1912725 (Migration)

[2021] AATA 1025

1912725 (Migration) [2021] AATA 1025 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1912725

MEMBER:Alison Murphy

DATE:18 February 2021

PLACE OF DECISION:  Melbourne

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 18 February 2021 at 12:29pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in the visa application – previous application for refugee status – applicant’s identity details – close relative in Australia – Forensic Facial Image Examination – original photographs not accessible – protection status assessment – Hazara – Shia – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 101,107, 109, 116, 140, 359
Migration Regulations 1994, r 2.41

CASES

Burton v MIMIA (2005) 149 FCR 20
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZAFZ v MIBP [2016] FCA 1081
SZATV v MIAC (2007) 233 CLR 18          

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 21 May 2019 a delegate of the Minister cancelled the applicant’s resident return visa, on the basis that he considered the applicant had given incorrect information in his earlier protection visa application. The delegate considered the applicant gave incorrect information in his protection visa application about his name, date of birth, relatives in Australia, family composition and earlier visa applications in which he was included.

3. The applicant appeared before the Tribunal on 28 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] (in person), [Witness A] (by phone), [Witness B] (by phone) and [Witness C] (by phone). The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

6. The applicant is [an age]-year-old male who arrived in Australia by boat [in] December 2009 and sought protection, identifying himself as [applicant’s name variant], a citizen of Afghanistan of Hazara ethnicity born [DOB 1]. On the basis of information provided in his visa application, he was granted the protection visa on 17 February 2010. He was later granted the Subclass 155 (Five Year Resident Return) visa on 23 January 2015.

7. On 12 April 2010 the applicant lodged an application for a Subclass 202 visa proposing his wife and [number] children come to Australia. That application was refused and on 27 May 2013 the applicant lodged an application for a partner visa seeking to sponsor his wife, [named], and [number] of his children. As at the time of the Tribunal’s decision the outcome of the partner visa application was still pending. The Departmental file also indicates the applicant has a citizenship application pending.

8. While processing the visa applications, the Department noted some inconsistencies in the applicant’s family composition. In April 2019 the Department conducted a Facial Image Comparison comparing an image of the applicant in his protection visa application to an image from an application for a Global Humanitarian (Subclass 202) visa lodged in Islamabad on 19 November 2008 in respect of [Person A] born [DOB 2]. The Forensic Facial Image Examiner concluded that the images in each application were of the same person.

9. On 11 April 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising him that she was considering the cancellation of his resident return visa on the ground that he had given incorrect information in his protection visa application. 

10. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and can be summarised as follows:

    ·The applicant arrived in Australia [in] December 2009 by boat and claimed to be a Shia Muslim Hazara at risk of harm from the Kuchi and the Taliban. He stated he had been unlawfully residing in Pakistan since 1998;

    ·He lodged an application for a protection visa on 16 January 2010, identifying himself as [applicant’s name variant], a citizen of Afghanistan of Hazara ethnicity born [DOB 1];

    ·He answered ‘no’ in response to a question asking him if he had previously applied for refugee status or a protection visa from the Department (question 2 of Part B of Form 866);

    ·He answered ‘no’ in response to a question asking him if he had previously made any other visa application to the Department (question 3 of Part B of Form 866);

    ·He answered ‘no’ in response to a question asking him if he had any close relatives in Australia (question 10 of Part B of Form 866);

    ·He answered ‘yes’ in response to a question asking him if he had close relatives outside Australia (question 11 of Part B of Form 866), declaring his parents ([Father A] and [Mother A]), three [siblings], his spouse ([named]) and children ([names listed]);

    ·He declared his full name as [applicant’s name variant], born [DOB 1], aged [age] years and stated he had also been known as [an alias] on a false passport (questions 1, 4 and 7 of Part C of Form 866);

    ·He declared the information in his visa application to be complete, correct and up to date in every detail (question 65 of Part C of Form 866);

    ·The Department conducted a Facial Image Comparison Report dated 1 April 2019 comparing an image of the applicant in his protection visa application to an image from an application for a Global Humanitarian (Subclass 202) visa lodged in Islamabad on 19 November 2008 in respect of [Person A] born [DOB 2]. The Forensic Facial Image Examiner concluded that the images in each application were of the same person;

    ·[Person A] applied for the Subclass 202 visa in Islamabad on 27 February 2007, listing his mother [as Mother B], born [DOB], as the main applicant and proposed by his brother [Brother A variant], born [year], who arrived by boat in 1999. The application was refused on 16 March 2007 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa;

    ·[Person A] and his mother [Mother B] re-applied for the Subclass 202 visa in Islamabad on 19 November 2008, proposed by [Brother variant A], who stated he was born in Afghanistan and resided in Quetta, Pakistan from 2003. That application contained the applicant’s facial image and his family composition to include his parents ([Father B] and [Mother B]) and seven [siblings]. The application was refused on 16 March 2009 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa;

