1919414 (Refugee)

[2021] AATA 1461

1919414 (Refugee) [2021] AATA 1461 (5 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919414

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kira Raif

DATE:5 May 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 790 (Safe Haven Enterprise Visa) visa.

Statement made on 5 May 2021 at 1.54 pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Afghanistan – incorrect information – previous Global Special Humanitarian visa application – aliases and different dates of birth – presence of brother in Australia – contribution to society as business owner and employer – Hazara ethnicity – sectarian violence in Afghanistan – claims still relevant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101-109(1), 501, 140, 197C
Migration Regulations 1994, Schedule 2, r 2.41

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 dependants.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan, born [Date 1].  He was granted the Class XE Safe Haven Enterprise visa (SHEV) on 23 January 2017. On 9 May 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC in May 2019 and his visa was cancelled on 9 July 2019. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 5 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

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

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

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

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant arrived on Christmas Island in March 2013 as an illegal marital arrival. He claimed to be a citizen of Afghanistan and made claims that he feared persecution in Afghanistan based on his religion and ethnicity.

10. In June 2016 the applicant made the application for the Class XE Safe Haven Enterprise visa. When making the application, the applicant completed the application form 790B. In that form,

    a.In response to Question 6 whether there are members of the same family unit who are not in Australia at the time of application, the applicant referred to his parents, three siblings and three nieces and nephews. The applicant did not declare any family in Australia.

    b.The applicant gave his name as [Name 1] and in response to Question 9 stated that he was also known by the name of [Name 2].

    c.In response to Question 64 the applicant stated ‘no’ in response to a question whether he had ever had an Australian immigration visa refused or cancelled.

    d.In response to Question 66 the applicant stated ‘no’ in response to a question whether he had ever applied for an Australian visa outside of Australia.

11. The applicant included with the application, as evidence of his identity, the Afghan Tazkera. The applicant was granted the SHEV on 23 January 2017. Following the grant of the visa, the Department conducted a facial examination of the image of the applicant taken upon his arrival and other departmental records and it was found that the applicant’s image was matched with two other identities, [Name 3] (born [Date 2]) and [Name 2] (born [Date 1]). In January 2019 a Forensic Facial Image Examiner concluded that these images represent the same person. The delegate concluded that the applicant was also known as [Name 3], born [Date 2]

12. Departmental records show that the applicant made an application for a Global Special Humanitarian visa in February 2011 as a dependent member of the family unit. In that application the applicant declared a brother [who] was resident in Australia.

13. In his response to the NOICC the applicant concedes that he did not declare a brother in Australia and had stated that he had only been known by the names of [Name 1, 3 Given name] and [Name 2], not declaring the other identity. The applicant also concedes that he stated in his application that he had never applied for, or been refused, an Australian visa.

14. The applicant states that his true identity is [Name 1, 3 Given name] and that is the name he had been known by. The applicant states that the name [Name 3 Surname] is the grandfather’s name, which was adopted by the family when the previous visa application was made and he had never been known by or used that family name. The applicant states that he was [age] years old when the Global Special Humanitarian visa application was made and he could not be considered as a dependent family member, so the family decided to misrepresent his date of birth for him to be assessed as a minor. The applicant states that he gave incorrect answers in the SHEV application on the advice of a people smuggler.

15. In his written submission to the Tribunal of 29 April 2021 the applicant outlined his personal background and referred to his 2011 application for the Global Special Humanitarian visa as a dependent of his sister in law. The applicant described the circumstances that led to his departure from his home country and the circumstances of his protection visa application. The applicant concedes there was non-compliance with s. 101 of the Act.  

16. In oral evidence to the Tribunal the applicant stated that his name is [Name 1, 3 Given name] and he apologised for providing incorrect information about his brother in Australia, stating he was too young and unfamiliar with the Australian laws. The Tribunal does not accept that explanation because the Tribunal does not consider that particular age or knowledge of the laws is required to appreciate that incorrect information should not be given to the Australian authorities. The applicant states that he had no contact with his brother and he acted on advice of others who told him that if he disclosed a brother in Australia, he would not get the visa. The applicant told the Tribunal that he was not aware of the content of the earlier application as it was prepared by his brother and the only incorrect information he gave was about the existence of his brother in Australia.

17. Having regard to the investigation set out in the primary decision record and, in particular, the facial image comparison assessment, as well as the applicant’s own evidence, the Tribunal finds that the applicant had previously used a different identity of [Name 3] to make an application for another visa. The Tribunal finds that the applicant gave an incorrect answer in response to Question 9 of the application form by failing to declare that he had been known by that name. The Tribunal finds that the applicant gave an incorrect answer in response to Question 64 by stating that he had never had an application refused and in response to Question  66 by stating that he had not made an application for another Australian visa. In relation to the applicant’s claim that he was unaware of the earlier application or unfamiliar with its content, the Tribunal notes that under s. 100 of the Act, an answer is incorrect even if the person giving it is unaware that it is incorrect.

18. The Tribunal finds that the applicant filled in the application form in a way that incorrect answers were given. For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s.107 notice.  

    Should the visa be cancelled?

19. 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).

20. 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. Briefly, they are:

    The correct information

21. The correct information is that the applicant had previously declared a different identity (name and date of birth) and that he had previously applied for an Australian visa which was refused. The applicant also confirms in his submission to the Tribunal that he had a brother in Australia.

    The content of the genuine document (if any)

22. This is not relevant in the present case.

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

23. In his submission to the Tribunal the applicant states that the incorrect information had no impact on the decision to grant him the visa and, given his status as a Shia Hazara in Afghanistan, he would have been entitled to the visa. The applicant notes that he had never misrepresented the core aspects of his claim for protection. However, the issue before the Tribunal is not whether the applicant would have been granted the visa, if the correct information was known. The issue is whether the grant of the visa was based, even in part, on incorrect information.

24. The Tribunal is of the view that  a person’s identity is central to any determination to grant the visa. The applicant had previously claimed a different identity which he failed to disclose in his SHEV application. It is possible that if the use of a different identity was known, it could have led to a more thorough assessment of the applicant’s identity and character, particularly for the purpose of s. 501. The previous visa refusal may have also been relevant to the assessment of the applicant’s credibility.

25. The Tribunal is of the view that the decision to grant the visa was based, in part, on incorrect information, whether or not the outcome would have been different if the correct information was known.  

    The circumstances in which the non-compliance occurred

26. The applicant claims that the identity declared in his SHEV application was the correct identity which was based on his genuine tazkera but the previously used identity was incorrect as his family made up a different date of birth, and used a surname he was not generally known by, in order for him to appear as a minor and a dependent member of the family unit. The applicant claims that he did not disclose that information in the SHEV application on advice of a people smuggler.

27. The applicant’s evidence to the Tribunal is that the 2011 application was prepared by his brother and he had no involvement in the preparation of that application and did not know what information was submitted with that application. The applicant clams that his family may have lowered his age so as to make him eligible for the visa. The applicant states that  the only incorrect information he gave in the SHEV was about the presence of his brother in Australia because a people smuggler told him he would not get the visa otherwise.

28. The Tribunal is not convinced that the applicant would be entirely unaware of the existence of the earlier application made in 2011, even if he may not have been familiar with the details. The Tribunal finds that the applicant had knowingly withheld information about the previous visa refusal and that he had deliberately provided incorrect answers on the application form in relation to that application and also in relation to his brother in Australia.

    The present circumstances of the visa holder

29. The applicant states that he has been living overseas, and mostly in Australia, for more than six years and is well settled in this country. The applicant refers to his employment as a sole business trader and states that he helps provide employment to people with limited English. The applicant states that trade workers like him are needed in Australia and he contributes to the community through his employment. The Tribunal accepts that the applicant is settled in Australia and has gainful employment which is beneficial for the community.

30. The applicant states that his wife lives in Pakistan and is unable to be reunited with him in Australia because he cannot sponsor her due to the cancellation of his visa but if his visa is reinstated, she wants to join him in Australia. The applicant explains that he cannot sponsor as a holder of SHEV but he hopes to get a permanent visa eventually on the basis of his employment in regional area and to sponsor his wife.

