1908915 (Migration)

1908915 (Migration) [2020] AATA 5619 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908915
MEMBER:Kate Millar
DATE:22 December 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 22 December 2020 at 12:12pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa and citizenship applications – name, family members, death of father and visa and migration history – acknowledgment of incorrect information – discretion to cancel visa – circumstances of provision of incorrect information – present circumstances, life and work in Australia and wife and children in another country unlawfully – country information, treaties obligation assessment and non-refoulement – Hazara Shia Muslim – best interests of children – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Afghanistan. He arrived in Australia [in] February 2012 and was subsequently granted a Subclass 866 (Protection) visa. On leaving Australia to visit his wife and children he was granted a Subclass (155) (Five Year Resident Return) visa on 6 September 2018.
A forensic facial comparison conducted by the Department of Home Affairs indicated [the applicant] had previously applied for two other visas under the name [Alias], and that in these applications, different information was provided about his family composition and the death of his father.
As a result, a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs found [the applicant] had provided incorrect information on his protection visa application and cancelled his via under s.109 of the Migration Act 1958 (the Act). [The applicant] has applied for a review of this decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether [the applicant]’s visa should be cancelled.
[The applicant] appeared before the Tribunal on 30 October 2020 and was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
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, among other things, a visa holder has failed to comply with s.101 of the Act. Section 101 of the Act requires non-citizens to provide correct information in their visa applications.
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.
In this case, the alleged non-compliance by providing incorrect information relates to [the applicant]’s application for a Subclass 866 visa. Section 107A of the Act states that the non-compliance specified in a notice issued under s.107 can include non-compliances that happened at any time, including non-compliance in respect of a previous visa held by the applicant. It follows that if he provided incorrect answers in his application for a Subclass 866 visa, this can establish a ground to cancel his Subclass 155 visa.
In this case, the Department conducted a facial comparison which indicated that [the applicant] was the same person as [Alias], and as a result the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107.
The Tribunal has examined the notice issued under s.107 and is satisfied that this notice complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in the following respects:
·     At question 1 of part B of the Form 866, which asked “Give details of ALL persons included in this application” the visa holder answered “[The applicant], DOB: [Date].”
I consider this answer to be incorrect as a forensic facial image comparison showed the visa holder applied for a Global Special Humanitarian (subclass 202) visa on 4 December 2005 as ‘[Alias]’. The visa holder also stated in his response to the natural justice letter dated 22 February 2018 that his real name is [Alias], he previously applied for a Remaining Relative (subclass 115) visa under this name and he obtained a Taskera using the false name of ‘[The applicant]’.
·     At question 3 of part B of the Form 866, which asked “Has any person named in Question 1 previously made any other type of application to the department?” the visa holder answered “No”.
I consider this answer to be incorrect as the visa holder previously made applications for a Global Special Humanitarian (subclass 202) visa and a Remaining Relative (subclass 115) visa as [Alias].
·     At question 12 of part B of the Form 866, which asked “Do any of the persons included in this application and named in Question 1 have close relatives who are in Australia at the time of application?” the visa holder answered “No.”
I consider this answer to be incorrect as the visa holder previously applied for Remaining Relative (subclass 115) and Global Special Humanitarian (subclass 202) visas, in which listed his brother [Mr A] as the sponsor. The visa holder also stated in his response to the natural justice letter dated 22 February 2018 that he has two siblings including [Mr A] who is residing in Australia. As such, it appears that the visa holder had a close relative, namely his brother [Mr A] who was residing in Australia at the time of his application for a Protection visa.
·      At question 1 of part C of the Form 866, which asked “What is your full name?” the visa holder answered “[The applicant].”
I consider this answer to be incorrect as a forensic facial image comparison showed the visa holder applied for a Global Special Humanitarian (subclass 202) visa on 4 December 2005 as ‘[Alias]’. The visa holder also stated in his response to the natural justice letter dated 22 February 2018 that his real name is [Alias] and he obtained a Taskera using the false name of ‘[The applicant]’.
