1928095 (Migration)

[2021] AATA 3420

1928095 (Migration) [2021] AATA 3420 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928095

MEMBER:Kira Raif

DATE:28 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

Statement made on 28 July 2021 at 12:56pm

CATCHWORDS
MIGRATION – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in visa application – previous applications as secondary or primary applicant not declared – inconsistent and contradictory information in brother’s, mother’s and applicant’s applications and statements – documents and timing and circumstances of death of brother, disappearance of father and applicant’s departure – approximate dates and difficulty of recall – translation difficulties and forms completed or assisted by different people – no intention to mislead – discretion to cancel visa – non-refoulement – country information – Hazara Shia – deteriorating security situation ahead of announced withdrawal of international troops – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 100, 101, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan. He was granted the Refugee visa in Subclass 200 in September 2013. In April 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that het applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 26 September 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

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

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

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

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made the application for the Subclass 200 Refugee visa at an overseas post, in the name of [Alias] (dob [Date 1]) in March 2012. As part of that application, the applicant completed the application form 842 in which he stated the following:

   ·his name was [Alias] and date of birth as [Date 1]. He stated that he was born in [Location], Afghanistan and that he was a citizen of Afghanistan.

   ·The applicant gave details of his parents and siblings, stating that his mother and three siblings lived in Pakistan, one brother lived in Australia and the whereabouts of his father were unknown.

   ·he had not applied for an Australian visa before

   ·he feared returning to Afghanistan and Pakistan

   ·the applicant stated that his village is ‘covered’ by Pashtoon Taliban and he would have to pass their place when going out. The applicant referred to the death of his brother and disappearance of his father. The applicant stated that  Taliban would harm and kill him and his family as they are targeted everywhere as Hazara and Shia. The applicant stated that the government would not protect him.

   ·The applicant stated, on Form 80, that his brother [Mr A] was killed by the Taliban in 1998 and that his father went missing in 2000.

   ·He left Afghanistan in 2001.

10. The primary decision record indicates that the applicant referred to his brother [Mr B] who was resident in Australia. The information indicates that this brother [Mr B] was also known as [Mr B, Alias] and he first arrived in Australia in November 1999 and made an application for the protection visa. The delegate notes that this person has the same date of birth as the applicant indicated in his own protection visa, identified the same parents and siblings as the applicant identified in his own protection visa and was born in the same village as the applicant. The applicant did mention a brother by the name of [Mr B] in his own protection visa application. The primary decision record indicates that [Mr B] sponsored his mother (and the applicant as a member of the family unit) for two Global Special Humanitarian visas in May and September 2006 and for a Remaining Relative visa in July 2007. In December 2007 [Mr B] sponsored the applicant for a Sponsored Family Visitor visa on the basis that the applicant was his brother.

11. The primary decision record indicates that [Mr B] made contradictory claims in his own Refugee application. In his application it is recorded that the applicant’s brother claimed that

    ·Around October 1998 Taliban took over the village and the area. His father arranged for him to be taken to Pakistan by a smuggler but his siblings did not experience the same problems as they were younger

    ·His brother [Mr B], born in 1983, was alive in living in Afghanistan when his protection visa application was lodged.

12. In March 2004 [Mr B] attended a Tribunal hearing and stated that his family fled Afghanistan in 2002 – 2003 and moved to Pakistan.

13. The primary decision record indicates that the applicant’s mother [Ms C] made the application for the Global Special Humanitarian visa, proposed by [Mr B] and the applicant was included as a secondary applicant. In that application, [Ms C] made the following claims

    ·It was claimed that the applicant was born in [Month, Year 2], with that date of birth supported by the applicant’s passport. This contradicts the date of birth stated by the applicant in his own protection visa application.

    ·In 2002 she heard that Pashtoon men were looking for her husband. He left the house and never returned and she feared him dead.

