1926265 (Migration)

1926265 (Migration) [2021] AATA 3629 (5 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1926265

MEMBER:Alison Murphy
DATE:5 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 05 August 2021 at 2:40pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in the visa application – identity details – relatives residing in Australia – previous visa applications – details included in taskera records – exact details not correctly recorded in Iran – incorrect information had little bearing on the visa grant – non-refoulement obligations – race – Hazaras – religion – Shia – family and education commitments in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
Farah v MIAC [2011] FCA 185
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Rani & Ors v MIMA (1997) 80 FCR 379
SZATV v MIAC (2007) 233 CLR 18
Tien & Ors v MIMA (1998) 89 FCR 80

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).
On 16 September 2019 a delegate of the Minister cancelled the applicant’s refugee visa, on the basis that she considered the applicant had given incorrect information in her Subclass 200 visa application. In essence the delegate considered the applicant gave incorrect information about her name, date and place of birth, visa history and relatives in Australia.
The applicants appeared before the Tribunal on 2 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicants are [an age]-year-old woman and her three children (now aged [respective ages]) who arrived in Australia in November 2014 as the holders of refugee (split family) (Subclass 200) visas granted to them on the basis that the applicant was the wife of [Mr A]. The first named applicant’s husband, [Mr A], is a permanent resident and their youngest child, [named], aged [age], is an Australian citizen. They are not the subject of the current review.
The applicant was identified as [Alias A] born [on DOB 1] in the 2014 refugee (Subclass 200) visa application. She answered ‘no’ to questions asking her if she or any other person included in the visa application had ever applied for an Australia visa before, or if they had any relatives residing in Australia and or any other past or present links to Australia.
Apparently on the basis of a Facial Image Comparison report conducted in 2019, the Department subsequently formed the view that the applicant had previously been included as a secondary applicant in two earlier global humanitarian visa applications lodged in 2009 and 2010. In those earlier visa applications the applicant was named as [Alias B variant] (or [Alias B]) born [DOB 2] and the proposer was stated to be her father, [named], who was resident in Australia, and the visa application included her three children [named] (subject to minor discrepancies in the spellings of some of those names). Both visa applications were refused and the delegate’s decision indicates this was because there were no compelling reasons for giving special consideration for the visa.
THE TRIBUNAL’S JURISDICTION
The refugee (split family) (Class XB Subclass 200) visa was granted on 3 August 2014 and the applicants arrived in Australia [in] November 2014. The second, third and fourth named applicants were granted their visas as members of their mother’s family unit.
Section 140 of the Act provides for the cancellation of a visa where the holder has that visa because another person (the ‘first person’) held a visa which has subsequently been cancelled. Where a person was granted a visa because he or she is a member of the family unit of a person whose visa has been cancelled under s 109 (incorrect information), the visa of the family unit member is also cancelled by operation of law.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants (the other applicants).
The s.107 notice
On 2 May 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising her that the Department was considering the cancellation of her Subclass 200 visa on the ground that she had given incorrect information in her visa application.
The s.107 notice identified the information provided in the protection visa application that was considered to be incorrect. In summary it suggested that the applicant had given incorrect information about her name, her visa application history, her relatives in Australia and her links to Australia.
In particular it set out that the Department had completed a Facial Image Comparison comparing the photograph of the applicant in her Subclass 200 visa application with photographs of [Alias B variant] included in the earlier global humanitarian visa applications, concluding that the photographs were of the same person. The notice alleged that the applicant had used an alias in her refugee (Subclass 200) visa application to conceal her previous identity and the fact she had been included in the global humanitarian visa applications under the name of [Alias B]. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether her visa should be cancelled.
The applicant’s response to the s.107 notice
The applicant responded to the s.107 notice by way of a statutory declaration dated 24 May 2019 and accompanying documents. In her statutory declaration the applicant acknowledged that she had provided incorrect information in her refugee (Subclass 200) visa application as to her name, her previous visa applications and the fact that her parents and siblings were residing in Australia.
