1914275 (Migration)

[2021] AATA 1797

1914275 (Migration) [2021] AATA 1797 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914275

MEMBER:Sean Baker

DATE OF ORAL DECISION:  21 April 2021 at 10:06am

DATE OF WRITTEN STATEMENT:         23 April 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 23 April 2021 at 1:51pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in visa application – previous humanitarian visa application under another name not declared – incorrect information about family composition and members in Australia – forensic facial comparison – concession of incorrect information and provision of correct information – discretion to cancel visa – minor at time of applications – risk profile as Hazara Shia not in dispute – visa probably would have been granted in any case – significant remorse – mental health – best endeavours to integrate into community, work and study – bridging visa application refused – no immediate family support in home country – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 376

Migration Regulations 1994 (Cth), r 2.41

CASE

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection application and the factors in favour of not cancelling the visa did not weigh as heavily as those in favour of cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 April 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 Tribunal gave its decision at the end of that hearing. These are the reasons for that decision.

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

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

   Non-disclosure certificate

6. A purported non-disclosure certificate under s.376 is included on the Department file. I find the certificate to be defective because it does not identify with an adequate level of specificity the reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.

7. The information, or the relevant gist of the information, was put to the applicant in the s.107notice in any event.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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?

11. 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 the following respects:

12. In his protection application lodged on 1 September 2012, the applicant declared that his name was [applicant name], born 31 December [Year 1] and had never applied for a refugee or protection visa for Australia before. However, forensic facial comparison conducted by the Department indicated that [applicant name], born 31 December [Year 1] and [Alias 1], born 1 January [in the year after Year 1] are the same person, which indicated that the applicant had previously applied for a Global Special Humanitarian (subclass 202) visa on 12 April 2010. The applicant was included in this subclass 202 visa as a dependent applicant.

13. On the basis of this information the Department held that the applicant had provided incorrect answers about his name, date of birth, whether he had previously applied for refugee status or a protection visa, did not declare family members in Australia, and provided an incorrect or incomplete family composition.

14. In his response to the s.107 notice, the applicant conceded that he provided incorrect and incomplete information in his protection application and admitted that he was the same person as [Alias 1] in the refused offshore application, lodged 2010. He admitted that he did not declare other names he is known by. The correct information is that he was previously known as [applicant given name only] (without [applicant family name]), and [Alias 2, which uses the same family name as Alias 1, but with a different given name]. His photo in his Global Special Humanitarian visa application may have been incorrectly labelled [with the Alias 1 given name]. The visa holder claimed he had not previously applied for a visa to Australia, however he applied for a Global Special Humanitarian visa in 2010. The visa holder claimed his mother is dead, however she is alive, illegally residing in Quetta. The visa holder incorrectly claimed his father’s name was [Mr A, alias], His true name is [Mr A]. The visa holder provided an incomplete list of siblings and incorrect names. He has the following eight siblings, listed from eldest to youngest:

    ·     [Mr B], in Australia

    ·     [Mr C], in Australia (known to the department as [Mr C, alias])

    ·     [Mr D], in Pakistan

    ·     [Mr E], in Pakistan

    ·     [Ms F], in Pakistan

    ·     [Mr G] and [Mr H] (twins), in Pakistan

    ·     [Ms I], in Pakistan

15. At hearing the applicant conceded the above.

16. I find that the applicant did provide incorrect information as particularised above. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. 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).

18. 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 Regulations.

    the correct information

19. The correct information, as conceded by the applicant in this case, is that he provided incorrect and incomplete information about his name, his having been an applicant on a previous refused visa application, and his family composition. Given the practice of offices assigning birth dates of either 1 January OR 31 December to Afghan applicants who are often not aware of their birthday but only birth year, I am not willing to accept that the applicant has provided incorrect information when stating his birth date in his protection application. It is inconsistent with the date given in the previous offshore application (by 1 day) but there is no basis to conclude that the date in the protection application is incorrect.

20. The applicant has expressed remorse for providing the incorrect information, and some explanation, as discussed in more detail below. However, I am mindful that the integrity of the visa scheme, and in particular the protection programme, is predicated on applicants being completely truthful so they can be fairly assessed. In this case the applicant was not and I give this factor significant weight towards the visa being cancelled.

    the content of the genuine document (if any)

21. Not relevant in this case.

    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

22. The applicant has claimed that as a persecuted Hazara of the Shia faith from Afghanistan, he would have been granted protection if he had disclosed the correct information. The delegate reasoned that the findings of the protection delegate that the holder was owed protection obligations was based not just on these characteristics, but also as someone who had never previously applied for protection and who had a different family composition to the one claimed.

