1917136 (Refugee)

[2020] AATA 3856

1917136 (Refugee) [2020] AATA 3856 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917136

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:7 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 07 September 2020 at 10:58am

CATCHWORDS

REFUGEE – cancellation – Subclass 790 (Safe Haven Enterprise Visa) visa – Afghanistan – incorrect information provided in protection application – Afghan naming conventions – lack of official records – Hazara ethnicity – Shia religion – ethnicity and religion are not in dispute – applicant has contributed to the community through his volunteer work – applicant continues to face a real chance of persecution – decision under review set aside

LEGISLATION

Migration Act 1958, ss 107, 109, 425

Migration Regulations 1994, Schedule 2

CASES

MIAC v Khadgi (2010) 190 FCR 248

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

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 Immigration to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she considered the applicant had given incorrect information in his Safe Haven Enterprise Visa application (the SHEV). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent. In addition to the material on the Departmental file, further submissions and documents were provided to the Tribunal on 17 July, 28 August and 1 September 2020 in the context of the review.

4. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s.425(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

5. The applicant is a young male who arrived in Australia by boat [in] March 2013 and sought protection, identifying himself as a citizen of Afghanistan of Hazara ethnicity. On the basis of information provided in his visa application, he was granted the SHEV on 6 January 2017.

6. On 2 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 she was considering the cancellation of his protection visa on the ground that she considered he had given incorrect information in his visa application. 

7. In summary, the s.107 notice sets out the following:

   ·In his protection visa application, the applicant identified himself as [Name 1] born [Date 1] in [Parwan] Province, Afghanistan. He gave an alternative date of birth as [Date 2] (questions 6, 14 and 15);

   ·He ticked ‘no’ in response to a question asking him if he had ever been known by another name (question 9);

   ·In response to a question asking if he had ever had an Australian immigration visa refused or cancelled, he answered no (question 64);

   ·In response to a question asking if he had ever applied for an Australian visa outside of Australia, he answered no (question 66).

   ·The Department conducted a Facial Image Comparison Report dated 7 November 2018 comparing images of the applicant taken on arrival in Australia to images from an application for an offshore humanitarian visa lodged on 10 February 2009 in respect of [Name 2] born [Date 3]. The Forensic Facial Image Examiner concluded that the images of [Name 1] and [Name 2] were of the same person;

   ·The offshore humanitarian visa lodged by [Name 2] stated he was residing with his elderly uncle and had not heard from his immediate family since they went missing while travelling between Kabul and Peshawar [in] February 2006. The sponsor was his sister, [Ms A] born [date]. The visa application was refused on 15 July 2009;

   ·[Name 2] also lodged a remaining relative visa application in December 2010. The sponsor was his sister [Ms A] born [date]. He claimed his parents and [siblings] went missing between Peshawar and Afghanistan in 2006 and are presumed dead. The visa application was refused on 22 September 2011;

   ·[Name 1] arrived in Australia [in] March 2013 and was granted the SHEV on 6 January 2017.

8. The s.107 notice goes on to identify the following information in the SHEV application that is now said to be incorrect:

   ·It is considered the applicant gave incorrect information at question 6 about his name, because the two earlier visa applications indicate his correct name is [Name 2];

   ·It is considered the applicant gave incorrect information at question 9 about whether he had ever been known by any other name, because it appears he has been known by the name [Name 2];

   ·It is considered the applicant gave incorrect information at questions 14 and 15 about his date of birth, because [Name 2]’s date of birth is [Date 3];

   ·It is considered the applicant gave incorrect information at questions 64 and 66 about his previous visa applications, because [Name 2] applied for an offshore humanitarian visa and a remaining relative visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. The notice sets out in some detail the information given by or on behalf of the applicant in the SHEV application that is now said to be incorrect, as well as the basis on which that information is now said to be incorrect. The Tribunal is satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

12. The Tribunal is 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?

13. 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.

14. The s.107 notice invited the applicant to comment on the information contained in the notice. The applicant responded to the s.107 notice by way of documents and submissions provided to the delegate on 27 May 2019.