She stated her true name was [applicant’s name], born [on DOB 1] in Kabul, Afghanistan. She met her husband [Mr A] in Quetta, Pakistan in about 1996 and they were married in 2000. Her husband came to Australia in June 2013 on a refugee (Subclass 200) visa. She acknowledged being included in the earlier global humanitarian visa applications lodged in 2009 and 2010 and agreed that her parents and [siblings] were residing in Australia at the time.
She agreed that she had provided incorrect information about her name, but noted that the inconsistencies as to the spelling of her first name arose from an inconsistency in the way her name was spelled on her Afghan taskera as compared to her Iranian refugee card. She acknowledged that there may also be other minor inconsistencies in the spelling of names and exact dates of birth of her family members in the visa application, but noted she had not yet received a copy of her documents pursuant to her Freedom of Information request so was not able to confirm. In a later statutory declaration she noted inconsistencies in her identity documents about her date and place of birth, stating she believed she was born in Kabul [in year] but believes the taskera records her place of birth as [a named] village because it is typical to record the father’s place of birth rather than the child’s place of birth. The applicant also provided a significant amount of material relevant to the issue of whether her visa should be cancelled.
The cancellation decision
On 16 September 2019 a delegate decided to cancel the applicant’s visa, finding the applicant had provided incorrect information in the manner set out in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan before she was removed to Afghanistan and therefore the delegate did not make her own assessment of those matters.
The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
LEGISLATIVE FRAMEWORK
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Did the notice comply with the requirements in s.107?
The notice dated 2 May 2019 sets out in detail the information given by the applicant in her refugee (Subclass 200) visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or her representative that the notice is deficient or invalid.
I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. I am satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
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). The notice alleges that the following declarations made by the applicant in her protection visa were incomplete or incorrect:
·     At Question 2 of Form 842 which asked "Give details of the main applicant" you answered:
[Family Name and Given Name: Alias A]
Sex: Female
Date of birth: [DOB 1]
Place of birth: Kabul, Afghanistan
Citizenship: Afghani
Current country of residence: Iran
Date you arrived in this country: 2000
Status in this country: Refugee
Relationship status: Married religiously
Place this happened: Pakistan
Do you currently have more than one partner (other than any partner included in this application? No
. . .
Your Refugee (subclass 200) visa was granted on 3 August 2014, on the basis that you satisfied the Minister that you were a member of the immediate family of a person who holds or held a permanent Class XB visa, namely your spouse, [Mr A]. You claimed that your name is [Alias A], you had never applied for an Australian visa before, you did not have any relatives in Australia and you did not have any past or present links to Australia. However, the forensic facial comparison conducted by the Department concluded that the facial images of [Alias A] and [Alias B] represent the same person. As such I consider you had previously applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 in the name [Alias B]. As such, I consider you have utilised an alias in your Refugee (subclass 200) visa application to conceal your previous identity and refused Global Special Humanitarian (subclass 202) visa applications under the name of [Alias B].
. . .
·     At Question 15 of Form 842, which asked "Has any person included in this application ever applied for an Australian visa (permanent or temporary) before?" you answered "No."
I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. As such, it appears you previously applied for an Australian visa before.
·     At Question 19 of Form 842, which asked if any people included in this application have any other relatives residing in Australia?" you answered "No."
I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. In the Global Special Humanitarian {subclass 202) visa applications you indicated that your parents and [siblings] were residing in Australia as permanent residents. As such, it appears that you had other relatives residing in Australia when you applied for a Refugee (subclass 200) visa on 6 August 2013.
·     At Question 20 of Form 842, which asked "Do any people included in this application have any other past or present links to Australia?" you answered "No."
I consider this answer to be incorrect as a facial image comparison confirmed that you applied for a Global Special Humanitarian (subclass 202) visa on 3 September 2009 and 22 October 2010 as [Alias B]. In the Global Special Humanitarian {subclass 202) visa applications you indicated that your parents and [siblings] were residing in Australia as permanent residents. As such, it appears that you had other past and present links to Australia when you applied for a Refugee (subclass 200) visa on 6 August 2013.
