1933890 (Refugee)

[2023] AATA 2905

1933890 (Refugee) [2023] AATA 2905 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Teresa Lee (MARN: 2217901)

CASE NUMBER:  1933890

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 10:29am

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – family composition – identity details – death of father – previous visa application – Hazara – Shia – separation from family – 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 (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 [Town 1 variant], 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 aunt, [Mother A].  She is married to [Husband A] ([DOB 1]) who is in Australia and holds a Safe Haven Enterprise visa (granted 17 May 2017).

4. The applicant applied for a SHEV on 27 October 2016, based on her claimed status as an orphaned Shia Hazara from Afghanistan.  She was granted a SHEV on 8 May 2017.  That visa was cancelled on 21 November 2019 and is the subject of this review.

   The cancellation

   The notice

5. 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.

6. The applicant responded to the NOICC on 29 April 2019.

7. 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).

8. 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 by her mother, [Mother Alias A] (born [DOB 2]), on 3 October 2005, in which the applicant was listed as a secondary applicant for the visa.

9. In support of the SHEV application, the applicant provided a passport issued [in] 2007 by the Afghan consulate in Quetta, Pakistan stating she was born in [year], and was the daughter of [Father A].  She also provided an English translation of an Afghan Taskera which she claimed to have lost the original.  This was issued [in] October 2005 in [Town 2], Afghanistan.  She stated it was obtained by her Uncle [Uncle A], while she was living in Quetta, Pakistan. Both documents stated she was born in [year] and was the daughter of [Father A].

10. In the SHEV application the applicant stated that her mother’s name was [Mother Alias A] and she is deceased.  She also referred to a humanitarian visa lodged in 2005 to bring her family to Australia.  The NOICC identified that visa application as the GSH visa application lodged by [Mother Alias A] in Islamabad on 3 October 2005.

11. In her GSH visa application [Mother Alias A] claimed the applicant was born on [DOB 4]. In support of her application the applicant also completed her own form 842 Application for an Offshore Humanitarian visa, which you personally signed and dated 29 September 2005, and in which you also confirmed your date of birth was [DOB 4]. This contradicts the date of birth of [later DOB 3] which the applicant subsequently claimed in her SHEV application.

12. [Mother Alias A] and the children included in her application were all requested to attend an interview on 25 May 2006 at the Department's Islamabad office. The applicant and her siblings attended, but told the interviewer their mother had died. They also claimed that when their brother had filled in the visa application form he had written their ages incorrectly and they were all approximately 11 years younger than the proposer claimed in the application form. The interviewer noted this would mean the applicant’s brother [Brother A] was [age] years old, and observed he did not look that young. The applicant and her siblings claimed he has big bones like his father. The applicant and her siblings claimed their younger ages are verified by your Afghan taskeras and provided the interviewer copies of them. The applicant provided the same taskera the translation of which was later provided in support of the SHEV application.

13. The applicant and her siblings also provided a copy of a death certificate for their mother, [Mother Alias A], issued [in] February 2006 by [a named] Hospital, Quetta.

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

15. The NOICC records that the photograph on the applicant’s mother’s taskera provided in support of her GSH visa application lodged on 3 October 2005 strongly resembles the photograph of [Mother A], her claimed aunt provided with her SHEV application lodged on 27 October 2016.

16. Further, [in] January 2018 a Departmental fingerprint specialist conducted a comparison of a fingerprint sample taken from a taskera submitted by [Mother Alias A] with her 2005 visa application, against [Mother A’s] fingerprint taken on Christmas Island [in] December 2012, and concluded the fingerprint impressions were made by the same person.

17. The NOICC indicated the delegate considered [Mother Alias A] and [Mother A] were the same person.

18. In the GSH visa application, [Mother Alias A] claimed that her husband, [Father A variant], had died [in] January 2004.  The NOICC detailed that [Brother B variant], who was listed as [Mother 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, [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.

19. This was put to [Brother B variant], 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 [Father A] was issued by the Afghan Consulate in Quetta and was genuine.

20. [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.