    ·Soon after, Pashtoon men came looking for her husband. Her son [Mr A] told them he did not know where his father was and they shot [Mr A].

    ·As they were fearful for their lives, they fled Afghanistan and went to Pakistan.

14. In September 2006 [Ms C] made another application for the Global Special Humanitarian  visa which included the applicant as a secondary applicant. In that application she also stated that she last saw her husband in 2002 and that she left Afghanistan in the same year. Both applications were refused.

15. In July 2007 [Ms C] made an application for a remaining Relative visa, sponsored by [Mr B]. In that application, [Mr B] stated that

    ·the applicant was born in [Month, Year 2] and provided copies of his passport and tazkera,

    ·the applicant lived in Afghanistan from 1997 to 2002 and in Pakistan from 2002.

16. The applicant made an application for the Sponsored Family Visitor (Subclass 679) visa in December 2007, sponsored by [Mr B]. In that  application, the applicant stated his date of birth as [Date 2] and he provided copies of his Afghan tazkera and passport. That application was refused in April 1985.

17. In July 2009 the applicant’s mother made another application for the Global Special Humanitarian visa. The applicant was not included in that application. She stated in that application that she left Afghanistan in 2002. [Mr B] included a statement in which he claimed that he had left the family a year ago and had no news of the applicant’s whereabouts and whether he was dead or alive.

18. Having regard to the above information, the delegate concluded that the applicant gave incorrect answers in his protection visa application when stating that

    ·he had not applied for an Australian visa before, as he was included in the two applications for the Global Special Humanitarian visas made by his mother, the Remaining Relative application made by his mother and his own application for the Visitor visa.

    ·he did not have a travel or identity document, noting that copies of the applicant’s passport and tazkera were included in the previous applications

    ·he left Afghanistan  in 2001. In his Tribunal review in 2004 [Mr B] claimed the family left Afghanistan in 2002 or early 2003. In the two applications for the Global Special Humanitarian visas and the Remaining visas and the mother’s third application for the Global Special Humanitarian visa it was claimed the family left Afghanistan in 2002

    ·the reason why he left Afghanistan. The delegate formed the view that the applicant left Afghanistan in 2002 and not in 2001 as claimed and that his father went missing in 2002 and not in 2000 as claimed. The delegate noted that [Mr B] claimed in his protection visa application that their brother [Mr A] was alive and living in Afghanistan at the time he left Afghanistan in August 1999 while the applicant claimed his brother had been killed by the Taliban in 1998. The delegate also noted that in his mother’s Global Special Humanitarian application made in May 2005 she claimed [Mr A] was killed in 2002, contradicting the applicant’s claim that he was killed in 1998.

    ·[Mr A] was born in 1978 and would have been around 20 at the time he was killed by the Taliban in 1998. However in other applications it was claimed that [Mr A] was born in 1983 and was alive beyond 1998.

19. The delegate concluded that the applicant gave incorrect answers by stating that he fled Afghanistan following the death of his brother and disappearance of his father and because they had no adult male in the family.

20. In his response to the NOICC the applicant stated that he never intended to lie or mislead. The applicant states that dates are not important in the Afghan culture and he could not recall exact dates. The applicant states that his date of birth is approximate and was recorded on the official documents on the basis of his father’s tazkera, which was arranged by his brother [Mr B]. The passport was issued on the basis of the tazkera and the passport officials made up the date to correspond to the western idea of birthdate. He did not provide incorrect information to the officials and cannot remember the dates.

