1913771 (Migration)

1913771 (Migration) [2021] AATA 1445 (19 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913771
MEMBER:Alison Murphy
DATE:19 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 19 February 2021 at 5:12pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – applicant provided different names for applications – consistent with information on naming conventions in Afghanistan – major depression and anxiety – satisfied as to his identity – hardship – decision under review set aside
LEGISLATION
Migration Act 1958, ss 107, 109, 119, 376, 438
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
On 23 May 2019 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that she considered the applicant had given incorrect information in his protection visa application. The delegate considered the applicant gave incorrect information about his name, his visa history, his relatives in Australia and his family composition.
The applicant appeared before the Tribunal on 10 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a [age]-year-old male who arrived in Australia by boat [in] June 2012 and sought protection. On 16 November 2012 a delegate found he met the definition of a refugee set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and on 14 January 2013 he was granted the protection visa. He was later granted the Subclass 155 (Five Year Resident Return) visa on 19 September 2018.
The materials before the Tribunal indicate that the applicant is the sponsor for an offshore partner visa lodged in 2013 that is still pending. The applicant applied for Australian citizenship by conferral on 17 May 2017 and that application is also still pending.
On 3 April 2019, the Department completed a forensic Facial Image Comparison Report which compared a photograph of [Name 1 Surname 1] born [Date 1] lodged in support of an application for a Global Humanitarian (Subclass 202) visa application in December 2009 with the photograph of the applicant supplied with his protection visa application. The Facial Image Comparison report concluded those photographs were of the same person.
On 3 May 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 she considered he had given incorrect information in his visa application.
The s.107 notice identified the information provided in the protection visa application that was considered to be incorrect. In summary it suggested that the applicant had given incorrect information as to his name, date of birth, visa history, his relatives inside and outside Australia and in his declaration that the information in his protection visa application was complete, up to date and correct in every detail. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.
The applicant responded to the s.107 notice on 3 May 2019. In essence, he conceded he had given incorrect information about his visa history in his protection visa application at questions 2 and 3, acknowledging he had previously been included in the global humanitarian visa application under the name of [Name 1 Surname 1]. He denied giving incorrect information about his family members in Australia, stating that [Mr A] is not his father and he did not have any members of his family unit in Australia at the time of the protection visa application. He denied giving incorrect information about his name and date of birth, maintaining that his correct name is [Name 1 Surname 2] and he was born [Date 2].
On 23 May 2019 a delegate decided to cancel the applicant’s visa, considering the applicant had provided incorrect information in the manner set out in the s.119 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.
The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE REVIEW PROCEEDING
Non-disclosure certificate
The Tribunal has before it the 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(1)(b) of the Act.
The certificate is dated 13 June 2019 and states that disclosure of folios 1-10 of the Department’s cancellation file would be contrary to the public interest because it contains information given to an officer of the Department in confidence. The certificate is invalid because it is issued under s.438(1)(b) which applies to decisions made under Part 7 of the Act. In this case the decision under review was made under Part 5 of the Act, not Part 7. Further the certificate is unsigned.
While the certificate dated 13 June 2019 does not appear to have been revoked, a further certificate pertaining to the same folios was issued under s.376 of the Act on 28 June 2019. Copies of both certificates were provided to the applicant’s representative at hearing.
The s.376 certificate dated 13 June 2019 is also unsigned and the Australian courts have held that an unsigned certificate is invalid. I note that some of the information contained in those documents has already been disclosed to the applicant in the s.119 certificate and the delegate’s decision, including the existence and conclusions of the facial image comparison report linking the applicant’s photograph with that of [Name 1 Surname 1], as well as details of the earlier global humanitarian visa application and some details of Name 1 Surname 1]’s family composition. The fact that the applicant’s photograph was included in the earlier visa application under the name of [Name 1 Surname 1] is not in dispute. Nor is it disputed that the applicant had an uncle in Australia at the time he made his protection visa application.
