1913754 (Refugee)

[2019] AATA 6854

1913754 (Refugee) [2019] AATA 6854 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913754

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:18 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 December 2019 at 11:16am

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in visa application – personal details, family members and previous visa applications – included in cousin’s applications as a minor, under another name and without his knowledge – discretion to cancel visa – factors for and against cancellation – visa would have been granted even with correct information – education, work and community activity in Australia – general security situation in Afghanistan – status of Hazaras and Shias – no family in Afghanistan – no state protection or possibility of relocation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 46A, 100, 101, 107, 109, 438
Migration Regulations 1994 (Cth), r 2.41

CASES
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a young male from Afghanistan who arrived in Australia [in] February 2012 and identified himself as an Afghan national of Shia religion and Hazara ethnicity born [Birthdate 1]. He has been assessed by the Department of Immigration (the Department) as being two years older than he claims to be and assigned a nominal birthdate of [Birthdate 2].

3. On 30 May 2019 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that he considered the applicant had given incorrect information in his protection visa application. The delegate considered the applicant gave incorrect information about his personal details, his family composition and earlier visa applications in which he was included.

   THE REVIEW PROCEEDING

4. The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The Tribunal also heard evidence from three witnesses in person (being [Ms A], [Mr B] and [Mr C]) and one witness by phone ([Mr D]).

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

6. 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.

   Non-disclosure certificate

7. The Tribunal has before it the applicant’s Departmental file relating to the 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 of the Act. There are two certificates on the Departmental file dated 11 June 2019 and 10 December 2019 respectively.

8. The certificate dated 11 June 2019 states that disclosure of the information subject to the certificate would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law. The certificate dated 10 December 2019 states that disclosure of the information subject to the certificate would be contrary to the public interest because it contains internal processing documents which may reveal Departmental investigative methods.

9. Where a certificate is issued under s.438, 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. Copies of both certificates were provided by the Tribunal to the applicant.

10. I am satisfied the s.438 certificates are prima facie valid. The documents covered by the certificates evidence investigations undertaken by the Department in relation to the applicant and other persons. The gist of the adverse material contained in the certificated documents has been disclosed in the s.107 notice and the delegate’s decision, and was discussed with the applicant at hearing.

    LEGISLATIVE FRAMEWORK

11. 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.

12. 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? 

13. The s.107 notice is dated 3 May 2019 and was sent to the applicant by email.

14. It sets out in detail the information given by the applicant in his offshore visa application that is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

15. 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?

16. 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.

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

    ·On 15 July 2012, the applicant lodged an application for a protection visa in which he stated that:

    ohe had never applied for refugee status or a protection visa;

    ohe had never made any other type of visa application to the Department;

    ohe had close relatives who were not in Australia;

    ohe provided the names of his parents, three sisters and two brothers;

    ohe stated his full name was [applicant name, comprising Given Name 1 and Surname 1] and that he had also been known by the name [Alias 1];

    ohe submitted an Afghan taskera [number].

    ·On 6 August 2012 his taskera was referred to the Department’s Document Examination Unit (DEU) and on 23 November 2012 the DEU concluded it was counterfeit document;

    ·Based on the information provided by the applicant, he was granted a protection visa on 31 December 2012;

    ·On 12 October 2016 the applicant made an application for Australian citizenship and as part of the assessment of that application, a number of checks were carried out:

    oA facial image comparison matched the applicant to [Alias 2, comprising Given Name 2 and Surname 2], born [Birthdate 3];

    o[In] August 2010, [Alias 2] was included as a dependent in a Global Special Humanitarian (Subclass 202) visa application which was refused [in] November 2010. The main applicant was his half-sister [Ms E, which includes Surname 2] and the sponsor was [Mr F, which also includes Surname 2]. Details of the names of his parents, step-mother and half-siblings were included in that application and those details are different from the details of his siblings provided in his protection visa application;

    o[In] November 2011, [Alias 2] was named as an applicant in an orphan relative (Subclass 117) visa application which was refused [in] November 2010. The proposer was his half-brother [Mr F]. Details of the names of his parents, step-mother and half-siblings were included in that application and those details are the same as those included in the global humanitarian visa set out above, but different than those provided in his protection visa application.

