1933869 (Migration)

[2023] AATA 3159

1933869 (Migration) [2023] AATA 3159 (30 June 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Teresa Lee (MARN: 2217901)

CASE NUMBER:  1933869

MEMBER:Simone Burford

DATE OF DECISION:  30 June 2023

DATE CORRIGENDUM

SIGNED:7 July 2023

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

• In the Tribunal’s Reasons for Decision, made on 30 June 2023, at paragraph 35 the table should be deleted and replaced with the following:

  The applicant’s siblings are:

Name	Date of birth	Place of birth	Current location	Citizenship/s
[Brother A]	Sometime in or around [specified year] (Note: The Department of Home Affairs have recorded his date of birth as [DOB 1])	[Town 1], Daykundi Province, Afghanistan	Australia	Australian
[Sibling A]	Sometime in or around [year]	[Town 1], Daykundi province, Afghanistan	Deceased	Afghanistan
[Sibling B]	Sometime in or around [year] (Note:The Department of Home Affairs have recorded his date of birth as [DOB 3])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling C]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling D]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling E]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 6])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan

• In the Tribunal’s Reasons for Decision, made on 30 June 2023, at paragraph 65, at the first dot point, ‘2015’ should be replaced with ‘2005’.

  Simone Burford
  Senior Member

  
  

  DECISION RECORD

  DIVISION:Migration & Refugee Division

  REPRESENTATIVE:  Ms Teresa Lee (MARN: 2217901)

  CASE NUMBER:  1933869

  MEMBER:Simone Burford

  DATE:30 June 2023

  PLACE OF DECISION:  Perth

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

  Statement made on 30 June 2023 at 3:31pm

  CATCHWORDS

  MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in previous visa applications – bogus documents – immigration history – family composition – indefinite detention – non-refoulement obligations – contribution made by the holder to the community – impact on the applicant’s family – decision under review set aside   

  LEGISLATION

  Migration Act 1958, ss 5(1), 5AA, 46, 48, 97-105, 107-109, 140, 189, 195A-198, 359, 375
  Migration Regulations 1994, r 2.41

  CASES

  Commonwealth v AJL20 [2021] HCA 21
  MIAC v Khadgi (2010) 190 FCR 248

  Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

  STATEMENT OF DECISION AND REASONS

  APPLICATION FOR REVIEW

1. 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 155 (Five Year Resident Return) visa (the Resident Return visa) under s 109(1) of the Migration Act 1958 (Cth) (the Act). The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.

2. The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to his Protection visa application (the visa which he held prior to the grant of the Resident Return visa) in breach of s 101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is [an age]-year-old married man who claims to be a citizen of Afghanistan. According to the delegate’ record,  he arrived as an irregular maritime arrival [in] May 2011. 

4. The applicant was granted a permanent Protection (Class XA) (Subclass 866) visa on 7 September 2011, based primarily on his alleged status as a Shia Hazara from Afghanistan.  He was granted a Resident Return (Subclass 155) visa on 3 August 2018.  That visa was cancelled on 21 November 2019 and is the subject of this review.

5. The Tribunal notes s 107A provides that failure to comply with ss 101(a) and 101(b) of the Act in connection with a previous visa application may be grounds for cancelling the visa holder’s current visa.

6. According to the applicant’s evidence, he has a wife living in Quetta, Balochistan, Pakistan. The applicant and his wife married [in] September 2017. 

   The cancellation

   The notice

7. On 15 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return visa, on the basis of non-compliance with s 101(b) of the Act. That subsection provides that no incorrect information must be given in the visa application process and that information must be updated when it is not correct.

8. The NOICC set out as the grounds for the cancellation the applicant’s responses included in the applicant’s application for the Protection (Subclass 866) visa lodged on 29 August 2011. The NOICC included the responses to questions in form 866B of that application form.

9. The NOICC also detailed responses or information provided in two other visa applications as information indicating the applicant had provided incorrect answers in his Protection visa application:

   ·An application for a Global Special Humanitarian (subclass 202) visa (GSH visa) lodged by his mother [Mother A] on 3 October 2015 in which the applicant was a secondary applicant for the visa.

   ·An application for an Orphan Relative (subclass 177) visa (Orphan Relative visa) lodged on 2 September 2009 in [Country 1].

   ·An application for a Provisional Partner (Spouse) (Subclass 309) visa (Partner visa) lodged on 22 January 2007 lodged by [Sister-in-law A] sponsored by her spouse [Brother A]. A secondary application was lodged as part of this application by [the applicant] ([DOB 7, in year A]), on the basis of being a dependent member of [Sister-in-law A] family unit, namely, her brother-in-law ([Brother A]).

10. The Global Special Humanitarian (subclass 202) visa and Orphan Relative (subclass 177) visa applications were refused. The secondary application for the Partner visa was also refused. The Department had before it information provided in the Global Special Humanitarian (subclass 202) visa, Orphan Relative (Subclass 117) visa and the Provisional Partner (Spouse) (Subclass 309) visa applications.

11. The particulars of the non-compliance were in relation to the applicant’s claimed identity,  family composition and claims for protection.

12. The NOICC detailed that the applicant had:

    ·     failed do declare earlier visa applications in his Protection visa application;

    ·     provided a different birth date in his Partner, Orphan Relative and Protection visa applications to that used in his GSH visa application;

    ·     provided different details as to his family composition and history in his visa applications over time including indicating his mother was dead when she is alive and providing inconsistent accounts of the death of his father; and

    ·     made claims for protection concerning threats from [a named person] in Afghanistan which were inconsistent with accounts of the family history provided in the GSH visa application;

    ·     claimed he had no remaining family or relatives in Afghanistan when he has numerous extended family members in that county.

