1920271 (Migration)

[2020] AATA 6042

1920271 (Migration) [2020] AATA 6042 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920271

MEMBER:Kate Millar

DATE:14 December 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 December 2020 at 9:13am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – disclosure of previous visa application – close relatives – national identity documents – personal contacts in Australia – consideration of discretion – Hazara Shia – visa grant did not rely on incorrect information – circumstances in which the non-compliance occurred – present circumstances – Australian citizen wife and newborn child – contributions to the Australian community – non-refoulement obligations – returnee from the West – best interests of the child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 107A, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
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 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] came to Australia as an irregular maritime arrival in 2012 and applied for a protection visa in the name [Alias 1]. He claimed to be a citizen of Afghanistan in need of protection from the Taliban because of his Hazara ethnicity and Shia religion.

2. In his application form, he said he had not previously applied for a visa to come to Australia and did not have any close relatives in Australia. He provided a taskira (Afghan identity document) in the name [Alias 1].

3. He was granted a Subclass 866 (Protection) visa in 2013, and in 2015 changed his name to [applicant name]. He applied for Australian citizenship in 2016, however that application has not yet been decided. He was granted a Subclass 155 (Five Year Resident Return) visa on 12 September 2018.

4. The Department of Home Affairs sought verification of the taskira in the name [Alias 1] and received advice that the taskira does not accord with records kept by the government in Afghanistan. It also conducted facial recognition analysis, and a result considered [the applicant] was the same person as [Mr A] who applied for a visa to come to Australia as a secondary applicant on a spouse visa in 2011. In that application, [Mr A] is named as the brother of [Mr B], who was in Australia.

5. As a result, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found that [the applicant] had provided incorrect information in his protection visa application and cancelled his Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

6. [The applicant] accepts he provided incorrect information in his application for a Subclass 866 visa but contends that given his circumstances at the time and his current circumstances, his visa should not be cancelled.

7. [The applicant] appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

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

   CERTIFICATE ISSUED UNDER S.375A OF THE ACT

9. The Department file contained a certificate issued under s.375A of the Act. A valid certificate issued under this section requires the Tribunal to do all things necessary to ensure the document or information addressed by the certificate is not disclosed to any person other than a member of the Tribunal constituted for the purposes of the review.

10. Procedural fairness generally requires that the existence of the certificate is disclosed so the applicant can make submissions on the validity of the certificate.[1]

    [1] MZAFZ v MIBP [2016] FCA 1081 at [50]. In MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 at [29]–[30] and [38].

11. In this case, the original certificate was not signed and was invalid.[2] This certificate was revoked and a signed and dated certificate under s.375A issued on 7 September 2020. This certificate identifies two folios of the Department file and states that disclosure of these folios would be contrary to the public interest as they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of these methods. The certificate issued 7 September 2020, together with the revoked certificate and the revocation were provided to [the applicant] for comment on 1 October 2020. No comments were provided on the validity of the certificate.

    [2] El Jejieh v MHA (No 2) [2019] FCCA 840 at [23]–[25]

12. Folio 87 is a redacted facial image comparison report. The signature on the report is redacted and is stated to be by a facial image comparison specialist. It states the reasons the images of [the applicant] and [Mr A] are said to be the same person. This is referred to in the decision of the delegate, in which it is stated the image of [Mr A], a person named as a secondary applicant on a spouse visa application and another image, were referred to a Department Facial Image Comparison Specialist who gave an opinion that these were the same person.

13. Folio 111 contains information referred to in the decision of the delegate showing a money transfer from [Alias 1] to [Mr B] on 26 November 2013 of $1,500 for family support. This information is also disclosed the decision of the delegate

14. The information regarding the examination by a forensic facial recognition expert, and the information that he transferred funds to [Mr B] is included in the decision record and has already been disclosed by the Department.

