1916280 (Migration)

1916280 (Migration) [2021] AATA 1774 (17 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1916280
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

Statement made on 17 May 2021 at 4:53pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect information in visa application – previous visa application in different name and relative in Australia not declared – ethnicity, religion and imputed political opinion – Hazara Shia – no known relatives in home country – work and community activities in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109(1), 376
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 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
On 19 June 2019 a delegate of the Minister cancelled the applicant’s resident return 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.
The applicant appeared before the Tribunal on 14 May 2021 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s uncle, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a [age]-year-old male who arrived in Australia by boat [in] March 2010 and identified himself as [the applicant], a Shia Muslim of Hazara ethnicity from Afghanistan. On 19 August 2011 an Independent Merits Review officer found the applicant met the definition of a refugee as set out in the Convention relating to the Status of Refugees and on 5 October 2011 he was granted the protection visa. He was granted the Subclass 155 (Five Year Resident Return) visa on 17 August 2016.
On 17 May 2019, the Department completed a forensic Facial Image Comparison Report which compared the photograph of the applicant supplied with his protection visa application with a photograph of [Alias] lodged in support of an application for a Global Humanitarian (Subclass 202) visa application in October 2005. The Facial Image Comparison report concluded those photographs were of the same person.
On 22 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 incomplete and incorrect information in his visa application.
The s.107 notice identified the information provided in the protection visa application that was considered to be incorrect. In summary it suggested that the applicant had given incomplete information about the names he had been known by, as well as 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] who was included in a Global Special Humanitarian (subclass 202) visa lodged in 2005, proposed by his brother [Mr A].
The applicant responded to the s.107 notice on 5 June 2019. In a statutory declaration dated 5 June 2019 that formed part of his response, he stated that understood his identity was listed as a dependent in a last remaining relative (subclass 115) visa under the alias [Alias] lodged in October 2005. He understood the sponsor was his uncle [Mr A] who was the person primarily responsible for the preparation of the application. His uncle consulted with the applicant’s father with the result that the names and dates of birth of several family members including the applicant were incorrectly recorded.
The applicant states that at the time of the visa application he was only [age] years old and he was not informed of his inclusion, nor consulted about his personal details. Even had he known about the incorrect information, there was little he could do to correct it as he did not speak English or have the opportunity to review the visa application.
The applicant disputes that he failed to disclose the existence of a close relative in Australia, stating he did not know that his uncle was in Australia for several years after being granted the visa in 2011. He only became aware that his uncle was in Australia in 2017, at which time he moved from Adelaide to Melbourne to be closer to him.
On 19 May 2019 a delegate decided to cancel the applicant’s visa, considering the applicant had provided incomplete and/or 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 before the applicant’s removal to Australia to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.
The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE REVIEW PROCEEDING
Non-disclosure certificate
The Tribunal has before it the departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.
The certificate is dated 26 April 2021 and states that disclosure of folios 1-9 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. The certificate dated 26 April 2021 replaces an earlier certificate dated 28 June 2019 that was clearly invalid as it was unsigned.
A copy of both certificates were provided to the applicant’s legal representatives prior to the hearing. In an email dated 30 April 2021 the applicant’s representative stated that they did not dispute the validity of the certificates but requested the Tribunal exercise its discretion and decide whether to disclose the certificated information to the review applicant for hearing.
Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.
The s.376 certificate dated 26 April 2021 appears to be valid on its face. I note the existence and findings of the Facial Image Comparison report have already been disclosed to the applicant in the s.107 notice and the delegate’s decision. Other parts of the certificated information set out the personal details and family composition of [Alias], and this information has also been disclosed in the s.107 notice and delegate’s decision. The applicant in this case does not dispute that he was included in the visa application made in the name of [Alias], nor does he dispute his relationship to his uncle [Mr A]. I am satisfied the applicant has been provided with the substance of the information linking him to the identity of [Alias] and that he has acknowledged being included in the earlier visa application under that name. For these reasons I have decided not to exercise my discretion to disclose further details of the certificated documents or information.
LEGISLATIVE FRAMEWORK
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
The notice dated 22 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 notice is deficient or invalid.
I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. 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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(a) and 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 provide a complete answer to question 4 of Part C of the Form 866 which asked what other names he had been known by, because he did not provide a response to that question and did not disclose that he had also been known as [Alias];
·The applicant failed to provide a complete answer to question 1 of Part B of the Form 866 which asked him to provide details of all persons included in the application, because he answered [the applicant] born [date] when he was also known as [Alias];
·The applicant failed to correctly answer question 3 of Part B of the Form 866B when he answered no to a question asking him whether he had previously made any other type of application to the department; when in fact he had made an earlier application for a visa under the name of [Alias];
·The applicant failed to correctly answer question 10 of Form 866B when he answered no to a question asking him if any members of his family unit were in Australia; when in fact his uncle [Mr A] was residing in Australia at the time;
- The applicant failed to provide a complete answer to question 1 of Part C of the Form 866 when he stated his full name was [the applicant] when he had previously applied for a visa under the name [Alias];
- The applicant failed to correctly answer question 65 of Part C of the Form 866 when he declared the information he had supplied was complete, correct and up to date in every way.
As noted above, the applicant’s response to the Department concedes he was included in the 2005 visa application made by his uncle [Mr A], although he states he was not aware of it at the time. While he acknowledges his uncle [Mr A] was in Australia at the time the applicant made his application for a protection visa in 2011, he states he did not become aware of that until 2017. It is submitted that in circumstances where the applicant was not aware that the information he was providing was incorrect, he cannot be found to be in breach of s.101. As discussed with the applicant and his representative at hearing, section 100 of the Act has the effect that an answer to a question in a visa application is incorrect even though the person who gave or provided the answer did not know that it was incorrect.
As it is conceded the applicant was included in the 2005 last remaining relative visa application under the name of [Alias], the Tribunal finds that he gave an incomplete answers to questions 1 and 4 of Part C of the Form 866 and question 1 of Part B of the Form 866 when he did not disclose that he had also been known as [Alias].
As it is conceded the applicant was included in the 2005 last remaining relative visa application under the name of [Alias] the Tribunal finds that he gave an incorrect answer to question 3 of Part B of the Form 866B when he answered no to a question asking him whether he had previously made any other type of application to the department; when in fact he had made an earlier application for a visa under the name of [Alias]. It follows that the applicant failed to correctly answer question 65 of Part C of the Form 866 when he declared the information he had supplied was complete, correct and up to date in every way.
The Tribunal does not accept the applicant failed to correctly answer question 10 of Form 866B when he answered no to a question asking him if any members of his family unit were in Australia, because the notes to that question make clear that members of the same family unit include a partner, dependent children and other dependents. As there is no suggestion the applicant’s uncle [Mr A] was dependent on the applicant or vice versa, he is not a member of the applicant’s family unit and the applicant was not required to disclose his uncle’s presence in Australia in response to question 10.
The Tribunal is satisfied that the applicant’s correct name is [applicant’s full name], noting the taskera and refugee card issued to the applicant by the Pakistani authorities in 1999 identify him as [applicant’s first and second names]. Country information about Afghan naming conventions indicates that Afghans traditionally use only a first name and generally lack a surname, distinguished instead by their tribal affiliation, place of birth, profession or honorific titles. Afghans who have contact with the Western world adopt a surname, generally selecting one that represents a father’s name, their tribal affiliation or an adjective describing a person.[1] The applicant has given evidence that he chose the surname [applicant’s surname] on his arrival to Australia in recognition of his great-grandfather, [Mr B]. This is consistent with the name of the applicant’s great-grandfather as recorded on the taskera of the applicant’s father, [Mr C].
[1] Megerdoomian, Karine The Structure of Afghan Names November 2009 at [
While the Tribunal has accepted the applicant gave an incomplete answer to question 4 of Part C of the Form 866 (which asked what other names he had been known by), the Tribunal is not satisfied he gave incorrect answers to the various questions in which he stated that his name was [applicant name] (question 1 of Part B and question 1 of Part C of the Form 866). This is because the Tribunal is satisfied that [applicant name] is the applicant’s correct name and those questions did not require him to give details of the other names by which he had also been known.
As the Tribunal has found the applicant gave incomplete and incorrect information in his protection visa application at questions 4 and 65 of Part C and question 3 of Part B of the Form 866 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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and I have considered each of those circumstances below.
The correct information: For the reasons set out above, I have found that the applicant gave incomplete and/or incorrect information in his protection visa application as to the other name by which he had been known and his visa history. The correct information is that the applicant was previously included in a global humanitarian visa application made by his uncle [Mr A] under the name of [Alias].
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 of the Act (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The applicant was granted the protection visa following a decision by an Independent Merits Reviewer (IMR) that the applicant was owed protection by Australia. The decision record dated 16 August 2011 indicates that the IMR found the applicant had a well-founded fear of persecution on the grounds of his imputed political opinion as a supporter of the government, his Hazara race and his Shia religion. The IMR found the applicant’s home area was [District 1], a predominantly Pashtun area of Ghazni province. The IMR accepted that the applicant’s father sent him to Pakistan in 2007 after the Taliban demanded the young men in his village join the insurgency. The IMR assessed that state protection was not available to the applicant and that internal relocation to a city such as Kabul was not reasonable for the applicant given his young age and the absence of any family members or support structures in that city.
As the incorrect information does not bear on the applicant’s profile as a Hazara Shia who would be imputed to be a supporter of the Afghan government, I am satisfied that the applicant would have been granted the protection visa even had the delegate been aware of the earlier visa application and the name given to the applicant in that visa application. For these reasons I do not consider the decision to grant the visa was based in any meaningful way on the incorrect information.
The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2010 protection visa application. At the time the applicant was [age] years old and had recently arrived in Australia by boat. The incorrect information related to a 2005 remaining relative visa lodged by the applicant’s father and proposed by the applicant’s uncle, [Mr A]. Both the applicant and [Mr A] gave evidence that the applicant was not consulted about the 2005 visa application as he was just a child. I accept the applicant’s evidence that he was not aware that he had been included in the earlier remaining relative visa application under another name until he was advised of this by the department.

The present circumstances of the visa holder: The applicant currently lives in a shared house in Melbourne, near to his uncle [Mr A] and his uncle’s family. When he was first released from immigration detention in 2011, he lived in Adelaide where he was employed for several years as [an Occupation 1] before establishing [a business]. He moved to Melbourne after discovering his uncle was here. He now owns his own [vehicle] and works full time as [an Occupation 2] for [Employer 1]. The CEO of [Employer 1], [Mr D], has provided a letter of support for the applicant noting him to be a diligent worker about whom the company regularly receives positive feedback. [Mr D] describes the applicant as an upstanding, kind and professional team member who can always be relied upon to take up extra work and offers his full endorsement for the applicant’s review proceeding.
The applicant’s parents, siblings, wife and [age]-year-old daughter live together in Quetta, Pakistan. Up until the visa cancellation the applicant visited his family regularly in Pakistan and the applicant has provided the Tribunal with copies of his Australian titre de voyage containing visas to enter Pakistan. The applicant has been unable to travel to see his wife and daughter since his visa was cancelled. At hearing he described himself as very stressed and anxious about his visa situation and his wife and daughter in Pakistan. Departmental records indicate he has a pending application for citizenship by conferral.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant admitted to the non-compliance in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that there are no other known instances of non-compliance.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2011 and approximately ten years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.
Any contribution made by the holder to the community: The applicant told the Tribunal he was hard working and had never received any demerit points on his driver’s licence and that he helped with the bushfire rebuilding process in Victoria. and that he was involved with [a charitable organisation] raising funds for [details deleted] in Afghanistan. He stated he donated money for breast cancer research and worked hard, completing all of his tax returns with the ATO.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In relation to the Refugees Convention, the Policy Guidelines provide that:
Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).
Refoulement is prohibited under Article 33 of the Refugees Convention unless:
- there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
- the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.
In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin as an International Treaty Obligations Assessment (ITOA) would be completed by a departmental officer prior to any decision to remove him to his country of origin.
Country of nationality
It is not in dispute that the applicant is an Afghan national and I have assessed his claims against Afghanistan as his country of nationality and the receiving country.
Well-founded fear of persecution
The applicant claims to have a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity and his Shia religion.
In assessing those claims I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute. 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. The applicant’s personal background
The applicant originates from [District 1] in Ghazni province, although his family has since relocated to Quetta, Pakistan where they live with the applicant’s wife and [age] year old daughter. At hearing I heard from the applicant and his uncle [Mr A] that they have no known family members remaining in Afghanistan, although a brother of the applicant’s father and [Mr A] remains missing and [Mr A] has returned to Afghanistan on several occasions to try and obtain information about his whereabouts. As the applicant has no close family members remaining in his home area of [District 1] and DFAT indicates that returnees to Afghanistan from western countries almost exclusively return to Kabul,[2] 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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.

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.
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.
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)
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]
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)
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
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)
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
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
I note the IMR who assessed the applicant’s claims for protection in 2011 found him to be an Afghan Hazara from Ghazni province, Afghanistan. The IMR cited country information about the situation in Ghazni province at the time, noting that the Taliban’s control and presence in that area was very strong and the applicant’s home district of [District 1] was predominantly Pashtun. The IMR found the applicant had a well-founded fear of persecution on the grounds of his imputed political opinion as a supporter of the government, his Hazara race and his Shia religion.
I note the applicant has not returned to Afghanistan since leaving in 2007 and has no known relatives in [District 1] or elsewhere in Afghanistan. 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.
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.
In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to Kabul, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion.
State protection
The harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect him from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm.
DFAT reports that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest.[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.
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.
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.
For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and imputed political opinion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant’s wife and daughter remain living in Quetta, Pakistan and the applicant has been unable to travel to visit them since his visa was cancelled and I accept that has been very distressing for the applicant and his family.
EXERCISE OF DISCRETION
Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa. In particular I give significant weight to the following matters:
·Had the correct information about the applicant’s inclusion in the earlier visa application been known to the IMR when the decision to grant the visa was made in 2011, I am satisfied the applicant would still have been recognised by the IMR as a refugee on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion with an imputed political opinion as a supporter of the government;
·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 been employed and paying taxes since his release into the Australian community and is described by his employer as diligent and hard working.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
CONCLUSIONS
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

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

[2021] AATA 1774

17 May 2021

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