    ·The notice sets out that the applicant:

    oFailed to declare that he had previously been known as [Alias 2] born [Birthdate 3];

    oFailed to declare that he had applied for refugee status in the Global Humanitarian visa application;

    oFailed to declare that he had applied for a global humanitarian visa and an orphan relative visa in Australia under the name of [Alias 2];

    oFailed to provide details of members of his family unit who were in Australia but not included in his visa application (being his half-brother [Mr F] and his half-sister [Ms E]).

18. 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.

19. The applicant responded to the s.107 notice on 16 May 2019. In essence he conceded he had given incorrect information in his protection visa application when he answered ‘no’ to the question asking whether he had made any other type of visa application to the Department, although he stated he was not aware of the earlier visa applications at the time he lodged his application for a protection visa and he was unaware that his response was incorrect.

20. The applicant maintained he had not given incorrect information about the names by which he had previously been known, stating he was not known by the name [Alias 2], rather [Surname 2] was the family name of his sponsor [Mr F] who had included him in his family unit at the applicant’s parents’ request. He stated that he had not failed to declare his half-brother [Mr F] and his half-sister [Ms E] as stated in the s.107 notice because they are not his family members. He stated that the persons named as his siblings in the earlier visa applications are [Mr F]’s family members, but not the applicant’s siblings.

    Did the applicant provide incorrect information about whether he had previously applied for refugee status, a protection visa or any other visa to Australia?

21. The s.107 notice alleges that the applicant gave incorrect information in his protection visa application when he stated he had not previously applied for refugee status or a protection visa and that he had never made any other kind of visa application to the Department. The s.107 notice alleges the applicant was included in earlier applications for a global humanitarian visa lodged in 2010 and an orphan relative visa application lodged in 2011 under the identity of [Alias 2]. A Facial Imaging Comparison Report dated 1 April 2019 concludes that images of the applicant and [Alias 2] had been compared and the examiner is of the opinion that they represent the same person.

22. At hearing the applicant agreed that he was included in the earlier visa applications under the identity of [Alias 2]. Consistently with his earlier statements to the Department, he stated that those visa applications were made without his knowledge and he was not involved in the process of lodging either application. He stated that the visa applications came about because his parents were desperate to get him out of [Country 1] and arranged for his mother’s sister’s son [Mr F] to include him in the visa applications by adding his surname and representing the applicant as Mr [F]’s brother.

23. On the evidence before me I find the applicant was included in the two earlier visa applications lodged in 2010 and 2011. There is nothing in the material before me that would suggest the applicant has previously applied for or been included in any other visa applications. Clearly neither of those applications are applications for a protection visa, however I am satisfied that an application for a global humanitarian visa is an application for refugee status.

24. I accept the applicant was not aware of the earlier visa applications until he received the s.107 notice in May 2019. In making this assessment I note that he was still a minor at the time the visa applications were made. His consistent evidence has been that his parents made the arrangements with his cousin and he was too young to know about or understand their actions.

25. I have considered the submission that while the applicant was included in the earlier visa applications, he did not ‘make’ these applications and therefore he did not give incorrect information when he stated in Question 3 that he had not previously made any other type of application to the Department.

26. I do not accept this submission. In his statutory declaration made 15 May 2019, the applicant states that in their desperation to get the applicant out of [Country 1], his parents engaged the services of a man to help them with the Australian visa applications and provided that man with all of his details. The applicant has since confirmed that man was his maternal cousin, [Mr F]. In that statutory declaration the applicant states that he was young at the time and his parents did not tell him anything that they had been doing or thinking. He states that if he had known or been old enough to understand what was happening he would not have agreed.

27. According to the identity details provided by the applicant, he was approximately [age] years old when the application for a global humanitarian visa was made in 2010 and [age] years old when the application for the orphan relative visa was made in 2011. It is very common for parents to make visa applications on behalf of their minor children and I am satisfied that the applicant’s parents authorised the visa applications that were made on his behalf, notwithstanding that the applicant was not aware of them.

