1915794 (Refugee)

[2021] AATA 5116

1915794 (Refugee) [2021] AATA 5116 (15 October 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915794

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE OF DECISION:  15 October 2021

DATE CORRIGENDUM

SIGNED:10 November 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·That on the front page of the decision record, the words ‘affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa’ be deleted, and the words ‘sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa’ be inserted.

Alison Murphy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1915794

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:15 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 15 October 2021 at 1:50pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – religion – Shia – race – Hazara – identity details – family in Australia – previous visa application – incorrect information had little or no bearing on the visa grant – mental health issues – non-refoulement obligations – prolonged separation from family – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 48, 97-105, 107-109, 140, 189, 195-198, 376, 438
Migration Regulations 1994, Schedule 2; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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

2. On 14 June 2019 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that she considered the applicant had given incorrect information in his protection visa application. In essence the delegate considered the applicant gave incorrect information about his name, his visa history and his relatives in Australia.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 16 June 2021 to give evidence and present arguments. The Tribunal heard evidence from the applicant’s sister, [Sister A]. The hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Following the hearing the review application was adjourned for further medical evidence and submissions.

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

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

   BACKGROUND

7. The applicant is [an age]-year-old male who arrived in Australia by boat [in] February 2012 and identified himself as [the applicant’s name], a Shia Muslim of Hazara ethnicity from Afghanistan. On 5 July 2012 a delegate 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 he was subsequently granted the protection visa on 14 August 2012.

8. The Department subsequently formed the view that the applicant had been included in an earlier Global Special Humanitarian (Subclass 202) visa application under the name of [Alias A]. It undertook a forensic Facial Image Comparison Report which compared a photograph of [Alias A] 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 14 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 A] who was included in a Global Special Humanitarian (Subclass 202) visa lodged in 2010, proposed by a person who claimed to be the applicant’s [Sister A]. The s.107 notice set out that [Sister A] had arrived in Australia as the holder of a subclass 202 visa in January 2007. 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 30 May 2019. In that response he acknowledged that his photograph had been included in a subclass 202 visa application lodged by his [Sister A]. He explained that she had married and moved to Pakistan when he was very young and they did not have any contact until the applicant arrived in Australia. He stated that she had provided his photograph under the name of their younger brother, [Alias A variant], in the 2010 Global Special Humanitarian (Subclass 202) visa. The applicant stated he was not aware of the earlier application until he received the s.107 notice. The applicant stated his full name is [the applicant’s name] and he has never been known by any other names and there was no reason for him to apply for a visa under a different name. He attached copies of his taskera, his brother’s taskera and his brother’s photograph to his response.

12. On 14 June 2019 a delegate decided to cancel the applicant’s visa, finding the applicant had provided incorrect information in the manner set out in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.

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 electronic versions of the departmental files relating to the grant of the protection visa and subsequent cancellation of the protection visa.

15. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing two certificates. Copies of both certificates were provided to the applicant’s representative for comment.

16. The first certificate is dated 16 July 2019 and issued under s.376 of the Act. It states that disclosure of folios 119-126 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. As that certificate is unsigned and issued under Part 5 of the Act instead of Part 7, it is invalid.

17. A further signed certificate was issued on 19 May 2021 under s.438 of the Act and provided to the Tribunal on 21 May 2021. That certificate states that disclosure of folios 119-126 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. No submissions were received suggesting the certificate is invalid and the Tribunal finds the certificate to be valid.

18. I note further that the substance of the certificated material has already been disclosed to the applicant in the s.107 notice and the delegate’s decision, including the existence of the facial image comparison report and the personal and family details of [Alias A variant]. Other information in the certificated material was provided by the applicant during the course of his protection visa application.

19. In these circumstances I have decided not to exercise my discretion to further disclose the material covered by the certificate.

    LEGISLATIVE FRAMEWORK

20. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

21. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Did the notice comply with the requirements in s.107? 

