1910122 (Refugee)

1910122 (Refugee) [2021] AATA 780 (15 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910122
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Christopher Smolicz
DATE:15 February 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 15 February 2021 at 11:04 am
CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Afghanistan – incorrect information provided in protection application – false identity – not disclosing that he was known by another name – an ongoing land dispute with the village head – respected member of the Hazara community – best interests of Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41; Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
Background
The applicant arrived in Australia [in] October 2010 as an Irregular Maritime Arrival (IMA). He identified himself as [Name 1], an Afghan national of Shia religion and Hazara ethnicity born on [Date 1]. He claimed to be born stateless in Afghanistan, have not been known by other names and have not previously applied for refugee status or a protection visa. He has seven children. Two of his children ([Child 1] and [Child 2]) were born to his second wife [Ms A] who died 14 years ago (in 1997) after giving birth to [Child 2]. He provided his past addresses, employment history and family composition. He also claimed he fled Afghanistan for Iran with his family in 2010 after being threatened due to ongoing land disputes, and feared harm in Afghanistan by the Taliban as a Hazara Shia and being perceived as co-operating with the government.
On 26 October 2011 he was granted a Subclass 866 (Protection) visa. On 26 April 2019 he was granted a Subclass (155) (Five Year Resident Return) visa.
A forensic facial comparison conducted by the Department of Home Affairs (the Department) disclosed that the applicant had applied on 10 October 2005 for a Refugee and Offshore Humanitarian (Subclass 202) – Global Special Humanitarian visa (GSH visa) from Iran using the identity of [Name 2] (DOB [Date 2]). The application included his wife and five children and was sponsored by [Mr B] who was identified as the applicant’s cousin and an Australian citizen. It contained different family composition. The applicant also claimed he left Afghanistan for Iran in 1980 with his family to avoid enlistment and being forced to fight against Afghanistan during the USSR occupation of Afghanistan, and his children were born in Iran. This s202 application was refused on 26 October 2005.
Further, the Department’s records indicated that the applicant’s wife applied for a Subclass 202 visa on 17 February 2012 with the applicant as the sponsor, six children were listed as dependents, and this application was refused on 6 November 2013. Moreover, the Department’s record indicated that the applicant’s wife and six children applied for a Partner Subclass 100 visa on 19 September 2012 sponsored by the applicant.
On 10 March 2013 the Department requested DNA testing for the children. The applicant responded with a statement declaring that his second claimed marriage didn’t take place, and that [Child 2], [Child 1] and [Child 3] were not his biological children but were orphans that they had been caring for. Integrity checks by the Department confirmed that the applicant fabricated the existence of a deceased second wife and provided a fraudulent death certificate to include these three children as dependents. The applicant withdrew the three children’s applications, and on 13 October 2013 the applicant’s wife and three children ([Child 4], [Child 5], [Child 6]) were granted Subclass 100 visas.
As a result, the delegate found the applicant had provided incorrect information on his Subclass 866 protection visa application about his identity, family composition, relationship, address, employment history, previous visa applications and his protection claims.
The delegate cancelled the applicant’s Protection visa and the Five Year Resident Return visa under s.109 of the Act. The applicant has applied for review of both decisions.[1]
[1] The Tribunal made a separate decision in relation to cancellation of the applicant’s Subclass (155) (Five Year Resident Return) visa (MRD Case Reference 1927296)
Issue
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 10 February 2021 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. The Tribunal took evidence at the hearing from two witnesses, [Mr B] and Mr [C] who gave evidence in support of the applicant’s identity.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if, among other things, the applicant 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 applicant 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 made on 22 October 2011.
Section 107A of the Act states that the non-compliance specified in a notice issued under s.107 can include non-compliance 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 also 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 [Name 2] (DOB [Date 2]), 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(b).
The delegate found the applicant provided incorrect answers to the following questions in his Subclass 866 visa application:
At question 2 of Part B of the Form 866, where it asked, “Has any person named in Question 1 previously applied for refugee status or a protection visa from the department?” the applicant answered “No.”
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who applied for a Refugee and Humanitarian (Subclass 202) visa on 10 October 2005. Forensic facial comparison analysis of the applicant and [Name 2]’s photographs confirmed that the applicant and [Name 2] are the same person hence it appears that the applicant previously applied for refugee status from the Department.
At question 9 of Part B of the Form 866, where it asked “Are there any members of the same family unit who are NOT in Australia at the time of application?” in relation to members of the same family unit not included in this application, the applicant answered “No.”
However, the applicant provided an attachment to the Form 866, in which he declared details of non-accompanying members of his family unit living outside the country of origin. The delegate considered these answers to be incorrect as it appears that [Child 2], [Child 1] and [Child 3]) are not the applicant’s biological children and he does not have a deceased second wife, [Ms A].
Integrity checks conducted by the Department for his spouse [Ms D]’s Partner (Subclass 100) visa application confirmed that the applicant had fraudulently claimed to have a second wife; [Ms D] was his only spouse, he misrepresented the existence of the second deceased wife and provided a fraudulent death certificate to include [Child 2], [Child 1] and [Child 3] as secondary applicants.
The applicant also provided a statement to the Department on 12 March 2013 declaring that the second claimed marriage did not take place. The applicant also declared that [Child 5], [Child 4] and [Child 6] are his and his spouse’s biological children but [Child 2], [Child 1] and [Child 3] are not his and [Ms D]’s children but were orphans that his family had been caring for.
The applicant declared in the Offshore Refugee and Humanitarian (Subclass 202) visa application that all of his children were born in Tehran, Iran and provided different names of his children. This further indicates that the applicant provided incorrect answers in relation to his family composition.