·     At question 31 of part C of Form 866, which asked “Have you ever had, or used, any other passport or travel document?” the visa holder answered “Yes” and provided the following details:
·    Type of document: Passport
·    Document number: Unknown
·    Country of document: Pakistan
·    Name on passport: Unknown
·    Where is it now? [Mr B] took it from me in [Country].
I consider this answer to be partially incorrect as you previously applied for a Remaining Relative (subclass 115) visa and provided an Afghan passport … as evidence of your identity. As such, it appears that previously held an Afghan passport, which you did not declare in your Protection visa application form.
·     At question 34 of part C of the Form 866, which asked “Did you ever travel outside your home country or country of residence before your current journey to Australia?” you answered “No. See attachment.” In the attachment to Form 866, you indicated that you resided in Pakistan from 1998 to 5 November 2011.
I consider this answer to be incorrect as you subsequently declared in your Citizenship application that you and your family fled to Pakistan in 2001. In your Global Special Humanitarian (subclass 202) visa application, the primary applicant [Ms C] claimed she left Afghanistan in 2005 and she was residing with you in Pakistan. Your sister-in-law [Ms D] also advised the Department in her Partner visa application lodged on 28 November 2006 that you were residing in Iran.
·     At question 43 of part C of the Form 866, which asked “Why did you leave that country?” you answered “Please see applicant’s statement of claim.” In the statement of claims you indicated that your father was killed by the Taliban while he was working at a farm in 1998 after they had ordered him to change his, his wife and sons’ religion but he had refused to change his religion. You also indicated you and your family left Afghanistan and fled to Pakistan because you feared being killed along with your father.
I consider this answer to be incorrect because you subsequently declared in your Citizenship application that your father had passed away from [cancer] around the time your older brother [Mr E] went missing in 2000. As such it appears that your father was not killed by the Taliban because of his refusal to change his religion and you did not leave Afghanistan because you had a fear of being killed with your father. I consider you changed your account of your father's death to strengthen your protection claims in your Protection visa application.
·     At question 44 of part C of the Form 866, which asked “Have you experienced harm in that country?” you answered “Please see applicant’s statement of claim.” In the statement of claims you indicated that your father was killed by the Taliban while he was working at a farm in 1998 after they had ordered him to change his, his wife and sons' religion but he had refused to change his religion. You also indicated you and your family left Afghanistan and fled to Pakistan because you feared being killed along with your father.
I consider this answer to be incorrect because the visa holder subsequently declared in his Citizenship application that his father had passed away from [cancer] around the time his older brother [Mr E] went missing in 2000. As such it appears that the visa holder did not experience harm in Afghanistan as a result of his father being threatened and killed by the Taliban.
·     At question 45 of part C of the Form 866, which asked “What do you fear may happen to you if you go back to that country?” the visa holder answered “Please see applicant’s statement of claim.”
In the statement of claims, the visa holder indicated that his father was killed by the Taliban after refusing to change his and his family’s religion and if he was forced to return to Afghanistan, he fears he would be at risk of being harmed, tortured or killed. The visa holder claimed his uncle was tortured and threatened by the Taliban when he returned to his farm in Afghanistan around 2010 and he fears the Taliban will physically harm and torture him in the same way as his uncle. The visa holder also claimed that it was too dangerous to remain in Pakistan and he needed to escape because he feared groups such as Lashar e Janghavi and Sepahe Sahaba would kill him.
I consider this answer to be incorrect as the visa holder subsequently declared in his response to the letter dated 22 February 2018 for his Citizenship application that his father passed away from a [disease] and he used a false identity upon his arrival in Australia for his Protection visa application to avoid a negative migration outcome. This raises serious concerns over the credibility of the visa holder's protection claims based on the purported treatment of his father and uncle by the Taliban.