15. As far as the certificate purports to prevent disclosure of information that has already been disclosed in the decision of the delegate, the Tribunal considers the certificate invalid. As [the applicant] concedes he previously applied for a visa in the name [Name A] and he has sent money to his brother [Mr B] it is not necessary for this decision to look to the methods of obtaining the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101 of the Act. This requires non-citizens to provide correct information in their visa applications and passenger cards.

17. The visa that has been cancelled is a Subclass 155 visa, with the incorrect information alleged to have been provided in the application for a Subclass 866 visa. Under s.107A of the Act, a notice issued under s.107 of the Act, and a cancellation under s.109 of the Act can include non-compliance that occurred at any time, including non-compliance in respect of any previous visa held by the visa holder. It follows that any non-compliance in respect of the Subclass 866 visa can result in a notice being issued under s.107 and a cancellation under s.109 in respect of the Subclass 155 visa.

18. However, a cancellation of a Subclass 155 visa is reviewable under Part 5 of the Act, and a decision to cancel a Subclass 866 visa is reviewable under Part 7 of the Act.

19. 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 that provides 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.

20. The decision of the delegate records that the Department was advised by the National Identity Verification Centre that the information in the taskira [the applicant] provided with his application did not match records held by the Population Registration Directorate in Afghanistan. The delegate also refers to a facial comparison report with the opinion of a facial comparison specialist being that [the applicant] is the same person as [Name A] who lodged an application as a secondary applicant for a Subclass 309 visa [in] December 2011.

21. This information provided the necessary state of mind for the delegate to engage s.107 of the Act and issue a notice under s.107 of the Act.

22. The Tribunal has examined the notice issued under s.107 of the Act and considers it complies with the statutory requirements.

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

23. 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.

24. The basis on which the delegate considered incorrect information had been provided was set out in the s.107 notice. In summary, this was because:

    ·     The Department received advice from the National Identity Verification Centre that the information in the taskira which [the applicant] provided in support of his protection visa application in the name [Alias 1] does not correspond to records held by the Population Registration Directorate in Afghanistan.

    ·     [Mr B] sponsored his wife for a partner visa. Included as a secondary applicant was his brother [Name A] born [date]. A photograph was provided which had a strong resemblance to the photograph of [the applicant] acquired on his arrival in Australia. The photographs were referred to a Department Facial Image Comparison Specialist who was of the opinion it was the same person. As a result, the delegate considered [the applicant] was the same person as the secondary applicant [Name A] in the partner visa application.

    ·     [Mr B] is [the applicant]’s brother, and not his cousin as claimed in his application for a Subclass 866 visa.

    ·     His brother [Mr B] is not missing.

    ·     He has two siblings which were not disclosed in his application; a brother [Mr C] and a sister [Ms D].

    ·     His father has not been missing since 2001 as claimed.

25. The information the delegate specified as incorrect in the s.107 notice as set out in that notice was:

    Part B, form 866, question 3 "Has any person named in question 1 previously made any other type of application to the department?" The answer provided was “No”.

    Part 8 Form 866 question 12 "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 answer provided was answered “No”.

    Part B, form 866, question 13 "Do any of the persons included in this application and named in question 1 have close relatives who are NOT in Australia at the time of application?” The answer provided was that his brother [Mr B]’s current place of residence was “Unknown/missing”.

    Part B7 form 866, question 14 "Do you currently have, or have you ever had, any national identity documents?" The answer referred only to a taskira in the name [Alias 1].

    Part B, form 866, question 21 "Do you have any personal contacts in Australia?" The answer provided was that [the applicant] had a cousin named [Mr B] living in Australia.

    Part C, form 866, question 6 "What is your full name" The answer provided was “[Alias 1]”.

    Part C, form 866, question 43 "Why did you leave that country?" The answer provided included:

    The family originates from [Village 1], [Area 1], Uruzgan province, Afghanistan.

    The Taliban held power in the area and the villagers were fearful of the Taliban because they were killing Hazara people who are Shia Muslims and whom they consider to be infidels.