At question 4 of Part C of the Form 866, where it asked “What other names have you been known by?” the applicant answered “N/A.”
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who applied for a Refugee and Humanitarian (Subclass 202) visa on 10 October 2005.
At question 7 of Part C of the Form 866, where it asked “Date of birth” the applicant answered “[Date 1].”
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2] with a date of birth of [Date 2], who applied for a Refugee and Humanitarian (Subclass 202) visa on 10 October 2005.
At question 8 of Part C of the Form 866, where it asked “Place of birth” the applicant answered “[Ghazni], AFGHANISTAN.”
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who declared his place of birth as Kabul, Afghanistan in his Refugee and Humanitarian (Subclass 202) visa application.
At question 19 of Part C of the Form 866, where it asked “Your citizenship at birth” the applicant answered “Stateless.”
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who declared his country of birth and citizenship as Afghanistan in his Refugee and Humanitarian (Subclass 202) visa application.
At question 32 of Part C of the Form 866, where it asked for “Details of countries of former habitual residence or transit before arrival in Australia” the applicant answered “See attachment.”
In the attachment, the applicant indicated that he resided in Iran from [January] 2010 to [April] 2010 as an illegal resident to take refuge and he lived in Afghanistan from 1978 to January 2010 before arriving in Australia.
The delegate considered this answer to be incorrect because [Name 2] declared in his Refugee and Humanitarian (Subclass 202) visa application that he arrived in Iran [in] March 1980, he was a temporary resident in Iran and his five children were born in Tehran, Iran in [years] respectively.
As such, it appears that the applicant has provided inconsistent information regarding his countries of former habitual residence prior to arriving in Australia and he had been residing in Iran as a temporary resident since 1980.
At question 34 of Part C of the Form 866, where it asked “Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last 10 years” the applicant answered “See attachment.”
In the attachment, the applicant indicated that he resided in Iran from [January] 2010 to [April] 2010 as an illegal resident, lived in Afghanistan from 1978 to January 2010 before arriving in Australia.
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who declared that he arrived in Iran [in] March 1980 in his Refugee and Humanitarian (Subclass 202) visa application.
The applicant provided inconsistent information regarding the addresses outside Australia where he has lived for 6 months or more and he was residing in Iran since 1980 before his arrival to Australia.
At question 40 of Part C of the Form 866, where it asked “Give details of all your past employment” the applicant answered “See attachment.”
In the attachment, the applicant indicated that he worked as a [various occupations] in Afghanistan from 1978 to 2010.
The delegate considered this answer to be incorrect as it appears that the applicant was previously known as [Name 2], who declared that he arrived in Iran [in] March 1980 and worked in Iran from 1987 to 2005 in his Refugee and Humanitarian (Subclass 202) visa application lodged at Tehran on 10 October 2005.
It appears that the applicant provided inconsistent information regarding his employment history and he was residing in Iran since 1980 and engaged in employment in Iran from 1987 to 2005.
At question 42 of Part C of the Form 866, where it asked “Why did you leave that country” the applicant answered “See attached statement of claims.”
In the statement of claims, the applicant indicated that he left Afghanistan because he and his family were threatened by the Taliban who were killing Hazara people, he had an ongoing land dispute with the Arbab in his [village], his neighbour was kidnapped by masked men and he fled with his family to Iran through a people smuggler in 2010 because he was fearful of his life. The applicant claimed that he was working in Iran illegally until he was caught by the Iranian authorities and deported to Afghanistan where he stayed for approximately three months but he made arrangements to come to Australia because it was unsafe in Kabul.
The delegate considered this answer to be incorrect as it appears that [Name 2]’s protection claims in his Subclass 202 visa application indicate that he left Afghanistan and moved to Iran in 1980 with his family to avoid enlistment and being forced to fight against Afghanistan during the USSR occupation of Afghanistan. This raises concerns regarding the veracity of the applicant’s protection claims in his Subclass 866 visa application, in particular that the applicant and his family were threatened by the Taliban in Ghazbi and Ghiagh, Afghanistan before he and his family fled to Iran in 2010 and he was deported to Afghanistan after being caught by the Iranian authorities.
At question 43 of Part C of the Form 866, where it asked “What do you fear may happen to you if you go back to that country?” the applicant answered “See attached statement of claims.”
In the statement of claims, the applicant claimed that he was fearful of his life in Afghanistan as the Taliban were killing the Hazara people and he left Afghanistan with his family for Iran in early 2010 because his brother and son-in-law disappeared after being attacked by the Taliban and after the kidnapping of his neighbour. Due to this, the applicant claimed that he feared he would be killed if he returned to Afghanistan.
The delegate considered this answer to be incorrect because [Name 2]’s protection claims in his Subclass 202 visa application indicate that he left Afghanistan and moved to Iran in 1980 with his family to avoid enlistment and being forced to fight against Afghanistan during the USSR occupation of Afghanistan. This raises concerns regarding the veracity of the applicant’s protection claims in his Subclass 866 visa application, in particular that he and his family were threatened by the Taliban in Ghazbi and Ghiagh, Afghanistan before he and his family fled to Iran in 2010 and he was deported to Afghanistan after being caught by the Iranian authorities. As such, it appears that the applicant was not in Afghanistan to experience these events, which he claimed led to his departure from Afghanistan in early 2010 and fear of being killed if he returned to Afghanistan.
At question 44 of Part C of the Form 866, where it asked “Who do you think may harm/mistreat you if you go back?” the applicant answered “See attached statement of claims.”