·     At question 46 of part C of the Form 866, which asked ‘Who do you think may harm/mistreat you if you go back?” the visa holder answered “Please see applicant’s statement of claim.” In the statement of claims, the visa holder indicated that his father was killed by the Taliban after refusing to change his and his family’s religion and he fears the Taliban will kill him, subject him to cruel, inhumane or degrading treatment, or physically harm and torture him as they treated his uncle when he returned to Logar, Afghanistan in 2010.
I consider this answer to be incorrect as the visa holder declared in his response to the letter dated 22 February 2018 for his Citizenship application that his father passed away from a [disease]. I also note the visa holder confirmed he provided incorrect bio data and family composition in his Protection visa application to conceal his immigration history and to avoid a negative migration outcome out of fear of being returned to Afghanistan. This raises serious concerns over the credibility of the visa holder’s protection claims in his Protection visa application based on the purported treatment of his father and uncle by the Taliban.
·     At question 47 of part C of the Form 866, which asked “Why do you think this will happen to you if you go back?” the visa holder answered “Please see applicant’s statement of claim.” In the statement of claims, the visa holder indicated his father was killed by the Taliban after refusing to change his and his family’s religion and he fears the Taliban will kill him, subject him to cruel, inhumane or degrading treatment, or physically harm and torture him as they treated his uncle when he returned to Logar, Afghanistan in 2010. The visa holder also claimed if he was forced to return to Afghanistan, he fears he would be at risk of being harmed, tortured or killed if he tried to return there because of his race and religion and because the Taliban has taken control of his land.
I consider this answer to be incorrect as the visa holder declared in his response to the letter dated 22 February 2018 for his Citizenship application that his father passed away from a [disease]. I also note the visa holder confirmed he provided incorrect bio data and family composition in his Protection visa application to conceal his immigration history and to avoid a negative migration outcome out of fear of being returned to Afghanistan. This raises serious concerns over the credibility of the visa holder’s protection claims in his Protection visa application based on the purported treatment of his father and uncle by the Taliban.
[The applicant] acknowledges he provided the following incorrect information in his Subclass 866 visa application:
·     His real name, which is [Alias].
·     He was an applicant for a Global Special Humanitarian visa refused 12 April 2006.
·     His family composition; he has two brothers [Mr E], who has been missing since 2000, and [Mr A] who lives in Australia.
·     He was an applicant for a Subclass 115 remaining relative visa refused on 13 July 2013.
·     His father died of [disease] and was not killed by the Taliban, and his claims that the family was specifically targeted by the Taliban were also incorrect.
It follows that his answers to the questions specified in the notice issued under s.107 of the Act were incorrect.
The Tribunal finds that there was non-compliance with s.101 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 the power to cancel this visa under s.109, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c) of the Act. The prescribed circumstances are set out in r.2.41 of the Regulations.
In considering whether to cancel [the applicant]’s visa, the Tribunal may also take other matters into account, such as those considered under Departmental policy.

A. THE PRESCRIBED CIRCUMSTANCES
The correct information

[The applicant] acknowledges his name, previous visa applications, relatives in Australia, passport, travel, and the circumstances of his father’s death are incorrect.
At hearing, [the applicant] said he was born in [Village 1], Kulangar District, Logar Province Afghanistan. It was put to him this was different to where he said he was born in the statutory declaration that accompanied his protection visa application in which he said he was born in [Village 2] in the Baraki Barak District of Logar province. [The applicant] said this was a mistake. On being asked how he could be mistaken about where he was born and lived in Afghanistan, he said he told the Department when he was in detention he was born in Baraki Barak whereas his previous visa applications said he was born in [Village 1]. The Tribunal concluded this was a further attempt to obscure his origins in his protection visa application. However, both districts are within Logar Province in Afghanistan, and the Tribunal is satisfied the correct information is that [the applicant] is a citizen of Afghanistan and was born in Logar Province.
In his application for a protection visa, [the applicant] claimed his father was killed by the Taliban in 1998 as he would not change his religion. The correct information is that his father died of a [condition] in approximately 2000.