The applicant acknowledges that she provided incorrect information in each of the ways set out in the s.107 notice. Specifically she acknowledges that she had previously declared a different name and date of birth in the earlier visa applications, that she was included in the earlier visa applications that were refused and that she had parents and siblings residing in Australia and links to Australia at the time of the refugee (Subclass 200 – split family) visa application. For these reasons, the Tribunal finds that there was non-compliance by the applicant with s.101(b) in the way described in the s.107 notice.
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: For the reasons set out above, I have found that the applicant gave incorrect information in her protection visa application about her name, visa history and relatives in and links to Australia.
The correct information is that her name is [applicant’s name], and she was born in Kabul on or about [DOB 3]. In making that assessment I note that her exact date of birth is not known to her but is recorded in her Afghan taskera as [DOB 3]. The Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon, and the reporting of dates of birth is unreliable and reported dates are likely to be approximate.[1]
[1] DFAT Country Information Report Afghanistan 27 June 2019 at 5.49.
The correct information is that she had previously applied for two Australian visas which were refused and that she had parents and siblings residing in Australia at the time of her refugee (split family) (Class XB Subclass 200) visa.
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 of the Act (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The applicant was granted the protection visa following a decision by a delegate of the Minister dated 3 August 2014 to the effect that the applicant and her children met all requirements for the grant of the refugee (split family) (Class XB Subclass 200) visa. While the Departmental file does not contain a formal decision record, it is apparent from the case notes and the ICSE records that the applicant was granted the visa on the basis she was the wife and therefore a member of the immediate family of the proposer, [Mr A]. That information was correct at the time of application and continues to be correct as at the time of the Tribunal’s decision.
While a person’s identity is fundamental to the grant of any visa, I am satisfied that if the correct information had been provided the applicant would still have been granted the refugee (split family) (Class XB Subclass 200) visa. For these reasons I consider the incorrect information had little if any bearing on the decision to grant the visa.
The circumstances in which the non-compliance occurred: At the time the incorrect information was provided, the applicant was living with her three young children as a refugee in Iran as the holder of a refugee card (amayesh) first issued by the Iranian government in about 2000 or 2001. She gave evidence that many hundreds of people were queuing for such cards in the registry office in 2000 or 2001 when her husband went to obtain the card and he had to return several times before he was successful in getting the card. In the crowded and chaotic office, the exact details were not correctly recorded, with errors made in the spelling of her name, date of birth and her father’s name. She returned to the registry office and tried to get the details corrected but was told if she wasn’t happy she should return to Afghanistan. The applicant’s father, who is resident in Australia, has provided a statement confirming the applicant was born in Kabul, not in Ghazni province. He states that she was never issued a birth certificate and so the taskera recorded her place of birth as being the same as that of her father.
The applicant gave evidence that the Iranian amayesh was the only document the family could use to exit Iran, because while she had a taskera the children didn’t and to apply for the children’s taskeras would have required the family to travel to Afghanistan. They did not wish to risk that so used the Iranian refugee card to exit Iran. She used the same details recorded on that amayesh to apply for the Australian visa so that the details would match up. Translations of the applicant’s amayesh card and the Inter-City Travel Permit for Foreign Nationals granted to the applicant by the Iranian authorities have been provided to the Tribunal and are consistent with the applicant’s evidence.

The present circumstances of the visa holder and her contribution to the community: The applicants have lived in Australia for almost eight years. During that time the applicant and her husband [Mr A] have welcomed their youngest [named child], who is now [age] years old and an Australian citizen. The applicant’s husband supports the family through his employment in the [specified] industry and the applicant’s elderly parents and siblings also live in Melbourne.
At hearing the applicant gave evidence that her first five years in Australia had been full of joy, but that she and her family had suffered greatly since her visa was cancelled in 2019. Medical records indicate that she is receiving treatment for major depression.
The applicant’s eldest daughter [named] is studying [at university] and is due to graduate next year, having successfully completed [a qualification] in the same year her visa was cancelled and obtaining a full scholarship to undertake her studies. She gave evidence to the Tribunal that it was extremely difficult and distressing to have this occur during [this period of her studies], requiring her to attend appointments with the lawyer to interpret and help her parents understand the visa cancellation process. Although she [qualified] to study at university, the cancellation of her visa meant that she was not eligible for a Commonwealth supported place with the consequence that had she not been granted the scholarship, she would not have been able to attend university.