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

    ·     provided an incorrect birthdate on her SHEV application, and that her date of birth was [DOB 4] as originally claimed in the GSH application;

    ·     incorrectly claimed [Mother A] was her aunt when she was actually her mother, [Mother Alias A];

    ·     incorrectly claimed her mother was deceased;

    ·     incorrectly claimed her father was deceased when, based on inconsistent information regarding his death and the provision of bogus documents relating to his death, he was not in fact deceased;

    ·     made claims for protection concerning threats from [Leader A variant] 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.

22. 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 14, 42, 88, 89 and 90 of Form 790C (relating to her biographical details, visa history, relatives and claims for protection).

    The applicant’s response

23. The applicant provided a response to the NOICC on 29 April 2019. A copy was provided to the Tribunal. The Tribunal notes the applicant was unrepresented when the response was provided.

24. The applicant provided the following reasons why she 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 A] is our aunty When we were in Pakistan my mother told my aunty that she should tell her husband [Uncle A variant] 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 [Town 2] 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 can not be made, [Uncle A variant] returned to Pakistan my mother asked my aunty to go to Afghanistan with my her husband to make tazkiras for us, because she look very similar to my mother they we are twins sisters, the Tazkira's authorities can not differentiate, she provided her photo and finger thumb and she provided finger thumb for all of siblings tazkirazs.

    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

    I deeply request you to not to cancel our visas, because it will create lots of problems for us, we can not go to Afghanistan we will definitely killed by Taliban, Alqaeda, Daesh or son of [Leader A] who already killed my brother, we love Australia more than anywhere else we would like to die here.

    The delegate’s decision

25. 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

26. The applicant applied for a review of the delegate’s decision on 29 November 2019.

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

28. 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.

29. 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 visas of [Brother C][1] and [Mother A][2] who the delegate concluded were the applicant’s mother, [Mother Alias A], and brother.  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 1933869.

    [2] Tribunal ref 1933888.

30. The Tribunal also notified the applicant of the existence of a certificate issued by the Minister on the Department’s file. That certificate is detailed further below.

31. 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.

32. 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 statutory declarations from the applicant and from her brother [Brother B].

33. 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 there was an issue with the booked interpreter who spoke a different dialet.  Inquiries established the interpreter was Iranian and spoke several languages including Hazaragi. 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.

34. 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.

35. 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 father’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 father is not in fact deceased.

36. She stated her 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

    [Mother Alias A] (also known as [Mother A]) (mother) born on [DOB 2], in the town of [Town 3], Daykundi province, Afghanistan. She is not deceased.

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

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

   ·Around [June] 2001, the applicant’s eldest brother, [Brother B], 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, [Father A variant], 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.  The applicant later corrected this statement submitted following the final hearing to say that her [sibling] 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 mother [Mother Alias A] and four siblings.

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

   o   [the applicant]

   o   [Brother C];

   o   [Brother A];

   o   [Sibling B]; and

   o   [Sibling C]

   In this application, the applicant initially provides her date of birth as [DOB 4].

   ·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 their brother [Brother B], only [the applicant] and her siblings attended the interview where she misrepresented certain aspects of her life story and identity including:

   o   that her mother was deceased; and

   o   her date of birth is [DOB 3] (and was incorrectly recorded as [DOB 4] in the GSH application).  The Applicant provided a Taskera to confirm her date of birth as [DOB 3].

   The applicant’s brother, [Brother B], had advised the Applicant to misrepresent to the Department that their mother was dead, and that her previously provided date of birth was incorrect. [Brother B] 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 [Brother B], lodged a Partner (Provisional) (Class UF) visa (the Partner visa) application and includes the Applicant and four of her other siblings as secondary applicants and as dependents. This application is sponsored by the applicant’s brother [Brother B]. 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 her brother [Brother B], the applicant along with her siblings [Brother C], [Brother A], [Sibling C], and [Sibling B] 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 her to continue to misrepresent her date of birth and state that their mother is deceased. As instructed, the applicant provided her date of birth as [DOB 3] (being ten years younger than her 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 she was under the age of eighteen and had no parent to care for her.

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

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

   ·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. On the advice of his brother [Brother B], the applicant began making plans to flee to Australia by boat to seek protection.

   ·[In] December 2012, the applicant and her mother [Mother Alias A] arrive on Christmas Island as an irregular maritime arrival. Upon arrival in Australia, the applicant continued to misrepresent certain aspects of her identity and life story including that:

   §  She travelled to Australia with her aunt [Mother A];

   §  Her mother [Mother Alias A] was deceased;

   §  She was born on [DOB 3]; and

   §  She has only one uncle living in Afghanistan.

   The applicant continued to misrepresent aspects of her life story and identity as she feared that providing the Department with the correct information would result in herself  and her family being returned to harm. The applicant feared that providing the correct information would result in her mother’s application being refused, her siblings visas being cancelled and as a result, the family being returned to Afghanistan.

   ·     [In] July 2016 the applicant marries [Husband A variant] in Australia.

   ·     On 27 October 2016 the applicant lodges a SHEV application. Throughout the SHEV process she continues to misrepresent aspects of her identity and life story including the matters detailed on her arrival.

   ·     On 8 May 2017, the applicant is granted a SHEV Visa valid until 6 April 2022. 

   ·     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 29 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;

   ·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 husband who is and Afghani Hazara who lives in Australia and holds a SHEV;

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

   Non-disclosure certificate

2. 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.

3. 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. 

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

5. 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.

6. 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. 

7. 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.

8. Broadly, the information covered by the certificate relates to internal Departmental communication about the applicant’s biographical details 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

9. 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.

10. 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).

11. 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?

12. 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.

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.

14. 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 father was deceased.  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 her father is deceased.

15. For the reasons details further below, the Tribunal accepts that [Father A] is likely deceased and as such the Tribunal accepts that her answers in that respect were not incorrect though the timing of his death remains uncertain in light of conflicting information and non-genuine documents provided to the Department reading his death.

16. 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 the fact the applicant’s father is deceased. 

    Should the visa be cancelled?

17. 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).

18. 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.

19. 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.

20. In her statutory declaration and in submissions, the applicant claimed she had provided the incorrect information because her brother 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 fear about the safety of her family as her own. The applicant indicated she regretted their actions, stating:

    I deeply regret that our family was dishonest. I understand why my brother told us to do this, as he was scared about the danger we would be in if we were returned to Afghanistan. But we did the wrong think [sic] and I am very ashamed about that.

21. 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 her circumstances was supported in a statement from her brother, [Brother B] dated 19 January 2023.

    The correct information

22. 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 14, 42, 88, 89 and 90 of Form 790C (relating to her biographical details, visa history, relatives and claims for protection).

23. The Tribunal notes the applicant indicated in her statement that she is unsure of her date of birth but is aware she and her siblings presented their ages to be much younger than they were.  On this basis she accepts she was born in or around [year].

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

    ·The applicant’s name is [the applicant’s correct name].  She added [a family name] in the visa application process. 

    ·Her date of birth is [DOB 4];

    ·Her mother’s name is [Mother Alias A] and is still alive;

    ·She travelled to by boat to Australia with her mother [Mother Alias A] in 2012.  She and [Mother Alias A] claimed [Mother Alias A] was [Mother A name], and that she was the applicant’s aunt;

    ·She was a secondary applicant for a GSH visa lodged by [Mother Alias A] in Islamabad in 2006. That visa was refused on 1 June 2006; and

    · She had uncles from her deceased father’s side of the family in Afghanistan at the time she applied for the SHEV on 27 October 2016.

25. The applicant has six siblings:

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

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

2. The Tribunal finds a death certificate for the applicant’s mother submitted by the applicant and her siblings in support of the GSH visa was not a genuine document. 

3. With respect to the death of the applicant’s father, [Father A variant], the applicant maintained that her father 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 father and a verification letter supporting the authenticity of that document which were submitted to the Department in support of another visa by her son, [Brother B], may not have been genuine.  Based on the material before it the Tribunal finds the correct information is that those documents were not genuine.

4. On the basis that the applicant’s birthdate is not [year] as recorded in the Taskera and passport the applicant submitted in support of her claimed birthdate the Tribunal considers those documents are not genuine or were obtained on the basis of false information..

5. Although prior claims that the applicant’s mother was deceased cast serious doubts on information provided by the applicant and her family 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 father was deceased at this time, the Tribunal accepts the applicant’s father 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.  Notwithstanding those inconsistencies, the Tribunal considers that [Father A variant] is likely deceased as claimed.

6. With respect to claims regarding to events in Afghanistan, the applicant initially maintained her [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.  The applicant later corrected this evidence to say her [sibling] was killed during an altercation in the family’s shop. 

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 earlier applications, her mother’s SHEV and her SHEV 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’s mother 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 father’s death submitted by her brother in support of the Partner visa in which she was a dependent applicant may not have been genuine.  Based on the information before it the Tribunal finds those were not genuine documents.

11. Further, the Tribunal considers the applicant’s Taskera and passport claiming her birthdate to be [year] were not genuine documents or were obtained on the basis of false information.

12. As non-genuine documents have been provided repeatedly in multiple visa applications, 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

13. The Tribunal has found the applicant was granted the SHEV on the basis of a different age and with a different account of her family composition and history, including with respect to her potential male supports on Afghanistan.

14. 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 brother, who feared that the correct information would result in her visa being refused and place at risk the visa status of other family members in Australia.

15. 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  Afghanistan. There was also incorrect information about the death of her [sibling] in 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.

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

17. 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.

18. 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.[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]

19. 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 mother and siblings as well as her own. As the decision-making process was driven by desperation and the need to survive, the Applicant and her brother were vulnerable to suggestion and impaired decision making.

    Both the Applicant and her eldest brother [Brother B] have very little knowledge about the relevant laws pertaining to people seeking asylum in Australia. Had either the Applicant or her 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 eldest 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 B] 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 brother who after the death of her father assumed the role of the male head of the household. As head of the household, [Brother B] holds primary responsibility for decision making on behalf of the family.

1. It was submitted that the applicant’s situation was further complicated by the fact that four siblings had been granted permanent residency in Australia and had it become known her mother was not in fact deceased or her own birthdate had been falsified, this might jepordise their visa status in Australia. This meant she made a decision to protect her family 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 family members.  She did so of her own volition and knowing that the information she provided was incorrect.  Incorrect information was supported with non-genuine documents.  The Tribunal considers that the applicant 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 of the immigration system 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. 

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 under the instruction of her brother 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. Country information shows that at the time, Hazara Shia were targeted by armed Sunni militants in Pakistan,[4] that there was a high level of generalised violence in Balochistan, and that Hazaras are targeted by sectarian militants due to their distinct ethnicity.[5]  While this provided an impetus for resettlement, the Tribunal does not accept it was so acute as to have over-road the obligation to provide correct information about her identity, family and history.

   [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)

6. Taking account of all the circumstances, while the Tribunal considers this factor weighs moderately in favour of cancelling the visa in the applicant’s circumstances.

   The present circumstances of the visa holder

7. The applicant has been living in [Town 4], Western Australia with her husband.  Her other family members also live in the area.

8. The applicant’s husband is also a Shi'a Hazara from Afghanistan and was granted a SHEV in 2017.  He has applied for a further Safe Haven Enterprise (Subsequent) visa (in 2022).  It was submitted that following a Government announcement in late 2022 regarding  transitioning Temporary protection visa holders and SHEV holders to Resolution of Status Visas (subclass 851) the applicant’s husband was on a pathway to permanent residency and that if her visa is cancelled, the applicant and her husband would be forcibly separated until such a time as the applicant can be sponsored to come to Australia after having lodged a Partner visa offshore.

9. The Tribunal accepts that the applicant wishes to continue to reside in Australia with her husband and family members. For the reasons outlined below, the Tribunal does not consider she would be subject to return to Afghanistan.  However, the Tribunal accepts cancellation would be likely to mean a prolonged separation from her husband which would cause hardship to the couple and their extended family.

10. 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

11. 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.

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

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

14. 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. 

15. 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.

16. 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

17. There are numerous instances of non-compliance with the requirement not to give incorrect information.

18. The applicant has given false information including a false biographical details to the Department in support of her application the SHEV, GSH, Partner visa and Orphaned Relative visa and a false claim that her mother is deceased in the GSH visa and the SHEV. 

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

The time that has elapsed since the non-compliance

101.   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. During that time she has established herself in the community, married and worked in Australia.

102.   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

103.   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

104.   It was submitted that the applicant worked for a significant period with her husband in the [industry 1] in the [Western Australia] until her visa was cancelled.

105.   The applicant submitted that this industry was vulnerable to financial loss in part due to its reliance upon a highly transient work force, impacted by COVID and current low unemployment rates. Working predominately with seasonal workers, [business] operators face the challenge of finding killed [workers].

106.   It was submitted that decision to cancel the applicant’s visa has a negative impact beyond the applicant’s personal circumstances, impacting the [employers] she works for. It was submitted that the demand for the applicant’s skills and potential economic contribution is greatly needed particularly in the regional area in which she and her husband live and work. It was submitted that the applicant’s previous and potential future contributions to the [industry 1] in [Western Australia], weigh in favour of not cancelling the visa. 

107.   No evidence from the applicant’s previous employer in [industry 1] was offered in support of these submissions. However, articles on economic challenges facing the industry were submitted.  The Tribunal accepts the applicant has been employed in that industry prior to the visa being cancelled and that she made a positive contribution to her regional community and to that industry as a result.

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 his 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[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.

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.[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

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[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

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[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).

117.   The applicant did not offer any evidence to suggest the best interests of children would be impacted by a decision to cancel her visa. However, she gave evidence that she has nieces and nephews, her oldest brother’s children, living in [Town 4]. The Tribunal accepts that as the applicant is a 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. 

118.   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

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 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 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 female Afghani Hazara, were to return to Afghanistan she would face a real risk of serious harm on the basis of her member of a particular social group as an unaccompanied female, ethnicity and religion.[13] 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.

[13] 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 slightly 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.[14] However, as a protection finding has been made for her she would not be liable for removal but would be subject to detention.

[14] 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.[15]

[15] Commonwealth v AJL20 [2021] HCA 21

133.   It was submitted that prolonged detention would have a significant impact on the applicant, particularly separation from her husband and that as an Afghani Hazara married to an Afghani Hazara her prospects for removal or resettlement were limited. 

134.   The Tribunal also notes that the cancellation of the visa would appear to impact the applicant’s capacity to apply for a further SHEV and transition to the newly announced Status Resolution visa significantly impacting or delaying her prospects for permanent residency in Australia.

135.   Given the significant legal consequences of cancellation and the impact on the applicant and her husband the Tribunal gives this factor significant weight against cancelling the visa.

Conclusions

136.   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 father is deceased.

137.   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 age and family composition.  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, maintained in her initial response to the NOICC.

138.   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 it would separate her from her husband.  In this regard, the Tribunal is mindful that a protection findings have been made with respect to her and her husband and that based on current country information she is a person with respect to whom Australia has protection obligations as an Afghani Hazara.

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

DECISION

140.   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 – Document list

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

-Applicant’s statement dated 20 January 2023

-Applicant’s Marriage Certificate dated [in] July 2016

-Visa Grant notice of the applicant’s husband [Husband A variant] dated 17 May 2017

-Applicant’s husbands’ letter of acknowledgement of valid visa application dated 4 March 2022

-Representative submissions dated 21 January 2023

-Applicant’s letter of acknowledgement of valid visa application dated 3 November 2016

-Copy of applicant’s Form 790B received 28 October 2016

-Copy of applicant’s Notification of a visa grant dated 8 May 2017

-Copy of notice of Intention to Consider Cancellation (NOICC) dated 15 April 2019

-Copy of the cancellation decision record dated 21 November 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

-ABC News article, ‘Farmers cry out for backpackers amid labour shortages’ dated 25 August 2022

-ABC News article, ‘WA farmers look back on a year of labour shortages, biosecurity threats and high rainfall’ dated 31 December 2022

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

-Statement of [Brother B] dated 19 January 2023

-Copy of [Father A variant’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

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

-Statement from the applicant dated 15 February 2023;

-Statement from the applicant dated 23 February 2023;

-Written submissions for the representative attaching:

oAustralian Government Department of Home Affairs: Partner (Provisional) Visa

oArticle ‘Public demand prompt resumption of passports distribution -Pajhwok Afghan News, 9 Jan 2023

oWebsite printout., ‘Passport’,  Embassy of the Islamic Republic of Afghanistan Canberra, Australia

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.