1916855 (Migration)

[2021] AATA 3225

1916855 (Migration) [2021] AATA 3225 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1916855

MEMBER:Kira Raif

DATE:23 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 23 June 2021 at 1:58pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – unstated other identities – previous application for refugee status – Pakistan citizenship – race – Hazara – religion – Shia – fear of Sunni extremists – brothers had already declared incorrect family composition in Australia – financial hardship – non-refoulement obligations – decision under review set aside           

LEGISLATION

s 83 Crimes Act 1958 (Vic)
Migration Act 1958, s 101-105, 107, 109
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.41

CASES

Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55          

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

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant had been granted a protection visa in October 2012 and a Resident Return visa (RRV) in September 2018. In April 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant may not have complied with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in October 2019.  The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa:

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

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. 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 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant arrived in Australia with his father [in] April 2012 as an irregular maritime arrival. He made the application for the protection visa on 8 July 2012. The applicant included with that application a statement in which he claimed to be a citizen of Afghanistan, who was born in Pakistan and had been living in Pakistan illegally since birth.

11. The applicant completed Form 866 in which he provided the following information.

    a.The applicant gave his personal details such as name and date of birth.

    b.At Question 2, the applicant stated ‘no’ in response to a question whether he had previously applied for refugee status or a protection visa.

    c.At Question 3, the applicant the applicant stated ‘no’ in response to a question whether he had previously made any other type of application to the Department.

    d.At Question 4, the applicant stated that he was also known by the name of [Alias A], which was the name in his false Pakistani passport.

12. The primary decision record indicates that in September 2018 the Department completed a facial image comparison report comparing photographs submitted in the application for the Refugee and Humanitarian subclass 202 visa made in Islamabad in July 2010 and the Australian citizenship application made in November 2016. The two identities were declared as [Alias B] and [applicant’s name variant] with different dates of birth. The facial comparison report concluded that these represented the same person.  

13. It is stated that [Alias B variant] applied for the Subclass 202 Refugee and Humanitarian visa in July 2010. He claimed that his father was missing and his mother was dead. The application was refused in January 2011. [Applicant’s name variant] arrived in Australia in April 2012 with his father.

14. In his response to the NOICC the applicant confirmed that he was a citizen of Pakistan and his true identity was [Alias C]. In his submission to the Tribunal of 4 June 2021 the applicant also confirms that he had incorrectly claimed to be a citizen of Afghanistan with no legal right to reside in Pakistan. The applicant claims that despite that, his fundamental claims of escaping persecution at the hands of Sunni extremists due to his ethnic and religious identity of being a Shia Hazara remain the same. The applicant concedes that there was non-compliance with s. 101. In oral evidence to the Tribunal, the applicant also stated that because of his brothers’ claims, and because they were told by others that they would be more successful if certain claims were made, he did provide incorrect answers in his application.

15. Having regard to the information in the primary decision record, being the facial image comparison report, as well as the applicant’s own evidence to the delegate and the Tribunal, the Tribunal finds that the applicant gave incorrect answers in his application for the protection visa, when stating his name and date of birth, when stating that he had not previously applied for other visas and by not declaring what he now claims to be his true identity.

16. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

19. The correct information is that the applicant was a citizen of Pakistan and not of Afghanistan, as he claimed in his protection visa application. The correct information is that the applicant was living in Pakistan legally as a national of that country, and not illegally as he claimed. The correct information is that the applicant had a different name and date of birth, rather than what was declared in his protection visa application and he was not a minor when the application was made. The correct information is that the applicant did make an application for a visa before and was refused a visa. The applicant concedes all of that  information. These factors weigh in favour of the cancellation.