15. In essence the applicant conceded that he had also been known as [Name 2] (also spelled [variation of Name 2]), although he maintains that his correct name is [Name 1]. The applicant states that he is uncertain as to his exact date of birth, which is generally not officially recorded or celebrated in Afghan culture but to the best of his knowledge, based on information provided by his family, it is [Date 2]. The applicant did not dispute that he was included in the 2009 humanitarian visa application and the 2010 remaining relative visa application sponsored by his sister [Ms A] or that he had given incorrect information about his visa history.

16. In his response to the s.107 notice, the applicant states that he was very stressed after the long and dangerous journey by boat and altered some of the information on his protection visa application after being influenced by others. He states he was stressed and worried that that he would be returned to Afghanistan after his father had borrowed a lot of money to give the smuggler to make sure the applicant was safe from persecution as a Hazara Shia. He felt that if he was returned, he would be killed like his uncle. He changed his father’s name to his deceased uncle’s name to make his file stronger and changed the names of his sisters so he would not be connected to his Australian citizen sister.

    The applicant’s visa history

17. The applicant concedes that he was included in the 2009 humanitarian visa application and the 2010 remaining relative visa application under the name of [Name 2] sponsored by his sister [Ms A]. It follows I am satisfied the applicant gave incorrect information about his visa history at questions 64 and 66 of the SHEV.

    The applicant’s name

18. The applicant agrees he has used two names: [Name 1] and [Name 2]. He states that he has not used the name [variation of Name 2] except in the visa applications lodged by his sister in 2009 and 2010 and has not been known by that name in any official way. He says [first name of Name 2] is his nickname in Afghanistan. The applicant was a minor at the time of each of the earlier visa applications sponsored by his sister [Ms A].

19. In a statutory declaration dated 24 May 2019, [Ms A] explains that she included her brother in the earlier visa applications using his nickname [first name of Name 2] because it is very common in her culture that people are known by nicknames different from their official names. She states that she likes the name [first name of Name 2] a lot, having named her son the same name. She states that she used their grandfather’s name [last name of Name 2] in the application because Afghan people don’t have surnames in the way that Western people do, that she was confused about what surname to choose for the form and the lawyer advising her didn’t know either. She states that the family are also known as the [last name of Name 1] family in the Afghan community.

20. Ms [A]’s husband [confirms] her evidence in a statutory declaration made 23 May 2019, stating he and his wife made the earlier visa applications for the applicant under his nickname [first name of Name 2] as they didn’t have any documents from the applicant. The material before me does not suggest that the Department holds any identity documents for the applicant under the name [variation of Name 2], nor that any such documents were submitted with the 2009 and 2010 visa applications.

21. Country information about Afghan naming conventions indicates that Afghans traditionally use only a first name and generally lack a surname, distinguished instead by their tribal affiliation, place of birth, profession or honorific titles. Afghans who have contact with the Western world adopt a surname, generally selecting one that represents a father’s name, their tribal affiliation or an adjective describing a person. In some instances, people may be addressed by their nickname and the first name not used at all.[1]

    [1] Megerdoomian, Karine The Structure of Afghan Names November 2009 at

22. In light of this, I accept the evidence of the applicant, his sister and his brother-in-law to the effect that the applicant’s sister lodged the earlier visa applications using the applicant’s nickname [first name of Name 2]. I accept they failed to understand the importance the Australian legal system would accord the name used in the visa applications, particularly the surname. I further accept the applicant’s sister and brother-in-law did not have any identity documents for the applicant under either name at the time of the 2009 and 2010 visa applications.

23. A Confirmation of Name document from Afghanistan’s Ministry of Internal Affairs, Parwan province, [states] that the applicant is the son of [Mr B] and grandson of [last name of Name 2], known under the clan name [last name of Name 1]. The applicant has also provided his father’s taskera, confirming his father is [Mr B], son of [last name of Name 2] from [Parwan] province. The applicant’s 2009 taskera records his name as [Name 1], while the absentee taskera issued through the Afghan Embassy in Canberra in 2019 records his name as [variation of Name 1], son of [Mr B] and grandson of [Last name of Name 2] (apparently as a result of error by the applicant and his former agent).

24. I accept that both the [last name of Name 1] and [Last name of Name 2] names are associated with the applicant’s family in Afghanistan, even though, like most Afghans, the family lacks an official surname. I accept that in the absence of an official surname, the applicant has chosen to be known in Australia by the family’s clan name ‘[last name of Name 1]’. For these reasons I am not satisfied the applicant gave incorrect information at question 6 of the SHEV application.

25. However as the applicant concedes he was also known by the name [variation of Name 2] in the 2009 and 2010 visa applications, I am satisfied the applicant gave incorrect information when he stated he had not been known by any other name at question 9 of the SHEV application.

    The applicant’s date of birth

26. The applicant provided a taskera with his SHEV application. Under the heading date of birth, that taskera records that as per his physical appearance, he is determined to be [age] years of age in [year] (Afghan calendar), born [year] (Gregorian calendar).

27. In the 2009 and 2010 visa applications, the date of birth of [variation of Name 2] was said to be [Date 3]. In her statutory declaration dated 24 May 2019, [Ms A] explains that the lawyer representing her in the visa applications told her than she needed a date of birth for the applicant, so she estimated the date of birth based on the approximate date he was born.

28. The Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon, and the reporting of dates of birth is unreliable and reported dates are likely to be approximate.[2] I accept the applicant’s evidence that to the best of his knowledge, based on information provided to him by his family, his date of birth is [Date 2]. This is acknowledged to be an approximation given the lack of official records and the fact that the Afghan calendar begins on 21 March leading to confusion over the year. I accept further that his exact date of birth is not officially recorded and [Date 2] is in that sense a nominal date obtained after converting the family’s estimate from the Afghan to the Gregorian calendar.

    [2] DFAT Country Information Report: Afghanistan at 5.49

29. The s.107 notice and the delegate’s decision record that the applicant stated his date of birth was [Date 4] in the SHEV application. That appears to be an error that started out in the s.107 notice and transferred through to the delegate’s decision. The s.107 notice initially states that he gave his date of birth as [Date 1] in the SHEV application and later in the same notice that date is recorded as [Date 4]. While the delegate records that the applicant’s date of birth was recorded as [Date 4] ‘at some stage during the process of assessment of the Safe Haven Enterprise Visa’ the applicant denies that he ever stated [Date 4] was his date of birth and I am unable to find any record of that date in any document contained on the departmental files before me. Rather it is apparent from both the Form 790B and 790C on the departmental file that the applicant stated his date of birth in the SHEV application to be [Date 1] and I consider the references to his date of birth being [Date 4] in the s.107 notice and the delegate’s decision are most likely the result of a typographical error.

30. I accept that in the absence of formal birth records, the Afghan authorities determined him to be [age] years old in 2009 based on his physical appearance when issuing his taskera. I accept that the Australian authorities assign a nominal birth date of 1 January or 31 December to Afghans where the date and month of birth are not known, which is how his date of birth came to be recorded by the Department as [Date 1]. I note the various estimated birth dates for the applicant fall within a relatively narrow timeframe placing his current age at somewhere between [age] and [age] years. I consider the information provided to the applicant by his family about his date of birth is likely the most accurate information available even though it is merely an estimate. I am satisfied it is not possible to obtain any more accurate information.

31. Even though I have found the applicant’s stated date of birth in his visa application is only an estimate obtained after converting the family’s estimate from the Afghan to the Gregorian calendar, I consider it the best available information and I am not satisfied it is incorrect. For these reasons I am not satisfied the applicant gave incorrect information at question 14 of the SHEV application.

    Other incorrect information

32. While not included in the s.107 notice, the delegate’s decision records that the applicant did not disclose his sister’s name in the SHEV and declared his brother-in-law to be a friend rather than a relative. The applicant does not dispute this and his sister [Ms A] states that he did so at her suggestion, because she thought it might link him to the earlier visa refusals and force his return to Afghanistan where he would face persecution.

33. In submissions made to the Tribunal, the applicant also acknowledges that there are inconsistencies in the accounts given of the years during which the family fled Afghanistan, were separated at the border and later reunited, leading the applicant and his sister [Ms A] to be unaware for a period that the rest of the family had survived. In particular the applicant incorrectly stated in the SHEV application that his father was killed in a suicide bomb in 2011, when in fact it was an uncle who was killed. The applicant acknowledges he did so in order to make his application stronger. Nor did the applicant disclose in the SHEV application that he had lived with another uncle in Peshawar between 2006 and 2011.

