1917013 (Migration)

[2021] AATA 2779

1917013 (Migration) [2021] AATA 2779 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917013

MEMBER:Alison Murphy

DATE:31 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2021 at 4:47pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – subclass 155 (Five Year Resident Return) visa – incorrect information in application – different names for applications – satisfied as to his identity – applicant will face serious harm if returned to Kabul – time that has elapsed since the non-compliance – applicant was a minor – contribution to the Australian community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109, 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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. On 26 June 2019 a delegate of the Minister cancelled the applicant’s resident return visa, on the basis that she considered the applicant had given incorrect information in his protection visa application. In essence the delegate considered the applicant gave incorrect information about his name, his visa history and his relatives in Australia.

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

4. The applicant appeared before the Tribunal on 19 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   BACKGROUND

7. The applicant is a [age]-year-old male who arrived in Australia by boat on [date] February 2012 and identified himself as [Mr A], a Shia Muslim of Hazara ethnicity from Afghanistan. On 2 July 2012 a delegate found the applicant met the definition of a refugee as set out in Article 1A of the Convention relating to the Status of Refugees and he was granted the protection visa.

8. On 4 October 2012 the applicant lodged a Global Special Humanitarian (Subclass 202) visa application in respect of his parents and siblings. That application was refused on 23 September 2014. The applicant applied for Australian citizenship by conferral on 9 September 2016 and that application is also still pending. He was granted the Subclass 155 (Five Year Resident Return) visa on 9 March 2018.

9. The Department subsequently formed the view that the applicant had been included in an earlier Global Special Humanitarian (Subclass 202) visa application under the name of [Mr B]. It undertook a forensic Facial Image Comparison Report which compared a photograph of [Mr B] with the photograph of the applicant supplied with his protection visa application. The Facial Image Comparison report concluded those photographs were of the same person.

10. On 6 May 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising him that the Department was considering the cancellation of his protection visa on the ground that he had given incorrect information in his visa application. 

11. The s.107 notice identified the information provided in the protection visa application that was considered to be incorrect. In summary it suggested that the applicant had given incorrect information about his name, his visa history and his relatives in Australia. In particular it set out the results of the Facial Image Comparison which concluded that he was the same person as [Mr B] who was included in a Global Special Humanitarian (Subclass 202) visa lodged in 2010, proposed by a person identifying himself as [Mr B]’s father, [Mr C]. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.

12. The applicant responded to the s.107 notice on 29 May 2019, with that response noted to be a preliminary response. That was stated to be because the applicant had not been provided with a response to his FOI request seeking the documentation that informed the notice due to processing delays and the response requested that a decision not be made to cancel the applicant’s visa before he was given an opportunity to review that documentation and respond accordingly.

13. The preliminary response otherwise set out that the applicant refuted the information provided in the notice and maintained that all of the information contained in his visa application was correct. The response noted that the applicant had never used the name [Mr B] and did not know any of the persons named in the Notice who are purported to be his family. However, since receiving the notice the applicant had sought advice from his father who had advised him that he had approached another person in his community to ask for assistance in obtaining a visa for the applicant and provided a photograph of the applicant for that purpose. The applicant was not aware of that matter before receiving the s.107 notice and did not know if this application was ever lodged. The preliminary response also provided information and documents in support of the applicant’s submission that the delegate should exercise her discretion not to cancel the visa.

14. On 26 June 2019 a delegate decided to cancel the applicant’s visa, finding the applicant had provided incorrect information in the manner set out in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.

15. 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

16. The Tribunal has before it electronic versions of the departmental files relating to the grant of the protection visa and subsequent cancellation of the resident return visa. Some documents were missing from these files, most notably the facial image comparison report referred to in the s.107 notice from the cancellation file. At the time of the Tribunal hearing, the electronic version of the Department’s grant file was also missing the delegate’s decision to grant the visa, although that document was subsequently provided by the Department.

17. The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing two certificates under s.376 of the Act.

18. The first certificate is dated 5 July 2019 and states that disclosure of folios 240-244 of the Department’s cancellation file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. As that document is unsigned, it is invalid.

