applicant be convicted of the serious offences he has been charged with, it is likely that he will receive a relatively lengthy custodial sentence and will be imprisoned in a State correctional facility as a consequence of his conviction. As the applicant will not be detained in an immigration detention facility under the Act, it cannot be said that he will suffer indefinite detention as a consequence of the cancellation of his visa. In these circumstances, the Tribunal considers the prospect of the applicant facing indefinite detention under the Act as a consequence of the cancellation of his visa to be low. The Tribunal, therefore, gives this factor little weight in favour of not cancelling the visa.
Any other relevant matters

100. The Tribunal has considered the applicant’s circumstances. The applicant has been charged with serious violent offences and the Tribunal has found there are grounds for cancelling his visa. The Tribunal has given significant weight to the circumstances in which the grounds for cancellation arose and the violent nature of the alleged offences in favour of exercising the discretion to cancel the visa.
101. The Tribunal accepts that the cancellation of the visa may cause some hardship to the applicant. However, on the basis of the evidence before it, the Tribunal is not satisfied that this would be severe enough to warrant not cancelling the visa. The Tribunal has also found that the applicant is unlikely to be forcibly removed from Australia as a consequence of his visa being cancelled and that he is unlikely to face prolonged detention in an immigration detention facility under the Act. Accordingly, the Tribunal has given these factors little weight in favour of not cancelling the visa. Having regard to the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
102. The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
Shahyar Roushan
Senior Member