1913179 (Migration)

[2020] AATA 3763

1913179 (Migration) [2020] AATA 3763 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913179

MEMBER:Alison Murphy

DATE:13 July 2020

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 13 July 2020 at 11:03am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous protection visa application – inclusion in brother’s Global Special Humanitarian visa – close relatives in Australia – family composition – names previously known by – consideration of discretion – grant of protection visa not based on incorrect information – unaccompanied Hazara minors in Afghanistan – circumstances giving rise to non-compliance – non-refoulement obligations – Hazara Shia – security situation in Afghanistan, and specifically Ghazni province – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 99, 100, 101, 107, 109, 375, 376, 425
Migration Regulations 1994 (Cth), r 2.41

CASES
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Sankey v Whitlam (1978) 142 CLR 1
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 Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she considered the applicant had given incorrect information in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   NON-DISCLOSURE CERTIFICATE

5. The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s resident return visa ([Department file number]), containing copies of documents from the protection visa application file as well as documents relating to the global humanitarian visa applications sponsored by the applicant’s brother in 2009 ([Department file number). The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department under s.376 of the Act.

6. On 31 May 2019 a delegate of the Minister issued a certificate under s.376 of the Act attaching to folios 1-4 of the Department’s file relating to the cancellation of the applicant’s visa. Those folios contain details of the Department’s investigations and assessment of the applicant’s identity. The certificate states that the documents relate to the Department’s investigative methods, the disclosure of which may impact on the Department’s effective operation in relation to integrity measures. A copy of the certificate was provided to the applicant for comment and in submissions dated 15 June 2020 it was conceded that certificate appears on its face to be valid.

7. Where a certificate is issued under s.376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. Section 376(1) applies to information where the disclosure of any matter contained in the document would be contrary to the public interest for any reason specified in the certificate, (excluding matters contained in s.375(a) and (b) which relate to Australia’s security, defence or international relations and deliberations or decisions of Cabinet).

8. Public interest immunity generally operates to restrict the production or dissemination of otherwise relevant evidence in legal proceedings where its disclosure would be against the public interest. This requires a balance between the principles that:

   ·no harm should be done to the nation or to the public service by the disclosure of the material; and

   ·the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.[1]

   [1] Sankey v Whitlam (1978) 142 CLR 1 at 39.

9. Having considered the certificate, I find it to be valid. Having viewed the certificated folios, I accept that their disclosure in full would reveal specific details of the Department’s investigative methods and individuals and that this would be contrary to the public interest. I am satisfied that withholding the certificated documents would not result in the frustration of the administration of justice in this case because the substance of the information covered by the certificate has already been disclosed to the applicant in the Notice of Intention to Consider Cancellation (the s.107 notice). For these reasons I find that the balancing exercise referred to in paragraph 8 weighs in favour of withholding the documents and I have not disclosed them to the applicant.

   BACKGROUND TO THE REVIEW

10. The applicant is a young male who arrived in Australia by boat [in] April 2012 and applied for a protection visa, identifying himself as [applicant’s name], a citizen of Afghanistan of Hazara ethnicity born in Afghanistan on [date]. On the basis of information provided in his protection visa application, he was granted a Class XA Subclass 866 protection visa on 14 August 2012 and a Subclass 155 resident return visa on 20 August 2018.

11. In his protection visa application, the applicant stated he had never previously applied for refugee status or made any other type of application to the Department. He gave details of his parents, [and siblings] and stated he had no close relatives in Australia. He signed a declaration stating among other things that the information he had provided was correct and up to date.

12. Subsequently the Department formed the view that the applicant had been included in two applications for a global humanitarian visa lodged in 2009 and 2010 under the name of [Alias 1], born [date]. The sponsor in each case was [Alias 1]’s brother [Brother A] and the visa applications also included persons stated to be his mother, [Ms B], and siblings [Sibling C] and [Sibling D].

13. The applicant lodged an application for citizenship on 6 July 2017. Similar concerns about the applicant’s inclusion in the earlier visa applications arose in the assessment of that application and the applicant was invited to comment on adverse information about his family composition and personal details put to him in a letter dated 10 November 2017. The material before me indicates that his application for citizenship was refused shortly after his resident return visa was cancelled.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION

14. On 18 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 protection visa on the ground that he had provided incorrect information in his protection visa application.

