1914841 (Migration)

[2021] AATA 1832

1914841 (Migration) [2021] AATA 1832 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914841

MEMBER:Alison Murphy

DATE:17 May 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 17 May 2021 at 2:33pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – earlier humanitarian visa applications not declared – different names, dates of birth and family members – forensic facial image comparison – incorrect information conceded and protection visa cancelled – discretion to cancel current visa – ethnicity, religion and imputed political opinion – Hazara Shia – protection visa would have been granted in any case – education, work and community activities in Australia – applications for offshore partner visa and citizenship in progress – country information – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 140, 375A
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. On 7 June 2019 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that he considered the applicant had given incorrect information in his protection visa application. The delegate considered the applicant gave incorrect information about his name, his visa history and his relatives in Australia.

3. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   BACKGROUND

6. The applicant is a [Age 1]-year-old male who arrived in Australia by boat [in] May 2010 and identified himself as [the applicant], a Shia Muslim of Hazara ethnicity from Afghanistan. On 24 November 2010 a refugee status assessment officer found the applicant met the definition of a refugee as set out in Article 1A of the Convention relating to the Status of Refugees and on 9 February 2011 he was granted the protection visa. He was granted the Subclass 155 (Five Year Resident Return) visa on 7 December 2015.

7. The materials before the Tribunal indicate that the applicant is the sponsor for an offshore partner visa that is still pending. The applicant applied for Australian citizenship by conferral on 16 March 2015 and that application is also still pending.

8. On 1 April 2019, the Department completed a forensic Facial Image Comparison Report which compared a photograph of [Alias 1], born [Date 1] lodged in support of an application for a Global Special 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.

9. On 15 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 the Department was considering the cancellation of his protection visa on the ground that he had given incorrect information in his visa application. 

10. 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 about his name, his visa history and his relatives in Australia. In particular it set out the results of the Facial Image Comparison which concluded that he was the same person as [Alias 1] who was included in a Global Special Humanitarian (subclass 202) visa lodged in 2007, proposed by his brother [Mr A]. It also suggested he was included in a further Global Special Humanitarian (subclass 202) visa lodged in 2010, proposed by his brother [Mr B]. 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.

11. The applicant responded to the s.107 notice on 18 April 2019. In a statutory declaration dated 17 April 2019 that formed part of his response, he conceded he had given incorrect information about his name, date of birth and his family members in Australia. He confirmed his correct name is [Alias 1] and agreed that he had been included in two earlier global humanitarian visa applications made by his brothers [Mr A] and [Mr B] who were in Australia at the time he lodged his protection visa application. He stated that he had assumed the name of [the applicant] when he arrived in Australia because the people smugglers told him that if he gave his correct name he would endanger his family and would not be accepted as a refugee. He attached an earlier statutory declaration dated 12 August 2018 made in relation to the cancellation of his mother’s visa and a number of supporting documents.

12. 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 his own assessment of those matters.

13. 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

14. 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.375A of the Act.

15. The certificate is dated 10 December 2019 and states that disclosure of folios 6–7 of the Department’s cancellation file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. A copy of the certificate was provided to the applicant’s legal representatives at the hearing.

16. Where a certificate is issued under s.375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the review.

17. The s.375A certificate appears to be valid on its face and the contents of that document have not been disclosed to the applicant by the Tribunal. I note however that the applicant has responded to some of the matters contained in the certificated document in his statutory declarations referred to above. While the documentation before me is not complete, these statutory declarations appear to have been made in response to the cancellation of the applicant’s mother’s visa (the 2018 declaration) and his own application for citizenship (the 2019 declaration). The contents of those statutory declarations suggest that at least some of the information contained in the certificated document has previously been disclosed to the applicant by the Department during one or both of those processes.

    LEGISLATIVE FRAMEWORK

18. 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.

19. 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? 

20. 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.

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

22. 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.

23. 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 incomplete or incorrect:

    ·The applicant failed to declare at question 4 of the Form 866C that he had previously been known as [Alias 1], born [Date 1] and [Alias 2], born [Date 2];

    ·The applicant’s declarations at questions 2 and 3 of the Form 866B (that he had not previously applied for refugee status or a protection visa or any other type of visa from the Department) were incorrect because he has previously applied for refugee status in Australia when he was included in two applications for a Global Special Humanitarian visa in 2007 and 2010 under the identities of [Alias 1], born [Date 1] and [Alias 2], born [Date 2];

    • The applicant’s declaration at question 10 of Form 866B that no members of his family unit were in Australia is incorrect because his brothers and the proposers for his Global Special Humanitarian visa in 2007 and 2010, [Mr A], born [Date 3] and [Mr B], born [Date 4] were residing in Australia at the time of his protection visa application.

24. As noted above, the applicant’s response concedes he had incorrect information about his name, date of birth and family composition in the manner set out in the visa application. In particular he has confirmed that his correct name is [Alias 1] and he was included in two earlier global humanitarian visa applications made by his brothers [Mr A] and [Mr B] who were in Australia. The 2007 visa application proposed by his brother [Mr A] correctly identified the applicant as [Alias 1] born [Date 1], while the 2010 visa application proposed by his brother [Mr B] incorrectly identified him as [Alias 2] born [Date 2]. The applicant stated that he had assumed the name of [the applicant] born [Date 5] when he arrived in Australia because the people smugglers told him that if he gave his correct details he would endanger his family and would not be accepted as a refugee.

25. Further documents and submissions were provided to the Tribunal on 4 May 2021 and the applicant appeared before the Tribunal on 12 May 2021. At hearing he gave evidence consistent with his 2018 and 2019 statutory declarations and his representative’s submissions. In particular the applicant confirmed that he gave incorrect information in his protection visa application in respect of each of the matters alleged in the s.107 notice. The applicant and his brother [Mr A] also gave evidence about the discretionary factors considered below.

26. As it is conceded the applicant gave incorrect information in his protection visa application in the manner set out in the s.107 notice, 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?

27. 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).

28. 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.

29. 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 name, visa history and family members in Australia. The correct information is that the applicant’s correct name is [Alias 1] born [Date 1] and he has previously been included in two global humanitarian visa applications made by his brothers [Mr A] and [Mr B] who were in Australia at the time he lodged his protection visa application.

30. 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).

31. 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 Refugee Status Assessment  (RSA) officer that the applicant was owed protection by Australia. The decision record dated 24 November 2010 indicates that the RSA officer found the applicant had a well-founded fear of persecution on the grounds of his Hazara race. The RSA officer noted the applicant’s home area was Helmand and cited country information indicating the Taliban still had a strong presence in that area. The delegate assessed that state protection was not available to the applicant and internal relocation to a city such as Kabul was not reasonable for the applicant given his long absence from Afghanistan and the absence of any family members or support structures in that city.

32. As the incorrect information does not bear on the applicant’s profile as a Hazara Shia from Afghanistan, I am satisfied that the applicant would have been granted the protection visa by the delegate even had he correctly disclosed his name, visa history and the presence of his brothers in Australia. For these reasons I consider the decision to grant the visa was based only in very small part on the incorrect information.

33. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2011 protection visa application, after the applicant provided the same incorrect information in his application for refugee status assessment in 2010. The circumstances in which the incorrect information was provided are as follows.

34. The applicant is of Hazara ethnicity and Shia religion. The applicant states that he provided the incorrect information because he was afraid that providing the correct information would lead to him being returned to Afghanistan where he faced persecution as a Hazara and a Shia.

35. DFAT confirms that Afghanistan’s Hazara population has long faced social, economic, and political discrimination. The takeover of Kabul and most of Afghanistan by Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide, with many Hazaras fleeing the country for neighbouring Pakistan.[1]

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

36. The applicant’s eldest brother [Mr A] gave evidence to the Tribunal that he left Afghanistan in December 2000 and arrived in Australia by boat in April 2001, after several unsuccessful attempts where the boats sunk or were forced to turn back. The Department’s movement records confirm he arrived in Australia in April 2001.

37. The applicant’s parents and sister left Afghanistan in about 2006 following the abduction of their son and brother [Mr C] by the Taliban. They did not know [Mr B]’s whereabouts until they were reunited with him in Quetta Pakistan in about 2009, learning then that he had been released by the Taliban and changed his name to [Mr B].  

38. In Pakistan the family lived as refugees. His father died, leaving the applicant responsible for his mother and sister. In 2007, [Mr A] lodged an application for a global humanitarian visa, proposing to bring the applicant, his sister [Ms D] and their mother [Ms E] to Australia. That application was refused in 2008. [Mr B] arrived in Australia by boat in 2009, lodging a further global humanitarian visa application for the applicant, his mother and sister. In this visa application the applicant, his mother and sister were incorrectly identified as [Alias 2], [Alias 3] and [Alias 4]. That visa application was refused in January 2010.

39. The applicant eventually arrived in Australia in May 2010 on a people smuggling boat from [Country]. The boat was lost at sea for [Number] days and its occupants ran out of food and rationed water to survive. The applicant was [Age 2] years old at the time. The other people on the boat told him that he would be refused refugee status and expose his brothers in Australia to trouble if he gave his real name and was linked to the earlier visa applications and his brothers in Australia. When he arrived in Australia he gave an assumed name and did not disclose the earlier visa applications or that his brothers [Mr A] and [Mr B] were in Australia, believing that doing so would result in his return to Afghanistan and jeopardise his brothers’ rights to remain in Australia. He was granted the visa under the assumed name of [the applicant] without the Department becoming aware that he had been included in the earlier visa applications, or of his relationship to his brothers [Mr A] and [Mr B] who were already in Australia.

40. The provision of the incorrect information has had serious and long reaching consequences for the applicant and his family.

41. In 2016 [Mr A] was successful in sponsoring his mother [Ms E] and sister [Ms D] to Australia as the holders of contributory parent visas. These visas require successful applicants to make a significant contribution to the costs of their family members’ presence in the country and [Mr A] paid $84,440 by way of that contribution.

42. At some point after the visa was granted, the Department conducted facial image comparisons between the photographs provided for [Ms E] in her contributory visa application and the earlier global humanitarian visa applications, with the result that the Department became aware that [Ms E] had previously been included in [Mr B]’s 2010 global humanitarian visa application under the name of [Alias 4].

1. In August 2018, a delegate of the Minister wrote to [Ms E] advising her of its intention to consider cancelling her visa on the basis that she had given incorrect information in that visa application. The incorrect information identified is that while she had disclosed in that visa application that she had been included in [Mr A]’s global humanitarian visa application in 2007, she failed to disclose that she had also been included in [Mr B]’s 2010 global humanitarian visa application under the name of [Alias 4]. In the course of responding to that notice, the applicant in the current review provided a statutory declaration to the Department in which he provided the correct information about his name, the earlier visa applications and his relationship to his mother and brothers.

2. On 14 November 2018, a delegate of the Minister cancelled [Ms E]’s contributory parent visa and her daughter [Ms D]’s visa was consequentially cancelled pursuant to s.140 of the Act. As at the time of the Tribunal’s decision, [Ms E] was awaiting a review of that decision by this Tribunal. On 15 May 2019 the applicant was sent a Notice of Intention to Consider Cancellation of his resident return visa and his visa was subsequently cancelled on 7 June 2019. ICSE records indicate the applicant’s application for citizenship was refused on 11 June 2019.

3. The applicant married his wife [Ms F] in Quetta, Pakistan in November 2017 and lodged a partner visa application in 2018. That partner visa remains pending and cannot be granted if the applicant’s visa remains cancelled.

4. The present circumstances of the visa holder: The applicant lives in Melbourne with his brother [Mr A], their mother [Ms E] and [Mr A]’s wife and children. The applicant’s other brother [Mr B] lives a couple of blocks away with his own wife and children. The applicant and [Mr A] gave evidence that [Mr B], [Mr A] and [Mr A]’s wife and children are all Australian citizens.

5. Since arriving in Australia in 2010, the applicant has completed high school and obtained his Victorian Certificate [in] July 2013 and then his Victorian Certificate of [another subject] in December 2013. He achieved [details deleted].

6. After completing his studies the applicant started working in [an] industry with his brother [Mr A]. [Mr A] gave evidence he owns two businesses, being a [specified 1] business and a [specified 2] business and employs a number of full-time workers across those businesses. The applicant works six days per week in [Mr A]’s [specified 2] business and has provided ATO notices of assessment as evidence that he pays taxes each year.

7. The applicant’s wife [Ms F] remains living in Quetta, Pakistan and the applicant has not been able to travel to Pakistan to see her since the visa cancellation.

8. 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. As noted above, the applicant had previously provided a statutory declaration to the Department before the s.107 notice was issued in which he acknowledged providing incorrect information in his visa application about his identity.

9. 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.

10. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2011 and approximately ten years have elapsed since then.

11. 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.

12. Any contribution made by the holder to the community: The applicant is active in the Hazara community in Australia. [Mr G] of the [Organisation 1] states he has known the applicant for more than five years and he is an active member of the community, attending and supporting community events and social activities and acting as a role model to the youth group.

13. [Mr H], director of the [Organisation 2], describes the applicant as a dependable and honest person who is motivated to help and solve problems amongst the community.

14. [Mr I] of [Company 1], states that he has known the applicant in a professional and personal capacity and describes him as hardworking, honest and conscientious. [Mr J], director of [Company 2], states he has known the applicant since 2015 when he started a [specified 2] job with [Mr J]’s company. He describes him as loyal and hardworking, punctual and respectful.

15. The applicant gave evidence he is a regular [blood donor] and a registered organ donor.

    Other factors to be considered

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

17. 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.

18. 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.

19. 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.

20. 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

21. 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

22. The applicant claims to have a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity, his Shia religion, his profile as a returnee from Australia and his ability to subsist in Afghanistan.

23. .

24. In assessing those claims I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute and departmental records show that he has been resident in Australia since May 2010. I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019. I have also had regard to the large amount of country information submitted by the applicant’s legal representative in the submission dated 4 May 2021, being:

    (a)       the DFAT Country Information Report on Afghanistan dated 27 June 2019;

    (b)       the DFAT travel advisory in respect of Afghanistan, current as at 3 May 2021;

    (c)the Canadian Government travel advisory in respect of Afghanistan, current as at 30 April 2021;

    (d)an opinion prepared by Professor William Maley, AM of the Australian National University dated 4 March 2020;

    (e)an article titled “Taliban haven’t changed: Australia’s Hazaras voice concern over Afghan peace talks, call for ‘inclusion’”, Besmillah Mohabbat, SBS News, 9 October 2020;

    (f)an article titled “Unguarded Nation: Afghan security forces, despite years of training, were dogged by incompetence and corruption” by Craig Whitlock, published in The Washington Post on 9 December 2019;

    (g)an article titled “U.S. Troops in Afghanistan Reduced to 8,600, General Says” by Mujib Mashal, published in The New York Times on 19 June 2020;

    (h)an article titled “How Long Can the Afghan Security Forces Last on Their Own?”, Thomas Gibbons-Neff, Najim Rahim and C.J. Chivers, The New York Times, 28 April 2021;

    (i)an article titled “Afghan Blast on Eve of U.S. Pullout Deadline Kills at Least 27”, Adam Nossiter, The New York Times, 1 May 2021;

    (j)an article titled “Afghanistan’s COVID-19 crisis has been fuelled by armed conflict” by Christiane Wilke and Mohd Khalid Naseemi, published in The Conversation on 10 July 2020;

    (k)an article titled “Herd immunity can’t save Afghanistan from COVID-19” by Ezzatullah Mehrdad, published in The Diplomat on 29 July 2020;

    (l)an article titled “More U.S. Troops Will Leave Afghanistan Before the Election, Trump Says” by Thomas Gibbons-Neff, published in The New York Times on 4 August 2020.

    (m)an article titled “Data shows fewer Afghan women than men get Covid-19. That’s bad news” by Alisha Haridasani Gupta and Fatima Faizi, published in The New York Times on 3 October 2020; and

    n) an article titled “Living Scared: In Kabul’s Shi’ite Enclave, Hazara Fear A Taliban Return” published by RadioFreeEurope on 5 April 2020.

    The applicant’s personal background

25. The applicant originates from Lashkar Gah in Helmand province, although he moved with his family to Quetta, Pakistan in 2003 and has not returned to Afghanistan since that time. His father is deceased and his mother, sister and brothers are resident in Australia. The applicant’s wife lives in Quetta, Pakistan. The applicant has no close family members remaining in his home area of Helmand and DFAT indicates that returnees to Afghanistan from western countries almost exclusively return to Kabul.[2] In these circumstances I find that if the applicant were returned to Afghanistan he would likely return to Kabul.

    Hazara ethnicity and Shia religion

    [2] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 5.41

26. As early as 2016, the United Nations Assistance Mission in Afghanistan noted ‘an emerging patterns [sic] of deliberate sectarian attacks against the Shia Muslim minority’.[3] DFAT repeated these concerns in its September 2017 Thematic Report: Hazaras in Afghanistan which reported a rise in targeted attacks on Hazara Shias throughout Afghanistan since 2016.[4] Similarly in 2018 the UNHCR reported a significant increase in harassment, intimidation, kidnappings and killings of Hazara Shias at the hands of Taliban, Islamic State and other anti-government elements (AGEs).[5]

    [3] UNAMA Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016 (February 2017) 34; EASO, Country of Origin Information Report – Afghanistan – Individuals targeted by armed actors in the conflict December 2017 at 54

    [4] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 10.

    [5] United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan 30 August 2018 at 94.

27. 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, leading many Hazara to flee Afghanistan.[6]

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

28. 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’.[7]

    [7] Ibid at 3.7 – 3.16.

29. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[8]

    [8] Ibid at 3.42–3.46.

30. 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.[9]

    [9] Ibid at 3.29–3.35.

31. 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.[10] 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.[11]

    [10] Ibid at 3.29–3.35.

    [11] >

    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.[12]

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

32. 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.[13]

    The current security situation in Afghanistan

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

33. 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.[14]

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

34. 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 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.[15]

    [15] Ibid at 2.52 – 2.59.

1. 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.[16]

   [16] Ibid at 2.70 – 2.74.

2. 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.[17]

   [17] ‘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.

3. However, since the DFAT and UK Home Office reports were published in 2019, the security situation in Afghanistan has significantly worsened. In each of 2019 and 2020, the Global Peace Index rated Afghanistan as the least peaceful country in the world.[18]

   [18] Global Peace Index 2020 at Global indexes - Vision of Humanity.

4. Violent attacks in the city of Kabul against civilians by AGEs continued throughout 2020 and 2021. The South East Terrorism Portal lists more than 50 terrorism attacks in Kabul between January and April 2021 alone, without identifying the victims by ethnicity or religion.[19] While not an exhaustive list, media reports indicate Hazaras and/or Shias or other minority religious groups were specifically targeted in the following widely reported large-scale attacks over the past 14 months:

   ·8 May 2021: At least 68 people died and more than 165 (mostly schoolgirls) were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht-e-Barchi in Kabul. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement;[20]

   ·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;[21]

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

   ·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;[23]

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

   ·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;[25]

   ·12 May 2020: gunmen entered a maternity hospital in Dasht-e-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;[26]

   ·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.[27]

   [19] Timeline Terrorist Activities, Afghanistan (satp.org)

   [20] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511

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

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

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

   [24] ‘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.

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

   [26] ‘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.

   [27] ‘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.

5. 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.[28]

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

6. As well as confronting significant security issues, country information indicates that 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.[29] In January 2020, the Internal Displacement Monitoring Centre reported that just under 90% of returnees interviewed reported difficulties in subsisting.[30]

   The peace process

   [29] ‘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.

   [30] ‘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.

7. On 29 February 2020, an agreement between the US and the Taliban committed to the withdrawal of US and allied forces from Afghanistan by 1 May 2021 (the Doha deal).[31] Peace talks between the Afghan government and the Taliban finally commenced in September 2020, made possible only after the Afghan authorities agreed to the release of thousands of Taliban militants accused of serious offences.[32] Despite the commencement of peace talks, the conflict continued to kill civilians and violence surged around the country with the Taliban refusing to implement a ceasefire before the peace negotiations.

   [31] Terrorism Assessment, Afghanistan (satp.org)

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

   In the twelve months following the Doha deal on 29 February 2020, at least 26,953 persons were killed in terrorist incidents across Afghanistan and UNAMA reported increasing civilian fatalities in every quarter throughout 2020. Rahmatullah Andar, spokesman of the National Security Council, observed in February 2021 that the Doha agreement ‘has only ensured [the Taliban’s] ceasefire with the US, while relations between the Taliban and Afghans remained limited to killings, terror and horror’. Southeast Asian Terrorism Portal reports that ‘it is abundantly clear that the Doha deal has fallen flat and the ongoing Doha talks are of little significance’.[33]

   [33] Terrorism Assessment, Afghanistan (satp.org)

8. On 14 April 2021, US President Biden announced plans to withdraw all US military forces from Afghanistan by 11 September 2021 and similar announcements followed from NATO and the other coalition partners.[34] DFAT warned of the potential for increased risk of attacks around and following the expiry date of the Doha deal (1 May 2021), noting that the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021. Current DFAT advice reports that terrorists and criminal groups target foreigners and kidnapping is a serious and ongoing threat.[35]

   [34]

9. There appears little cause for optimism concerning any improvement to the security situation in Afghanistan in the foreseeable future. Southeast Asian Terrorism Portal assesses that Afghanistan is far from achieving any sustainable respite from terror, reporting the high but unrealistic hopes that were raised by some in the aftermath of the Doha deal have yielded to an enveloping gloom.[36]

   [36] Terrorism Assessment, Afghanistan (satp.org)

10. Rather there are serious concerns that the withdrawal of US and coalition forces during 2021 are likely to result in a serious deterioration of the security situation in Afghanistan. In November 2020, NATO Secretary-General Jens Stoltberg warned that:

    Afghanistan risks becoming once again a platform for international terrorists to plan and organise attacks on our homelands . . . And ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq.[37]

    [37] NATO chief Jens Stoltenberg says Afghanistan could become terrorist haven if troops withdraw - The Washington Post

11. Other commentators have warned about a resurgent Taliban:

    The reality of an imminent American withdrawal from Afghanistan differs from its long-anticipated likelihood. Already the anxiety engendered by this new certainty in the capital, Kabul, and other urban centers is making itself felt.

    Afghans’ fear is multifaceted, evoked by the Taliban’s grim record, bitter and vivid memories of civil war and the widely acknowledged weakness of the current government. These conditions in turn push Afghan thinking in one direction: The country’s government and armed forces won’t survive without American support. Many American policymakers, security officials and diplomats concur with this gloomy view. Just this week, the U.S. intelligence assessment, presented to Congress, suggested as much: “The Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.”[38]

    [38] US Troop Withdrawal From Afghanistan: What to Know - The New York Times (nytimes.com)

12. Fears of an increase in attacks around the date of the US withdrawal from Afghanistan may already have been realised. It was reported the Taliban conducted 62 bomb blasts and six suicide bombings in the 11 days leading up to 27 April 2021.[39] On the eve of the US withdrawal from Afghanistan, a truck laden with explosives blew up outside a guesthouse south of Kabul, killing at least 27 students preparing for their university entrance exams. The Afghan government has blamed the attack on the Taliban, which did not immediately claim responsibility.[40] A week later, at least 68 people died and more than 165 were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht-e-Barchi in Kabul. The dead and injured were mostly schoolgirls. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement.[41]

    [39]

    [40] Afghan Blast on Eve of U.S. Pullout Deadline Kills at Least 27 - The New York Times (nytimes.com)

    [41] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511

13. In view of the sources cited above, I am not persuaded that there will be any lasting or durable improvement to the security situation in Afghanistan in the foreseeable future. Rather I note DFAT’s 2019 assessment that it was at that time dangerous, complex and highly fluid and I consider it has only deteriorated since the DFAT report was published.

    Future risk of harm to the applicant

14. I note the delegate who assessed the applicant’s claims for protection in 2010 found him to be an Afghan Hazara from Helmand, Afghanistan. The delegate cited country information about the situation in Helmand province at the time, finding there was a real chance the applicant would be harmed by the Taliban on account of his Hazara race if he returned there. I note the applicant has not returned to Afghanistan since leaving in 2003 and has no known relatives in Helmand province anymore. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia to Afghanistan, he will likely return to Kabul.

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

    ·Even before the withdrawal of US and NATO troops from Afghanistan, the security situation in Afghanistan was assessed by DFAT as being dangerous, complex and highly fluid. DFAT notes 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;[42]

    ·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;[43]

    ·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;[44]

    ·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;[45]

    ·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;[46]

    ·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;[47]

    ·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 throughout 2020 and 2021, including since the peace talks between the Taliban and the Afghan government began in September 2020;

    ·The peace talks between the Afghan government and the Taliban have not resulted in a reduction of terrorist attacks or civilian casualties, rather DFAT warns the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021;

    ·Other commentators warn of a resurgent Taliban following the withdrawal of US and NATO forces during 2021 and that ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq. As DFAT sets out, both those groups have targeted Hazaras in Afghanistan for reasons of their Shia religion and because they are widely perceived as being supporters of the government and the coalition forces.

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

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

    [45] 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.

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

16. 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

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

18. 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.[48] 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.[49]

    Relocation

    [48] Ibid at 5.1 – 5.4.

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

19. 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.[50] 

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

20. I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. The applicant has not lived in Afghanistan for many years and has no known family members remaining in his home area of Helmand. 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.

1. 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.

100.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant’s wife remains living in Pakistan and the applicant has been unable to travel to visit her since his visa was cancelled. Should the applicant’s visa remain cancelled, his partner visa application will necessarily be refused. The applicant lives with his brother [Mr A] and [Mr A]’s family and is an important member of his extended family. I accept that cancellation of the applicant’s visa will cause significant hardship not only to the applicant but also to his wife in Pakistan and family members in Australia, many of whom are Australian citizens.

EXERCISE OF DISCRETION

101.   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 2011, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion;

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

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

·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather he has completed his schooling in difficult circumstances and worked and paid taxes while maintaining an active role in his local community. The applicant plays an important role in supporting his mother, brothers and their families, all of whom are financially independent of the Australian government. The applicant is described by his friends, family and colleagues as hard working, dedicated and trustworthy.

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

CONCLUSIONS

103.   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

104.   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.

‘‘Why Do We Deserve to Die?’ Kabul’s Hazaras Bury Their Daughters.’, Adam Nossiter, New York Times, The, 09 May 2021, 20210510065847

‘‘Why Do We Deserve to Die?’ Kabul’s Hazaras Bury Their Daughters.’, Adam Nossiter, New York Times, The, 09 May 2021, 20210510065847