1917948 (Refugee) - [2021] AATA 3022

1917948 (Refugee) [2021] AATA 3022 (18 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917948
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:F. Simmons
DATE:18 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 June 2021 at 4:51pm
CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Afghanistan– incorrect information provided in protection application – applicant had previously applied for refugee status under a different name – applicant comes from a culture with different naming practices – member of the Hazara Shia minority – Hazara Shia who has returned to Afghanistan from the west – decision under review set aside

LEGISLATION
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Act 1958, ss 101,102,103, 107, 109, 438
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Ibrahim v MHA [2019] FCAFC 89
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Tribunal
The Tribunal has before it the Departmental file in relation to the cancellation of the applicant’s protection visa[1] and the Departmental file in relation to his application for a protection visa.[2] The Tribunal also has access to the Tribunal file in relation to the application for review of the Departmental decision to refuse to grant the applicant a protection visa.[3]
[1] [File number deleted].
[2] [File number deleted].
[3] Tribunal case no. 1215016.
The Department’s file contains a certificate dated 19 July 2019 placing restrictions on some of the material given to the Tribunal by the Department under s.438 of the Act. Relevantly, this certificate states the disclosure of the information contained on folios 1–5 of file number [would] be contrary to the public interest as these folios contain documents and information that would disclose lawful methods for preventing, detecting and investigating breaches of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal is satisfied that the s.438 certificate identifies a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was disclosed to the applicant in the Notice of Intention to Consider Cancellation (NOICC).
Background
The applicant arrived in Australia on [date] April 2012 as an unauthorised maritime arrival and identified himself as [Name 1] (DOB [date]). The applicant declared that his father [name deleted] (DOB [date]) and mother were deceased, he had no close relatives in Australia and had never applied for any visa before. He also claimed he and his family fled from Afghanistan when he was a child and they lived illegally in Iran as Afghan refugees for most of his life. He declared that he had a brother, [Mr A], who lived in Iran. He claimed that he feared harm and discrimination by the Taliban and Pashtun people in Afghan for being a Shia Hazara. He provided an Afghan taskera in support of this application. The protection visa was granted to the applicant on the basis he satisfied the Tribunal of his claimed identity and he engaged Australia’s protection obligations under the Refugees Convention.
On 15 May 2019 the Department sent the applicant a notice of intention to cancel his visa. The Department alleged that the applicant gave incorrect information in his protection visa application about the names he had been known by, his family composition, close relatives in Australia, and a previous visa application. The Department suspected the applicant of providing incorrect information because a forensic facial image comparison report indicated that the applicant is the same person as [Name 2] (DOB [date]). This indicates that the applicant had previously applied for a Global Special Humanitarian Subclass 202 visa in 2010 as a secondary applicant, proposed by his claimed father [Mr B] (DOB [date]) who was an Australian permanent resident, and declared a different family composition. The NOICC stated that departmental records indicated that his claimed father was in Australia on [date] July 2012 when the applicant lodged his protection visa application.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, 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?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) as the delegate considered that the following information provided in the Form 866 – Application for a Protection (Class XA) visa is incorrect:
·     At question 2 of Part B of Form 866 the applicant was asked whether any person named in Question 1 previously applied for refugee status or a Protection visa from the Department? He answered no.
The delegate considered this information was incorrect because a forensic facial image comparison conducted by the Department indicted that [Name 1] (DOB [date]) and [Name 2] (DOB [date]) are the same person. The applicant was included as a secondary applicant for a Global Special Humanitarian (Subclass 202) visa under the name of [Name 2] ([date]). The delegate therefore considered that the applicant had previously applied for refugee status under the name of [Name 2] ([date]) on [date] July 2010.
·     At question 3 of Part B of form 866, Has any person in question 1 previously made any other type of application to the department? The applicant answered: No.
The delegate considered that this information was incorrect because a forensic facial image comparison conducted by the Department indicated that [Name 1] (DOB [date]) and [Name 2] (DOB [date]) represent the same person. The applicant was included as a secondary applicant for a GSH (Subclass 202) visa under the name of [Name 2] ([date]). The delegate considered that the applicant had previously applied for a visa under the name of [Name 2] (DOB [date]) on [date] July 2010.
·     At question 12 of Part B, Do any of the persons included in this application and named in question 1 have close relatives who are in Australia at the time of application? The applicant answered: No.
The delegate considered this is incorrect because a forensic facial image comparison conducted by the Department indicated that [Name 1] (DOB [date]) and [Name 2] (DOB [date]) represent the same person. The applicant was included as a secondary applicant for a GSH (Subclass 202) visa under the name of [Name 2] ([date]). This application was lodged on [date] July 2010 and was proposed by [Mr B] (DOB [date]), the applicant’s claimed father and an Australian permanent resident. The delegate considered [Mr B] to be a close relative of the applicant who was in Australia on [date] July 2012, at the time the applicant lodged his application for the protection visa.
·     At question 4 of part C, What other names have you been known by? The applicant answered: NIL.
The delegate considered this is incorrect because a forensic facial image comparison conducted by the Department indicated that [Name 1] (DOB [date]) and [Name 2] (DOB [date]) represent the same person. The delegate considered that the applicant was included as a secondary applicant for a GSH (Subclass 202) visa under the name of [Name 2] ([date]). The applicant previously applied to the Department and has been known by the name of [Name 2] ([date]).
Response to the NOICC
In a statutory declaration dated 12 June 2019 the applicant did not directly address whether he agrees that there was non-compliance. He maintains that he is [Alias of Name 2]. He claims his paternal grandfather’s name was [name] and, when he arrived in Australia, he chose [Name 1’s last name] as a surname out of respect for his grandfather. He says he had Iranian Afghan Temporary Residence cards with the allocated family name [Name 3], but it was not a real family name. [Name 2’s last name] is not his family name, and he never used it himself, but he understood from the NOICC that his paternal cousin had used [Name 2’s last name] with his photo to include him in the Subclass 202 (split family) application. He claims that [Mr B] is his cousin, not his father.
The applicant apologises for failing to provide a full list of his relatives in Australia to the authorities when he was at Christmas Island. He explains he thought it would be better for him not to mention his cousin [Mr B] as he didn’t want to make trouble for him. He has several cousins in Australia. He did not know that he and his brother had been mentioned in the Subclass 202 application as [Mr B]’s children, though he knew [Mr B] had wanted to bring them to Australia. His paternal cousin [Mr B] wanted to help them as he and his siblings grew up as orphans and [Mr B] wanted to be a father-like figure for them.
The applicant provided a list of relatives in Australia, stating all were his cousins, including [Mr B] (the sponsor of the GSH visa application). He declared:
These relatives were not present in my life before coming to Australia as I grew up in Iran. I don’t recollect meeting [Mr B] or his family growing up. But after arriving in Australia, I lived in Melbourne for 2 years and I got to know him there….