15. The basis for this was stated to be biometric checking and data matching of information contained in the applicant’s protection visa and citizenship applications against information contained in two applications for global special humanitarian visa applications lodged in 2009 and 2010.

16. The notice set out that it was considered the applicant had provided incorrect information in his protection visa application, particularised as follows: 

    Form 866B:

    ·Question 2 – when he declared that he had not previously applied for refugee status or a protection visa from the Department. The Department formed the view this information was incorrect because it considered that he was included in two previous applications for a Global Special Humanitarian visa lodged in 2009 and 2010 under the name [Alias 1], born [date];

    ·Question 12 – when he declared he did not have any close relatives in Australia at the time of application. The Department formed the view this information was incorrect because it considered that the applicant’s brother [Brother A], his sister [Ms E] and his brother-in-law [Mr F] were in Australia at the time of the applicant’s visa application;

    ·Question 13 – when he declared the composition of his family members who were not in Australia. The Department formed the view this information was incorrect because it considered that he provided different details of his family composition in the Global Special Humanitarian visa applications, the protection visa application and his application for Australian citizenship;

    ·Question 22 – when he declared all the information in the form is true and correct. The Department formed the view this declaration was incorrect because the information contained in question 2, 12 and 13 was incorrect.

    Form 866C:

    ·Question 4 – when he declared he had not previously been known by any other names. The Department formed the view this information was incorrect because it considered that his name was given as [Alias 1], born [date] in the Global Special Humanitarian visa applications lodged in 2009 and 2010.

17. The s.107 notice invited the applicant to comment on the information contained in the notice.

18. The applicant responded to the s.107 notice by way of documents and submissions provided to the delegate on 2 and 3 May 2019, including statements from the applicant, his brother [Brother A], his employer, a colleague, a teacher and a number of friends. An Afghan taskera and English language translation for the applicant and other Afghan and Australian identity documents for the applicant and his family are also contained on the Departmental file. Further information and documents were provided to the Tribunal on 15 and 16 June 2020 in the context of the review.

19. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s.425 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. 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.

22. 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?

23. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act as particularised above.

24. The applicant does not dispute that he provided incorrect information in his protection visa application in respect of some of the particulars set out in the notice. In particular he concedes that he provided incorrect information at questions 2, 12 and part of 13 of the Form 866B as to his earlier visa history, some aspects of his family composition and whether he had close relatives in Australia. He concedes he was included in the earlier global humanitarian visa applications under the name of [Alias 1] and that his brother [Brother A], his sister [Ms E] and his brother-in-law [Mr F] were in Australia at the time of the applicant’s visa application. I accept the submission that the applicant was not required to disclose his brother-in-law [Mr F] as a ‘close relative’ in answer to question 12.

25. The applicant disputes that he provided incorrect information at question 4 of the Form 866C. That question asked him whether he had ever been known by another name. It is submitted that his negative response to that question was not incorrect as the applicant was never known publicly as [Alias 1] or referred to as [Alias 1] by anyone in his family, rather the name [Alias 1] was made up  by his brother [Brother A] along with all the other names contained in the global humanitarian visa. The applicant states he was around [age] years old when his brother lodged that visa application and the applicant had no input to any of the forms. He states he arrived in Australia three years later and did not remember that his brother had referred to him as [Alias 1] in the earlier visa application.

26. I do not accept that submission. Section 100 of the Act provides that an answer to a question is incorrect even where a person who gave or provided the answer did not know that it was incorrect. The applicant acknowledges that his brother [Brother A] applied for a global humanitarian visa for him under the name of [Alias 1]. I consider that the applicant was therefore known to the Department as [Alias 1] and the statement in the protection visa application that the applicant had never been known by another name was incorrect. The circumstances in which that incorrect information was provided are relevant to the consideration of whether the visa should be cancelled but cannot operate to exclude the information from the obligations imposed by s.101. For these reasons I find the applicant gave incorrect information at question 4 of the visa application.