In the statement of claims, the applicant claimed that he feared the Taliban and other Pashtuns may harm him if he returns to Afghanistan. This was because the applicant claimed that he was fearful of his life in Afghanistan as the Taliban were killing the Hazara people. The applicant claimed he left Afghanistan with his family for Iran in early 2010 because his brother and son-in-law disappeared after being attacked by the Taliban and after the kidnapping of his neighbour.
The delegate considered this answer to be incorrect because it appears that the applicant did not reside in Afghanistan during this time but was residing in Iran since 1980. It appears that the applicant was not in Afghanistan to experience these events, which he claimed led to his departure from Afghanistan in early 2010 and fear of being harmed by the Taliban and other Pashtuns if he returns to Afghanistan.
At question 45 of Part C of the Form 866, where it asked “Why do you think this will happen to you if you go back?” the applicant answered “See attached statement of claims.”
In the statement of claims the applicant indicated that he would be killed if he returned to Afghanistan. The applicant claimed that he left Afghanistan because he and his family were threatened by the Taliban who were killing Hazara people, he had an ongoing land dispute with the Arbab in his [village], his neighbour was kidnapped by masked men and he fled with his family to Iran through a people smuggler in 2010 because he was fearful of his life. The applicant claimed that he was working in Iran illegally until he was caught by the Iranian authorities and deported to Afghanistan where he stayed for approximately three months but he made arrangements to come to Australia because it was unsafe in Kabul.
The delegate considered this answer to be incorrect because the applicant’s protection claims in his Subclass 202 visa application under the name of [Name 2] indicate that he left Afghanistan and moved to Iran in 1980 with his family to avoid enlistment and being forced to fight against Afghanistan during the USSR occupation of Afghanistan. This raises concerns regarding the veracity of the applicant’s protection claims in his Subclass 866 visa application, in particular that he and his family were threatened by the Taliban in Ghazbi and Ghiagh, Afghanistan before they fled to Iran in 2010.
At question 47 of Part C of the Form 866, where it asked “When did you leave your home country?” the applicant did not provide an answer.
However, in the attachment to Form 866, the applicant indicated that he lived in Afghanistan from 1955 to January 2010 and from April 2010 to July 2010.
The delegate considered this answer to be incorrect because the applicant claimed that he left Afghanistan and moved to Iran in 1980 with his family in his Subclass 202 visa application under the name of [Name 2]. As such, it appears that the applicant provided inconsistent information regarding his departure date from Afghanistan.

The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled. The applicant provided a detailed response to the s.107 notice.
Regarding his Protection visa application
The applicant claims non-compliance has not taken place as he does not have another identity other than his current identity of [Name 1].
He has been consistent and truthful about his identity throughout the Protection visa application process and he did not intend to mislead the Department. His answers to questions 2 and 9 of Part B of the Form 866 and questions 4, 7, 8, 19, 32, 34, 40, 42, 43, 44, 45 and 47 of Part C of the Form 866 are correct.
He is an Afghan citizen and he was born on [Date 1] in [Ghazni] in Afghanistan. His birth name is [Name 1] as shown in his Taskera from the Ministry of Interior Affairs, Afghanistan and his old Iranian temporary residence card. His refugee card corroborates his claims regarding his true identity and his friends have attested to his identity in their supporting statements.
He acknowledged that he previously used the name of [Name 2]. However, he denies he applied for a protection visa under an alternative identity of [Name 1] due to the refusal of his Refugee and Humanitarian (Subclass 202) visa application under the name of [Name 2] on 26 October 2005.
He did not disclose his previous Refugee and Humanitarian (Subclass 202) visa application in his Protection visa application because it was lodged under a false name of [Name 2], which was his forged identity.
Upon his arrival to Australia he wanted to disclose his previous Refugee and Offshore Humanitarian (Subclass 202) visa application in his Protection visa application, however he did not disclose the earlier application to the Department fearing potential negative repercussions.
The inconsistencies or incorrect information exists due to the compelling situation at the time he was living in Iran and applied for a Refugee and Humanitarian (Subclass 202) visa.
He made the wrong decision as a refugee as he had been subjected to ongoing abuse and human rights violations and as a father because he and his family did not have future prospects.
Regarding [Name 2] and his Refugee and Offshore Humanitarian visa application
He purchased an Amayesh card from another refugee in Iran with the name of [Name 2] in order to stay in Iran as a registered refugee when his family joined him in Iran in 2005. He was using the name of [Name 2] while he was living in Iran because he did not want to be deported to Afghanistan with his family.
The Amayesh card allows refugees to move freely to an extent, receive education, obtain work and reduces the risk of deportation as a registered refugee. It is common practice for refugees to sell their Amayesh cards to other refugees before they leave Iran for another country, which allows refugees to live in Iran legally under a false identity.
He easily substituted the photograph in the Amayesh registration card with his own photograph with the assistance of the Office of Alien Registration in Iran. The Office of Alien Registration does not replace names on refugee cards but only engages in photo-substitution and is aiding this practice by receiving bribes.
He was approached by agents in Iran and offered assistance with applying for an Australian visa. He and his distant cousin [Mr B] attended a gathering where they discussed Afghan refugees applying for Australian Humanitarian visas.
He decided to apply for a Refugee and Humanitarian (Subclass 202) visa with the assistance of the agency. The agency completed his Form 842 on his behalf claiming that he was [Name 2] as he did not have a good grasp of English. [Mr B] was not aware of the agency but the applicant subsequently nominated him to be his sponsor.
He paid the agency 1 million Tomran and was asked to provide his Amayesh card. He provided his fake Amayesh card under the name of [Name 2] fearing he would be deported to Afghanistan and become ineligible for the agency’s visa program if the agency became aware of his real identity. He later learnt that this was a scam where the agency had claimed the Australian government was granting visas to Afghan refugees registered in Iran.