[The applicant] said his family lived with his uncle [Mr F] and his family in Afghanistan. He said at hearing that his uncle travelled to Iran and to Pakistan and did not return to Afghanistan after the family left. On it being put to him that he had declared in the statement that accompanied his protection visa application that his uncle had returned to Afghanistan but was beaten up and tortured by the Taliban, [the applicant] said it was untrue that his uncle had returned to Afghanistan, and his statement that he feared he would be tortured like his uncle was also untrue as his uncle had not been beaten or tortured. The Tribunal considers the correct information is that the family left Afghanistan and did not return.
[The applicant] has two brothers, [Mr E] and [Mr A]. His brother [Mr A] is in Australia. He states his brother [Mr E] was taken by the Taliban before the family left for Pakistan and they have not heard from him since. On it being put to him that he had not previously said his brother was taken by the Taliban, he said that he was told that if he gave information about his siblings he would not be accepted or be able to remain in Australia, and didn’t know the consequences of saying different names.
It has been consistent across his applications that [Mr E] has been missing since 2000, and the Tribunal finds the correct information is that this brother is missing. Given his father was not killed by the Taliban as he claimed and his uncle was beaten and tortured as claimed and as he only claimed his brother was taken by the Taliban at the hearing, and not at any earlier time, the Tribunal is not satisfied his brother was taken by the Taliban as he claimed.
[The applicant] was asked at hearing whether he had travelled anywhere other than Pakistan since he left Afghanistan. He said he had not. The decision of the delegate refers to a spouse visa application listing his mother as a dependent of his brother’s wife. It is stated in this application that her son [Alias] was living in Iran. [The applicant] said his mother thought he was in Iran as he left to try to travel to Iran but was unable to cross the border at Taftan/Zahedan. There are reports of Pakistan and Iranian troops detaining people trying to enter Iran without documentation at this time.[1] There is little that turns on this point, and in light of the supporting country information, on balance the Tribunal accepts that he did not travel to Iran.
[1] ‘Pakistan troops detain eight trying to enter Iran illegally’, 10 April 2005, CX118383; ‘Pakistan border troops arrest 123 for crossing into Iran illegally’, Adnkronos International Press News Agency (AKI), 30 August 2004, CX101855; ‘Some 213 people with fake travel papers held on Pakistan-Iran border’, 27 September 2005, CX136040

The amount of incorrect information and the degree to which [the applicant] has provided inconsistent information does not provide confidence that he has been truthful with the Department or the Tribunal. The Tribunal considers that to rely on the oral evidence of [the applicant] it requires support of his oral evidence from independent reports or from a third party.
The content of the genuine document (if any)
The content of documents is not in issue in this matter.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
In the statement accompanying his claim form, [the applicant] states:
I fear that if I was forced to return to Afghanistan I would be at risk of being harmed because of my race, religion and because the Taliban has taken control of our land (farm) and will torture or kill me if I tried to return there,.
I would be at greater risk because of my protracted absence from Afghanistan.
…
In 1998 my father was killed by the Taliban. They had ordered him to change his religion and the religion of his wife and son. My father refused to change our religion – he was a very proud man who loved his religion.
One morning when he went to the farm for work the Taliban killed him.
Because of the fear of being killed along with my father we left everything behind and crossed the border into Pakistan.
At hearing, it became apparent that his claims that his uncle returned to Afghanistan and was beaten up and tortured by the Taliban were also untrue. This did not form part of the notice issued under s.107 of the Act, and while it cannot be considered in determining if there has been non-compliance in the way specified in that notice, it can be considered in whether the visa should be cancelled.
These claims were made as evidence of why he would fear harm as a person who is Shia. [The applicant] relied on both claims in his application for a protection visa, and as a result, the Tribunal finds the grant of the visa was based partly on incorrect information.
The circumstances in which the non-compliance occurred
[The applicant] said he came to Australia because his life was in danger. As a Hazara and as a Shia he was afraid he would be sent back to Afghanistan if he declared his real name and it was discovered that he had previously been refused a refugee visa.