21. It is not in dispute that the applicant made several visa applications in the past, including for the Sponsored Visitor visa as a primary applicant and for Global Special Humanitarian visas as a secondary applicant. In his response to the NOICC the applicant explains that he had no English and somebody at the UN office helped him with the forms and he does not recall being asked about previous applications. In oral evidence to the Tribunal the applicant explains that he had no English and when somebody helped him with the form, he thought he was asked about his own applications and his own visits to Australia while the earlier forms were completed by others and he had not travelled to Australia before. Even if the Tribunal were to accept that evidence (and the Tribunal notes that the application for the Visitor visa was made in the applicant’s own name), the Tribunal is mindful that under s. 100, an answer on the form may be incorrect even if the person who gives it does not know that it is incorrect. The Tribunal finds that the applicant gave an incorrect answer on the form by stating that he had not applied for Australian visas previously and he therefore completed an application form in a way that an incorrect answer was given. The Tribunal finds that this constitutes non-compliance with s. 101 of the Act.

22. With respect to his age, the applicant states that he never knew his date of birth and relied on what his mother told him. When he was in [Country], he had no documents and could not remember the date written in his passport and tazkera. If he had his documents, he would have given the dates in the documents. The applicant’s brother explained that he did not have access to the documents when he filled in the forms and he was not sure. The applicant’s brother explained that they use different calendars so there was no precise date.

23. With respect to his travel document or identity document, the applicant explains in his response to the NOICC and to the Tribunal that he did not have his tazkera in [Country]. He was asked whether he had travel documents or identity documents with him and he truthfully replied that he did not. The Tribunal is mindful that the question on the form (as set out in the primary decision record) required the applicant to give detail of any valid travel or identity document, not those in his possession. Again, even if the applicant genuinely believed he was asked about documents in his possession, s. 100 applies. The Tribunal finds that the applicant gave an incorrect answer by stating ‘no’ when asked about his travel or identity document. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer was given or provided, in breach of s. 101 of the Act.

24. With respect to the date of his departure from Afghanistan, the applicant states that be believed it was after 2000 or 2001 and notes that there was chaos at the time and Hazaras and Shias were being killed. The applicant reiterated that dates are not important. The applicant explains to the Tribunal that there were killings of Hazara at the time and there was chaos. The applicant explains that he had not given the specific date but said ‘2000’s’. He could not recall the specific date. The Tribunal acknowledges that the applicant may not have been aware of the precise date, although the Tribunal is mindful that in the subsequent applications different but consistent dates were given.

25. With respect to the death of his brother, the applicant also states that he cannot recall the exact dates. He states that his brother prepared the statement with the assistance of another person as he was illiterate and he did not have professional advice. The applicant submits that the story was ‘confused’ by the interpreter who was a Dari speaker and not a Hazaragi speaker. The applicant states that [Mr B] did tell the interpreter that the death of [Mr A] was the trigger for him to flee Afghanistan. (The primary decision record indicates that [Mr B] made no mention of  [Mr A] being killed in his own protection visa application or any interviews and this would have been a significant part of his claims, if true. The delegate also noted that even if dates may be unimportant in the Afghan culture, the applicant claimed that the death of [Mr A] caused his brother [Mr B] to leave Afghanistan and the delegate rejected the claim that [Mr A] was killed before [Mr B] left the country.)

26. The applicant told the Tribunal that [Mr A] was the eldest in the family and was killed and that was the reason the family fled. The applicant confirmed that the killing of the brother was the reason [Mr B] left the country and maybe [Mr B] did not have the chance to explain. The applicant states that his brother was killed around 1998 or 1999 but he could not recall the precise date. The applicant states that the forms were completed by different people and that may explain different dates. The applicant’s brother stated that he did mention the killing of his brother in his own protection visa application and in his initial interview and later submissions.

27. The Tribunal acknowledges that there are discrepancies in the dates given by the applicant in the Refugee visa application and the earlier application in relation to the dates when the family fled Afghanistan and when the brother was killed and the father disappeared. However, the Tribunal is mindful that the actual killing of the brother and the family’s departure from Afghanistan are not in dispute and the Tribunal acknowledges [Mr B]’s evidence that he did rely on the killing of his brother in his own application.

28. The Tribunal has found that the applicant gave incorrect answers at least in relation to his date of birth, his previous visa applications and his identity documents. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance withs. 101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

29. 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).