34. I note the submissions and statements of the applicant and his sister to the effect that the details given for the applicant in the 2009 and 2010 visa applications were provided by his sister [Ms A] acting in his best interests and without his knowledge. I note their evidence that the signed statement provided on behalf of the applicant was neither written nor signed by him and the statutory declarations made by [Ms A] were prepared without the benefit of an interpreter. I accept that the details of the earlier visa applications were not known to the applicant, given he was aged approximately [age] and [age] at the time the applications were made.

35. In considering whether the ground for cancellation is made out, the s.107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised. As the above matters were not particularised in the s.107 notice, they cannot be relied upon to establish the ground for cancellation. In any event, that ground has already been established.

    Conclusion on non-compliance

1. For the reasons set out above, I have found the applicant gave incorrect information in his protection visa at questions 9, 64 and 66 in the manner set out in the s.107 notice. It follows that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

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

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

4. The correct information: For the reasons set out above, I consider the correct information is that the applicant’s name is [Name 1] and he was born on or about [Date 2]. He has also been known by his nickname [first name of Name 2] and was included in two previous visa applications sponsored by his sister [Ms A] under the name of [variation of Name 2] born [Date 3].

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

6. 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 departmental file does not contain a formal decision record relating to the grant of the SHEV and it appears a formal decision was not provided to the applicant. However the reasons for the decision to grant the applicant a SHEV are recorded in a case note dated 6 January 2017 stored in the Department’s case management system.

7. That case note records the applicant was found to be owed protection on the basis of his Hazara race and Shia religion, citing country information about a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban, Daesh and other anti-government elements (AGEs). The case note also records that the applicant may be identified as a member of the particular social group of ‘failed asylum seekers from a western country’. The delegate records that she is satisfied that the applicant’s fear of serious harm for the convention reasons of his race and religion is well-founded across all of Afghanistan and extends to all areas of the receiving country. She was not satisfied the Afghan authorities would be willing or able to provide an appropriate level of protection to the applicant if he is returned to Afghanistan.

8. On that basis, I am satisfied the applicant’s protection visa was granted on the basis he faced a real chance of persecution in Afghanistan for the combined reasons of his Hazara ethnicity and his Shia religion. The applicant’s ethnicity and religion are not in dispute and I am satisfied that the applicant would have been granted the protection visa by the delegate even had the applicant disclosed the earlier visa applications and the discrepancies in his name and date of birth. For these reasons I do not consider the decision to grant the visa was based in any part on the incorrect information.

9. The circumstances in which the non-compliance occurred: The incorrect information was provided by the applicant in his 2016 SHEV application. He gave the incorrect information on the misguided advice of his sister [Ms A], because she was concerned the correct information would link the applicant to the earlier visa refusals and force his return to Afghanistan where he would face persecution. I note the applicant was still very young when he arrived in Australia and a minor at the time of the previous visa applications.

10. I accept that the signed statement provided on behalf of the applicant in support of the 2009 and 2010 visa application was neither written nor signed by him and the statutory declarations made by [Ms A] were prepared without the benefit of the interpreter. I accept that the details of the earlier visa applications were not known to the applicant, given he was aged approximately [age] and [age] at the time the applications were made.

11. The present circumstances of the visa holder: The applicant is [an] [age]-year-old male living with his sister and her family in [Victoria]. He is close to his sister’s [children], aged between [age range]. The applicant is employed as [an occupation] by [Employer 1] and a number of people associated with his employment have provided statements as to his character and the quality of his work.

12. In a letter dated 25 June 2020 his employer [states] that he is a valuable employee whom he trusted to supervise and oversee the work of others. He states it would be a penalty to his business if he could not have the applicant back in his supervisory position and he is looked up to and respected by his employers and is someone who has always shown respect, loyalty and responsibility. Notices of assessment from the Australian Tax Office (ATO) indicate the applicant’s income is assessed by the ATO each year.