The agency advised against mentioning that he fled Afghanistan due to the Taliban in his Refugee and Offshore Humanitarian visa application because the Taliban had been overthrown. The agency advised him to claim in his Subclass 202 visa application that he had lived in Iran for over two decades and he fled Afghanistan to avoid enlistment to fight the USSR.
His fake Amayesh card could not be extended and he was unable to find employment in Iran due to his illegal status after the card expired. He decided to voluntarily return to Afghanistan with his family in late 2005 to avoid a forced deportation from Iran.
Regarding his family members
After he arrived in Australia, he applied to sponsor his wife and dependent children. He used his real name [Name 1] and lodged the Refugee and Humanitarian (Subclass 202) visa application. On 19 September 2012 he applied for a Partner (Subclass 100) visa.
He declared his wife’s name and date of birth as [Alias of Ms D] in his Protection visa application but he subsequently corrected her family name by informing the case managers while he was in immigration detention. His wife’s official name is [Ms D] and the name of [Alias of Ms D] and date of birth on her Amayesh card are not correct. [Ms D’s first name] is a common Shia name.
He married [Ms D] in [Ghazni] in Afghanistan in 1983 and they have four children together, namely [Child 7] (DOB [Date]), [Child 6] (DOB [Date]), [Child 5] (DOB [Date]) and [Child 4] (DOB [Date]).
He never stated that all of his children were born in Tehran as it is incorrect and was done by the agent in Iran. The children’s identity documents clearly show their place of birth as Afghanistan.
[Child 2], [Child 1] and [Child 3] were orphans that he and his wife were caring for. He submitted a statement declaring this information to the Department in 2013 when it became known during the processing of his wife [Ms D]’s Partner (Subclass 100) visa application, and as a result [Child 2], [Child 1] and [Child 3] were withdrawn from the application.
He did not repeatedly misrepresent his family relationships in his visa applications to facilitate a positive migration outcome for [Child 2], [Child 1] and [Child 3].
Regarding his protection claims
The applicant claims that his claims for protection in his Subclass 866 application are correct and the inconsistencies identified by the Department should not be used to undermine or question his protection claims.
He fled Afghanistan by himself at the height of Taliban’s power and resided in Iran from 1998 to 2005. He obtained a temporary residence card when he arrived in Iran as refugees were given temporary residence cards at the time. He provided his old temporary residence card issued under the name of [Name 1].
After he returned to Afghanistan, he witnessed his brother and son-in-law being attacked by the Taliban as they were accused of working for the government in 2009. After the incident, he feared that he and his family may be targeted by the Taliban on the basis of imputed political opinion and being accused of working for the government.
He and his family had an ongoing land dispute with the village head and they fled Afghanistan fearing for their safety due to the escalating situation.
He and his family lived in Tehran for three months in 2010 and he was deported due to his illegal status while he was searching for work in Iran. He left Afghanistan around August 2010 and stayed in Quetta, Pakistan before travelling to Australia and arriving on Christmas Island [in] October 2010 as an IMA.
His protection claims were and are based on fear of harm as a Shia Hazara after witnessing attacks by the Taliban and due to an ongoing land dispute with the village head. He fears for his and his family’s safety if they were to return to Afghanistan.
The applicant also provided the following supporting documents:
·     Iranian Temporary Special Identity Card for Afghan Refugees (family no.[deleted]) for [Name 1] with English translation.
·     Birth/identity certificate from the Department of Population Registration Directorate (Ghazni) Afghanistan (Document no.[deleted] for [Name 1] issued [in] December 2017 with English translation.
·     Australian Titre de voyage for [Name 1].
·     [Ms D]’s birth and identity certificate from the Ministry of Interior Afghanistan dated 27 May 2015 with English translation.
·     [Ms D]’s Taskera and Afghan passport with details of child, [Child 3].
·     [Ms D]’s Afghan passport with an Iranian visa.
·     Iranian proof of identity for [Ms D], [Child 6] and [Child 4].
·     Afghan passports for his children [Child 6], [Child 4] and [Child 5].
·     Birth/identity certificate from Afghanistan Central Civil Registration Authority (ACCRA) for [Child 6], [Child 4] and [Child 5].
·     Taskera verification letter from ACCRA dated 11 July 2018 for [Child 4], [Child 5] and [Child 6].
·     Statutory declaration from [a named person] dated 29 September 2018.
·     Statutory declaration from [Mr C] dated 2 October 2018.
The applicant has now admitted that he provided incorrect information in:
· Form 866 Part B Questions 2, 9 and 11
· Form 866 Part C Questions 4, 14, 19, 32, 33, 34 and 40
In summary the applicant admitted that he used a false identity ([Name 2]) in 2005 when he applied for the GSH visa. When he arrived in Australia, he provided incorrect information when he applied for the 866 protection visa by not disclosing that he was known by another name and that he had previously applied for an offshore protection visa.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Consideration of evidence and claims
The applicant has applied for two visas using different identities and providing different evidence in support of each application. The Tribunal must first determine the applicant’s correct identity and why the applicant has provided incorrect information. This makes for a difficult decision.
The Tribunal was provided with detailed submissions and country information by the applicant’s migration agent. At the hearing the applicant largely repeated the evidence he provided to the Department in response to the s.107 notice.
The Tribunal finds that the applicant provided a credible explanation about his persecution as a Hazara Shia in Afghanistan, his migration history, illegal status in Iran and the circumstances in which he applied for the GSH visa in 2005 in Iran using a false identity. The Tribunal finds this information was consistent with his Subclass 866 protection visa application.