23. It is difficult to understand this reasoning or how it would change or modify the applicant’s risk profile as a Hazara Shia from Afghanistan. His profile as a Hazara Shia born in Afghanistan is not in dispute. I do not accept that the applicant’s past inclusion as a dependent applicant on an offshore protection visa (and I note in this respect that the applicant was a child at the time of applying for that application, and indeed, at the time of applying for protection in his own right, and would not have had capacity), nor his family composition had any bearing on the decision of the protection delegate to find the applicant was owed protection. I cannot see from what is before me how the incorrect information formed even part of the assessment of whether the applicant as a Hazara Shia from Afghanistan could return there or would face a real chance of serious harm.

24. This leads ineluctably to the conclusion that the applicant would in all likelihood have been granted the visa if he had disclosed the correct information.

25. I therefore give this factor significant weight towards the visa not being cancelled.

    the circumstances in which the non-compliance occurred

26. The applicant has said that at the time he provided the incorrect information he had been told by other Afghanis that he should not indicate he had been a previous applicant as this would preclude him from being successful in his application. A person can be expected to take responsibility for providing the correct information in their own application. However, in this case the applicant was a minor at the time that he filled in his protection application and the non-compliance occurred. I accept the submission that the situation would have been distressing and confusing for the applicant as a minor. I also note the applicant’s expressions of significant remorse for the provision of the incorrect information to both the Department and the Tribunal.

27. In this case the applicant was a minor at the time the non-compliance took place. The AAT Guidelines on Vulnerable Persons and policy recognise that children are vulnerable applicants, and relevantly those guidelines states that ‘Children process information differently to adults and may not be able to be as precise as an adult …’[1] The fact that the applicant was a minor at the time the application was made is, in my view, a significant factor in his favour, indicting as it does that he had little or diminished capacity to fully think through for himself the implications of providing the incorrect information. In turn I can more readily accept that he may have been persuaded by the poor advice of others in these circumstances.

    [1] Administrative Appeals Tribunal Migration & Refugee Division Guidelines on Vulnerable Persons, November 2018, p. 11.

28. I therefore give this factor significant weight towards the visa not being cancelled.

    the present circumstances of the visa holder

29. The applicant at the time of the hearing was unlawful. He said that he had sought a bridging visa but had been told it was refused.

30. Prior to the cancellation the applicant had made his best endeavours to integrate productively into the Australian community. He said after he had been granted his protection visa he had taken English courses and then sought work in Sydney and not finding any had travelled to Brisbane and searched there. He had no luck and so went to [City] where he found work in [a workplace] and completed study at the certificate II and III level to support his work. He worked there for approximately four years until the cancellation. He is currently being supported by his brothers, one of whom is an Australian citizen, and lives with friends.

31. The applicant suffers depression. He volunteers with Hazara community groups and plays [sport] which he said helps with the depression.

32. He has also contributed to the Australian Hazara community.

33. I find the applicant had sought to be a productive member of the community prior to the cancellation. He suffers depression and contributes to the community, as discussed in more detail below. The applicant has, I consider, tried to make the best of his situation at all times despite his inability to work and be productive due to the cancellation. I give this factor some weight towards the visa not being cancelled.

    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

34. The applicant conceded that he had provided incorrect information in his response to the s.107 notice. At all times he has facilitated the process and provided information to the Department and Tribunal. I give this factor some weight towards the visa not being cancelled.

    any other instances of non-compliance by the visa holder known to the Minister

35. The delegate noted that the applicant had provided incorrect information in an Orphan relative visa application to sponsor his two claimed brothers prior to the cancellation and included information that his mother was deceased in that application.

36. I give this factor some weight towards the visa being cancelled.

    the time that has elapsed since the non-compliance

37. A considerable period had elapsed between the non-compliance and the cancellation. As above, the applicant was also a minor at the time of that non-compliance. As above, the applicant after being granted the protection visa sought to become a productive member of the Australian community and has family and friends in Australia. I give this factor some weight towards the visa not being cancelled.

    any breaches of the law since the non-compliance and the seriousness of those breaches

38. There is no information before me that the applicant has breached the law since the non-compliance. I give this factor no weight.

    any contribution made by the holder to the community.

39. The applicant has provided evidence in the form of letter that he volunteers with two Shia Hazara community groups. He gave evidence at the hearing that he volunteered usually every week.

40. The fact that the applicant continues to volunteer despite his cancellation and his suffering depression is a testament to his character and I give this factor some weight towards the visa not being cancelled.