    The family fled to Pakistan around 2001 because at the time the Taliban had been raiding and searching houses in your village, taking weapons and any men they considered a threat.

    In the interview with the Protection visa delegate on 2 August 2012 [the applicant] added his father went missing when they went to Pakistan in the year 2001.

26. [The applicant] concedes he provided incorrect answers to questions 3, 12, 13, 14 and 21 of Form 866B. The incorrect information is whether he had previously applied for a visa, whether he has personal contacts in Australia, that his brother was missing at the time of the application, and whether he has any national identity documents.

27. [The applicant] maintains his answers to questions on Form 866C were correct. This information is [the applicant]’s full name, and why he left Afghanistan. He also states he does not have two additional siblings as found by the delegate.

    [The applicant]’s name

28. [The applicant] states he was known as [Alias 1] when he was born, however his parents changed his name to [Name A] after he had health problems. After he came to Australia in the name [Alias 1], he changed his name to [the applicant] on his mother’s recommendation after he again experienced health problems. He acknowledged the surname [Alias 1 surname] was a fabrication as surnames are uncommon in Afghanistan. [The applicant] acknowledged he had provided a taskira in the name [Name A] with the partner visa application in 2011, but said he obtained this taskira from the same person in Quetta as the taskira in the name [Alias 1], so he was not sure if this was genuine.

29. The Tribunal did not find his explanation of the use of the name [Alias 1] convincing, and finds that the name provided in his application was incorrect. In coming to this conclusion, the Tribunal acknowledges that [the applicant] stated in his protection visa application that he was also known as [Name A variant 1]. This also appears as “[Name A variant 2]” in the record of the intake interview. The Tribunal is satisfied [the applicant] stated he was known as [Name A], or a variant that is reasonably phonetically equivalent to this name.

    Siblings [Mr C] and [Ms D]

30. The delegate considered that [the applicant] had two further siblings that were listed on the spouse visa application.  [the applicant] denies this is the case.  There is little other evidence in support of these siblings, and little turns on whether he has additional siblings.  For the purposes of this decision, the Tribunal accepts in his favour that he does not have further undisclosed siblings. 

    Why he left Afghanistan

31. The delegate considered that the family fled Afghanistan two years earlier than was claimed in the protection visa application. [the applicant] states the circumstances for Hazaras were the same in this period, with raids and fear of the Taliban. [the applicant] said, and the Tribunal accepts, he does not know the precise dates. This is at least in part because a Persian calendar is used in Afghanistan[3] and [the applicant] was a young child at this time. The Tribunal accepts [the applicant] did not know or was uncertain about the date in the Western calendar that the family left Afghanistan.

    [3] 'Converting between Islamic and western dates.', 01 January 2001, CX52177.

32. In any event, the circumstances for Hazaras in the period from 1992, as described by the Department of Foreign Affairs and Trade[4] were such that [the applicant]’s claims to fear harm are not undermined if he had left Afghanistan before 2001.

    [4] Department of Foreign Affairs and Trade (26 March 2014) DFAT Thematic Report: Hazaras in Afghanistan and Pakistan at 2.16–2.18.

33. The Tribunal is not satisfied that information about the origin of the family, that villagers were fearful of the Taliban because they were killing people who are Shia Muslims, and that they fled to Pakistan in approximately 2001 due to raids by the Taliban is incorrect information.

34. In an interview with the delegate on 2 August 2012, [the applicant] claimed his father went missing in 2001. Information provided in an interview forms part of an answer to a question on a visa application by virtue of s.99 of the Act. The delegate considered this was incorrect information as his brother [Mr B] claimed in his application that his father had returned to Afghanistan from Pakistan in April/May 2009 to see if it was safe, which the delegate found indicated the whereabouts of [the applicant]’s father was not unknown since 2001 as he had claimed. [The applicant] states his brother is incorrect, and that his father went missing in 2001. As submitted by the representative, there is no further information to establish when his father went missing and little turns on this in this case. In the absence of any other information, the Tribunal is not satisfied this is incorrect information.

    Conclusion

35. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice in respect of his answers to questions 3, 12, 13, 14 and 21 of Form 866B and question 6 of Form 866C.

    Should the visa be cancelled?

36. 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) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

37. In considering whether to cancel [the applicant]’s visa, the Tribunal must consider prescribed factors, and may also take other matters into account, such as those considered under Departmental policy.

    A.   Prescribed factors

38. In exercising the power to cancel this visa under s.109, 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) of the Act. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994.

    The correct information

39. The correct information is that [the applicant]’s name has always been [Name A], he had previously applied for a visa to come to Australia, his brother was living in Australia at the time he lodged his application for a protection visa, and that he had another brother who was in Europe at the time he applied.  

    The content of the genuine document (if any)

40. In this case, the Department sought verification of a taskira provided by [the applicant] in the name [Alias 1], and this was found not to have been registered. A taskira was provided with the previous spouse visa application in the name [Name A]. [The applicant] states he obtained taskiras from the same person, and he has no assurance that either is genuine.

41. As DFAT advise that an Afghan citizen living in Pakistan is required to travel to Afghanistan to collect a taskira,[5] the Tribunal finds it most likely that [the applicant] does not have a genuine taskira, as he has not claimed to have returned to Afghanistan and would have been required to return to Afghanistan in order to obtain a genuine taskira.

    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

    [5] DFAT Country Information Report Pakistan, 20 February 2019 at [3.65] and [3.66].

42. [The applicant] submits that the decision to grant the visa was not based wholly or partly on the incorrect information.

43. [The applicant] provided the decision record that relates to the grant of his protection visa. The claims specified in the decision record are:

    ·As a small boy he remembers the Taliban raiding his village and having to hide in the mountains with other boys.

    ·His family fled Afghanistan in 2001, as they were fearful of the Taliban who were killing Hazaras on account of their Shi’a religion.

    ·He fears returning to Uruzgan as the province is under the control of the Taliban, and Hazaras have been killed by the Taliban there recently.

    ·He fears harm from the Taliban generally, for his Hazara race and Shi’a religion

    ·As a Hazara, he is particularly vulnerable to harm when travelling through Afghanistan.

1. The decision to grant his visa is stated to relate to these claims. His claims to be Hazara and Shia and a citizen of Afghanistan have not been impugned by the delegate, nor have his recollections about the Taliban raiding the village and having to hide in the mountains. The Tribunal is not satisfied that his claim to have fled Afghanistan in 2001 is incorrect.

2. It follows that as the basis for the grant of his protection visa does not rely on incorrect information, the decision to grant his visa was not wholly or partly based on the incorrect information specified in the notice issued under s.107 of the Act.

   The circumstances in which the non-compliance occurred

3. [The applicant] said that when he came to Australia with a people smuggler he was told by his brother and by the people smuggler not to disclose any family members. He said he thought because his brother gave him the money to pay the people smuggler his brother would be in trouble for helping a people smuggler.  He said he didn’t have the right information about being given asylum in Australia.

4. He was also told that if there was someone in his family who was over 18 to take care of him, he would be deported, and this was why he did not disclose information about his brother.

5. [The applicant] travelled to Australia from Quetta, Pakistan. He claimed in the statutory declaration that accompanied his application for a Subclass 866 visa that the circumstances for Hazara people in Quetta, Pakistan were bad and Hazara people were restricted to living in Hazara areas as it was dangerous to travel elsewhere in Pakistan.  This was because extremist groups such as Lashkar-e-Jhangvi were actively targeting and killing Hazara people. Before he left Pakistan instances of Hazara people being targeted had increased, and in September 2011 he witnessed a bomb blast at the Commissioner’s office when he was on his way to work. He knew another person on a bus to Iran who was one of 30 people killed by Lashkar-e-Jhangvi. He said he decided to seek asylum as things were becoming worse in Pakistan for Hazara people. He stated he fears he will be detained, tortured or killed by the Taliban if returned to Afghanistan as foreign forces and the government of Afghanistan have been unable to defeat the Taliban in Uruzgan province.