The Tribunal accepts the applicant provided correct information regarding his identity and reasons why he was seeking protection after he arrived in Australia in 2010 and applied for protection.
The Tribunal finds that the incorrect information provided by the applicant relating to dates of birth and family composition contained in the 2005 GHS application were based on the Amayesh card which was issued to the applicant in the assumed identity of [Name 2] when he was living in Iran.
The Tribunal was referred to the report published by Human Rights Watch (HRW) in 2013. The HRW report confirms that Iran is failing to provide newly arrived asylum seekers access to protection because a functioning asylum system does not exist in Iran and the authorities are subjecting many Afghans to a range of rights abuses including arbitrary arrests and detentions. The report confirms that it has become increasingly difficult for registered Afghan refugees in Iran to retain their refugee status. This has been particularly true since the introduction of periodic registration exercises in 2000 and the establishment of the Amayesh registration system in 2003. The report states that the vast majority of Afghans arriving in Iran since the registration exercise in 2003 have not been allowed to register for an Amayesh card. It is reported that in practice, Amayesh card holders face an increasingly complex and bureaucratic process with the Iranian authorities to retain their status, in which the smallest mistake can result in permanent loss of refugee status. It is reported that Amayesh card holders are regularly required to renew their cards. Since the original registration of several hundred thousand Afghans in 2003, there have been nine re-registration exercises with a different colour card provided each time. The cards, which refugees must pay for, are generally valid for one year. When a card expires the card holder is considered to be unlawfully present in Iran and may be deported. If a card holder fails to register for a new card as soon as the old one has expired, he or she becomes undocumented and is subject to deportation. It is reported that another problem is that Afghans being deported from Iran are given no opportunity to challenge their deportation, such as by explaining that they previously had refugee status but lost it through no fault of their own or that they were prevented from requesting asylum or protection.[2]
[2] Human Rights Watch, Unwelcome Guests: Iran's Violation of Afghan Refugee and Migrant Rights, 20 November 2013, ISBN: 978-1-62313-0770, available at: The Tribunal has had regard to the country information and finds that it is consistent with the applicant’s explanation about why he purchased Amayesh cards in an assumed name.
101. The Tribunal also found the evidence of Mr [B] and Mr [C] to be credible. Both witnesses were born in Afghanistan and lived near the applicant’s home area in Ghazni Province and have known the applicant before he arrived in Australia. They have only known the applicant by the name [Name 1]. They know his wife and were able to name his biological children.
102. Mr [B] told the Tribunal that he has known the applicant since he was a young child and they both come from the same tribe. In 2005 he travelled to Iran to get married and the applicant attended his wedding. When he was in Iran he was asked by a number of Afghan families to help them come to Australia because he was an Australian citizen. He was told that all he needed to do was sign some forms. He knew nothing about the visa process and had limited understanding of the English language. He did not turn his mind to the information that was contained in the forms but acted out of loyalty and support for his community. He was aware that the situation for Hazaras was not safe in Iran and agreed to help about five to six Afghan families (including the applicant) and signed a number of forms. He brought the forms back to Australia and lodged them with the Department. He was subsequently contacted by the Department and told the visa applications were refused. He thought that he did what was asked of him and had nothing further to do with the applications.
103. The Tribunal has had regard to Mr [B]’s evidence and finds that it is consistent with the applicant’s explanation that many Afghan refugees were exploited and misled by agents in Iran about their ability to obtain a visa to Australia. The Tribunal accepts the applicant would have had no English language skills and no knowledge of the visa process when he was living in Iran. The Tribunal accepts the applicant would have been guided by the agents in Iran who told him to use the false identity and provided false information in the 2005 GSH application. The Tribunal accepts the agents would have completed visa application forms and the application had little prospects of success.
104. The Tribunal also questioned the applicant about his marriages and family composition. The Tribunal found aspects of his evidence lacking in credibility.
105. The Tribunal finds the applicant provided a family composition table in response to question 9 (Part B Form 866) indicating he had family unit members who were residing outside of Australia at the time of the Subclass 866 visa application. As for those who were included in the family composition, the applicant maintains all members were in fact part of his family unit, including [Ms A], [Child 2], [Child 1] and [Child 3].
106. He claims [Ms A] was his deceased second wife. He married her in 1997 after her husband passed away as she was a widow with three children and needed support. He claims he had a Nikah with [Ms A] so he could take care of her and her children and married her out of compassion. He claims he supported [Child 2], [Child 1] and [Child 3] as if they were his own children. When [Ms A] died, the three children continued to live with [Ms D] and his biological children. They lived with them up until [Ms D] and his biological children were granted the Partner (Subclass 309) visa and migrated to Australia.
107. He claims he declared [Ms A], [Child 2], [Child 1] and [Child 3] as part of his family unit. It was submitted the children only came into his life after the 2005 GSH application was lodged, which is why they were only declared in the Subclass 866 visa application, 2012 GSH application and partner visa application.
108. The Tribunal does not accept the applicant’s evidence about his relationship with [Ms A] and why he included three orphan children in his Protection visa application. The Tribunal finds the applicant’s evidence inconsistent and lacking in credibility.