The applicant stated that his mother died when he was approximately [age] years old and his father died when he was about [age] years old. He and his brother [Mr A] grew up with their older half-brother [Mr C] and older half-sister [Ms D] in Iran. The applicant stated:
….As regards my previous inclusion as a secondary applicant in the [Name 2’s last name] family, I think my paternal cousin [Mr B] especially wanted to help [Mr A] and I as we had grown up as orphans. As I indicated above, I was not aware that he had indicated we were sons. I guess he wanted to be a father-like figure for us and was willing to take on a parental style role…
The applicant further stated he was born in the Persian year [year] and advised the Department of this upon his arrival onshore. He was allocated the date of birth [date], which was subsequently changed to [date]. A correct calculation would have been [date].
The applicant declares he provided a bogus taskera ([number deleted]) as part of his protection visa application. He declares that “This [Taskera]was procured in Pakistan. It is not a genuinely issued taskera, but my age and place of origin thereon are my real age and place of origin”. He obtained an Afghan Taskera document with serial number [in] 2007 after he was deported from Iran to Afghanistan. He believes this Taskera is a genuinely issued taskera but it incorrectly stated he was [age] years old. When en-route through Pakistan to Christmas Island, Australia, he tried to have the taskera corrected in Pakistan and obtained a [taskera]. At the same time, he dropped “[middle name of Name 2]” from his name.
The applicant claims that he was deported twice from Iran to Afghanistan, and his life was at risk in Afghanistan. He grew up in a refugee community without parents and absorbed the culture which included a lack of care for paperwork and no trust in government authority. He was not trying to conceal his origins but was trying to better his opportunity for a new life.
The delegate’s decision
The delegate was satisfied that the applicant provided an incorrect answer to question 4 of Part C of the Form 866 (having been known by another name) because in his NOICC response he stated he had been known by the name of [Name 3] when he was residing in Iran as a refugee and he had been known by the name of [Name 2] for purposes of his inclusion in the offshore Humanitarian visa application in 2010. The delegate also referred to the fact that the applicant dropped the name ““[middle name of Name 2]” when obtaining his bogus taskera in Pakistan and provided his name as [Name 1] when he arrived in Australia, rather than [Name 4]. The delegate also considered that the applicant provided incorrect information in response to questions in his protection visa application (whether he had previously applied for refugee status or a protection visa or whether he had previously made any other type of application for a visa) because he failed to disclose that he applied for a Global Special Humanitarian visa on [date] July 2010 in the name of [Name 2].
The delegate found that there was no non-compliance with respect to the applicant’s response to the question about whether he had any close relatives in Australia. The delegate accepted the applicant’s explanation that [Mr B] is not his father, they are cousins, and cousins do not fall within the definition of ‘close relative’.
APPLICATION FOR REVIEW
Evidence before the Tribunal
The application for review was accompanied by a copy of the delegate’s decision, a translated copy of a taskera purportedly issued to the applicant in 2007, and the statutory declaration he had provided to the Department in response to the NOICC. Before the hearing the applicant provided a statutory declaration dated 21 January 2021, which included photographs taken of the applicant and his brother in Iran in around 2006 and 2007 and photographs of the applicant playing [sport] with [a] team, which is a [sport] team for young Afghan [men].
The applicant appeared before the Tribunal on 24 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Where relevant the evidence of the applicant is discussed below. In evidence to the Tribunal on 25 February 2021, [Mr B] expanded on the information he provided in a statutory declaration sworn on 23 February 2021. The applicant also requested that the Tribunal take telephone evidence from a paternal cousin but having heard from the applicant and [Mr B], the Tribunal considered it unnecessary to seek further evidence from this witness.
Nationality, race, religion and family composition
The applicant has consistently claimed to be of Hazara ethnicity and Shia faith and that he is an Afghan citizen who was born in Afghanistan. In its most recent report on Afghanistan, which was published in 2019, the Department of Foreign Affairs and Trade (DFAT) noted:
The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
The applicant participated in the Departmental and Tribunal interviews with the assistance of interpreters in the Hazaragi and Dari languages. His facial features identify him as being of Hazara ethnicity and he speaks Hazaragi, as well as Dari. The applicant’s claim to be of Hazara ethnicity was not questioned at any stage of the protection visa assessment process or by the delegate who cancelled the visa and it is supported by the evidence before the Tribunal, which includes the Departmental file and Tribunal files relating to the protection visa assessment process.
The Tribunal accepts that the applicant is a Hazara and a Shia. Hazaras generally originate in Afghanistan but systematic discrimination and targeted violence have led to decades of persecution and displacement. In this context, the Tribunal has considered the applicant’s claim that he was born in Afghanistan to parents of Afghan nationality and that as a young child he left Afghanistan and travelled to Iran. The following report provides context about the complexities that can arise when members of the Afghan Hazara ethnic minority group seek to establish their identity for the purpose of applying for asylum in Australia:
The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan they are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.
At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.
Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.
The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.
Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents. It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[4]
[4] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, no. 8, April 2018, Kristian Hollins p.4.

In the Tribunal’s opinion, the applicant’s narrative about his nationality and place of birth has been consistent over time. He has consistently stated that he was born in [Village 1], in Ghazni province in Afghanistan. He was around [age] years old when his father passed away. His mother has passed away a few years earlier. He could not recall his mother but thought she died in Iran. The applicant has no recollections of Afghanistan as a child because he grew up in Iran. After his mother and father passed away, he lived in Iran with his stepsister and stepbrother. His biological brother has been in [Country 1] for six to seven years. His stepsister and his stepbrother [live] in Afghanistan. His stepbrother is about [age] years older than him. The applicant attended about [number] years of school in Iran and when he was growing up his stepsiblings worked and supported him. When he grew up he started working in the construction industry. In Australia he works as a [Occupation 1] for a named company. He sometimes provides financial support to his brother in [Country 1] and his stepsiblings in Afghanistan. When he was in Afghanistan his brother was still in Iran but his brother later came to live in Pakistan before travelling to [Country 1]. His stepsister and brother came to Afghanistan after he was deported from Iran.
Before he came to Australia, the applicant had lived in Iran and, briefly, in Pakistan and Afghanistan. In response to the NOICC, the applicant claimed that he was deported twice from Iran to Afghanistan and that he omitted to mention the first occasion that he was deported in his application for protection visa. When he was deported the first time he went back to Iran; the second time he didn’t go back to Iran and he came to Australia via Pakistan. The first time he was deported in 2007 he stayed in Afghanistan for a couple of months and because of the situation he could not support himself. When he was deported from Afghanistan he was sent to Herat and from there he travelled to Kabul where he lived in [an] area of west Kabul. On the second occasion he went from Afghanistan to Pakistan and he didn’t return to Iran. The applicant previously had an Iranian temporary residence card with the family name [Name 3] but that expired. [Name 3] was not his real family name. At the time the GSH application was made he thought he was living in Iran, but he didn’t remember exactly. He may have seen [Mr B] a couple of times when he was a child, but he didn’t have any recollection of him. When he lived in Iran [Mr B] used to support them. He knew the offshore GSH application was made but claimed not to know it stated he was the son of [Mr B].