31. The applicant submits that his wife and mother are dependent on his earnings in Australia as the money he sends is used to cover their living expenses. The applicant submits that if his visa is cancelled, he will be detained or removed from Australia and he would then be unable to support himself and his family, which would place himself and his family into financial stress and considerable hardship. The Tribunal accepts that financial and other hardship may be caused to the applicant if he is unable to remain in Australia and work in Australia.

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

32. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

33. The applicant submits in his evidence to the delegate and the Tribunal that his family had falsified his date of birth in the previous visa application so that  he would appear to be a minor. If that is the case, that would indicate that the applicant completed the previous form in a way that incorrect answers were given and that would be in breach of s. 101 of the Act. The applicant submits that the earlier application was prepared by his family and he was not familiar with its content but even if that was the case, s. 100 would render his answers incorrect and in breach of s. 101 of the Act.

    The time that has elapsed since the non-compliance

34. The application for the SHEV visa was made in June 2016 and nearly five years passed since the non-compliance. The applicant states that during his period of residence in Australia he has integrated into the Australian community. The Tribunal is prepared to accept that evidence.

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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community.

36. The applicant operates a business and had provided in response to the NOICC a number of employment and character references. He states that he is in full-time employment and has little time for other activities. The applicant provided to the Tribunal evidence relating to his employment and business operations and states that his role is important to the state’s ‘recovery plan’ and the economy. The Tribunal accepts that the applicant’s work is well regarded and that he may also contribute to the community through the payment of taxes, as well as providing employment opportunities to others.  

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

    Whether there would be consequential cancellations under s.140

38. There are no persons who would be subject to the consequential cancellation.

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

39. There are no children in Australia who would be affected by the cancellation.

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

40. The Tribunal has considered whether Australia’s non-refoulment obligations arise in this case. Other than CROC, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

41. The applicant states that he has no right to enter and live in Pakistan and he states that when he visited Pakistan secretly for his marriage, he was almost killed. The applicant claims that he is a Shia Hazara from the Jaghori district of the Ghazni province in Afghanistan and he refers to the increased Taliban attacks on Shia Hazaras in his home district. The applicant also claims that he may be harmed because he had spent a lengthy period in a western country. The applicant states that the situation in Afghanistan is unsafe everywhere and will worsen with the withdrawal of foreign troops. The applicant states that there are many killings and nobody is held accountable.

1. The applicant was granted the SHEV on the basis of his claim of being a Hazara in Afghanistan. It is significant, in the Tribunal’s view, that the veracity of this aspect of the applicant’s claims has not been questioned. The applicant claims before this Tribunal that the situation for Hazaras remains unsafe and that he would be subjected to harm, if returned to Afghanistan. The applicant also submits that it is unsafe to travel in Afghanistan and people are killed on the roads.

2. The Tribunal accepts that the applicant is a Hazara and had identified as a Shi'a Muslim before coming to Australia. The Tribunal has had regard to country information concerning the situation of the Hazaras in Afghanistan.

3. In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi'a targets. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.

4. In its 2018 Annual Report on Protection of Civilians in Armed Conflict, the United Nations Assistance Mission in Afghanistan (UNAMA) provided the following information:

   [ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.

5. In 2018, UNAMA documented high levels of sectarian-motivated violence by Daesh/ISKP against the Shi'a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi'a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern 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.'

6. DFAT's Thematic Report on Hazaras in Afghanistan stated:

   The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road… DFAT assesses that Hazara face a greater risk than other ethnic groups of being targeted for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, particularly while travelling to or from the Hazarajat. In addition, economic and employment opportunities may be more limited in the Hazarajat than in other parts of the country.

7. In its June 2019 report, DFAT reiterated these views:

   Insecurity compounds the poor condition of Afghanistan's limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common…

8. In-country sources have advised that ethnic targeting can play a role in the selection of victims once an abduction is in progress, and that Hazara are particularly at risk in this regard. DFAT assesses that while abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped.

9. Having regard to this information, as well as the earlier assessment of the applicant’s claims that resulted in him being granted the SHEV, the Tribunal has formed the view for the purpose of the present review only, that the applicant faces a real chance of being subjected to serious harm in Afghanistan. The obligation not to refoule a refugee is contained in Article 33(1) of the Refugees Convention. Thus, the Tribunal finds that Australia may be in breach of its international obligations under the Refugees Convention if the applicant was removed to Afghanistan as a consequence of the cancellation of his visa.

