1933888 (Refugee)

[2023] AATA 3205

1933888 (Refugee) [2023] AATA 3205 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Teresa Lee (MARN: 2217901)

CASE NUMBER:  1933888

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Simone Burford

DATE:7 July 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 790 (Safe Haven Enterprise) visa.

Statement made on 07 July 2023 at 11:16am

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – family composition – identity details – death of husband – previous visa application – identity documents – Hazara – Shia – diagnosed health and mental health issues – non-refoulement obligations – indefinite detention – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 46, 48, 97-105, 107-109, 140, 189, 195-198, 424
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 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 790 (Safe Haven Enterprise Visa) visa (SHEV) under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa as they concluded the applicant had provided incorrect answers in certain respects in relation to her SHEV application 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 woman who claims to be a citizen of Afghanistan. She claims to be ethnically Hazara and a Shia Muslim born in [her home village in] Daykundi, Afghanistan. According to the delegate’s decision record,  she arrived as an irregular maritime arrival [in] December 2012 with a person she claimed to be her niece, [Daughter A]. 

4. The applicant applied for a SHEV on 27 October 2016, based on her claimed status as a widowed Shia Hazara from Afghanistan.  She was granted a SHEV on 6 April 2017.  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.

   The cancellation

   The notice

6. As detailed in the notification of decision, on 15 April 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of her SHEV, 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.

7. The applicant responded to the NOICC on 26 April 2019.

8. The delegate’s decision records the matters details in the NOICC set out as the grounds for the cancellation the applicant’s responses included in her application for the SHEV lodged on 27 October 2016. The NOICC included the responses to questions in part of the application – the Form 790C Personal details for each person included in this application (Part C).

9. The NOICC also detailed responses or information provided in another visa application as information indicating the applicant had provided incorrect answers in her SHEV application, namely an application for a Global Special Humanitarian (subclass 202) visa (GSH visa) lodged under the name of [Alias A] on 3 October 2005.

10. The NOICC detailed that Departmental records show that, on 3 October 2005, [Daughter A’s] mother, [Alias A], (born [DOB 1]), applied for the GSH visa with the Department's Islamabad office. [Daughter A] was included in the application as a dependent child.

11. In support of the application, [Daughter A] provided a copy of her Afghan Taskera supporting her claim [Alias A] is her mother.  The applicant provided an Afghan Taskera issued [in] October 2005 and indicating she was born in [her home village] and was [age] years old in 2005.

12. The delegate’s decision records that [Alias A], [Daughter A] and her siblings included in her application were all requested to attend an interview [in] May 2006 at the Department's Islamabad office.  [Daughter A] and her siblings attended, but told the interviewer their mother, [Alias A], had recently died, and they provided a copy of a death certificate in her name issued [in] February 2006 by [a named] Hospital, Quetta.

13. The NOICC records that on 16 January 2018 a Departmental fingerprint specialist conducted a comparison of the fingerprint from [Alias A’s] Taskera, against the applicant’s fingerprint taken on Christmas Island [in] December 2012. They concluded the fingerprint impressions were made by the same person.

14. The GSH visa was refused on 1 June 2006.

15. In the GSH visa application, [Alias A] claimed that her husband, [Husband A], had died [in] January 2004.  The NOICC detailed that [Son A], who was listed as [Alias A’s] son on the GSH visa application, provided a copy of a letter dated [in] September 2006 issued by the Afghan Consulate in Quetta, Pakistan, stating his father, [Husband 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 [Husband A] was not genuine.

16. This was put to [Son A], over the phone on 29 October 2007 and on 5 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 [Husband A] was issued by the Afghan Consulate in Quetta and was genuine.

17. [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 death certificate was bogus. This, therefore, also implies that the letter of [October] 2007 is also incorrect, as it purported to validate the bogus document.

18. The NOICC detailed that delegate considered that the applicant:

    ·     provided an incorrect name and birthdate on her SHEV visa, and that her name was in fact [Alias A], born [DOB 1].  In addition, she failed to declare the different birthdate she had claimed as [Alias A];

    ·     failed do declare an earlier GSH visa application made in the name of [Alias A] in Islamabad which had been refused;

    ·     provided in incorrect place of birth of [Town 1] when she was born in [her named home village in] Afghanistan;

    ·     incorrectly claimed not to have identity documents and made inconsistent claims about when she left Afghanistan.