In a statutory declaration sworn on 23 February 2021 and in oral evidence to the Tribunal, [Mr B] declares that he arrived at Christmas Island from Afghanistan in about May 2009 and was recognised as a refugee in August 2009. He declares that [Name 1] is his cousin and the son of his uncle and gave evidence that was corroborative of the applicant’s evidence to the Tribunal about his nationality and identity. [Mr B] gave evidence he had five children, but that he had initially told the Australian Government he had seven children. [Mr B] had included his two cousins, the applicant and his brother, in the GSH application. As his oldest child is also called [Mr A] he changed the name of his son to [a new name]. His father and [Alias of Name 2]’s father were brothers. [Mr B] took his surname from his father and the applicant took his surname [from] his grandfather. He did not know the applicant’s exact age.
[Mr B] and the applicant gave generally consistent information about the applicant’s family history. However, [Mr B] noted that the applicant believes that their mother passed away in Iran. [Mr B], who gave evidence the family lived together with the applicant’s family in Afghanistan before the applicant’s father and his children travelled to Iran, clarified that the applicant’s mother passed in Afghanistan and said that the applicant was too young to remember. At that time the applicant’s mother passed away [Mr B]’s family and the applicant’s family were living together in Afghanistan. After the applicant’s mother passed away his father decided to take the family to Iran. [Alias of Name 2] and his brother were born in [Village 1] ; [the applicant] was almost [age] and [Mr A] was almost [age] years old when they left Afghanistan. The applicant’s mother had four children, the two eldest from the first husband and two youngest from his uncle. The first two children were [Ms D] and [Mr C] and he estimated that they were around [ages] at the time the applicant’s father married the applicant’s mother.
Consideration of claims and evidence
The applicant’s name, previous visa application, family composition
The applicant does not dispute that he is the same person who was included as a dependent in the offshore humanitarian visa in 2010. A forensic facial image comparison conducted by the Department identified that [Name 1] (DOB [date]) and [Name 2] (DOB [date]) may represent the same person and the Tribunal accepts that they are. The Tribunal finds that the applicant was included as a secondary applicant for a Global Special Humanitarian (Subclass 202) visa under the name of [Name 2] ([date]). The Tribunal finds that the applicant did not disclose he had previously applied for a visa in his protection visa application form.
The applicant’s evidence is that his name is [Name 4] and that he was born in [year] in Afghanistan. It is his evidence that his full given name was [Alias of Name 2]and that he assumed the name [his grandfather’s last name] when he arrived in Australia and has used it ever since. He concedes that he is not [Name 2] and that the date of birth provided in the GSH application is not correct. The applicant has stated that he was not sure of his exact birth date and he was born in [year]. When he sought asylum in Australia his date of birth was recorded as [date] which was then changed to [date]. In a statutory declaration in response to the NOICC he suggests that the correct date would have been [date], which is consistent with the year recorded in the taskera provided to the Tribunal. The Tribunal accepts that the applicant is not sure of his exact date of birth.
In the cancellation decision, the delegate found that there was no non-compliance with respect to the applicant’s response to the question “Do any of the persons included in this application... have close relatives who are in Australia at the time of application?”
The Tribunal had the benefit of hearing from [Mr B] and the applicant. The Tribunal accepts as the delegate did, that the applicant and [Mr B] are cousins and that [Mr B] is not the applicant’s father. The Tribunal considers that [Mr B] provided a credible account of his relationship to the applicant and the reasons that he tried to sponsor two children who were part of his extended family to Australia. The Tribunal notes that the delegate’s decision records that in March 2015 in a later immigration application, [Mr B] (the sponsor of the offshore Humanitarian application) conceded he previously named [Name 2] as his son when in fact, he was the child of his uncle. The Tribunal accepts that [Mr B]’s actions in providing false information in the GSH visa application were underpinned by the desire to provide a better, safer life for his extended relatives. The Tribunal accepts that [Mr B] is not the applicant’s father but that he is part of the applicant’s extended family. The Tribunal gives weight to [Mr B]’s evidence in assessing the applicant’s evidence about his nationality and identity.
The applicant has declared taskera [number], which he provided to the Department with his protection visa application, is a bogus document that he obtained in Pakistan. However, he submits that the taskera he gave to the Australian authorities in [2019] after his visa was cancelled is a genuine taskera. He claims he didn’t have taskera number [at] the time he arrived in Australia and gave evidence that at this time it was lost. Asked where he found it, he stated that his stepsiblings had a copy. The applicant told the Tribunal that he could not recall whether he got the taskera number [on] the first occasion or the second occasion he was in Afghanistan, although he suggested it was probably the second occasion. When he arrived in Afghanistan, he obtained the taskera because it was very common for people to question people from Iran because of their accent so he wanted to prove his identity. He got the second one because he didn’t have the first one in his possession and he advised that it was necessary to have a second taskera. When asked whether there were any other reasons that he obtained a second taskera, he did not refer to the reasons given in his statutory declaration (he wanted to correct his age).
After the hearing the applicant sought and was granted an opportunity to have his taskera verified. On 5 May 2021 the applicant provided documentation which appears to be from the National Statistics and Information Authority (NSIA). The translations of these documents indicate that the applicant lodged a verification form with NSIA. The translation states his identity was verified on 29/03/2021 and suggests that an application for a taskera in absentia is in progress. The verification form records his full name as [Name 4], his father’s name as [name], his grandfather’s name as [name] and his place of birth as [Village 1], Afghanistan. His date of birth is recorded as [date].
Country information confirms the taskera, a one-page official identity certificate issued by the NSIA, is the primary form of identification for Afghan citizens. Document fraud is a major issue in Afghanistan, and this is particularly problematic in the case of taskeras.[5] In 2019 DFAT reported that while it was hoped that the issuance of new e-taskeras (launched officially in May 2018) should help mitigate the risk of document fraud as new e-NIC has international security features, however the rollout continues to have issues, while corruption and bribery still invalidate the trustworthiness of identity documents and fraud remains a major issue in Afghanistan. According to DFAT, genuine documents can be issued based on false information, with support forms of documentation such as school, academic or banker records easily forged.
[5] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.54.
NSIA replaced the Afghan Central Civil Registration Authority (ACCRA) in 2020 as the authority responsible for issuing and verifying taskeras.[6] Taskeras are now obtained through an online application. Throughout 2019 and 2020, Afghan citizens had the data from their paper taskeras entered into a computerised system. In 2020, a new national digital system for identity verification was created by the NSIA however the NSIA website does not have any visible information on the digital identification verification process. Adding to the uncertainty, the Afghan embassy in Canberra does not mention the new procedure through NSIA. Instead the website sets the former procedure for verifying taskeras through ACCRA.[7]
[6] Department of Home Affairs, COISS, ‘Afghan identity Documents (Tazkira Taskira Taskera)’ 20210415145526 (27 April 2021) p.2.
[7] <VERIFICATION OF IDENTITY | CONSULAR AFFAIRS (mfa.af)>
A statement released by NSIA regarding the ceasing of the document verification process for paper taskeras read:
Paper tazkira issued and processed to Afghan citizens under the civil registration law is a valid document and does not require any verification.