13. With respect to his father’s death, the NOICC detailed that in support of the Partner visa application, the applicant’s brother had provided a copy of a letter dated [in] September 2006 issued by the Afghan Consulate in Quetta, Pakistan, stating his father, [Father A], died [in] March 2003.  The Australian High Commission Islamabad referred the letter to the Afghan Consulate in Quetta for verification. [In] March 2007 the Afghan Consulate in Quetta advised the death certificate provided for [Father A] was not genuine.

14. This was put to the applicant’s brother over the phone on 29 October 2007 and [in] November 2007 his brother wrote to the Australian High Commission, Islamabad, providing a copy of a letter dated [in] October 2007, issued by the Afghan Consulate in Quetta at his instigation. This second letter stated that the death certificate for the visa holder's father was indeed issued by the Afghan Consulate in Quetta and is indeed genuine.

15. [In] March 2008 the Australian High Commission in Islamabad sought confirmation from the Afghan Embassy in Islamabad, regarding the legitimacy of the death certificate issued [in] September 2007 and the letter dated [in] October 2007, both issued by the Afghan Consulate in Quetta. [In] May 2008 the Afghan Embassy in Islamabad advised the visa holder's father's death certificate is bogus. This, therefore, also implies that the letter of [October] 2007 is also incorrect, as it purported to validate the bogus document.

16. On the basis of the information before it the delegate found:

    ·     the applicant’s mother, who was also known as [Mother Alias A], and his father, [Father A], were not deceased as claimed;

    ·     the applicant had unsuccessfully applied for several visas prior to his Protection visa application;

    ·     the applicant was born in [year B] and not [year A] as claimed in his protection visa application;

    ·     the applicant has extended family members living in Afghanistan; and

    ·     the applicant did not experience the harm claimed in his Protection visa application. 

17. The NOICC stated that there was non-compliance with s 101(b) as the applicant provided incorrect answers to questions 3, 9 , 41, 42 and 43 of Part B of Form 866 (relating to his bio details, visa history, relatives and claims for protection).

    The applicant’s response

18. The applicant provided a response to the NOICC on 24 April 2019. A copy was provided to the Tribunal. The Tribunal notes the applicant was unrepresented when the response was provided.

19. The applicant provided the following reasons why he did not agree there was non-compliance:

    In Afghanistan we are belong to small town [Town 1] we never been to school, in Afghanistan we have different calendar Afghan people are used to it and we always make mistakes in telling dates let alone we are an illiterate person, we get nervous and confuse at interviews, if someone interview us now still we make mistakes.

    [Mother Alias A] is our aunty. When we were in Pakistan my mother told my aunty that she should tell her husband [Uncle A] to go to Afghanistan to make tazkiras for us because my mother was very sick and she could not walk and eat properly, she could not go to Afghanistan neither my siblings we were all young and it is very dangerous too for us to go to Afghanistan to make Tazkiras, we are Hazara and Shia Muslim for us its extremely dangerous to travel in Pakistan, Afghanistan and in between lots of people lost their lives in the past, we also had great fear from son of [Leader A] and his people who threatened to kill us all, the tazkira office in [another town] not far from [Town 1].

    It came to know when my aunty husband went to Afghanistan that without the head of family or family members the Tazkiras cannot be made, [Uncle A] returned to Pakistan my mother asked my aunty to go to Afghanistan with my [sic] her husband to make tazkiras for us, because she look very similar to my mother they we [sic] are twin sisters, the Tazkira's authorities cannot differentiate, she provided her photo and finger thumb and she provided finger thumb for all of siblings tazkiras.

    The date of birth on our Tazkiras are correct we are providing a verification certificate from Afghan embassy in Canberra also for my father's death certificate.

20. The applicant provided a letter from the Afghan Embassy in Canberra dated [in] March 2009 certifying the visa holder, son of [Father A variant], is an Afghan citizen born in Afghanistan ID [Number].

    The delegate’s decision

21. On 21 November 2019, the delegate decided to cancel the applicant’s visa.  In the decision record the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act.  Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled, taking into account the applicant’s submissions about such matters.  The delegate found that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

    Application for review

22. The applicant applied for a review of the delegate’s decision.

23. The applicant appeared before the Tribunal on 9 December 2022 at an initial case management hearing held via MS Teams.  

24. The applicant was represented in relation to the review by his legal representative, Me Lee from Estrin Saul.  The Tribunal acknowledges the comprehensive written submissions provided by Me Lee.

25. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

26. At the case management hearing, the conduct of the matter was discussed with the applicant and his representative.  The Tribunal noted at the initial hearing that it also had before it applications for review relating to the cancelation of the applicant’s alleged family members, [Mother Alias A][1] and [Sibling D][2].  All applicants were represented by Ms Lee who proposed to be making similar submissions with respect to all applicants. The issue of a combined hearing was discussed, however it was agreed that as the discretionary factors may differ between the applicant’s it would be preferrable to maintain separate hearings. 

    [1] Tribunal ref 1933888.

    [2] Tribunal ref 1933890.

27. The Tribunal also notified the applicant of the existence of certificates issued by the Minister on the Department’s file. Those certificates are detailed further below.

28. The hearing was adjourned and a further hearing was listed for 15 February 2023.

29. As the applicant had been unrepresented before the delegate, the hearing was adjourned to allow time for Ms Lee to provide written submissions on the applicant’s response to the alleged non-compliance and with respect to the exercise of the discretion to cancel the visa.

30. On 12 December 2022 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act inviting him to provide witness statements or outlines of evidence on which he proposed to rely and any written submissions.  The letter indicated that the information should be provided by 20 January 2023 and if information was not provided by that date, and no extension was requested prior to the date, the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

31. On 21 January 2023 the applicant’s representative provided written submissions and documents in support of the review application.