    ·     provided incorrect information that she was widowed when the delegate considered on the basis of inconsistent information that her husband was not deceased as claimed in [Alias A’s] GSH visa application;

    ·     provided incorrect information regarding her family composition claiming her husband was [Husband Alias 1] but her husband was [Husband A]. She claimed her children, including [Daughter A], were her nieces and nephews.  She claimed she had [specified siblings] but in her GSH visa had claimed she had [more siblings]; and

    ·     incorrectly claimed not to have and remaining male relatives in Afghanistan to protect her having declared in her GSH visa application that she [specified siblings] and [aunts] and [uncles] living in Afghanistan.

19. The NOICC stated that the delegate considered on the basis of the information before it that there was non-compliance with s 101(b) as the applicant provided incorrect answers to questions 6,14,15,16, 35, 42, 64, 66, 88, 89, 90 and 94 of Form 790C (relating to her biographical details, visa history, relatives and claims for protection).

    The applicant’s response

20. The applicant provided a response to the NOICC on 26 April 2019. A copy was provided to the Tribunal. The Tribunal notes the applicant was unrepresented when the response was provided.

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

    I can not remember the dates and events correctly because I am an illiterate person.

    I forget things very quickly and can not remember things even from last week also due to my health problems its very hard for me to remember the dates and events please note that Afghanistan has different calendar we are used to it and we always make mistakes in telling dates.

    There are mistakes in my interview and in my application I was born in [my home village] not in [Town 1 variant] my sister son made mistake while he was filling my application and I do not know about my sister [Alias A’s] claims in her application.

    When I was in Pakistan my sister [Alias A] told me that you should tell your husband [Husband Alias 1] to go to Afghanistan to make tazkiras for my sister and her children because my sister was very sick and she could not walk and eat properly she could not go and it is very dangerous too for them 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 past, they also had great fear from son of [Leader A] and his people who threatened to kill them all, the tazkira office in [a named town] not far from [Town 1 variant].

    It came to know when my husband went to Afghanistan that without the head of family or family members the Tazkiras can not be made, then my husband [Husband Alias 1] returned to Pakistan my sister [Alias A] asked to me to go to Afghanistan with my husband to make tazkiras for them, because I look very similar to my sister [Alias A] we are twins sisters, I did not mention this to my interview I thought it would make difficult my interview.

    About a month later I and my husband went to Afghanistan to make tazkiras for them. I provided my photo and thumb mark for my sister tazkira and I provided thumbs marks for my sister children's tazkiras as well but their Tazkiras are 100% genuine.

    I was so worried and so sad about the letter I received I have high level of diabetic, blood pressure, joint pains and lower disc problems, I am always on medication since I received the letter my condition is even worse, I can not go sleep as well.

    I deeply request you to not to cancel my visa and my sister's children visa, because it will create lots of problems for us, we can not go to Afghanistan we will definitely killed by Taliban, Alqaeda or Daesh.

    The delegate’s decision

22. 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, they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

    Application for review

23. The applicant applied for a review of the delegate’s decision on 29 November 2019. A further application for review of that decision was made later on the same day.[1] The Tribunal notes the second application was a duplicate application with respect to the cancellation of the SHEV. That matter is the subject of a separate decision.

    [1] Tribunal ref 1933889.

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

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

26. At the case management hearing, the conduct of the matter was discussed with the applicant and her representative.  The Tribunal noted at the initial hearing that it also had before it applications for review relating to the cancelation of the visas of [Son B][2] and [Daughter A][3] who the delegate concluded were the applicant’s children.  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 applicants and it would be preferrable to maintain separate hearings. 

    [2] Tribunal ref 1933869.

    [3] 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. 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.

29. Further hearings were held on 15 and 17 February 2023. The Tribunal hearings were conducted with the assistance of an interpreter in the Hazaragi and English languages. At the commencement of the hearing on 15 February 2023 the applicant indicated she was having difficulty understanding the interpreter who she said spoke in a dialet or with an accent she could not understand.  Inquiries established the interpreter was Iranian and spoke several languages including Hazaragi. While the interpreter was able to understand the applicant the Tribunal determined the hearing should be adjourned for another interpreter to be arranged.  The hearing was adjourned to 17 February 20223 to enable an alternate interpreter to be arranged.  At the hearing on 17 February 2023 no issues were raised with interpreting arrangements.