13. In a letter dated 6 July 2020 [another employer] states that he employs the applicant [and] the applicant has a very high work ethic and nothing is too difficult for him.

14. The applicant is also active in the Australian Hazara community and the leader of the [Organisation 1], [states] he has known the applicant for more than 5 years and he is hard working and honest. He states the applicant and his sister [Ms A] are active in attending and supporting community events and the applicant is a positive role model for their youth group.

15. The applicant is involved in the activities of [a sports] Club. In a letter dated 16 July 2020 the manager of that club, [states] the applicant has been playing for that team since 2014 and he has been found to be honest, loyal and positive for the team and the [sports] communities around Melbourne. He has been a volunteer with the team since 2014 and has financially supported the club, providing $[amount] to the boys’ team in 2017 and $[amount] to the girls’ team in 2018. He has also been one of the organisers of [a key event] since 2014.

16. Earlier character references submitted in response to the s.107 notice include those from [associates] from[work]. They speak of the applicant’s dedication, hard work and leadership skills.

17. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant admitted to the non-compliance in his response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.

18. 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.

19. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his SHEV application in 2016 and approximately 4 years have elapsed since then.

20. 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.

21. Any contribution made by the holder to the community: As set out above, the applicant has contributed to the community through his volunteer work for [Organisation 1] and the [sports] Club, including by making significant financial donations.

    Other factors to be considered

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

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

23. 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.

24. 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.

25. 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.

26. 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 his 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

27. It is not in dispute that the applicant is to an Afghan national and the cancellation delegate’s decision records that his place of birth ([in] Parwan province) is not in question. The Department has accepted him to be an Afghan national and assessed his claims as a Hazara Shia from Afghanistan. I find he is a citizen of Afghanistan and I have assessed his claims against that country.

    Well-founded fear of persecution

28. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. The applicant’s Hazara ethnicity and Shia religion are not in dispute.

29. In assessing those claims I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.

    The applicant’s personal background

30. The applicant is a male in his [age] who originates from [Parwan] province. He was approximately [age] years old when his family attempted to leave Afghanistan for Peshawar, Pakistan. The applicant has explained that because of the size of the extended family seeking to cross the border, he travelled in his uncle’s vehicle with his uncle’s family. A statement from his father, [Mr B], sets out the circumstances in which the applicant was separated from his immediate family when they fled Afghanistan for Pakistan in 2006, crossing the border into Pakistan with his uncle and his family while the rest of the family were turned back and returned to their village.

31. The applicant’s uncle died in Pakistan and the family remained separated until 2011, when the applicant was reunited with his family at his uncle’s house in Kabul, where his uncle’s widow and children had returned. The applicant’s parents and siblings have since relocated to Kabul. I find that if the applicant were to be returned to Afghanistan, he would return to Kabul where his family now lives.

    The general security situation in Afghanistan

32. The most recent DFAT report 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.[3]

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

33. The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  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 (IEDs) 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.[4]

    [4] Ibid at 2.52 – 2.59

34. DFAT reports that United Nations Assistance Mission in Afghanistan (UNAMA) has documented 32,114 civilian deaths and 59,561 civilian injuries across Afghanistan since 2009, but UNAMA’s stringent methodology for recording conflict-related casualties means the true figures are likely to be higher. Conflict related civilian casualties rose considerably between 2013 and 2014 and have remained high in subsequent years. DFAT reports that of particular concern are the number of casualties from attacks by AGEs deliberately targeting civilians, which increased by 48% in 2018, causing 1,404 deaths and 2,721 injuries.[5] UNAMA documented 271 incidents of conflict-related abductions carried out by AGEs in 2018, affecting 1,857 civilians and resulting in the death of 53 and the injury of 33.[6]

    [5] Ibid at 2.60 – 2.69

    [6] Ibid at 2.75 – 2.80

35. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence.[7]

    [7] DFAT Country Information Report Afghanistan at 2.70 – 2.74

36. The DFAT report is now more than a year old. Other more recent sources note some progress on long awaited peace talks between the Taliban and the Afghan Government currently on foot in Afghanistan. In the lead up to February 2020, the US and the Taliban engaged in talks to reach an agreement allowing for a phased withdrawal of US troops in Afghanistan amid a permanent ceasefire, counter-terrorism assurances from the Taliban and intra-Afghan dialogue. Those talks largely excluded the Afghan government.[8]

    [8] ‘Reintegration of Ex-Combatants: Lessons from the U.S. Experience in Afghanistan’, 19 September 2019, Special Inspector General for Afghanistan Reconstruction, 20191101102841;

37. In February 2020, a deal signed between the US and the Taliban stipulated that the Afghan government would release 5000 Taliban prisoners while the insurgents would free about 1000 Afghan security force personnel ahead of long-awaited peace talks between the Afghan government and the Taliban. Violence across Afghanistan reportedly spiked following the peace deal, leaving record numbers of civilians dead and inflicting heavy casualties on Afghanistan’s security forces. As a result President Ashraf Ghani halted prisoner releases and put his forces back on the offensive. The situation appeared to improve in May 2020 when the Taliban declared an unexpected three day ceasefire over the Eid al-Fitr holiday and both sides began releasing prisoners again.[9]

    [9] >

    In August 2020, the Taliban reportedly stated that it was ready for peace talks with the Afghan government, as the authorities announced the release of hundreds of Taliban militants accused of serious offences following a three-day jirga attended by thousands of prominent Afghans.[10]

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

    As at the time of the Tribunal’s decision, formal peace talks have not commenced. Commentators report that both sides have made their priorities clear – the Afghan Government wants the country to remain a republic with regular elections; while the Taliban wants a country governed by Islamic law. Analysts report that the Taliban has been emboldened by the deal with the US and Afghan officials reported more than 3800 attacks since it was signed in February 2020, killing 420 civilians and wounding 906.[11]

    [11]

38. In May 2020 UNAMA reported rising numbers of civilian casualties in Afghanistan, noting the Taliban were responsible for 208 casualties in April 2020, an increase of 25% on April 2019. UNAMA documented the following major insurgent attacks in May 2020 to include:

    ·An attack on a Kabul hospital on 12 May, targeting its maternity ward, which resulted in at least 24 civilians killed, almost all of whom were female patients;

    ·An Islamic State Khorasan Province (ISKP)-claimed suicide attack at a funeral in Nangarhar on 12 May, which resulted in at least 19 civilians being killed and many more injured;

    ·A Taliban-claimed suicide truck bomb attack on 14 May in downtown Gardez, which injured at least 33 civilians;

    ·An ANSF airstrike in Balkh on 11 May, which killed nine civilians and injured 13 while those civilians were being forced by the Taliban to destroy a road to block ANSF.[12]

    [12] UNAMA Rising Civilian Casualty Numbers Highlight Urgent Need to Halt Fighting and Re-Focus on Peace Negotiations 19 May 2020 at type="1">

    Country information submitted by the applicant reports that in June 2019, a major cross-national study ran ranked 163 states and territories according to their level of peacefulness, concluding that Afghanistan is now the least peaceful country in the world, replacing Syria which is now the second least peaceful.[13]

    [13] Refugee Council Why Hazaras are in danger in Afghanistan 8 April 2020 available at >

    In view of the sources cited above, I consider it too early to conclude that there will be any lasting or durable change to the security situation in Afghanistan in the foreseeable future. Rather I accept DFAT’s assessment that it is dangerous, complex and highly fluid, varying considerably by location.

    The security situation in Kabul

    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.[14]

    [14] ‘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.

    Violent attacks in the city of Kabul against civilians by AGEs have continued during the first half of 2020, including:

    ·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; ISK claimed responsibility for the attacks in both 2019 and 2020;[15]

    ·12 May 2020: gunmen entered a maternity hospital in Dashti 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 ISK;[16]

    ·6 June: 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;[17]

    ·May and June 2020 also saw two attacks on mosques and a bomb attack on a group of journalists;[18]

    ·From 2 July to 12 July 2020, Kabul witnessed 14 IED attacks against government targets in which civilians were also killed and wounded.[19]

    Hazara ethnicity and Shia religion

    [15] ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, New York Times, The, 6 March 2020; ‘Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul’, The Defense Post, 6 March 2020.

    [16] ‘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.

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

    [18] Two killed in bomb attack inside Kabul mosque,3 June 2020; ‘Afghanistan: Two killed in bomb attack inside Kabul mosque’, Aljazeera, 3 June 2020; Deadly blast hits Kabul mosque during Friday prayers – ‘Deadly blast hits Kabul mosque during Friday prayers’, Aljazeera, 13 June 2020.

    [19] ‘Recent Blasts Call Kabul Security Strategy Into Question’, Khalid Nekzad, Tolo News, 12 July 2020.

    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, with the worst recorded massacre in recent history occurring in 1998, when the Taliban massacred at least 2,000 Hazara in Mazar-e-Sharif, leading many Hazara to flee Afghanistan.[20]

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

    DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains, however the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups. DFAT states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’.[21]

    [21] Ibid at 3.7 – 3.16.

    In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[22]

    [22] Ibid at 3.42 – 3.46.

    In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. 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.[23]

    [23] Ibid at 3.29 – 3.35.

    In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP) and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[24] 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.[25]

    [24] Ibid at 3.29 – 3.35.

    [25] >

    In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, have 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.[26]

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

    In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ ISKP against the Shia minority, most of whom also belong to the Hazara ethnic group:

    UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.[27]

    Analysis of the applicant’s claims

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

    For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia he will be returned to Afghanistan where he will reside with his family in Kabul.

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

    ·The security situation in Afghanistan is dangerous, complex and highly fluid. 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;[28]

    ·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;[29]

    ·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 through the first half of 2020 as particularised above;

    ·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;[30]

    ·In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, had 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;[31]

    ·In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul;[32]

    ·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;[33]

    ·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.[34]

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

    [29] DFAT Country Information Report Afghanistan at 3.7 – 3.16.

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

    [32] DFAT Country Information Report Afghanistan 27 June 2019 at 3.29 – 3.35.

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

In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to Kabul, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion.

State protection

In this case, 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. 

As to whether the applicant will receive protection from the Afghan state from the harm that he fears, DFAT indicates 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.[35] 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.[36]

[35] Ibid at 5.1 – 5.4.

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

It follows that I accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion and Hazara ethnicity if he is returned to Kabul, now or in the reasonably foreseeable future.

Relocation

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.[37] 

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

I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practise of the Shia religion and his language, Hazaragi. I have accepted his family currently reside in Kabul. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence, the fact that the applicant left Afghanistan for Pakistan when he was a young child and returned for only a relatively short period of time before travelling to Australia, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.

For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and imputed political opinion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant and his Australian citizen sister [Ms A] have given evidence about the applicant’s relationship to [Ms A]’s family in Australia. I accept that cancellation of the applicant’s visa will cause significant hardship not only to the applicant but also to [Ms A] and her family.

Medical reports dated [May] 2020 and [June] 2020 respectively record that the applicant’s father [Mr B] and sister [were] infected with COVID-19 and quarantined at home in Kabul as at the dates of those reports. In Kabul, the COVID-19 pandemic is reportedly overwhelming the health system and anecdotal reports suggest the city has seen significant rises in the number of deaths as well as an estimated twofold increase of unemployment in Afghanistan, resulting in 60% of manufacturing businesses going bankrupt in Kabul, Herat and Nangarhar provinces.[38]

[38] Kabul Now COVID-19 consequences: ACMA warns of ‘hunger crisis’ in upcoming winter July 2020 available at Coronavirus overwhelms hospitals in war-ravaged Afghanistan Secunder Kermani, BBC News, 30 June 2020 at OF DISCRETION

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

·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2016, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his profile as a young male of Afghan nationality, Hazara ethnicity and Shia religion who had sought asylum in Australia;

·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. On the contrary he is employed full time and his employer and colleagues speak highly of him. He contributes to the community in a variety of other significant ways, including as a volunteer and role model for the Hazara community in Australia through his volunteer [work]. Many of his colleagues and associates in Australia have provided letters of support, speaking highly of his work ethic, leadership skills and loyalty;

·The applicant has a close relationship with his Australian citizen sister [Ms A] and her young family and cancellation of the visa will cause all of them significant hardship.

CONCLUSIONS

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

100.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) 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.