National Statistics and Information Authority (NSIA) has stopped the paper tazkira verification services as of January 11, 2021, and does not conduct any verification of the paper tazkira.[8]
[8] ‘NSIA Announcement on Stopping Paper Tazkira (NID) Verification Services’, National Statistics and Information Authority (Afghanistan), 9 January 2021, 20210215115445
This statement suggests that the paper taskeras are treated as valid without verification.[9] It would therefore appear possible that the applicant has been able to upload his paper taskira from 2007 on the online form on the NSIA website to initiate the application for a taskera in absentia. However, the taskera itself has not been verified but has been treated as a valid.
[9] Paper ID cards validated without government verification', Afghanistan Times, 11 January 2021.
The Tribunal found some aspects of the applicant’s evidence to be vague and fragmented. The applicant omitted to mention that he was deported to Afghanistan in 2007 in his protection visa application. In oral evidence the applicant was unable to provide any meaningful details about when or where he acquired the 2007 taskera. The applicant claims he provided the bogus taskera to the Australian authorities rather than the taskera he had previously obtained in Afghanistan because the taskera he obtained in Afghanistan was not in his possession at that time. However, he could not recall whether he obtained a taskera on the first or second occasion he was in Afghanistan and the reasons he gave to the Tribunal about why he obtained a second taskera (he was not in possession of the first one) were different to the reasons he gave in his statutory declaration about why he obtained a statutory declaration, in which he states he was not happy that his age was incorrectly recorded on the first taskera.
The Tribunal has had regard to the country information about taskeras, including country information that suggests the verification process of paper taskeras may have ceased and that paper taskiras are now treated as valid without verification and that the credibility of Afghan identity documents is low.[10] However, the applicant has conceded a previous taskera provided with his protection visa application was not genuine, and the copy of the 2007 taskera that has been provided to the Tribunal is of poor quality.[11] In the circumstances, the Tribunal does not consider the second taskera the applicant has produced can be considered reliable evidence in supporting his claims about his identity and therefore has not treated this documentation as determinative in reaching its conclusions.
[10] 'Afghanistan: Tazkera, passports and other ID documents', Landinfo, 22 May 2019, p. 22
[11] The Tribunal wrote to the applicant and asked why the taskera verification form provided to the Tribunal in May 2021 refers to the taskera being issued in 2010 whereas the taskera that was provided states that it was issued in 2007. The applicant explained this by providing a statement from an interpreter stating he had misread 1386 and 1389 when he completed the verification request form. The Tribunal accepts that this is a possible explanation. The applicant has not submitted an absentee taskera.
The applicant has consistently claimed that he is an Afghan national and a member of the Hazara Shia minority. In assessing the applicant’s evidence, the Tribunal is mindful that the applicant comes from a culture with different naming practices, where dates of birth have little significance and where it is common for people not to know their exact date of birth. The Tribunal acknowledges that the applicant’s evidence is that he has lived most of his life in Iran as a refugee and that Afghan Hazaras may face difficulty obtaining formal identity documents. Afghan citizens follow a liberal approach to personal names and how they are chosen; the use and primacy of a first name is the most observed convention in Afghanistan and family names or second names are commonly regarded as a less important than first names.[12]The Tribunal acknowledges the difficulties Afghan asylum seekers face when required to complete forms in the English language which require dates of birth, a first name, and surname which may not exist in their culture. The Tribunal also accepts that many protection visa applicants are given poor advice by agents or members of their own community who seek to assist them to obtain favourable migration outcomes.
[12] ‘The Structure of Afghan Names’, Megerdoomian, K, 2009, The Mitre Corporation, p. 1
The applicant’s evidence about his nationality was supported by [Mr B] and is consistent with his evidence about his family connections and social activities in Australia. There is no information before the Tribunal that would support a conclusion that he is a national of any other country and the NOICC does not allege he provided incorrect information with respect to his country of nationality. As noted above, the Tribunal considers that [Mr B] was also able to provide information about the early years of the applicant’s life in Afghanistan. The Tribunal considers the evidence of [Mr B] supports the applicant’s claims that he is Afghan national who has lived most of his life in Iran and gives the evidence of [Mr B] weight. The Tribunal accepts, based on the evidence before it, and in the absence of any evidence to the contrary, that the applicant is an Afghan national and a member of the Hazara Shia minority.
Conclusion on non-compliance
Pursuant to ss.101 and 102, non-citizens must fill in or complete their application forms and passenger cards in such a way that all questions are answered, and no incorrect answers are given or provided. Section 100 makes it clear that for the purposes of Subdivision C, an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect.
The Tribunal has considered the non-compliance described in the notice, the applicant’s response in writing and all the evidence before the Tribunal. On the basis of this evidence and the concessions made by the applicant, the Tribunal finds that the applicant provided incorrect information in his protection visa application when he failed to disclose that he previously applied for a GSH visa and instead responded no, when asked whether he had ever made any type of application to the Department. Therefore, the Tribunal finds the answers given to question 3 in part B of the form 866 is incorrect for the purposes of s.101 because he was included in the GSH application.
The Tribunal finds that the applicant provided incorrect information in his protection visa application when he failed to disclose he had made a previous application for a GSH visa for Australia under a different identity known as [Name 2], with a different date of birth ([date]). The Tribunal finds that the applicant has provided incorrect information in his protection visa application about whether he has previously been known by another name and whether he had previously applied for a visa for Australia.
On the basis of the applicant’s concessions and the above findings, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice in respect of his name and his failure to provide correct information about his previous visa application.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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 circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.

While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3)’s ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The Tribunal finds that the correct information is that the applicant is [Name 4]. The Tribunal accepts that the applicant is of the Hazara ethnicity and Shia Muslim religion and considers it significant that these matters have never been in dispute.
The Tribunal finds that the correct information is that the applicant was included in an application for a GSH (Subclass 202) visa under a different name – [Name 2], with a different date of birth ([date]). This application was made by his cousin [Mr B] [in] July 2010. The applicant therefore provided incorrect information in the Form 866 - Application for a Protection (Class XA) visa in relation to having previously been known by another name and previously having applied for a visa for Australia.
The Tribunal accepts that after arriving in Australia the applicant adopted a surname, [name], because he did not have one. Country information about Afghan naming conventions indicates that Afghans traditionally use only a first name and generally lack a surname. 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. The Tribunal accepts that since arriving in Australia the applicant has persisted in his use of the surname [name] and that he now considers his full name to be [Name 4].
The content of the genuine document (if any)
This prescribed circumstance is not relevant in this case because the s.107 notice relied on s.101, not s.103, which relates to the provision of bogus documents. In response to the NOICC, the applicant has admitted that the taskera provided to the Department was a false document that he obtained in Pakistan. However, because the notice only relied on the provision of incorrect information under s.109 it is not a relevant consideration.
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 a protection visa in 2013 because the Tribunal (differently constituted) concluded that there was a real chance that he would face persecution in Afghanistan because of his Hazara race and his Shia religion. The Tribunal, differently constituted, considered the applicant’s evidence and accepted:
… the essence of the applicant’s claims, that is, that there is a real chance that if he were to return to Afghanistan now or in the reasonably foreseeable future the applicant will suffer harm at the hands of the Taliban or other extremists on the roads in Afghanistan.
The delegate acknowledged that the grant of the protection visa was partially based on the applicant’s claim to be an Afghan refugee, of Hazara ethnicity, with a fear of significant harm occurring due to his race and religion. The delegate noted that it was also partially based on details provided by the applicant about his familial ancestry, immigration history and claimed identity, including the provision of a taskera in the name of [Name 1]. The delegate considered that had the correct information been known when the visa holder was assessed for the visa, this would have prompted further checks of the familial links of the applicants and the previous visa applications, not only to determine the applicant’s correct identity but to assess his true situation in his home country and place of habitual residence.
The Tribunal found that the Taliban and other extremists hold entrenched anti-Hazara and anti-Shia views and that the applicant’s Hazara ethnicity and Shia religion would be the essential and significant reason for the feared persecution. As the decision to grant the visa was based on the assessment that the applicant was an Afghan national and a member of the Hazara Shia minority and the NOICC does not assert that these are matters which are incorrect, the Tribunal gives this factor weight in favour of the applicant.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant arrived in Australia as an irregular maritime arrival in April 2012 and subsequently applied for a protection visa [in] July 2012. He provided incorrect answers in his protection visa application by declaring he had not previously applied for an Australian visa and not been known by any other name. He gave evidence that he grew up in a refugee community without parents and absorbed the culture which included a lack of care for paperwork and no trust in government authority. He claimed he was not trying to conceal his origins but was trying to better his opportunity for a new life. In evidence to the Tribunal the applicant conceded that he was aware that the GSH application was being made but he did not know what information was provided on his behalf. He followed the advice of others with respect to what information he should provide in his protection visa application form.
The applicant’s representative argues that the applicant is a person of limited education and his failure to disclose the previous application and the previous names by which he has been known reflects confusion on his part about what he had to disclose rather than a deliberate effort to hide his identity. It was submitted the non-compliance should be understood in the context of his experiences of a young man who had been living in Iran as a refugee and who had, upon arrival in Australia, chosen a family name that referred to his grandfather as a gesture to his lineage. However, as the delegate notes, that the applicant did not provide the correct information to the Department until he was issued the notice of intention to cancel the visa and at that time, he also disclosed he had relied on a bogus document.
Taking all of this into account, the Tribunal gives the applicant’s explanation of the circumstances of the non-compliance little weight against the cancellation of the visa.
The present circumstances of the visa holder
The Tribunal accepts that the applicant is working in the Australian community as a [Occupation 1]. He was previously engaged to be married but is currently single. He provides financial support to stepsiblings in Afghanistan and he provides support to his brother in [Country 1]. He plays [sport] and participates in [sport events] held in the Afghani community. The Tribunal gives this factor some weight against the cancellation of the visa.
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 did not come forward of his own accord to correct the information, and only conceded the non-compliance during this cancellation process. The Tribunal gives this factor a little weight in favour of cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister
In addition to non-compliance with s.101(b), in response to the NOICC the applicant declared that he provided a bogus document to the Department. He declared the taskera document, [number], used in his protection visa application, was fraudulently obtained in Pakistan. There are no other instances of non-compliance by the visa holder known to the Tribunal. The Tribunal gives this some weight in favour of the cancellation of the visa.
The time that has elapsed since the non-compliance
The applicant was granted a protection visa in 2013 and has been living here and has been well integrated in the community for over eight years. The Tribunal gives this factor significant weight against the cancelling of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence the applicant has breached the law since the non-compliance. This is a factor that weighs against the cancellation of the visa.
Any contribution made by the holder to the community
The applicant was granted a protection visa in 2013 and has been living here and has been well integrated in the community for over eight years. He plays [sport], works and supports family members living abroad. The Tribunal gives this factor weight against the cancellation of the visa.
Other relevant considerations
Mandatory legal consequences
The Tribunal is required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether, upon cancellation, a person would become an unlawful non-citizen.
If the applicant’s visa is cancelled, s.46A of the Act will prevent the applicant from making a visa application except with the authorisation of the Minister. As a result, the applicant will be unable to apply for a bridging visa or protection visa. In these circumstances, the consequence of the cancellation would be that the applicant would be liable to detention under s.189 of the Act.
Under s.198(5) of the Act, the applicant would be removed from Australia as soon as practicable. Under s.197C(1), Australia’s non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations: s.197C(2). It had been held that indefinite detention may not result, because of the version of s 197C then in force, which provided that non-refoulement obligations were irrelevant to duty to remove the unlawful non-citizens under s 198.[13] In AJL20 v Commonwealth of Australia[14] the Federal Court found the ongoing immigration detention of the applicant in this case was unlawful because he had not been removed from Australia as soon as reasonably practicable as required by s 198 (in circumstances where the removal may have been inconsistent with Australia’s non-refoulement obligations but there were no ongoing immigration matters).[15]
[13] See DMH16 v MIBP [2017] FCA 448, at [30]; NKWF v MIBP [2018] FCA 409, at [41]–[43]; AQM18 v MIBP [2019] FCAFC 27, at [17], [25], [28], [119]–[120].
[14] [2020] FCA 1305
[15] AJL20 v Commonwealth of Australia [2020] FCA 1305, [121]-[123].The Commonwealth appealed the judgment in AJL20 and the High Court’s judgment is reserved.
The question of whether s 197C and 198 required the removal of an unlawful non-citizen from Australia as soon practicable regardless of whether Australia had non-refoulement obligations was addressed by Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). According to the Explanatory Memorandum, this Act intends to:
· modify the effect of s.197C to not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless:
o   the decision finding that the non-citizen engages protection obligations has been set aside;
o   the Minister is satisfied that the non-citizen no longer engages protection obligations;
o   or the non-citizen requests voluntary removal; and
·    ensure that, in assessing a protection visa application, protection obligations are always assessed. [16]
[16] Revised Explanatory Memorandum to Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p.4. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021, which commenced on 25 May 2021, amends s 197C to clarify that Australia’s non-refoulement obligations do have relevance to the removal of unlawful non-citizens under s 198 (Revised EM, Item 2). It also inserted s 36A, which requires protection obligations to be considered in determining a protection visa application, before considering other criteria or whether the visa grant is prevented by any other provision, and without regard to exclusion provisions on character and security grounds.
As a result of these amendments the duty to remove the applicant under s 198(5) ‘should not be enlivened where to do so would breach non-refoulement obligations’.[17]As noted above, the applicant as an unlawful non-citizen the applicant will be subject to mandatory immigration detention. As the Minister's statutory powers to grant the applicant a visa(s.195A of the Act) or move a non-citizen into ‘community detention’ (s.197AB of the Act) are non-compellable and discretionary, it is uncertain whether the applicant would be granted a visa or that he would be eligible for community detention. Therefore, if the applicant were not removed pursuant to s 198(5), the consequence of the cancellation is that he would be deprived of his liberty and exposed to the prospect of ongoing and possibly indefinite detention.
[17]Ibid.
The mandatory consequences of cancellation weigh in favour of not cancelling the visa.
Whether there would be consequential cancellations under s.140
There is no suggestion that another person holds a visa in Australia as a family member of the applicant. This factor is not relevant in this case.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international obligations, family unity principles, best interests of the child
The Tribunal has considered whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights (the ICCPR) and its Second Optional Protocol (the Optional Protocol to the ICCPR).
The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.[18] In the absence of specific guidance on whether the Tribunal’s consideration of non-refoulement obligations should address whether the applicant meets the definition of refugee in article 1A(2) of the Refugees Convention or the codified definition of refugee in s.5H of the Act, the Tribunal considers the preferable approach is to consider whether the applicant comes within article 1A(2) of the Refugees Convention.
[18] Section 5(1), Migration Act 1958 (Cth).
Australia is a party to the Refugees Convention and generally speaking, has protection 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.
The Department’s 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.
This policy indicates that a detailed international obligations assessment is to be undertaken where there are indications that cancelling a visa may engage Australia’s non-refoulement obligations before making the decision to cancel the visa. Notwithstanding this policy, the Department has not undertaken an International Treaties Obligation Assessment in relation to the cancellation of the applicant’s protection visa.
Country of nationality
The Tribunal finds that the applicant is a citizen of Afghanistan and has assessed his claims against that country. As an Afghan national, the Tribunal is satisfied that the applicant has no right to enter or reside in Iran.[19]
Claims to have a well-founded fear of persecution
[19] DFAT Country Information Report - Iran, 14 April 2020.
Before the Department, he submitted that if the visa is cancelled, he has a well-founded fear of persecution in Afghanistan on the basis of his Hazara ethnicity and Shia religion and also as a person who has spent most of his adult life in Iran, and has now lived in the west. He told the Tribunal he believed if he was removed to Afghanistan, he would face violence or lose his life.
The Tribunal finds the applicant is a national of Afghanistan of the Hazara ethnicity and the Shia religion. The Tribunal accepts that if he is removed to Afghanistan the applicant will be identifiable as a Hazara Shia from his physical appearance and his language, Hazaragi. The Tribunal is satisfied that the applicant is from the village of [Village 1] [Ghazni] province. The applicant left Afghanistan when he was very young. On the evidence before it, the Tribunal accepts that the applicant has only spent short periods of time in Kabul as an adult. The Tribunal accepts the applicant’s evidence that he encountered discrimination in Kabul and that he was unable to secure employment to support himself.
For the reasons that follow, the Tribunal finds that the applicant faces a real chance being persecuted if he is removed from Australia to Afghanistan for reasons of his Hazara ethnicity and Shia Muslim faith.
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.[20] With peace talks stalled after the US decision to withdraw troops by September 11, the Taliban have stepped up attacks, leaving the ANDSF limited resources to provide security across the country. The Taliban sees the announcement as a violation of the February 2020 Doha agreement and have ‘refused to attend any summits until all foreign forces were pulled out of Afghanistan’.[21] Since the announcement by President Biden, that troops would not be withdrawn by the 1 May deadline, the Taliban have launched major assaults across the country.[22]
[20] ‘U.S.-backed Afghan peace conference in Turkey postponed over Taliban no-show -sources’, Hamid Shalizi, Reuters, 21 April 2021; ‘Taliban to Biden: Violation of Doha Deal Will Prolong Violence’, Syed Zabiullah Langari, Tolo News, 26 March 2021.
[22] ‘US warplanes help Afghan forces fend off Taliban offensive’, Dawn (Pakistan), 06 May 2021, ‘Taliban capture northern Afghan district amid surge in violence’, Reuters, 06 May 2021; ‘Taliban launches major Afghan offensive after deadline for U.S. pullout’, Reuters, 05 May; ‘20 Soldiers, 180 Taliban’ Killed in Fresh Spate of Violence: MoD’, Khaled Nikzad, Tolo News, 05 May 2021; ‘Hundreds die in surge of violence in Afghanistan’, Hamid Shalizi, Orooj Hakimi, Reuters, 30 April 2021.

In Kabul there has been a sharp rise in enemy attacks, targeted killings and crime.[23] With the Taliban reportedly in its strongest position since 2001, some fear that if the Taliban tries to re-establish an Islamic Emirate, it will lead to ‘a humanitarian catastrophe of a colossal scale.’[24] In Australia, members of the Hazara community fear that a resurgent Taliban will intensify attacks against the Hazara community.[25] In April 2021, the New York Times reported:
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.”
During their five years in power, 1996 to 2001, the Taliban operated one of the world’s most oppressive and theocratic regimes, and there is little in their public posture and behavior during the group’s years of insurgency to suggest that much has changed, at least ideologically ….
…. During the Taliban era, there was widespread persecution, and even massacres, of minority communities like the Hazara, an ethnic group that is mostly Shiite in a country where Sunnis predominate. Today’s Taliban, overwhelmingly Pashtun as before, single out the Hazara for mistreatment when they capture them at roadblocks, persecute them in their makeshift prisons, and have given no indication that they will protect minority rights in a government under their control.[26]
[23] ‘Mapping the Afghan war, while murky, points to Taliban gains’, Jon Gambrell, Associated Press(AP), 2 May 2021; ‘State Department orders some U.S. government employees out of Kabul’, Reuters, 28 April 2021; ‘In Kabul’s Streets, Dogs Rule the Night’, Fatima Faizi and Thomas Gibbons-Neff, New York Times, 21 March 2021; ‘51 People Killed in Kabul Security, Crime Incidents in A Month’, Khaled Nikzad, Tolo News, 19 February 2021.
[24]‘Mapping the Afghan war, while murky, points to Taliban gains’, Jon Gambrell, Associated Press(AP), 2 May 2021; ‘Biden Officials Place Hope in Taliban’s Desire for Legitimacy and Money’, New York Times, The, 23 April 2021; ‘‘‘We Will Not Abandon Afghanistan’’’, Susanne Koelbl, Der Spiegel Also Spiegel online) - Germany, 10 May 2021 3; ‘Afghanistan withdrawal will increase terror threat to Australia’, Oved Lobel, Strategist, The (Australian Strategic Policy Institute), 14 May 2021; ‘As US troops withdraw, what next for war and peace in Afghanistan?’, Kate Clark , Afghanistan Analysts Network, 1 May 2021, 20210506121427; ‘Taliban’s Islamic Emirate Awaits Afghanistan’, Salman Rafi Sheikh, Asia Sentinel, 20 April 2021; ‘After America: Inside the Taliban’s New Emirate’, Fazelminallah Qazizai Chris Sands, Newlines Magazine, 14 April 2021; ‘I Met a Taliban Leader and Lost Hope for My Country’, Farahnaz Forotan, New York Times, The, 21 April 2021.
[25]
On 19 May 2021, Emeritus Professor William Maley warned that the situation in Afghanistan is extraordinarily fluid and that there is no part of Afghanistan that is safe for Hazara Shias. In Professor Maley’s opinion the US agreement with the Taliban was by no measure a ‘peace agreement’, but a withdrawal agreement, creating an incentive for the Taliban to increase violent attacks within Afghanistan. Professor Maley observes that the months that followed the agreement saw an increase in violence, that had led to a “hugely-heightened risk of instability in Afghanistan, and hugely-heightened risk for Hazaras”.[27]
[27] On the return of Hazaras to Afghanistan, Professor William Maley AM, 19 May 2021.