28. Having found that the applicant had previously been included in the earlier visa applications, I am satisfied he provided incorrect information in his protection visa application when he stated that he had not previously applied for refugee status and he had not previously applied for any other visa to Australia. This is because s.100 of the Act makes clear that an answer to a question is incorrect even though the person providing the answer did not know that it was incorrect.

    Did the applicant provide incorrect information when he failed to declare that he had previously been known as [Alias 2]?

29. The s.107 notice alleges that the applicant gave incorrect information in his protection visa application when he failed to declare that he had previously been known as [Alias 2].

30. The applicant gave evidence that while his birth name was [Given Name 2], he had been known to his family by [Given Name 1] from an early age. This came about because he became very sick as a young child, after which he was called by a different name as is customary in his community in Afghanistan. This is because traditional beliefs hold that if a person becomes very sick, they need a new name so they can start a new life as a new person and heal. He gave evidence that when he arrived in Australia as an unaccompanied minor, it did not occur to him that it would be important to tell the Department about the name he had been known by as a very young child.

31. He stated for a long time he had been recorded by the Department as ‘[Given Name 1, Given Name 1]’, as the Department needed to record a surname and the applicant did not have one. The applicant stated he later adopted the family name [Surname 1], with [the first component] being the name of his grandfather and [the second component] meaning ‘[specified]’. Independent sources confirm that Afghans traditionally use only a first name and most Afghans do not have a last name, although they may choose one if they are in contact with other cultures. Chosen last names are selected by the individual and may represent a father’s name, a tribal affiliation or an adjective describing the person[1].

    [1] Megerdoomian, K The Structure of Afghan Names November 2009 at

32. At the request of the applicant’s family, his sponsor (and maternal cousin) [Mr F] changed the applicant’s identity in order to include him in visa applications lodged for his own family. The applicant argues he is not and has never been known by the name [Alias 2] and he is not the member of the family unit of [Mr F], [Ms E] or any of the persons named as his siblings in those applications.

33. I accept the applicant’s explanation in this regard. I note that the global humanitarian visa application refers to the applicant as the step-sibling of the other named siblings and states that he had a different biological mother who was deceased, which adds weight to his suggestion that he was merely ‘added on’ to another family unit. I also note the case notes for the orphan relative visa contained on the Department’s cancellation file include a copy of the delegate’s decision refusing that visa. That decision states that the applicants (being the current applicant and the persons named as his siblings, whom he now states to be his maternal cousins) did not provide taskeras in support of the visa application (although some other identity documents were provided) and their absence caused the delegate not to be satisfied as to their age or identities. The delegate also expressed concern about the advice from the applicant’s agent to the effect that [Alias 2] was missing and his whereabouts were unknown to his family shortly before the delegate’s decision.

34. In these circumstances I am not satisfied the information about the applicant contained in the global humanitarian and orphan relative visa applications lodged by [Mr F] is correct. Nor am I am satisfied [Alias 2] is the true identity of the applicant or that he has ever been known by that name. It follows that I am not satisfied the applicant gave incorrect information in his protection visa application by failing to disclose that he was also known as [Alias 2].

    Did the applicant provide incorrect information when he failed to provide details of members of his family unit who were in Australia?

35. The s.107 notice alleges that the applicant failed to provide details of members of his family unit who were in Australia but not included in his visa application (being [Mr F]).

36. For the reasons set out above I have accepted that the applicant is not the brother of [Mr F], rather they are maternal cousins. Generally speaking, cousins are not included in the definition of members of a family unit. There is no evidence before me that would suggest the exceptions to that rule apply here. It follows that I do not accept that the applicant gave incorrect information when he failed to include [Mr F] as a member of his family unit in Australia in his protection visa application.

    Conclusions on compliance

37. Having found the applicant gave incorrect information in his protection visa application when he stated that he had not previously applied for refugee status and he had not previously applied for any other visa to Australia, 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?

1. 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).

2. 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.