    ·The applicant arrived in Australia [in] December 2009, applied for the visa on 16 January 2010 and was granted the protection visa on 17 February 2010. In that visa application he declared details of his parents ([Father A] and [Mother A]), three [siblings], a spouse ([named]) and [same number] [children];

    ·On 12 April 2010 the applicant lodged an application for a Subclass 202 visa proposing his wife and seven children come to Australia. He included his brother-in-law [Brother-in-law A] (born [DOB]) as a dependent, whom he claimed to have customarily adopted and cared for after his parents passed away in 2003 (in respect of his father) and 2008 (in respect of his mother). During this application it was noted that [Brother-in-law A] was not declared in the protection visa application. The application was refused on 9 July 2013 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicants a permanent visa.

    ·On 27 May 2013 the applicant lodged an application for a partner visa seeking to sponsor his wife [variant of name] and five of his [children]. These applications are still pending. In each case the children’s dates of birth are different to those included in the protection visa application and the eldest two children are omitted from the visa application.

11. The s.107 notice goes on to identify the following information in the protection visa application that is now said to be incorrect:

    ·It is considered the applicant gave incorrect information at question 1 of Part B of Form 866 as to his name, because the facial comparison indicates he is also known as [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 2 of Part B of Form 866 as to whether he had previously applied for refugee status or a protection visa, because he had previously applied for refugee status in two humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 3 of Part B of Form 866 as to whether he had previously made any other type of visa application to the Department, because he had previously applied for two humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 10 of Part B of Form 866 because he provided a different family composition from that given in the humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 1 of Part C of Form 866 as to his name, because the facial comparison indicates he is known as [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 4 of Part C of Form 866 as to whether he had ever been known by any other name, because the facial comparison indicates he has applied for a visa under the name of [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 65 of Part C of Form 866 as to his declaration that the information contained in the visa application was complete, correct and up to date in every detail.

12. 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.

13. The applicant responded to the s.107 notice on 3 May 2019. In essence he conceded he had given incorrect information in his protection visa application at questions 10 and 11 as to his brother in Australia and his family composition. He states that he was not aware that he had been included as a dependent in the earlier Subclass 202 visa applications and therefore his responses to questions 2 and 3 of Part B of Form 866 were correct to the best of his knowledge at the time. He denies that he is or has ever been known as [Person A], stating [Person A] is his brother.

14. On 21 May 2019 a delegate decided to cancel the applicant’s visa, considering the applicant had provided incorrect information about the matters identified in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.

15. The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    THE REVIEW PROCEEDING

    Non-disclosure certificate

16. The Tribunal has before it the Departmental files relating to the grant and cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.438(1)(b) of the Act.

17. The certificate is dated 28 May 2019 and states that disclosure of folios 36-42 and 118-119 of the Department’s file relating to the cancellation of the resident return visa would be contrary to the public interest because it contains an internal deliberative document provided to the officer in confidence. Those folios contain details of various enquiries and investigations conducted by the Department’s officers. In my view they are not documents ‘given’ to the Department by a third party in confidence, rather they are documents produced by various sections of the Department of Home Affairs. As such they do not fall within the stated public interest reason.

18. In considering whether identifying the documents as ‘internal deliberative documents’ is on its own sufficient to ground a claim of public interest immunity, I note the Australian courts have held that such a reason has never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[1]

    [1] MZAFZ v MIBP [2016] FCA 1081 at [37].

19. Having formed the preliminary view the certificate was invalid, the Tribunal wrote to the Department inviting it to consider revoking or re-issuing the s.438 certificate. On 28 January 2021 the Department revoked the certificate and issued a new certificate over the same folios under s.375A of the Act. The Tribunal did not receive the s.375A certificate until after it had conducted the hearing on the same date. The revocation and new certificate were subsequently provided to the applicant with an invitation to comment on the certificate’s validity. No submissions as to the validity of the certificate were received.

20. I note that much of the information contained in the folios identified in the s.375A certificate have already been disclosed to the applicant in the s.107 notice and the delegate’s decision, including the facial image comparison report linking the applicant’s photograph with [Person A] born [DOB 2], as well as details of the earlier visa application and [Person A’s] family composition.

21. Similarly, it is apparent that the concerns held by the Department about the genuineness of the taskeras submitted in the partner visa application have previously been disclosed to the applicant at some stage by the Department, presumably either during the processing of the partner visa application or his citizenship application. This led the applicant’s son [Son A] to travel to Afghanistan in 2019 to attempt to verify the genuineness of those documents directly with the Afghan authorities as discussed further below. At hearing the applicant said he was aware of concerns the Department held about his son’s [social media entries]. For these reasons I consider that the substance of the information in the certificated documents has already been disclosed to the applicant by the Department separately to the visa cancellation process.