109. First, the Tribunal notes the applicant claims he entered into a Nikah with [Ms A] in 1997 because she was a widow caring for three children ([Child 2], [Child 1] and [Child 3]). According to information provided by the applicant in support of his Protection visa application he claims [Ms A] died in 1997 after she gave birth to [Child 2]. When questioned at the hearing he claimed [Ms A] died in 2005 or 2006 about six months after they left Afghanistan. When the inconsistency was put to the applicant, he claims it must have been a translating error. The Tribunal notes that the applicant’s statement was prepared with the assistance of his migration agent and translated into English and the applicant has not previously sought to change his evidence. The Tribunal further notes, that according to information on the Department’s file [in] Form 47SP [Application for migration to Australia by a partner] at page 7, question 58 the applicant declared that he was previously married to [Ms A] and they had two children together from the relationship. He also provided a death certificate for [Ms A].
110. Second, the Tribunal notes the applicant did not declare [Child 2], [Child 1] and [Child 3] in the offshore GSH visa application made in 2005. He claims this is because the children did not come into his life until after 2005 and that’s why he disclosed them in his Subclass 866 protection visa application. The Tribunal finds this inconsistent with the applicant’s evidence that he treated three children as his own after he entered into a Nikah with [Ms A] in 1997. The Tribunal also notes that according to his evidence his wife and children came to join him in Iran in 2001.
111. Third, the Tribunal notes that the applicant only declared that [Child 2], [Child 1] and [Child 3] were not his biological children after the Department requested DNA evidence. He did not volunteer this evidence. He subsequently withdrew the children from the applications the same day. On 12 March 2013 he provided a statement to the Department referring to the partner visa application. He wrote:
I wish to state that some of the information provided in the previous document was not true or correct and I wish this document to set the record straight. I previously stated that I was the father of seven children, all of whom were included in my application… I wish to advise that three of the claimed seven children were not in fact my biological children but orgphas who my family cared for… [Child 2], [Child 1] and [Child 3]… I wish to advise these children are not intending to come to Australia and are no longer included in my application.

112. He made no further applications to bring the three children to Australia. The applicant claims he did not know he could make an application to bring in his adopted children to Australia. The Tribunal has given the applicant’s explanation little weight and notes he was represented by a migration agent. The Tribunal finds the applicant’s action in withdrawing the children from the application seems inconsistent with his claims that the children were part of his family unit and he treated the children as his own.
113. The Tribunal does not accept the applicant’s evidence about his relationship with [Ms A] or that he adopted [Child 2], [Child 1] and [Child 3] and they were part of his family unit when he applied for the Protection visa in 2010. The Tribunal finds the applicant falsely included three children in the Protection visa application as members of his family unit.
Should the visa be cancelled?
114. 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).
115. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to the following prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations): s.109(1)(b) and (c).
116. The correct information: The Tribunal finds the applicant provided correct information about his identity and the reasons why he fears persecution in Afghanistan when he applied for the Subclass 866 protection visa.
117. The Tribunal accepts his name is [Name 1], Afghan citizen born on [Date 1] [in] Ghazni in Afghanistan. In support of this evidence the applicant has provided the Tribunal with a copy of his Afghan passport issued by the Afghan Embassy in Canberra in December 2019.
118. The applicant is of Hazara ethnicity and Shia Muslim religion. The applicant has participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and has the distinct visual features shared by Hazaras.
119. He married [Ms D] in Afghanistan in 1983 and they have four children together, namely [Child 7] (DOB [Date]), [Child 6] (DOB [Date]), [Child 5] (DOB [Date]) and [Child 4] (DOB [Date]).
120. The Tribunal finds the applicant initially fled Afghanistan at the height of the Taliban power and resided in Iran from 1998. He was subsequently joined by his family in 2001.
121. The Tribunal finds the applicant purchased an Amayesh card in the name [Name 2]. The Amayesh card contained the real [Name 2]’s name and date of birth among other details. The Tribunal finds that although the applicant held an Amayesh card he did not have a legal basis to reside in Iran because the card was not genuine.
122. On 10 October 2005 the applicant applied for a Refugee and Offshore Humanitarian (Subclass 202) visa from Iran using the identity of [Name 2] (DOB [Date 2]). The visa was refused, and the family returned to Afghanistan in 2005.
123. The applicant and his family were threatened by the Taliban who were killing Hazara people in Afghanistan. His family were also in danger because the Taliban perceived him to be working for the Afghan government. The family returned to Iran in 2010. The applicant was working in Iran illegally until he was caught by the Iranian authorities and deported to Afghanistan. He subsequently travelled to Quetta, Pakistan and made arrangements to come to Australia.
124. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).
125. Whether the decision to grant a visa was based, wholly or partly, on incorrect information or a bogus document: The Tribunal finds that the applicant was granted a protection visa in 2011 because there was a real chance he would face significant harm from the Taliban in Afghanistan because of his Hazara race, his Shia religion and his imputed political opinion of being associated with the Afghan government and being anti-Taliban.
126. The Tribunal finds however that had the applicant disclosed correct information, namely that he made an application in 2005 for an Offshore Humanitarian visa using a false identity this may have had an adverse impact on the grant of his Subclass 866 protection visa application when he arrived in Australia.
127. The circumstances in which the non-compliance occurred: The Tribunal accepts the applicant arrived in Australia as an IMA because his life was in danger and he was escaping persecution. The applicant’s non-compliance needs to be seen against the background of the persecution faced by Hazara Shia Muslims in Afghanistan and the lack of a functioning asylum system in Iran.