30. In her response to the hearing invitation the applicant indicated that due to her age and health issues she would find the hearing difficult and require frequent breaks.  The Tribunal was mindful of this request and medical evidence regarding the applicant’s various health conditions (considered further below) in conducting the hearings.  The applicant’s son, [Son A], and daugther, [Daughter A], remained with her during the hearing to provide support.

31. On 12 December 2022 the Tribunal wrote to the applicant pursuant to s 424(2) of the Act inviting her to provide witness statements or outlines of evidence on which she proposed to rely and any written submissions.  On 21 January 2023 the applicant’s representative provided written submissions and documents in support of the review application.  A list of documents submitted is at Attachment A.   Documents submitted included a medical summary with respect to the applicant, and statutory declarations from the applicant and from her son [Son A variant].

32. 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 SHEV.

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

    ·The applicant had provided incorrect information set out in the NOICC, except for the information regarding her husband’s death sometime in 2003.

    ·Based on the findings of the Afghan Consulate in Islamabad, it is possible that the death certificate issued [in] September 2007 and the letter dated [in] October 2007 were not genuinely issued, however she does not accept the conclusion that she intentionally obtained bogus documents or that her husband is in fact not deceased.

34. She stated her biographical detail and family composition was as follows:

    ·Her name is [Alias A] and she was born on [DOB 1].

    Her parents are:

    ·[Father A] (father) whose place and date of birth is unknown; and

    ·[Mother A] (mother) whose place and date of birth is unknown.

    She has [specified siblings] as follows:

    ·[Names and years of birth deleted].

    The Tribunal notes this is consistent with the information provided in GSH visa application and not with information in the SHEV.

35. The Applicant maintained she is a widow, who was married to her late husband, [Husband A], a male citizen of Afghanistan who died sometime in or around 2003. The Tribunal notes this is consistent with the information provided in GSH visa application and not with information in the SHEV.

36. The Applicant has seven children with her late husband (one of who is deceased):

Name	Date of birth	Place of birth	Current location	Citizenship/s
[Son A variant]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded his date of birth as 1 January [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Australian
[Son C]	Sometime in or around [year]	[Town 1 variant], Daykundi province, Afghanistan	Deceased	Afghanistan
[Son B]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded his date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child A]	Sometime in or around [year] (Note:The Department of Home Affairs have recorded his date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child B]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Daughter A]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child C]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan

1. The applicant provided the following account of her family history, relevant to the review:

   ·Sometime in or around 1975, the applicant married, [Husband A].

   ·Around [June] 2001, the applicant’s eldest son, [Son 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, [Husband A], died of natural causes in Afghanistan.

   ·Sometime in or around 2004, the applicant’s son [Son C] was killed by a man known as the ‘son of [Leader A]’ in their family home in the village of [Town 1 variant] after a dispute about the water to her family’s land.  The applicant later corrected this statement submitted following the final hearing to say that her son was killed by ‘son of [Leader A]’ following an altercation in the family shop.

   ·In 2004 the applicant fled Afghanistan to Quetta, in the province of Balochistan, Pakistan with her remaining children.  The applicant’s son, [Son A] is granted a protection visa in Australia.

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

   o   [Daughter A]

   o   [Son B];

   o   [Child A];

   o   [Child B]; and

   o   [Child C]

   ·[In] May 2006, the applicant is invited to attend an interview at the Department’s Islamabad office in relation to the GSH visa. At the advice of her son, [Son A], only the children attended the interview where they claim both parents, including the applicant, are deceased.  The GSH visa is refused in June 2006.

   ·In around 2012, life for Afghan Shia Hazaras living in Pakistan was becoming more difficult as sectarian anti-Shia violence became more and more prevalent. The Applicant and her family began making plans to have her flee to Australia by boat to seek protection.

   ·[In] December 2012, the Applicant and [Daughter A] arrived on Christmas Island as irregular maritime arrivals. Upon arrival in Australia, the Applicant misrepresented certain aspects of her identity and life story including, that:

   o   her name was ‘[the applicant’s name]’;

   o   she was born sometime in [year] in [Town 1 in] Daikundi, Afghanistan and moved to Pakistan in about 2000;

   o   she had no children;

   o   she had married a man named ‘[Husband Alias 1]’ in about 1965 who died in about 2011 from natural causes; and

   o   she had not previously applied for or been refused a visa to enter Australia.

   The Applicant also claimed that her daughter, [Daughter A], was her niece and that her son, [Son A], was her nephew.