It has not been disputed that [the applicant] is a person of Hazara ethnicity and Shia religion who is a citizen of Afghanistan.
It is also not disputed that [the applicant] left Afghanistan for Pakistan. His original application states this was 1998, and the delegate found it was approximately 2000. I am not satisfied anything turns on these dates.
The Department of Foreign Affairs and Trade report on Pakistan of 2013, proximate to the time [the applicant] claimed protection in Australia, supports his claims of high levels of generalised violence in Quetta, albeit across all sects.[2] The major threats to Shias in Pakistan are reported to be from Lashkar-e-Jhangvi (LeJ) as well as other organisations. It is noted LeJ claimed responsibility for attacks on the Shia community, particularly Hazaras in Quetta, and in 2012 declared their intention to ‘abolish this impure sect’.[3] DFAT assessed the situation as very volatile with a high risk of generalised violence that can affect Shias.[4]
[2] DFAT Thematic Report Shias in Pakistan 18 December 2013 at [2.11]
[3] At [4.5]
[4] At [4.26]
The Tribunal accepts that [the applicant] considered he was at risk of serious harm when he left Pakistan, and adopts Justice O’Bryan’s comments in BOY19 v Minister for Immigration and Border Protection[5] that:
honesty and dishonesty are not moral absolutes, and the circumstances in which a lie has been told has a substantial bearing on any perceived moral deficiency. … The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.[6]
[5] [2019] FCA 574
[6] Ibid at [71]
[The applicant] said when he was coming to Australia, the people smuggler told him that if he had previously applied for a visa his application would be rejected, and he should not give the name under which he had previously applied. He said he was told some people were in detention for two or three years. He did not tell the Department his brother was in Australia because he thought that if he had a financial supporter in Australia, he would be told he didn’t need to come to Australia.
[The applicant] said that when he left Pakistan it was not possible to work or go to the shops. He said people were killed when trying to go on a pilgrimage to Iran and this affected them mentally and they were living in constant fear they could be attacked and killed anywhere they went. He said people called him an infidel and said he was not Muslim, and wherever he would go he was harassed.
[The applicant] claimed he had been stabbed in the leg in Pakistan. On being asked about this at hearing, he said he could not really remember, he was going to work when two or three people charged at him and said he was a Shia infidel and was not Muslim. He was attacked with a knife and was injured in his [leg], one to two years before he left Pakistan, but has recovered. Given the caution with which the Tribunal approaches statements made by [the applicant] to bolster his claims for protection, and his lack of recollection of this event at the hearing, it does not have sufficient information to conclude any injury he suffered was a result of being targeted because of his ethnicity or religion.
The Tribunal does accept that he was in fear and was harassed, and that incidents occurred that targeted the Hazara community. It is satisfied that the incorrect information he provided was in the context of fearing he would be returned to Afghanistan if eh disclosed his previous visa applications or that his brother was in Australia.
At the time he left his wife was pregnant with his first child. He said he would not have left her if his life was not in danger and he had no choice.
The circumstances in which the non-compliance occurred result in the Tribunal placing less weight on the nature of the incorrect information provided.
The present circumstances of the visa holder
On arriving in Australia [the applicant] worked in [a Workplace 1], and then in a [Workplace 2] before working as a subcontractor in a [Work sector] company. He said he started his own [Work sector] company in 2015, and his brother and 4–5 other people work for him as subcontractors. He provided tax returns showing he conducts [Work sub-sector] services, and has subcontracted a number of other workers, generally for small amounts, however for three subcontractors including his brother he has paid amounts approaching $20,000 in the 2020 tax year.
[The applicant] married in Pakistan and states he has two children, born in [Year] and [Year], who live in Pakistan with his wife and her family. He said the circumstances are difficult for his children and it is an injustice for them as they need him as a father. He said he misses them a lot and had no choice but to try and get a visa so they can also obtain a visa. He said his wife is mentally not good, and when he travelled to Australia there was news about a boat that sank, and his wife thought he had drowned and she had a miscarriage. He applied for a spouse visa for his wife, however it was not processed, presumably because his visa was cancelled.