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

    The correct information

31. The correct information is that the applicant did previously made applications for other Australian visas. The correct information is that the applicant did have a passport and an identity document. It is unclear what the correct information is in relation to the time when the applicant’s brother was killed or when the family left Afghanistan. The applicant states that his brother was killed and his father disappeared and he believes his brother [Mr B] did mention his brother’s death and that is also the evidence of [Mr B]. 

    The content of the genuine document (if any)

1. This is not relevant in the present case.

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

2. An applicant’s identity is an important factor in an assessment of any visa application and is it usually established through personal documents such as passport or identity cards. In this case, the applicant claimed that he did not have such documents and that information was incorrect. He also gave an inconsistent date of birth. In the Tribunal’s view, these matters go to the applicant’s identity which was relevant to the assessment of visa criteria.

3. The applicant’s previous applications may have also been relevant to the assessment of his credibility as the delegate may have considered whether information in the various applications was consistent. The same applies in relation to the applicant’s claims when his brother was killed and when his father disappeared. These answers were relevant to the assessment of the applicant’s credibility.

4. It is not for this Tribunal to determine whether the visa would have been granted if the correct information was known. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

   The circumstances in which the non-compliance occurred

5. The applicant explains in response to the NOICC and his evidence to the Tribunal that he received help when completing the form from other asylum seekers and did not remember being asked about his past applications and he also explains he believed he was asked about identity documents in his possession and he did not have his identity documents with him. With respect to the various dates, the applicant explains that these are not important in his culture. The applicant also explained to the Tribunal that the process was very new to him and he had limited English and the previous applications were made by his brother. The applicant states that dates are not important in his culture and he had no intention to mislead.

6. The Tribunal accepts that the applicant may have been confused about the dates, given that dates are not important in his culture and there may have been confusion about the timing various events. The Tribunal is also prepared to accept that the applicant is not well aware of his date of birth. The Tribunal finds other evidence more problematic, such as the applicant’s failure to mention previous visa applications.

   The present circumstances of the visa holder

7. The applicant told the Tribunal that he had done various jobs in Australia, working in [work sectors]. The applicant provided to the Tribunal a character reference and evidence of his involvement in community activities.  The applicant states that he has been living with his brother [Mr B] since arriving in Australia.

8. The applicant refers to the hardship he has experienced once his visa was cancelled, stating that the uncertainty about the future caused him anxiety and sleeplessness.

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

9. Nothing adverse is known about the applicant’s subsequent behaviour.

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

10. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

11. The application was made in March 2012 and over nine years passed since the non-compliance. the Tribunal acknowledges it is a lengthy period.

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

12. There are no known breaches of the law.

    Any contribution made by the holder to the community.

13. The applicant provided to the Tribunal evidence of having received recognition for his involvement in community activities. The applicant told the Tribunal that he volunteers for a number of community organisation and has made donations. The Tribunal accepts that the applicant has made a contribution to the community.

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

    Whether there would be consequential cancellations under s.140.

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

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

16. There are no children affected by the cancellation.

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

17. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

18. The applicant states that as a Shia Hazara, he would be subjected to harm upon return to Afghanistan and he cannot travel to Pakistan because he never had the visa for Pakistan. In his evidence to the Tribunal the applicant states that the current government does not offer any protection or support to Hazaras and he refers to the killings of Hazaras. The applicant submits that the situation has deteriorated with the withdrawal of the American forces and there is presently mass migration of Hazaras from Afghanistan.

19. The Tribunal has considered the available country information in relation to the situation in Afghanistan.

20. In an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, 'Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action' the authors state neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can't 'erase the freedoms that women have earned'. Ultimately, economic prosperity is critical as, 'This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school'.

21. NBC News referenced a U.S. Defense Intelligence Agency report that provides some insight into the capabilities of the Taliban:

    The report cited analysis from the Defense Intelligence Agency saying that from Jan. 1 through March 31, 2021, the Taliban's military strategy was to prepare for large-scale offensives against provincial centers, complex attacks against the Afghan National Defense and Security Forces' bases, and degrading the Afghan forces' capabilities.

22. In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan provinces to prepare these offensives, and they continued assassinating government employees, security officials, and journalists, the report says.

23. Citing information from the Defense Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened. At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defense Intelligence Agency reported that these offensives 'did not accomplish anything of strategic value'.

24. The United States has indicated that it will be expediting U.S. visa processing for Afghans who were employed by the U.S. government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the U.S. Special Envoy for Afghanistan was reported as sharing 'the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for U.S. troops and diplomats. He said the Biden administration was working to expedite applications for U.S. visas under a program designed for Afghans who were employed by the U.S. government'. The Australian government has closed its embassy in Afghanistan prior to the withdrawal of U.S. troops. Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

25. It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan's constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

26. The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn.

    Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, 'While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazara as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way'… For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

27. The former ambassador then concludes by saying, 'what looms ahead is the elimination of this ethnic group'.

28. Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.

29. There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, 'In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the 'foreign infidel powers' and their 'puppet regime'. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban's overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group's strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras. The author then concludes by believing that 'Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow'.

30. In another assessment of the Taliban's claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks 'there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks'. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al-Qaeda to appreciate the view towards minorities such as the Hazara.

31. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara.

32. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

33. The Tribunal has also discussed with the applicant the possibility of making another application for a protection visa onshore. The applicant submits that the uncertainty associated with that process, which may take some years, would be detrimental to his well-being and that of his brother. The Tribunal accepts that evidence and also acknowledges that if the applicant is able to apply for another visa, there can be no certainty of the visa being granted.

34. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation. However, the Tribunal also acknowledges that if the applicant is not able to remain in Australia, his return to Afghanistan may result in the applicant facing a real chance of persecution or a real risk of harm.

35. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of his Hazara ethnicity and his Shia religion. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

36. With respect to the principles of family unity, the applicant’s brother lives in Australia while two of his siblings reside overseas.

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

37. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia.

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

38. The applicant told the Tribunal that he has been living with his brother’s family for many years and the cancelation of his visa had affected his brother’s family. The applicant states that if his visa is cancelled and if he pursues another visa, the uncertainty may last for many years. The applicant’s brother spoke about the hardship that he and family members would experience if the applicant’s visa is cancelled and he is required to leave Australia. the Tribunal accepts that  evidence.

39. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant had completed the form in a way that incorrect answers were given and that there are grounds for cancelling his visa.

40. The Tribunal places significant weight on the fact that the incorrect answers do not necessarily undermine the basis of the applicant’s claims which resulted in the grant of the visa. Essentially, the applicant was granted the visa as a Shia Hazara and these claims are not in dispute. The Tribunal accepts the applicant’s explanation that the discrepancies about the various dates are caused by cultural factors and that the applicant was not aware of the precise dates of various events. While other answers are more significant, such as the timing of his brother’s death and of his family’s departure from Afghanistan, the Tribunal acknowledges the applicant’s evidence that he was never aware of the precise dates. The Tribunal accepts that the provision of at least some of the incorrect answers was unintentional although the Tribunal is less satisfied that is the case in relation to other information such as the previous visa applications.

41. The Tribunal accepts that the cancellation of the visa would cause significant hardship to the applicant and his family. The Tribunal places significant weight on the country information which indicates that Shia Hazaras are targeted in Afghanistan and the Tribunal accepts that  the applicant may face significant risk to his safety and well-being if he is required to leave Australia and return to Afghanistan as a result of the visa cancellation. While the Tribunal acknowledges there are some factors in favour of the cancellation, the Tribunal has formed the view that the above matters outweigh other considerations.

42. 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, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.

    Kira Raif
    Senior Member