   It was submitted that the Applicant misrepresented her identity and life story because she was afraid that if she provided her genuine name and details that the Department would be aware that she had previously lodged a GSH visa application, then subsequently had allowed the Department to believe that she had died part way though processing of this application. The Applicant feared that this previously provided incorrect information and the GSH visa refusal would have an adverse impact on her new claim for protection in Australia. For these reasons, the Applicant decided to assume the identity of ‘[the applicant’s name]’ and to claim that her biological children were  actually her nieces and nephews.

   ·On 27 October 2016, the Applicant lodged a SHEV application. She continued to misrepresent certain aspects of her identity and life story including that:

   oher name was ‘[the applicant’s name]’;

   oshe was born sometime in [year] in [Town 1 in] Daikundi, Afghanistan and moved to Pakistan in about 2000;

   oshe had no children;

   oshe had married a man named ‘[Husband Alias 1]’ in about 1965 who died in about 2011 from natural causes;

   oshe had [number] sisters: [Alias A] (deceased), [and others named] (in Pakistan);

   oshe had two brothers: [named] (in Pakistan); and

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

   She also continued to claim that her biological children were her nieces and nephews.

   ·On 6 April 2017, the Applicant is granted a SHEV Visa valid until 6 April 2022.

   ·On 6 January 2018, the Department conducts a fingerprint analysis of the Applicant’s Taskera, and the fingerprint taken of the Applicant [in] December 2012 upon arrival in Australia. This analysis confirms that both fingerprints are provided by the same person.

   ·On 15 April 2019, The Applicant is issued a notification of the Minister’s intention to consider cancellation with an invitation to comment on the non-compliance.

   ·On 26 April 2019, the Applicant wrote to the Department, with a response regarding the non-compliance.

   ·On 21 November 2019, the Delegate made a decision to cancel the Applicant’s SHEV. Upon cancellation, the Applicant became an unlawful non-citizen.

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 and had no bearing on the decision to grant the SHEV and gained no migration advantage by the provision of incorrect information;

   ·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 return to Afghanistan or ongoing detention would have on the applicant’s physical and mental wellbeing having regard to her age and health issues which include:

   oDiabetes Melllitus, Type 2;

   oDiabetic Nephropathy;

   oStage 3 Chronic kidney disease;

   oHypertension;

   oHepatitis C Positive;

   oOsteoporosis;

   oCirrhosis;

   oAnxiety disorder; and

   oDepression;

   ·The contribution the Applicant makes to the community through living in Western Australia which enables her children to work in the [Town 2] community without travelling overseas to visit her.

2. These submissions are considered further below.

   Non-disclosure certificate

3. The Tribunal notes there is a certificate dated 6 December 2019 issued under s 438 of the Act on the Department’s file with respect to the cancellation decision. The certificate was physically signed on 22 November 2022.  Under s 438, 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.  Under s 438 the Tribunal has a discretion to release the information covered by the certificate.

4. The Tribunal notified the applicant of the existence of the certificate on file at the first hearing.  A copy the certificate was provided to the applicant by letter dated 12 December 2022. The Tribunal invited the applicant to make submissions with respect to the validity of the certificate and the exercise of the discretion. 

5. No submissions were made on the certificate.  The Tribunal considered that the certificate issued under s 438 in its signed form is valid.

6. The s 438 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 is satisfied that the signed certificate states a valid public interest ground and adequately explains how the disclosure of the information would not be in the public interest.  Accordingly, the Tribunal considers the certificate valid. 

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 (Attachment B).

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 her SHEV 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 her husband was deceased.

16. In her statutory declaration submitted to the Tribunal, the applicant confirmed that she  provided incorrect answers to questions in her SHEV application and that she did not comply with the requirements of s 101 of the Act, with the exception of the fact that she is a widower.

17. With respect to the issue of the applicant’s responses with respect to her husband, the Tribunal notes that with respect to the SHEV application she claimed her husband was [Husband Alias 1] not [Husband A].  It follows that she provided incorrect answers to questions relating to the biographical details of her husband.  For the reasons details further below, the Tribunal accepts that [Husband A] is not likely deceased and as such the Tribunal accepts that her answers as to her marital status were not incorrect.

18. 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, except with respect to her marital status as a widow. 

    Should the visa be cancelled?

19. 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).

20. 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.

21. 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.

22. In her statutory declaration and in submissions, the applicant claimed she had provided the incorrect information because her eldest son had advised her to do so and she trusted he knew what was best. The Applicant’s decision to provide incorrect information stemmed from her overwhelming fear about the safety of her children as well as her own. It was submitted that as the applicant was desperate, the applicant was ‘vulnerable to suggestion and impaired decision making’.  It was submitted that the applicant and her eldest son [Son A] have very little knowledge of the law and sought the advice of other Afghan Hazaras concerning how to best navigate the legal system.

23. The applicant submitted that her that connections to Australia and the risks she would face if she were returned to Afghanistan, or were detained indefinitely in Australia due to her 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 her son, [Son A] dated 19 January 2023.

    The correct information

24. The NOICC stated that there was non-compliance with s 101(b) as the applicant provided incorrect answers to questions 6,14,15,16, 35, 42, 64, 66, 88, 89, 90 and 94 of Form 790C (relating to her biographical details, visa history, relatives and claims for protection).

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

26. The applicant’s name is [Alias A] and she was born in [her home village] Afghanistan on [DOB 1]. She is also known by the name of [the applicant’s name] which she used in her SHEV application.  Her parents are [Father A] (father) whose place and date of birth is unknown; and [Mother A] (mother) whose place and date of birth is unknown.  She married [Husband A variant] in 1975 in Afghanistan.

27. She has [specified siblings] as follows:

    ·[Same list of names and years of birth].

28. The Applicant has seven children with her late husband (one of who is deceased):

Name	Date of birth	Place of birth	Current location	Citizenship/s
[Son A variant]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded his date of birth as 1 January [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Australian
[Son C]	Sometime in or around [year]	[Town 1 variant], Daykundi province, Afghanistan	Deceased	Afghanistan
[Son B]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded his date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child A]	Sometime in or around [year] (Note:The Department of Home Affairs have recorded his date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child B]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Daughter A]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan
[Child C]	Sometime in or around [year] (Note: The Department of Home Affairs have recorded her date of birth as 31 December [year])	[Town 1 variant], Daykundi Province, Afghanistan	Australia	Afghanistan

1. All the applicant’s children reside in Australia with the exception of [Son C] who is deceased.

2. The applicant is the same person who applied for a Global Special Humanitarian (subclass 202) visa lodged by [Alias A] on 3 October 2005.  This visa was refused.

3. The Tribunal finds a death certificate for the applicant submitted by her children in support of the GSH visa was not a genuine document. 

4. With respect to the death of the applicant’s husband, [Husband A variant], the applicant maintained that her husband was deceased and that he died prior to the family leaving Afghanistan sometime around 2003.  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 her husband and a verification letter supporting the authenticity of that document which were submitted to the Department in support of another visa by her son, [Son A], may not have been genuine.  Based on the material before it the Tribunal finds the correct information is that those documents were not genuine.

5. Although prior claims that the applicant was deceased cast serious doubts on information provided by the applicant and her children in support of visa applications, on the basis it is plausible and that there would be no apparent reason for the applicant to insist her husband was deceased at this time, the Tribunal accepts the applicant’s husband may be deceased.  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 her husband’s death were provided in her SHEV visa application where it was claimed that she and her husband had fled to Pakistan in 2000 and he had died there in 2011 other than that she was purporting to be [the applicant’s name]. In any event, the Tribunal considers that [Husband A variant] is likely deceased therefore the applicant is a widower as claimed (although widowed from a different husband to that claimed in the SHEV application).

6. With respect to claims regarding to events in Afghanistan, the applicant initially maintained her son [Son C] was killed by a man known as the ‘son of [Leader A]’ in their family home in the village of [Town 1 variant] 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.  The applicant later corrected this evidence to say her son was killed during an altercation in the family’s shop.  There were not the claims made in her SHEV application where she did not raise any particular instances of harm in Afghanistan.

7. Given the extent of the incorrect and inconsistent information provided by the applicant and her 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 her SHEV application and her own earlier claims in the GSH visa application (as detailed in the delegate’s decision) the Tribunal does not accept the claimed events occurred.  However, the Tribunal does accept the applicant and her family left Afghanistan sometime between 2000 and 2004 for the relative safety and security of Quetta and that they did so due to treatment 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)

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

9. The s 107 notice detailed that a death certificate for the applicant had been provided to the Department in support of the GSH visa. The Tribunal finds that document is not genuine.

10. The applicant conceded that the documents relating to her husband’s death submitted by her son in support of another visa were obtained by her and may not have been genuine.  Based on the information before it the Tribunal finds those were not genuine documents.

11. As a non-genuine document was provided in support of a visa in which she was the primary applicant and which claimed she was deceased (with her knowledge) the Tribunal gives this factor moderate 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

12. The Tribunal has found the applicant was granted the SHEV on the basis of a different name, age and with a different account of her family composition and history.

13. The applicant submitted that her claims for protection as a Shia Hazara from Daykundi, Afghanistan were the basis for the grant of the visa and that had she provided the correct information she could have been granted the visa. The applicant submitted that she 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 her fear and her reliance on advice from her eldest son, who feared that the correct information would result in her visa being refused and place at risk the visa status of her children in Australia.

14. The Tribunal accepts these submissions in part.  There were aspects of the applicant’s claimed history which are impacted by the account she now accepts to be her true background and family composition, including with respect to her family who remained in  Pakistan and Afghanistan. The Tribunal does not accept those factors did not form part of the assessment of the applicant’s claims and on the grant of the visa.

15. However, the Tribunal accepts the applicant is a Shia Hazara from Afghanistan.  This was a claim consistent with those accepted for her eldest son.  The s 107 notice did not raise any issue with this aspect of her claimed identity. 

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

17. 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 she 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.[4]

    The circumstances in which the non-compliance occurred

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

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

    The Applicant’s decision to provide incorrect information stemmed from her overwhelming fear about the safety of her children as well as her own. As the decision-making process was driven by desperation and the need to survive, the Applicant and her son were vulnerable to suggestion and impaired decision making.

    Both the Applicant and her eldest son [Son A] have very little knowledge about the relevant laws pertaining to people seeking asylum in Australia. Had either the Applicant or her son 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 eldest son, sought the advice of other Afghan Hazaras concerning how to best navigate the Australian immigration legal system. As is consistent with collectivist decision making, [Son A] trusted their advice to be correct concerning what information to provide to the Department.

    Due to cultural obligation and fear regarding her family’s safety, the Applicant accepted the advice of her eldest son who after the death of her husband assumed the role of the male head of the household. As head of the household, [Son A] holds primary responsibility for decision making on behalf of the family.

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

1. It was submitted that the applicant’s situation was further complicated by the fact that four of her children had been granted permanent residency in Australia and had it become known she was not in fact deceased, this might jepordise their visa status in Australia. This meant she made a decision to protect her children rather than comply with the legal requirements of the Act to provide correct information.

2. The Tribunal notes that the applicant provided incorrect information on a number of visa applications.  She did so in a deliberate attempt to secure a favourable visa outcome for herself and her children.  She did so of her own volition and knowing that the information she provided was incorrect.  The Tribunal considers that she bears the responsibility and accountability for the correctness and truthfulness of the information she provided to the Department and that while she may have been unfamiliar with legal details she was capable of understanding her obligation to provide information which was truthful.  In the Tribunal’s view the extent of the incorrect was such that there can be no doubt as to her understanding in this regard.  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.

3. 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 herself safe enough there to return there to find spouses for her children.

4. Further, the applicant had an opportunity to correct the record when responding to the NOICC and instead maintained and supported false claims.  That she did so at the behest of her eldest son does not provide an excuse. 

5. However, the Tribunal accepts the incorrect information occurred in the context of the applicant’s experience of being displaced from Afghanistan with her family to live as refugees in Pakistan and her concern for the safety of her children. Country information shows that at the time, Hazara Shia were targeted by armed Sunni militants in Pakistan,[5] that there was a high level of generalised violence in Balochistan, and that Hazaras are targeted by sectarian militants due to their distinct ethnicity.[6]  While this provided an impetus for resettlement. Given voluntary return to Pakistan the Tribunal does not accept it was so acute as to have over-road the obligation to provide

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

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

6. Having considered all the circumstances, while the Tribunal considers this factor weighs in favour of cancelling the visa, it gives this factor moderate weight in the applicant’s circumstances.

   The present circumstances of the visa holder

7. The applicant has been living in [Town 2], Western Australia with sons, [Son A] and [Son B], her daughter-in-law and [grandchildren].

8. The applicant submitted that the applicant is suffering from depression and taking antidepressants.  This was supported by medical evidence.  That evidence also indicated the applicant suffers from the following conditions:

   • Diabetes Melllitus, Type 2;
   • Diabetic Nephropathy;
   • Stage 3 Chronic kidney disease;
   • Hypertension;
   • Hepatitis C Positive;
   • Osteoporosis;
   • Cirrhosis;
   • Anxiety disorder; and
   • Depression.

   She is under the regular treatment of a GP and other specialists with respect to these conditions and receives support from her eldest son and daughter-in-law.

9. It was submitted that if the applicant were forced to return to Afghanistan she would not be able to receive adequate healthcare there.[7]

   [7] Citing UK Home Office's October 2021 report, Country Policy and Information Note

10. The Tribunal accepts that the applicant wishes to continue to reside in Australia with her family. For the reasons outlined below, the Tribunal does not consider she would be subject to return to Afghanistan as a protection finding has been made with respect to her.  However, the Tribunal accepts she has medical treatment needs which are best met in the community and with the ongoing support of her family.

11. 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

12. 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.

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

14. She has since admitted to providing incorrect information in this response and in the manner alleged in the NOICC (with the exception of her husband being deceased). She and her eldest son have expressed remorse for their actions.

15. The Tribunal acknowledges the applicant’s concessions which came after obtaining legal representation.  However, in the Tribunal’s view her earlier lack of legal representation does not excuse her choice to provide further information to the Department which she knew to be incorrect in response to the NOICC and to expand and elaborate on that incorrect information. 

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

100.   The Tribunal considers that the applicant’s subsequent behaviour concerning her 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

1. 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.

102.   The applicant has given false information including a false identity to the Department in support of her application the SHEV, and a false claim to be deceased in the GSH visa. 

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

The time that has elapsed since the non-compliance

104.   The relevant non-compliance in the present case took place when the applicant provided incorrect information following her arrival [in] December 2012 and in connection with her SHEV which was granted on 6 April 2017. More than 10 years have passed since the applicant arrived in Australia and more than 5 years since the non-compliance, which the Tribunal acknowledges is a lengthy period.

105.   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

106.   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

107.   It was submitted that the applicant:

indirectly contributes to the Australian community by the fact that she lives in Western Australia and therefore her children who are employed in [Town 2] do not need to take significant periods off work in order to travel to visit her overseas. Given her current condition, it is likely that her family would need to travel regularly to visit her if she was living overseas without any family support to care for her. By being in Australia, her children can maintain their economic contribution to the [Town 2] community, through providing services to the community and local expenditure.

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

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

Other considerations

110.   In addition to the prescribed circumstances discussed above, the decision maker should have regard to any lawful government policy. The Department’s guidelines[8] 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:

[8] 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.

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

International obligations

113.   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.[9] 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).[10]

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

[10] 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

114.   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[11] and health and disability considerations[12] 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.[13]

[11] Article 28

[12] Articles 23 and 24

[13] Article 22

115.   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[14].

[14] 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).

117.   The applicant’s children are all adults living in Australia as such the CRC considerations do not apply to them.  There was evidence that she lives with her grandchildren, however 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 grandchildren that the visa not be cancelled. 

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

Australia’s non-refoulement obligations

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

120.   The Tribunal notes the delegate did not suggest that the applicant is not an Afghan citizen or a Hazara.  Her eldest son 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 she is an unlawful non-citizen, she is liable to detention under s 189 of the Act. She 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 her in her SHEV, the Act does not require or authorise his removal (s 197C(3)).

122.   The decision to grant the applicant a SHEV 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).

123.   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 SHEV 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.

124.   In such a scenario, cancellation may lead to prolonged detention. 

125.   The Tribunal accepts that current country information suggests that if the applicant, as an Afghani Hazara, were to return to Afghanistan she would face a real risk of serious harm on the basis of her ethnicity and religion.[15] However, as the applicant will not be liable for removal non-refoulment obligations with respect to her would not be breached as a consequence of the cancellation of her SHEV.

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

126.   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.

127.   Overall, the Tribunal considers considerations of international obligations weighs moderately in favour of not cancelling the visa.

Mandatory legal consequences

128.   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.

129.   If the visa is cancelled and the applicant exhausts her appeal rights, her bridging visa will cease, and she will become an unlawful non-citizen.[16] However, as a protection finding has been made for her she would not be liable for removal but would be subject to detention.

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

130.   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 her visa remains cancelled, she cannot make a visa application except with the authorisation of the Minister.  This includes a further bridging visa. 

1. This means she 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 her a visa under s 195A, or the Minister decides under s 48A it is in the public interest for her to be able to apply for a further protection visa, or she acquires a right to enter and reside in another country.

132.   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.[17]

[17] Commonwealth v AJL20 [2021] HCA 21

133.   It was submitted that prolonged detention would have a significant impact on the applicant, particularly having regard to her diagnosed health conditions and mental health issues and that as an Afghani Hazara her prospects for removal or resettlement were limited. 

134.   Given the significant legal consequences of cancellation and the impact on the applicant particularly having regard to her health issues and need for family support in her day-to-day management of her conditions, the Tribunal gives this factor significant weight against cancelling the visa.

Conclusions

135.   The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in her application for a SHEV 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 with the exception of her claim to be widowed.

136.   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 her identity.  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 for herself or her family members, including in her initial response to the NOICC.

137.   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 her significant hardship given her diagnosed health and mental health issues and need for family support.  In this regard, the Tribunal is mindful that a protection finding was made with respect to her and that based on current country information she is a person with respect to whom Australia has protection obligations as an Afghani Hazara.

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

DECISION

139.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.

Simone Burford
Senior Member

ATTACHMENT A – Documents submitted by the applicant

Prior to the hearing on 15 February 2023 the following evidence was submitted to the Tribunal:

-Patient Health Summary dated 14 September 2022

-Copies of applicant’s medicine prescriptions

-Applicant’s statement dated 20 January 2023

-Representative submissions dated 21 January 2023

-Copy of applicant’s entry interview dated 23 January 2013

-Copy of applicant’s invitation to apply for a Temporary Protection visa (TPV) or Safe Haven Enterprise Visa (SHEV) dated 22 March 2016

-Copy of applicant’s Form 790B received 31 October 2016

-Copy of applicant’s acknowledgement letter of valid application dated 3 November 2016

-Copy of applicant’s SHEV grant dated 6 April 2017

-Copy of the cancellation decision record dated 21 November 2019

-Response to Notice of Intention to Consider Cancellation (NOICC) dated 26 April 2019

-DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022)

-Austrian Center for Country of Origin and Asylum Research and Documentation - Overview of recent developments and key players in Afghanistan

-Al-Kateb v Godwin [2004] HCA 37

-Australian Medical Association – “Position Statement on the Health Care of Asylum Seekers and Refugees”

-Ben Saul ‘Dark Justice: Australia's Indefinite Detention of Refugees on Security Grounds under International Human Rights Law’ (2012) 13(2) Melbourne Journal of International Law 685

-United Nations Security Council - Fourteenth report of the Secretary General dated 28 January 2022

-Press Release, High Commissioner for Human Rights Urges Special Session of the Human Rights Council on Afghanistan to Establish a Dedicated Mechanism to Closely Monitor the Evolving Human Rights Situation in Afghanistan dated 24 August 2021

-Human Rights Comission Report, Report of an Inquiry into a Complaint of Acts or Practices Inconsistent With or Contrary to Human Rights dated 2 December 2001

-Report, Human Rights Watch - Afghanistan: ISIS Group Targets Religious Minorities dated 6 September 2022

-NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

-Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342

-Sydney Morning Herald Article, “I can see my family again: More than 19,000 refugees to qualify for permanent residency” dated 20 December 2022

-The Guardian Article, ‘Australia’s indefinite detention of refugees illegal, UN Rules’ dated 18 May 2016

-United Nations General Assembly Security Council Report – The situation in Afghanistan and its implications for international peace and security dated 7 December 2022

-PBS article, ‘The Threat of Al Qaeda and ISIS-K in Taliban-Controlled Afghanistan’ dated 4 November 2021

-United Nations Human Rights Council - Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment dated 26 February 2018

-Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145

-Copy of Department of Home Affairs – Freedom of Information Request FA 20/12/00666 – Involuntary removals from onshore detention of Afghani nationals

-Congressional Research Service – Afghanistan: Background and U.S Policy in Brief dated 1 December 2022

-UK Home Office – Country Policy and Information note - Afghanistan: Medical treatment and health care dated October 2021

-Statement of [Son A variant] dated 19 January 2023

-Copy of [Husband A’s] Death Certificate dated [in] March 2003

-Copy of letter to the Australian High Commission, Islamabad, Pakistan from the Consulate General of Islamic Republic of Afghanistan, Quetta dated [in] October 2007

ATTACHMENT B – 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.

Afghanistan: Medical treatment and healthcare