Other parts of the certificated documents contain information about third parties not subject to the current review and may be subject to privacy restrictions. Given I am satisfied that the gist of the certificated information has been provided to the applicant in the s.109 notice and delegate’s decision, I have not otherwise provided copies of that information to the applicant.
LEGISLATIVE FRAMEWORK
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.
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?
The notice dated 3 May 2019 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 the reasons the Department formed that view. It is not suggested by the applicant or his representative that notice is deficient or invalid.
I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.
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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). In summary, that notice alleges that the following declarations made by the applicant in his protection visa were incorrect:
·The applicant’s declaration that his name was [Name 1 Surname 2] and he was born [Date 2] (at question 1 of Part B and questions 1 and 8 of Part C of the Form 866);
·The applicant’s declaration that he had not previously applied for refugee status or a protection visa or any other type of visa from the Department (at questions 2 and 3 of Part B of the Form 866);
·The applicant’s declaration that no members of his family unit were in Australia (at question 10 of Part B of the Form 866);
·The applicant’s declaration as to his family composition (at question 11 of Part B of the Form 866);
·The applicant’s declaration that the information in his protection visa application was complete, correct and up to date in every detail (at question 22 of Part B and question 67 of Part C of the Form 866).
The s.107 notice sets out that on 3 April 2019, the Department completed a forensic Facial Image Comparison Report which compared a photograph of [Name 1 Surname 1] born [Date 1] lodged in support of an application for a Global Humanitarian (Subclass 202) visa application in December 2009 with the photograph of the applicant supplied with his protection visa application. The Facial Image Comparison report concluded those photographs were of the same person.
The s.107 notice records that the proposer of the Global Humanitarian (Subclass 202) visa application in December 2009 was [Mr A], stated to be the father of Name 1 Surname 1]. That visa application also included [Name 1 Surname 1]’s mother and six siblings. The visa application was refused on 1 August 2010 and it was noted in the assessment that [Name 1 Surname 1] appeared to be older than his claimed date of birth of [Date 1] would suggest and there were concerns about the credibility of the claimed family composition set out in that visa application.
The s.107 notice sets out that the applicant claimed in his protection visa application that his mother was deceased and declared the details of his wife, father and five siblings. On 23 October 2013 he lodged an application for a partner visa (Subclass 309) to sponsor his wife [Ms B] born [date] and this application is still pending.
The non-compliance identified and particularised in the s.107 notice can be summarised as follows:
·It is considered the applicant gave incorrect information at question 1 of Part B and question 1 of Part C of Form 866 as to his name, because the facial comparison indicates he is also known as [Name 1 Surname 1] born [Date 1];
·It is considered the applicant gave incorrect information at question 2 of Part B of Form 866 as to whether he had previously applied for refugee status or a protection visa, because he had previously applied for refugee status in a global humanitarian visa application under the name of [Name 1 Surname 1];
·It is considered the applicant gave incorrect information at question 3 of Part B of Form 866 as to whether he had previously made any other type of visa application to the Department, because he had previously applied for a global humanitarian visa application under the name of [Name 1 Surname 1];
·It is considered the applicant gave incorrect information at question 10 of Part B of Form 866 because [Name 1 Surname 1] was sponsored by his father in Australia, [Mr A], and may have had undeclared relatives inside Australia at the time of application;
·It is considered the applicant gave incorrect information at question 11 of Part B of Form 866 because he provided a different family composition from that given in the humanitarian visa application under the name of [Name 1 Surname 1] and may have had undeclared relatives outside Australia at the time of application;
·It is considered the applicant gave incorrect information at question 4 of Part C of Form 866 as to whether he had ever been known by any other name, because the facial comparison indicates he has applied for a visa under the name of [Name 1 Surname 1] born [Date 1];
·It is considered the applicant gave incorrect information at question 8 of Part C of Form 866 as to his date of birth, because the facial comparison indicates he has applied for a visa under the name of [Name 1 Surname 1] born [Date 1] and his date of birth may not be [Date 2];
·It is considered the applicant gave incorrect information at question 22 of Part B and 67 of Part C of Form 866 as to his declarations that the information contained in the visa was application was complete, correct and up to date in every detail.