[The applicant] repeated during the hearing that he does not have a good memory and has been away from his family too long to cope, and it has affected him mentally as he was expecting to become a citizen. The Tribunal asked how this was compatible with running a successful business, and he said that work has helped him and lowered his stress levels. The Tribunal considers he was struggling to recollect previous answers given as he continued to attempt to provide a consistent account which became increasingly difficult with the number of pieces of incorrect information he had provided.
[The applicant] has been out of Australia to visit his family for approximately six weeks in 2013, four months in late 2013 / early 2014, five months in 2015, four months in late 2016 / early 2017 and one week in 2018.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Subdivision C of Division 3 of Part 2 of the Act contains the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
There is no information before the Tribunal that [the applicant] has subsequently failed to comply with his obligations.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate does not cite any other instances of non-compliance, and there is no information before the Tribunal to indicate any other non-compliance.
According to the delegate, [the applicant] applied for Australian citizenship on 25 October 2016 and declared in that application that he has never been known by another name. It follows that [the applicant] maintained the incorrect information in that application. [The applicant] states he obtained a taskera in his false name by providing a false name, a false name for his father, and his grandfather’s name to the embassy in Canberra. He was issued a taskera in his false name.
In his response he states that once he had been given a visa in his false name he felt trapped and could not tell the truth for fear of being deported from Australia.
The time that has elapsed since the non-compliance
It is now over eight years since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is nothing before the Tribunal to show [the applicant] has otherwise breached the law.
Any contribution made by the holder to the community
[The applicant] works as [an Occupation] and provided a notice of assessment showing his taxable income in 2020 was $70,606 from his business and that he employed 15 individual subcontractors, with payments between $19,395 and $250 per subcontractor. His taxable income in 2019 was $53,081 and in 2018 was $196,990.
He provided a reference from the managing director of another [company] stating [the applicant] has been working as a [Work sub-sector] contractor, and has demonstrated excellent skills and workmanship, and is prompt, respectful and polite with clients, workers and fellow contractors.
[The applicant] gave oral evidence that he employs 4–5 other people. His tax returns show he subcontracts others, but not to the extent that he could be said to employ them full time. He contributes to the community through his work and taxes, as well as subcontracting others.
[The applicant] volunteers with [a Sport] Club and provided a reference from the coach stating he helps with setting up and training and drills as well as assisting in [Sport] activities for children and adults.
[The applicant] provided a letter from [an] Association stating he has been an active member for the last three years. The address and telephone number on the reference was different to that on the website of this organisation. At the hearing, [the applicant] provided details of the organisation consistent with information on the website about building a [Building] and provided the alternate address. The Tribunal is satisfied he is involved in this association. [The applicant] says he volunteers his time to assist with building the [Building], and his workers are paid at a discounted rate.
A. Other factors
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
[The applicant] arrived in Australia as an unauthorised maritime arrival. Under s.46A of the Act, if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa, and as a result the effect of the cancellation is that [the applicant] is liable to be detained under s.189 of the Act.
Under s.198(5) of the Act, he would be removed from Australia as soon as practicable. Under s.197C, Australia’s non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulment obligations. This means the potential harm to [the applicant] would not be considered before removing him from Australia.
Whether there would be consequential cancellations under s.140
Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.
There are no consequential cancellations that would occur if [the applicant]’s visa is cancelled and does not weigh for or against cancelling his visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The delegate refers to an International Treaties Obligation Assessment being conducted prior to removal of [the applicant]. As non-refoulement obligations do not apply if he is removed, the conduct of this assessment will not prevent his removal. It also means the delegate has not, in fact, assessed non-refoulement obligations in respect of [the applicant].
The principle of non-refoulement is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
Under Article 1A(2) of the Refugee Convention as amended by the Protocol Relating to the Status of Refugees, a refugee is a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.
Non-refoulement also comes into consideration under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).
