1932624 (Refugee)

[2021] AATA 3074

1932624 (Refugee) [2021] AATA 3074 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932624

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Frances Simmons

DATE:18 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 May 2021 at 8:30am

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ethnicity and religion – Hazara Shia – incorrect information in visa application – two previous applications on his behalf not declared – different names, dates of birth and family members in each application – forensic facial image comparison – resident return visa granted and cancelled, with separate application for review decided together – discretion to cancel visa – born to refugees in third country and never lived in parents’ country – previous applications as minor – incorrect information conceded and credible evidence establishing identity provided – reasons for giving incorrect information – understated age to gain better treatment as minor – education, work and community activities in Australia – family’s status as refugees in third country and applicant’s loss of refugee status on departing – westernised returnee – country information – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 36(2), 101(b), 107, 109(1), 114, 376, 438
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

4. The applicant arrived at Christmas Island by boat [in] May 2012 and identified himself as [Alias 1] (DOB: [Date 1]). He lodged a protection visa application on 22 July 2012 in which he sought protection as an Afghan national of Hazara ethnicity and Shia religion born on [Date 1]. He was granted a Protection (Subclass 866) visa on 11 September 2012.

5. On 31 May 2013 the applicant lodged a Global Special Humanitarian visa application to sponsor his claimed mother, [Ms A] (DOB [Date 2]), and his three sisters. This application was refused. 

6. On 19 January 2019 the applicant lodged a Resident Return (Subclass 155) visa application.

7. On 25 June 2019, the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of his protection visa granted on 11 September 2012. The NOICC informed the applicant that a forensic facial image comparison report undertaken on 18 June 2019 found that the image for [Alias 1], born on [Date 1], represented the same person as [Alias 2], born on [Date 3], and [the applicant], born on [Date 4]. [The applicant] (DOB [Date 4]) was included as a dependent on a Global Special Humanitarian (GSH) (Subclass 202) visa application lodged in 2004 and [Alias 2] (DOB [Date 3]) had previously applied for an orphan relative visa lodged in 2010.

8. In the GSH visa application, the applicant’s claimed father was listed as the primary applicant and his six siblings were also included as dependents. The proposer was identified as his father's cousin in Australia. This application was refused in 2005.  In the orphan relative visa application, the applicant was sponsored by his claimed brother in Australia, and four siblings were declared. The applicant claimed that his mother was deceased and his father was missing. In September 2011, the applicant and his siblings attended the Australian embassy in Tehran for an interview where it was noted that they appeared significantly older than their claimed dates of birth in their orphan relative applications. The orphan relative visa application was refused in September 2011.

9. In response to the NOICC, the applicant conceded that he previously provided incorrect information to the Department. He declared that the correct information is that he is [the applicant], a [Age 1]-year-old national of Afghanistan of Hazara ethnicity and Shi’a religion. He claimed that his parents fled Afghanistan before he was born. The applicant declared that he was born in Iran in [Year 4] and resided there as a refugee until he travelled to Australia and sought asylum. He conceded that he made two prior applications for visas in Australia in 2004 (offshore GSH visa) and 2010 (orphan relative visa) that were rejected.

10. On 22 October 2019 the delegate cancelled the applicant’s protection visa. The delegate found the applicant had provided incorrect information in his visa application about his name, age, family composition, previous visa applications and relatives in Australia. The delegate did not doubt that the applicant was a Hazara Afghan and a Shia Muslim but considered that the decision to grant him a protection visa was based ‘at least partly’ on the incorrect information he provided about his immigration history, age, family composition and residential history.

11. On 6 January 2021 the Department granted the applicant a resident return visa (subclass 155). On 15 April 2021, the delegate cancelled the resident return visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled.

12. The applicant has applied for review of both decisions.[1]

    [1] The Tribunal has made a separate decision in relation to the review of the cancellation of the applicant’s Subclass 155 visa in case no. 2104797.

    Evidence before the Tribunal

13. The Tribunal has before it the Departmental file relating to the cancellation of the applicant’s visa. The delegate sought to restrict the disclosure of material on this file by issuing a non-disclosure certificate purportedly under s.376 of the Act. However, as this case concerns the cancellation of a Subclass 866 visa, the power to issue a non-disclosure certificate arises under Part 7 of the Act. Therefore, the Tribunal wrote to the Department and invited the Department to reconsider the certificate. On 18 November 2020 the Department revoked the s.376 certificate and issued a certificate under s.438 of the Act.

14. In the Tribunal’s opinion, the certificate issued pursuant to s.438 is valid. The Tribunal is satisfied that the certificate states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was properly disclosed to the applicant in the NOICC.

    The relevant law

15. 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.

16. 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.

    Notice of intention to consider cancellation under s.107 of the Act

17. In this case, the Department conducted a facial comparison between [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]).

18. 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.

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

19. 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.

20. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in respect of allegedly incorrect information given by the applicant in his protection visa application with respect to his identity, alias, family composition, previous visa applications and close relatives in Australia.

21. The NOICC was particularised as follows:  

    ·     Question 1 of Part B of form 866 asked What is your full name – he responded [Alias 1], [Date 1].

    This was considered to be incorrect because a forensic facial comparison conducted by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) are the same person. Therefore, the applicant has been known as [the applicant] and [Alias 2].

    ·     At question 3, in response to a question about whether any person named in question 1 previously made any other application to the Department (including a parent visa), he responded no.

    This was considered to be incorrect because a forensic facial comparison conducted by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) are the same person. Therefore, the applicant has been known as [the applicant] and [Alias 2].

    ·     At question 11, in response to the question, Are there any members of the same family unit who are not in Australia at the time of application, the applicant responded yes, and listed his father (deceased), his mother widowed, three unmarried sisters and one married sister.

    This was considered to be incorrect because a forensic facial comparison of photographs conducted by the Department of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) found that the photographs were of the same person. As [the applicant] and [Alias 2] declared different family compositions to the one claimed in the protection visa application, the Department considered the applicant may have undeclared offshore family members at the time of his protection visa application.

    ·     At question 12, in response to the question, Do any of the persons included in this application and named in question 1 have close relatives who are in Australia at the time of application, the applicant answered no.

    This was considered to be incorrect because a forensic facial comparison conduct by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB: [Date 1]) are the same person. As [Alias 2] declared a brother in Australia known as [Mr B] (DOB [Date 5]), the Department considers that he has a close relative in Australia at the time of his protection visa application that he declared to the Department. 

    ·     At question 22 of Part B of form 866 he signed the declaration stating that the information supplied on Part C of form 866 is complete, correct and up to date in every detail. 

    This was considered to be incorrect because of his incorrect answers to questions 1, 3, 11 and 12 of Part B of form 866.

    ·     At question 1 of Part C of form 866, in response to the question What is your full name, the applicant responded [Alias 1].

    This answer was considered to be incorrect because a forensic facial comparison conducted by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) are the same person. Therefore, it appears his name is also [the applicant] and [Alias 2].

    ·     At question 4 of Part C of form 866 in response to the question What other names have you been known by, the applicant responded N/A.

    This answer was considered to be incorrect because a forensic facial comparison conducted by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) are the same person. Therefore, it appears his full name is also [the applicant] and [Alias 2].

    ·     At question 9 of Part C in response to the question Date of birth, the applicant responded [Date 1] and age [Age 2] years.

    This answer was considered to be incorrect because a forensic facial comparison conducted by the Department confirms that photographs of [the applicant] (DOB [Date 4]) who applied for a GSH visa, [Alias 2] (DOB [Date 3]) who applied for an orphan relative visa and [Alias 1] (DOB [Date 1]) are the same person. Therefore, the Department considered his date of birth may not be [Date 1]. The delegate also considered he was not an unaccompanied humanitarian minor as claimed in the protection visa application, as an Iranian travel pass for foreign citizens bearing his photograph was included in the GSH visa application for [the applicant] (DOB [Date 4]).

    ·     At question 67 of Part C of form 866 he signed the declaration stating that the information supplied on Part C of form 866 is complete, correct and up to date in every detail. 

    This was considered to be incorrect because of his incorrect answers to questions 1, 4 and 8 of Part C of form 866.

22. The applicant was advised that he could comment on the possible non-compliance and give a written response as to why his visa should not be cancelled. He was advised that his response should provide reasons as to why he thought he had complied, or why he had not complied, with s.101(b) of the Act, why his visa should not be cancelled, and provide any supporting evidence. He was advised of the timeframe within which he was required to respond in writing. He was advised of the two-step process when deciding whether to cancel his protection visa and that his written response would be taken into consideration. He was advised of the matters that would be taken into account when considering whether his protection visa should be cancelled, including r.2.41 of the Migration Regulations 1994 (the Regulations), and was advised to address these matters and any other matter he thought relevant in his response.

23. The NOICC also informed the applicant that his obligations under ss.104 or 105 of the Act continue. He was also informed of the provisions of ss.108, 109, 111 and 112 of the Act.

    Response to the NOICC

24. The applicant concedes that there was non-compliance because he provided incorrect information about his name, his date of birth, alias, previous visa applications in Australia and family composition. The applicant says that he assumed the false identity of [Alias 1], born [Date 1], when he arrived in Australia. He declares that his true name and date of birth is [the applicant], born [Date 4], which were the details contained in his GSH visa application lodged in 2004. He says that the Iranian Special Pass for Foreign Citizens provided with the application were genuine documents and that the GSH visa application contained his correct family composition, although it wrongly stated that he was born in Kabul.