10. However, it is important to note that the cancelation of the applicant's visa in itself would not be in breach of any of Australia's non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia. An applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is 'irrelevant' to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person 'as soon as reasonably practicable.' However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements. For that reason, the Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations, because Australia will comply with the above agreements.

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

11. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. In his submission to the Tribunal the applicant refers to indefinite or long term detention, as there may not be the possibility of his removal to Afghanistan. The Tribunal acknowledges that if the applicant is not granted another visa, he may be subject to lengthy detention, although the Tribunal is mindful that the applicant may be eligible to apply for a Bridging visa. The applicant will have very limited options to make visa applicants onshore and would be subject to an exclusion period in relation to some visas if he makes an application offshore.

12. The applicant claims in his response to the NOICC that the cancellation of the visa would cause him great psychological stress and may lead to indefinite detention or forcible removal to Afghanistan. The applicant refers to various authorities on the effect of lengthy detention. However, the Tribunal has formed the view that  there is very little likelihood of an indefinite  detention if the applicant is assessed as being owed protection obligations or if he is granted a Bridging visa.

13. The applicant refers to the hardship that would be caused to him by lengthy or indefinite detention and the hardship to his family who rely on him financially. These matters have been addressed above. The applicant states that the cancellation of the visa would affect him mentally and would affect his memory. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if his visa is cancelled.

14. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that  the applicant had not complied with s. 101 of the Act and that there are grounds for cancelling his visa.

15. The Tribunal has formed the view that the decision to grant the visa was based, in part, on incorrect information because the applicant’s identity would have been relevant to the assessment of his claims and the previous visa refusal may have been relevant to the assessment of the applicant’s credibility. The fact that the decision to grant the visa was based, in part, on incorrect information is a significant factor, in the Tribunal’s view, in favour of the cancellation. It is also of considerable concern to the Tribunal that the applicant claims that in his previous application the family had deliberately falsified his date of birth because they believed he could not meet the visa requirements on the basis of his genuine age. While the applicant claims he was not involved in that application, the content of the application was the applicant’s responsibility. The applicant seems to have persistently misled the Department when it suited his circumstances.

16. Nevertheless, the Tribunal considers it significant that the NOICC refers to the applicant failing to disclose a different identity, his previous visa application and the presence of his brother in Australia (and it is at least possible that the brother in Australia was not in the same family unit and did not have to be disclosed on the application form). There is no suggestion that the applicant provided incorrect answers about his present identity (as opposed to a use of a different identity in the past), his country of nationality and, importantly, the claims that he made in support of his visa application. These are the matters which were central to the decision to grant the applicant the visa. The Tribunal is not convinced that the outcome of the applicant’s SHEV application would have been different, if the correct information was known. That is, the factors that formed the basis of the cancellation appear to have been of limited relevance to the assessment of the applicant’s eligibility for the visa while the circumstances that did lead to the decision to grant him the visa do not appear to be in dispute and had not formed the basis of the s. 107 Notice. Should there be any doubt about the applicant’s claims or other factors that led to the grant of the visa, these need to be outlined in the Notice before these can form the basis of a cancellation. The Tribunal is of the view that the fact that the substance of the applicant’s claims that led to the grant of the visa, and in particular, his claims of persecution in Afghanistan, have not been questioned or undermined, is a very strong consideration against the cancellation of his visa.

17. The Tribunal is also mindful of the applicants’ evidence that his SHEV expires in early 2022 and his circumstances would be reassessed then. Should it be determined at that time that the applicant is not owed protection because there is now more information before the decision-maker that was not available in 2016, the visa will not granted.

18. The Tribunal places significant weight on the country information cited above, which would suggest that at present, there is a possibility of the applicant being targeted due to his characteristics, if he was to return to Afghanistan. The Tribunal also places weight on the significant hardship that would be caused to the applicant and his family if the visa is cancelled, including loss of income for the applicant’s family overseas. Overall, the Tribunal places greater weight on these circumstances and finds that these outweigh other circumstances that weigh in favour of the cancellation.

19. 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

20. 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.

    Kira Raif
    Senior Member