3. The correct information: I consider the correct information is that contrary to his statements in his protection visa application, the applicant had previously made an application for refugee status and was included in two earlier visa applications, being applications for a global humanitarian visa in 2010 and an orphan relative visa in 2011.

4. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).

5. 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 Department’s decision record in relation to the grant of the applicant’s protection visa indicates he provided information consistent with his current claims about his age and identity. It notes that he had been assessed by the Department’s age determination process as being born two years earlier than the applicant’s own estimated age and assigned a birth date of [Birthdate 2]. The applicant claims that to the best of his knowledge, he was born in [the year of Birthdate 1] because that is the year of birth recorded in the family’s Q’uran. He states he has no official record of his date of birth.

6. After the age determination assessment deemed him to be 18 and therefore not eligible to be treated as an unaccompanied minor, the applicant was separated from his friends and placed in detention with other adult detainees. At this stage he asked his parents in Quetta to obtain a taskera for him, to prove he was under the age of 18. They did so, but that taskera was later found to be a non-genuine document by the Department’s Document Examination Unit. When he asked his parents how they obtained it, they told him they had paid a person in Quetta to provide the taskera as they were unable to obtain a genuine taskera from outside of Afghanistan. The applicant now accepts that the taskera provided is not a genuinely issued taskera.

7. The age determination assessment relating to the applicant and referred to in the delegate’s decision has not been provided to the Tribunal and I am unaware of the reasons the Department did not accept his claimed age, noting this occurred before the taskera was assessed to be non-genuine and before the applicant was granted the protection visa. I note however that I consider the applicant to be a generally credible witness as to his age and identity.

8. The protection visa delegate’s decision noted the applicant had provided consistent information throughout the process as to his identity and that he spoke Hazaragi. The decision states that the delegate found the applicant to be a generally credible witness, who exhibited great distress when asked about his experiences in [Country 1] and accepted that he was a Hazara Shia from Afghanistan. While the delegate assessed the applicant on the basis he was an adult (and not an unaccompanied minor as claimed), she accepted he and his family resided in [Country 1] as refugees after leaving Afghanistan in 1999 and he had a well-founded fear of persecution in Afghanistan as a relatively young Hazara Shia who was particularly vulnerable due to his youth and maturity.

9. Nothing in the s.107 notice or the cancellation decision suggests that had it been known that the applicant had made an earlier application for refugee status or was included in the earlier visa applications, it would have impacted on the decision to grant him the visa. Nor is there anything in the s.107 notice that would suggest the applicant and his family are not Afghan citizens or that they are citizens of any other country.

10. Given my findings above, and there being no suggestion that the applicant is not an Afghani person or that any of the refugee claims made by the applicant in that visa application were incorrect, I am not satisfied the decision to grant the visa was based in any part on the incorrect information.

11. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2012 visa application.  He has consistently denied knowing he had been included in the earlier visa applications and he was aged somewhere between [age] and [age] (depending on his exact date of birth) at the time those visa applications were made in 2010 and 2011.

12. The present circumstances of the visa holder: The applicant is a young male in his mid-[decade] living in a shared house in Melbourne. After being granted the visa, he completed [specified years] at a high school in [City 1]. He then trained as [an Occupation 1] for two to three years before starting his own business about a year ago. He is one of two directors of [Company 1] which had a trading profit in the last financial year of $[amount].

13. Three witnesses attended the Tribunal hearing to give oral evidence about the applicant’s business success. All three witnesses gave evidence of their intention to keep subcontracting their [work] to the applicant’s company and their belief that his business would grow rapidly.

14. [Mr D] gave evidence that he runs a company called [Company 2] which had engaged the applicant as a subcontractor over the past two years. Mr [D]’s evidence is that the applicant is an excellent worker who stands out over the other workers they have engaged. Mr [D] stated his company used three [Occupation 1 subcontractors], but he considered the applicant to be their number one preferred contractor.

15. [Mr B] owns a business called [Company 3] and has known the applicant since he was employed by his previous employer. He attested to the applicant’s honesty, punctuality and the high standard of his work and said he would be very sorry to lose him as a subcontractor if his visa remains cancelled.