In February 2020, the UN stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[28] Following the fall of the Taliban, Hazaras experienced significant social and economic improvements, albeit from a very low base.[29] However, in February 2021, the New York Times reported:
Under the Taliban’s rule, thousands of Hazaras were massacred in pogroms. But since the American invasion in 2001 toppled the Taliban government, Hazaras have carved out thriving communities, businesses, schools and mosques in western Kabul and in Hazarajat, in the highlands of central Afghanistan.
Yet the targeted violence hasn’t stopped.
In recent years, hundreds have died in attacks on tutoring centers, mosques, hospitals, voting sites and even a wrestling club. More than 80 people perished in a double suicide bombing at a Hazara protest in Kabul in 2016. At least 31 died in a suicide bombing in a Hazara area during a 2018 celebration for Nowruz, the Persian New Year. Most of these attacks have been claimed by Sunni Muslim extremists of the Islamic State, who consider Shiites apostates and heretics.
What progress has been made by the ethnic minority is threatened by such attacks, and now a possible return of the Taliban to government. As recently as 2018, Hazara civilians were killed and forced from their homes during a Taliban offensive in Hazarajat.[30]
[28] ‘Afghanistan Protection of civilians in armed conflict first quarter report – 1 JANUARY – 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020.
[29] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, p. 25.
[30] >
The applicant has lived in Iran for his entire adult life except for a brief period in Kabul. During that period, he did not establish himself socially. He tried to find a job but he was not accepted and he was treated badly. He does not have any family in Kabul. Because he had grown up in Iran he was discriminated against because his accent was different. He is a Hazara and he is afraid of being killed or facing violence if he is removed to Afghanistan.
The applicant would be readily identifiable as a Hazara and a returnee from the west. 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 and coalition forces and they have been targeted by anti-Shia elements for these reasons.[31] Ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan[32] and the applicant would be in a particularly vulnerable position because of his lack of local knowledge and connections and his status as a returnee from the west.[33]
[31] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7–3.16.
[32] Ibid, p. 24.
[33] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 30 August 2018, pp. 36-37
Credible sources indicate that Hazaras are at elevated risk of targeting on the road networks in Afghanistan due to their ethnicity.[34] Kidnapping and abductions by Anti-Government Elements (AGE) occur regularly, ‘particularly on Afghanistan’s highly insecure road network’.[35] Hazaras travelling to and from the Hazarajat by road face an increased risk of kidnapping and abduction; [36] the main road connecting Kabul to Hazarajat is called ‘the road of death.’[37] Hazaras have been taken hostage, abducted, and beheaded[38] and roads in areas with large Hazara populations also suffer from improvised explosive device attacks.[39]
[34]DFAT Country Information Report Afghanistan 27 June 2019., pp. 21-22.
[35] Ibid, p. 21. ‘On Afghan Highways, Even the Police Fear the Taliban’s Toll Collectors’, David Zucchino and Fahim Abed, The New York Times, 1 November 2020; ‘Security Force Members Escape from Taliban Custody in Zabul’, Tolo News, 11 October 2020; ‘Taliban Executes Female Prison Guard, and U.N. Raises Concern Over Afghan Violence’, Mujib Mashal and Najim Rahim, The New York Times, 27 July 2020; ‘Customs staffs on strike over growing insecurity across Islam Qala-Herat highway’, Kabul Now, 6 July 2020.
[36] ‘The 116,550sq km (45,000sq miles) region of highlands and pastures [in central Afghanistan] where Hazaras have traditionally lived’: ‘What peace means for Afghanistan’s Hazara people’, Bismellah Alizada, Aljazeera, 18 September 2019; ‘Taliban kidnap 28 civilians in Maidan Wardak’, Afghanistan Times, 25 November 2020; ‘Taliban kidnap 28 Hazara travelers in Afghanistan’, La Prensa, 25 November 2020.
[37] ‘What peace means for Afghanistan’s Hazara people’, Bismellah Alizada, Aljazeera, 18 September 2019; ‘Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government’, Hazara People, 1 February 2019, p.27.
[38] ‘Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government’, Hazara People, 1 February 2019.
[39] ‘Landmines still kill and maim in Afghanistan’, Afghanistan Times, 1 October 2020; ‘Blast in Daikundi Kills 14 Civilians: Interior Ministry’, Tolo News, 29 September 2020; ‘21 dead and wounded in fresh wave of Taliban violence’, Kabul Now, 30 September 2020.
The most recent DFAT report characterises the security situation in Afghanistan as complex, dangerous and fluid. With respect to the risks facing Hazaras, DFAT advises that the risk classification of ‘people associated with the government or international community’ and ‘Shias’, which is ‘high risk’, apply to Hazaras because ‘Hazara are widely perceived to be supporters of the government’ and ‘the overwhelming majority of Hazara are Shia (or are widely perceived to be)’.[40] DFAT assesses that Shias face a high risk of being targeted by Islamic State in Khorasan Province (ISK) and other militant groups based on their religious affiliation when assembling in large and identifiable groups and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[41] Other sources indicate that the Taliban and ISK especially target Hazaras,[42] and suggest that Hazaras are targeted because of their Shia religion and perceived closeness and support to the Afghan Government and Iran.[43]
[40] ‘DFAT Country Information Report - Afghanistan’, DFAT, 27 June 2019, p. 26.
[41] Ibid at 3.29–3.35.
[42] ‘BTI 2020 Country Report Afghanistan’, Bertelsmann Stiftung, 29 April 2020, p. 29; ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.
[43] ‘Country Guidance: Afghanistan’ European Asylum Support Office (EASO), June 2019, p. 69.
Sustained targeting of civilians of Shia Islamic faith, most of whom are ethnic Hazaras, continued throughout 2019,[44] 2020[45] and 2021.[46] On 8 May 2021 an unclaimed attack on a school saw at least 90 killed,[47] mainly schools girls, when explosions struck a high school in the Dasht-e-Barchi area of west Kabul, which is home to a large community of Shia Hazaras.[48] As religion, ethnicity and political allegiance remain linked, it is not always possible to distinguish between religion and ethnicity as the primary element behind certain incidents or tensions.[49] However, a report published by the Finnish Immigration Service (FIS) in October 2019 found “Hazaras are generally more at risk from ISIS [Islamic State of Iraq and Syria] and the Taliban than other groups, because of both their ethnicity and religion (Shia Islam)” and that sectarian attacks against Shia and Hazara communities in Kabul have increased in the last three years.[50]
[44] ‘Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)’, United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 8.
[45] ‘Afghanistan Protection of civilians in armed conflict first quarter report – 1 JANUARY – 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020, p. 4; ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.
[46] See, e.g., ‘Taliban behead five soldiers in Maidan Wardak and kill four civilians in Ghor’, Kabul Now, 22 April 2021; ‘7 factory workers gunned down in Nangarhar’, Yousaf zarifi, Pajhwok Afghan News -Afghanistan, 04 March 2021.