27. Question 13 on the Form 866B asks ‘Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?’. The applicant was a person included in this application and named at Question 1. In response he provided an attachment which set out details of his parents, [and siblings].

28. In a statutory declaration made 2 May 2019, the applicant acknowledges not including his half-sister [Ms E] in that attachment, saying the reason for that was that her husband was on the same boat as the applicant and he was scared if they disclosed their relationship he would not be granted the visa. He also states that he disclosed his other siblings by names that were slightly different to their real names and gave them all the same last name [Surname 1], when they have all used a different last name when dealing with various immigration authorities. He states that he disclosed his sister as [Alias 2] when her name was [Ms G], his brother as [Alias 3] when his name is [Mr H] and his other brother as [Alias 4] when his name is [Mr I]. He states that [Ms G], [Mr H] and [Mr I] have never been known by the names in which he disclosed them in his protection visa application. He states that he did so because he was young, afraid and in detention and he thought if the Department connected him with his brother [Brother A] living in Australia they would refuse his visa.

29. The applicant states the earlier global humanitarian visa applications made by his brother [Brother A] contained incorrect information about their family composition. In a statutory declaration dated 21 April 2018, [Brother A] confirms he gave incorrect information in respect of his family members’ names and dates of birth in the global humanitarian visa applications. His explanation for doing so is difficult to comprehend, being that he didn’t know it was important to provide their correct names and he just suddenly decided to provide different names for them. He states he doesn’t know their correct dates of birth so just mentioned approximations.

30. In a further statutory declaration made 28 August 2018, the applicant lists what he states is the correct name and date of birth of each of his family members, alive and deceased, and reiterates that he provided incorrect details about those family members because asylum seekers were told that they should not disclose any family members in Australia.

31. I do not accept the submission made in the response to the s.107 notice to the effect that the later correction of the incorrect information about his family members means the incorrect information referred to in the s.107 notice should be considered only in relation to the applicant’s half-sister [Ms E]. Nor do I accept the submission that question 13 did not require the applicant to provide alternative names for family members. The applicant provided this information in an attachment to his visa application and that attachment states that the family members named in the attachment had never been known by any other name. This is clearly incorrect given the contents of the applicant’s statutory declaration made 2 May 2019.

32. The applicant denies that he gave incorrect information about his deceased brother [Brother J], submitting that question 13 did not require him to give details of his deceased close relatives. I accept that question 13 does not specifically ask for details of deceased close relatives, although I note that the applicant included the details of his deceased father in response to the same question. I find that the applicant gave incorrect information in response to this question in so far as he failed to list his sister, [Ms E]. I find the applicant gave incorrect information about his other family members as he altered the names and dates of birth of his remaining siblings and the dates of birth of his parents.

33. At question 22 the applicant signed a declaration stating (among other things) that the information he had supplied was complete, correct and up to date. It is submitted that the delegate failed to consider whether the applicant, who was aged approximately [age] at the time, had the legal authority, maturity or intellectual capacity to sign at question 22 or whether he understood the concept of a sworn declaration and its potential legal consequences. That question is posed as a declaration and preceded by the following statement:

    If any of the applicants who should answer this question and sign the declaration are under 15 years or lack legal authority to sign on their own behalf, a parent or guardian must sign on their behalf, except in the case of unaccompanied minors who may sign on their own behalf.

34. It is apparent that the applicant was both aged over 15 years and an unaccompanied minor. It is submitted that despite those matters, the delegate was obliged to consider whether the applicant lacked the legal authority to sign on his own behalf and that his young age and circumstances at the time mean that it is highly unlikely that he had such capacity. It is submitted that as a consequence, no weight can be given to either the signing of the declaration or the incorrect information itself provided elsewhere in the form that has been used to justify the cancellation of the visa.