128. As detailed above HRW report that Afghan asylum seekers in Iran are subjected to a range of rights abuses including arbitrary arrest and detention. They face obstacles in obtaining genuine identity documents and often resort to securing false documents out of necessity and the need for survival. In this regard, the Tribunal is guided by the remarks of Justice O’Bryan’s in BOY19 v Minister for Immigration and Border Protection[3] 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.[4]
[3] [2019] FCA 574
[4] Ibid at [71]

129. The Tribunal also accepts that the applicant comes from an ethnic and religious minority group that continues to face persecution in Afghanistan. The Tribunal accepts that the applicant’s actions in providing false information were underpinned by a genuine fear of being sent back to Afghanistan and the need to continue to support his family. Country information confirms that family is the single most important aspect of life in Afghanistan. Afghan culture is very collectivistic and people generally put their family’s interests before their own. This means that family responsibilities tend to hold a greater importance than personal needs.[5] The essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[6]
[5] ICG 2009, UNHCR 2010, Still Human Still Here 2012
130. The Tribunal accepts that as an Afghan male arriving in Australia by boat the applicant would be subject to a level of cultural and family obligation to assist his family’s future travel to Australia. The Tribunal finds the applicant may have included names of the three children in his application to help other family members or members of his tribe escape persecution. As detailed above, the Tribunal also finds that if he had disclosed, that he had previously applied for a GSH visa in a false identity this may have prevented him from sponsoring his family to Australia.
131. The Tribunal also finds the false information provided by the applicant in the 2005 GSH application needs to be seen in the context of the applicant’s background as a person with no formal education with no English language skills. The Tribunal notes that although the applicant was fully aware that his application contained false information, the Tribunal accepts the applicant’s evidence that he and many other Afghan asylum seekers were unduly influenced by unscrupulous “migration agents” in Iran who provided them with false migration advice. In the circumstances the Tribunal accepts that the applicant would have had very little control over what was included in the application.
132. The present circumstances of the visa holder: The applicant is [age] years old. He claims he is not able to work due to a back injury and is in receipt of government payments. According to medical reports the applicant’s wife has [a medical condition] and is undergoing treatment. The Tribunal was informed that she was unable to attend the hearing due to her poor health. The Tribunal accepts that the applicant is providing support to his wife during this difficult time. The applicant also spends much of his time caring for his two grandchildren with whom he has a close relationship. The Tribunal was provided with a number of positive reference letters from Afghan religious leaders and members of the community in Australia. The Tribunal accepts the applicant is an active and respected member of the Hazara community in Australia.
133. 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.
134. The Tribunal notes that the applicant did respond to the s.107 notice and acknowledged that he had provided incorrect information as detailed above. The Tribunal finds however that not all of his responses have been forthcoming. As detailed above the Tribunal does not accept the applicant’s evidence about his relationship with [Ms A] and that he had adopted her children after the death of her husband.
135. Any other instances of non-compliance by the visa holder known to the Minister: The Tribunal finds that the applicant has provided incorrect information to the Department in the past. As detailed above the Department’s records indicated that the applicant’s wife applied for a Subclass 202 visa on 17 February 2012 with the applicant as the sponsor, six children were listed as dependents. Moreover, the Department’s record indicated that the applicant’s wife and six children applied for a Partner Subclass 100 visa on 19 September 2012 sponsored by the applicant. On 10 March 2013 the Department requested DNA testing for the children. The applicant responded with a statement on 12 March 2013 declaring that his second claimed marriage didn’t take place, and that [Child 2], [Child 1] and [Child 3] were not his biological children but were orphans that they had been caring for. According to the delegate’s decision the integrity checks by the Department confirmed that the applicant fabricated the existence of a deceased second wife and provided a fraudulent death certificate to include these three children as dependents.
136. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant applied for the Subclass 866 visa in October 2010, approximately 10 years ago. The Tribunal has given this consideration some weight in the visa holder’s favour.
137. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.
138. Any contribution made by the holder to the community: The Tribunal has had regard to the reference letters and accepts the applicant works as a volunteer with the Afghan community in Australia and is active in his local mosque.
Other factors to be considered
139. 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 Procedures 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.
140. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) of the Act has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia.[7]
[7] DMH16 v MIBP [2017] FCA 448
141. Whether there would be consequential cancellations under s.140: As a consequence of the applicant’s visa cancellation on 17 April 2019 the Department has also cancelled his daughter’s ([Child 5]) Class BC Subclass 100 visa. The Tribunal acknowledges that this has significant consequences for the applicant’s daughter and her young children who are both Australian citizens. This matter is the subject of a separate review application which is before the Tribunal.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
142. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
143. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

144. In relation to the Refugees Convention, the Policy Guidelines provide that:
Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).
Refoulement is prohibited under Article 33 of the Refugees Convention unless:
- there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
- the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

145. In this case the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.
Country of nationality
146. The applicant has at all times claimed to be an Afghan national who resided in Afghanistan and Iran before he arrived in Australia. The Department has accepted him to be an Afghan national and assessed his claims as a Hazara Shia from Afghanistan. The Tribunal has had regard to the applicant’s Taskera and Afghan passport and finds he is a citizen of Afghanistan and has assessed his claims against that country.
Well-founded fear of persecution
147. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion.
148. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.
The applicant’s personal background
149. The Tribunal finds that the applicant is [age] years old. He was born in [Ghazni] in Afghanistan. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion. He departed Afghanistan 10 years ago. The applicant and his family were threatened by the Taliban who were killing Hazara people in Afghanistan. His family were also in danger because the Taliban perceived the applicant to be working for the Afghan government. The family returned to Iran in 2010. The applicant was subsequently working in Iran illegally until he was caught by the Iranian authorities and deported to Afghanistan. He subsequently travelled to Quetta, Pakistan and made arrangements to come to Australia.
The applicant’s fear of harm in Afghanistan
150. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. For the reasons set out below, and having regard to the most recent DFAT report dated 27 June 2019 as well as other sources discussed below, the Tribunal accepts that to be the case.