22. In any case, the certificated documents contain information potentially adverse to the review that were not provided to the Department or the Tribunal by the applicant. I consider that information, if relied upon, may form the reason or part of the reason why the Tribunal would affirm the decision under review, in particular in so far as it goes to the applicant’s claimed Afghan nationality. As such the information is subject to the provisions of s.359A.

23. In Burton v MIMIA,[2] the Federal Court held that a valid s.375A certificate does not override the obligation to provide particulars of information under s.359A(1). Therefore, while the material subject to a s.375A certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its s.359A obligation.

    [2] Burton v MIMIA (2005) 149 FCR 20 at [40]–[42].

24. In this case I discussed with the applicant in broad terms the information about social media posts made by the applicant and his son and the results of verification processes conducted on the family’s Afghan taskeras without providing copies of any of the certificated documents. Having considered the applicant’s evidence at hearing and the materials submitted after the hearing, I decided to remit the decision under review. As a result, it was not necessary to formally put those matters to the applicant under s.359A of the Act.

    LEGISLATIVE FRAMEWORK

25. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

26. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

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

27. The notice dated 11 April 2019 sets out in some detail the information given by the applicant in his offshore visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or his representative that notice is deficient or invalid.

28. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

29. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

30. 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 s.107 notice identifies the following information in the protection visa application that is now said to be incorrect:

    ·It is considered the applicant gave incorrect information at question 1 of Part B of Form 866 as to his name, because the facial comparison indicates he is also known as [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 2 of Part B of Form 866 as to whether he had previously applied for refugee status or a protection visa, because he had previously applied for refugee status in two humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 3 of Part B of Form 866 as to whether he had previously made any other type of visa application to the Department, because he had previously applied for two humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 10 of Part B of Form 866 because he provided a different family composition from that given in the humanitarian visa applications under the name of [Person A];

    ·It is considered the applicant gave incorrect information at question 1 of Part C of Form 866 as to his name, because the facial comparison indicates he is known as [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 4 of Part C of Form 866 as to whether he had ever been known by any other name, because the facial comparison indicates he has applied for a visa under the name of [Person A] born [DOB 2];

    ·It is considered the applicant gave incorrect information at question 65 of Part C of Form 866 as to his declaration that the information contained in the visa application was complete, correct and up to date in every detail.

1. As noted above, the applicant responded to the s.107 notice on 3 May 2019 conceding he had given incorrect information in his protection visa application at questions 10 and 11 as to his brother in Australia and his family composition. He states that he was not aware that he had been included as a dependent in the earlier Subclass 202 visa applications and therefore his responses to questions 2 and 3 of Part B of Form 866 were correct to the best of his knowledge at the time. He denies that he is or has ever been known as [Person A], stating that person is his brother.

2. In submissions to the Tribunal dated 8 May 2020 and 21 January 2021 and at hearing on 28 January 2021, the applicant maintained the position put forward in response to the s.107 notice. He maintained that his correct identity is [applicant’s name] born [DOB 1] and that he has never been known as [Person A], rather that person is his brother. He conceded he had provided incorrect information in his protection visa application about his family composition but denied providing incorrect information about his identity or visa history.

   The 2007 and 2008 global humanitarian visa applications

3. The applicant does not agree that he was included in these visa applications under the name of [Person A]. The applicant’s brother [Brother A] gave evidence in person to the Tribunal. He agreed that he had been the proposer for two global humanitarian visa applications in 2007 and 2008, seeking to bring his mother and one of his siblings to Australia. He agreed that his younger brother [Person A] had been included in both applications, telling the Tribunal that [Person A] was unmarried at the time. He stated he did not include the applicant in these visa applications because he was already married and living with his own family. [Brother A] was assisted in making those applications by a person he believes was a migration agent, but given his lack of education and the fact he didn’t speak English at the time, he has little awareness of the information that was provided to the Department. [Brother A’s] evidence is that he did not intend to include the applicant in the visa application, saying that the resemblance between the five brothers in the family is very strong and there was no reason for the family to submit photos of the applicant instead of [Person A]. The applicant gave evidence he did not recall signing the back of the photos submitted in the 2007 and 2008 visa applications as suggested in the s.107 notice.

4. The applicant’s representative confirmed that the materials provided to them by the Department under Freedom of Information laws were redacted, as a result of which the applicant and [Brother A] have not seen the photograph said to have been biometrically matched to the applicant. At hearing I showed them copies of the images that are said to have been matched (noting at that time there was no valid certificate before the Tribunal), but the copies before the Tribunal are so poor in quality that it was impossible to form any view as to the identity of the persons in those images. While it would ordinarily be possible to obtain the original photographs from the Department after the hearing, the s.375A certificate that came into effect on the same date prevents me from disclosing them to the applicant rendering that action pointless.