32. Unfortunately, as the information from the review applicant was not received until after the date for response provided for in the letter, the Tribunal wrote to the review applicant on 24 January 2023 advising him that as a response to the invitation was not received by 20 January 2023 and no request for an extension was received he had lost his right to appear before the Tribunal and the scheduled hearing wasvacated. However, the Tribunal invited the review applicant to provide any additional statements or submissions to the Tribunal by 7 February 2023. The Tribunal indicated that it would then make a decision on the material before it.  No further material was submitted.

33. In submissions made to the Tribunal, the applicant’s representative acknowledged the applicant’s non-compliance with s 101 of the Act and submitted that there were compelling reasons against the cancellation of the applicant’s Resident Return visa.

34. With respect to non-compliance the submissions conceded that:

    ·The applicant had provided incorrect information, except for his father’s death some time in 2003.

    ·Incorrect information included that:

    oThe applicant had applied for a GSH visa in 2005, as secondary applicant for a Partner visa in 2007 and for an Orphaned Relative visa in 2009.

    oThe applicant’s mother was alive and was also known as [Mother Alias A].

    oHis birth date was [year B] not [year A] as claimed in his Protection visa application.

    oHe also misrepresented the dates of birth of his siblings on the Protection visa application.

    ·Based on the findings of the Afghan consulate in Islamabad, he conceded it was possible that two documents submitted in support of the visa applications, the death certificate issued [in] September 2007 and the letter dated October 2007 were not genuinely issued, however the applicant did not accept the conclusion that the applicant’s father was not deceased.

35. He stated his family composition was as follows:

    The applicant’s parents are:

    o[Father A variant] (father), a male citizen of Afghanistan, whose place and date of birth is unknown and had died some time in or around 2003; and

    o[Mother A] (also known as [Mother Alias A]) (mother) born on [DOB 9], in the town of [Town 2], Daykundi province, Afghanistan.

Name	Date of birth	Place of birth	Current location	Citizenship/s
[Brother A]	Sometime in or around [specified year] (Note: The Department of Home Affairs have recorded his date of birth as [DOB 1])	[Town 1], Daykundi Province, Afghanistan	Australia	Australian
[Sibling A]	Sometime in or around [year]	[Town 1], Daykundi province, Afghanistan	Deceased	Afghanistan
[The applicant]	Sometime in or around [year B] (Note: The Department of Home Affairs have recorded his date of birth as [DOB 8])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling C]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling D]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 4])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan
[Sibling E]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as [DOB 6])	[Town 1], Daykundi Province, Afghanistan	Australia	Afghanistan

1. The applicant provided the following account of his family history:

   ·Around [a date in] June 2001, the applicant’s eldest [sibling], [Brother A], arrived in Australia as an unauthorised maritime arrival. He was granted a protection visa in 2004 and is now an Australian citizen.

   ·In 2003, the applicant’s father, [named], died of natural causes in Afghanistan.

   ·Sometime in or around 2004, the applicant’s [Sibling A] was killed by a man known as the ‘son of [Leader A]’ in their family home in the village of [Town 1] after a dispute about the water to her family’s land.

   ·In 2004 the applicant fled Afghanistan to Quetta, in the province of Balochistan, Pakistan with his mother [Mother A] and [siblings].

   ·On 3 October 2005, the applicant’s mother [Mother A] applied for a Global Special Humanitarian (Class XB) visa (Subclass 202) (GSH visa). This application was sponsored by [Brother A] and included her following five children as secondary applicants:

   o   [Sibling D]

   o   [the applicant];

   o   [Sibling B];

   o   [Sibling C]; and

   o   [Sibling E]

   In this application, the applicant initially provides his date of birth as [DOB 8].

   ·On 25 May 2006, the applicant’s mother and the secondary applicants were invited to attend an interview at the Department’s Islamabad office in relation to the GSH visa. At the advice of his [Brother A], only [the applicant] and his siblings attended the interview where he misrepresented certain aspects of his life story and identity including:

   o   that his mother was deceased; and

   o   his date of birth is [DOB 7] (and was incorrectly recorded as [DOB 8] in the GSH application).  The Applicant provided a Taskera to confirm his date of birth as [DOB 7].

   o   The applicant’s [Brother A] had advised the Applicant to misrepresent to the Department that their mother was dead, and that his previously provided date of birth was incorrect. [Brother A] gave the applicant this advice because he had been counselled by Afghan friends in Australia that his family had no prospect of being granted this GSH visa unless he could increase their vulnerability profile, by claiming they were younger and that both their parents were dead.

   ·On 22 January 2007, the applicant’s sister-in-law, [Sister-in-law A], the wife of his [Brother A], lodged a Partner (Provisional) (Class UF) visa (the Partner visa) application and includes the Applicant and four of his other siblings as secondary applicants and as dependents. This application is sponsored by the applicant’s [Brother A]. This Partner visa was subsequently granted to [Sister-in-law A], however none of the secondary applicants were granted Partner visas as they were not accepted as dependents.

   ·On 2 September 2009, with the assistance of his [Brother A], the applicant along with his siblings [Sibling D], [Sibling B], [Sibling E], and [Sibling C] apply for a Child (Migrant) (Orphan Relative) (Class AH) Visa (the Orphan Relative visa). 

   The applicant’s brother was highly stressed about how to bring his family to safety in Australia, after his family were refused the GSH visa and the Partner visa. In order that the applicant could satisfy the requirements of the Orphan Relative Visa, he advised him to continue to misrepresent his date of birth and state that their mother is deceased. As instructed, the applicant provided his date of birth as [DOB 7] (being ten years younger than his correct age) and claimed their mother was deceased. By providing this incorrect information, the applicant’s brother hoped that the applicant could satisfy the Department that he was under the age of eighteen and had no parent to care for him.

   The Department refused the application for all the applicant’s siblings, except for [Sibling E] as they determined they were over the age of eighteen years old. This decision was later set aside by the Migration Review Tribunal to [Sibling B] and [Sibling C] only.

   ·In or around May 2011, the applicant’s siblings, [Sibling E], [Sibling B] and [Sibling C] arrived in Australia on Orphan Relative Visas.

   ·In around 2011, life for Afghan Shia Hazaras living in Pakistan was becoming more difficult as sectarian anti-Shia violence became more and more prevalent. On the advice of his [Brother A], the applicant began making plans to flee to Australia by boat to seek protection.

   ·[In] May 2011, the applicant arrived on Christmas Island as an irregular maritime arrival. Upon arrival in Australia, the applicant continued to misrepresent certain aspects of his identity and life story including that:

   §  His mother [Mother A] was deceased;

   §  He was born on [DOB 7]; and

   §  His siblings - [Sibling E], [Sibling C variant], [Sibling D] and [Sibling B] were all ten years younger than their correct age.

   The applicant continued to misrepresent aspects of his life story and identity as he feared that providing the Department with the correct information would result in him and his family being returned to harm. As one of the younger males in his family, the applicant was obligated to follow the advice of his [older] brother in order to protect his family and in doing so misrepresented that the information previously and currently provided is correct. The applicant feared that providing the correct information would result in his mother’s application being refused, his siblings visas being cancelled and as a result, the family being returned to Afghanistan.

   ·[In] May 2011, the applicant requested a Protection Obligations Determination (POD).  On 26 June 2011, the POD delegate assessed the visa holder as person to whom Australia owed protection obligations.

   ·On 25 August 2011, the Minister lifts the section 46A bar and on 25 December 2015, the Minister intervened under s 46a(1) of the Act to allow the applicant to lodge a valid application for the Protection visa in Australia.

   ·On 29 August 2011, the applicant lodged the Protection visa application. Throughout the application process, the applicant continued to misrepresent certain aspects of his identity and life story including that:

   §  His mother [Mother A] was deceased;

   §  He was born [in year A];

   §  His siblings: [Sibling E], [Sibling C variant], [Sibling D] and [Sibling B] were all ten years younger than their correct age; and

   §  he had not previously applied for or been refused a visa to enter Australia.

   ·On 7 September 2011, the applicant is granted a Protection visa.

   ·On 3 April 207, the applicant applies for the Resident Return visa which is granted on 18 April 2017.

1. The submissions also addressed issues relevant to the exercise of the discretion to cancel the visa. These included:

   ·The fact the applicant was accepted to be an Afghani Shia Hazara;

   ·The fact the applicant could not be returned to Afghanistan without facing a real risk of serious harm and would, in the alternative, face indefinite detention in light of the restrictions on irregular maritime arrivals making onshore visa applications and the uncertainty associated with the Minister lifting the bar on any further application;

   ·The significant impact ongoing detention would have on the applicant’s mental health;

   ·The impact cancellation would have on the applicant’s wife in Pakistan and their prospects of obtaining a Partner visa to come to Australia;

   ·The contribution the Applicant has made to the community through working in [industry 1] in Western Australia.

2. These submissions are considered further below.

   Non-disclosure certificate

3. The Tribunal notes there are certificates dated 6 December 2019 issued under s 375A of the Act and 21 November 2022 issued under s 376 of the Act on the Department’s file with respect to the cancellation decision. Under s 375A, the Minister can certify that the disclosure of any matter or information contained on identified folios of the Departmental file would be contrary to the public interest.  The legislation requires the Tribunal to do all things necessary to ensure that a document or information certificated under s 375A is not disclosed to any person other than the member constituted to the case. Under s 376 the Tribunal has a discretion to release the information covered by the certificate.

4. Copies of the certificates were provided to the applicant. The Tribunal notified the applicant of the existence of the certificate on file at the first hearing.  A copy of the certificates was provided to the applicant in writing following the hearing.  The Tribunal invited the applicant to make submissions with respect to the validity of the certificates and the exercise of the discretion with respect to the s 376 certificate within 14 days. 

5. No submissions were made on the certificates.  The Tribunal considered that the certificate issued under s 375A is not valid as it was unsigned. The Department was invited by the Tribunal to consider withdrawing the certificate but chose not to do so.

6. The s 376 certificate indicated the release of the information would be contrary to the public interest because the folios disclosed lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods. With respect to other identified folios in the file the certificated stated that the information was not to be  disclosed as it was given to the Minister, or to an officer of the Department, in confidence.

7. The Tribunal considered the later s 376 certificate was valid.  The Tribunal is satisfied that the signed 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.  Accordingly, the Tribunal considers the certificate valid.  As such, the information to which it is subject cannot be disclosed in any detail.

8. The Tribunal notes that the material covered by the certificate was generally covered in the delegate’s decision to the extent it formed evidence relied on in issuing the NOICC and making the decision to cancel the visa.

9. Broadly, the information covered by the certificate relates to internal Departmental communication about the applicant’s identity and related family members. The Tribunal notes this information has already been disclosed to the applicant, and before the Tribunal the applicant acknowledged the information was correct. As such, the Tribunal did not consider there was any information covered by the certificate which had not otherwise been put to the applicant for comment or response.

   CONSIDERATION

10. 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.

11. 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 and 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.

12. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act.  The details of the notice were outlined above.

14. 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.

15. In written submissions to the Tribunal, the applicant’s representative acknowledged that the applicant had provided incorrect information in his Protection visa application and that there was non-compliance in the way described in the notice issued under s 107 of the Act, except with respect to the question of whether his father was deceased.

16. In his statutory declaration submitted to the Tribunal, the applicant confirmed that he had provided incorrect answers to questions in his Protection visa application and that he did not comply with the requirements of s 101 of the Act.

17. On the basis of the evidence before it, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

18. 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).

19. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth). 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.

20. 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.

21. In submissions, the applicant claimed he had provided the incorrect information because his brother believed they would not be granted a humanitarian visa unless they said their mother was deceased.  He also lied in response to the NOICC because he was scared and his brother told him to say his mother was his aunt.  He said he felt bad about lying but he was nervous and followed his brother’s advice. He was worried that his siblings visas would be cancelled if he told the truth.  He acknowledges he has provided incorrect information and documentation but submits that he has made a life here and made a contribution to the [industry 1] in Western Australia over a number of years.  He submits that his connections to Australia and the risks he would face if he were returned to Afghanistan, or were detained indefinitely in Australia due to his inability to be returned to Afghanistan, mean that the visa should not be cancelled.  The applicant’s account of his circumstances was supported in a statement from his [Brother A] dated 19 January 2023.

    The correct information

22. The NOICC stated that there was non-compliance with s 101(b) as the applicant provided incorrect answers to questions 3, 9 , 41, 42 and 43 of Part B of Form 866 (relating to his biographical details, visa history, relatives and claims for protection).

23. The Tribunal considers the following to be the correct information. 

24. The applicant’s name is [name]. He was born in [Town 1], Daykundi Province, Afghanistan and while the applicant did not have any record of the day on which he was born, the Tribunal accepts he was born on or around [DOB 8]. 

25. He is one of [number] children. He has [specified siblings]. His siblings details are:

    ·[Sibling A]  Born [DOB 2]

    ·Brother   [Brother A]     Born [DOB 1]

    ·[Sibling B]  Born [DOB 3]

    ·[Sibling D]  Born [DOB 5]

    ·[Sibling C]  Born [DOB 4]

    ·[Sibling E]  Born [DOB 6]

26. All the applicant’s siblings reside in Australia with the exception of [Sibling A] who is deceased.

27. His mother’s name is [Mother A] (also known as [Mother Alias A]), [DOB 9].  She is not deceased and lives in Australia having obtained a visa in the name of [Mother Alias A].

28. The applicant has a wife in Pakistan.  He married his wife, [named] [in] September 2017 in Quetta.  His wife is a Pakistani citizen who continues to reside in Quetta, Pakistan.

29. The applicant is the same person who applied for the following visas:

    ·     An application for a Global Special Humanitarian (subclass 202) visa lodged by his mother [Mother A] on 3 October 2015 in which the applicant was a secondary applicant for the visa. This visa was refused.

    ·     An application for an Orphan Relative (subclass 177) visa lodged on 2 September 2009 in [Country 1]. This visa was refused.

    ·     An application for a Provisional Partner (Spouse) (Subclass 309) visa lodged on 22 January 2007 lodged by [Sister-in-law A] sponsored by her spouse [Brother A]. A secondary application was lodged as part of this application by [the applicant] ([DOB 7]), on the basis of being a dependent member of [Sister-in-law A’s] family unit, namely, her brother in law ([Brother A]). The applicant was refused as a secondary applicant to this visa.

30. With respect to the death of the applicant’s father, the applicant maintained that his father was deceased and that he died prior to the family leaving Afghanistan.  There were differing accounts of when the family left Afghanistan as detailed in the delegate’s decision.  In addition, the applicant accepted that the death certificate for his father which was submitted to the Department in support of the Partner visa applications and the letter may not have been genuine documents.  Based on the material before it the Tribunal finds the correct information is that those documents were not genuine.

31. On the basis it is plausible and that there would be no apparent reason for the applicant to insist his father was deceased at this time, the Tribunal accepts the applicant’s father may be dead.  Given the inconsistent or false evidence of the place and timing of his death, as detailed in the NOICC and delegate’s decision, the Tribunal considers it is not possible to say when this occurred with certainty.  The Tribunal notes in particular that the applicant offered no explanation as to why different accounts of his father’s death provided by his mother in her Safe Haven Enterprise visa (SHEV visa) application in 2016 where it was claimed the applicant’s father and mother had fled to Pakistan in 2000 and he had died there in 2011. In any event, the Tribunal considers this part of the information (that [Father A variant] is deceased) provided in the applications not to be incorrect information and discounts it from considerations.

32. With respect to claims regarding to events in Afghanistan, the applicant maintains his [Sibling A] was killed by a man known as the ‘son of [Leader A]’ in their family home in the village of [Town 1] after a dispute about the water to her family’s land in 2004. As detailed in the NOICC and the delegate’s decision there were significant inconsistencies in accounts of these events and of the timing of the family’s flight from Afghanistan.  As noted in the delegate’s decision, the applicant’s account is contradicted by his mother's claim in her application for protection (for a SHEV visa) that she and her husband had moved to Pakistan in the year 2000 and that she was widowed [in] December 2011.  No mention of these events was included in his mother’s application for protection.

33. Given the extent of the incorrect and inconsistent information provided by the applicant and his family members across multiple visa applications including with respect to claimed events in Afghanistan, the Tribunal considered the applicant’s claims lack credibility.  Given the inconsistencies between the claims in his Protection visa application, his own earlier claims in the GSH visa interview of 25 May 2006 (as detailed in the delegate’s decision) and his mother's claims in her SHEV application, the Tribunal does not accept the claimed events occurred.  However, the Tribunal does accept the applicant and his family left Afghanistan sometime between 2000 and 2004 for the relative safety and security of Quetta and that they did so due to fear of harm as Afghani Hazaras in Afghanistan. Given the extent of the inconsistent information regarding the timing of the family’s move to Pakistan the Tribunal is unable to make a finding on exactly when the family left Afghanistan.

    The content of the genuine document (if any)

34. The Tribunal notes that the s 107 notice relied solely on s 101, not on s 103 (relating to bogus documents). 

35. The s 107 notice detailed that an Afghan Taskera had been provided to the Department providing a false birth date for the applicant in support of the GSH visa. The Tribunal finds that document is also not genuine.

36. The applicant conceded that the documents relating to his father’s death submitted in support of the partner visa may not have been genuine.  Based on the information before it the Tribunal finds those were not genuine documents.

37. As the applicant has provided a series of non-genuine documents in support of this and other visas, the Tribunal gives this factor some weight in favour of the visa being cancelled.

    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

38. The Tribunal has found the applicant was granted the Protection visa on the basis of a different age and with a different account of his family composition and history.

39. The applicant submitted that his claims for protection as a Shia Hazara from Daykundi, Afghanistan were the basis for the grant of the visa and that had he provided the correct information he could have been granted the visa. The applicant submitted that he had no reason to provide false information to the Department as there was no advantage in doing so. Instead, the decision to provide incorrect information stemmed from his obligation to comply with the advice of his [older] brother, who feared that the correct information would result in his brother’s visa being refused and subsequently returned to Afghanistan.

40. The Tribunal accepts these submissions in part.  There were aspects of his claimed history which are impacted by the account he now accepts to be his true background and family composition, including with respect to his mother’s claimed death and his significantly older age as compared to his claims.

41. However, the Tribunal accepts the applicant is a Shia Hazara from Afghanistan.  This was a claim consistent with those accepted for his brother and other family members granted protection visas.  The s 107 notice did not raise any issue with this aspect of his claimed identity. 

42. The Tribunal is of the view that the Protection visa was granted on the basis of the information provided by the applicant to the Department, including with respect to his personal history and experiences in Afghanistan and that the information was central to the grant of the visa.

43. While the Tribunal finds that the decision to grant the visa was based on incorrect information, it places only slight weight on this factor in favour of cancelling the visa as country information supports the applicant’s claims that he would likely have met the criteria for the grant of the visa as a Shia Hazara from Afghanistan if the correct information had been provided.[3]

    The circumstances in which the non-compliance occurred

    [3] DFAT Thematic report on political and security developments in Afghanistan (August 2021 to January 2022), 14 January 2022 at [3.2]-[3.5]

44. The applicant applied for the several visas to enter Australia.  It was submitted that:

    the applicant’s decision to provide incorrect information stemmed from his overwhelming fear about the safety of his mother and siblings, as well as his own. As the decision-making process was driven by desperation and the need to survive, the applicant and his [older] brother were vulnerable to suggestion and impaired decision making.

    Both the Applicant and his [sibling] [Brother A] have very little knowledge about the relevant laws pertaining to people seeking asylum in Australia. Had either the Applicant or his [brother] had access to correct information about the asylum process, they would have understood the Applicant could have provided the correct information without it adversely impacting the refugee assessment. Instead, the Applicant’s [brother], sought the advice of other Afghan Hazaras, whom he had been detained with concerning how to best navigate the Australian immigration legal system. As is consistent with collectivist decision making, [Brother A] trusted their advice to be correct concerning what information to provide to the Department.

    Due to cultural obligation and fear regarding his family’s safety, the Applicant accepted the advice of his [older] brother who after the death of his father assumed the role of the male head of the household. As head of the household, [Brother A] holds primary responsibility for decision making on behalf of the family.

45. It was submitted that the applicant’s situation was further complicated by the fact that four of his siblings had been granted permanent residency in Australia and had he disclosed that their mother was not in fact deceased, he held concerns about the possibility that the providing the correct information may jeopardise their safety in Australia. Any perceived threat to the safety of his siblings, ultimately meant the Applicant made a decision to protect his siblings rather than comply with the legal requirement under s101 of the Act to provide correct information.

1. The Tribunal notes that the applicant provided incorrect information on a number of visa applications.  He did so in a deliberate attempt to secure a favourable visa outcome.  He did so of his own volition.  The Tribunal considers that he bears the responsibility and accountability for the correctness and truthfulness of the information he provided to the Department and that while he may have been unfamiliar with legal details he was capable of understanding his obligation to provide information which was truthful.  The Tribunal considers that the applicant’s family engaged in a jointly planned and executed campaign over several years to seek to mislead the immigration authorities to secure favourable visa outcomes.

2. While the Tribunal accepts concerns of the safety of family members and a desire to secure resettlement for all family members were the drivers for this, in the Tribunal’s view it is not an excuse.  In this regard the Tribunal notes notwithstanding claims regarding risk of harm in Quetta at that time, the applicant had settled in Pakistan and considered himself safe enough there to return to marry.

3. Further, the applicant had an opportunity to correct the record when responding to the NOICC and instead maintained false claims.  That he did so at the behest of his brother does not provide an excuse. 

4. However, the Tribunal accepts the incorrect information occurred in the context of the applicant’s experience of being displaced from Afghanistan with his family to live as refugees in Pakistan and his concern for the safety of his family members in Pakistan. Country information shows that at the time, Hazara Shia were targeted by armed Sunni militants in Pakistan under successive Pakistani governments,[4] and there was a high level of generalised violence in Balochistan, and that Hazaras are targeted by sectarian militants due to their distinct ethnicity.[5]

   [4] “We are the Walking Dead”: Killings of Shia Hazara in Balochistan, Pakistan | HRW, Blast in Pakistani city of Quetta kills at least 28 | Reuters

   [5] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan (immi.gov.au)

5. Accordingly, while the Tribunal considers this factor weighs in favour of cancelling the visa, it gives this factor only moderate weight in the applicant’s circumstances.

   The present circumstances of the visa holder

6. The applicant has been living in [Western Australia] with his mother [Mother A], his [Brother A], Sister-in-law and [number] nieces and nephews.

7. The applicant submitted that prior to the cancellation of his visa, he was working full time in the [industry 1] in Western Australia and was financially supporting his wife in Pakistan.

8. It was submitted that since their marriage, the Applicant has provided for his wife as is his cultural responsibility as the husband and head of his family. The regular contributions he made to his wife ceased as a result of his visa cancellation and subsequent removal of the legal right to work.

9. It was submitted that the cancellation has caused a considerable strain on their marriage, particularly as his wife is not employed, is totally reliant upon him for financial support. And is unable to understand why she cannot be sponsored on a partner visa to come to Australia.

10. The Tribunal accepts that the applicant wished to continue to reside in Australia and to bring his wife here. The delay in her resettlement has no doubt caused some distress and strain on the relationship.  While the applicant’s return trip to Pakistan indicates he may be able to join his wife in Pakistan, the Tribunal accepts that, in the event of cancellation, there would be some uncertainty with this. As noted below, if the visa is cancelled, his options for further applications will be limited. The Tribunal is also mindful of the situation of Afghani Hazaras including in Pakistan and acknowledges the applicant’s reluctance to settle in Quetta.

11. In these circumstances, the Tribunal is of the view that the cancellation of the applicant’s visa would cause him and his family hardship. However, the Tribunal notes that hardship flows as a consequence of the deliberate provision of incorrect information on prior visa applications.

12. Having regard to the above considerations, the Tribunal gives this factor moderate weight against the visa being cancelled.

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

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

14. As noted above, the applicant’s initial response to the NOICC was to provide further incorrect information.  

15. He has since admitted to providing incorrect information in this response and in the manner alleged in the NOICC (with the exception of his father being deceased). He has expressed remorse for his actions. His brother has also expressed remorse.

16. The Tribunal acknowledges the applicant’s concessions which came after obtaining legal representation.  However, in the Tribunal’s view his earlier lack of representation does not excuse his choice to provide further information to the Department which he knew to be incorrect in response to the NOICC. 

17. The applicant has repeatedly provided incorrect information over many years and for several visa applications, including his Protection visa application. That reflects poorly on the applicant and impacts on the integrity of the immigration system.

18. The Tribunal considers that the applicant’s subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act weighs heavily in favour of cancelling the visa.

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

19. There are numerous instances of non-compliance with the requirement not to give incorrect information, as the same incorrect information has been repeated in each visa application and in the application for Australian citizenship.

101.   The applicant has given false information including in some instances non-genuine documents to the Department in support of his applications for a Protection visa, GSH visa, Partner visa and Orphaned Relative visa. 

102.   The applicant has been non-compliant in all his visa applications, and this weighs heavily in favour of cancelling his visa.

The time that has elapsed since the non-compliance

103.   The relevant non-compliance in the present case took place when the applicant provided incorrect information in connection with his Protection visa application, which was lodged on 7 September 2011. More than 10 years have passed since the non-compliance, which the Tribunal acknowledges is a lengthy period.

104.   The Tribunal gives this factor some weight against cancelling the visa.

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

105.   There is no information before the Tribunal to suggest that the applicant has breached the law since the non-compliance.

Any contribution made by the visa holder to the community

106.   It was submitted that the applicant worked from 2016 in the [industry 1] in the Southwest region of Western Australia until his visa was cancelled.

107.   The applicant submitted that he had maintained this length of employment in an industry that is vulnerable to financial loss in part due to its reliance upon a highly transient work force. Working predominately with [casual] workers, [industry] operates face the challenge of finding workers skilled [in this industry. Being a long-term employee in this industry enabled the applicant to develop a highly valued skill set and apply this knowledge and skills to benefit the [employers] he worked for.

108.   It was submitted that decision to cancel the applicant’s visa had a negative impact beyond the applicant’s personal life but also the [business] owners he worked for. During a period where the [industry 1] experienced a massive hit to their industry, due to COVID-19, the applicant, being a highly experienced [specified] worker, was without the legal right to work. The demand for the applicants skills and potential economic contribution is still so greatly needed as the [industry 1] struggles to recover from the impact of the pandemic. It was submitted that the applicant’s previous and potential future contributions to the [industry 1] in the Southwest of Western Australia, weigh in favour of not cancelling the visa. 

109.   No evidence from the applicant’s previous employers in the [industry 1] was offered in support of these submissions. However, the Tribunal accepts the applicant was consistently employed in that industry prior to the visa being cancelled and that he made a positive contribution to the community and to that industry as a result.

110.   There is no evidence of the applicant having made any other contributions to the community.

111.   The Tribunal considers the applicant’s contributions to the community weigh slightly in favour of not cancelling his visa.

Other considerations

112.   In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[6] set out a number of matters that, under policy, should be taken into account, where relevant, in relation to the discretion to cancel a visa under s 109, including:

[6] PAM 3 – Migration Act - Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B & s140) - s109 Deciding whether to cancel – Matters that should be taken into account (re-issue date 21/8/16)

Whether there are persons in Australia whose visas would, or may, be cancelled under s 140

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

114.   There are no consequential cancellations that would occur if the applicant’s visa were cancelled.

International obligations

115.   It is government policy that when considering whether to cancel a visa any relevant obligations arising under international treaties must be taken into account. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[7] Other than the UN Convention on the Rights of the Child (CRC), non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).[8]

[7] PAM3 Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140)

[8] See PAM3 - Migration Act - Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B & s140) - Australia’s international obligations (re-issue date 21/8/16)

Best interests of children

116.   As a signatory to the CRC, Australia has certain obligations, including the best interest of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).  The CRC also includes integrated but wider considerations including education[9] and health and disability considerations[10] for children within the jurisdiction of the State party.  Children who are refugees (defined as those who have been forced to leave their home and live in another country) are owed special protection and help.[11]

[9] Article 28

[10] Articles 23 and 24

[11] Article 22

117.   When assessing the best interests of a child, the Department’s Policy Guidelines set out the factors to be considered when exercising a discretionary power, including the child’s age and the degree of their integration into the Australian community as well as the child’s ability to resettle and integrate in the country of citizenship[12].

[12] Departmental Policy Guidelines, Guiding Principles – Treatment of Children at A122

1. The Department’s PAM3 policy provides that the ‘obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement’ (Visa cancellation instructions, General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)). As a signatory to the CRC, Australia has certain obligations, which are referred to in the Department’s policy. These obligations include the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).

119.   The applicant does not have any children of his own.  There was evidence that he lives with his brother and his brother’s children but there was no information before the Tribunal suggesting their best interests would be impacted by the decision whether or not to cancel the visa. Notwithstanding this, the Tribunal accepts that as the applicant is a close family member of the children it would be in the best interests of the applicant’s nieces and nephews that the visa not be cancelled. 

120.   The Tribunal considers the best interests of the children impacted by the decision weighs slightly in favour of not cancelling the visa.

Australia’s non-refoulement obligations

121.   It was submitted that Australia would be in breach of its non-refoulement obligations if the applicant’s visa remained cancelled and he was returned to Afghanistan. 

122.   The Tribunal notes the delegate did not suggest that the applicant is not an Afghan citizen or a Hazara.  His brother has been accepted to be Afghani Hazara and a granted permanent visas on that basis and is now a citizen.

1. If the applicant’s visa remains cancelled and he is an unlawful non-citizen, he is liable to detention under s 189 of the Act. He is then liable to be removed under s 198, however, for the purposes of s 198, as a protection finding has been made with respect to him on his Protection visa application, the Act does not require or authorise his removal (s 197C(3)).

124.   The decision to grant the applicant a Protection visa has not been quashed or set aside, nor has the applicant requested removal from Australia. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

125.   Unless and until the Minister makes a determination under s 197D(2), the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s Resident Return visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

126.   In such a scenario, cancellation may lead to prolonged detention for these reasons. 

127.   The Tribunal accepts that current country information suggests that if the applicant, as an Afghani Hazara, were to return to Afghanistan he would face a real risk of serious harm on the basis of his ethnicity and religion.[13] However, as the applicant will not be liable for removal non-refoulment obligations with respect to him would not be breached as a consequence of the cancellation of his Resident Return visa.

[13] DFAT Thematic report on political and security developments in Afghanistan (August 2021 to January 2022), 14 January 2022 at [3.2]-[3.5]

128.   As the Tribunal does not consider that Australia’s non-refoulment obligations would be breached as a result of the cancellation, the Tribunal considers this factor weighs neutrally in the applicant’s circumstances.

Mandatory legal consequences

129.   The policy provides that the Tribunal should have regard to whether there are mandatory legal consequences of the decision, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

130.   If the visa is cancelled and the applicant exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen.[14] However, as a protection finding has been made for him he would not be liable for removal but would be detained.

[14] ss 82(10), 82(7A), cls 010.511, 020.511, 030.511.

131.   As the applicant arrived by sea at an excised offshore, place (Christmas Island) after that place was excised (in the case of Christmas Island 2001) the applicant is an unauthorised maritime arrival (s 5AA) for the purposes of s 46A of the Act.  Under s 46A of the Act if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister.  This includes a further bridging visa. 

1. This means he will face detention until a decision is made under s 197D that a protection finding would no longer be made, or the Minister personally decides to grant him a visa under s 195A, or the Minister decides under s 48A it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.

133.   Under s 195A, the Minister may grant the applicant a visa (whether or not on application). Additionally, the Minister has discretion under s 197AB to move a non-citizen into ‘community detention’ where it is the public interest to do so. As the Minister’s powers are non-compellable and discretionary, all these possibilities are speculative and any that do eventuate could take considerable time meaning the applicant faces the prospect of prolonged detention according to s 196.[15]

[15] Commonwealth v AJL20 [2021] HCA 21

134.   It was submitted that prolonged detention would have a significant impact on the applicant, including on his mental health and that as an Afghani Hazara his prospects for removal or resettlement were limited. 

135.   Cancellation of the applicant’s visa would also impact his ability to sponsor his wife to come to Australia from Pakistan until he such time he granted a further visa and meets eligibility requirements to sponsor. Cancellation is likely to cause significant delays in any reunification with his wife.

136.   Given the significant legal consequences of cancellation and the impact on the applicant and his family, the Tribunal gives this factor significant weight against cancelling the visa.

Conclusions

137.   The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in his application for a Protection visa and is satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act.

138.   The Tribunal has found that there are strong considerations in favour of cancelling the applicant’s visa. The Tribunal gives significant weight to the fact that the applicant intentionally misled the Department on a number of matters at the visa application stage, including with respect to his age, personal history and family composition, which were considerations in the decision to grant him a Protection visa.  The Tribunal also places weight on the fact that the applicant has consistently provided incorrect information in a number of visa processes in order to secure a favourable visa outcome, including in his initial response to the NOICC.

139.   However, the Tribunal finds there are strong countervailing considerations weighing against the cancellation of the applicant’s visa and considers that these outweigh those weighing in favour of cancellation. In particular, the Tribunal finds the applicant will be liable to be detained and would be subject to prolonged detention if the visa is cancelled.  This will cause him significant hardship.  In this regard, theTribunal is mindful that a protection finding was made with respect to him and that based on current country information he is a person with respect to whom Australia has protection obligations as an Afghani Hazara.

140.   Accordingly, having regard to all the relevant circumstances, the Tribunal considers that the visa should not be cancelled.

DECISION

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

Simone Burford
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.