The applicant’s next eldest [child], [named], is currently studying [in] high school and hopes to go on to study [course]. [This child] has been employed part-time by [a named employer] since 2018 where [they have] been nominated as a ‘team coach’ and the general manager of the [business], [named], speaks of [this child] in the highest terms. Medical records provided to the Tribunal record that [this child] also suffered significant difficulties with [mental health] since the visas were cancelled. The applicant’s [next child], [named], is in year [number] at school and happily has little awareness of [the] family’s recent difficulties.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant acknowledged the non-compliance in response to the s.107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate does not suggest that there are any other instances of non-compliance known to the Minister.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made her application for the refugee (split family) (Class XB Subclass 200) visa in 2013 and approximately eight years have elapsed since then.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.
Any contribution made by the holder to the community: This matter has been addressed under the heading ‘The present circumstances of the visa holder’.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
If the applicant’s visa is cancelled, she will become an unlawful non-citizen and be liable to be detained. In these circumstances, she may be subject to lengthy or even indefinite detention unless granted another visa. If her visa remains cancelled, the visas of her three children will also remain cancelled and I accept this will cause significant hardship to the family.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In relation to the Refugees Convention, the Policy Guidelines provide that:
Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).
Refoulement is prohibited under Article 33 of the Refugees Convention unless:
- there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
- the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.
In this case the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made. The delegate records that for this reason a decision to cancel the applicant’s visa would not necessarily cause her to be returned to her country of origin as an International Treaty Obligations Assessment (ITOA) would be completed by a departmental officer prior to any decision to remove her to her country of origin.
Country of nationality
It is not in dispute that the applicant is an Afghan national and I have assessed her circumstances against Afghanistan as her country of nationality and the receiving country.
Well-founded fear of persecution
It is submitted that if the applicant were to be returned to Afghanistan, it would be in clear breach of Australia’s non-refoulement obligations given the volume of information indicating that Australia’s protection obligations are clearly engaged for Hazaras from Afghanistan. The applicant claims that it would be a death sentence to return her and her children to Afghanistan, that it would be terrifying to live there and that it is only a matter of time before the government of Afghanistan is defeated by the Taliban.
I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute. I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019. I have also had regard to the large amount of country information submitted by the applicant’s legal representative in the submission dated 26 July 2021.
The applicant’s personal background
The applicant was born in Kabul and fled Afghanistan for Iran in about 1996, where she met and married her husband. The family lived as registered refugees in Iran until travelling to Australia in 2014. The applicant’s parents and siblings are all in Australia while some members of her husband’s family remain in Iran. DFAT indicates that returnees to Afghanistan from western countries almost exclusively return to Kabul.[2] In these circumstances I find that if the applicant were returned to Afghanistan she would likely return to Kabul.
Hazara ethnicity and Shia religion
[2] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 5.41.
As early as 2016, the United Nations Assistance Mission in Afghanistan noted ‘an emerging patterns [sic] of deliberate sectarian attacks against the Shia Muslim minority’.[3] DFAT repeated these concerns in its September 2017 Thematic Report: Hazaras in Afghanistan, which reported a rise in targeted attacks on Hazara Shias throughout Afghanistan since 2016.[4] Similarly, in 2018, the UNHCR reported a significant increase in harassment, intimidation, kidnappings and killings of Hazara Shias at the hands of Taliban, Islamic State and other anti-government elements (AGEs).[5]
[3] UNAMA Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016 (February 2017) 34; EASO, Country of Origin Information Report – Afghanistan – Individuals targeted by armed actors in the conflict December 2017 at 54.
[4] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 10.
[5] United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan 30 August 2018 at 94.
DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, leading many Hazara to flee Afghanistan.[6]
[6] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8.
DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains, however, the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups. DFAT states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’.[7]
[7] Ibid at 3.7–3.16.
In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses that such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[8]
[8] Ibid at 3.42–3.46.
In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, Islamic State in the Khorasan Province (ISKP) emphasised that it was religiously motivated. The United Nations Assistance Mission in Afghanistan (UNAMA) documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city.[9]
[9] Ibid at 3.29–3.35.