5. I note that the Facial Image Comparison Report dated 1 April 2019 only compares a single image of the applicant from his protection visa application with a single image from the November 2008 Global Humanitarian (Subclass 202) visa application. Neither the s.107 notice nor any of the other materials before me suggest that there has been any comparison of the images in the earlier 2007 visa application to those of the applicant, rather the report notes that file has not been sighted. The materials provided to the Tribunal do not include copies of the back of the photographs which are said to have been signed by the applicant.

6. On the evidence before me I am not satisfied that the applicant was included in either the 2007 or 2008 global humanitarian visa applications. [Brother A] has given a reasonable explanation as to why he included his younger unmarried brother [Person A] and not the applicant. There is no apparent reason why [Brother A] would submit a visa application for the applicant under his brother’s name if there was no intention to include the applicant in the visa application. I consider it possible the photograph said to be of the applicant is in fact of his brother [Person A]. As the applicant has been denied the opportunity to view the photograph and respond to it, it is not possible to resolve that matter. For these reasons I am not satisfied the applicant gave incorrect information at questions 2 and 3 of Part B of the Form 866 as to his previous visa applications.

7. For these reasons I am not satisfied the applicant gave incorrect information at question 1 of Part B of the Form 866 as to his previous visa applications.

   Identity

8. Apart from the earlier visa application, it is not suggested the applicant has ever been known as [Person A] born [DOB 2]. The witness [Witness B] gave evidence that he had known the applicant for 25-30 years as [applicant’s name variant]. They met in the applicant’s village of [Village 1] in Afghanistan when [Witness B’s] employer [named] was assisting the village to build a school in the area. The witness [Witness A] gave evidence he has known the applicant for 10 years as [applicant’s name variant]. The applicant and [Brother A] have given evidence that [Person A] is their brother and the date of birth given in the earlier global humanitarian visa applications is that of [Person A], not the applicant. The applicant has also produced to the Department an Afghan passport issued by the Afghan Embassy in Canberra. I am satisfied the applicant’s identity is as stated in his protection visa application.

9. For these reasons I am not satisfied the applicant gave incorrect information at questions 1 and 4 of Part C of the Form 866 as to his name, date of birth and whether he had ever been known by another name.

   Family composition

10. The applicant concedes that he gave incorrect information in his visa application about his family composition in an effort to hide his relationship with his brother in Australia. He was advised by the smuggler that disclosing that relationship would cause his brother problems and altered his family composition to avoid their relationship becoming known to the Department. For these reasons I find the applicant gave incorrect information about his family composition in his protection visa in the manner set out in the s.107 notice.

11. For the same reasons I find that the applicant gave incorrect information at question 65 of Part C of Form 866 when he declared that the information contained in the visa was application was complete, correct and up to date in every detail.

    Conclusion on non-compliance

12. For the above 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.

    Should the visa be cancelled?

13. 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).

14. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and I have considered each of those circumstances below.

15. The correct information: For the reasons set out above, I have found that the applicant’s name, date of birth and visa history is as stated in the protection visa application, but that he provided incorrect information about his family composition and the accuracy of that information in that visa application.

16. I am satisfied the applicant’s correct family composition is as set out in his statutory declaration dated 19 January 2021. Relevant to the incorrect information as described in the s.107 notice, the correct information is that the applicant has five brothers and one of those brothers, [Brother A variant], was in Australia at the time the applicant applied for the protection visa.

17. 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 of the Act (relating to bogus documents).

18. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The Departmental file does not contain a formal decision record relating to the grant of the protection visa and it appears a formal decision was not provided to the applicant. ICSE records indicate the applicant was found to be a refugee by a Refugee Status Assessment on 9 February 2010. Those records state that his refugee claims were based on his race and ethnicity as a Hazara Shia.

19. On that basis, I am satisfied the applicant’s protection visa was granted on the basis he faced a real chance of persecution in Afghanistan for the combined reasons of his Hazara ethnicity and his Shia religion. The applicant’s ethnicity and religion are not in dispute and I am satisfied that the applicant would have been granted the protection visa by the delegate even had the applicant correctly disclosed his family composition and his brother’s presence in Australia. For these reasons I do not consider the decision to grant the visa was based in any part on the incorrect information.

20. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2010 protection visa application. He gave the incorrect information on the advice of the people smugglers, who told him that disclosing his relationship with his brother in Australia would create problems for both of them.

21. The present circumstances of the visa holder: The applicant lives in shared housing and is employed as [an occupation]. He married his wife, also an Afghan national, in about 1993 and they have five children born between [specified years]. He has been seeking to bring his wife and children to Australia since 2010 but as at the time of the Tribunal’s decision their visas have not been granted and they remain in Quetta, Pakistan.

22. The applicant has been unable to travel to visit them since his visa was cancelled. His eldest son has finished his studies at a private college but is unable to attend university because of the family’s status as unregistered refugees in Pakistan. The applicant’s mother has died since his arrival in Australia and to the best of the applicant’s knowledge his siblings are scattered between Afghanistan, Pakistan, [and specified countries] and some have lost contact with the family in Pakistan. Before her death, the applicant’s mother also cared for the applicant’s wife’s orphaned brother [Brother-in-law A] and the applicant’s [nephew], whose father [named] lives in [a named country].

23. Medical evidence from the applicant’s treating psychiatrist indicates the applicant suffers from a major depressive disorder and generalised anxiety disorder as a result of the long separation from his family and the uncertainty of his ongoing visa status. Consistent with his presentation at the Tribunal hearing, his treating psychiatrist describes him as consistently tearful, tired and anxious with a strong sense of helplessness and hopelessness. He suffers bodily manifestations of his depression and anxiety as well as functional impairment on the background of a significant degree of vicarious trauma. He also receives treatment from a psychologist.

24. A number of people have provided character and employment references for the applicant. His [employer] had employed him for seven years as at 2018, describing him as hard working, dedicated and trustworthy, sentiments echoed by a client of that business, [named]. He is also active in [Organisation 1], a non-profit organisation supporting Afghan asylum seeker and refugee youths and families. The President of that association attests as to his reliability, trustworthiness, dedication and contribution as a dedicated community volunteer. The President of [Organisation 2] similarly describes the applicant as a well-respected member of Afghan community groups in [his city] who is reliable, caring and hard working.

25. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant admitted to the non-compliance in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.

26. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that there are no other known instances of non-compliance.

27. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in January 2010 and approximately 11 years have elapsed since then.

28. 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.

29. Any contribution made by the holder to the community: As set out above, the applicant is active as a volunteer in [Organisation 1] and [Organisation 2], who describe him as a well-respected member of Afghan community groups in [his city] who is reliable, caring and hard working.

    Other factors to be considered

30. While the above 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, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

31. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being 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); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

32. As a party to the Refugees Convention, Australia has non-refoulement 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.

33. 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.

34. In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin as an International Treaty Obligations Assessment (ITOA) would be completed by a Departmental officer prior to any decision to remove him to his country of origin.

    Country of nationality

35. The Department originally accepted the applicant to be an Afghan national and assessed his claims as a Hazara Shia from Afghanistan.

36. However, the Departmental file indicates that more recently there has been some suspicion that he is a Pakistani national rather than an Afghan national. The Department of Foreign Affairs and Trade (DFAT) reports that the takeover of Kabul and most of Afghanistan by the Sunni Pashtun Taliban in 1996 resulted in a period of repression and conflict for Hazaras, as a result of which many fled to Pakistan and elsewhere.[3] I accept the applicant’s family formed part of a large wave of Afghan Hazara migrants who arrived in Pakistan in or about 1998.

    [3] DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014.

37. The Department’s suspicion that the applicant may be a Pakistani citizen arises in part out of an assessment that taskeras submitted for his wife and children are non-genuine. Taskeras are the primary identification document in Afghanistan. They are usually issued at the provincial and are not subject to a centralised system or computerised recording for registration and oversight. Because the documentation itself does not contain robust security features, the system is vulnerable to fraud.[4]

    [4] UNHCR Frequently Asked Questions: A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras), May 2005, CIS9BE2467847, p.2; Immigration and Refugee Board of Canada, Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features, September 2011 at >

    In this case the Departmental file indicates the taskeras of the applicant’s family submitted in the earlier global humanitarian and partner visa applications have been assessed as ‘non-genuine’, with the exception of the taskera of the applicant’s [Son B], which has been assessed as ‘genuine’ and that of [the applicant’s wife], which is awaiting a result.

38. The applicant maintains that the taskeras belonging to his family are genuine and obtained through the formal processes for their issue in Afghanistan, with his wife and family travelling to Sang-e-Mache to personally obtain the most recently issued taskeras. He states that after the Department raised concerns about the genuineness of the taskeras with the applicant in 2019, the applicant’s [Son A] travelled from Quetta back to Afghanistan’s National Statistics and Information Authority (NSIA) [in] August 2019 to submit the taskeras for verification, and slips confirming their receipt by NSIA have been submitted to the Tribunal. [In] September 2019 the taskeras were returned to [Son A] by the NSIA who advised they were already verified and did not need to be verified again. [Son A] met with the Director of NSIA [later in] September 2019 and explained the concerns raised by the Department of Home Affairs. The Director agreed to re-verify the taskeras and checked them against the details held in the central repository of the NSIA. They were then re-verified (stamped) and copies of those documents have been submitted to the Tribunal.

1. There is no information before me as to what verification processes were undertaken by the Department to produce the ‘non-genuine’ results. Nor is there any obvious explanation as to why the taskera of one child would be genuine when those of his parents and siblings are not. I note also that the applicant and his family members have been issued machine readable Afghan passports by the Afghan authorities on the basis of their taskeras, I consider this is an indication that the Afghan authorities are satisfied as to the genuineness of the authorities. While the lack of robust security features of taskeras means the issue cannot be free from doubt, on the evidence before me I am not persuaded the taskeras provided for the applicant’s family members are not genuine.

2. The Department also suspects that the applicant and his family members may be Pakistani nationals because of [social media entries] by the applicant’s [Son A]. In one he appears with a friend and is said to be holding a Pakistani passport. In the other he is wearing the uniform of a college at which he appears not to be enrolled under his own name. The applicant states that the passport in the photograph belongs to [Son A’s] friend who was departing on a trip, not to [Son A]. He states he has paid privately for his son to attend college because he would otherwise not be eligible to do so because of his refugee status in Pakistan. He states that even so, his son has been unable to continue his studies at university because of his refugee status.

3. There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani identity documents required to access government run services including health and education, which are otherwise reserved primarily for Pakistani nationals. [5] According to DFAT, Pakistan’s National Database and Registration Authority (NADRA) is currently engaging in a campaign to target fraud in relation to national identity cards and has identified several thousand fraudulent records in this process.[6]

   [5] DFAT Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta, 30 July 2010, CX246851; ‘Ethnic bias seen in blocked CNICs’, The Express Tribune, 27 March 2017, CXC9040669341; ‘100,000 Pakistanis lose nationality for being suspect aliens’, Dawn, 29 May 2015, CXBD6A0DE7355;

   [6] DFAT Country Information Report Pakistan 1 September 2017 at 3.10.

4. Further DFAT reports that while Hazaras resident in Pakistan in 1962 were recognised as ‘local’ and became citizens of Pakistan, more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services.[7]  As the applicant and his family did not arrive in Pakistan until 1998, I am not satisfied they would have been able to obtain citizenship by way of the Pakistani government’s recognition of Hazaras as ‘local’ in 1962. None of the information before me suggests they had any other pathway to Pakistani citizenship.

   [7] DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014 at 3.14.

5. For these reasons I find the applicant is a citizen of Afghanistan. In making this assessment I have had regard to the applicant’s identity documents discussed above as well as the oral and written evidence of the witnesses who knew the applicant in Afghanistan. It follows that I must assess his claims for protection against Afghanistan as his country of nationality and the receiving country.

   Well-founded fear of persecution

6. The applicant claims to have a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity and his Shia religion as well as his long absence from Afghanistan and residence in Pakistan and Australia. The applicant’s Hazara ethnicity and Shia religion are not in dispute and he participated in the Tribunal hearing with the assistance of a Hazaragi interpreter.

7. In assessing those claims I have 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 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

8. The applicant originates from [Village 1] in Jaghori district, Ghazni province, however he and his family left Afghanistan for Quetta, Pakistan in approximately 1998. Given that the applicant has no remaining family in his home area, I find that if he were to be returned to Afghanistan he would most likely return to Kabul.

   Hazara ethnicity and Shia religion

9. DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, with the worst recorded massacre in recent history occurring in 1998, when the Taliban massacred at least 2,000 Hazara in Mazar-e-Sharif, leading many Hazara to flee Afghanistan.[8]

   [8] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8.

10. DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains, however the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups. DFAT states 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’.[9]

    [9] Ibid at 3.7 – 3.16.

11. 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 anti-government elements (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.[10]

    [10] Ibid at 3.42 – 3.46.

12. In relation to the risk profile for ‘Shia’, DFAT 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, the Islamic State in the Khorasan Province (ISKP) emphasised that it was religiously motivated. The United Nations Assistance Mission in Afghanistan (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.[11]

    [11] Ibid at 3.29 – 3.35.

13. 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.[12] Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack.[13]

    [12] Ibid at 3.29 – 3.35.

    [13] >

    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 and 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.[14]

    [14] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at >

    In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, most of whom also belong to the Hazara ethnic group:

    UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.[15]

    The security situation in Afghanistan

    [15] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2.

14. In 2018, Afghanistan was ranked as the second to last least peaceful country in the word, just above Syria. In 2019, Afghanistan had replaced Syria as the least peaceful country in the world. According to the 2019 Global Peace Index, the number and duration of conflicts fought in Afghanistan significantly worsened[16].

    [16] Global Peace Index 2019 at >

    The most recent DFAT report dated 27 June 2019 indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of 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 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.[17]

    [17] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.

15. Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices (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.[18]

    [18] Ibid at 2.52 – 2.59.

16. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. 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, and Hazaras remain particularly vulnerable to being selected for abduction or violence.[19]

    [19] Ibid at 2.70 – 2.74.

17. DFAT reports that while Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years:

    The conflict in the city is characterized by asymmetric tactical warfare. Although the Afghan capital remains under government control, armed opposition groups have shown that they can infiltrate the city and have the capacity to carry out attacks. Kabul regularly witnesses violence. Large-scale suicide and complex attacks causing hundreds of civilian casualties were recorded in previous years.[20]

    [20] ‘COI Focus - Afghanistan: Security Situation in Kabul City’, Documentation and Research Department (Cedoca), Office of the Commissioner General for Refugees and Stateless Persons (CGRS) (Belgium), 08 April 2020, p.10.

18. Violent attacks in the city of Kabul against civilians by AGEs have continued throughout 2020, including:

    ·6 March 2020: an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed. The same ceremony was also attacked in 2019; ISKP claimed responsibility for the attacks in both 2019 and 2020;[21]

    ·12 May 2020: gunmen entered a maternity hospital in Dashti Barchi, a mostly Shia neighbourhood and home to a large Hazara population. Twenty four people were killed, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISKP;[22]

    ·6 June 2020: 24 people were killed in an attack on a Sikh and Hindu temple complex. IS claimed responsibility, however government sources said it was conducted by the Haqqani Network;[23]

    ·May and June 2020 also saw two attacks on mosques and a bomb attack on a group of journalists;[24]

    ·From 2 July to 12 July 2020, Kabul witnessed 14 improvised explosive device (IED) attacks against government targets in which civilians were also killed and wounded.[25]

    ·In October 2020, at least 18 people were killed and 57 wounded in a suicide bomb attack outside an education centre in a heavily Shia neighbourhood of western Kabul, with Isis claiming responsibility[26];

    ·On 2 November 2020, at least 22 people were killed and others wounded when gunmen stormed Kabul University. Isis later claimed responsibility for the attack[27];

    ·On 23 December 2020, at least two people were killed in a bomb attack in eastern Kabul. A day earlier, five people were killed by a roadside bomb, three of whom were doctors on their way to work[28].

    [21] ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020; ‘Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul’, The Defense Post, 6 March 2020.

    [22] ‘Babies among 24 killed as gunmen attack maternity ward in Kabul’, Aljazeera, 13 May 2020; Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce’, Stefanie Glinski, Foreign Policy, 14 May 2020.

    [23] ‘Solidarity for Sikhs after Afghanistan massacre’, Ruchi Kumar, Aljazeera, 6 July 2020.

    [24] Two killed in bomb attack inside Kabul mosque, 3 June 2020; ‘Afghanistan: Two killed in bomb attack inside Kabul mosque’, Aljazeera, 3 June 2020; Deadly blast hits Kabul mosque during Friday prayers – ‘Deadly blast hits Kabul mosque during Friday prayers’, Aljazeera, 13 June 2020.

    [25] ‘Recent Blasts Call Kabul Security Strategy Into Question’, Khalid Nekzad, Tolo News, 12 July 2020.

    [26] ‘At least 18 dead in suicide bomb attack in Kabul’ | Afghanistan | The Guardian, 25 October 2020.

    [27] ‘Attack on Kabul University by ISIS gunmen leaves 22 dead’, The Guardian, 3 November 2020.

    [28] ‘Two killed in Kabul shooting, bomb attack’ | Conflict News | Al Jazeera, 23 December 2020.

19. The US Department of State reported in 2020 that the Afghan authorities sought to address security issues in Western Kabul’s Dasht-e-Barchi area, a target of major attacks during the year, by announcing plans to increase the presence of Afghan National Defense and Security Forces (ANDSF). According to the Shia community, there was no increase in ANDSF forces although the government distributed arms directly to the guards of Shia mosques in targeted areas[29].

    [29] US Department of State Annual Report on Religious Freedom, 10 June 2020.

20. While peace talks between the Afghan government and the Taliban finally commenced in September 2020, this was only made possible after the Afghan authorities agreed to the release of thousands of Taliban militants accused of serious offences.[30]

    [30] ‘Taliban Ready for Peace Talks with Kabul as Fighters Released’, The Australian newspaper, 10 August 2020 at >

    Despite the commencement of peace talks, the conflict continues to kill civilians and violence has surged around the country, with the Taliban refusing to implement a ceasefire before the peace negotiations. The peace talks are reported to have stalled in January 2021 after being marred by a spike of violence across the country. The new Biden administration is reportedly planning to review the US-Taliban agreement reached in February 2020, stating that the Taliban’s refusal to meet commitments to reduce violence in Afghanistan is raising questions as to whether US troops will be able to leave by May 2021 as required under that agreement[31].

    [31] ‘Taliban on diplomatic blitz after Afghan peace talks stall’ - ABC News (go.com).

21. Vulnerable groups such as returnees and internally displaced persons also face challenges accessing essential services in Afghanistan. Returnees and failed asylum seekers in Afghanistan face a food insecurity crisis. COVID-19 has increased unemployment, seen food-supply disruptions due to border closures, and caused rising food prices. This has exacerbated Afghans’ food insecurity, previously impacted by the ongoing conflict and high poverty levels.[32] In January 2020, the Internal Displacement Monitoring Centre reported that just under 90 per cent of returnees interviewed reported difficulties in subsisting[33].

    [32] 'Quarterly report to the United States Congress: 1 April to 30 June 2020', Special Inspector General for Afghanistan Reconstruction, 30 July 2020, p.132, 20200803143728.

    [33] ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan', Chloe Sydney, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, p. 14, 20200115130225.

22. In view of the sources cited above, I am not persuaded that there will be any lasting or durable change to the security situation in Afghanistan in the foreseeable future. Rather I accept DFAT’s 2019 assessment that it is dangerous, complex and highly fluid, varying considerably by location.

    Future risk of harm to the applicant

23. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia to Afghanistan he will return to Kabul. I give weight to the country information cited above, which indicates that:

    ·The security situation in Afghanistan is dangerous, complex and highly fluid. 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;[34]

    ·Since mid-2016, militants have conducted ongoing attacks against Shia targets who 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;[35]

    ·Hazaras are overwhelmingly Shia and have distinct Asiatic features, which make them visually distinguishable from other ethnic groups in Afghanistan. They are widely perceived as being supporters of the government;[36]

    ·Hazaras have been significantly impacted by attacks from insurgent groups, targeting Shia religious commemorations and political demonstrations, as well as sites in Hazara neighbourhoods in large cities including Kabul and Herat. ISKP targets Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. There are reportedly instances of Hazara civilians being abducted or killed while travelling on the roads;[37]

    ·DFAT assesses 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;[38]

    ·In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, noting that UNAMA remained gravely concerned about the safety and security of this religious minority population and the extent to which these attacks are impeding their freedoms of religion and movement and quality of life;[39]

    ·While Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years and those attacks have continued through 2020, including since peace talks began in September 2020;

    ·The peace talks between the Afghan government and the Taliban are reported to have stalled in January 2021 and the Taliban’s refusal to meet commitments to reduce violence in Afghanistan is raising questions as to whether US troops will be able to leave by May as required under the 2020 US-Taliban agreement.

    [34] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.

    [35] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7 – 3.16.

    [37] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at

    [38] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29 – 3.35.

    [39] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2.

1. In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to Kabul, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion.

   State protection

2. The harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect him from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. 

3. DFAT reports that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that 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 Afghan government’s ability to protect its citizens even where its security infrastructure is strongest.[40] In such circumstances I find that the level of protection available to the applicant from the Afghan Government does not meet the level of protection which citizens are entitled to expect.[41]

   [40] Ibid at 5.1 – 5.4.

   [41] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

100.   It follows that I accept 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 Kabul, now or in the reasonably foreseeable future.

Relocation

101.   A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so.  What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[42] 

[42] SZATV v MIAC (2007) 233 CLR 18.

102.   I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. The applicant has not lived in Afghanistan for many years and has no family members remaining there with whom he is in contact. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence and the Internal Displacement Monitoring Centre’s research indicating that 90 per cent of returnees struggle with food security and subsistence, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

103.   For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and imputed political opinion. It follows that he 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.

104.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant has been seeking to bring his wife and children to Australia since 2010. He has a partner visa application pending since 2013 and visited his family regularly in Pakistan before his visa was cancelled. His eldest son has finished his studies at a private college but is unable to attend university because of the family’s status as unregistered refugees in Pakistan. I accept that cancellation of the applicant’s visa will cause significant hardship not only to the applicant but also to his wife and children.

EXERCISE OF DISCRETION

105.   Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa.  In particular I give significant weight to the following matters:

·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2016, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion;

·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara race, his Shia religion and his imputed political opinion;

·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. I am satisfied that his removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;

·The material before me indicates the applicant has not breached any laws since arriving in Australia. On the contrary, his employer, clients and other associates describe him as hard working, dedicated and trustworthy. He is active in Hazara community organisations and also contributes to the community as a volunteer supporting Afghan asylum seeker and refugee youths and families;

·Medical evidence from the applicant’s treating psychiatrist indicates the applicant suffers from a major depressive disorder and generalised anxiety disorder as a result of the long separation from his family and the uncertainty of his ongoing visa status. The applicant has been separated from his wife and children for many years and has been unable to travel to visit them since his visa was cancelled.

106.   For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.

CONCLUSIONS

107.   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. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

108.   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.

Alison Murphy
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.

 ‘Senate body admonishes NADRA for issuing thousands of fake CNICs’, The Express Tribune, 8 May 2017, CXC9040667033; ‘The discriminated Pashtun’, The News on Sunday, 5 March 2017, CXC9040669342.