6. The DFAT report on Pakistan from 2013, proximate to the time [the applicant] claimed protection in Australia, supports his claims of high levels of generalised violence in Quetta, albeit across all sects.[6] The major threats to Shias in Pakistan are reported to be from Lashkar-e-Jhangvi (LeJ) as well as other organisations. It is noted LeJ claimed responsibility for attacks on the Shia community, particularly Hazaras in Quetta, and in 2012 declared their intention to ‘abolish this impure sect’.[7] DFAT assessed the situation as very volatile with a high risk of generalised violence that can affect Shias.[8]

   [6] DFAT Thematic Report Shias in Pakistan 18 December 2013 at [2.11]

   [7] At [4.5]

   [8] At [4.26]

7. The Tribunal accepts that [the applicant] considered he was at risk of serious harm when he left Pakistan, and adopts Justice O’Bryan’s comments in BOY19 v Minister for Immigration and Border Protection[9] that:

   honesty and dishonesty are not moral absolutes, and the circumstances in which a lie has been told has a substantial bearing on any perceived moral deficiency. … The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.[10]

   [9] [2019] FCA 574

   [10] Ibid at [71]

8. The circumstances in which the non-compliance occurred result in the Tribunal placing less weight on the nature of the incorrect information provided, particularly when combined with [the applicant]’s eligibility for the visa for which he applied regardless of the incorrect information.

   The present circumstances of the visa holder

9. [The applicant] has now married in Australia. His wife is an Australian citizen, as shown by a copy of her passport. They have a child who was born on [date]. [The applicant] provided a copy of a birth registration request but has not yet received the birth certificate. He had earlier provided a letter from his wife’s doctor stating his wife’s expected date of confinement was [date] and requesting that [the applicant] not be separated from his wife and soon to be born child. The Tribunal is satisfied [the applicant] has a wife and newborn child who are Australian citizens.

10. [The applicant] runs a successful business [in] South Australia. He employs and financially supports his brother and his brother’s family.

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

11. Subdivision C of Division 3 of Part 2 of the Act contains the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

12. This Subdivision relates to compliance with the Act and does not apply to [the applicant]’s subsequent application for Australian citizenship, where he provided information consistent with his previous visa applications. There is nothing of note in his subsequent behaviour that indicates non-compliance with this Subdivision.

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

13. The delegate does not cite any other instances of non-compliance, and there is no information before the Tribunal to indicate any other non-compliance.

    The time that has elapsed since the non-compliance

14. It is now approximately eight years since the non-compliance. This weighs in favour of not cancelling [the applicant]’s visa.

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

15. There is nothing before the Tribunal to show [the applicant] has been convicted of any other breaches of the law or of any sanctions being imposed.

    Any contribution made by the holder to the community

16. A reference from the preschool director at the local kindergarten states [the applicant] attended the local high school and has been involved in the local [sports] clubs. He has assisted [at] [organisation]. A former manager of the [organisation] also states he has assisted [on] many occasions and has been nominated as the [office bearer] of a newly formed [group] made up of community leaders from each of the migrant communities in the area. This group works closely with State and local government groups as well as local networks.

17. A letter from the local Mayor, which is not on letterhead, also states he is in the local multicultural network. It goes on to state his wife has also contributed to the community and was given [an] award for [specified reason] at the [specified ceremony].

18. His wife is a [Occupation 1] at a local [workplace].

19. [The applicant] states he runs a contracting business with over 40 [workers]. He states this business has significant revenue which has resulted in him paying $700,000 to $800,000 in tax. A recent contract has been put on hold as his visa was cancelled. He states he owns [number] houses in Australia.

20. [The applicant] provided an ASIC extract showing he was the director, secretary and sole shareholder of [Company 1] until [July] 2019 when this was transferred to his wife. [The applicant] said this transfer occurred because his visa was cancelled.