Non-refoulement
[The applicant] makes claims that relate to non-refoulment, and states if he is returned to Afghanistan he will be harmed because of his race and his religion. He said he will be killed as he is Shia. He said that with the release of Taliban prisoners there is no hope of the violence decreasing, and that every day the leader of the Taliban announces they will kill Shias because they are a proxy of Iran.
He said he has nowhere to go if returned to Afghanistan as no place is safe. He states Kabul is not safe given the recent attack on a Hazara English class at the Haidan mosque. He said if he returns his facial features will identify him.
The Hazara community in Afghanistan is mostly Shia, which is a minority religion in predominately Sunni Afghanistan. The Hazara are targeted as their Asiatic facial features[7] mean they are more readily recognised.
[7]>
DFAT also reports deliberate attacks against the Shia community have caused the majority of casualties in attacks against places of worship.[8] DFAT assesses Shia face a high risk of being targeted by militant groups for religious attacks when assembling in large or identifiable groups, and the risk increases for those living in Shia majority or ethnically Hazara neighbourhoods in major cities such as Kabul.[9]
[8] [3.20]
[9] [3.35]
The United Nations Assistance Mission in Afghanistan (UNAMA) reports a reduction in civilian casualties in the period 1 January to 30 September 2020 compared with the previous year, however states the conflict in Afghanistan remains one of the deadliest in the world for civilians.[10]
[10] >
Country information available to the Tribunal shows that road safety in Afghanistan is poor, and ethnic targeting plays a role in the selection of victims of abduction or killing. The Hazara are particularly at risk in this regard, and there are reports of “spotters” at bus stations calling ahead to tell insurgents which buses are carrying Hazaras. While abduction is a risk for all Afghans, DFAT assesses Hazaras are particularly vulnerable to being selected for abduction.[11]
[11] [2.72]–[2.74]
The ability to seek the protection of the State is limited, with DFAT reporting:
The continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres. In addition, the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the government’s ability to protect its citizens even where its security infrastructure is strongest.[12]
[12] [5.2]
In the Report of the Secretary-General of the United Nations on the situation in Afghanistan and its implications for international peace and security, it is stated:
The peace negotiations between the Islamic Republic of Afghanistan and the Taliban were launched on 12 September in Doha. High levels of violence were sustained in Afghanistan, in particular in the south, resulting in continued significant numbers of civilian casualties despite the launch of the peace negotiations. [13]
[13] ‘Report of the Secretary-General: The situation in Afghanistan and its implications for international peace and security’, United Nations Secretary-General, 14 December 2020, 20201216080746 at [3]
As pointed out by Professor William Maley, the situation in Afghanistan is extraordinarily fluid, and even recent assessment of the situation does not necessarily provide an accurate picture at the current point in time. Roads that were safe to travel in other years may not be safe now.[14] Professor Maley notes the long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan.[15] The highly volatile nature of the security situation in Afghanistan is also contained in the Report of the Secretary General of the United Nations.[16]
[14] at [4] to [5]
[15] Ibid at [7]
[16] At [18]

As recently as 13 May 2020 gunmen entered a maternity hospital and killed 20 women and children. The neighbourhood of the hospital was predominantly Hazara.[17] Conflict incidents in Kabul were reported by the United Nations in the period 7–13 December 2020.[18]
[17] Afghanistan: Weekly Humanitarian Update (7 – 13 December 2020)', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 15 December 2020, 20201217100235
[The applicant] is from Logar province. It has been reported that on 6 October 2020 in Logar, the Taliban paraded a large convoy of vehicles unopposed by Afghan or Coalition troops before stopping at a building and dropping off the shadow governor of the province. It is reported this appeared to be in either the Charkh or Baraki Barak districts. It is stated that in August 2020, the Taliban released images of fighters operating in Logar. [19] A report of 6 December 2020 states that clashes have been experienced in Logar in the previous 24 hours.[20]
[19] ‘Taliban parades forces in Logar province’, BILL ROGGIO, Long War Journal, The, 06 October 2020, 20201013085538
[20] ‘21 Provinces See Fighting in Last 24 Hours: MoD’, Khaled Nikzad, Tolo News, 06 December 2020, 20201207060958
Professor Maley refers to the agreement between the Trump Administration and the Taliban in February 2020, and states this provided for the reduction of US troop numbers and a progressive withdrawal of US troops remaining, resulting in heightened risk of instability in Afghanistan adding to the risks faced by Hazaras.[21]
[21] Ibid at [16]
Given the fluidity of the situation, that those of Hazara ethnicity and Shia religion are targeted by the Taliban and are readily identifiable, the Tribunal considers that [the applicant] has a well-founded fear of persecution in Afghanistan, and returning [the applicant] to Afghanistan, whether to his own province or elsewhere, would be a breach of Australia’s non-refoulment obligations.