In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[10] Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack.[11]
[10] Ibid at 3.29–3.35.
[11] >
In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP targets Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[12]
[12] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at
In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, most of whom also belong to the Hazara ethnic group:
UNAMA reported in its annual report for 2018 that ‘UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.[13]
The current security situation in Afghanistan
[13] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) June 2020 at 5.8.2.
The most recent DFAT report dated 27 June 2019 indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of AGEs remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence.[14]
[14] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52 – 2.59.
Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties.[15]
[15] Ibid at 2.52–2.59.
DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements commonly targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence.[16]
[16] Ibid at 2.70–2.74.
DFAT reports that while Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years:
The conflict in the city is characterized by asymmetric tactical warfare. Although the Afghan capital remains under government control, armed opposition groups have shown that they can infiltrate the city and have the capacity to carry out attacks. Kabul regularly witnesses violence. Large-scale suicide and complex attacks causing hundreds of civilian casualties were recorded in previous years.[17]
[17] ‘COI Focus - Afghanistan: Security Situation in Kabul City’, Documentation and Research Department (Cedoca), Office of the Commissioner General for Refugees and Stateless Persons (CGRS) (Belgium), 08 April 2020, p.10.
DFAT assesses that the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of both official and societal discrimination as well as a high risk of gender-based violence[18].
[18] DFAT Country Information Report Afghanistan 27 June 2019 at 3.69.
However, since the DFAT and UK Home Office reports were published in 2019, the security situation in Afghanistan has significantly worsened. In each of 2019 and 2020, the Global Peace Index rated Afghanistan as the least peaceful country in the world.[19]
[19] Global Peace Index 2020 at Global indexes - Vision of Humanity.
Violent attacks in the city of Kabul against civilians by AGEs continued throughout 2020 and 2021. The South East Terrorism Portal lists more than 50 terrorist attacks in Kabul between January and April 2021 alone, without identifying the victims by ethnicity or religion.[20] While not an exhaustive list, media reports indicate Hazaras and/or Shias or other minority religious groups were specifically targeted in the following widely reported large-scale attacks over the past 14 months:
·8 May 2021: At least 68 people died and more than 165 (mostly schoolgirls) were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht-e-Barchi in Kabul. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement;[21]
·23 December 2020: at least two people were killed in a bomb attack in eastern Kabul. A day earlier, five people were killed by a roadside bomb, three of whom were doctors on their way to work;[22]
·2 November 2020: at least 22 people were killed and others wounded when gunmen stormed Kabul University. ISKP later claimed responsibility for the attack;[23]
·October 2020: at least 18 people were killed and 57 wounded in a suicide bomb attack outside an education centre in a heavily Shia neighbourhood of western Kabul, with ISIS claiming responsibility;[24]
·May and June 2020: saw two attacks on mosques and a bomb attack on a group of journalists;[25]
·6 June 2020: 24 people were killed in an attack on a Sikh and Hindu temple complex. IS claimed responsibility, however, government sources said it was conducted by the Haqqani Network;[26]
·12 May 2020: gunmen entered a maternity hospital in Dasht-e-Barchi, a mostly Shia neighbourhood and home to a large Hazara population. Twenty four people were killed, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISKP;[27]
·6 March 2020: an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed. The same ceremony was also attacked in 2019; ISKP claimed responsibility for the attacks in both 2019 and 2020.[28]
[20] Timeline Terrorist Activities, Afghanistan (satp.org).
[21] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511;
[22] ‘Two killed in Kabul shooting, bomb attack’ | Conflict News | Al Jazeera, 23 December 2020.
[23] ‘Attack on Kabul University by ISIS gunmen leaves 22 dead’, The Guardian, 3 November 2020.
[24] ‘At least 18 dead in suicide bomb attack in Kabul’ | Afghanistan | The Guardian, 25 October 2020.
[25] ‘Afghanistan: Two killed in bomb attack inside Kabul mosque’, Aljazeera, 3 June 2020; ‘Deadly blast hits Kabul mosque during Friday prayers’, Aljazeera, 13 June 2020.