[47] ‘Afghan police say Kabul mosque bombing kills 12 worshippers’, TAMEEM AKHGAR, Associated Press (AP), 15 May 2021; ‘Bombing Outside Afghan School Kills at Least 90, With Girls as Targets’, Thomas Gibbons-Neff and Najim Rahim, New York Times, 8 May 2021.
[48] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021.
[49] ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 30 August 2018, pp. 61–62.
[50] ‘Afghanistan: Fact-Finding Mission to Kabul in April 2019 - Situation of Returnees in Kabul’, Finnish Immigration Service, 15 October 2019, p. 23.
On 12 May 2020, gunmen entered a maternity hospital in Dasht-e-Barchi and killed 24 people.[51] While no group claimed responsibility, the attack has been attributed to ISK.[52] In August and September, Hazara populated areas were repeatedly attacked by the Taliban.[53] The Taliban has also targeted both Hazaras and Shias in general.[54] In October 2020 a massive suicide bombing outside an educational centre in a mainly Hazara Shia area of West Kabul, which killed 30 people and injured more than 70, mostly children and young adults, was described by Human Rights Watch as ‘the latest attack cruelly targeting the Hazara Shia minority’. [55]
Future risk of harm to the applicant
[51] ‘Babies among 24 killed as gunmen attack maternity ward in Kabul’, Aljazeera, 13 May 2020.
[52] Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce’, Stefanie Glinski, Foreign Policy, 14 May 2020.
[53] ‘Taliban kill 10 security forces in Daikundi and Urozgan’, Kabul Now, 16 August 2020; ‘More than 30 security forces killed in Daikundi in a month’, Afghanistan Times, 8 August 2020; ‘14 Taliban fighters killed in Ghazni clash, bombing’, Saifullah Maftoon, Pajhwok Afghan News – Afghanistan, 7 September 2020; “35 Taliban Killed” in Clashes with Security Forces: Officials’, Tolo News, 27 September 2020; ‘Additional Forces Deployed in Ghazni’, Mohammad Haroon Alim, Khaama Press, 7 September 2020.
[54] ‘The case of Mawlawi Mehdi and Balkhab District: Are the Taleban attracting Hazaras?’, Thomas Ruttig, Afghanistan Analysts Network, 23 May 2020, p. 1.
[55] ‘Afghanistan School Bombing Targets Minority Community’, Patricia Gossman, Human Rights Watch, 26 October 2020; ‘The false inclusivity of the Taliban’s emirate’, Mehdi J Hakimi, Aljazeera, 26 October 2020.
For the reasons set out above, the Tribunal finds that the applicant is of Hazara ethnicity and Shia religion. While he was born in [Village 1] in Ghazni province he was last resident in Kabul. If he is removed from Australia to Afghanistan the Tribunal finds he will return to Kabul.[56] Given the risk of travelling on roads – particularly for Hazaras and western returnees – the Tribunal is satisfied that there is a real chance that the applicant will face persecution throughout Afghanistan. Based on the country information, the Tribunal is satisfied there is a real chance the applicant’s life would be threatened and he would be persecuted for the essential and significant reasons of his Hazara race, Shia religion and imputed political opinion if he were returned to Afghanistan.
[56] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, p. 51 (noting returnees from western countries almost exclusively return to Kabul).
The harm that the applicant fears from anti-Shia militant groups is from non-state agents. 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. The government has implemented increased security measures to prepare for attacks against the Shia community, especially in Kabul but these offer little protection against targeted attacks during large religious or cultural gatherings.[57] Afghan media report that the Shia community consider that government protection from AGE is inadequate.[58] Large-scale attacks in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens. The ability of the Afghan national police to provide and maintain security and law and order remains limited, particularly outside major cities, and its overall capacity is constrained by a number of factors, including lack of resources, poor training and leadership, low morale and high levels of corruption. The COVID-19 pandemic has compounded these difficulties.
[57] ‘Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)’, United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 48; ‘Afghanistan School Bombing Targets Minority Community’,
[58] ‘Afghanistan 2019 International Religious Freedom Report’, US Department of State, 10 June 2020, p. 1, 8.
Even before the withdrawal of US and NATO troops from Afghanistan and the sharp deterioration in the security situation, DFAT reported that the ongoing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country.[59] In 2018 the UNHCR assessed that individuals who belong to one of Afghanistan’s minority ethnic groups, such as Hazaras, may, depending on the individual circumstances of the case, be in need of international refugee protection and noted the general inability of the state to protect these individuals.[60] The Southeast Asian Terrorism Portal noted that in February 2021 the United Nations Assistance Mission in Afghanistan (UNAMA) reported that civilian fatalities increased in every quarter through 2020, before observing that ‘the high but unrealistic hopes that were raised by some in the aftermath of the much-talked-about Doha deal have more or less yielded to an enveloping gloom’.[61]
[59] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, pp. 21–22.
[60] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018.
[61] Terrorism Assessment, Afghanistan Southeast Asian
The Tribunal finds 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.[62]
[62] MIMA v Respondents S152/2003 (2004) 222 CLR 1.
The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and the political opinion that would be imputed to him by anti-Shia militants because he would be readily identified as a Hazara Shia who has returned to Afghanistan from the west. The fact that the applicant has only lived in Afghanistan for short periods of time and does not have established support networks in that country will only serve to elevate the high risk that he would face serious harm if removed to that country. It is also clear that the applicant would suffer significant hardship if returned to Afghanistan, where the already dire security conditions are deteriorating.

The Tribunal finds that the applicant is a refugee as that term is defined by Article 1A(2) of the Refugees Convention and if he were to be removed from Australia this would breach Australia’s non-refoulement obligations.
Conclusion

100. The Tribunal has carefully considered the factors that weigh for and against the cancellation of the visa. In the Tribunal’s judgment, the factors against cancelling outweigh those in favor of cancelling. In reaching this conclusion the Tribunal has considered the nature of the non-compliance and the circumstances in which the non-compliance occurred. The Tribunal acknowledges that the applicant gave incorrect information about his name and immigration history in his protection visa application. While the applicant has conceded that he did not provide correct information about his immigration history, the Tribunal is troubled by the discrepancies and omissions in aspects of the applicant’s narrative, including about how he obtained identity documentation. However, the Tribunal accepts, based on the available evidence, that the applicant is an Afghan national of Hazara ethnicity and the Shi’a religion.
101. Having considered the current country information, the Tribunal has concluded that there is a real chance of persecution on return to Afghanistan if he is removed to Afghanistan now or in the reasonably foreseeable future. The factors that weigh in favour cancellation do not outweigh Australia’s non-refoulement obligations. The applicant faces a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara ethnicity, Shia religion and his imputed political opinion. He has previously lived as a refugee in Iran where Hazara Afghan refugees face high levels of discrimination and the risk of arbitrary arrest and deportation. The Tribunal accepts that, as a member of an ethnic and religious minority group of Hazara Shias, the applicant has a well-founded fear of persecution throughout Afghanistan. He is a refugee and his removal from Australia to Afghanistan would be in breach of Australia’s non-refoulement obligations.
102. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
CONCLUSION
103. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
104. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Frances Simmons
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.