    The content of the genuine document (if any)

20. This is not relevant in the present case.

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

21. The applicant states in his response to the NOICC that the provision of the correct information would not have led to a different outcome because the situation for Shia Hazaras in Pakistan was worse than in Afghanistan at the time his application was made and he could have claimed protection on the basis of violence by the Sunni terrorist groups in Pakistan. The applicant states that his fundamental claims on which he was granted the protection visa remain unchanged and that he is at real risk as a Shia and a Hazara both in Afghanistan and in Pakistan. The applicant states that he was granted protection because of his race and religion and he claims Shia Hazara from Afghanistan and Pakistan were, and continue to be, persecuted. The applicant repeated this evidence to the Tribunal, stating that the basis of his claims as a Hazara and Shia and the reasons he left Pakistan were correct. The applicant explained to the Tribunal that he made his claims in relation to Pakistan and not Afghanistan.

22. The Tribunal finds these submissions problematic. It is not sufficient to state that the applicant would have been granted the visa anyway on the basis of his true circumstances and correct answers. He did not seek the visa on the basis of such circumstances and he was not granted one. The applicant’s claims that he feared persecution as a Shia Hazara but as a national of Pakistan had never been assessed as the assessment was based on the applicant’s claim that he was a national of Afghanistan and living in Pakistan illegally.

23. Neither does the Tribunal accept that the applicant genuinely believed he had the same or better chance of being granted protection on the basis of his true identity and nationality. His evidence to the Tribunal is that he claimed to be a minor and an Afghan national because he believed that would improve his chances of getting the protection visa.

24. Ultimately, it is not necessary for the Tribunal to determine whether the applicant would have been granted the visa, if the correct information was known to the decision-maker. The Tribunal is of the view that the applicant’s nationality and his identity were central to any assessment of his protection claims. That is, the incorrect information went to the heart of the assessment that the applicant was owed protection obligations and to the decision to grant the visa. The Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on incorrect information. In the Tribunal’s view, these matters weigh very heavily in favour of the cancellation.

    The circumstances in which the non-compliance occurred

25. In his submissions to the delegate the applicant explains that the information he has now provided regarding his identity, nationality and family composition is correct and he submitted in response to the NOICC several documents attesting to these matters. The applicant states that his true identity is [Alias C] and that he was born in Quetta Pakistan in [year] and he claims he provided the correct information voluntarily even in relation to matters that were not contained in the NOICC. The applicant states that he and his father provided incorrect information in their protection visa application regarding their identity and previous visa refusal because they were told by others that they would have a better chance if they claimed to be Afghan citizens and they were trying to avoid long detention and separation from family members.

26. The applicant states that he did not declare his siblings in Australia in his protection visa application as he did not want them to have problems with their cases and to be deported to Pakistan, as they also did not declare the true family composition. The applicant states that when applying for the RRV, he repeated the information he provided in the protection visa application as he did not know how to change the information and was afraid of the consequences. The applicant states that he relied on the advice of others, which he regrets.

27. The applicant states that the earlier application was prepared by another relative and he was too young at the time to have any involvement in it.

28. In oral evidence to the Tribunal the applicant explained that two of his brothers came to Australia before he did and they had already declared incorrect family composition in Australia. The applicant states that his family was in desperate situation and he was doing what was best for his family. He was not involved in their decision. The applicant explains that if he provided genuine information, that would have disclosed his brothers’ identities and their applications may have been affected, so he did not want to jeopardise their visa status. It would have also affected the opportunity to sponsor other family members in the future. The applicant claims that he was a genuine refugee fleeing persecution and declaring the truth would have affected everyone. The applicant states that there was no professional advice and he was too afraid to tell the truth to the lawyers who helped with the application. The applicant states that he did not declare the correct information later on because he did not want to affect the sponsorship of other family members.

29. The applicant submits that he lied not to gain financial advantage but to ‘save lives’. The Tribunal does not accept that evidence, particularly given the applicant’s submission that he believed he would have been entitled to the protection visa anyway based on the correct information. The Tribunal is of the view that the applicant provided incorrect information not “to save lives” but to protect the falsehoods put forward by his siblings in their own applications and also to improve his chances of getting the visa (such as the claim to be a minor and an Afghan national).