19. The invalidity of the certificate was discussed with the applicant at hearing, as was the fact that the certificated material did not contain the facial image comparison report as had been quite reasonably assumed by the applicant’s legal representative. At the hearing I advised the applicant and his representative that I would adjourn the review to seek that report from the Department if requested to do so, noting that the applicant had earlier expressed a wish to examine the photographs compared in that report so as to be able to make submissions as to whether the photograph that had been given in the 2010 visa application was in fact a photograph of the applicant. I noted, however, that given the applicant’s evidence that his father had advised him that [Mr C] had agreed to his father’s request to include the applicant in his Australian visa application, it seemed reasonably clear that this was what had eventuated. Shortly after the hearing the applicant’s representative advised the Tribunal that the applicant consented to the Tribunal making its decision on the information currently before it and did not request that further information regarding the biometric assessment be sought. It was also confirmed that they raised no issue about the invalid certificate discussed at hearing.

20. A further signed certificate was issued on 19 May 2021 and provided to the Tribunal on 21 May 2021. That certificate again states that disclosure of folios 240-244 of the Department’s cancellation file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. A copy of that certificate was provided to the applicant’s representative, who confirmed that they raised no issue about the new certificate.

21. 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.

22. The s.376 certificate dated 26 April 2021 appears to be valid on its face. The material covered by that certificate does not include the facial image comparison report, rather it provides a summary of the investigations undertaken by the Department as to the applicant’s identity. 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 as have the salient parts of the summary. However, the applicant has not had the opportunity to see the photograph said to be his that was included in the earlier humanitarian visa application, nor is the facial image comparison report before the Tribunal.

23. Given the advice of the applicant’s representative to the effect that they did not wish the Tribunal to delay its decision to seek a copy of the facial image comparison report, together with the fact that the salient parts of the identity assessment have already been disclosed to the applicant, I have decided not to exercise my discretion to disclose the certificated material to the applicant.

    LEGISLATIVE FRAMEWORK

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.

25. 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? 

26. The notice dated 6 May 2019 sets out in detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or his representative that the notice is deficient or invalid.

27. 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?

28. 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.

29. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). In summary, that notice alleges that the following declarations made by the applicant in his protection visa were incomplete or incorrect:

    • At Question 1 of Part B of Form 866, in response to the question "Give details of ALL persons included in this application," the visa holder answered “[Mr A], [Date 1].” The delegate considered this to be incorrect, because the biometric comparison conducted by the Department indicates that the applicant is also known by the name [Mr B] born [Date 2];
    • At Question 3 of Part B of Form 866, in response to the question “Has any person named in Question 1 previously made any other type of application to the department (including a Parent visa)?" the visa holder answered "No." The delegate considered this to be incorrect, because the applicant had made an earlier visa application under the name [Mr B];
    • At Question 10 of Part B of Form 866, in response to the question “Are there any members of the same family unit who are in Australia but are not included in this visa application?" the visa holder answered "No." The delegate considered this to be incorrect, because the applicant had made an earlier visa application under the name [Mr B], which indicated his claimed father [Mr C] was in Australia;
    • At Question 10 of Part B of Form 866 in response to the question “Are there any members of the same family unit who are in Australia but are not included in this visa application?" the visa holder answered "Yes" and provided details of his parents and siblings. The delegate considered this to be incorrect because it differed from the details of family members provided in the visa application made in the name of [Mr B];
    • At Question 22 of Part B of Form 866 the applicant signed a declaration stating that all of the information he had supplied was complete, correct and up to date in every detail. The delegate considered this to be incorrect due to the other incorrect answers provided;
    • At Question 1 of Part C of Form 866, the visa holder answered “[Mr A]” to a question asking his full name. The delegate considered this to be incorrect, because the biometric comparison conducted by the Department indicates that the applicant had previously applied for a visa under the name [Mr B];
    • At Question 4 of Part C of Form 866, which asked what other names he had been known by, the applicant did not disclose that he had also been known by the name [Mr B];
    • At Question 8 of Part C of Form 866, the visa holder answered “[Date 1]” to a question asking his date of birth. The delegate considered this to be incorrect, because the applicant had previously applied for a visa under the name [Mr B] with the date of birth [Date 2], indicating the applicant’s date of birth may not be [Date 1];
    • At Question 15 of Part C of Form 866 which asked the applicant his relationship status, the applicant stated he had never married or been in a de facto relationship. The delegate considered this was incorrect because [Mr B]’s visa application was withdrawn because he had married and no longer met dependency requirements;
    • At Question 67 of Part C of Form 866 the applicant signed a declaration stating that the information he had supplied was complete, correct and up to date in every detail. The delegate considered this to be incorrect due to the other incorrect answers provided.