[26] ‘Solidarity for Sikhs after Afghanistan massacre’, Ruchi Kumar, Aljazeera, 6 July 2020.
[27] ‘Babies among 24 killed as gunmen attack maternity ward in Kabul’, Aljazeera, 13 May 2020; ‘Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce’, Stefanie Glinski, Foreign Policy, 14 May 2020.
[28] ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020; ‘Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul’, The Defense Post, 6 March 2020.

The US Department of State reported in 2020 that the Afghan authorities sought to address security issues in Western Kabul’s Dasht-e-Barchi area, a target of major attacks during the year, by announcing plans to increase the presence of Afghan National Defense and Security Forces (ANDSF). According to the Shia community, there was no increase in ANDSF forces although the government distributed arms directly to the guards of Shia mosques in targeted areas.[29]
[29] US Department of State Annual Report on Religious Freedom 10 June 2020.
As well as confronting significant security issues, country information indicates that vulnerable groups such as returnees and internally displaced persons also face challenges accessing essential services in Afghanistan. Returnees and failed asylum seekers in Afghanistan face a food insecurity crisis. COVID-19 has increased unemployment, seen food supply disruptions due to border closures, and caused rising food prices. This has exacerbated Afghans’ food insecurity, previously impacted by the ongoing conflict and high poverty levels.[30] In January 2020, the Internal Displacement Monitoring Centre reported that just under 90% of returnees interviewed reported difficulties in subsisting.[31]
The peace process
[30] ‘Quarterly report to the United States Congress: 1 April to 30 June 2020’, Special Inspector General for Afghanistan Reconstruction, 30 July 2020, p. 132, 20200803143728.
[31] ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan’, Chloe Sydney, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, p. 14, 20200115130225.
On 29 February 2020, an agreement between the US and the Taliban committed to the withdrawal of US and allied forces from Afghanistan by 1 May 2021 (the Doha deal).[32] Peace talks between the Afghan government and the Taliban finally commenced in September 2020, made possible only after the Afghan authorities agreed to the release of thousands of Taliban militants accused of serious offences.[33] Despite the commencement of peace talks, the conflict continued to kill civilians and violence surged around the country with the Taliban refusing to implement a ceasefire before the peace negotiations.
[32] Terrorism Assessment, Afghanistan (satp.org).
[33] ‘Taliban Ready for Peace Talks with Kabul as Fighters Released’, The Australian newspaper, 10 August 2020 at >
In the 12 months following the Doha deal on 29 February 2020, at least 26,953 persons were killed in terrorist incidents across Afghanistan and UNAMA reported increasing civilian fatalities in every quarter throughout 2020. Rahmatullah Andar, spokesman of the National Security Council, observed in February 2021 that the Doha agreement ‘has only ensured [the Taliban’s] ceasefire with the US, while relations between the Taliban and Afghans remained limited to killings, terror and horror’. Southeast Asian Terrorism Portal reports that ‘it is abundantly clear that the Doha deal has fallen flat and the ongoing Doha talks are of little significance’.[34]
[34] Terrorism Assessment, Afghanistan (satp.org).
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.[35] DFAT warned of the potential for increased risk of attacks around and following the expiry date of the Doha deal (1 May 2021), noting that the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021. Current DFAT advice reports that terrorists and criminal groups targeting foreigners and kidnapping is a serious and ongoing threat.[36]
[35]
There appears little cause for optimism concerning any improvement to the security situation in Afghanistan in the foreseeable future. The Southeast Asian Terrorism Portal assesses that Afghanistan is far from achieving any sustainable respite from terror, reporting the high but unrealistic hopes that were raised by some in the aftermath of the Doha deal have yielded to an enveloping gloom.[37]
[37] Terrorism Assessment, Afghanistan (satp.org).
Rather, there are serious concerns that the withdrawal of US and coalition forces during 2021 are likely to result in a serious deterioration of the security situation in Afghanistan. In November 2020, NATO Secretary-General Jens Stoltberg warned that:
Afghanistan risks becoming once again a platform for international terrorists to plan and organise attacks on our homelands ... And ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq.[38]
[38] NATO chief Jens Stoltenberg says Afghanistan could become terrorist haven if troops withdraw - The Washington Post.