30. In the Tribunal’s view, the fact that the applicant’s siblings provided incorrect information in their own applications does not justify the provision of incorrect answers by the applicant in his own visa application. The Tribunal does not consider that the applicant’s desire to protect his family (in the provision of false information in their own applications) justifies the applicant’s conduct. The applicant also told the Tribunal that others told him that if he claimed to be a minor, he would have a better chance and he wanted to increase his chances of getting protection. This claim had nothing to do with protecting his siblings’ circumstances but the false answers were put forward purely to improve the applicant’s own chances of getting the visa and for the applicant’s own benefit.

31. The applicant also states that his intention was not to provide false information and he was not aware of the Australian laws and he was young and inexperienced. The applicant states that nobody knew the laws and they relied on the advice of others in the community. The applicant gave an example of having to lie about a piece of paper he was carrying with his brothers’ contact details. The Tribunal does not accept that the applicant was so young and inexperienced and unfamiliar with the Australian laws as to fail to recognise the need to provide truthful information in a visa application.

32. The Tribunal finds that the breach was deliberate. That is, the applicant believed that creating a different identity and claiming to be a national of another country and a minor would improve his chances of obtaining the visa and protect his siblings (by hiding the falsehoods they put forward in their own applications) and his family and for these reasons, he had intentionally and deliberately falsified the answers he provided in his protection visa application concerning his age, identity, nationality and family composition. The Tribunal finds that the circumstances in which the non-compliance occurred weigh very heavily in favour of the cancellation.

    The present circumstances of the visa holder

33. The applicant provided evidence of having completed his [schooling] and a course at [a named] University. The applicant refers to his employment as a process worker. The applicant told the Tribunal that he worked until 2019 when the NOICC was issued and he has not been able to work since his visa was cancelled, although he did some work in 2020 to support himself.

34. The applicant told the Tribunal that he is in a difficult situation mentally and financially since his visa was cancelled. The applicant states that he feels he does not belong here and he is worried about the uncertainty of the future. The Tribunal accepts that evidence.

35. The applicant states that his immediate family, including his two siblings and father are in Australia. The applicant states that his father is elderly and he is looking after his father. The applicant explained to the Tribunal that his father had a heart attack and cannot live with his siblings due to family issues, so he is the best carer for his father and he is under pressure from his family to take care of his father. The Tribunal accepts that the applicant has close family ties in Australia, although the Tribunal is mindful of the applicant’s evidence that his brother’s visa has also been cancelled. The Tribunal is prepared to accept that the applicant is a carer for his father and acknowledges the applicant’s evidence that the father’s visa has not been cancelled. The Tribunal acknowledges the applicant’s evidence that culturally, it is the responsibility of the youngest child to care for the parents but the Tribunal is also of the view that the role can be carried out by any person who is available, whatever the cultural expectations are. 

36. The applicant refers in response to the NOICC to the provision of financial support to his mother and [other family members], stating that his support is greater than the support provided by other relatives. The applicant refers to the purchase of the house and states that he has mortgage repayments. The Tribunal accepts that evidence although the Tribunal also notes the applicant’s evidence that he has not been able to work legally since his visa was cancelled (he refers to carrying out some work in 2020) and that would limit his capacity to provide financial support to his family. Nevertheless, the Tribunal accepts that financial and other hardship would be caused to the family if the applicant’s visa is cancelled.

1. The applicant refers to his poor sleep and states that he relies on sleeping tablets. The Tribunal accepts that the applicant’s mental health has been affected by the cancellation and the uncertainty of the future and for that reason also, the Tribunal accepts that hardship would be caused by the cancellation.

2. The Tribunal accepts that the applicant is well settled in Australia and acknowledges that his present circumstances weigh heavily against the cancellation.

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

3. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act and the Tribunal acknowledges that the applicant provided what he now claims to be correct information in response to the NOICC. This consideration is neutral in the Tribunal’s view.

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

4. The applicant told the Tribunal that he declared himself to be a minor when seeking protection. He claimed in his false identity that he was born in [year] while his correct date of birth is [an earlier year]. The applicant also told the Tribunal that he did not declare his two siblings in Australia in his own protection visa application. The applicant claims he provided incorrect information about his identity in his Resident Return visa. The Tribunal considers there are other instances of non-compliance and these factors favour the cancellation.

   The time that has elapsed since the non-compliance

5. The application for the protection visa was made in July 2012. Close to nine years passed since the non-compliance and the Tribunal acknowledges it is a lengthy period and this factor weighs against the cancellation.

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

6. In his response to the NOICC the applicant refers to a speeding ticket and he explained to the Tribunal that he was 5 km over the speed limit and was fined. The applicant told the Tribunal that he used the false name in his driver license application and home loan application and when making the application for the Australian citizenship. The use of a false identity may constitute a breach of s. 83A of the Crimes Act 1958 (Vic). The Tribunal considers that the use of false identity is an offence under the Australian law and these breaches weigh somewhat in favour of the cancellation.

   Any contribution made by the holder to the community

7. The applicant refers to his employment and states that he has become a skilled worker and has paid taxes and has contributed to the manufacturing industry. The applicant provided to the Tribunal his employment reference. The Tribunal accepts that evidence. The applicant refers to his involvement with the Afghan community and states that he had also assisted members of the Australian community. The applicant refers to incidents when he had helped others. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community. The Tribunal accepts this factor weighs against the cancellation.

8. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140.

9. There are no persons whose visas would be subject to consequential cancellation. The applicant told the Tribunal that the provision of correct information had affected his brother’s visa but if that is the case, the cancellation of the brother’s visa would have been caused by his provision of incorrect answers, not as a consequence of the cancelation of the applicant‘s visa.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

10. The applicant does not have children but his evidence to the Tribunal is that he has a close relationship with his brother’s children. The Tribunal is prepared to accept that evidence. However, the applicant’s evidence is that the children have the care and support of their parents and that will continue irrespective of the applicant’s visa status and presence in Australia. The applicant states that the cancellation of his visa may make the children worried about their own future but the Tribunal does not consider that would be the case, given the applicant’s evidence that his brother’s visa has not been affected and there is no likelihood of his visa (or Australian citizenship) being cancelled or revoked. 

11. The applicant states that a meaningful relationship with the children cannot continue if he cannot reside in Australia and if his visa is cancelled, the children will be deprived of having personal contact and a meaningful relationship with him. The Tribunal does not accept that submission. The Tribunal is of the view that a relationship can continue whether or not the applicant remains in Australia and irrespective of his visa status because a relationship is not limited to situations where there is physical proximity. A relationship can exist if there is, for example, electronic contact between the applicant and the children. While such a relationship may be different, the Tribunal does not consider it is incapable of being ‘meaningful’ or a close one. 

12. While the Tribunal accepts the applicant’s evidence that his brother’s children ‘like him’ and may prefer to have an ongoing relationship with the applicant, that is not sufficient to establish that the children will be affected emotionally or otherwise. There are no statements from the children’s parents or other health professional to support the applicant’s claim that the children would be affected mentally or otherwise if the applicant’s visa is cancelled. The applicant’s reference to the close relationship is not sufficient to establish that the children’s best interests would be affected by the cancellation of the applicant’s visa.

13. The Tribunal does not consider that the best interests of any children would be adversely affected by the cancellation of the visa.

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

14. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

15. The applicant states that as a Shia Hazara, he would be subjected to harm upon return to Pakistan. In his submissions to the Tribunal the applicant outlines the harm he would experience as a Hazara and a Shia if he was to return to Pakistan and refers to several country information reports on the general security situation in Pakistan and the treatment of Hazaras in that country. The applicant told the Tribunal that he cannot return to Pakistan as he was granted protection so as not to return to that country. The applicant explained to the Tribunal that he did return to Pakistan in 2015 because his mother was unwell and missed him. The applicant states that during that visit, he stayed within the small area and was in a ‘prison-like situation’ and he did not move around.

16. The Tribunal is of the view that in this particular case, the grant of the protection visa in the past is not necessarily an indication that the applicant is owed protection because the decision to grant the visa was based, to a significant degree, on incorrect information.

17. The Tribunal has had regard to the 2019 DFAT report on Pakistan, which relevantly states with respect to Hazaras living in Pakistan:

    The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.

    Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.

    Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ have targeted Hazaras in Pakistan for their sectarian affiliation.

    The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.

    Government forces also provide security for Shi’a religious processions. Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.

    Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.

    Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’

    An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta…

    Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.

    Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.

    Hazara children born in Pakistan are entitled to Pakistani citizenship…

    While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.

    DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.

    DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.

    DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.

    Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.

    While DFAT assesses Hazaras do not typically require official documentation to access non- government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health,  emergency care and education services.

18. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Pakistan, being a Hazara.

19. The Tribunal discussed with the applicant the possibility of making another application for a protection visa (such as a temporary protection visa) onshore. The applicant submits that due to the mode of his arrival, he may not have the option of seeking another visa onshore. The Tribunal acknowledges that even if the bar is lifted and the applicant is able to apply for another visa, there can be no certainty of the visa being granted.

20. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

21. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation. However, the Tribunal also acknowledges that if the applicant is not able to remain in Australia, his return to Pakistan may result in the applicant facing a real chance of persecution or a real risk of harm.

22. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of his Hazara ethnicity and his Shia religion. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

23. With respect to the principles of family unity, the Tribunal notes that the applicant’s father and two siblings reside in Australia (one of his brothers is no longer a permanent resident of Australia). His mother and [other family members] remain overseas. Thus, the applicant appears to have equally strong family links in Australia and in Pakistan. These considerations are neutral.

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

24. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia. These matters weigh somewhat against the cancellation.

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

25. The applicant’s father and two brothers reside in Australia and the applicant refers to a close relationship he has with his family in Australia and the emotional support he receives from them, being the youngest of the family. The Tribunal is prepared to accept that the applicant may have a close relationship with his family in Australia, although the Tribunal is mindful that his mother and [other family members] live in Pakistan and may also be able to provide the applicant with emotional support, should he return to his home country. The Tribunal is also of the view that any emotional support the applicant may receive from his family in Australia need not cease if the applicant was to leave Australia, as he and his family in Australia will be able to continue to communicate with each other electronically. As noted above, the Tribunal does not accept the applicant’s claim that a meaningful relationship cannot exist without the physical proximity, even if the relationships would be different.

1. The applicant refers to another Tribunal decision where he claims the circumstances were similar to the present case and where the Tribunal found in favour of the applicant. The Tribunal considers such cases to be of no precedential value because it is for the present Tribunal to determine the factual circumstances and the weight to be given to each of the factors.

2. The applicant states that he provides financial support to his mother (and he provided to the Tribunal his mother’s medical records), and being the only single son, his support is greater. The Tribunal is prepared to accept that evidence, although the Tribunal is of the view that  other family members in Australia may also provide at least some degree of support to the applicant’s mother (whether at the same level or different level) and the Tribunal is mindful of the applicant’s evidence that he has not been permitted to work since his visa was cancelled and that he had only done limited work since that time.

3. The applicant states that the information in the NOICC was only limited to his different identity and the previous visa refusal but he had voluntarily provided correct information about other aspects such as his country of nationality, his age and his family composition. The Tribunal acknowledges that the applicant has done so, although it is of some concern that he had done that only in response to the NOICC and not at any time previously. These factors weigh against the cancellation.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave incorrect answers in his application contrary to s. 101 of the Act and that there are grounds for cancellation of his visa.

5. The Tribunal accepts that hardship would be caused to the applicant and his family if the visa is cancelled and if the applicant was required to leave Australia, particularly as it may lead to the separation of the applicant and his father and siblings in Australia, loss of employment and financial hardship. The Tribunal acknowledges that the applicant has been living in Australia for a number of years and that he is well settled in this country. The Tribunal acknowledges that the applicant completed his education and has been employed, he is participating in community activities and contributes to the community. He has strong family ties in Australia and a good relationship with his siblings and his brother’s children. The Tribunal accepts that hardship would be caused to the applicant and his family by the cancellation of the visa, if the applicant was required to depart Australia (which is not necessarily a consequence of the cancellation), including financial hardship. The Tribunal accepts that departure from Australia would affect the applicant’s capacity to provide financial support to his family and physical care to his father. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled.

6. Against these considerations, the Tribunal notes that the applicant has shown a persistent disregard for the Australian laws. He admits to having provided incorrect answers in his protection visa application, some of which the Tribunal considers to have been central to his claims, essentially because he believed doing so would improve his chances of obtaining the visa and protect his siblings’ visa status. The incorrect information related to his country of nationality, his identity, age (he deliberately claimed to be a minor when he was not), family composition and previous visa application. Some of these factors such as the country of nationality were central to the assessment of the applicant’s eligibility for the protection visa. He also claims he provided incorrect information in his RRV application because he did not know how to change the information. The Tribunal does not accept that the applicant could not have acquired that knowledge, given the length of time he had spent in Australia, the extensive support he claims to have acquired in Australia and potential to access representation and advice. The Tribunal is of the view that if the applicant wished to change information and to provide truthful information in his RRV, he could have done so. Instead, he again chose to provide incorrect answers because he believed it would better suit his circumstances. He also did so in his citizenship application. The applicant explained to the Tribunal that he did provide incorrect information about his identity in the citizenship application and to other organisations because he had to follow what was included in his protection visa application. The applicant used his false identity in his home loan application and the driver license. The Tribunal finds that the applicant had persistently breached the Australian laws because he believed that doing so would be beneficial to him and his family. That is, the applicant’s primary motivation was his personal interests and those of his family and not his obligations under the law. The applicant claims to be regretful about his conduct and states that he had voluntarily declared much of the information in response to the NOICC, even if that information was not before the decision-maker. The Tribunal accepts the applicant provided extensive information in response to the NOICC but does not consider the applicant’s expression of regret to be genuine, as it was only done in response to the NOICC and not at any time previously. In his evidence to the Tribunal the applicant repeatedly stated that he was in need of protection and suggests that his conduct was justified, having regard to the family circumstances. The Tribunal has formed the view that the applicant considers the breaches of the law and the non-compliance with the Act justified and has little insight into his conduct. These are factors that weigh heavily in favour of the cancellation.

7. The Tribunal has formed the view that the circumstances in which the non-compliance occurred (being the deliberate and intentional provision of incorrect answers to support his and his family’s interests), the other breaches of the law, being the applicant’s reliance on false identity in his various dealings in Australia and the fact that the decision to grant the visa was based on incorrect information, ought to be given significant weight in favour of the cancellation. However, in the particular circumstances of this case, the Tribunal has decided to give greater weight to the fact that if returned to Pakistan, the applicant would face a real chance of persecution, as is evident from the country information. The Tribunal places weight on the length of applicant’s residence in Australia, his settlement in this country and family and other links to Australia. The Tribunal places significant weight on the degree of hardship that would be caused to the applicant and his family by the cancellation of the visa, including the applicant’s carer obligations towards his father. Ultimately, the Tribunal finds that these considerations outweigh others.

8. 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, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

9. 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.

   Kira Raif
   

   Senior Member