25. The applicant declares that he was born in Iran and not Afghanistan, as claimed on arrival to Australia. With respect to his family composition, he states that he has two brothers and four sisters and that his parents are resident in Iran. One brother is resident in Australia. All of his siblings were also born in Iran aside from his brother, [Mr C] ([Date 6]), who was born in Afghanistan before their parents fled to Iran as refugees. His family are still registered as refugees by the Iranian Government, but he lost his residence status in Iran when he left to seek asylum in Australia. The applicant declares that the sponsor of the GSH visa application was [Mr D], the second cousin of his father. The applicant failed to declare him or his brother [Mr B] on arrival to Australia, as he did not want to cause any negative ramifications for them.

26. The applicant claims that he is relieved to admit his false identity and he only created this profile in a bid of desperation to obtain protection, and to facilitate favourable outcomes for his family in Iran. He claims that he was not directly responsible for the information provided in the GSH application, as he was a minor at the time and it was lodged on his behalf. With respect to the orphan relative visa application he declares that this was lodged on his behalf but accepts that he gave incorrect information about his age to the departmental officer who interviewed him in Iran. He submits that since arriving in Australia he has studied, developed his English language skills, and is now working full time at his brother’s [business] in Canberra and paying tax. He claims to have a well-founded fear of persecution in Afghanistan: his family live with constant threats of repatriation to Afghanistan by the Iranian government, the situation in Afghanistan is not improving, and the situation in Iran is tense.

27. The applicant’s response to the NOICC was accompanied by untranslated Iranian ID documents belonging to the applicant and his immediate family members, which are said to be an Iranian Special Pass for Foreign citizens and an untranslated Iranian special pass. The applicant also provided various identity documents that had been issued to him by the Australian authorities, include a Titre de voyage, issued [in] September 2018.

28. The applicant also provided a statutory declaration from [Mr B], dated 9 July 2019. [Mr B] declares he is the blood brother of the applicant and that they were both born in Iran to Afghan refugee parents and therefore are citizens of Afghanistan. He arrived in Australia by boat in late 2009. While in transit he registered with the UNHCR and obtained a refugee status declaration. He is willing to do a DNA test to establish his relationship with the applicant. He is also responsible for lodging the orphan relative visa application, an action which he regrets but which he took in the hope of bringing his family members to safety. 

29. The applicant also provided a national police certificate issued on 21 February 2019, a [School] Student report, and two character references.

    Evidence before the Tribunal

30. The applicant appeared before the Tribunal on 1 December 2020 and 14 April 2021 and was represented in relation to the review by his registered migration agent, [Ms E]. At the first hearing, the applicant confirmed that he had provided incorrect information about his name, date of birth, place of birth, and family composition in his protection visa application. He maintained that his true identity is [the applicant], born in Iran in [Year 4], and he told the Tribunal that before he came to Australia he had lived all his life as a refugee in Iran. He claimed that he was owed protection obligations by Australia.

1. The applicant confirmed he had taken steps to obtain a taskira in his true name by approaching the Afghan embassy in Canberra. At the time of the first hearing, the applicant had not yet received the taskira or provided a translations of the identity verification form he had submitted to the Afghan embassy or the taskira said to belong to his father. The applicant subsequently provided translations of these documents as well as identity documents for family members who are currently residing outside of Afghanistan as refugees.  In March 2021 the applicant provided a taskira to the Tribunal.

2. The applicant told the Tribunal that, after travelling from Iran to [Country 1] and seeking asylum in Australia, he subsequently used his Australian travel document to return to Iran on one occasion to see his family. He obtained a visa to travel to Iran by applying for a visa at the Iranian embassy using his Australian travel document, which was issued in the name of [Alias 1] and records that he was born in Afghanistan.  He claims that his mother is still alive and lives in Qom where she cares for his father who has been paralysed for around 12 years. In his protection visa application, he said his father was dead but that was incorrect. His brother ([Mr B]) provided the applicant with the untranslated taskira for his father (it was his belief that his father had had this document since he left Afghanistan).

3. The applicant and his brother gave highly consistent evidence about their family composition and the circumstances of their family members.  In summary: the applicant’s parents are both alive and live in Qom.  The applicant has four sisters and three brothers. One of his sisters, [Ms F], married and went to Europe where she is seeking asylum in [Country 2]. Two other sisters are married and living in Iran. The fourth sister, the youngest, has not married and will soon commence study to become [an Occupation] at [a] University. She had to acquire an Afghan passport to commence university study and is the only member of the family who holds an Afghan passport. The other members of the applicant’s immediate family who are resident in Iran have refugee (ameyash) cards. A fourth sister, who is currently in [Country 2] seeking asylum, was only able to leave Iran with the assistance of a smuggler.

4. The applicant believes that his father was born in [Town] in Maidan Wardak province in Afghanistan. The applicant is the youngest of the brothers. His eldest brother was born in Afghanistan and he was born in Iran along with his brother, [Mr B], and their four sisters. Their eldest brother still resides in Qom where he works as [an Occupation]. His father left Iran about 30 or 35 years ago (this was an approximate date). He told the Tribunal that the taskira he had provided for his father was a very old document. Before his health failed his father worked as [an Occupation].

5. With respect to the conflicting information that was provided about the applicant’s family composition in the 2004 GSH visa application (the applicant was said to be one of seven siblings) and the orphan relative visa application (the applicant was said to be one of four siblings), the applicant said the information about his family composition in the GSH visa application was correct. He has six siblings – seven including himself – one brother in Iran and one brother in Australia and three sisters in Iran and one in [Country 2]. His parents live in Iran. His sister in [Country 2] left Iran with the assistance of a smuggler. As well as his brother, [Mr B], who lives in Australia, he has paternal cousins in Australia, who lived near him while they were growing up in Iran. His parents now live in a different home to the one in which he grew up as they cannot buy houses. He and his brother have both returned to Iran to visit family members, but they travelled at different times. The applicant works in a business under his brother’s name as [an Occupation].

6. The applicant told the Tribunal that he sought to sponsor his mother and sisters to come to Australia because their life back in Iran was very difficult and he wanted them to have a better life. His father became paralysed after a brain shock (this appeared to be a reference to a stroke). Asked to explain why he assumed a false identity upon arrival in Australia, he told the Tribunal that he knew that his previous visa applications were rejected, and he changed his name so that he could sponsor his family. He also provided a different date of birth because when he arrived in Christmas Island there were rumours that if you were over 18, they would take you to Nauru. He heard that if he said he was underage and by himself he would be able to sponsor his family whereas if he said he had a brother he could not. His brother knew that he was coming to Australia. 

7. The applicant told the Tribunal he has never been to Afghanistan. Asked what relatives he had in Kabul, he said his paternal and maternal uncle are in Kabul and they sell [a product]. Previously he had not had contact with his uncles, but he was recently in contact with them about obtaining a taskira. When he was living in Iran, he had a refugee card; he did not have other identity documents. The applicant and his brother both provide financial support to family in Iran. As noted above, the applicant concedes that he applied for a GSH visa and the orphan relative visa. The applicant gave evidence that he knew about the GSH visa application lodged in his name and also about the orphan relative visa application.

8. There is now a substantial volume of documentary evidence of the applicant’s claimed identity before the Tribunal as well as evidence that supports his claims that his immediate family members are residing as refugees in other countries. The evidence includes:

   a.Copy of the identity verification form lodged with the Afghan embassy in Canberra and a letter from the embassy dated [November] 2020 confirming that the applicant had initiated the process of applying for a taskira as well a copy of a taskira purportedly issued to the applicant in January 2021 in the name of [the applicant] .

   b.Two Afghan refugee ID cards issued in the name of [the applicant] (includes translations), which record his father’s name as [Mr G] and his grandfather’s name as [Mr H].

   c.Three educational certificates for [the applicant] (DOB [Date 4]), including a certificate for Grade 5 ([Year 7]); a diploma of Secondary School Completion ([Year 8]), and a certificate issued for the first grade of High School ([Year 9]), which indicates that he did not pass this year.

   d.The taskira of the applicant’s father, which is issued in the name [Mr G], which records that he was born in Wardok [Town] and his father is [Mr H]. 

   e.Iranian temporary residence (refugee) cards for: [Mr G], the applicant’s father; [Ms I], the mother of the applicant; [Ms J], the sister of the applicant; [Ms K], the sister of the applicant; and [Mr C], the brother of the applicant.

   f.Certificate of Application for Asylum in [Country 2] dated [November] 2019 for the applicant’s sister, [Ms F], which states that she is an Afghan national and was born in Afghanistan in [Year 8] and that her place of birth is [City], Afghanistan. It was submitted that this record reflects the fact that the issuance of Afghan taskiras based on the place of origin of the family ([City], Wardak, Afghanistan) rather than the place of birth (Qom).

   g.A copy of the Afghan passport issued by the MFA Kabul [in] 2019 to [Ms L], showing her place of birth as Qom, her nationality as Afghan, and her occupation as Student. The passport includes an internal exit visa for [Ms L] issued [in] November 2020, which allows her to travel from Qom to [Location] (registered Afghan refugees are generally not permitted to travel internally in Iran beyond their place of registration). The Tribunal was also provided with a letter from [a University] to [Ms L] regarding acceptance into [a] course dated 17 November 2020.

   h.Family photographs from 2004 said to be of the applicant and his brother [Mr B].

   i.Taskira and other documents regarding [Mr M] (the applicant’s maternal relative).