Other commentators have warned about a resurgent Taliban:
The reality of an imminent American withdrawal from Afghanistan differs from its long-anticipated likelihood. Already the anxiety engendered by this new certainty in the capital, Kabul, and other urban centers is making itself felt.
Afghans’ fear is multifaceted, evoked by the Taliban’s grim record, bitter and vivid memories of civil war and the widely acknowledged weakness of the current government. These conditions in turn push Afghan thinking in one direction: The country’s government and armed forces won’t survive without American support. Many American policymakers, security officials and diplomats concur with this gloomy view. Just this week, the U.S. intelligence assessment, presented to Congress, suggested as much: “The Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.”[39]
[39] US Troop Withdrawal From Afghanistan: What to Know - The New York Times (nytimes.com).
Such fears appear to have already been realised. It was reported the Taliban conducted 62 bomb blasts and six suicide bombings in the 11 days leading up to 27 April 2021.[40] On the eve of the US withdrawal from Afghanistan, a truck laden with explosives blew up outside a guesthouse south of Kabul, killing at least 27 students preparing for their university entrance exams. The Afghan government has blamed the attack on the Taliban, which did not immediately claim responsibility.[41] A week later, at least 68 people died and more than 165 were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht-e-Barchi in Kabul. The dead and injured were mostly schoolgirls. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement.[42]
[40]
[41] Afghan Blast on Eve of U.S. Pullout Deadline Kills at Least 27 - The New York Times (nytimes.com).
[42] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511;
More recently the US’s top military officer, General Mark Milley, Chairman of the Joint Chiefs of Staff, reported that the Taliban had seized ‘strategic momentum’ over Afghan military forces who were failing to protect important cities, including Kabul, raising the possibility of a complete takeover by the Taliban[43]. Other commentators such as General David Petraeus, the former US commander in Afghanistan, predict a ‘brutal, bloody civil war’[44].
[43] Top US general admits ‘complete Taliban takeover’ looms in Afghanistan (theage.com.au).
[44] US abandoning Afghans to civil war, says David Petraeus (theaustralian.com.au).
In view of the sources cited above, I am not persuaded that there will be any lasting or durable improvement to the security situation in Afghanistan in the foreseeable future. Rather, I note DFAT’s 2019 assessment that it was at that time dangerous, complex and highly fluid and I consider it has only deteriorated since the DFAT report was published.
Future risk of harm to the applicant
In assessing the future risk of harm to the applicant, a female Hazara Shia from Kabul, I give weight to the country information cited above, which indicates that:
·Even before the withdrawal of US and NATO troops from Afghanistan, the security situation in Afghanistan was assessed by DFAT as being dangerous, complex and highly fluid. DFAT notes that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict, and no part of Afghanistan can be considered free from conflict-related violence;[45]
·Since mid-2016, militants have conducted ongoing attacks against Shia targets who face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals;[46]
·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;[47]
·Hazaras have been significantly impacted by attacks from insurgent groups, targeting Shia religious commemorations and political demonstrations, as well as sites in Hazara neighbourhoods in large cities including Kabul and Herat. ISKP targets Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. There are reportedly instances of Hazara civilians being abducted or killed while travelling on the roads;[48]
·DFAT assesses that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul;[49]
·In June 2020, the UK Home Office reported high levels of sectarian motivated violence by Daesh/ISKP against the Shia minority, noting that UNAMA remained gravely concerned about the safety and security of this religious minority population and the extent to which these attacks are impeding their freedoms of religion and movement and quality of life;[50]
·While Kabul remains under the control of the Afghan government, it has been experiencing large scale violent attacks for some years and those attacks have continued throughout 2020 and 2021, including since the peace talks between the Taliban and the Afghan government began in September 2020;
·The peace talks between the Afghan government and the Taliban have not resulted in a reduction of terrorist attacks or civilian casualties, rather DFAT warns the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021;
·Other commentators warn of a resurgent Taliban following the withdrawal of US and NATO forces during 2021 and that ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq. As DFAT sets out, both those groups have targeted Hazaras in Afghanistan for reasons of their Shia religion and because they are widely perceived as being supporters of the government and the coalition forces;
·DFAT assesses that the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of both official and societal discrimination as well as a high risk of gender-based violence[51].