30. As noted above, the applicant’s response concedes he may have been included in the earlier visa application under the name of [Mr B], although he was a minor at the time the visa application was lodged and was not aware of it until it was brought to his attention by the Department. The applicant maintains that the information he provided about his name, date of birth, family composition and relatives in Australia in the protection visa application is correct, notwithstanding any earlier visa application in which he may have been included.

31. Further documents and submissions were provided to the Tribunal on 12 May 2021 and the applicant appeared before the Tribunal on 19 May 2021. At hearing he gave evidence consistent with his earlier response to the s.107 notice and his representative’s submissions. His detailed evidence is set out in a statutory declaration made 12 May 2021.

32. I accept the applicant’s correct identity is [Mr A] as stated in his protection visa application, notwithstanding his inclusion under a different name in the earlier visa application. In making that assessment I note the following:

    ·The applicant’s evidence about his identity and family composition is consistent with his protection visa application and the application for a Global Special Humanitarian (Subclass 202) visa in respect of his parents and siblings that he lodged in 2012;

    ·The applicant provided his father’s taskera to the Department at the time he lodged his protection visa application, and has more recently provided his own taskera which was obtained by his father returning to Afghanistan from Quetta for that purpose;

    ·The materials before the Tribunal indicate that no taskera or identity document was submitted in respect of [Mr B], in contrast to the primary and other secondary applicants whose taskeras were provided to the Department. The visa application (in respect of the applicant only) was later withdrawn by [Mr C];

    ·It is clear from the certificated material that the officer conducting the identity assessment formed the view that the applicant’s father was likely to be [Mr D], as disclosed by the applicant in his protection visa application, rather than [Mr C];

    ·The applicant has provided documentary evidence of extensive financial transfers to [Mr D], resident of Quetta, Pakistan and there is nothing in the material before the Tribunal that links him to [Mr C] or any other member of [Mr C]’s family since the global humanitarian visa was lodged in 2010.

33. The applicant’s oral and documentary evidence of his conversations with his father indicates his father approached [Mr C] after meeting him in Afghanistan. The applicant’s father asked [Mr C] to include the applicant in his visa application after hearing he was going to Australia and gave [Mr C] a photograph for this purpose. [Mr C] later told the applicant’s father he had withdrawn the application in respect of the applicant after finding out it was illegal. Given that the applicant’s photograph has been matched to a photograph of a person named as [Mr B] who was included in [Mr C]’s visa application, I am satisfied the applicant was included in the earlier global humanitarian visa application under the name of [Mr B].

1. The applicant does not know why [Mr C] later advised the Department that the applicant had married, but he guesses it was an excuse by [Mr C] to justify the withdrawal of the applicant from the visa application. I accept this explanation as plausible and I accept the applicant’s evidence that he has never been married or engaged.

2. I accept the applicant’s evidence that he was not born in a hospital and does not have a birth certificate, noting DFAT’s advice that birth certificates are automatically issued to children born in hospitals, but no automatic registration process captures the many babies who are not born in hospital. DFAT notes that only 34% of children under the age of five in Pakistan had their births officially registered between 2013 and 2015, and school records are often used in lieu of birth certificates[1]. The applicant has provided an English language results card from Quetta, Pakistan dated 2011. He states that his parents do not know his exact date of birth, telling departmental officers at his first interview that he was [approximate age] and had worked out his date of birth to be [Date 1] on the basis [of his approximate age]. While that date is unlikely to be completely accurate, I accept there is no more reliable information available to the applicant or the Tribunal.

   [1] DFAT Country Information Report: Pakistan 20 February 2019 at 5.48.

3. At hearing the applicant confirmed that while [Mr E] and [Mr F] shared the same surname as him, they were not to his knowledge related although they came from the same village as his own family. I note that [Mr E] and [Mr F] each provided letters of support for the applicant’s global humanitarian visa application in respect of the applicant’s own parents and siblings in October 2012. In those letters they both confirm that their families come from the same village in Jaghori district as the applicant’s family and are known to each other. They each met the applicant in Pakistan before coming to Australia and the applicant lived with [Mr E] for a period when he was released from detention. I am satisfied that [Mr E] and [Mr F] are not members of the applicant’s family unit for the purposes of question 10 of the Form B, which is restricted to a person’s spouse, dependent children and other dependants.