21. [The applicant] states he provides financial support to his brother [Mr B], and his wife and children, who are now Australian citizens. His brother is employed in the business.

22. The Tribunal is satisfied that [the applicant] operates a business that provides a service of high need in regional Australia. He employs others in the local community. He is actively involved in the local community and is a representative in the multicultural network and has made a significant contribution to the community.

23. [The applicant] has made a significant contribution to the Australian community since his arrival in Australia. This weighs heavily in favour of not cancelling his visa.

    B.   Other factors

24. 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 Procedures 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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. [The applicant] arrived in Australia as an unauthorised maritime arrival. Under s.46A of the Act if his visa is cancelled he cannot make a visa application except with the authorisation of the Minister. This includes a further bridging visa, and as a result the effect of the cancellation is that [the applicant] is liable to be detained under s.189 of the Act.

26. Under s.198(5) of the Act, he would be removed from Australia as soon as practicable. Under s.197C, 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. This means the potential harm to [the applicant] if he is removed would not be considered before removing him from Australia.

    Whether there would be consequential cancellations under s.140

27. Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

28. As his wife and child are Australian citizens, there are no consequential cancellations that would occur if [the applicant]’s visa is cancelled.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

29. The delegate refers to an International Treaties Obligation Assessment being conducted prior to removal of [the applicant]. As non-refoulement obligations do not apply if he is removed, the conduct of this assessment will not prevent his removal.

30. The principle of non-refoulement is contained in Article 33 of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

31. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty, Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).

32. [The applicant] makes claims that relate to non-refoulement and the rights of the child.

    Non-refoulement

33. [The applicant] states he would be at risk of serious harm if he were returned to Afghanistan due to his Hazara race and Shia religion.

34. [The applicant] has been in Australia for approximately eight years, and in Pakistan for many years before that. If he is removed from Australia, he will be removed to Afghanistan.

35. In Afghanistan, the Hazara are readily identified by their distinct visual appearance.[11]

    [11] DFAT Country Information Report Afghanistan 17 June 2019 at [2.65]

36. [The applicant]’s family is from Uruzgan. The current DFAT report states that in late October 2018, fighting between the Taliban and a Hazara former Afghan Local Police commander led to the displacement of many Hazara families.[12]

    [12] At [2.66] and [3.17]

37. Road safety in Afghanistan is poor, and ethnic targeting plays a role in the selection of victims, and the Hazara are particularly at risk in this regard, and there are reports of “spotters” at bus stations calling ahead to tell insurgents which buses are carrying Hazaras. While abduction is a risk for all Afghans, DFAT assesses Hazaras are particularly vulnerable to being selected for abduction.[13]

    [13] [2.72]–[2.74]

38. DFAT also reports deliberate attacks against the Shia community have caused the majority of casualties in attacks against places of worship.[14] DFAT assesses Shia face a high risk of being targeted by militant groups for religious attack when assembling in large or identifiable groups, and the risk increases for those living in Shia majority or ethnically Hazara neighbourhoods in major cities such as Kabul.[15]

    [14] [3.20]

    [15] [3.35]

39. The United Nations Assistance Mission in Afghanistan (UNAMA) reports a reduction in civilian casualties in the period 1 January to 30 September 2020 compared with the previous year, however states the conflict in Afghanistan remains one of the deadliest in the world for civilians.[16]

    [16] >

    The ability to seek the protection of the State is limited, with DFAT reporting:

    The continuing armed conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, particularly outside major urban centres. In addition, the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the government’s ability to protect its citizens even where its security infrastructure is strongest.[17]

    [17] [5.2]

40. DFAT assesses that most returnees take steps to conceal their association with the country from which they have returned and keep a low profile. DFAT assesses people in this situation do not face a significantly higher risk of violence or discrimination than other Afghans with a similar profile.[18]

    [18] At [5.43]

41. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan states there are reports that returnees from the West have been “threatened, tortured or killed by anti-Government elements on the grounds that they were perceived to have adopted values associated with these countries, or they had become ‘foreigners’ or that they were spies for or supported a Western country. Returnees are reportedly often treated with suspicion by the local community as well as by State officials, leading to discrimination and isolation.”[19]

    [19] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018, available at: p.46–47

42. The Norwegian Refugee Council and Samuel Hall found that seven out of ten Afghan refugees who return home are forced to flee again due to violence, with many of them ultimately becoming internally displaced.[20] The circumstances are exacerbated for Afghans born in Iran or Pakistan and/or who lived there for a long period of time who are subject to the compounding factors of lack of shelter and work, and lack of support networks to seek shelter and work; lack of customisation to Afghan norms and expectations; and the development of strong ‘foreign’ accents.[21]

    [20] ‘Kabul’s tent dwellers struggle to survive’, Norwegian Refugee Council, 22 January 2019, 20190123111605

    [21] ‘Country Guidance: Afghanistan’, EASO, June 2019, p. 75, 20191125104658

43. The Tribunal considers that being a returnee from the West would mean that [the applicant] would face a real chance of serious harm if he were to be returned to Afghanistan as a member of a particular social group, and there would also be a real chance of serious harm due to his Hazara race and Shia religion. The risk of harm is amplified by the lack of safety when travelling domestically for people who are Hazara.

44. As a result, the Tribunal considers removal of [the applicant] from Australia would be in breach of its international obligations relating to non-refoulement.  

    Best interests of the child

45. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

46. This has been the subject of differing interpretations. Most recently in CFE16 v Minister and CFD16 v Minister,[22] (CFE16 & CFD16), Judge Riethmuller referred to Article 3 of the Convention and stated:

    it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[23]

    [22] [2020] FCCA 1083

    [23] At [19]

47. Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.

48. Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[24] Judge Riethmuller states that:

    by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[25]

    [24] At [24]

    [25] At [25]

49. Judge Riethmuller notes in that case that as one of the children is an Australian citizen, she is entitled to all the protections and the benefits of the Australian state. The cancellation of the parent’s visa, given her young age, may on a practical level mean she is unable to take advantage of her status as an Australian citizen. Judge Riethmuller notes this is a factor that may need to be considered by the Tribunal.[26]

    [26] At [28]

50. [The applicant] has a newborn child. His wife and child are Australian citizens.

51. [The applicant’s wife] provided a statutory declaration stating she was unable to give evidence in person due to her pregnancy. She states [the applicant] is the main breadwinner for the family and that she and her child would be unable to join [the applicant] in Afghanistan if he is removed from Australia. She states it would not be in her child’s best interests to grow up in a war zone where terrorist attacks are frequent and can occur at any time.

52. The Tribunal finds it is in the best interests of [the applicant]’s child for his visa not to be cancelled, and to remain in Australia to provide financial support for his child, and to maintain the family unit.

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

1. [The applicant] operates a business that employs [workers]. He employs and financially supports his brother and his brother’s family. There will be considerable financial hardship to others if his visa is cancelled.

2. Cancellation would also come at the cost of separating his family unit and may result in serious harm to [the applicant] if he is required to return to Afghanistan, as outlined above.

   CONCLUSION

3. The Tribunal has decided that there was non-compliance by the applicant in a way described in the notice given under s.107 of the Act. However, there are factors that weigh strongly against cancelling his visa including the best interests of his newborn child, Australia’s non-refoulement obligations, [the applicant]’s involvement in the community and the business he operates which provides labour to [services] in [South Australia]. The Tribunal is satisfied the non-compliance occurred in a context where [the applicant] was living unlawfully in Pakistan and at risk of being targeted as a person who is Hazara and Shia.

100.   Having considered the circumstances as a whole, the Tribunal considers the visa should not be cancelled.

DECISION

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

Kate Millar
Senior 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

102.   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.