The applicant appeared before the Tribunal on 10 February 2021. Further documents and submissions were provided to the Tribunal on 3 February 2021 and 11 February 2021. Before the Tribunal he conceded he provided incorrect information as to his visa history and his family composition. He denied providing incorrect information in his protection visa application as to his name and date of birth, maintaining he is [Name 1 Surname 2] and he was born [Date 2].
While the applicant acknowledges he was included in the 2009 global humanitarian visa application under the name of [Name 1 Surname 1] born [Date 1], his consistent evidence has been that it is that identity that is false and his correct identity is as set out his protection visa application. The applicant gave evidence that Afghans do not generally use surnames, rather they are identified by the names of their fathers. He said the younger generation often take a surname when they attend university and he chose to be known by the surname ‘[Surname 2]’ when he attended university in Kabul.
For the following reasons I accept that explanation to be true:
·Country information about Afghan naming conventions indicates that Afghans traditionally use only a first name and generally lack a surname, distinguished instead by their tribal affiliation, place of birth, profession or honorific titles. Afghans who have contact with the Western world adopt a surname, generally selecting one that represents a father’s name, their tribal affiliation or an adjective describing a person.[1] The applicant has given evidence that he selected the surname [Surname 2] while he was at university in Kabul and has provided a bank statement [dated] 23 June 2009 confirming he held an account at that bank under the name [Name 1 Surname 2] before travelling to Australia;
·The applicant has explained that the proposer of the global humanitarian visa application, [Mr A], is his paternal uncle and the brother of the applicant’s father [Mr C]. I accept that to be true, noting the delegate reached the same conclusion in the cancellation decision. It logically follows that the applicant was included in the global humanitarian visa application with the surname ‘[Surname 1]’ in an attempt to establish him as a member of his uncle’s family unit, as claimed by the applicant;
·The applicant has produced a number of identity documents confirming his own name and that of his father including a translation of his taskera issued in 2004, which was also submitted to the Department with his protection visa application. There is nothing in the materials before me that would suggest that document has been subjected to verification processes that indicate it is not genuine. The applicant has also produced an Afghan driver’s licence issued in Kabul in 2010, confirmation from [University 1] that he commenced his studies there in 2005 and completed them in 2008 and a certificate from [Organisation 1] for training conducted in Kabul in July 2009. These documents are all in the name of [Name 1] and are consistent with the information in the protection visa application. The applicant’s claimed residence and employment history set out in that application indicate he was resident in [Country 1] between 2001 and 2004, returning to Afghanistan between 2004 and 2011 where he attended university and later worked for [Organisation 1] in Kabul. This is consistent with his evidence at the Tribunal hearing and the various identity documents he has produced to the Department;
·The Department’s materials indicate that the reasons for refusing the 2009 global humanitarian visa included that the case officer was not satisfied that the applicant was a member of the proposer’s immediate family, suspecting them of a more distant family relationship. The materials also indicate that the applicant appeared some years older than [Name 1 Surname 1]’s stated birthdate of [Date 1]. This is consistent with the applicant’s stated birthdate of [Date 2];
·One of the applicant’s referees, [Mr D], President of the [Organisation 2], has provided written evidence to the Tribunal stating among other things that he has known the applicant since the applicant attended school in the [Village 1] in Afghanistan. I consider this to be further credible evidence of his identity.
[1] Megerdoomian, Karine The Structure of Afghan Names November 2009 at
For these reasons I am satisfied that the applicant’s correct identity is [Name 1 Surname 2] born [Date 2] and not [Name 1 Surname 1] born [Date 1]. It follows I do not accept the applicant gave incorrect information in his protection visa application when he stated that his name was [Name 1 Surname 2] and he was born [Date 2] (at question 1 of Part B and questions 1 and 8 of Part C of the Form 866). I accept, however, that he gave incorrect information at question 4 of Part C of Form 866 when he failed to disclose that he had previously applied to the Department for a visa under the name of [Name 1 Surname 1].

I have accepted that [Mr A] is the applicant’s paternal uncle. The Form 866B states that members of the same family unit include partner (spouse or de facto partner), dependent children and other dependents. [Mr A] was clearly not the applicant’s dependent and a person’s uncle is not otherwise a member of their family unit. Therefore, the applicant was not required to declare [Mr A]’s presence in Australia at question 10 of Part B of the Form 866. It follows that I do not accept the applicant gave incorrect information at question 10 of Part B of the Form 866.
The applicant acknowledges he gave incorrect information in his protection visa application when he declared that he had not previously applied for refugee status or a protection visa or any other type of visa from the Department (at questions 2 and 3 of Part B of the Form 866). This is because he was previously included in the 2009 global humanitarian visa application under the name of [Name 1 Surname 1].
The applicant also acknowledges he gave incorrect information about his family compositions in that visa application. In particular he stated his mother was dead, when she is in fact still alive. He also stated his sister was married when in fact she was only engaged and the engagement later ended before the marriage took place. Otherwise it is the information about the applicant’s family composition contained in the earlier global humanitarian visa application that was incorrect, as that information relates to the family unit of the proposer [Mr A] rather than the applicant. While there are other minor inconsistencies in spelling and dates of birth for the applicant’s siblings and parents, I accept the explanations given by the applicant for these matters and I find the applicant’s correct family composition is as set out in his statutory declaration dated 3 February 2021. For these reasons, I find the applicant gave incorrect information at question 11 of Part B of Form 866 as to his family composition.
As I have found the applicant gave incorrect information in his protection visa application as to his visa history, his family composition and the fact he had also been known by the name of [Name 1 Surname 1], it follows that he gave incorrect information when he stated that the information in that visa application was complete, correct and up-to-date in every detail (at question 22 of Part B and question 67 of Part C of the Form 866).
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and I have considered each of those circumstances below.
The correct information: For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application as to his visa history, his family composition and the fact he had also been known by the name of [Name 1 Surname 1] in the protection visa application.
The correct information is that the applicant had previously been included in a global humanitarian visa application under the false identity of [Name 1 Surname 1]. That visa application was proposed by his paternal uncle in Australia, [Mr A]. The applicant’s correct family composition is as set out in his statutory declaration dated 3 February 2021 and not as set out in the global humanitarian visa application.
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 of the Act (relating to bogus documents).
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 applicant was granted the protection visa following a decision by a departmental delegate that the applicant was owed protection by Australia. The decision record dated 14 January 2013 shows that the delegate accepted the applicant was of Hazara ethnicity and Shia religion and that he had worked for [Organisation 1] in Kabul. The delegate cites country information indicating that NGOs were being targeted by the Taliban and other insurgent groups on account of their imputed political opinion and found that the applicant had a well-founded fear of persecution upon return to Afghanistan on account of his imputed political opinion. It appears that having made that finding, the delegate did not consider it necessary to go on to assess the applicant’s other claims to also fear persecution for reasons of his Hazara ethnicity and Shia religion.
It is not suggested in the s.107 notice that any of the information the applicant provided about his employment with [Organisation 1] in Kabul was incorrect and the evidence before the Tribunal on that issue is wholly consistent with his earlier statements in his protection visa application. I accept that to the extent the applicant’s residential history set out in the global humanitarian visa application differs from that set out in the protection visa application it is because the information in the global humanitarian visa application relates to his uncle’s family unit rather than the applicant. I am satisfied that the applicant would have been granted the protection visa by the delegate even had the applicant correctly disclosed his visa history, family composition and the presence of his uncle in Australia. For these reasons I do not consider the decision to grant the visa was based in any part on the incorrect information.
The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2012 protection visa application. He gave incorrect information about his family composition because he did not at that time know the correct birthdates of his parents and siblings and the correct spelling of their names. He has now confirmed their correct details on their identity documents since they arrived in Australia. Because he did not know his mother’s correct date of birth, he panicked and stated she was deceased. Because the question regarding his siblings required their marital status but did not have a box for engaged, he ticked married even though his sister was only engaged at the time and the engagement later ended. He gave the incorrect information about his visa history on the advice of the people smugglers.
The present circumstances of the visa holder: The applicant lives in Melbourne with his parents, two brothers and [sister]. His other two sisters remain in Afghanistan with their own families, with one recently travelling to [Country 2].
The applicant married before coming to Australia; his wife is also an Afghan Hazara. He has been seeking to bring his wife to Australia since 2013 but as at the time of the Tribunal’s decision her visa has not been granted and she remains in Kabul with their daughter born [date]. While the applicant used to travel to [Country 1] to meet his wife, he has been unable to do so since his visa was cancelled and as a result he has never met his daughter. He has never returned to Afghanistan since his arrival in Australia because he believes he is still unsafe there.
The applicant was working as an [occupation] up until the time his visa was cancelled and he lost his right to work in Australia. Medical evidence submitted to the Tribunal indicates the applicant has suffered from major depression since 2017 and is currently taking antidepressant medication and receiving counselling. His counsellor describes him as highly anxious and depressed, suffering constant flash backs of traumatic events and experiencing ongoing stress and anxiety for his wife’s safety in Kabul and his feelings of desperation and helplessness that he is not there to support her and keep her safe.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant admitted to the non-compliance in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that there are no other known instances of non-compliance.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2012 and approximately nine years have elapsed since then.
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.
Any contribution made by the holder to the community: The applicant remains active in the Hazara community in Australia. [A named person] of the [Organisation 3] describes him as an active and valuable volunteer, assisting to organise community events by seeking sponsors, performers, speakers and community engagement. He acts as an interface manager with community leaders, members and other organisations and has represented the organisation at meetings and other platforms. He provides assistance with crowd management and community service provision and also performs general administrative work for that organisation.
[Mr D], President of the [Organisation 2], similarly describes the applicant as an active volunteer in their community who is a leading figure in their youth programs, including [details deleted]. He also provides regular financial support to that organisation. [Mr D] also reports that he remembers the applicant well from when he attended school in the [Village 1] in Afghanistan, where he was a talented student known for his honesty and good behaviour.
Other factors to be considered
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
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.
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.
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.
In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin as an International Treaty Obligations Assessment (ITOA) would be completed by a departmental officer prior to any decision to remove him to his country of origin.
Country of nationality
It is not in dispute that the applicant is an Afghan national and I have assessed his claims against Afghanistan as his country of nationality and the receiving country.
Well-founded fear of persecution
The applicant claims to have a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity and his Shia religion as well as his imputed political opinion as an employee of the NGO [Organisation 1] in Kabul before his arrival in Australia. The applicant’s Hazara ethnicity and Shia religion are not in dispute and he participated in the Tribunal hearing with the assistance of a Hazaragi interpreter.
In assessing those claims I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by 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
The applicant originates from [District 1] in Ghazni province, however, his parents and unmarried siblings have migrated to Australia and his wife and daughter live in Kabul. Given that the applicant has close family in his home area, I find that if he were to be returned to Afghanistan he would return to Kabul where his wife and child live.
Hazara ethnicity and Shia religion
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 3.8.
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. 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’.[3]
[3] Ibid at 3.7 – 3.16.
In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by anti-government elements (AGEs), particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[4]
[4] Ibid at 3.42 – 3.46.
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, Islamic State in the Khorasan Province (ISKP) emphasised that it was religiously motivated. The United Nations Assistance Mission in Afghanistan (UNAMA) documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city.[5]
[5] Ibid at 3.29 – 3.35.
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.[6] 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.[7]
[6] Ibid at 3.29 – 3.35.
[7] >
In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[8]
[8] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at

In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, most of whom also belong to the Hazara ethnic group:
UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.[9]
NGO workers
[9] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2.
DFAT reports that Afghanistan has a vibrant civil society sector committed to advocating for the rights of citizens and in August 2015 (the most recent statistics available), Afghanistan had 2,060 registered NGOs. DFAT reports that the continuing armed conflict frequently hampers the ability of NGOs to conduct their operations and they are vulnerable to intimidation, threats, abductions and targeted killings by AGEs, particularly the Taliban. DFAT assesses that NGOs face a high risk of violence from AGEs, including intimidation, threats, abductions and targeted killings[10].
The security situation in Afghanistan
[10] DFAT Country Information Report Afghanistan 27 June 2019 at 3.47 – 3.51.
In 2018, Afghanistan was ranked as the second to last least peaceful country in the word, just above Syria. In 2019, Afghanistan had replaced Syria as the least peaceful country in the world. According to the 2019 Global Peace Index, the number and duration of conflicts fought in Afghanistan significantly worsened[11].
[11] Global Peace Index 2019 at >
The most recent DFAT report dated 27 June 2019 indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of AGEs remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence.[12]
[12] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.
Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices (IEDs) and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties.[13]
[13] Ibid at 2.52 – 2.59.
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.[14]
[14] Ibid at 2.70 – 2.74.
DFAT reports that while Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years:
The conflict in the city is characterized by asymmetric tactical warfare. Although the Afghan capital remains under government control, armed opposition groups have shown that they can infiltrate the city and have the capacity to carry out attacks. Kabul regularly witnesses violence. Large-scale suicide and complex attacks causing hundreds of civilian casualties were recorded in previous years.[15]
[15] ‘COI Focus - Afghanistan: Security Situation in Kabul City’, Documentation and Research Department (Cedoca), Office of the Commissioner General for Refugees and Stateless Persons (CGRS) (Belgium), 08 April 2020, p.10.
Violent attacks in the city of Kabul against civilians by AGEs continued throughout 2020, including:
·6 March 2020: an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed. The same ceremony was also attacked in 2019; ISKP claimed responsibility for the attacks in both 2019 and 2020;[16]
·12 May 2020: gunmen entered a maternity hospital in Dashti Barchi, a mostly Shia neighbourhood and home to a large Hazara population. Twenty four people were killed, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISKP;[17]
·6 June 2020: 24 people were killed in an attack on a Sikh and Hindu temple complex. IS claimed responsibility, however government sources said it was conducted by the Haqqani Network;[18]
·May and June 2020 also saw two attacks on mosques and a bomb attack on a group of journalists;[19]
·From 2 July to 12 July 2020, Kabul witnessed 14 IED attacks against government targets in which civilians were also killed and wounded;[20]
·In October 2020, at least 18 people were killed and 57 wounded in a suicide bomb attack outside an education centre in a heavily Shia neighbourhood of western Kabul, with ISIS claiming responsibility[21];
·On 2 November 2020, at least 22 people were killed and others wounded when gunmen stormed Kabul University. Isis later claimed responsibility for the attack[22];
·On 23 December 2020, at least two people were killed in a bomb attack in eastern Kabul. A day earlier, five people were killed by a roadside bomb, three of whom were doctors on their way to work[23].
[16] ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020; ‘Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul’, The Defense Post, 6 March 2020.
[17] ‘Babies among 24 killed as gunmen attack maternity ward in Kabul’, Aljazeera, 13 May 2020; Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce’, Stefanie Glinski, Foreign Policy, 14 May 2020.
[18] ‘Solidarity for Sikhs after Afghanistan massacre’, Ruchi Kumar, Aljazeera, 6 July 2020.
[19] ‘Afghanistan: Two killed in bomb attack inside Kabul mosque’, Aljazeera, 3 June 2020; ‘Deadly blast hits Kabul mosque during Friday prayers’, Aljazeera, 13 June 2020.
[20] ‘Recent Blasts Call Kabul Security Strategy Into Question’, Khalid Nekzad, Tolo News, 12 July 2020.
[21] ‘At least 18 dead in suicide bomb attack in Kabul’ | Afghanistan | The Guardian, 25 October, 2020.
[22] ‘Attack on Kabul University by ISIS gunmen leaves 22 dead’, The Guardian, 3 November 2020.
[23] ‘Two killed in Kabul shooting, bomb attack’ | Conflict News | Al Jazeera, 23 December 2020.
The US Department of State reported in 2020 that the Afghan authorities sought to address security issues in Western Kabul’s Dasht-e-Barchi area, a target of major attacks during the year, by announcing plans to increase the presence of Afghan National Defense and Security Forces (ANDSF). According to the Shia community, there was no increase in ANDSF forces although the government distributed arms directly to the guards of Shia mosques in targeted areas[24].
[24] US Department of State Annual Report on Religious Freedom 10 June 2020.
While peace talks between the Afghan government and the Taliban finally commenced in September 2020, this was only made possible after the Afghan authorities agreed to the release of thousands of Taliban militants accused of serious offences.[25]
[25] ‘Taliban Ready for Peace Talks with Kabul as Fighters Released’, The Australian newspaper, 10 August 2020 at >
Despite the commencement of peace talks, the conflict continues to kill civilians and violence has surged around the country with the Taliban refusing to implement a ceasefire before the peace negotiations. The peace talks are reported to have stalled in January 2021 after being marred by a spike of violence across the country. The new Biden administration is reportedly planning to review the US-Taliban agreement reached in February 2020, stating that the Taliban’s refusal to meet commitments to reduce violence in Afghanistan is raising questions as to whether US troops will be able to leave by May 2021 as required under that agreement[26].
[26] ‘Taliban on diplomatic blitz after Afghan peace talks stall’ - ABC News (go.com), 3 February 2021.
Vulnerable groups such as returnees and internally displaced persons also face challenges accessing essential services in Afghanistan. Returnees and failed asylum seekers in Afghanistan face a food insecurity crisis. COVID-19 has increased unemployment, seen food-supply disruptions due to border closures, and caused rising food prices. This has exacerbated Afghans’ food insecurity, previously impacted by the ongoing conflict and high poverty levels.[27] In January 2020, the Internal Displacement Monitoring Centre reported that just under 90% of returnees interviewed reported difficulties in subsisting[28].
[27] 'Quarterly report to the United States Congress: 1 April to 30 June 2020', Special Inspector General for Afghanistan Reconstruction, 30 July 2020, p. 132, 20200803143728.
[28] A different kind of pressure: The cumulative effects of displacement and return in Afghanistan', Chloe Sydney, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, p. 14, 20200115130225.
In view of the sources cited above, I am not persuaded that there will be any lasting or durable change to the security situation in Afghanistan in the foreseeable future. Rather I accept DFAT’s 2019 assessment that it is dangerous, complex and highly fluid, varying considerably by location.
Future risk of harm to the applicant
For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion who has worked for an NGO in Kabul and if removed from Australia to Afghanistan he will return to Kabul.
I note the delegate assessing the applicant’s claims for protection in 2012 found him to be a credible witness as to his experiences in Afghanistan. She accepted the applicant’s evidence that he worked for the NGO [Organisation 1] Kabul between 2009 and 2011, when he was abducted by the Taliban while he was travelling by road from Kabul back to [District 1] in 2011. Their car was stopped at a Taliban checkpoint and he was searched. The Taliban found his [Organisation 1] workers permit and took him to a mosque where he was assaulted and lost consciousness. He escaped from the mosque during evening prayers and fled [to] [Country 1] where he commenced his travel to Australia. The applicant’s experience is consistent with the country information about persistent attacks on NGO workers who are widely perceived to be supportive of the government and international peace keeping forces.
I note that the applicant has continued his community advocacy and volunteer work since his arrival in Australia with Hazara organisations including the [Organisation 3] and the [Organisation 2]. I consider if he is returned to Afghanistan he will continue with that advocacy work and may again obtain employment with an NGO.
I give weight to the country information cited above, which indicates that:
·The security situation in Afghanistan is dangerous, complex and highly fluid. Considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict, and no part of Afghanistan can be considered free from conflict-related violence;[29]
·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;[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]
·Hazaras have been significantly impacted by attacks from insurgent groups, targeting Shia religious commemorations and political demonstrations, as well as sites in Hazara neighbourhoods in large cities including Kabul and Herat. ISKP targets Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. There are reportedly instances of Hazara civilians being abducted or killed while travelling on the roads;[32]
·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;[33]
·In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, noting that UNAMA remained gravely concerned about the safety and security of this religious minority population and the extent to which these attacks are impeding their freedoms of religion and movement and quality of life;[34]
·DFAT assesses that NGOs and their workers face a high risk of violence from AGEs, including intimidation, threats, abductions and targeted killings by AGEs, particularly the Taliban;[35]
·While Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years and those attacks have continued through 2020, including since peace talks began in September 2020;
·The peace talks between the Afghan government and the Taliban are reported to have stalled in January 2021 and the Taliban’s refusal to meet commitments to reduce violence in Afghanistan is raising questions as to whether US troops will be able to leave by May as required under the 2020 US-Taliban agreement.
[29] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.
[30] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7 – 3.16.
[32] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at DFAT Country Information Report Afghanistan 27 June 2019 at 3.29 – 3.35.
[34] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2.
[35] DFAT Country Information Report Afghanistan 27 June 2019 at 3.47 – 3.51.
In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to Kabul, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion.
State protection
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.
DFAT reports that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest.[36] In such circumstances I find that the level of protection available to the applicant from the Afghan Government does not meet the level of protection which citizens are entitled to expect.[37]
[36] Ibid at 5.1 – 5.4.
[37] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
It follows that I accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion, his Hazara ethnicity and his imputed political opinion as a former NGO worker if he is returned to Kabul, now or in the reasonably foreseeable future.
Relocation
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.[38]
[38] SZATV v MIAC (2007) 233 CLR 18.
I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. The applicant has not lived in Afghanistan for many years and his wife and daughter have left their home area and relocated to Kabul. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence and the Internal Displacement Monitoring Centre’s research indicating that 90% of returnees struggle with food security and subsistence, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.
For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and imputed political opinion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant has been seeking to bring his wife to Australia since lodging a partner visa application in 2013, which is still pending. He met his wife regularly in [Country 1] before his visa was cancelled and has been unable to travel since then. His daughter was born in [year] and he has not yet been able to meet her. He is suffering from major depression and anxiety as a result of his long separation from his wife and child as well as past trauma. I accept that cancellation of the applicant’s visa will cause significant hardship not only to the applicant but also to his wife and daughter.
EXERCISE OF DISCRETION
Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa. In particular I give significant weight to the following matters:
·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2016, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion and his imputed political opinion as an NGO worker;
·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara race, his Shia religion and his imputed political opinion;
·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. I am satisfied that his removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;
·The material before me indicates the applicant has not breached any laws since arriving in Australia. He was working and financially independent up until the cancellation of his visa. He remains active in Hazara community organisations who describe him as hard working, dedicated and trustworthy. He is the interface manager for the [Organisation 3] and also coordinates the [activities] and provides financial support for the [Organisation 2];
·Medical evidence before the Tribunal indicates the applicant has suffered from a major depressive illness since 2017 as a result of the long separation from his wife and fear for the safety of his wife and child in Kabul. He has been unable to visit them or financially support them since his visa was cancelled.

For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
CONCLUSIONS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
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.

[2021] AATA 1445

19 February 2021

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