4. I note the applicant was only [age] years old when [Mr C] included him in the earlier global humanitarian visa application claiming the applicant was his son, [Mr B], born [Date 2]. I accept the applicant’s evidence that he was not aware that visa application had been made on his behalf until he received the s.107 notice in 2019. It follows that I accept he was not aware that the information he provided in his visa application was incorrect at the time he provided it in 2012. However, as acknowledged by the applicant’s legal representative, s.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.

5. For these reasons I am satisfied that the applicant gave incorrect information in his protection visa application at question 4 of Part C of Form 866 (when he did not disclose that he was also known by the name [Mr B]), at question 3 of Part B of Form 866 (when he did not disclose he had previously been included in an earlier visa application) and at questions 22 of Part B and 67 of Part C of the Form 866 (when he declared that the information he had supplied in the visa application was complete, correct and up to date in every detail).

6. However, I am not satisfied that the other information identified in the s.107 notice is incorrect. In particular I am not satisfied that the applicant gave incorrect information about his name (at question 1 of Part B and question 1 of Part C of Form 866); his date of birth (at question 8 of Part C of Form 866); his relationship status (at question 15 of Part C of Form 866); or his family composition in Afghanistan (at question 10 of Part B of Form 866). Nor do I accept he gave incorrect information at question 10 of Part B of Form 866 when he failed to disclose the presence of [Mr B]’s father [Mr C].

7. As I am satisfied that the applicant gave incorrect information in his protection visa application at question 4 of Part C of Form 866 (when he did not disclose that he was also known by the name [Mr B]), at question 3 of Part B of Form 866 (when he did not disclose he had previously been included in an earlier visa application) and at questions 22 of Part B and 67 of Part C of the Form 866 (when he declared that the information he had supplied in the visa application was complete, correct and up to date in every detail), I find that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

8. 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).

9. 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.

10. The correct information: For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application when he did not disclose that he had also been known by the name [Mr B] when he declared that the information he had supplied in the visa application was complete, correct and up to date in every detail.

11. 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).

12. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The applicant was granted the protection visa following a decision by a delegate of the Minister dated 2 July 2012 that the applicant was owed protection by Australia. The decision record indicates that the delegate found the applicant had a well-founded fear of persecution on the basis of his profile as:

    a young unaccompanied Hazara Shia male who is unfamiliar with Afghanistan [and who] may become a victim of serious harm of a nature or severity so as to amount to persecution attributable to his race and/or religion, imputed political opinion and age in the foreseeable future if he were to return to his parents’ place of origin in the Jaghuri district.

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

14. As the incorrect information has no bearing on the applicant’s profile as a young unaccompanied Hazara Shia male who was unfamiliar with Afghanistan, I am satisfied that the applicant would have been granted the protection visa by the delegate even had the correct information been provided. For these reasons I consider the incorrect information had no bearing on the decision to grant the visa.

15. The circumstances in which the non-compliance occurred: As noted above, the applicant was only [age] years old when [Mr C] included him in the earlier global humanitarian visa application claiming the applicant was his son, [Mr B], born [Date 2]. I have accepted his evidence that he was not aware that visa application had been made on his behalf until he received the s.107 notice in 2019 and he was not aware that the information he provided in his visa application was incorrect at the time he provided it in 2012.

16. The present circumstances of the visa holder and his contribution to the community: The applicant has lived in Australia for almost 10 years, after arriving as an unaccompanied minor aged [approximate age]. He completed his Victorian Certificate of Applied Learning (VCAL) and has since obtained a number of further [qualifications].

17. He was employed as an apprentice [Occupation 1] with [Company 1] in 2015 and after completing his four year apprenticeship continued to work there as a [Occupation 1]. His supervisor, [name deleted], wrote a letter of support to the Department in 2019 describing the applicant as a good worker, reliable, always gets his work done and friendly and polite.  He stated that if the applicant’s visa were to be cancelled, it would be a big loss to the team and the business who had invested time and money into developing him into a fully qualified [Occupation 1]. As a consequence of the applicant’s visa being cancelled in June 2019, the applicant was without work rights and had to cease his employment at [Company 1]. Since that time he has been financially supported by friends.

18. Since his visa was cancelled, the applicant has suffered a serious decline in his mental health, seeing a psychologist between mid-2019 and mid-2020. Since he lost his employment, he has been volunteering at [Organisation 1] and [Organisation 2]. His manager at [Organisation 2], [a named person], has written a letter of support stating that his contribution to the work of [Organisation 2] is well respected and he was one of the very few volunteers issued an Essential Worker permit during Melbourne’s long lockdown. [The manager] describes the applicant as a reliable, conscientious volunteer who has become a valuable member of the team, actively contributing to the service.