22. The notice dated 14 May 2019 sets out in detail the information given by the applicant in his protection 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 the notice is deficient or invalid.

23. 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?

24. 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.

25. 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:

    • At Question 1 of Part B of Form 866, in response to the question "Give details of ALL persons included in this application," the visa holder answered “[the applicant’s name], [DOB 1].” The notice alleged this was incorrect, because the biometric comparison conducted by the Department indicates that the applicant is also known by the name [Alias A];
    • At Question 2 of Part B of Form 866, in response to the question “Has any person named in Question 1 previously applied for refugee status or a protection visa from the department?" the visa holder answered "No." The notice alleged this was incorrect, because the applicant had made an earlier visa application under the name [Alias A];
    • At Question 3 of Part B of Form 866, in response to the question “Has any person named in Question 1 previously made any other type of application to the department (including a Parent visa)?" the visa holder answered "No." The notice alleged this was incorrect, because the applicant had made an earlier visa application under the name [Alias A];
    • At Question 10 of Part B of Form 866, in response to the question “Are there any members of the same family unit who are in Australia but are not included in this visa application?" the visa holder answered "No." The notice alleged this was incorrect, because the applicant had been included in an earlier visa application, which indicated his [Sister A] was in Australia;
    • At Question 22 of Part B of Form 866 the applicant signed a declaration stating that all of the information he had supplied was complete, correct and up to date in every detail. The delegate considered this to be incorrect due to the other incorrect answers provided;
    • At Question 1 of Part C of Form 866, the visa holder answered “[the applicant’s name]” to a question asking his full name. The notice alleged this was incorrect because the biometric comparison conducted by the Department indicates that the applicant had previously applied for a visa under the name [Alias A];
    • At Question 4 of Part C of Form 866, which asked what other names he had been known by, the applicant answered “N/A”. The notice alleged this was incorrect because the applicant was also known as [Alias A];
    • At Question 8 of Part C of Form 866, the visa holder answered “[DOB 1] and [age] years” to a question asking his date of birth. The notice alleged this was incorrect, because the applicant had previously applied for a visa under the name [Alias A] with the date of birth [DOB 2];
    • At Question 67 of Part C of Form 866 the applicant signed a declaration stating that the information he had supplied was complete, correct and up to date in every detail. The notice alleged this was incorrect due to the other incorrect answers provided.

26. As noted above, the applicant’s response to the s.107 notice concedes his photograph was included in the earlier visa application under the name of his younger brother, [Alias A]. It is stated that the visa application was made by the applicant’s [Sister A] without the applicant’s knowledge.

27. Further documents and submissions were provided to the Tribunal on 26 May 2021. In a statutory declaration dated 25 May 2021 and lodged with the Tribunal, the applicant conceded that he knew his sister [Sister A] was in Australia at the time he lodged his protection visa application although he did not know where she lived and apologised for doing so. He stated that he was given incorrect information by people smugglers and other refugees who told him not to tell the Australian government he had relatives in Australia as he would be less likely to be granted protection. He was afraid of being deported to Afghanistan and didn’t have any knowledge of the refugee status determination process so he followed their advice.

28. The applicant conceded he had not declared his [Sister A] was residing in Australia and that he did not give accurate information to the department about his family composition. In that statutory declaration he sets out his correct family composition as including his parents, [specified siblings] in Pakistan, one sister in Afghanistan, one sister in [Country 1] and his [Sister A] in Australia. He stated he had only found about the earlier subclass 202 visa when he received the s.107 notice and his [Sister A] had since explained to him that she lodged the application with the intention of bringing him to Australia under their brother [Alias A’s] identity, as she had been told there was more chance of obtaining the visa for an orphaned minor.

29. In a statutory declaration made by [Sister A] on 25 May 2021, [Sister A] confirms the applicant is her younger brother. After coming to Australia to join her husband in 2007, she was worried about the applicant’s safety and wanted to bring him to Australia. As their brother [Alias A] was very young, she did not think he faced as high a level of threat as the applicant and she was told by other members of the community that she should bring the applicant to Australia under [Alias A’s] identity because minors have more chance of being granted a visa. She was also told to say their parents were dead because there would be more chance of him being granted a visa if he was an orphan. For these reasons she obtained a taskera with the applicant’s photo and [Alias A’s] identity and a death certificate for their parents even though they were alive. She states the applicant was not aware of the application at the time and she planned only to tell him if the application was successful. She is extremely remorseful for having provided incorrect information to the department and apologises for doing so.

30. The applicant appeared before the Tribunal on 16 June 2021. The Tribunal also heard evidence from his [Sister A]. Attempts to contact the applicant’s brother [Alias A] by telephone from Quetta, Pakistan were not successful. At hearing the applicant and [Sister A] were both significantly distressed and the applicant in particular appeared to be experiencing significant mental health issues.

31. The evidence of the applicant and [Sister A] at hearing was consistent with their statutory declarations. They agreed that the applicant’s photograph had been included in the earlier visa application using the personal details of his younger brother [Alias A]. [Sister A] gave evidence that she did so because she believed the applicant had more chance of being granted the visa as a minor. Both [Sister A] and the applicant gave evidence that the applicant was unaware of the earlier visa application until receiving the s.107 notice from the Department. The applicant conceded he gave incorrect information about his family members in Australia when he did not disclose that his [Sister A] was in Australia at the time he lodged his visa application.

32. I accept the applicant’s correct identity is [the applicant’s name] born [on DOB 1] as stated in his protection visa application. In making that assessment I have had regard to the consistent evidence of the applicant and [Sister A] as well as the identity documents for the applicant and his brother [Alias A], noting that the applicant’s taskera was issued in 2007 and was first provided to the Department during the processing of his protection visa application in 2012. The Tribunal has also been provided with the taskera and Afghan identity card of his brother [Alias A].

33. I note that both taskeras contain only estimates of the ages of the holders, with the applicant described in his taskera as being [age] years old in 2007/08 and [Alias A] being described in his taskera as being [age] years old in 2012/2013. [Alias A’s] Afghan citizen card records his date of birth as [DOB3]. The Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon, and the reporting of dates of birth is unreliable and reported dates are likely to be approximate.[1] I consider the information provided by the applicant about his date of birth is likely the most accurate information available even though it is merely an estimate.

    [1] DFAT Country Information Report: Afghanistan at 5.49

34. I accept the applicant is not the same person as [Alias A], rather that person is his brother.  For these reasons I am not satisfied the applicant gave incorrect information about his name or date at birth at questions 1 of Part B of Form 866 or at questions 1, 4 and 8 of Part C of Form 866.

35. Given it is agreed that the applicant was included in the earlier global humanitarian visa application, I find that the applicant gave incorrect information at questions 2 and 3 of Part B of Form 866 when he stated that he had not previously made any other type of visa application to the Department. Given that [Sister A] was in Australia at the time the applicant made his application for the protection visa, I accept he gave incorrect information at question 10 of Part B of Form 866 when he failed to declare her as a member of his family unit in Australia. Given I have accepted the applicant provided incorrect information at questions 2, 3 and 10 of Part B of the Form 866, I accept he provided incorrect information at question 22 when he stated that the information he had provided was correct and up to date in every way.

1. As I have found that the applicant gave incorrect information at questions 2, 3, 10 and 22 of Part B of the Form 866, I find that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

2. 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).

3. 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.

4. The correct information: For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application when he stated that he had not previously applied for refugee status or any other visa from the department, that he had no relatives in Australia and that all of the information he had provided was correct.

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

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

6. The applicant was granted the protection visa following a decision by a delegate of the Minister that the applicant was owed protection by Australia. The copy of the protection visa decision record which is before the Tribunal is undated, but other records indicate that decision was made on or about 5 July 2012, prior to the applicant being granted the visa on 14 August 2012.

7. In that decision record, the delegate states that she ‘found the applicant to be a witness of truth . . . and I accept his claims as stated.’[2] The delegate accepted he was of Hazara ethnicity and Shia religion and that he was employed as [an occupation 3] for a private [specified] company. The delegate cited country information indicating that such [companies] were often perceived as international military and intelligence actors and that [their] staff were vulnerable to targeted attacks by non-state actors including the Taliban. The delegate accepted the applicant had been targeted by the Taliban on account of his perceived association with the Afghan government and/or the international community and found he had a well-founded fear of persecution on the basis of:

   . . . a combination of factors related to the applicant’s political (imputed) opinion and his membership of a racial and religious minority in Afghanistan.[3]

   [2] Delegate’s decision at page 94 of the Department’s file relating to the grant of the visa [File number]

   [3] Delegate’s decision at page 94 of the Department’s file relating to the grant of the visa [File number]

8. The delegate cited country information in support of those findings and assessed that state protection was not available to the applicant and internal relocation was neither safe or reasonable for the applicant.

9. As the incorrect information about the applicant’s previous visa history and the presence of his sister in Australia has no bearing on the applicant’s profile as a Hazara Shia male imputed to be supportive of foreign forces and the Afghan government, I am satisfied that the applicant would have been granted the protection visa by the delegate even had the correct information been provided. For these reasons I consider the incorrect information had little or no bearing on the decision to grant the visa. I consider this factor weighs against cancelling the visa.

10. The circumstances in which the non-compliance occurred: As noted above, the applicant was unaware that his sister in Australia had made a visa application including him using the personal details of his brother until he received the s.107 notice. However the applicant acknowledges he was aware that he provided incorrect information about his sister in Australia and did so because he mistakenly believed he may be returned to Afghanistan if his relationship with his sister was known. I consider the fact the applicant deliberately provided incorrect information about his relatives in Australia factor weighs in favour of cancelling the visa.

11. The present circumstances of the visa holder and his contribution to the community: The applicant has lived in Australia for nine and a half years, after arriving by boat in February 2012. His only family in Australia is his [Sister A]. His wife and child are in Quetta, Pakistan with the applicant’s parents, [and specified siblings]. Another sister remained in Jaghori district, Afghanistan with her husband’s family when the rest of the family left Afghanistan for Quetta and a further sister lives in [Country 1]. The applicant is currently living in a shared house and doing some work as [an occupation 2]. The delegate’s decision records that the applicant applied for citizenship in 2017 so that he could bring his wife and child to Australia but that his application was yet to be finalised. He continues to financially support his wife and child in Pakistan.

12. During the Tribunal hearing it became apparent that the applicant was experiencing serious mental health issues for which he did not appear to be receiving treatment. He told the Tribunal that he had seen a psychologist and doctor in the past but was not currently receiving treatment and he was unable to remember what medication he had been prescribed. He described a number of people whom he believed were trying to control him and harm him, telling the Tribunal he could hear their voices talking to him even in the hearing room. He said he had stopped attending his medical appointments because the doctor was treating him as if he had a problem with his mind, when in fact his problems with these people were very real. At the hearing [Sister A] expressed grave concerns for her brother’s mental health.

13. At the conclusion of the hearing the Tribunal expressed its own concerns about the applicant’s mental health and apparent need for immediate medical treatment and requested further medical evidence about these issues. On 14 July 2021 the applicant’s representative advised that the applicant was being supported by the [a named] Assessment Team operating out of [Health Service 1] and efforts were being made to obtain medical records. On 29 September 2021 a letter from the applicant’s GP was submitted to the Tribunal, that letter outlining the applicant’s history of mental illness. The GP’s letter suggested that the applicant lacked insight into his illness, that he was not taking his medication regularly and that he had been referred to a psychiatrist. An accompanying submission asked the Tribunal to delay its decision for a short period until medical records from the applicant’s current treating team at [Health Service 1] could be produced.

14. On 14 October 2021 those medical records were submitted to the Tribunal, indicating the applicant has been in the care of [Health Service 1] since June 2021. He appears to have been admitted to hospital shortly after the Tribunal hearing and then discharged into the care of the community mental health team and later his GP. A mental health risk assessment dated [in] June 2021 assessed him as being at low risk of self-harm or harm to others and the medical records indicate he was voluntarily complying with medication and treatment. Those records also indicate that his [Sister A] is supportive of his medical treatment and actively engaged with his care. It noted that case management had been complicated by the applicant’s movement around Melbourne in accordance with the demands of his [occupation 2] work, but also that he had consistently indicated to his treating team that he found the medication helpful and he intends to continue taking it.

15. I consider the applicant’s difficult personal circumstances and serious health issues weigh against cancelling the visa. This is particularly the case given the cancellation of the visa may result in the applicant being placed in immigration detention for a prolonged period, discussed further below.

16. 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 acknowledged that he was included in the earlier visa application in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided. I give this some small weight against the cancellation of the visa.

17. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that the applicant failed to declare his [Sister A] in his citizenship application. I give this some small weight in favour of the cancellation of the visa.

18. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2012 and approximately nine and a half years have elapsed since then. I consider the long period in which he has lived in the Australian community weighs against the cancellation of his visa.

19. 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. I give this some weight against the cancellation of the visa.

20. Any contribution made by the holder to the community: It is submitted, and I accept, that the applicant’s serious mental health issues are limiting his ability to participate in the community. I assess this factor as neutral in regards to the visa cancellation.

    Other factors to be considered

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

22. In this case, while the applicant has family members in Australia being his [Sister A] and her own family, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act.

23. In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s visa is cancelled the applicant will have very limited options to make visa applications onshore. Section 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application. While s 48 of the Act theoretically allows the applicant to make an application for a partner visa, this requires sponsorship by an Australia citizen, permanent resident or eligible New Zealand citizen. The applicant’s wife meets none of these criteria and as a consequence it is not open to the applicant to make an application for a partner visa.

24. Accordingly, in the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, the prospects of such an application are unknown and such a decision is not reviewable or compellable.

25. Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[4] However it remains the case that section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and any consideration of how the Minister may exercise his discretion is merely speculative.

    [4] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5

26. For the reasons set out later in this decision record, I have concluded that the cancellation of the applicant’s protection visa will not directly lead to the applicant’s removal from Australia. However, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Afghanistan voluntarily. I accept that any period of detention is likely to exacerbate the applicant’s already serious mental health issues.

27. I further accept the submission that the applicant’s voluntary return to Afghanistan is remote, given the collapse of the elected Afghan government in August 2021 and the takeover by the Taliban. I note also that the applicant has only one married sister living in Afghanistan, his other overseas family members including his wife and child having relocated to Pakistan some years ago. It would appear that his family members in Pakistan are highly unlikely to return to Afghanistan given the current circumstances in that country.

28. I consider the real prospect of the applicant facing a prolonged period in immigration detention weighs significantly against the cancellation of the visa, given his serious mental health issues, his need to work to provide financially for his family in Pakistan and his close relationship with his sister and her family.

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

29. 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.

30. 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.

31. 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.

32. 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.

33. The applicant maintains he has a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity and his Shia religion and his imputed political opinion. I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute and his claims to have been targeted by the Taliban in Afghanistan in the context of his employment with a private [specified] company were accepted by the delegate who assessed his protection claims in 2012. The delegate recorded in her decision that she found the applicant to be a witness of truth, who had provided an internally consistent and credible account of his circumstances and experiences in Afghanistan. She found he had a well-founded fear of persecution on the basis of a combination of factors related to the applicant’s political (imputed) opinion and his membership of a racial and religious minority in Afghanistan.

34. Recent amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c)  none of the following apply:

    (i)  the decision in which the protection finding was made has been quashed or set aside;

    (ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

35. In this case the applicant made a valid application for a protection visa on 26 May 2012 and that application was finally determined when a delegate made a ‘protection finding’ in the protection visa decision record on 5 July 2012. In these circumstances s 197C(3) does not require or authorise the applicant’s removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.

36. In this case the decision to grant the applicant a protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

37. Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s protection visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

1. However, cancellation may lead to prolonged detention for the reasons already explained and I consider this weighs substantially against cancellation.

2. 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, child, parents and siblings remain living in Pakistan and the applicant has been unable to travel to visit them since his visa was cancelled. Should the applicant’s visa remain cancelled, his citizenship application will necessarily be refused and his prolonged separation from his family will continue.

3. The applicant’s representative has submitted that it is also a relevant matter that in the period between the Tribunal hearing and the Tribunal decision, the elected government of Afghanistan suddenly collapsed and reports of atrocities against Hazaras in the applicant’s home district of Jaghori and Malistan have emerged. It is noted that the applicant’s sister remains in Jaghori district.[5]

   [5] Submissions of the applicant’s representative lodged 30 September 2021 at pages 2 - 6

4. It has been widely reported that in August 2021, in the wake of the withdrawal of international troops from Afghanistan, there was a rapid deterioration of the security and human rights situation across Afghanistan. The Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[6] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President Ashraf Ghani fled Afghanistan.[7] By 17 August 2021, the Taliban had declared they had no interest in a shared interim government and installed themselves as the new government of Afghanistan.[8]

   [6] UNHCR UNHCR Position on Returns to Afghanista August 2021 at Refworld | UNHCR Position on Returns to Afghanistan

   [7] BBC News Ashraf Ghani: Afghanistan’s exiled president lands in UAE 18 August 2021

   [8] Afghan Analysts Netword Afghanistan has a new government: the country wonders what the new normal will look like 17 August 2021 at Afghanistan Has a New Government: The country wonders what the new normal will look like - Afghanistan Analysts Network - English (afghanistan-analysts.org)

5. In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternative and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[9] I note the advice for Afghan nationals in Australia which currently appears on the Department of Home Affairs website appears consistent with the UNHCR’s position.[10]

   [9] UNHCR UNHCR Position on Returns to Afghanista August 2021 at Refworld | UNHCR Position on Returns to Afghanistan

   [10] Afghanistan update (homeaffairs.gov.au)

6. For the reasons set out above I have found that ss 197C(3) and 197D(2) provide a statutory scheme for considering non‑refoulement obligations at the time of potential removal and it is not necessary for the Tribunal to make findings about those matters in the context of this decision. However I accept the submission that recent events in Afghanistan have increased the applicant’s fears for his sister in Afghanistan as well his fears of his own return and that those events, together with the impact of extended COVID lockdowns in Melbourne, have had a significant impact on his mental health.

7. I consider that each of the above matters weigh substantially against cancellation of the visa.

   EXERCISE OF DISCRETION

8. Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard weigh strongly 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 2012, 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 who was imputed with a political opinion that is supportive of the Afghan government and coalition forces and against the Taliban;

   ·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As a consequence he cannot be removed from Australia unless the decision finding that the non-citizen engages protection obligations is quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal;

   ·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged unless he decides to return to Afghanistan voluntarily and the prospect of that appears remote, given the takeover of Afghanistan by the Taliban in August 2021. Any period of detention is likely to exacerbate the applicant’s already serious mental health issues;

   ·The applicant’s wife, child, parents and siblings remain living in Pakistan and the applicant has been unable to travel to visit them since his visa was cancelled. Should the applicant’s visa remain cancelled, his citizenship application will necessarily be refused and his prolonged separation from his family will continue;

   ·The material before the Tribunal indicates the applicant has resided in the Australian community for nine and a half years during which time he has not breached any laws.

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

   CONCLUSIONS

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. Having regard to all the relevant circumstances 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 866 (Protection) visa.

    Alison Murphy
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.