9. The applicant also provided evidence of his membership of [a sport] club, a letter of support from [Mr N] (President, [Organisation]) dated 22 November 2020, a character reference from [Mr O] ([job title] at [Company 1]) and photographs of [work] by the applicant,[2] and a letter of support from [Mr P] (Manager, [Company 2]) dated 21 November 2020.

   Witness testimony

   [2] Translations for some of these documents were provided at a later date.

10. The Tribunal received oral evidence from three witnesses all of whom gave evidence in support of the applicant’s claimed identity. Each witness provided a statutory declaration and evidence of their identity to the Tribunal. The Tribunal has had regard to:

    a.Statutory declarations of [Mr B] dated 24 November 2020 and 9 September 2019.

    b.Statutory Declaration of [Mr Q], the applicant’s paternal first cousin, dated 24 November 2020.

    c.Statutory declaration from [Mr D], the applicant’s paternal relative, dated 1 December 2020.

11. The applicant also provided a statutory declaration from [Mr R], the applicant’s uncle, dated 28 November 2020. The applicant asked the Tribunal to take oral evidence from [Mr R] for questioning, but the Tribunal did not consider it necessary to do so.

12. [Mr B] gave evidence that he was the brother of the applicant. He told the Tribunal that he had seven siblings including himself (four sisters, three brothers) and, with the exception of the applicant and a sister who is presently seeking asylum in [Country 2], his family members reside in Iran as refugees. His father requires care because he has had a few strokes. Half his body is paralysed and he cannot walk properly. His mother stays home and takes care of his father. He left Iran in 2008 and successfully sought asylum in Australia. He had returned to Iran twice to see his parents. His evidence about his family composition and the circumstances of his parents and siblings was detailed and highly consistent with the evidence given by the applicant. He disclosed that when he applied for a protection visa in Australia, he provided information about his six siblings but stated his parents were deceased as he hoped to be able to sponsor his siblings to travel to Australia.

13. [Mr B] believes his family members all have current refugee cards. His youngest sister is the only family member with a passport; this passport was obtained so that she could attend university. Another sister who is seeking asylum in [Country 2] left Iran with the assistance of a smuggler. His own date of birth is recorded as [Date 5] but when he was in UNHCR in [Country 1] it was translated as [Year 5], but it should have been [Year 10]. He thought that he was born in [Town] as that was where they were originally from, but he didn’t really know. With the exception of his eldest brother, all of his siblings were born in Iran. Since coming to Australia, he has established a [business]. He makes [products] for [Employer 1] and [Employer 2]; his business has been awarded a contract to do so. When he returns to Iran he stays with his parents; they rent their property and every year or two they move as Afghan refugees cannot own property.

14. With respect to the orphan relative visa application, he regretted the lies, but he said it was very hard to explain how Afghan community members were living in Iran. It was a very difficult life. If you get into a fight with an Iranian soldier or citizen, they can cancel your refugee card. The only reason that that ‘he made stories about his mother and father passing away’ was so that he could bring his siblings to Australia. He was told if he said his parents were alive and his siblings were over 18, he would be unable to bring them out to Australia. He had applied for recognition as a refugee from the UN and he had been in the detention centre while his claim was processed. He explained the life he had in Australia was not the life he had in Iran. As an Australian citizen he had a passport which he could use to travel wherever he wished to go, a business and a car. He compared his life in Australia to the life of his siblings as Afghan refugees in Iran. He spoke about his sister, who is seeking asylum in [Country 2], and began crying; he recalled that she had told him not to forget about her. He said that what he was trying to say was that he was sorry that he lied but also, he told these lies to try to bring his family to Australia because in Iran they were living the life of no destiny.

15. At the first hearing the Tribunal took evidence from [Mr Q], the cousin of the applicant. [Mr Q] migrated to Australia from Qom in Iran via partner migration. He gave evidence that he grew up in Iran with the applicant and they visited each other’s houses in Qom. He was familiar with the composition of the applicant’s family, the health issues facing the applicant’s father, and knew that the applicant’s elder brother worked as [an Occupation], as well as who lived in the family home in Qom). He called the applicant [given name], because ‘he is [given name]’. He might have used another name in Australia but he knew him as [given name]. In Australia, he sees [given name] at social events and functions and they work together at the same [business].

16. At the second hearing, the Tribunal took evidence from [Mr D], a citizen of Australia and Afghanistan, who was recognised as a refugee in [Year 11]. [Mr D] told the Tribunal he knew [Mr G], [the applicant]’s father, in Afghanistan when they lived in West Kabul. They had both left Afghanistan many years ago, [Mr D] for Australia and the applicant’s father for Iran. In 2004, [Mr D] had sought to sponsor the applicant and his family to migrate to Australia by a GSH visa application. He cannot explain why the GSH application states all the family members were born in Afghanistan. He spoke about the deaths of family members and the targeting of Hazaras in Afghanistan.

17. At the second hearing, the Tribunal raised with the applicant that he had advised the Tribunal that on 6 January 2021 he was granted a Resident Return visa (Subclass 155) in the name of [Alias 1] as a result of the application he made for this visa on 19 January 2019. The Tribunal noted that the applicant’s representative had made submissions that the grant of the visa was invalid. The Tribunal discussed with the applicant the issue of whether the Tribunal should have regard to Australia’s non-refoulement obligations in considering whether his protection visa should be cancelled given that he now held a Subclass 155 visa.

18. On 15 April 2021, the Department cancelled the applicant’s Subclass 155 visa and the applicant applied for review of this decision.  

    Country information

19. The applicant provided the Tribunal with a recent report by Professor William Maley, Professor of Diplomacy at Australian National University, titled ‘On the Return of Hazaras to Afghanistan’.[3]  In this report, Professor Maley describes the situation in Afghanistan as ‘extraordinarily fluid’ and observes even recent assessments of the situation ‘do not necessarily provide an accurate picture of the situation in 2020 and beyond’. In Professor Maley’s opinion, this fluidity means that roads that may have been safe in ‘2018 or 2019 may be unusable in 2020, and towns and cities that appeared ‘safe’ in 2019 may be extremely unsafe in 2020’. Professor Maley’s opinion is discussed further below.

    [3] Report, ‘On the Return of Hazaras to Afghanistan’, by Professor William Maley (Professor of Diplomacy, Australian National University) dated 7 November 2020.

20. The applicant submitted various news reports concerning the current security situation in Afghanistan.[4] The applicant also provided various media articles concerning attitudes towards Afghan refugees in Iran.[5] Iran’s treatment of Afghan refugees has been subject to sustained criticism for subjecting Afghan refugees to human rights violations, including arbitrary arrest, detention and refoulement to Afghanistan.  The asylum system does not provide Afghan refugees who have arrived after 2007 opportunities to obtain refugee status and it is increasingly difficult for Afghan refugees who registered as refugees before this time to re-register. 

    [4] Ghazani Attack: 31 killed, 24 Wounded’, 29 November 2020, Tolo News; ‘3 Civilians Killed, 23 Wounded In Kabul Suicide Attack’, 29 November 2020, Tolo News; ‘7 People Wounded in Kabul IED Blasts’ 28 November 2020, Tolo News; ‘Car bomb kills at least 40 Afghan soldiers’ CNN News, 29 November 2020, CNN News; ‘Taliban Significantly Increased Attacks in Past Week: MoD’, Tolo News, 27 November 2020; ‘Afghan Conflict Rages Despite Efforts for Peace’, Tolo News,  29 November 2020; ’14 dead as twin blasts rock historic Afghan city Bamiyan’, Arab News, 24 November 2020; ‘Taliban Attacks Centres of 50 Districts after Peace Deal: Sources’ 20 November 2020, Tolo News; ‘Grenade’ Attack Near Kabul Military Training Center’, Tolo News, 18 November 2019, Tolo News; ‘US withdrawal rattles Afghan allies and adversaries alike’, 18 November 2020 WAOW News 9;  ‘Official warns of humanitarian disaster if Afghan talks fail’, 18 November 2020, StarTribune; ‘Taliban hails withdrawal of 2,000 US Troops from Afghanistan as good step’,  19 November 2020, IOL News;  ‘COVID-19, Insecurity Slow Afghan Refugee Returns from Pakistan and Iran’, 18 November 2020, VOA News; ‘Internally displaced Afghans look to foreign donors for help’, 25 November 2020, Arab News; ‘Taliban Expand War In Multiple Fronts As US Seeks Peace Deal’, 1 September 2019, Tolo News; ‘University Attack: Survivors Recall Ordeal of Gun Rampage’, 5 November 2020, Tolo News; ‘Afghan Govt, Taliban in War of Words over University Attack’, Tolo News, 4 November 2020;  ‘Gunmen Storm Kabul University; 20 killed’, Tolo News, 2 November 2020.