35. I do not accept that submission. The applicant has conceded he provided incorrect information in his protection visa application. The operation of s.99 and s.100 of the Act has the effect that information given by the applicant or anyone on his behalf in relation to a visa application is deemed to be incorrect in a very broad range of circumstances, including where the applicant believes the information to be correct. The circumstances in which the incorrect information is provided are relevant to the consideration of whether the visa should be cancelled, particularly in the context of his young age and his journey to Australia as an unaccompanied minor. However those circumstances do not have the effect of exempting the applicant from his obligations under s.101 to complete his application form in such a way that all questions on it are answered and no incorrect answers are given or provided.

    Conclusion on non-compliance

1. For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application at questions 2, 4, 12, 13 and 22.

2. For these reasons, I find 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?

3. 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).

4. 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.

5. The correct information: For the reasons set out above, I have found the correct information is that the applicant had previously been included in two applications for offshore humanitarian visas lodged by his brother [Brother A] in which the applicant was known as [Alias 1]; that the applicant had close relatives in Australia at the time of his application (being his sister [Ms E] and his brother [Brother A]); that his family composition is as declared in his statutory declaration made 28 August 2018 and that the applicant provided incorrect information about these matters in his protection visa application.

6. The content of the genuine document (if any): As recorded in the delegate’s decision, no documents were considered as part of the visa cancellation process. 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).

7. Whether the decision to grant a visa or immigration clear the applicant was based wholly or partly, on incorrect information or a bogus document: It is not in dispute that the applicant is an Afghan national whose remaining living family were residing in [Country 1] at the time the applicant arrived in Australia and applied for protection.

8. The delegate’s protection visa decision record dated 14 August 2012 cited country information about the situation in Afghanistan for Hazaras, Shias and unaccompanied minors. Under the heading ‘Well founded fear of persecution due to being an unaccompanied Hazara minor in Afghanistan (PSG)’, the delegate records the reasons the applicant was granted a protection visa as follows:

   I am satisfied the applicant, as an unaccompanied minor without any family support or protection mechanisms in place in Afghanistan, faces a real chance of harm amounting to persecution should he be returned to Afghanistan. The evidence also suggests that this real chance of harm for minors does not diminish with location and would be equally faced throughout Afghanistan. The result is that there would be no safe place for the applicant to relocate to Afghanistan.

9. None of the incorrect information referred to in the s.107 notice has any bearing on the applicant’s membership of the particular social group ‘unaccompanied Hazara minors in Afghanistan’. For these reasons I am satisfied the decision to grant the applicant a protection visa was not based on the incorrect information.

10. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2012 protection visa application and again in his citizenship application in 2017. He states he gave the incorrect information in circumstances where he had decided to travel to Australia by boat to escape his situation in [Country 1] at the age of about [age] or [age] and he had been educated only to a year [level]. He states that on his travels he met other asylum seekers and was introduced to people smugglers, who told him he should not disclose any family members living in Australia or travelling with him. He and other asylum seekers were also told that any claims for asylum put forward should not be identical to those of other family members in Australia, or their claims would be rejected and they would not be granted asylum.

11. The applicant was aged approximately [age] at the time his brother [Brother A] made the application for the global special humanitarian visa. While the response to the s.107 notice indicates the applicant was aware that his brother was sponsoring him and other family members for an Australian visa, I accept the applicant did not read or write English and did not complete the forms submitted to the Department.

12. I note that at the time the applicant provided the incorrect information to the department in his protection visa application, he had endured a traumatic journey to Australia by boat and was in immigration detention as an unaccompanied minor. In light of his young age and circumstances, I accept his explanation as to his reasons for giving the incorrect information.

13. The present circumstances of the visa holder: The applicant is now aged [age] and lives with his brother [Mr H] and [Mr H]’s wife [Ms K] and their children in [Suburb 1], Victoria. He has a close relationship with their children, aged [age] and [age], as well as the [age] year old [children] of his brother [Brother A] and his wife [Ms L] with whom he has regular contact. He is close to his sister [Ms E] and her husband [Mr F] who have [number] children aged [age] to [age]. [Ms E] and her husband in particular rely on the applicant to drive them to medical and other appointments and the applicant often takes the family shopping and their children to sporting and other events. This is important as [Mr F] suffers from a medical condition which means he is unable to drive and [Ms E] has not learned to drive. The applicant also has [number] maternal uncles in Australia as well as [number] cousins, with whom he socialises and sees regularly.

14. The applicant attended [School 1] where he received a certificate of achievement for being the most motivated. He also attended [School 2], where his teacher, [Ms M], describes him as a ‘positive, cooperative and kind person’ who frequently offered assistance to teachers and volunteered for extra duties, as well as supporting other students in the class with work and practical tasks. He participated in the L2P driving program in [Suburb 2] and [Mr N] reports that he worked with the applicant for over 110 hours until the applicant obtained his driver’s licence, describing him as a credit to the program, being someone who is reliable, honest, respectful and friendly and who approached issues with a sense of responsibility and always did his best.

15. The material before me indicates the applicant has been employed in Australia since 2015, working first at [Employer 1] and later as a [Occupation 1] in 2017 and 2018 before his visa was cancelled and he lost the right to work in Australia. References from his former employer, [Mr O], director of [Employer 2] and his former colleague [Mr P], were provided to the Department in response to the s.107 notice. Both references attest to the applicant’s good character and hard work.

16. Medical information submitted to the Tribunal indicates the applicant received counselling from [a mental health service] in 2013 after being released from immigration detention and was re-referred after the cancellation of his visa in 2019. His counsellor, [Ms Q], states that his psychological functioning has been impacted by his traumatic childhood experiences in Afghanistan and [Country 1] and more recently, the cancellation of his protection visa. He has symptoms of post-traumatic stress and anxiety, including excessive worrying and sleep disturbance. She states he requires ongoing social supports and counselling, without which his mental health would likely deteriorate significantly.

17. 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 subsequently in his citizenship application and has provided further information about each of the matters referred to in the notice. While I have not accepted all the legal submissions made on his behalf, those I have not accepted are technical in nature and do not go the applicant’s conduct.

18. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that the applicant advised in his response to the s.107 notice that he provided other incorrect information in his protection visa application as to the name of his brother who was killed, the manner in which his father was killed and the location of his brother [Mr H], discussed further below.

19. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his statement in support of his visa application in 2012 and approximately eight years have elapsed since then.

20. 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.

21. Any contribution made by the holder to the community: As set out above, I accept the applicant is an important part of a significant familial support network in Australia and has also developed other networks through his education, employment and engagement in other programs. In particular he provides significant assistance and support for his sister [Ms E] and her family who would otherwise rely on private or community services for that assistance.

22. The applicant is also a member of [a charitable organisation] and [Mr R] of that organisation describes him as responsible, honest, friendly and of good character and behaviour. He plays [sports] with [a sports club] and the team manager of that club, [Mr S], describes him as a close personal friend who has settled well into Australia and who is always willing to help anyone in the community and participate in charity work.

23. In these circumstances I accept his community contribution and engagement are significant.

    Other factors to be considered

24. 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

25. 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.

26. 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.

27. 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.

28. 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.

    Country of nationality

29. It is not in dispute that the applicant is an Afghan national who resided in [City 1], [Country 1] as a refugee between 2008 and 2012 when he arrived in Australia. The Department has accepted him to be an Afghan national and assessed his claims as a Hazara Shia from Afghanistan. I find he is a citizen of Afghanistan and I have assessed his claims against that country.

    Well-founded fear of persecution

30. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for the combined reasons of his Hazara ethnicity, his Shia religion and his political opinion.

31. In assessing the applicant’s 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 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

32. The applicant is a male in his mid-[age range] who originates from Jaghuri district in Ghazni province, Afghanistan. He was approximately [age] years old when his family left Afghanistan for [City 1], [Country 1] in 2008 and approximately [age] when he travelled to Australia by boat as an unaccompanied minor in 2012. I accept he has no close family members remaining in Afghanistan, as his living family members reside in Australia or [City 1], [Country 1].

33. The applicant’s Hazara ethnicity and Shia religion are not in dispute. 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[2].

    [2] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59, 3.8.

34. 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.[3]

    The general security situation in Afghanistan

    [3] Ibid at 3.7 – 3.16.

35. The most recent DFAT report 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 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[4].

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

36. 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[5].

    [5] Ibid at 2.52 – 2.59

37. DFAT reports that UNAMA has documented 32,114 civilian deaths and 59,561 civilian injuries across Afghanistan since 2009, but UNAMA’s stringent methodology for recording conflict-related casualties means the true figures are likely to be higher. Conflict related civilian casualties rose considerably between 2013 and 2014 and have remained high in subsequent years. DFAT reports that of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, which increased by 48% in 2018, causing 1,404 deaths and 2,721 injuries[6]. UNAMA documented 271 incidents of conflict-related abductions carried out by AGEs in 2018, affecting 1,857 civilians and resulting in the death of 53 and the injury of 33[7].

    [6] Ibid at 2.60 – 2.69

    [7] Ibid at 2.75 – 2.80

38. 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, Hazaras remain particularly vulnerable to being selected for abduction or violence[8].

    [8] Ibid at 2.70 – 2.74

39. The DFAT report is now a year old. Other more recent sources note some progress on long awaited peace talks between the Taliban and the Afghan government currently on foot in Afghanistan. In the lead up to February 2020, the US and the Taliban engaged in talks to reach an agreement allowing for a phased withdrawal of US troops in Afghanistan amid a permanent ceasefire, counter-terrorism assurances from the Taliban and intra-Afghan dialogue. Those talks largely excluded the Afghan government[9].

    [9] ‘Reintegration of Ex-Combatants: Lessons from the U.S. Experience in Afghanistan’, 19 September 2019, Special Inspector General for Afghanistan Reconstruction, 20191101102841;

1. In February 2020, a deal signed between the US and the Taliban stipulated that the Afghan government would release 5000 Taliban prisoners while the insurgents would free about 1000 Afghan security force personnel ahead of long-awaited peace talks between the Afghan government and the Taliban. Violence across Afghanistan reportedly spiked following the peace deal, leaving record numbers of civilians dead and inflicting heavy casualties on Afghanistan’s security forces. As a result, President Ashraf Ghani halted prisoner releases and put his forces back on the offensive. The situation appeared to improve in May 2020 when the Taliban declared an unexpected three day ceasefire over the Eid al-Fitr holiday and both sides began releasing prisoners again[10].

   [10] >

   However as at the time of the Tribunal’s decision, formal peace talks have not commenced. Commentators report that both sides have made their priorities clear – the Afghan government wants the country to remain a republic with regular elections; while the Taliban wants a country governed by Islamic law. Analysts report that the Taliban has been emboldened by the deal with the US and Afghan officials reported more than 3800 attacks since it was signed in February 2020, killing 420 civilians and wounding 906[11].

   [11]

2. In May 2020 UNAMA reported rising numbers of civilian casualties in Afghanistan, noting the Taliban were responsible for 208 casualties in April 2020, an increase of 25% on April 2019. UNAMA documented the following major insurgent attacks in May 2020 to include:

   ·An attack on a Kabul hospital on 12 May, targeting its maternity ward, which resulted in at least 24 civilians killed, almost all of whom were female patients;

   ·An Islamic State Khorasan Province (ISKP) claimed suicide attack at a funeral in Nangarhar on 12 May, which resulted in at least 19 civilians killed and many more injured;

   ·A Taliban-claimed suicide truck bomb attack on 14 May in downtown Gardez, which injured at least 33 civilians;

   ·An ANSF airstrike in Balkh on 11 May, which killed nine civilians and injured 13 while those civilians were being forced by the Taliban to destroy a road to block ANSF[12].

   [12] UNAMA Rising Civilian Casualty Numbers Highlight Urgent Need to Halt Fighting and Re-Focus on Peace Negotiations 19 May 2020 at >

   In view of the sources cited above, I consider it too early to conclude that there will be any lasting or durable change to the security situation in Afghanistan in the foreseeable future. Rather I accept DFAT’s assessment that it is dangerous, complex and highly fluid, varying considerably by location.

   The security situation in Ghazni province

3. The applicant originates from Jaghuri, Ghazni province which forms part of the Hazarajat. DFAT assesses that Hazara residing within the Hazarajat generally face a lower risk of conflict related violence than those residing in other parts of the country, particularly Kabul. However it assesses that security conditions in some parts of the Hazarajat deteriorated significantly in 2018, including in the applicant’s home area of Jaghuri district.

4. DFAT reports this deterioration included large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, leading to protracted fighting and large scale displacement since August 2018. The Taliban began offensive operations in the Jaghuri and Malestan districts of Ghazni province, with UNAMA verifying 20 civilian deaths and six injuries in Jaghuri, while Ghazni province reportedly saw an 84% overall increase in civilian casualties in 2018[13].

   [13] DFAT Country Information Report Afghanistan 27 June 2019 at 2.60 – 2.69

5. Other sources confirm that on 7 November 2018, up to 1,000 Taliban commenced attacks in Jaghuri, killing at least 15 civilians and marking the end of a 17 year understanding under which the Taliban allowed schools and other government institutions to function in Hazara communities while preventing them from operating in Pashtun-populated regions. By 11 November 2018, Jaghuri was reported to be in disarray, with security forces all but collapsed[14]. On 12 November 2018 Shia citizens protesting in Kabul over frustration at the lack of government response to the conflict in Ghazni were attacked by a suicide bomber, with at least six killed and 20 casualties. ISK claimed responsibility for the attack, which occurred in an area in which many of Kabul’s Shia Hazara community reside[15].

   [14] Taliban routs commando company in one of Afghanistan’s most secure rural districts’, Long War Journal, The, 12 November 2018, CXBB8A1DA38543 

   [15] Protest Turns Violent After Arrest of Local Commander’, Tolo News, 26 November 2018, CXBB8A1DA39296; ‘Protests over arrest of anti-Taliban commander turn violent in Afghanistan’, Washington Post, The, 25 November 2018, CXBB8A1DA39299; ‘Afghan militia commander freed after 'several killed' in protests’, Aljazeera, 27 November 2018, CXBB8A1DA39620 

6. In June 2019, EASO reported that Ghazni continued to be highly contested and a major battlefield between Taliban insurgents and the Afghan government.  It reported the Taliban has significant presence and dominates almost all of the district centres, with 12 of Ghazni’s 19 districts categorised as under Taliban control, with the other seven districts categorised as contested. It reported that UNOCHA placed Ghazni in the second highest category of conflict severity in 2018 and assessed that indiscriminate violence reaches a high level[16].

   Fear of harm on the basis of his ethnicity, religion and political opinion

   [16] EASO Country Guidance: Afghanistan June 2019 pp 96-97

7. 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[17].

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

8. 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[18].

   [18] Ibid at 3.7 – 3.16.

9. In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, had significantly affected the Hazara population in 2018. It noted 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[19].

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

10. In June 2020, the UK Home Office noted UNAMA 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.[20]

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

11. 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’[21]. 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[22].

    [21] Ibid at 3.7 – 3.16

    [22] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42 – 3.46

12. The UNHCR Eligibility Guidelines for Afghanistan dated 30 August 2018 reports that AGEs systematically target civilians who are associated with or perceived to support the Afghan government, pro-government armed groups, Afghan civil society and the international community in Afghanistan[23]. Similarly in June 2020, the UK Home Office reported that civilians associated with, or perceived to be supporting the Afghan government, civil society and the international community in Afghanistan have been subjected to intimidation, threats, abductions and targeted attacks by AGEs such as the Taliban[24].

    [23] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018, available at: UK Home Office Country Policy and Information Note Afghanistan: Anti-Government Elements (AGEs) June 2020

13. 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, 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[25]. 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[26].

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

    [26] >

    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[27].

    Analysis of the applicant’s claims

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

14. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia he will be returned to Afghanistan. I have accepted he and his remaining family members resided in [Country 1] as refugees after leaving Afghanistan in 2008 and he has no family remaining in Afghanistan. I find that if returned to Afghanistan, he will return to his home area of Jaghuri district, Ghazni province.

15. I give weight to the country information cited above which indicates that:

    ·Security conditions in the applicant’s home area of Jaghuri, Ghazni province deteriorated significantly in 2018, evidenced by large scale Taliban attacks in the Hazara dominated western areas of Ghazni province including Jaghuri and Malestan. Ghazni was categorised in the second highest category of conflict severity in Afghanistan in 2018, and much of it is categorised as being under Taliban control or contested[28];

    ·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. The continuing armed insurgency has limited the ability of Afghans to travel safely from one part of the country to another by road[29];

    ·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. While abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence[30].

    ·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[31];

    ·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[32];

    ·Insurgent and terrorist groups have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. The methods of attack are often highly indiscriminate in nature and so the risk applies whether or not the person is the specific target of the attack[33];

    ·Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society and Afghans rely on these networks for shelter, safety and economic survival[34].

    [28] DFAT Country Information Report Afghanistan 27 June 2019; EASO Country Guidance: Afghanistan June 2019 pp 96-97

    [29] DFAT Country Information Report Afghanistan 27 June 2019 at 5.30 – 5.34

    [30] DFAT Country Information Report Afghanistan at 2.70 – 2.74

    [31] DFAT Country Information Report Afghanistan at 3.7 – 3.16.

    [32] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42 – 3.46.

    [34] DFAT Country Information Report Afghanistan 27 June 2019 at 5.31

16. The applicant will have to travel on Afghanistan’s road network to return to Jaghuri, and as a Hazara he is vulnerable to abduction or violence while travelling by road. Jaghuri itself has come under Taliban attacks resulting in protracted fighting and large scale displacement. The applicant has not lived in Afghanistan since he was [age] years old and has no close family remaining in Jaghuri that could provide him protection and shelter. In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to his home area of Jaghuri district, Ghazni province, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion.

    State protection

17. In this case, 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. 

18. For the reasons set out above I have found the harm feared by the applicant in Jaghuri, Ghazni province will be directed at him for the combined reasons of his Hazara ethnicity, his Shia religion and his political opinion.

19. DFAT reports that the continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside urban centres and even where its security infrastructure is the strongest[35].

    [35] DFAT 2017 DFAT Thematic Report Hazaras in Afghanistan 18 September at 4.1 – 4.2

20. Given this information, I find that the applicant would not be able to access state protection in Ghazni province to international standards in accordance with the principles in MIMA v Respondents S152/2003.

    Relocation

21. 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[36]. 

    [36] SZATV v MIAC (2007) 233 CLR 18

22. I have considered whether the applicant can relocate to Kabul, given the higher level of security forces present in that city and the corresponding higher level of state protection available to its inhabitants.  

100.   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[37]. 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[38].

[37] Ibid at 3.29 – 3.35.

[38]  In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, have 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[39].

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

102.   In such circumstances I accept that relocation to Kabul is not reasonable in the particular circumstances of the applicant.

Conclusions on non-refoulement obligations

103.   For the reasons set out above, I accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his Hazara ethnicity, his Shia religion and his imputed political opinion if he is returned to Afghanistan, now or in the reasonably foreseeable future.

104.   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.

105.   Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains 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[40].

[40] DMH16 v MIBP [2017] FCA 448.

106.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): I accept that mandatory legal consequences of the visa cancellation will cause the applicant significant hardship, rendering him liable to be detained and deported back to Afghanistan where he has not lived since he was a young child and where he has no close family remaining. I accept the medical evidence that removing the applicant from his social supports and counselling would likely result in a significant deterioration of his mental health.

EXERCISE OF DISCRETION

107.   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 previous visa application and family composition been known to the delegate when the decision to grant the visa was made in 2012, I am satisfied the applicant would still have been recognised as a refugee on the same basis as that set out in the delegate’s decision dated 14 August 2012, being his membership of the particular social group of ‘unaccompanied Shia Hazara minors in Afghanistan’;

·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 combined 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 applicant’s return to Afghanistan, where he has not lived since he was a young child and where he has no close family, would cause both the applicant and his family very significant hardship and would likely result in a significant deterioration of the applicant’s mental health;

·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather, since his arrival in Australia he has completed high school, worked as a tiler and developed a range of connections with the Afghan Australian and broader Australian community, all of whom speak highly of his character and conduct.

108.   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, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

109.   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.