[The applicant] said he has been away from Afghanistan for 20 years and much has changed.
DFAT assesses that most returnees take steps to conceal their association with the country from which they have returned and keep a low profile. DFAT assesses people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile.[22]
[22] At [5.43]
The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan states there are reports that returnees from the West have been “threatened, tortured or killed by anti-Government elements on the grounds that they were perceived to have adopted values associated with these countries, or they had become ‘foreigners' or that they were spies for or supported a Western country. Returnees are reportedly often treated with suspicion by the local community as well as by State officials, leading to discrimination and isolation.” [23]
[23] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018, available at: p.46–47
The Norwegian Refugee Council and Samuel Hall found that seven out of ten Afghan refugees who return home are forced to flee again due to violence, with many of them ultimately becoming internally displaced.[24] The circumstances are exacerbated for Afghans born in Iran or Pakistan and/or who lived there for a long period of time, who are subject to the compounding factors of lack of shelter and work, and support networks to seek shelter and work; lack of customisation to Afghan norms and expectations; and the development of strong ‘foreign’ accents.[25]
[24] Kabul’s tent dwellers struggle to survive’, Norwegian Refugee Council, 22 January 2019, 20190123111605
[25] Country Guidance: Afghanistan’, EASO, June 2019, p. 75, 20191125104658
The Tribunal considers [the applicant] would be at risk of serious harm as a result of being a returnee to Afghanistan.
As a result of [the applicant]’s race, religion and being a member of a particular social group of returnees from the West, the Tribunal considers he has a well-founded fear of persecution if returned to Afghanistan, now or in the reasonably foreseeable future. The Tribunal finds that the State is unable to provide him with protection. The Tribunal finds [the applicant] falls within Art 1A(2) of the Refugee Convention and his removal from Australia would be in breach of Australia’s non-refoulment obligations in Art 33 of the Convention.
Bests interests of the child
[The applicant] said he has two children who are living unlawfully with his wife and her family in Pakistan. The Tribunal accepts it would be in the best interests of his children for his family to be reunited.
[The applicant] said he lives close to his brother and his brother’s children, who are Australian citizens. He said they are close, and he sees them once or twice a week. His brother’s children are [Ages] years old. The Tribunal accepts it is in the best interests of these children that [the applicant] remains in Australia. He employs their father which provides financial support. While he does not play a parental role with the children, the Tribunal accepts the family is close and that if he is removed form Australia, this will cause the children distress.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The Tribunal accepts that the cancellation of [the applicant]’s visa will cause financial hardship to his family in Australia and to his wife and children in Pakistan. It will place him at risk of harm.
CONCLUSION
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. It has found aspects of his oral evidence are not reliable, and that his claims in the protection visa application were made to bolster his chances of obtaining a protection visa. However, this occurred in the context of the situation being poor for Hazaras in Pakistan. The removal of [the applicant] at this point in time would be in breach of Australia’s non-refoulement obligations. Other than maintaining an incorrect name, he has complied with the laws in Australia and established a business that employs others and has contributed to the community. In these circumstances, 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 (155) (Five Year Resident Return) visa.
Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 5619

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