16. [Mr C] is the director of [Company 4] and met the applicant approximately two years ago when he was working for his former employer. Since the applicant has started his own business, Mr [C] has contracted to the applicant directly, based on the positive impression he had formed of the applicant as a hard worker who is polite and respectful to their clients and works at an excellent standard. He described his work as ‘exquisite’ and showed the Tribunal a photo spread of a [product] installed by his company and [worked on] by the applicant which was featured in a [magazine]. He gave evidence that [Occupation 1] is quite difficult and specialised work.

17. As well as his work activities, the applicant has active in the Hazara and broader community. [Ms A] of [Organisation 1] attended and gave evidence that she had known the applicant since he first came to [City 1] to attend school and she considered him a close family friend who is determined to contribute to the community and to take the opportunity that Australia has presented. She gave evidence that his volunteer activities for that organisation included assisting with the catering and set up for events put on by [Organisation 1] including its whole of community Eid Festival as well as being very active in the Hazara-led [activity] over a number of years. He has also assisted members of that organisation to move house and offices over the years while looking out for and supporting other young Hazara boys in the community.

18. I accept the evidence of each of the witnesses who appeared before the Tribunal.

19. The applicant gave evidence that he had applied for a job as [an Occupation 2] and although he had not been successful, he intended to join the [related Organisation 2] as a volunteer.

20. 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 delegate considered the applicant had promptly responded to the s.107 notice and acknowledged providing the incorrect information identified above. The delegate considered that matter weighed in favour of the applicant.

21. Any other instances of non-compliance by the visa holder known to the Minister: The delegate refers to inconsistencies in the applicant’s description of [Mr F] as well as his failure to mention three of his siblings in his visa application. The applicant explains these matters by stating that he was very young and confused at the time he provided this information.

22. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his visa application in 2012 and seven years have elapsed since then.

23. 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.

24. Any contribution made by the holder to the community: As referred to above, the applicant is active in the Hazara community. At hearing he gave evidence that he has also made enquiries about becoming a volunteer [Occupation 2].

    Other factors to be considered

25. 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, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

26. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) of the Act has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia[2].

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

    [2] DMH16 v MIBP [2017] FCA 448

27. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

28. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

29. 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.

30. In this case the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.

    Country of nationality

31. The applicant has at all times claimed to be an Afghan national who resided in [Country 1] as a refugee between 1999 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

32. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion.

33. In accordance with Ministerial Direction No.84, made under s.499 of the Act, 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

34. The applicant is male in his mid-[decade], originally from [a] village in the Jaghuri district of Ghazni province, Afghanistan. He was approximately [age] years old when his family left Afghanistan for [Country 1]. I accept he has no close family members remaining in Afghanistan, as his parents and siblings remain in [Country 1].

35. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion. The applicant has participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and has the distinct visual features shared by Hazaras.

    The applicant’s fear of harm in Afghanistan

36. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. For the reasons set out below, and having regard to the most recent DFAT report dated 27 June 2019 as well as other sources discussed below, I accept that to be the case.

    The general security situation in Afghanistan

37. The 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[3].

    [3] Ibid at 2.52 – 2.59

38. 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[4].

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

39. DFAT reports that UNAMA has documented 32,114 civilian deaths and 59,561 civilian injuries across Afghanistan since 2009, but given UNAMA’s stringent methodology for recording conflict-related casualties 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[5].

    [5] Ibid at 2.60 – 2.69

40. 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[6]. 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[7].

    [6] Ibid at 2.75 – 2.80

    [7] Ibid at 2.70 – 2.74

41. DFAT indicates the security situation in the applicant’s home area of Jaghuri district, Ghazni province deteriorated significantly in 2018. Ghazni province forms part of the Hazarajat. While the security situation in the Hazarajat has been considerably better than in most other parts of Afghanistan in recent years, DFAT reports that security conditions in some parts of the Hazarajat deteriorated significantly in 2018. This included large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, leading to protracted fighting and large scale displacement since August 2019. It reports 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[8].

    The applicant’s fears on the basis of his ethnicity and religion

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

42. 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[9].

    [9] Ibid at 3.8

43. 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.

1. DFAT assesses that Hazara residing within the Hazarajat, particularly in Bamiyan province, face a lower risk of conflict related violence than those residing in other parts of the country, particularly Kabul. It 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’[10].

   [10] Ibid at 3.7 – 3.16

2. 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[11].

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

3. 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[12].

   [12] Ibid at 3.29 – 3.35

4. In June 2019, DFAT assessed that Shia face a high risk of being targeted by Islamic State Khorasan Province (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[13]. 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[14].

   [13] Ibid at 3.29 – 3.35

   [14] >

   In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government, closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads[15].

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

   Analysis of the applicant’s claims

5. 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 family resided in [Country 1] as refugees after leaving Afghanistan in 1999 and he has no family remaining in Afghanistan, as his parents and siblings reside in [Country 1].

   Risk of harm if returning to Jaghuri district, Ghazni province

6. I give weight to DFAT’s assessment that the security situation in the applicant’s home area of Jaghuri district, Ghazni province deteriorated significantly in 2018. As set out above, this deterioration is evidenced by large scale Taliban attacks in the Hazara dominated western areas of Ghazni province including Jaghuri and Malestan, leading to protracted fighting and large scale displacement since August 2019, leading to an 84% overall increase in civilian casualties in 2018[16].

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

7. DFAT also reports that 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. Further, the continuing armed insurgency has limited the ability of Afghans to travel safely from one part of the country to another by road[17].

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

8. Having found the applicant is a Shia Hazara with no remaining family in Afghanistan, I accept there to be a real chance he would face serious harm if returned to his home area of Jaghuri district, Ghazni province.

   State protection

9. 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. 

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

11. 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[18].

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

12. 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

13. 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[19]. 

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

14. 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.  

15. The DFAT report indicates that Hazaras and Shias in that city have been subjected to ongoing major attacks since mid-2016, that those attacks are religiously motivated and have recently targeted Shia majority or ethnic Hazara neighbourhoods. DFAT assesses that Shias in Afghanistan face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities, including Kabul[20].

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

16. DFAT also reports that Hazaras have distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan and are widely perceived as being supporters of the government[21]. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban, and 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]. DFAT 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[23].

    [21] Ibid at 3.7 – 3.16

    [22] Ibid 3.42 – 3.46

    [23] Ibid at 5.1 – 5.4

17. 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. I have accepted he has no known relatives in Afghanistan, having left that country with his family in 1999 when he was about [age] years old. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence, the fact that the applicant has not lived in Afghanistan since he was a young child and has no relatives or connections outside of Kabul, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

    Conclusions on non-refoulement obligations

18. 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 Shia religion and Hazara ethnicity if he is returned to Afghanistan, now or in the reasonably foreseeable future.

100.   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.

101.   Mandatory legal consequences to a cancellation decision: If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening.

102.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The combination of matters set out above cause me to accept the applicant would face a very severe degree of hardship if returned to Afghanistan.

EXERCISE OF DISCRETION

103.   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 earlier visa applications 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 basis of his profile as a young male of Afghan nationality, Hazara ethnicity and Shia religion, who had resided as a refugee in [Country 1] since 1999;

·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 and Shia religion.

·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.

·For the reasons set out in detail above I have accepted the applicant has made a significant contribution to the Australian community and is considered an excellent and skilled worker by the companies who subcontract to him. After arriving as a minor in 2012, he completed [specified years] at high school in [City 1]. He later trained as [an Occupation 1] and started a successful business in 2018, [Company 1], which had a trading profit in its first financial year of $[amount]. I have accepted he has engaged in volunteering and community building activities.

·Nothing in the material before me suggests the applicant has breached any Australian laws since arriving in Australia, nor that he otherwise poses any threat or risk to the Australian community. Rather the material before me indicates he is a valued member of his local Afghan Hazara community and that he enjoys the high regard of the Australian citizens who appeared before the Tribunal to give evidence in support of the review application.

CONCLUSIONS

104.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

105.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) 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.