[45] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52–2.59.
[46] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7–3.16.
[48] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at DFAT Country Information Report Afghanistan 27 June 2019 at 3.29–3.35.
[50] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2.
[51] DFAT Country Information Report Afghanistan 27 June 2019 at 3.69.
In these circumstances I accept there to be a real chance the applicant will face serious harm if returned to Kabul, for the essential and significant reasons of her Hazara race, her Shia religion, her imputed political opinion as a Hazara Shia who has been resident in a western country for an extended period and her female gender.
State protection
The harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect her from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm.
DFAT reported in 2019 that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. Since that time there has been a dramatic deterioration in the security situation in Afghanistan, following the withdrawal of the International Security Assistance Force (ISAF) in 2021 and the resurgence of the Taliban.
It also notes that the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest.[52] In such circumstances I find that the level of protection available to the applicant from the Afghan Government does not meet the level of protection which citizens are entitled to expect.[53]
Relocation
[52] Ibid at 5.1–5.4.
[53] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.
A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[54]
[54] SZATV v MIAC (2007) 233 CLR 18.
I accept that the applicant is identifiable as a Hazara Shia from her physical appearance and the practise of the Shia religion. She has not lived in Afghanistan for almost 25 years and has no family members remaining in the country. Given DFAT’s advice that no part of Afghanistan is free of conflict related violence and the Internal Displacement Monitoring Centre’s research indicating that 90% of returnees struggle with food security and subsistence, I accept that relocation outside of Kabul is not reasonable in the particular circumstances of the applicant.
Given the country information cited above indicating that the security situation is rapidly deteriorating following the withdrawal of US and ISAF forces, and for the purposes of s.36(2) of the Act, I am satisfied that the real chance of harm extends to all areas of Afghanistan and effective protection is not available to the applicant.
For these reasons I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of her Hazara ethnicity, Shia religion, imputed political opinion and membership of the particular social group ‘women in Afghanistan’. It follows that she comes within Article 1A(2) of the Refugees Convention and her removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.
EXERCISE OF DISCRETION
Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard weigh strongly against cancelling the applicant’s visa. In particular I give significant weight to the following matters:
·Had the correct information been known to the delegate when the decision to grant the visa was made in 2014, I am satisfied the applicant would still have been granted the visa on the basis that she was a member of the immediate family of her husband. The applicant remains married to her husband, with whom she shares four children, the youngest of whom is an Australian citizen;
·At the time of my decision, the applicant faces a real chance of persecution if she returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of her Hazara race, her Shia religion, her membership of the particular social group ‘women in Afghanistan’ and her imputed political opinion;
·If the applicant’s visa remains cancelled, she will be an unlawful non-citizen and may be detained with limited options to apply for a further visa. I am satisfied that her removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;
·The applicant has been living in Australia with her husband and four children for almost seven years and she and her family have developed a multitude of connections in Australia. If the applicant’s visa remains cancelled, the visas of her three eldest children will also remain cancelled, affecting their education and employment prospects. The applicant’s visa and the three elder children will have a different visa status from the applicant’s husband and their youngest [child]. The cancellation of the applicant’s visa has caused significant distress to the family, particularly in the context of the rapidly deteriorating security situation in Afghanistan.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
For the reasons set out above and for the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation by operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants[55].
[55]Rani & Ors v MIMA (1997) 80 FCR 379, Tien & Ors v MIMA (1998) 89 FCR 80 at 96, Farah v MIAC [2011] FCA 185.
However, I note the Department’s Policy Guidelines which relevantly state:
Set aside of s109 cancellation decisions
Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.
The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.
In view of the Department’s Policy Guidelines, I understand that cancellation of the visas of the second, third and fourth named review applicants will be set aside in the same manner as the current cancellation.
CONCLUSIONS

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 200 (Refugee) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

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

[2021] AATA 3629

5 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice