1930514 (Migration) - [2021] AATA 4359

1930514 (Migration) [2021] AATA 4359 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1930514

MEMBER:Alison Murphy
DATE:28 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 28 October 2021 at 4:21pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – Federal Circuit Court remittal – incorrect answers in the visa application – family composition – death of the applicant’s father – race – Hazara – credibility issues – long period of separation from family – potentially prolonged detention – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140, 189, 375A
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 202.211
CASES
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Suleyman v MIMA [2000] FCA 610
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 Immigration and Border Protection to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the resident return visa on the basis that they considered the applicant had given incorrect information about his marital status; his family composition and the death of his father at the hands of the Taliban in 2005 in a Global Special Humanitarian visa application proposed by his brother [named] in 2007 and granted in 2008. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 17 December 2016 this Tribunal (differently constituted) affirmed the decision of the delegate. [In] October 2019 the Federal Circuit Court of Australia quashed the Tribunal’s decision and remitted the matter back to the Tribunal for reconsideration on the basis that the Tribunal made a material finding of fact that was not supported by logically probative materials, being that the applicant’s Global Special Humanitarian visa would not have been granted had the correct information been provided.
The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Due to COVID-19 restrictions in operation in Melbourne at the time, the hearing took place by video with the interpreter connected by telephone.
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.
BACKGROUND
The applicant is [an age]-year-old male who arrived in Australia by boat [in] September 2008 as the holder of a Global Special Humanitarian (Subclass 202) visa granted to him on 4 June 2008. In that visa application he stated among other things that he was unmarried, that he had no children and that his father had been killed by the Taliban in 2005 after the applicant and his father were detained for four months.
The applicant applied for Australian citizenship [in] June 2013 and that application was refused [in] November 2013. ICSE records indicate it was refused because the applicant was a not a permanent resident at that time. He was granted the Subclass 155 (Five Year Resident Return) visa on 3 June 2014 and it is that visa which is the subject of the current cancellation.
The Department of Immigration (the Department) subsequently formed the view that the applicant’s statements in the Global Special Humanitarian (Subclass 202) visa to the effect that he was unmarried, had no children and that his father had been killed by the Taliban in 2005 were incorrect. On 13 February 2015 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 him that the Department was considering the cancellation of his resident return visa on the ground that he had given incorrect information in his Global Special Humanitarian visa application.
That notice identified the allegedly incorrect information as follows:
·     That at questions 26 and 28 of the Form 842 Global Special Humanitarian (Subclass 202) visa application, the applicant stated (among other things) that he left Afghanistan because he and his father were captured by the Taliban when crossing the border and held against their will for about four months, during which time his father died of the torture inflicted upon him by the Taliban in about August 2005. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition;
·     That at questions 13, 15, 26 and 51 of the Form 842, the applicant stated that his father was dead. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition;
·     That at question 2 of the Form 842, the applicant stated that he had never been married. This information was alleged to be incorrect because in the phone call between a Departmental officer and the applicant’s father on 18 June 2013, the applicant’s father identified himself as the father-in-law of [name], the applicant’s wife, and DNA testing confirmed that the applicant and his wife had a child, [Child A], born [DOB 1];
·     That at question 9 of the Form 842, the applicant stated that he didn’t have any children from a previous marriage or relationship. This information was alleged to be incorrect because DNA testing confirmed that the applicant and his wife had a child, [Child A], born on [DOB 1];
·     That at question 13 of the Form 842, the applicant stated that he didn’t have any non-dependent children. This information was alleged to be incorrect because DNA testing confirmed that the applicant and his wife had a child, [Child A], born on [DOB 1];
·     That at question 51 of the Form 842, the applicant declared that the information he had supplied was true, complete and correct in every detail. This information was alleged to be incorrect because of the incorrect information cited above;
·     That at questions 9 and 11 of the sponsorship application Form 40SP, lodged on 21 April 2010 in respect of the applicant’s partner visa application, the applicant stated that he first met his [wife] on 20 March 2009 and they commenced a relationship a week later. This information was alleged to be incorrect because the applicant commenced a relationship with his wife sometime prior to the conception of their child [Child A] in 2004;
·     That at an interview with an immigration officer in Tehran [in] January 2008, he incorrectly stated that the Taliban blinded and slaughtered his father in front of him. This information was alleged to be incorrect because on 18 June 2013, a Departmental officer called the applicant’s wife’s mobile phone in connection with the applicant’s partner visa application and the call was answered by a person identifying himself as the applicant’s father and who provided detailed information about the applicant’s family composition.
The applicant responded to the s 107 notice on 26 February 2015. In that response he denied providing incorrect information in the Global Special Humanitarian (Subclass 202) visa application. He maintained that his father had died at the hands of the Taliban in 2013, that the person with whom the Departmental officer had spoken to on 18 June 2013 was his wife’s uncle and not the applicant’s father and that person had lied about his identity because he did not know what the phone call related to and wished to protect his niece and show that there was a male living in the house.
The applicant maintained that he was unmarried at the time of the Global Special Humanitarian visa and that his son, [Child A], was conceived before his marriage to his wife while she was married to someone else. He maintained he was at risk of harm if returned to Afghanistan because of his Hazara ethnicity and produced a number of statutory declarations from persons in Australia who claimed to know the applicant’s family and to have knowledge of his father’s death in 2015. Some of those persons claimed to have attended a funeral service for the applicant’s father held in Melbourne by the applicant’s brother, [named]. He also provided a VicRoads notice indicating he had three speeding offences between 2010 and 2014 for which he lost [number] demerit points on each occasion and evidence of his tax returns, as well as several references relating to his work as [an Occupation 1].
On 11 February 2016, a delegate of the Minister cancelled the applicant’s resident return visa, finding that he had given incorrect information at questions 2, 9, 13, 26 and 28 in his Global Special Humanitarian visa application in relation to his statements that he was unmarried, had no children and that his father had been killed by the Taliban in 2005.
In the exercise of the discretion to cancel the visa, the delegate considered the discretionary factors contained in reg 2.41 of the Migration Regulations 1994 (the Regulations), but concluded the visa should be cancelled. The delegate did not accept the applicant’s explanations for the apparently incorrect information, concluding that his father was not killed by the Taliban, that the applicant was not single at the time of his visa application and that he had fabricated his father’s killing and his single status to heighten the vulnerability of his personal circumstances. The delegate considered that the decision to grant the visa was based significantly on the incorrect information about his father and it was unlikely the visa would have been granted had the correct information been known.
In considering Australia’s international obligations, the delegate noted that the applicant could make an application for a protection visa and that this would be the appropriate place to ventilate his protection claims. The delegate also noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan, and therefore the delegate did not make her own assessment of those matters. The delegate noted the effect of ss 189, 196 and 198 of the Act but considered the applicant would not be subjected to an indefinite period of detention as he could choose to depart Australia to join his family residing overseas.
The applicant sought a review of the delegate’s decision from this Tribunal.
THE REVIEW PROCEEDING
Non-disclosure certificate
The Tribunal has been provided by the Department with electronic versions of the departmental file relating to the cancellation of the applicant’s resident return visa [file number]. That file contains copies of the case note relating to the phone call to the applicant’s father on 18 June 2013, the results of the DNA test dated 24 September 2012, the Form 40SP and other documents relating to the applicant’s partner visa application and the notes from the immigration officer in Tehran [in] January 2008.
The delegate has placed restrictions on some of the material given to the Tribunal by the Department by issuing a certificate under s 375A in respect of folios 1 to 7, 158 and 172 to 175 of [file number] on the basis that disclosure of the information may reveal investigative methodology and affect future capacity to obtain information using these methods.
Where a certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the review.
The applicant’s representative was provided with a copy of the certificate but elected not to make submissions as to its validity. The s 375A certificate appears to be valid on its face and the contents of those folios have not been disclosed to the applicant by the Tribunal.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) in relation to his statements that he was unmarried, had no children and that his father had been killed by the Taliban in 2005.
The review application was first heard by this Tribunal (differently constituted) on 25 November 2016. Before the first Tribunal, the applicant continued to maintain that he had not provided incorrect information in his Global Special Humanitarian visa application. He provided detailed statements and submissions to the effect that he was neither married nor in a de facto relationship with his wife at the time the visa application was made; rather, their son was born in the context of an affair he had with his wife at a time she was married to someone else. He claimed to be unaware that [Child A] was his son at the time of the visa application and that both he and his wife believed [Child A] to be the child of her then current husband. He maintained that his father had been killed by the Taliban in 2005 and that the person to whom the Departmental officer had spoken to by telephone on 18 June 2013 was his wife’s uncle [named], who did not understand the nature of the call and wanted to show that there was a male presence in the home of the applicant’s wife.
On 17 December 2016 the Tribunal affirmed the decision to cancel the applicant’s visa. In doing so, the Tribunal did not accept the applicant’s explanation for the apparently inconsistent information, finding the applicant gave incorrect information at questions 9, 13, 15, 26 to 30 and 51 of the Global Special Humanitarian visa application. After considering the prescribed circumstances set out in reg 2.41 of the Regulations, the Tribunal concluded the visa should be cancelled.
As noted above, the applicant sought a review of the first Tribunal’s decision from the Federal Circuit Court of Australia and the matter was remitted back to the Tribunal for reconsideration [in] October 2019.
There was a significant change to the applicant’s evidence before the reconstituted Tribunal, in that the applicant acknowledged for the first time that he had provided incorrect information in the Global Special Humanitarian visa application in the manner set out in the s 107 notice.
In submissions lodged with the Tribunal on 21 October 2021, the applicant conceded that the information he had provided to the Department, and the Tribunal on review, was incorrect as detailed in the s 107 notice. In particular, it was conceded that the applicant was married to [his wife] and they had one child, [Child A], at the time he made the Global Special Humanitarian visa application (noting that the applicant and his wife have since had [number] more children). It was also conceded that the applicant’s father was not killed by the Taliban in 2005 as stated in the Global Special Humanitarian visa application, rather, the applicant’s father was alive at that time and died of illness in 2013. It was acknowledged that the person the departmental officer spoke to on the telephone on 18 June 2013 was the applicant’s father and not his wife’s uncle as previously suggested.
At hearing, the applicant confirmed each of these matters. The applicant’s representative confirmed that there was no dispute that the applicant provided incorrect information at questions 2, 9, 13, 15, 26 and 51 of the Global Special Humanitarian visa application in the manner set out in the notice. There is also no dispute that the applicant provided incorrect information at an interview with an immigration officer in Tehran [in] January 2008 in respect of that visa application and at questions 9 and 11 of the sponsorship application Form 40SP lodged on 21 April 2010 in respect of the applicant’s partner visa application.
For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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 reg 2.41 of the Regulations.
The correct information: For the reasons set out above, I have found that the correct information was that the applicant was married to [his wife] at the time he made the Global Special Humanitarian visa application and they had one child, [Child A]. I have found that the correct information was that the applicant’s father was not killed by the Taliban in 2005 as stated in the Global Special Humanitarian visa application, rather, the applicant’s father was alive at that time of that application and later died of illness in 2013.
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 Global Special Humanitarian visa following a decision by a delegate of the Minister on or about 8 June 2008. While there does not appear to be any formal decision record relating to the grant of the visa, an IRIS case note dated 4 June 2008 indicates that the applicant was interviewed and satisfied the delegate that he had a well-founded fear of persecution. That case note very briefly summarises the applicant’s claims against the visa, including his account of being captured by the Taliban and forced to work for them. It includes the statement: ‘At one point they selected and blindfolded PA’s father and slaughtered his father in front of him . . .’

The s 107 notice does not suggest that the applicant’s own claims to have been abducted and forced to work for the Taliban for several months in 2005 were incorrect, rather, it alleges that the applicant exaggerated his fear by stating that his father was killed by the Taliban. The cancellation delegate concluded that the decision to grant the applicant the Global Special Humanitarian visa was based significantly on the incorrect information, being that the applicant’s father was killed by the Taliban, and that it was unlikely the visa would have been granted had the correct information been known.
The s 107 notice sets out that the relevant criteria for the grant of the visa was set out in cl 202.211(1)(a) of Schedule 2 to the Regulations which stated at the time:
(l) The applicant:
(a) is subject to substantial discrimination, amounting to gross violation
of human rights, in the applicant's home country and is living in a country other than the applicant's home country; or
The brevity of the records relating to the reasons for the grant of the Global Special Humanitarian visa make it difficult to assess whether the visa application would have been granted had the correct information been known, as does the fact that the applicant’s claims about his own abduction by the Taliban are not easily severable from his claims that he and his father were abducted together.
While the applicant’s representative concedes that the applicant relied upon claims about his father to bolster his claims for protection, it is not conceded that the applicant would not have been granted the visa if the incorrect information had not been provided. Rather it is suggested that the applicant’s claims alone may have been sufficient to engage Australia’s protection obligations for the purpose of the Global Special Humanitarian visa.[1]
[1] Submissions dated 20 October 2021 at paragraph 20
At hearing before me the applicant maintained that his account of own experiences of being abducted and mistreated by the Taliban in 2005 were correct, and that the incorrect information extended only to his claims that his father was abducted along with him and later killed. His brother, [named], gave evidence that he believed his brother’s account of his abduction by the Taliban, telling the Tribunal he first found out about it in about 2007 after his brother contacted him from Iran where he had fled after escaping the Taliban. He gave evidence that he believed his brother’s account of his experiences and this was the reason he sponsored his brother to come to Australia.
At hearing, I raised with the applicant the issue of his credibility, noting that he had provided the incorrect information not just in the Global Special Humanitarian visa application but also in his partner visa application, in response to the s 107 notice and before the first Tribunal in 2016. Of further concern is that the applicant produced to the Department and first Tribunal a number of statutory declarations from other members of the Afghan community in Australia who claimed knowledge of his father’s death at the hands of the Taliban in 2005, a matter now acknowledged to be untrue. Some of those persons also claimed to have attended the applicant’s father’s funeral in Melbourne. I have had regard to the submission by the applicant’s representative at hearing that those persons may have in fact attended a funeral service for the applicant’s father in Melbourne after his death in 2013, but I note that is not consistent with the contents of the statutory declarations. It is a matter of grave concern that the applicant has sought to involve others in the provision of the incorrect information and it reflects extremely poorly on his credibility.
I accept that the applicant’s claims to have been abducted by and forced to work for the Taliban in 2005 were capable of establishing that the applicant met the criteria for the grant of the Global Special Humanitarian visa set out in cl 202.211(1)(a). The more difficult issue is assessing whether those claims would have been accepted as true, had the delegate known that the applicant’s claims about his father were fabricated. Ultimately I am not satisfied that the applicant’s claims to have been abducted would have been accepted by the delegate in those circumstances.
I note the applicant is of Hazara ethnicity and Shia religion and it is submitted that these claims alone may have been sufficient to meet the criteria for the visa. I do not consider the material before me allows me to draw such a conclusion, noting the ICSE case note makes no reference to those matters. For these reasons I consider the grant of the visa was based in significant part on the incorrect information and this weighs in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred: The applicant states that he provided the incorrect information because he thought his claims would be considered stronger if he told the Department he was single and his father had died. This was because he was scared and anxious and he thought that those who were single and without family in Afghanistan and who had family in Australia had a higher chance of being granted an Australian visa. In response to the s 107 notice and before the first Tribunal, he felt he had to maintain the incorrect information he had given previously.
I find that the applicant deliberately provided the incorrect information for the purposes of increasing his chances of being granted the Global Special Humanitarian visa and I consider this weighs in favour of cancellation of the visa.
The present circumstances of the visa holder and his contribution to the community: The applicant has lived in Australia since his first arrival in September 2008. His family in Australia comprises his brother [named] and [that brother’s] family, as well as another brother. His parents have both died in Pakistan since the applicant’s arrival in Australia. His wife and children are in Pakistan where they live as refugees.
Prior to the cancellation of his visa, the applicant regularly visited his wife and children in Pakistan where they reside as refugees. He attempted to sponsor them to Australia on a partner visa in 2010. That visa was refused, apparently after incorrect information relating to that which grounded the current visa cancellation came to light.
Since his resident return visa was cancelled in February 2016, the applicant has been unable to depart Australia and return. As a consequence, he has been separated from his wife and children in Afghanistan for a prolonged period. At hearing, the applicant gave evidence that his wife was suffering from depression and his children were distressed by his long absence and I accept that to be true. Medical evidence submitted to the Tribunal indicates the applicant has suffered from depressive symptoms for the past four years and has been referred for psychological counselling.
Prior to the cancellation of his visa, the applicant worked as [an Occupation 1] and paid taxes as evidenced by his tax returns. Following the cancellation of his visa, the applicant became financially dependent on his brother, [named]. [That brother] gave evidence that he is [an Occupation 1] and operates a [business] and he is in a position to immediately employ his brother as [an Occupation 1] if his visa is not cancelled. [His brother] also supports the applicant’s wife and children in Pakistan, giving evidence to the Tribunal that he operates his [business] an extra day a week to earn enough to support the applicant and his family.
I consider the applicant’s difficult personal circumstances and long period of separation from his family weigh against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The applicant maintained the incorrect information in his response to s 107 notice and in his evidence to the first Tribunal. I consider this weighs in favour of cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that the applicant also provided the incorrect information in his partner visa application and the applicant concedes this to be the case. He also acknowledges maintaining his incorrect family composition in his citizenship application. I consider this weighs in favour of cancellation of the visa.
The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant provided information in support of the global humanitarian visa application in 2007 and 2008 and approximately 13 years have elapsed since then. I consider the long period in which he has lived in the Australian community weighs against the cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records that the applicant submitted a VicRoads record showing the applicant had three driving offences for which he lost [number] demerit points between 2010 and 2014. The delegate records that there are no known other breaches of the law since the non-compliance occurred. I consider this weighs slightly in favour of cancellation of the visa.
Any contribution made by the holder to the community: The applicant has provided a number of personal and professional references. He participates in [a named community organisation in] Australia. I give this matter some weight against the visa cancellation.
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 Guidelines, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
In this case, while the applicant has two brothers in Australia, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act. However, the applicant will only be able to sponsor his wife and children to Australia if his visa is re-instated or he is granted another permanent residency visa.
In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s visa is cancelled the applicant will have the option to make an application for a protection visa. The recent events in Afghanistan, as discussed below, cause me to consider the applicant may well be assessed as being owed protection by Australia. In that sense the cancellation of the applicant’s resident return visa will not necessarily lead to the applicant’s removal from Australia. However, I accept that the process of lodging a protection visa application and having that application assessed may take some time and in any event the outcome of such a visa application cannot be certain.
In the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, the prospects of such an application are unknown and such a decision is not reviewable or compellable.
Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[2] However, it remains the case that s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and any consideration of how the Minister may exercise his discretion is merely speculative. Therefore, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Afghanistan voluntarily.
[2] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5
The prospects of any voluntary return appear remote, given the collapse of the elected Afghan government in August 2021 and the takeover by the Taliban. Further the applicant’s wife and children are resident in Pakistan and it would appear they are unlikely to return to Afghanistan given the current circumstances in that country. I consider the prospect of the applicant facing a prolonged period in immigration detention weighs against the cancellation of the visa.
For the sake of completeness I note that the provisions s 197C(3) of the Act do not apply in this case as the applicant has never made a valid application for a protection visa that has been finally determined pursuant to s 197C(3)(a).
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 if the applicant’s visa is cancelled, he could choose to apply for a protection visa and ventilate his claims for protection in that forum. An International Treaties Obligation Assessment would then be undertaken for the purpose of assessing whether Australia has non-refoulement obligations to the applicant. For those reasons the delegate did not undertake her own assessment of Australia’s non-refoulement obligations to the applicant.
The applicant argues that the Tribunal is tasked with assessing his protection claims as part of the cancellation process and maintains he has a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity, his Shia religion, his imputed political opinion and his membership of the particular social groups ‘returnees from the West’ and ‘people associated with the West’. It is submitted that these claims are borne out by the country information following the collapse of the Karzai government, the takeover by the Taliban and the establishment of the Islamic Emirate of Afghanistan in August 2021.
It has been widely reported that in August 2021, in the wake of the withdrawal of international troops from Afghanistan, there was a rapid deterioration of the security and human rights situation across Afghanistan. The Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[3] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President Ashraf Ghani fled Afghanistan.[4] By 17 August 2021, the Taliban had declared they had no interest in a shared interim government and installed themselves as the new government of Afghanistan.[5]
[3] UNHCR UNHCR Position on Returns to Afghanistan August 2021 at Refworld | UNHCR Position on Returns to Afghanistan
[4] BBC News Ashraf Ghani: Afghanistan’s exiled president lands in UAE 18 August 2021
[5] Afghan Analysts Netword Afghanistan has a new government: the country wonders what the new normal will look like 17 August 2021 at Afghanistan Has a New Government: The country wonders what the new normal will look like - Afghanistan Analysts Network - English (afghanistan-analysts.org)
The recent nature of these developments raises questions about the future of religious and ethnic minorities and other vulnerable groups in Afghanistan under Taliban rule, including Hazara Shias such as the applicant. History shows that the Taliban’s previous takeover of Kabul and most of Afghanistan in 1996 marked a period of considerable repression for Hazara, leading many to flee Afghanistan.[6]
[6] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8.
Other country information to which the Tribunal has been referred suggests that the last time the Taliban controlled Afghanistan, it subjected Hazara Shias to violent persecution including the Mazar-e-Sharif massacre on 8 August 1998 in which Taliban went from house to house systematically executing all males of fighting age in front of their families, killing around 2000 people.[7]
[7]Human Rights Watch, The Massacre in Mazar-i-Sharif, November 1998,
There are some indications that the new Taliban regime may be more inclusive than the previous Taliban regime that fell in 2001. On 22 September 2021, the International Crisis Group (ICG) reported that the Taliban had published new ministerial appointments which slightly broadened the new government’s makeup and included a small number of ethnic minorities, including one Hazara. However, it noted that while the inclusion of more officials from minority groups is something western and regional governments have been pushing for, these nominations do not indicate the Taliban are willing to make any significant concessions for the sake of international recognition, sanctions relief or foreign aid, rather they are ‘designed largely to strike an internal balance by accommodating various Taliban factions that felt neglected following the first round of nominations.’[8]
[8] ICG, 28 September 2021
The United Nations General Assembly (UNGA) reports that while the Taliban have attempted to portray to the world that they will respect human rights and lead a more inclusive government, the reality on the ground does not reflect this. Rather, after seizing Kabul, the Taliban are reported to have erected checkpoints throughout the capital and shot people who crossed checkpoints without approval and conducted house-to-house searches for government personnel, weapons and property.[9]
[9] UNGA, 2 September 2021, p. 5

Analysts describe the Taliban as a ‘religiously motivated, religiously conservative movement that will not give up what they consider their core “values”.’[10] Reuters reported on 17 August 2021 that, ‘[a]lthough much had yet to be finalised, [Waheedullah] Hashimi [a senior member of the Taliban] said the country would not be a democracy, “There will be no democratic system at all because it does not have any base in our country,” he said. “We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is sharia law and that is it.”’[11]
[10] CTC Sentinel, Have the Taliban Changed? (page 1), March 2021
[11] Reuters, ‘Exclusive: Council may rule Afghanistan, Taliban to reach out…’, 18 August 2021
The current situation in Afghanistan is described as tense and fragile:
The Taleban as a movement is involved in a complicated transition from a relatively lean and loosely organised insurgent movement, with a very rudimentary governance structure, to a complete administration that is supposed to make, clarify and communicate policies, regain control over its own ranks, determine where and by whom decisions are made, establish diplomatic relations and stave off economic disaster. All in the span of weeks, while wrapped in a tight-lipped internal power struggle and disagreements over what it means to be an Islamic Emirate. They feel the heat and psychological impact of scattered Islamic State Khorasan Province (ISKP) attacks and are closely watched and criticised by an impatient outside world.[12]
[12] Martine van Biljert The Taleban’s caretaker Cabinet and other senior appointments Afghan Analysts Network 7 October 2021
Amnesty International reported that Taliban fighters massacred nine ethnic Hazara men after taking control of Afghanistan’s Ghazni province in July 2021 in the village of Mundarakht, Malistan district.[13]
[13] AI – Amnesty International: „Afghanistan: Taliban responsible for brutal massacre of Hazara men – new investigation“, Dokument #2058574 - ecoi.net
In June 2021 EASO reported that:
According to two international sources interviewed by Landinfo in October 2019, 10 to 15 kilometres on the Kabul-Bamyan Highway had been controlled by the Taliban for several years… Roadblocks/checkpoints and IED emplacement by armed opposition groups have been reported, as well as people being killed, kidnapped, (passengers working for the Afghan government, NGOs or international troops) and/or extorted by Taliban militants. The victims were mainly Hazaras travelling on this route between Kabul and the Hazarajat region.’[14]
[14] EASO, Afghanistan security situation, Country Information Report, (page 139) June 2021
However, in 2020 EASO noted that:
The Taliban denied involvement in recent attacks on Shias and at occasions condemned them. Nevertheless, local populations reportedly do not necessarily distinguish between the Taliban and the IS, which also includes former Taliban members.’[15]
[15] EASO, ‘COI query: Hazaras, Shias’, 29 July 2020
In November 2018, the Afghan Analysts Network reported Taliban attacks on the Hazara community in Uruzgun and Ghazni provinces, describing them as unprecedented in terms of the number of incursions and casualties and the level of coordination:
The initial attack on the largely self-governing Hazara enclave in the northeast of Khas Uruzgan was in response to Shujai’s visit – and possibly his behaviour towards Pashtuns while he was there. At the same time, it came in the context of increased pressure by the Taleban on the Hazara population in areas they had so far largely left alone. Coming at a time when the government and the Taleban are talking about a possible peace process, the Taleban suddenly seemed keen to show their reach and to increase their local revenue streams. The attacks appeared to fly in the face of local agreements between Hazara populations and the Taleban to largely leave each other alone. The level of violence and the slowness of the government to respond have, moreover, fed into fears of ethnic targeting by the Taleban and ethnic bias from the government.’[16]
[16] AAN, ‘Taleban Attacks…A new and violent push into Hazara areas’, 28 November 2018
Even prior to the takeover of Afghanistan by the Taliban in August 2021, Afghanistan’s Shia Hazara minority was targeted by other anti-government elements (AGEs), most notably Islamic State Korasan Province (ISKP). 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’ by a range of AGEs including, but not limited to, the Taliban.[17] The Department of Foreign Affairs and Trade (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.[18] 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 AGEs.[19]
[17] 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.
[18] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 10.
[19] 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.
The UNGA reported that the number of attacks by ISKP increased in the months leading up to the Taliban’s takeover, to 88 between 16 May and 18 August September 2021 compared with 15 during the same period in 2020. This included a series of attacks using improvised explosive devices against religious minorities, including a Hazara gathering in Kunduz city on 13 May and a Sufi mosque in Kabul on 14 May, and several passenger vans either carrying Hazara Shias or traveling through predominantly Hazara Shia populated areas in Parwan Province and Kabul between 1 and 12 June.[20]
[20] UNGA, 2 September 2021, p. 6
2019 and 2020 also saw a number of high casualty attacks on Shia Hazaras, particularly in the predominantly Hazara Shia neighbourhood of Dasht-e-Barchi in Kabul. ISKP claimed responsibility for these attacks:
·On 17 August 2019, 63 Shia Hazaras were killed and 182 wounded at a Hazara wedding ceremony in West Kabul.[21]
·On 6 March 2020, 32 Shia Hazaras were killed at a ceremony commemorating the slaying of Abdul Ali Mazara, a Hazara leader.[22]
·On 12 May 2020, 24 Shia Hazaras including two newborn babies were killed when gunmen attacked a maternity ward in Dascht-e Barchi.[23]
·On 24 October 2020, 40 Shia Hazaras were killed in a suicide bombing at an educational testing centre in Dasht-e-Barchi.[24]
·On 8 May 2021, at least 90 Shia Hazaras, most of them female students between the ages of 11 and 17, were killed in bombings outside the Sayed-ul-Shuhada high school.[25]
·On 9 June 2021 when militants attacked a compound of de-mining workers, shooting and killing at least 10, witnesses said the attackers tried to pick Hazaras out of the workers to kill.[26]
·On 12 June 2021 at least seven Shia Hazaras were killed and six wounded in two separate bombings in Dascht-e Barchi.[27]
[21] The World, It’s inhumane, Hazara react after 63 killed in targeted ISIS attack, 19 August 2019,
The Guardian, Dozens killed in attack on political rally in Kabul, 7 March 2020, at
Al Jazeera, Babies among 24 as gunmen attack maternity ward in Kabul, 3 May 2020, at
The Guardian, At least 18 dead in suicide bomb attack in Kabul, 25 October 2020, at
Al Jazeera, Grief and anger after deadly blasts target Afghan school, 9 May 2021,
Associated Press, Afghan Hazaras being killed at school, play, even at birth, 12 June 2021,
Al Jazeera, Seven killed in twin van bomb blasts in Afghanistan’s Kabul, 12 June 2021,
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In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[28]
[28] UNHCR UNHCR Position on Returns to Afghanistan August 2021 at Refworld | UNHCR Position on Returns to Afghanistan
At this stage there are many uncertainties as to the future for Afghanistan’s religious and ethnic minorities under the new Taliban regime. This includes whether the Taliban themselves will be the agents of harm as they have been in the past, as well as the level of protection the Taliban will be willing or able to provide against attacks by other AGEs. These uncertainties mean that I am unable to dismiss the risk of serious harm to the applicant as remote.
As the Taliban has formed government throughout Afghanistan, I accept that there is no part of the country where there is no appreciable risk of the occurrence of the feared persecution and that the authorities would not or could not provide the applicant with the level of protection which he is entitled to expect according to international standards.[29] For these reasons I accept the applicant has a well-founded fear of persecution if returned to Afghanistan, for reasons of his Shia religion and Hazara ethnicity.
[29] MIMA v Respondents S152/2003 (2004) 222 CLR 1
As noted above, the cancellation of the applicant’s visa will not necessarily lead to his removal in breach of Australia’s non-refoulement obligations, because the applicant is able to apply for a protection visa and that visa may well be granted to him. However the outcome of such a visa application cannot be certain and if he is not granted another visa he potentially faces a period of prolonged detention.
I consider the current situation in Afghanistan weighs substantially against cancellation of the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
As noted above, the ability of the applicant to be reunited with his family in Australia is dependent on him holding a permanent residency visa. I accept the applicant’s evidence that his wife and [children] reside as refugees in Pakistan. In doing so, I note that DFAT’s most recent report on Pakistan reports there are currently 600,000 to one million Hazara refugees living in Pakistan, mostly in Quetta, where they face official and societal discrimination and a heavily restrictive security situation due to the threat of attack from both official and non-governmental interlocutors.[30]
[30] DFAT DFAT Country Information Report: Pakistan 20 February 2019
I accept the applicant’s wife and children are living in difficult circumstances in Pakistan and that they have been separated from the applicant for a prolonged period. I consider this weighs against cancellation of the visa.
EXERCISE OF DISCRETION
While I have had regard to each of the reg 2.41 factors set out above, not all of them will be central or fundamental to every case.[31] Rather the weight to be given to any one factor or group of factors is a matter for the Tribunal and will vary from case to case.[32]
[31] MIAC v Khadgi (2010) 190 FCR 248. The Court held that it was open to the Tribunal to regard the applicant’s dishonest conduct which had enabled her to procure her Subclass 880 visa as ‘a significant and serious matter’ and the matters specified in regs 2.41(f)–(k) as insufficient to displace the impact of that dishonest conduct. Similarly, in Suleyman v MIMA [2000] FCA 610 (Mathews J, 12 May 2000), the Court held that the Tribunal was correct to regard the correct information and its likely effect on a decision to grant the visa (reg 2.41(c)) as crucial, observing that it was ‘difficult to conceive of a more calculated attempt to dishonestly manipulate Australia’s refugee laws’ than that which was perpetrated by the applicant in that case.
[32] MIAC v Khadgi (2010) 274 ALR438 at [68].
I have considered carefully the factors which weigh in favour of cancelling the visa, most notably the applicant’s deliberate and repeated provision of incorrect information to the Tribunal and the potential for that conduct to undermine the integrity of Australia’s visa program. However, in balancing all of the relevant factors I consider that the matters to which I am required to have regard weigh overall against cancelling the applicant’s visa. In particular, I give significant weight to the following matters:
·The uncertainties as to the future for Afghanistan’s religious and ethnic minorities under the new Taliban regime, together with the ongoing attacks against Shias by ISKP and other AGEs, mean that I am unable to dismiss the risk of serious harm to the applicant if returned to Afghanistan as remote and I have concluded he has a well-founded fear of persecution in Afghanistan for reasons of his Shia religion and Hazara ethnicity;
·While the cancellation of the applicant’s visa will not necessarily lead to his removal in breach of Australia’s non-refoulement obligations because the applicant is able to apply for a protection visa, that process may be lengthy and the outcome of such a visa application cannot be certain;
·If the applicant’s visa remains cancelled and he is not granted another visa, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged unless he decides to return to Afghanistan voluntarily and the prospect of that appears remote, given the takeover of Afghanistan by the Taliban in August 2021;
·The applicant’s wife and children remain living in Pakistan and the applicant has been unable to travel to visit them since his visa was cancelled. Should the applicant’s visa remain cancelled, he will be unable to sponsor his wife and children to join him in Australia or travel to visit them in Pakistan and his prolonged separation from his family will continue;
·The applicant was working as [an Occupation 1] before the visa cancellation and a number of his colleagues have provided evidence as to the quality of his work. If the visa is not cancelled, the applicant will be able to immediately resume working and paying taxes in Australia.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
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 applicant’s Subclass (155) (Five Year Resident Return) visa.
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.