    Further relevant considerations

41. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural 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.

    whether there would be consequential cancellations under s.140.

42. Not relevant in this case.

    if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

43. This factor is not relevant in this case.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

44. The applicant claims that if returned to Afghanistan he would face persecution. The delegate considered the claims of the applicant but reasoned that if the visa were cancelled and ITOA would be completed by a Department officer before the applicant was removed.

45. Even if this continues to be the policy of the Department, the operation of the Act requires a non-citizen such as the applicant to be removed from the migration zone. There is no provision in the Act to allow an ITOA to override this process.

46. Therefore the cancellation in this case where the information before me is that the applicant cannot apply for a protection visa or any other substantive visa, requires genuine consideration of whether the cancellation would lead to the applicant’s remove in breach of Australia’s non-refoulement obligations.

47. The most recent DFAT country information Report on Afghanistan describes the risks of Hazara being harmed by the Taliban or other insurgents as a recognisable group who are of the Shia sect, are a minority group within the country and who are imputed with support of the Afghan government.[2] More recent reports indicate that Hazara are targeted by insurgent groups particularly ISKP in Kabul and Herat for reasons of their religion and imputed connection with the government.[3] Reports identify targeted sectarian attacks against Shia,[4] and the dangers and difficulties of relocation.[5] I note that the US has announced a full troop withdrawal from Afghanistan by 11 September this year,[6] with NATO to leave within the same timeframe.[7] This will significantly impact on the ability of the afghan security forces to protect minorities such as the Hazara.

    [2] DFAT Country Information Report Afghanistan, 27 June 2019, 3.7 – 3.16.

    [3] EASO Country Guidance: Afghanistan, December 2020.

    [4] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, 20200224115345. pp. 6, 8, and 47-49

    [5] UN High Commissioner for Refugees (UNHCR), Afghanistan: Compilation of Country of Origin Information (COI) Relevant for Assessing the Availability of an Internal Flight, Relocation or Protection Alternative (IFA/IRA/IPA) to Kabul, December 2019, available at: ‘Afghanistan: Fact-Finding Mission to Kabul in April 2019-  Situation of Returnees in Kabul’, Finnish Immigration Service, 15 October 2019, 20191025110818

    [6] Biden Announces Full U.S. Troop Withdrawal From Afghanistan by Sept. 11 > U.S. DEPARTMENT OF DEFENSE > Defense Department News

    [7] NATO - News: NATO Allies decide to start withdrawal of forces from Afghanistan, 14-Apr.-2021

1. There is considerable information that return of the applicant as an accepted Hazara Shia to Afghanistan would lead to a chance that may not be remote that he would suffer serious harm for reasons of his religion and ethnicity.

2. I note further that there is no suggestion, or any basis on the country information, to indicate that the applicant could be returned to Pakistan. He has consistently claimed, and I accept, that he lived there unlawfully and that his family continue to live there unlawfully. I find the applicant would not be able to enter and reside in Pakistan.

3. I give this factor significant weight towards the visa not being cancelled.

   whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

4. The submissions state that:

   … as an Irregular Maritime Arrival (‘IMA’) whose visa had been cancelled, the applicant would be barred from making a further visa application whilst in the migration zone. He would be liable to removal and if that were not possible, he would be liable to mandatory detention until he was able to be removed.  We further submit that his detention may be indefinite as the relevant country information supports a conclusion in relation to Shia Hazaras in Afghanistan that a real, foreseeable possibility that the applicant would not be able to be removed arises and he may subsequently suffer a long period of detention.

5. I cannot see any flaws in this analysis. The delegate engaged with this factor and noted that the applicant would be prevented from being able to apply for another visa and may also be subject to a three-year exclusion period under PIC 4013. The delegate noted that there was a possibility as an IMA that the applicant would be indefinitely detained.

6. Whilst this is the manner in which the laws are intended to operate, in this case, given my findings above, such consequences militate towards the visa not being cancelled. I give this factor some weight towards the visa not being cancelled.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

7. The applicant has two brothers in Australia, one of whom is an Australian citizen. He said that he is close to these brothers. The rest of his family do not live in Afghanistan but live unlawfully in Pakistan so the applicant would not have any immediate family support if returned to Afghanistan.

8. I give this factor some weight towards the visa not being cancelled.

9. Having carefully weighed the information before me I find that the factors in favour of the visa not being cancelled significantly outweigh those in favour of cancellation.

   Conclusion

10. 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

11. 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.

    Sean Baker
    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.