19. He currently lives in Melbourne in a shared house with five friends. He played [sport] with [a] Club until it disbanded due to COVID-19, and now fills in for other teams. There are a great many letters of support for the applicant before the Tribunal from diverse sources including his former employers, the charities for whom he volunteers as well as friends and community members. His counsellor, [a named person] reports that he received his certificate qualifying him as an [Occupation 1] on the same day as his visa was cancelled, ending his right to work in Australia. All of the many people who have provided letters of support for the applicant emphasise his contribution to the Australian community and his desire to help others.

20. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant acknowledged that he may have been included in [Mr C]’s earlier visa application in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.

21. 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.

22. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2012 and approximately nine years have elapsed since then.

23. 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.

24. Any contribution made by the holder to the community: This matter has been addressed under the hearing ‘The present circumstances of the visa holder’.

    Other factors to be considered

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

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

26. 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.

27. 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.

28. 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.

29. 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

30. 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. I note that the applicant has provided the Tribunal with copies of his Australian travel documents, which contain visas issued by the Islamic Republic of Pakistan for his travels to that country in each of 2014 and 2018.

    Well-founded fear of persecution

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

32. In assessing those claims I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute and departmental records show that he has been resident in Australia since May 2010. I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019. I have also had regard to the large amount of country information submitted by the applicant’s legal representative in the submission dated 12 May 2021.

    The applicant’s personal background

33. The applicant’s family originates from the Jaghori district of Ghazni province, although the applicant was born in Quetta after his family fled to Pakistan and he has never been to Afghanistan. His parents and siblings remain living in Quetta, Pakistan. The applicant has no close family members remaining in Afghanistan and DFAT indicates that returnees to Afghanistan from western countries almost exclusively return to Kabul.[2] In these circumstances I find that if the applicant were returned to Afghanistan he would likely return to Kabul.

    Hazara ethnicity and Shia religion

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

34. 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.

35. 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.

36. 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.

37. 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.

1. 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.

2. 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

3. 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 reported in its annual report for 2018 that ‘UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, 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) June 2020 at 5.8.2.

4. 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.

5. 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.

6. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements commonly targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents. 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.

7. 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.

8. 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.

9. 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 terrorist 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.

10. 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.

11. 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.

12. 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 12 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).

13. 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]

14. 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).

15. 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.

16. 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).

17. 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;

18. 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

19. I note the delegate who assessed the applicant’s claims for protection in 2010 found him to be an Afghan Hazara from the Jaghori district of Ghazni province, Afghanistan. The delegate cited country information about the situation in Ghazni province at the time, finding the applicant had a well-founded fear of persecution there at that time. I note the applicant has never actually been to Afghanistan as his family left before he was born and he has no known relatives remaining 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.

20. 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.

1. 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 arising out of his profile as a Hazara Shia who has been resident in a western country for an extended period.

   State protection

2. 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. 

3. 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.

4. 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.

5. 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 never lived in Afghanistan and has no known family members remaining in his home area of Ghazni province. 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.

6. 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.

7. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant’s parents and siblings remain living in Pakistan and the applicant has been unable to travel to visit them since his visa was cancelled. Should the applicant’s visa remain cancelled, his citizenship application will necessarily be refused.

   EXERCISE OF DISCRETION

100.   Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa.  In particular I give significant weight to the following matters:

·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2012, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as an unaccompanied Afghan national of minor age, Hazara ethnicity and Shia religion;

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

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

·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather he has completed a number of qualifications in his efforts to obtain employment, including a four year apprenticeship to become a fully qualified [Occupation 1]. He has undertaken significant volunteering efforts in the Australian community since losing his work rights and the many people who have provided letters of support for the applicant emphasis his contribution to the Australian community and his desire to help others. He is also the main source of financial support for his family in Quetta, Pakistan.

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

CONCLUSIONS

102.   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

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

Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

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

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

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

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

(A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

(f)      requiring the holder:

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

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

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

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

(b)     otherwise—14 days.

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

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

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

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

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

108Decision about non‑compliance

The Minister is to:

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

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

109Cancellation of visa if information incorrect

(1)The Minister, after:

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

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

(c)      having regard to any prescribed circumstances;

may cancel the visa.

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

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

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