    [5] ‘Iran’s ‘anti-human’ migrant plan sparks anger in Kabul’, Arab News, 28 November 2020; ‘Afghan migrants continue to die in the hands of Iranian authorities’, Global Voices, 12 June 2020; ‘Over 670,000 illegal foreign nationals expelled annually’, Tehran Times, 2 September 2020; ‘Afghans condemn Iran police after refugees die in car fire’, 6 June 2020, BBC News; ‘I am burning: Afghans condemn Iranian police after refugees die in car blaze’, Middle East Eye, 6 June 2020.

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

21. 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 as set out above.

22. The applicant arrived at Christmas Island by boat [in] May 2012 and identified himself as [Alias 1] (DOB [Date 1]), an Afghan national who was born in Afghanistan and resided in Iran as refugee. In his protection visa application, he stated that he has not been known by other names, he has not made any other visa applications before, and has no close relatives in Australia. He stated  his father was deceased, his mother was living in Iran, and he had four siblings. He claimed to fear harm in Afghanistan because he is a Hazara Shia.

23. The applicant now declares that the information he provided when he arrived in Australia as an unauthorised maritime arrival about his name, date of birth, family composition, visa application history, and relatives in Australia is incorrect. To make findings about whether there is non-compliance of the type described and to determine what is correct information, the Tribunal has considered whether the applicant’s claims made in the response to NOICC, that his true identity is [the applicant] and that he is an Afghan citizen who was born in Iran and lived in that country as a refugee, are credible.

    Nationality, race, religion, name and place of birth

1. The applicant claims that non-compliance occurred because his true identity is [the applicant] and he was born in [Year 4] in Qom in Iran. He claims his parents are citizens of Afghanistan who live in Iran as refugees. The applicant has never been to Afghanistan. After his visa was cancelled he had contact with maternal relatives who live in Afghanistan, but before that time he did not have contact with these relatives. The applicant told the Tribunal that before he came to Australia, he had never been known by the name [Alias 1] and that this was a fake identity. The applicant told the Tribunal that he travelled to Iran using a titre de voyage issued to him in the name of [Alias 1] in 2016. He described the process of obtaining a visa to travel to Iran and provided photographs of his tickets, the biodata page of his Australian titre de voyage, as well as a letter dated January 2017 from the Department of Foreign Affairs & Trade (DFAT), noting that the travel document ‘[Number]’ had been handed in lost and would now be destroyed.

2. The applicant has applied for two offshore visas using the identity of [the applicant] and [Alias 2]. The Tribunal accepts the difference in the spelling of the names is due to transliteration and not significant. However, the two offshore visa applications contained different information about the applicant’s age and family composition. Before the Tribunal the applicant claimed that his true identity was [the applicant] and the information he provided in the GSH visa application about his family composition was correct. This evidence was supported by the witnesses, all of whom were family members, who gave oral and written testimony on his behalf. The applicant also provided the Tribunal with identity documentation for his family members, which shows that his sister is seeking asylum in [Country 2] and his brother, parents and three sisters are registered as refugees in Iran. He also provided an Afghan passport issued to his sister in Qom, which was obtained so that she could undertake university study.

3. The Tribunal has considerably more evidence about the applicant’s claimed identity than the Department did. The Tribunal considers that the applicant and his brother gave highly consistent evidence about their family composition and their experiences as Afghan refugees living in Iran. The brothers indicated a willingness to undertake a DNA test to establish that they were brothers but having regard to their consistent oral testimony about their family composition and the circumstances of individual family members as well as the corroborative evidence provided by other witnesses about the circumstances of their family, the Tribunal considered it unnecessary to do so.

4. The Tribunal is satisfied that the applicant is a Hazara and a Shi'a. The applicant participated in the departmental processes with the assistance of interpreters in the Hazaragi language and appeared before the Tribunal with the assistance of a Hazaragi interpreter. He has consistently claimed to be of Hazara ethnicity and Shi’a faith. His facial features identify him as being of Hazara ethnicity and he speaks Hazaragi.

5. The applicant and his brother gave evidence that their parents were born in Afghanistan. Their parents fled to Iran following the Soviet Invasion of Afghanistan with the applicant’s eldest brother. Hazaras generally originate in Afghanistan but systematic discrimination and targeted violence have led to decades of persecution and displacement. The Tribunal has had regard to the following information regarding the Afghan Hazara ethnic minority group who have fled to neighbouring countries: 

   At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.

   Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.

   The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.

   Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents.  It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[6]

   Documents

   [6] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4

6. The applicant gave evidence that he previously held a refugee card and that the copy of this card provided to the Department with his GSH visa application was genuine. He told the Tribunal that he never held a passport in Iran and that he left Iran with the assistance of a smuggler who arranged a travel document for him.

7. The Iranian authorities have provided Afghan nationals with different types of residency status depending on when they arrived in Iran. More recently, the requirements to register as a refugee have become more onerous and arbitrary, with the intention of inducing the large population of undocumented Afghan nationals in Iran back to Afghanistan. If an Amayesh registered Afghan leaves the country, they lose their status in Iran:

   According to a European COI unit, an Afghan citizen who leaves Iran is obliged to hand in his or her Amayesh card to the authorities in order to apply for a laissez-passer. If a person then returns to Iran, he or she will be considered an illegal immigrant.[7]

   [7] ‘Afghan citizens in Iran’, Landinfo - Country of Origin Information Centre - Norway, 1 March 2011, p. 7.

8. Furthermore, if the applicant held an Amayesh permit and had not continued to register in each subsequent Amayesh registration, then he would not be able to secure another Amayesh permit. According Landinfo:

   The Afghans who came to Iran before 2001 are recognised as refugees by the Iranian authorities following a general group assessment, provided that they were registered in 2001 and were thereafter registered in all subsequent Amayesh registrations. An Afghan who does not register in one of the registration rounds loses his or her status as a refugee. UNHCR stated at a meeting with Landinfo that it will not be possible for an Amayesh-registered Afghan to re-register if a registration is lacking.[8]

   [8] ‘Afghan citizens in Iran’, Landinfo - Country of Origin Information Centre - Norway, 1 March 2011, p. 7.

9. Similarly, Human Rights Watch reports that if a refugee whose Amayesh card has expired fails to renew the card in time, he or she is not permitted to register for a new Amayesh card, becomes undocumented, and is subject to deportation.[9]

   [9] Unwelcome Guests: Iran's Violation of Afghan Refugee and Migrant Rights’, Human Rights Watch, November 2013.

10. The applicant claims that he sought to verify his Afghan identity through the process initiated by the Embassy of the Islamic Republic in Afghanistan in Canberra. [10] As of 2020, NSIA has replaced ACCRA as the authority responsible for verifying Taskiras. However, the nsia website does not provide any detailed information about the new verification process. The Embassy website does not mention the new procedure through NSIA, but provides the following information:

    The Embassy of Islamic Republic of Afghanistan is not the authority to issue Tazkira (Afghan National ID). Only part of the process for obtaining a Tazkira in absentia can be initiated through this Embassy. An Afghan, who wish to obtain a Tazkira, can initiate the process at this Embassy based on having one of her/his paternal relatives’ Tazkira including father, grandfather, siblings, uncles (father’s brothers), aunts (father’s sisters) and cousins of father’s side. 

    [10] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039.

11. An interview is conducted with the applicant at the embassy and after the completed form is submitted at the embassy, the embassy prepares ‘a document package’ which is sent to ACCRA.[11] A copy of the document package is also sent to the Consular Affairs Directorate of the Ministry of Foreign Affairs (MoFA), while the original package is returned to the applicant.  The embassy website explains the applicant should send the package to his/her representative or relative in Afghanistan, whose details are included in the application form for assessment and processing. After this, the file is closed at the embassy.   According to the information on the embassy website, if the applicant fulfils all the requirements and is deemed entitled for a taskira by ACCRA, he will be issued an Afghan taskira in absentia by ACCRA. The applicant’s representative or relative mentioned in the application form can collect the original taskira from ACCRA, Afghanistan (NOT from the embassy).”[12]

    [11] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039.

    [12] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039.

12. On 31 March 2021, the applicant provided a taskira issued in the name of [the applicant] in January 2021. He claims he obtained as a result of the process he initiated at the Afghan embassy in Canberra. He provided a copy of the identity verification form he submitted to the Afghan Embassy in November 2020 and a letter from the embassy dated November 2020 confirming the application for a taskira was ‘under process’. The applicant’s account of the steps he took to obtain the taskira he provided to the Tribunal was broadly consistent with the information on the embassy website. The applicant’s evidence was that he was assisted by [Mr M], a maternal relation of his mother who is resident in Kabul. Prior to being issued the NOICC he had not spoken to [Mr M].

13. The taskira presented by the applicant records that the applicant’s father is [Mr G], his grandfather is [Mr H], and his paternal great grandfather is [Mr S]. His evidence was that his father was known as [Mr G] and that [second name] is sometimes spelled differently in English as [Alternative spellings] but it is the same name as in their written langue Dari. The applicant has said it is not usual to have a family name in Afghanistan. When his father went to Iran, he was asked to give a family name, so he took the name [Surname] and he is registered in Iran as [Mr G, with Surname], and the [Surname] was taken by the whole family.

14. Document fraud is a major issue in Afghanistan, and taskiras, which lack security features, are particularly vulnerable to fraud.[13] The taskira is the central Afghan identity paper and has existed (in various forms) since the 1970s.[14] An A4 paper version has been issued since 2001. [15]  However no iteration of taskiras, including the most recent, can be assumed to be genuine.[16] The Danish National ID Centre states that the form of a taskira varies depending on where it was filled out, and contains no information about the mother of the applicant. It continues:

    Tazkera do not contain information about the date of birth or the place of birth. Instead, tazkeras normally contain the year its owner was born or an estimate of the person´s age at the moment the document was issued. According to the Immigration and Refugee Board of Canada, the place of birth is not indicated either on the document. The “place of birth” field on tazkera refers to the birth place of the applicant´s father, who also will have applied for the document on behalf of the applicant. It can also refer to the place where the family comes from. Although surnames and dates of birth do not appear in the original version of the document, they are found on English translations of the document. In these cases, surnames are the product of individual choices and it is normal for siblings to choose different surnames.[17]

    [13] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.54.

    [14] ‘Afghanistan: Issuance of taskera (tazkira) inside or outside of Afghanistan; information contained in the document during the Taliban and post-Taliban period’, Immigration and Refugee Board of Canada, 18 December 2007, p. 1; ‘A Guide to Afghan Documents’, Fraud Prevention Unit, United States Embassy, Kabul, published by Wikileaks, 1 June 2011, p. 5; ‘Afghanistan: Distribution of Controversial Electronic Identity Cards Launched’, Library of Congress, 19 July 2018; ‘AFG106237.E Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019)’, Research Directorate, Immigration and Refugee Board of Canada, 6 February 2019. 

    [15] Afghanistan: National Identity card (Tazkera), Danish National ID Centre, 16 May 2019, p.7.

    [16] ‘A Guide to Afghan Documents’, Fraud Prevention Unit, US Embassy, Kabul, Wikileaks, 1 June 2011; Access to Tazkera and other civil documentation in Afghanistan’, Norwegian Refugee Council, 8 November 2016; ‘For Afghans, Name and Birthdate Census Questions are not so simple’, The New York Times, 10 December 2014.

    [17] Afghanistan: National Identity card (Tazkera), Danish National ID Centre, 16 May 2019, p.7.

15. There are a number of reports showing what is required to obtain a taskira: a completed application form, passport sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate).[18] However, the procedure for obtaining taskiras varies depending on where the application is submitted; staff issuing and approving documentation do not always have proper training and knowledge of the laws; and in some cases personal connections and bribes help with the documentation process and the official process for obtaining taskiras may not be followed.[19] A number of sources suggest that the presence of an individual (over the age of seven) is mandatory to obtain a taskira for an adult family member.[20] However, other reports indicate that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskira.[21]

    [18] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019), 6 February 2019.

    [20] Ibid.

    [21] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 >

    The identity documentation the applicant has provided for his family members in Iran is consistent with his claim that, with the exception of his brother in Australia and sister in [Country 2], his immediate family members are Afghan citizens who reside in Iran as refugees. Having considered the country information and the documentation submitted by the applicant, the Tribunal has some doubts as to whether the applicant could obtain a taskira from outside of Afghanistan. However, as noted above, it appears possible to initiate a process of identity verification through the Afghan embassy in Canberra, and with the assistance of a representative in Afghanistan obtain a taskira in absentia.

16. Given the country information about the reliability of Afghan identity documents, the Tribunal does not consider the production of taskiras for the applicant and his father to be determinative evidence of his identity. However, the evidence about the applicant’s efforts to verify his identity through the Afghan embassy, when taken together with the witness testimony from family members in Australia, and the evidence about the circumstance and status of his family members in Iran supports the conclusion that the correct information is that the applicant is [the applicant], an Afghan citizen, who was born in Iran in [Year 4].

    The applicant’s identity

17. Overall, the Tribunal found the applicant’s evidence about his claimed identity to be credible.  His claim to be an Afghan national who has resided in Iran as a refugee has been a consistent thread in the three visa applications he has made. It has never been doubted that he is a Hazara and nor is there any evidence to suggest he is a citizen of a country other than Afghanistan. The applicant has provided current identity documents for family members in Iran, and the Tribunal accepts that his parents and four of his six siblings are living in Iran as refugees. The applicant’s brother was found to be a refugee by the Australian authorities and the Tribunal accepts that one of his sisters is now seeking asylum in [Country 2].

18. On the evidence before it, the Tribunal finds that the applicant is and was at all relevant times a citizen of Afghanistan. 

    Conclusion on non-compliance

19. On the basis of the applicant’s concessions and the evidence before it, the Tribunal finds that there was non-compliance with s.101 of the type described in the s.107 notice. In summary, the applicant admitted that he used a false identity ([Alias 1]) when he applied for the Subclass 866 protection visa. He has also admitted that he provided incorrect information by not disclosing his correct birth date, that he was known by another name, that he had a brother in Australia, and that he had previously applied for an offshore GSH visa and an orphan relative visa.

20. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

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

    ·     The correct information;

    ·     The content of the genuine document (if any);

    ·     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 circumstances in which the non-compliance occurred;

    ·     The present circumstances of the visa holder;

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

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

    ·     The time that has elapsed since the non-compliance;

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

    ·     Any contribution made by the holder to the community.

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

   The correct information

2. The Tribunal finds, based on the evidence that has been provided to the Tribunal, that the correct information is that the applicant is an Afghan citizen named [the applicant] who was born on [Date 4] in Qom in Iran. The Tribunal accepts that the applicant’s father and mother are citizens of Afghanistan who are residing in Iran as refugees.

3. The Tribunal finds that the applicant was, at the time of his birth, and at the time he applied for the protection visa application, a citizen of Afghanistan. The Tribunal finds that the applicant is of Hazara ethnicity and Shia Muslim religion. The applicant has participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and has the distinct visual features shared by Hazaras. The Tribunal finds that the applicant has previously resided in Iran as a refugee. The Tribunal accepts that the applicant was issued an Amayesh card but, as he has left Iran, no longer has a legal basis to reside in Iran.  

4. With respect to the applicant’s family composition, the Tribunal considers the correct information is that the applicant’s mother and father are citizens of Afghanistan. The evidence before the Tribunal indicates that the applicant’s father was born in [Town] in Maidan Wardak province and lived in West Kabul before travelling to Iran.

5. Based on the evidence before it, the Tribunal finds that the correct information is that the applicant has four sisters and two brothers, one of whom is an Australian citizen. The Tribunal finds that the applicant provided incorrect information about his age and his family composition in the orphan relative visa application made in 2010.

6. This consideration weighs in favour of cancelling his protection visa.

   The content of the genuine document

7. This prescribed circumstance is not relevant in this case because the s.107 notice relied on s.101, not on s.103 (relating to bogus documents).

   The circumstances in which the non-compliance occurred

8. The applicant arrived on Christmas Island by boat in 2012 and was granted a protection visa on the basis that he was an Afghani citizen of Hazara ethnicity and Shia religion. In the response to the NOICC dated 1 July 2019, the applicant declares that he deeply regrets that he provided incorrect information about his name, age, family composition, place of birth, immigration and relatives in his protection visa application.  He declares that he did so because when he left Iran, he knew he had no chance of returning to that country and he was afraid of returning to Afghanistan. He was advised by people smugglers to say he was an unaccompanied minor so he would be treated less harshly in detention and would have the chance to go to school, which was an opportunity he wished to have. He did not want to make trouble for his brother or father’s cousin in Australia, so did not declare them as relatives. He was desperate to resolve his ongoing state of limbo and uncertainty in Iran.

9. The Tribunal accepts that the applicant gave incorrect information in the knowledge that previous visa applications made offshore in his name had been unsuccessful and in the hope that he would be able to sponsor family members to bring them to Australia. When the Tribunal asked the applicant why he told the Australian authorities his name was [Alias 1] instead of [the applicant], he referred to the fact that the GSH and orphan relative visa applications were unsuccessful and indicated that he wanted to be able to sponsor his family. The applicant acknowledged that his brother, [Mr B], knew he was coming to Australia. The applicant said that he provided a different date of birth because when he arrived in Christmas Island there were rumours that if you were over 18, they would send you to Nauru. He had heard that if you were underage and by yourself you could sponsor your family whereas if he had declared that he had a brother he could not.

10. The Tribunal accepts the applicant is an Afghan Hazara and that he and his family lived in Iran as refugees. The Tribunal accepts that, prior to seeking asylum in Australia, the applicant lived as an Afghan refugee in Iran.[22] Credible sources indicate that Afghan refugees in Iran experience significant official and societal discrimination and that the Iranian authorities have subjected Afghan refugees to a range of rights abuses including arbitrary arrests and detentions.[23] It is becoming increasingly difficult for Afghan refugees who were registered as refugees before 2007 to reregister as refugees and Afghans are vulnerable to being deported without access to due process.[24] The Tribunal considers that the persecution faced by Hazara Shia Muslims in Afghanistan and the treatment of Afghan refugees in Iran provides the context in which the acts of non-compliance by the applicant occurred.

    [22] ‘Unwelcome Guests: Iran's Violation of Afghan Refugee and Migrant Rights’, Human Rights Watch, November 2013, p. 65.

    [23]Ibid, p. 65.

    [24]Ibid, p. 65.

11. The Tribunal is prepared to give the applicant’s explanation of the circumstances of the non-compliance some weight against cancellation of the visa.

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

12. The applicant’s protection visa was based on his claims to be an Afghani citizen who feared serious harm on return to Afghanistan (based on his Shia religion and Hazara race). The delegate who decided the applicant was owed protection obligations noted that the applicant had not provided any identity documentation. The delegate was satisfied, for the purpose of assessing the applicant’s claims, that ‘the applicant’s name is [Alias 1] and he is an Afghani citizen who is aged [Age 2] years with a date of birth [Date 1]’. The delegate was satisfied that the applicant was a member of the Hazara ethnic group and of the Shia Muslim religion, observing that the applicant communicated in the Hazaragi language, and possessed facial features commonly attributed to people of Hazara ethnicity. In assessing the applicant’s circumstances, the delegate had regard to the following factors: the applicant is a Hazara Shi’a Muslim; he has lived in Iran since he was a baby; and his dress style and the way he speaks is westernised having been influenced by his time in Iran. The delegate concluded that the applicant’s ‘westernised appearance and the way he speaks may draw members of the Taliban or Pashtun extremist groups attention to him, which in culmination with his race and religion will make him a target’.

13. The applicant provided incorrect information about his name, date of birth, family composition and relatives in Australia in his protection visa application. The decision that the applicant was owed protection obligations does not appear to be based on his status as a minor but rather the fact that he was a member of the Hazara Shia minority and, further, that, given he has lived in Iran since he was a child, the risk he may be targeted may be exacerbated by the way he speaks and his style of dress. It is clear that the fact that the applicant was of Hazara ethnicity and Shi’a faith and an Afghan national who had grown up outside of Afghanistan as a refugee in Iran were essential factors in the delegate’s conclusion that he was owed protection obligations by Australia. However, if the applicant had disclosed his previous visa applications this would likely have raised questions about his credibility, particularly given he gave inconsistent information about his date of birth and his family composition. The Tribunal considers the decision to grant the visa was in part based on the applicant providing an untrue narrative about his place of birth and the experiences of his family and gives this weight towards the cancellation of the visa.

    The present circumstances of the visa holder

14. Since arriving in Australia, the applicant has undertaken study and found work in his brother’s business as [an Occupation]. His brother runs a successful [business], [Business Name], and the applicant submitted images of his craftmanship, including work undertaken for [Employer 1] and [Employer 2]. The applicant is involved in his local [sport] club, and his application for review was supported by members of the Hazara community in Canberra.

15. Since his protection visa application was cancelled in 2019, the applicant has lived in the community without a valid visa. This is because as an unauthorised maritime arrival the applicant is prevented by s.46A from making a valid application for any visa, including a bridging visa, unless the Minister lifts the bar and permits an application for a specified visa. While it is clearly undesirable for individuals to live and work in the Australian community without a valid visa, these circumstances were beyond the applicant’s control as without the personal action of the Minister he could not apply for a bridging visa to regularise his status while his application for review was before the Tribunal. As an unauthorised maritime arrival who has had his protection visa cancelled and his resident return visa cancelled, the applicant has no access to Medicare, no work rights, and is liable to mandatory detention.

16. On 6 January 2021 the applicant was granted a resident return visa in the name of [Alias 1] and on 15 April 2021 the Department cancelled the visa on the basis that the applicant had provided incorrect information in his resident return visa application. In a separate decision the Tribunal has address the question of whether the Department had the power to cancel the visa. The Tribunal concluded that the power did arise and set aside the decision to cancel the visa, however given this history of this matter and the issues raised by the matter, the Tribunal considers it is appropriate to assess whether the applicant is a person who is owed non-refoulement obligations in considering whether the visa should be cancelled.

17. Overall, the Tribunal considers the present circumstances of the visa holder should be given weight in favour of not 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

18. In response to the NOICC, the applicant has conceded that he provided incorrect answers in relation to some of the questions he answered in his application for a protection visa. The Tribunal accepts that, following the applicant’s concession that he provided incorrect information, he has sought to be honest in his dealings with the Department.

19. Before the applicant was issued the NOICC, the applicant lodged a resident return visa application using the alias [Alias 1]. The Tribunal acknowledges that when the Department granted the applicant a resident return visa in the identity of [Alias 1] in January 2021 the applicant immediately brought this to the attention to the Tribunal and that the Department was aware the applicant had provided incorrect information at the time the resident return visa was granted. The applicant now maintains his true identity is [the applicant], born on [Date 4].

20. The Tribunal gives this factor weight in favour of not cancelling the visa.

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

21. The applicant lodged a GSH visa application to sponsor his mother and siblings in 2013, using the alias [Alias 1].  The applicant has said that he regrets this conduct and that he wanted to assist his mother and siblings. Before the NOICC was issued, the applicant lodged an application for a resident return visa in 2019 before his protection visa was cancelled using the alias [Alias 1]. The applicant also applied for Australian citizenship in 2016 in the name of [Alias 1].

22. The Tribunal has given this factor weight in favour of cancelling the visa.

    The time that has elapsed since the non-compliance

23. The relevant non-compliance in the present case took place when the applicant applied for a protection visa. Over eight years have elapsed since the non-compliance took place. During this period the applicant has established himself in the Australian community. The Tribunal gives this consideration weight in favour of not cancelling the visa.

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

100.   The delegate’s decision states that there is no evidence to indicate any breaches of the law since non-compliance. The Tribunal gives this consideration some weight in favour of the applicant.

Any contribution made by the visa holder to the community

101.   The applicant says he complies with the law and is well-respected and liked within the community. The Tribunal has read his character references, his school reports from [School], and notes that he submitted an AFP police clearance. The Tribunal accepts that he is a skilled [Occupation], a member of the local [sport] team and that he has become part of the community in which he lives.  The Tribunal gives this consideration some weight in favour of not cancelling the visa.

Other factors

Mandatory legal consequences

102.   The Tribunal is required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether, upon cancellation, a person would become an unlawful non-citizen. If a s 109 cancellation is set aside by the Tribunal or a court, the Act provides that the visa is taken never to have been cancelled: ss 114 of the Act. In a separate decision, the Tribunal set aside the decision to cancel the resident return visa. Because the applicant is currently the holder of a Subclass 155 visa, he will not be an unlawful non-citizen or the holder of a bridging or other temporary visa as a consequence of this Tribunal's decision. As the applicant currently holds a resident return visa, he will not be liable to detention or removal as a consequence of this cancellation decision.

Whether there would be consequential cancellations under s.140

103.   There is no suggestion that another person holds a visa in Australia as a family member of the applicant. This factor is not relevant in this case.

Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international obligations, family unity principles, best interests of the child

104.   Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights (the ICCPR) and its Second Optional Protocol (the Optional Protocol to the ICCPR).

105.   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 mentioned above, or any obligations accorded by customary international law that are of a similar kind.[25] In the absence of specific guidance on whether the Tribunal’s consideration of non-refoulement obligations should address whether the applicant meets the definition of refugee in article 1A(2) of the Refugees Convention or the codified definition of refugee in s.5H of the Act, the Tribunal considers the preferable approach is to consider whether the applicant comes within article 1A(2) of the Refugees Convention. Relevantly,  article 1A(2) defines a refugee as any person who:

[25] Section 5(1), Migration Act 1958.

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.

106.   The Department’s 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.

107.   Notwithstanding this policy, the delegate stated that if the visa were cancelled, an International Treaties Obligations Assessment would be completed by a departmental officer before a decision was made to remove the visa holder to his country of origin. The delegate then gave this consideration a little weight against cancelling the visa.

108.   In January 2021 a delegate of the Minister granted the applicant a resident return visa in the alias of [Alias 1]. On 15 April 2021 the delegate cancelled the applicant’s resident return visa.  The Department did not undertake an International Treaties Obligation Assessment in relation to the cancellation of the applicant’s protection visa or his resident return visa. The Tribunal has made a separate decision in relation to the application made by the applicant to review the decision to cancel the resident return visa.

109.   When the applicant applied for review of the decision to cancel his protection visa he claimed to be a person who was owed protection obligations by Australia. He sought to explain the decisions he had made to provide incorrect information to the Australian authorities and then maintained this deception for years after he arrived in Australia by reference to his fear of being removed to Afghanistan where he claims he would face persecution as member of the Hazara Shia minority. The Tribunal has made a separate decision with respect to the decision to cancel the applicant’s resident return visa. Given the history of this matter and the legal issues discussed in case 2104797, the Tribunal considers an assessment of whether Australia has non-refoulment obligations to the applicant is a relevant factor to consider in determining whether the protection visa should be cancelled.

Country of nationality

110.   The Tribunal finds that the applicant is a citizen of Afghanistan and has assessed his claims against that country. As an Afghan national, the Tribunal is satisfied that the applicant has no right to enter or reside in Iran.[26]

[26] DFAT Country Information Report – Iran, 14 April 2020.

Claims to have a well-founded fear of persecution

111.   Before the Department, he submitted that if the visa is cancelled, he has a well-founded fear of persecution in Afghanistan on the basis of his Hazara ethnicity and Shia religion and also as a person who was born and grew up in Iran, and has now lived in the West.

112.   The Tribunal has considered the risk profile of the applicant. For the reasons given in this decision, the Tribunal finds the applicant is a national of Afghanistan of Hazara ethnicity and Shia religion. The Tribunal accepts that if he is removed to Afghanistan he will be identifiable as a Hazara Shia from his physical appearance and his language, Hazaragi. The Tribunal accepts the applicant was born in Iran in [Year 4] and has never lived in Afghanistan. The Tribunal accepts that the applicant lived with his parents in Iran as a registered refugee but when he left Iran he lost his right to reside in Iran. The Tribunal accepts that his parents, three sisters, and eldest brother reside in Iran as refugees and that his fourth sister has sought asylum in [Country 2]. His eldest brother sought asylum in Australia in 2009 and was found to be a refugee as a Hazara Shia from Afghanistan. The Tribunal accepts that the applicant has never lived in Afghanistan and that, while he has some extended family members in Kabul, he has no meaningful connections in the country or local contacts.

113.   For the reasons that follow, the Tribunal finds that the applicant faces a real chance of being persecuted if he is removed from Australia to Afghanistan for reasons of his Hazara ethnicity and Shia Muslim faith.

114.   In February 2020, the UN stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[27] The most recent DFAT report, published in 2019, states that since the fall of the Taliban, Hazaras have experienced significant social and economic improvements, albeit from a very low base.[28] More recently in February 2021, the New York Times reported:

[27] ‘Afghanistan Protection of civilians in armed conflict first quarter report - 1 JANUARY - 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020.

[28] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, p. 25.

Under the Taliban’s rule, thousands of Hazaras were massacred in pogroms. But since the American invasion in 2001 toppled the Taliban government, Hazaras have carved out thriving communities, businesses, schools and mosques in western Kabul and in Hazarajat, in the highlands of central Afghanistan.

Yet the targeted violence hasn’t stopped.

In recent years, hundreds have died in attacks on tutoring centers, mosques, hospitals, voting sites and even a wrestling club. More than 80 people perished in a double suicide bombing at a Hazara protest in Kabul in 2016. At least 31 died in a suicide bombing in a Hazara area during a 2018 celebration for Nowruz, the Persian New Year. Most of these attacks have been claimed by Sunni Muslim extremists of the Islamic State, who consider Shiites apostates and heretics.

What progress has been made by the ethnic minority is threatened by such attacks, and now a possible return of the Taliban to government. As recently as 2018, Hazara civilians were killed and forced from their homes during a Taliban offensive in Hazarajat.[29]

[29]  Sustained targeting of civilians of Shia Islamic faith, most of whom are ethnic Hazaras, continued throughout 2019[30] and 2020.[31] As religion, ethnicity and political allegiance remain linked, it is not always possible to distinguish between religion and ethnicity as the primary element behind certain incidents or tensions.[32] The Taliban has also targeted both Hazaras and Shias in general.[33] However, a report published by the Finnish Immigration Service (FIS) in October 2019 found ‘Hazaras are generally more at risk from ISIS [Islamic State of Iraq and Syria] and the Taliban than other groups, because of both their ethnicity and religion (Shia Islam)’ and that sectarian attacks against Shia and Hazara communities in Kabul have increased in the last three years.[34]

[30] ‘Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)’, United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 8.

[31] ‘Afghanistan Protection of civilians in armed conflict first quarter report - 1 JANUARY - 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020, p. 4; ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020.

[32] ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 30 August 2018, pp. 61-62.

[33] 'The case of Mawlawi Mehdi and Balkhab District: Are the Taleban attracting Hazaras?', Thomas Ruttig, Afghanistan Analysts Network, 23 May 2020, p. 1.

[34] ‘Afghanistan: Fact-Finding Mission to Kabul in April 2019 - Situation of Returnees in Kabul’, Finnish Immigration Service, 15 October 2019, p. 23.

116.   DFAT describes the security situation in Afghanistan as complex, dangerous and fluid. With respect to the risks facing Hazaras, DFAT advises that the risk profiles of ‘people associated with the government or international community’ and ‘Shias’, which is a high risk, apply to Hazaras because ‘Hazara are widely perceived to be supporters of the government’ and ‘the overwhelming majority of Hazara are Shia (or are widely perceived to be)’.[35] Other sources indicate that the Taliban and Islamic State Khorasan (ISK) especially target Hazaras,[36] and suggest that Hazaras are targeted because of their Shia religion and perceived closeness and support for Iran.[37]

[35] ‘DFAT Country Information Report – Afghanistan’, DFAT, 27 June 2019, p. 26; ‘Operation Freedom’s Sentinel: Lead Inspector General Report to the United States Congress I January 1, 2020 - March 31, 2020’, Lead Inspector General, 15 May 2020, p. 18.

[36] 'BTI 2020 Country Report Afghanistan', Bertelsmann Stiftung, 29 April 2020, p. 29; 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.

[37] ‘Country Guidance: Afghanistan’ European Asylum Support Office (EASO), June 2019, p. 69.

117.   Attacks on Hazaras continued throughout 2020. On 6 March in Kabul gunmen killed at least 32 people  at a ceremony commemorating a Hazara leader, Abdul Ali Mazari.[38] On 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shia neighbourhood and home to a large Hazara population, and killed 24 people.[39] While no group claimed responsibility, the attack has been attributed to ISK.[40] In August and September, Hazara-populated areas were repeatedly attacked by the Taliban.[41] In October 2020 Human Rights Watch described a massive suicide bombing outside the Kawsar-e Danish educational centre in West Kabul, a mainly Hazara Shia area, as ‘the latest attack cruelly targeting the Hazara Shia minority’.[42] The report continued:

[38] 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.

[39] 'Babies among 24 killed as gunmen attack maternity ward in Kabul', Aljazeera, 13 May 2020.

[40] Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Stefanie Glinski, Foreign Policy, 14 May 2020.

[41] 'Taliban kill 10 security forces in Daikundi and Urozgan', Kabul Now, 16 August 2020; 'More than 30 security forces killed in Daikundi in a month', Afghanistan Times, 08 August 2020; '14 Taliban fighters killed in Ghazni clash, bombing', Saifullah Maftoon, Pajhwok Afghan News -Afghanistan, 07 September 2020,; ''35 Taliban Killed' in Clashes with Security Forces: Officials', Tolo News, 27 September 2020,; 'Additional Forces Deployed in Ghazni', Mohammad Haroon Alim , Khaama Press, 07 September 2020.

[42] 'Afghanistan School Bombing Targets Minority Community', Patricia Gossman, Human Rights Watch, 26 October 2020; 'The false inclusivity of the Taliban’s emirate', Mehdi J Hakimi, Aljazeera, 26 October 2020.

The explosion took place in a crowded, narrow street outside the center, killing 30 people and injuring more than 70, mostly children and young adults between 15 and 26 years old who were attending classes.

Since 2017, the Dasht-e Barchi neighborhood, home to a predominantly Hazara community, has seen numerous attacks on civilians. A bombing at the Imam Zaman mosque in October 2017 killed 39; an attack on a school in August 2018 killed more than 34 students; and twin bombings at a wrestling club in September 2018 killed 20, including journalists and first responders who arrived after the first explosion. In May, gunmen murdered 15 women in the maternity wing of the Dasht-e Barchi hospital, many of whom were in labor or had just given birth.

The Islamic State of Khorasan Province (ISKP), the Afghan branch of the Islamic State (ISIS), claimed responsibility for Saturday’s attack. The armed group has claimed responsibility for many such bombings and has long singled out Afghanistan’s Hazara Shia community for attack. Intentional attacks on civilians are grave violations of the laws of war, and those responsible should be prosecuted for war crimes.

Many mosques and educational facilities in Kabul now have armed guards, but this offers little protection from such calculated attacks. Afghan authorities repeatedly promise investigations, including tasking the attorney general’s war crimes unit to carry them out, but none have yielded results, leaving family members of victims with neither answers nor justice.

“They are killing our youth,” said the relative of one of the victims of Saturday’s attack.

118.   The government has implemented increased security measures to prepare for attacks against the Shia community, especially in Kabul. However, in 2019, most of the casualties inflicted on the Shia community were caused by targeted attacks during large religious or cultural gatherings.[43] Afghan media report that the Shia community consider that government protection from anti-government elements is inadequate.[44]

[43] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 48.

[44] 'Afghanistan 2019 International Religious Freedom Report', US Department of State, 10 June 2020.

119.   The applicant would be readily identifiable as a Hazara and a returnee from the West. Societal discrimination against Shia Hazaras occurs along class, race and religious lines, in the form of extortion of money through illegal taxation, forced recruitment and forced labour, physical abuse and detention.[45] Ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan[46] and the applicant would be in a particularly vulnerable position because of his lack of local knowledge and connections.

[45] ‘2019 Country Reports on Human Rights Practices: Afghanistan’, United States Department of State, 11 March 2020, pp. 39-40; 'Persecution and perseverance: Survival stories from the Hazara community', Derakhshan Qurban-Ali and Hannah Scott, UN Human Rights Council, 24 July 2020; DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 14, 24.

[46] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, p. 24.

120.   Professor Maley warns that the situation in Afghanistan is extraordinarily fluid and that when the security situation in Afghanistan deteriorates ethnic minorities find themselves in the firing line. Professor Maley observes that there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan observing:

With the withdrawal of foreign forces, and particularly with the signing on 29 February 2020 of a US-Taliban agreement …there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a ‘cascade’, where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This … [phenomenon] … would likely create especially serious risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban and their associates in groups such as the Haqqani network. [47]

[47] On the return of Hazaras to Afghanistan, Professor William Maley AM, 7 November 2020

121.   Professor Maley’s assessment is that, given this fluidity, there is no place in Afghanistan that can be considered safe for Hazaras.’[48] International troops are withdrawing at a time when violence is escalating and members of the Hazara community in Australia have expressed concerns that a resurgent Taliban will step up attacks against the Hazara community.[49] On 16 April 2021, the New York Times reported:

[48] On the return of Hazaras to Afghanistan, Professor William Maley AM, 7 November 2020

[49] fear is multifaceted, evoked by the Taliban’s grim record, bitter and vivid memories of civil war and the widely acknowledged weakness of the current government. These conditions in turn push Afghan thinking in one direction: The country’s government and armed forces won’t survive without American support. Many American policymakers, security officials and diplomats concur with this gloomy view. Just this week, the U.S. intelligence assessment, presented to Congress, suggested as much: “The Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.”

During their five years in power, 1996 to 2001, the Taliban operated one of the world’s most oppressive and theocratic regimes, and there is little in their public posture and behavior during the group’s years of insurgency to suggest that much has changed, at least ideologically …

[Under the heading ‘What does an American withdrawal mean for women and minorities in Afghanistan’ the article refers to the situation of the Hazara community as follows]

… During the Taliban era, there was widespread persecution, and even massacres, of minority communities like the Hazara, an ethnic group that is mostly Shiite in a country where Sunnis predominate. Today’s Taliban, overwhelmingly Pashtun as before, single out the Hazara for mistreatment when they capture them at roadblocks, persecute them in their makeshift prisons, and have given no indication that they will protect minority rights in a government under their control.[50]

[50]

122.   DFAT reports that traditional extended family and tribal community structures are the main protection and coping mechanisms. The evidence before the Tribunal is that the applicant’s father is from Maidan Wardak province although it appears the family may have lived in West Kabul before journeying from Afghanistan to Iran. The applicant has no family in Maidan Wardak province and has never lived in Afghanistan.

123.   The country information clearly indicates that Hazaras are at elevated risk of targeting on the road networks in Afghanistan due to their ethnicity.[51] Kidnapping and abductions by anti-government elements occur regularly, ‘particularly on Afghanistan’s highly insecure road network’.[52] Hazaras travelling to and from the Hazarajat by road face an increased risk of kidnapping and abduction;[53] the main road connecting Kabul to Hazarajat (via Maidan Wardak province) is called ‘the road of death.’[54] Hazaras have been subject to hostage taking, abduction, kidnapping and beheading[55] and roads in areas with large Hazara populations also suffer from improvised explosive device (IED) attacks.[56]

[51] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 21-22.

[52] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, p. 21. 'On Afghan Highways, Even the Police Fear the Taliban’s Toll Collectors', David Zucchino and Fahim Abed, The New York Times, 01 November 2020; 'Security Force Members Escape from Taliban Custody in Zabul', Tolo News, 11 October 2020; 'Taliban Executes Female Prison Guard, and U.N. Raises Concern Over Afghan Violence', Mujib Mashal and Najim Rahim, The New York Times, 27 July 2020; 'Customs staffs on strike over growing insecurity across Islam Qala-Herat highway', Kabul Now, 06 July 2020; 'Last Week ‘Deadliest’ in 19 Years of War: NSC', Massoud Ansar, Tolo News, 22 June 2020.

[53] ‘The 116,550sq km (45,000sq miles) region of highlands and pastures [in central Afghanistan] where Hazaras have traditionally lived’: 'What peace means for Afghanistan's Hazara people', Bismellah Alizada, Aljazeera, 18 September 2019; 'Taliban kidnap 28 civilians in Maidan Wardak', Afghanistan Times, 25 November 2020; 'Taliban kidnap 28 Hazara travelers in Afghanistan', La Prensa, 25 November 2020.

[54] 'What peace means for Afghanistan's Hazara people', Bismellah Alizada, Aljazeera, 18 September 2019; 'Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government', Hazara People, 01 February 2019, p.27; Hazara People, 01 February 2019, p.2.

[55] 'Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government', Hazara People, 1 February 2019.

[56] 'Landmines still kill and maim in Afghanistan', Afghanistan Times, 01 October 2020; 'Blast in Daikundi Kills 14 Civilians: Interior Ministry', Tolo News, 29 September 2020; '21 dead and wounded in fresh wave of Taliban violence', Kabul Now, 30 September 2020.

124.   The applicant has never lived in Afghanistan and has no meaningful family support and given the risk of travelling on roads – particularly for Hazaras and Western returnees – the Tribunal is satisfied that there is a real chance that the applicant will face persecution throughout Afghanistan. Based on the country information and taking into account the specific risk profile of the applicant, the Tribunal is satisfied there is a real risk the applicant’s life and freedom would be threatened for the essential and significant reasons of his Hazara race, Shia religion and imputed political opinion if he were returned to Afghanistan.

125.   The harm that the applicant fears from the Taliban and anti-Shia militant groups is from non-state agents. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. DFAT reports that the ongoing conflict has significantly challenged the government’s ability to exercise effective control over large parts of the country, a problem which is illustrated by large-scale attacks in Kabul since 2016. [57] The ability of the Afghan national police to provide and maintain security and law and order remains limited, particularly outside major cities, and its overall capacity is constrained by a number of factors, including lack of resources, poor training and leadership, low morale and high levels of corruption. The COVID-19 pandemic has compounded these difficulties. In April 2021 the United States Office of the Director of National Intelligence reported that ‘the Afghan Government will struggle to hold the Taliban at bay if the Coalition withdraws support’.[58] The Tribunal finds that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect.[59]

[57] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 21-22.

[58]

[59] MIMA v Respondents S152/2003 (2004) 222 CLR 1.

126.   The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and the political opinion that would be imputed to him by the Taliban and anti-Shia militants because he would be readily identified as a Hazara Shia who has returned to Afghanistan from the West. The applicant has never lived in Afghanistan and these factors will only serve to elevate the risks he will face on return. It is also clear that the applicant would suffer significant hardship if returned to Afghanistan, where he has no local knowledge or experience or family support or network and in the face of such dire security conditions.

127.   The Tribunal finds that the applicant is a refugee as that term is defined by article 1A(2) of the Refugees Convention and if he were to be removed from Australia this would breach Australia’s non-refoulement obligations.

Conclusion

128.   The Tribunal has carefully considered the factors that weigh for and against the cancellation of the visa. In the Tribunal’s opinion the factors against cancelling outweigh those in favor of cancelling. The Tribunal therefore concludes the visa should not be cancelled.

129.   The Tribunal acknowledges that the applicant gave incorrect information about his true age, name, family composition and immigration history in his protection visa application. This factor weighs in favour of cancellation in this case, as does his use of a false alias, [Alias 1], in subsequent visa applications. Against these factors, the Tribunal has considered, and given weight to the applicant’s explanation of the circumstances in which non-compliance occurred and the fact that, at the time of this decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara ethnicity, Shia religion and his imputed political opinion.

130.   The Tribunal has considered both the very serious nature of the non-compliance and the circumstances in which the non-compliance occurred. The applicant provided incorrect information about matters which are fundamental to his identity and, having been granted a protection visa he then decided to provide incorrect information again in his proposal of his mother and siblings’ humanitarian application for family reunion (even though those visas were not eventually granted) and in his application for a resident return visa. His actions undermine the integrity of Australia’s immigration system. While there is no excuse for such conduct, the applicant has expressed remorse for his actions and explained that he was motivated by a fear of being removed to Afghanistan, a country where he has never lived, and a desire to provide his family members with a safe and secure existence.

131.   On the available evidence the Tribunal is satisfied that the applicant's identity is [the applicant], an Afghan national of Shia religion and Hazara ethnicity born in Iran in [Year 4]. The applicant is a member of an ethnic minority that has been persecuted in his country of nationality and faces high levels of discrimination and is subject to a risk of arbitrary arrest and deportation in Iran, where he has previously lived as a refugee. Following his arrival in Australia, he has built a reputation for himself as a skilled [Occupation] while working at his brother’s business. He is known within the Hazara community in Canberra and a member of the local [sport] club. It is almost nine years since the non-compliance occurred and he is now living a productive life in the Australian community. The Tribunal accepts that, as a member of an ethnic and religious minority group of Hazara Shias, the applicant has a well-founded fear of persecution throughout Afghanistan. The Tribunal is satisfied that the applicant’s removal from Australia to Afghanistan would breach Australia's non-refoulement obligations.

132.   Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

133.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

134.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Frances Simmons
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.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

105Particulars of incorrect answers to be given

(1)If a non‑citizen becomes aware that:

(a)     an answer given or provided in his or her application form; or

(b)     an answer given in his or her passenger card; or

(c)      information given by him or her under section 104 about the form or card; or

(d)     a response given by him or her under section 107;

was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

(2)Subsection (1) applies despite the grant of any visa.

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.