The general security situation in Afghanistan
151. The United Nations Assistance Mission in Afghanistan (UNAMA) has a bleak appraisal of the current security situation in Afghanistan:
The UN Assistance Mission in Afghanistan (UNAMA) is gravely concerned about the unprecedented levels of violence harming civilians during the third quarter of 2019. From 1 July to 30 September 2019, UNAMA documented the highest number of civilian casualties that it has recorded in a single quarter since it began systematic documentation in 2009. While in the first half year of 2019 UNAMA documented a decrease in civilian casualties in comparison to previous year, in July, August and September extreme levels of violence brought the civilian casualty levels back to the unacceptable high levels of previous years. Furthermore, in the month of July, UNAMA documented the highest number of civilian casualties that the Mission has recorded in a single month. For the sixth year in a row, UNAMA has recorded more than 8,000 civilian casualties in the first nine months of the year, underlining that Afghans have been exposed to extreme levels of violence for many years, despite the statements of parties to the conflict to prevent and mitigate harm to civilians.[8]
[8] UNAMA Quarterly Report on the Protection of Civilians in Armed Conflict 17 October 2019 The Tribunal finds that the UNAMA report echoes Professor Maley’s warning that it is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the situation in late 2019 and beyond.[9]
[9] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.

153. The Tribunal finds that DFAT’s report also indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province (ISKP) has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence.[10]
[10] DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019 [2.52–2.59]
154. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations. Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties.[11]
[11] DFAT Country Information Report Afghanistan 27 June 2019 [2.52–2.59]
155. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence.[12]
[12] DFAT Country Information Report Afghanistan 27 June 2019 [2.70–2.74]
156. In relation to attacks on Hazaras, the European Asylum Support Office (EASO) states:
Attacks by insurgent groups, in particular by ISKP, have significantly affected the Hazara population in 2018. Attacks by ISKP targeted places where Hazara/Shia gather, such as religious commemorations or political demonstrations, and sites in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat. Such attacks could be related to their religion (see the profile on Shia). Among other reasons, the ISKP also reportedly targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria.[13]
[13] European Asylum Support Office Country Guidance Afghanistan June 2019 p.69

157. The EASO report provides the following information on the current security situation in the Uruzgan:
Throughout 2018, Taliban militants were active in the province. They expanded their operations to areas which until then had been spared, like the district of Khas Uruzgan. Sources also reported activity of ISKP in the province, particularly in Chora district.
Four districts of Uruzgan province are categorised by LWJ as contested and one is categorised as under Taliban control.
According to GIM, 220 incidents related to insurgents were reported in the period of January 2018 – February 2019 (average of 3.7 incidents per week).
Examples of incidents include intense battles between local Hazara militia and the Taliban. The fighting, accounting for many casualties and internally displaced people, mostly among the Hazara civilian population, went on almost one month until late November 2018. There are also reports of travellers being kidnapped and later killed by the Taliban. Ongoing military operations in order to clear the Kandahar-Uruzgan highway from Taliban insurgents were reported in February 2019.[14]
[14] European Asylum Support Office Country Guidance Afghanistan June 2019 p.117

The applicant’s fears on the basis of his ethnicity and religion
158. Professor Maley reports that when the security situation in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In particular he states ‘there is a long history of persecution of and discrimination against members of the Hazara Shia minorities in Afghanistan’. He states that given the fluidity, ‘it is a serious mistake to conclude that Afghanistan is safe for Hazaras.’[15]
[15] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.
159. DFAT reports that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’.[16]
[16] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7–3.16
160. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[17]
[17] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42–3.46
161. In relation to the risk profile for ‘Shia’, the EASO reports that the ‘Shia community is disproportionately represented among civilian casualties in Kabul and Herat. There are reports of attacks against the Shia, especially on places where Shia gather, such as mosques, and during religious commemorations and political demonstrations. In 2018, the majority of ISKP attacks on religious sites reportedly targeted Shia communities.[18]
[18] European Asylum Support Office Country Guidance Afghanistan June 2019 p.70
162. DFAT also reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city.[19]
[19] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29–3.35
163. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[20]
[20] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29–3.35
164. The Tribunal notes that shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack.[21]
[21] BBC News, Kabul wedding blast: Groom has ‘lost hope’ after deadly attack (19 August 2019) In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government, closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[22]
[22] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at
166. In view of the applicant’s personal profile and the evidence outlined in the country information cited above indicating the strong and growing presence of the Taliban in much of Afghanistan, the potential for further sectarian violence, the increased presence of ISIS and the ongoing ethnic and sectarian tensions and discrimination against Hazaras and Shias noted by Professor Maley, the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Afghanistan. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.
167. For the reasons set out above, the Tribunal accepts the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion and Hazara ethnicity if he is returned to Afghanistan, now or in the reasonably foreseeable future.
168. The Tribunal finds that the applicant comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.
169. Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening.
170. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The Tribunal finds that the consequences of the applicant’s visa being cancelled are far reaching. As detailed above, the applicant’s wife has been diagnosed with [a medical condition] and is reliant on the applicant to take her for treatment and provide ongoing care. In 2019 the Department also cancelled the visa of the applicant’s daughter ([Child 5]). The Tribunal acknowledges that this has significant consequences for [Child 5], her husband and her young children who are both Australian citizens. The Tribunal also accepts that the applicant has a close relationship with his grandchildren and his removal from Australia would affect them adversely.
EXERCISE OF DISCRETION
171. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
172. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Christopher Smolicz
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Natural Justice
Statutory Construction
Jurisdiction
Remedies

[2021] AATA 780

15 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies