1933914 (Migration)

[2021] AATA 2540

1933914 (Migration) [2021] AATA 2540 (27 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1933914

MEMBER:Alison Murphy

DATE:27 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2021 at 2:58pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in his protection visa application – satisfied as to the applicant’s identity – relatives in Australia – applicant’s photograph included in another person’s application – the incorrect information had no bearing on the visa grant – young Hazara Shia male – non-refoulement obligations – security situation in Afghanistan – decision under review set aside 

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 97-105, 107-109, 197, 376
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18          

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 26 November 2019 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that he considered the applicant had given incorrect information in his protection visa application. In essence, the delegate considered the applicant gave incorrect information about his name, his visa history, his family composition and his relatives in Australia.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 21 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

7. The applicant is [an age]-year-old male who arrived in Australia by boat [in] May 2012 and identified himself as [applicant name], a Shia Muslim of Hazara ethnicity from Afghanistan. On 9 January 2013 he was granted the protection visa. He was granted the Subclass 155 (Five Year Resident Return) visa on 2 February 2019.

8. On 20 October 2017 the applicant lodged an application for a partner visa in respect of his wife [named] and son [named]. That application is still pending. The departmental file also indicates that the applicant has applied for Australian citizenship by conferral and that application is also still pending.

9. The Department subsequently formed the view that the applicant had been included in an earlier Global Special Humanitarian (Subclass 202) visa application under the name of [Mr A], born [DOB 1], sponsored by [Mr B] who was stated to be the brother of [Mr A]. The Department undertook a forensic Facial Image Comparison Report which compared a photograph of [Mr A] with the photograph of the applicant supplied with his protection visa application. The Facial Image Comparison Report concluded those photographs were of the same person.

10. On 24 June 2019 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.107 of the Act (the s.107 notice), advising him that the Department was considering the cancellation of his protection visa on the ground that he had given incorrect information in his visa application.

11. The s.107 notice identified the information provided in the protection visa application that was considered to be incorrect. In summary, it suggested that the applicant had given incorrect information about his name, his visa history and his relatives in Australia. In particular, it set out the results of the Facial Image Comparison which concluded that he was the same person as [Mr A] who was included in a Global Special Humanitarian (Subclass 202) visa lodged in November 2008, proposed by a person identifying himself as [Mr A’s] brother, [Mr B]. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.

12. The applicant responded to the s.107 notice on 8 July 2019. In a statutory declaration that formed part of that response the applicant maintained that the information he had provided about his name, family composition, visa history and relatives in Australia was correct. He stated that he is not, and has never been, known by the name [Mr A] or included in a visa application lodged by [Mr B].

13. In particular, he stated that he knows [Mr B] and his family members well, as they are from the same village in [Village 1], [District 1] in Ghazni province as the applicant and his family. The applicant states he knew the family members in Afghanistan and that he sees [Mr B] often at community gatherings in Sydney. He states that although their families are distantly related, he is not the brother of [Mr B] and his siblings and is prepared to take a DNA test to prove that. He states he provided [Mr B] as his emergency contact on his incoming passenger card in 2014 because he has no closer relatives in Australia. The applicant also provided a significant number of documents in support of his claims and submitted that his visa should not be cancelled.

14. On 26 June 2019 a delegate decided to cancel the applicant’s visa, finding the applicant had provided incorrect information in the manner set out in the s.107 notice. In the exercise of her discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not make her own assessment of those matters.

15. The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    THE REVIEW PROCEEDING

    Non-disclosure certificate

16. The Tribunal has before it the departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.

17. The certificate is dated 11 December 2019 and states that disclosure of folios 135–142 of the Department’s cancellation file would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.

18. A copy of the certificate was provided to the applicant’s legal representatives prior to the hearing with an invitation to comment on its validity. On 21 April 2021 the Tribunal received submissions from the applicant’s representative to the effect that the Tribunal should find the certificate to be invalid because the applicant had not been given access to any information or verification reports undertaken by the Department in relation to the certificated information and therefore it was not possible for the applicant to respond properly. Those submissions suggested that the certificated material may relate to the forensic Facial Image Comparison Report undertaken by the Department, and that if so, the report should be made available to the applicant as the existence of the report had already been disclosed to the applicant and the disclosure of the report itself would not additionally reveal the methods of preventing, detecting or investigating breaches of the law, but would rather reveal only how the Department had compared the photographs. Those submissions noted that the applicant refuted the allegation that he is [Mr A] and has not been privy to the photograph the Department alleges is his.

19. Where a certificate is issued under s.376, the Tribunal may have regard to any matter contained in the document or the information and, if it thinks it appropriate to do so, disclose any matter contained in the document or the information to the applicant or any other person who has given oral or written evidence to the Tribunal.

20. The s.376 certificate dated 26 April 2021 appears to be valid on its face. The material covered by that certificate includes, but is not limited to, the Facial Image Comparison Report as suggested by the applicant’s representative. I note the existence and findings of that report have already been disclosed to the applicant in the s.107 notice and the delegate’s decision, however the applicant has not had the opportunity to see the photograph said to be his that was included in the earlier humanitarian visa application. The conclusions of the Facial Image Comparison Report form the grounds for the cancellation of the applicant’s visa and are contested by the applicant. As well, there is other material covered by the certificate that is relevant to the applicant’s arguments, parts of which are potentially adverse and other parts potentially exculpatory. For these reasons, I have decided to exercise my discretion to disclose the certificated information subject to redactions to protect the personal details of departmental officers and some personal information about third parties.

    LEGISLATIVE FRAMEWORK

21. 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.

22. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Did the notice comply with the requirements in s.107?

23. The notice dated 26 June 2019 sets out in detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or his representative that the notice is deficient or invalid.

24. I am satisfied that the information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. I am 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?

25. 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.

26. The non-compliance identified and particularised in the s.107 notice was non‑compliance with s.101(a) and s.101(b). In summary, that notice alleges that the following declarations made by the applicant in his protection visa were incomplete or incorrect:

    ·At Question 1 of Part B of Form 866 in response to the question “Give details of ALL persons included in this application,” the visa holder answered “[applicant name], [DOB 2].” The delegate considered this to be incorrect, because the facial image comparison conducted by the Department indicates that the applicant is also known by the name [Mr A] born [DOB 1];

    • At Question 3 of Part B of Form 866 in response to the question “Has any person named in Question 1 previously made any other type of application to the Department (including a Parent visa)?” the visa holder answered “No.” The delegate considered this to be incorrect, because the applicant had made an earlier visa application under the name [Mr A];
    • At Question 12 of Part B of Form 866 in response to the question “Do any of the persons included in this application and named in Question 1 have close relatives in Australia at the time of application?” the visa holder answered “No.” The delegate considered this to be incorrect, because the applicant had made an earlier visa application under the name [Mr A] which indicated his claimed brother [Mr B] was in Australia;
    • At Question 13 of Part B of Form 866 in response to the question ‘‘Do any of the persons included in this application and named in Question 1 have close relatives who are NOT in Australia at the time of application?” the applicant answered “Yes” and provided details of his parents and siblings. The delegate considered this to be incorrect, because it differed from the details of family members provided in the visa application made in the name of [Mr A];
    • At Question 22 of Part B of Form 866 the applicant signed a declaration stating that all of the information he had supplied was complete, correct and up to date in every detail. The delegate considered this to be incorrect due to the other incorrect answers provided;
    • At Question 1 of Part C of Form 866 the visa holder answered “[applicant name]” to a question asking his full name. The delegate considered this to be incorrect, because the facial image comparison conducted by the Department indicates that the applicant had previously applied for a visa under the name [Mr A];
    • At Question 4 of Part C of Form 866 which asked what other names he had been known by, the applicant did not disclose that he had also been known by the name [Mr A];
    • At Question 8 of Part C of Form 866 the visa holder answered “[DOB 2] [age] years” to a question asking his date of birth. The delegate considered this to be incorrect, because the applicant had previously applied for a visa under the name [Mr A], born [DOB 1], indicating the applicant’s date of birth may not be [DOB 2];
    • At Question 33 of Part C of Form 866 which asked the applicant to provide details of countries of former habitual residence or transit before arrival in Australia, the delegate considered the applicant’s response was incorrect, because [Mr A’s] visa application suggested he had been residing in [Country 1] since 2003;
    • At Question 67 of Part C of Form 866 the applicant signed a declaration stating that the information he had supplied was complete, correct and up to date in every detail. The delegate considered this to be incorrect due to the other incorrect answers provided.

27. As noted above, the applicant’s response to the s.107 notice refutes that he provided incorrect information in his protection visa application in the manner set out in the s.107 notice. In a statutory declaration that formed part of that response the applicant maintained that the information he had provided about his name, family composition, visa history and relatives in Australia was correct. He stated that he is not, and has never been, known by the name [Mr A] or included in a visa application lodged by [Mr B].

28. In particular, he stated that he knows [Mr B] and his family members well, as they are from the same village in [Village 1], [District 1] in Ghazni province as the applicant and his family. The applicant states he knew the family members in Afghanistan and that he sees [Mr B] often at community gatherings in Sydney. He states that although their families are distantly related, he is not the brother of [Mr B] and his siblings and is prepared to take a DNA test to prove that. He states that he known [Mr A] who is a resident of [Country 2], but he is not [Mr A]. He states he provided [Mr B] as his emergency contact on his incoming passenger card in 2014 because he has no closer relatives in Australia. In support of his statement, the applicant provided the following documents:

    ·A statutory declaration dated 1 July 2019 from [Witness A], stating that he is the brother of [Mr B] and that the applicant is not the brother of [Witness A] or [Mr B];

    ·A copy of an Afghan passport for [Mr C] issued [in] 2016;

    ·An untranslated taskera and [Country 2] identity card for [Mr A];

    ·A statutory declaration from [Witness B] dated 3 July 2019, who states among other things that the applicant and his parents and siblings are known to him because they grew up and lived in the same area of [Village 1], [District 1], Ghazni province, Afghanistan. [Witness B] also states that [Mr B] and his family members are known to him from the [Village 1] area also;

    ·A statutory declaration from [Witness C] dated 3 July 2019, who states among other things that the applicant and his family members are known to him because they lived in nearby villages of the [Village 1] area, [District 1], Ghazni province, Afghanistan. [Witness C] also states that [Mr B] and his family members are known to him and the applicant is not related to [Mr B] and is not [Mr B’s] brother;

    ·A statutory declaration from [Witness D] dated 3 July 2019, who states among other things that he knows the applicant from Afghanistan as their villages are a 45‑minute walk apart and he would often see the applicant in his father’s shop in [a named] bazaar. [Witness D] states that [Mr B] and his family members are also known to him as they are from the same village as the applicant and the applicant is not [Mr B’s] brother;

    ·A statutory declaration from [Witness E] dated 1 July 2019, who states among other things that he knows the applicant and his family from Afghanistan as they are from nearby villages and their families have lived there for generations. [Witness E] states that [Mr B] and his family members are also known to him as they are from the same village as the applicant and the applicant is not [Mr B’s] brother or otherwise related;

    ·A statutory declaration from [Witness F] dated 2 July 2019, who states among other things that he knows the applicant and his father from Afghanistan. He states they are from the same area of [Village 1] in [District 1] and the applicant’s father had a shop in the main bazaar in [Village 1] for many years. [Witness F] states that [Mr B] and his family members are also known to him as they are from the same village as the applicant and the applicant is not [Mr B’s] brother or otherwise related to him.

29. In submissions and other documents submitted to the Tribunal on review, the applicant continues to refute that he provided incorrect information in his protection visa application in the manner set out in the s.107 notice. Having now had the opportunity to view the photographs compared in the Facial Image Comparison Report, he acknowledges it was his photograph that was included in the application lodged in November 2008, proposed by [Mr B].

30. The applicant also provided a number of identity documents, including a letter of identity from the Afghan Embassy in Canberra dated [in] 2016, a number of Australian identity documents including his Australian Titre de Voyage containing a visa to enter Pakistan, a copy of his Afghan marriage contract, a number of support letters from community organisations in Australia, medical evidence and evidence of financial transfers to his father [Father A] in Afghanistan. He also provided copies of the Afghan taskeras and passports for his wife, son, parents and [siblings] in Afghanistan.

    The applicant’s correct identity

1. In considering whether the applicant has provided incorrect information in his protection visa application in the manner set out in the s.107 notice, it is first necessary to determine the applicant’s correct identity.

2. I consider there to be strong probative evidence that the applicant’s correct identity is that of [applicant name], Afghan national. In making that assessment I note that apart from the applicant’s own consistent evidence, he has also provided a very significant number of documents confirming that identity. These documents include his own taskera, a letter of identity issued by the Afghan Embassy in Canberra, his full marriage contract containing his particulars that are in all respects consistent with his own statements about his personal details, and the Afghan taskeras and passports of his parents, siblings, wife and son.

3. As well, there are no less than five statutory declarations from persons who are part of the Afghan community in Australia who have given sworn evidence that they knew the applicant and his family in their home area of [Village 1], [District 1], Ghazni province in Afghanistan and can attest to his identity. Those persons also know [Mr B] and his family, and attest that the applicant is not related to them. Further financial records submitted by the applicant and AUSTRAC records referred to in the Department’s materials record the applicant has made multiple financial transfers to [Father A] in Ghazni province and do not suggest there have been other financial transactions to the family of [Mr B]. [Father A] is named as the applicant’s father in the protection visa application and a copy of his Afghan passport and taskera has been provided to the Tribunal.

4. By contrast, there is little evidence that the applicant’s correct identity is [Mr A], that evidence being only the inclusion of the applicant’s photograph in the earlier global humanitarian visa application proposed by [Mr B] in November 2008. As at the time of the Tribunal’s decision, [Mr B] was in jail and unable to give evidence or provide a statutory declaration to the Tribunal. However, [Mr B’s] brother [Witness A] has provided a statutory declaration to the effect that he is the brother of [Mr B] and that the applicant is not the brother of either [Witness A] or [Mr B]. The applicant has also provided copies of [Mr A’s] [Country 2] identity card, which would appear to indicate that [Mr A] was resident in that country in 2017, several years after the applicant’s arrival in Australia. As noted above, five persons who are part of the Afghan community in Australia state that they knew the applicant and [Mr B] and their families in Afghanistan and can attest to the applicant’s identity as well as the fact he is not related to [Mr B] and his family. As well, [a named official] of [Community Organisation 1], states that he knew the applicant’s father [Father A] in Afghanistan where they lived in the same village.

5. On the evidence before me, I am satisfied the applicant’s correct identity is that of [applicant name], Afghan national with an estimated birth date of [DOB 2]. I accept his exact date of birth is not known to him, but that he was told by his father that he was [age] years old at the time he travelled to Australia and calculated his approximate birth date from that information. In making that assessment, I note that DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon in Afghanistan. DFAT states the high number of home births makes the process of registering births challenging, the reporting of birth dates is unreliable and any reported dates are likely to be approximate.[1] It was in that context that the applicant estimated his date of birth to be [DOB 2] in his protection visa application. While that date is unlikely to be completely accurate, I accept there is no more reliable information available to the applicant or the Tribunal.

   [1] DFAT DFAT Country Information Report: Afghanistan 27 June 2019 at 5.49

6. I further accept the applicant’s family composition is that set out in the protection visa application and not that given for [Mr A] in the earlier global humanitarian visa application. In particular, I accept that [Mr B] is not the brother or other close relative of the applicant, although I note the applicant’s evidence that they may be distantly related several generations back. The applicant has consistently named his parents and siblings in his interactions with the Department, and as noted above, he has provided copies of their Afghan passports and taskeras to the Tribunal.

   Were the applicant’s answers incorrect in the manner set out in the s.107 notice?

7. Given my findings above, it follows I am not satisfied the applicant gave incorrect information about his name, date of birth or family composition in his protection visa application. Consequently, I am not satisfied that he gave incorrect information at Questions 1, 12 and 13 of Part B of the Form 866, nor at Question 1 of Part B of the Form 866.

8. At Question 33 of Part C of Form 866, the applicant acknowledges he did not provide information about his travel history to [Country 1] when asked to provide details of his countries of former habitual residence or transit before arrival in Australia. He now states that he went to [Country 1] when he was about [age] years old (so in approximately 2008) to seek protection in that country, remaining there without documentation for a year before returning to Afghanistan. The delegate set out in the s.107 notice that she considered the applicant’s response to Question 33 was incorrect because she considered he was [Mr A] who had been residing in [Country 1] since 2003. I accept that the incorrect information provided by the applicant is substantively different to that described in the s.107 notice. For these reasons, I find the applicant did not provide incorrect information at Question 33 in the manner described in the s.107 notice.

9. However, given the applicant’s evidence that his father told him that [Mr B] might sponsor him for a visa to come to Australia, together with the applicant’s acknowledgement that the photograph included in the earlier global humanitarian visa application is indeed his photograph, I am satisfied the applicant was included in the 2007 global humanitarian visa application lodged by [Mr B] under the name of [Mr A].

10. I am satisfied that as a consequence of the visa application, he was known to the Department as [Mr A]. I accept the applicant was not aware of the earlier visa application at the time he completed his protection visa application and therefore he did not know that the information he was providing was incorrect. However, the effect of s.100 of the Act is that 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.

11. For these reasons, I am satisfied that the applicant gave incorrect information in his protection visa application at Questions 3 and 22 of Part B of the Form 866 (when he stated he had not previously made any other type of application to the Department and that all the information he had supplied was complete, correct and up to date) and at Questions 4 and 67 of Part C of the Form 866 (when he did not disclose that he had been known by the name [Mr A] and that all the information he had supplied was complete, correct and up to date).

    Should the visa be cancelled?

12. 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).

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

14. The correct information: For the reasons set out above, I have found that the applicant gave incorrect information in his protection visa application when he stated he had not previously made any other type of application to the Department, when he did not disclose that he had been known by the name [Mr A] and when he declared that all the information he had supplied was complete, correct and up to date. The correct information was that he had previously been included in a global humanitarian application under the name of [Mr A].

15. The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 of the Act (relating to bogus documents).

16. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document: The applicant was granted the protection visa following a decision by a delegate of the Minister dated 9 January 2013 that the applicant was owed protection by Australia. The decision record indicates that the delegate found the applicant had a well-founded fear of persecution from the Taliban on the basis of his Hazara ethnicity and Shia religion.

17. The delegate cited country information in support of those findings and assessed that state protection was not available to the applicant and internal relocation neither safe nor reasonable for the applicant.

18. As the incorrect information has no bearing on the applicant’s profile as a Hazara Shia from Afghanistan, I am satisfied that the applicant would have been granted the protection visa by the delegate even had the correct information been provided. For these reasons, I consider the incorrect information had no bearing on the decision to grant the visa.

19. The circumstances in which the non-compliance occurred: The applicant was [age] years old when he was included in an earlier global humanitarian visa application under the name of [Mr A]. I have accepted his evidence that he was not aware that the visa application had been made on his behalf until he received the s.107 notice in 2019 and therefore he was not aware that the information he provided in his protection visa application was incorrect at the time he provided it.

20. The present circumstances of the visa holder and his contribution to the community: The applicant has lived in Australia for nine years, after arriving via boat from [Country 3] aged approximately [age]. After arriving in Australia, he studied at a college in Sydney before completing a [trade qualification] and he worked as [an Occupation 1] up until the time his visa was cancelled and he lost the right to work in Australia. At present, he is living in shared accommodation in [named town] and living off his savings.

21. His parents and [sibling] remain in the applicant’s home area of [Village 1], while his brother is in [Country 3]. His wife and [age]-year-old son live with his parents and up until his visa was cancelled he transferred money regularly to his father, as he was the main financial support for his family in Afghanistan. Since his visa has been cancelled, he has been receiving treatment from his GP for severe anxiety. He has been referred to a psychologist by his GP and he is currently prescribed mirtazapine.

22. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: The delegate’s decision records that the applicant provided a timely response to the s.107 notice and maintained he was unaware of the earlier global humanitarian visa application. For the reasons set out above, I have accepted the applicant’s evidence in this regard.

23. Any other instances of non-compliance by the visa holder known to the Minister: The delegate records that the applicant lodged a partner visa application and an application for Australian citizenship under the name [applicant name]. For the reasons set out above, I have found that to be the applicant’s correct identity. The delegate also notes that the applicant failed to declare that his partner was pregnant in his protection visa application. In response, the applicant states that he did not know his girlfriend (now wife) was pregnant at the time he came to Australia and they did not formally marry until 2017. The taskera of the applicant’s son [named] states he was born on [date], suggesting the applicant’s wife was only [term] pregnant when the applicant arrived in Australia [in] May 2012. In any case, there is no question in the visa application that asks a visa applicant to declare an unborn child.

24. The time that has elapsed since the non-compliance: The relevant non-compliance took place when the applicant made his protection visa application in 2012 and approximately nine years have elapsed since then.

25. Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

26. Any contribution made by the holder to the community: Up until the time the applicant’s visa was cancelled, he was working as [an Occupation 1] and paying taxes in Australia as confirmed by the notice of assessment he provided to the Department in response to the s.107 notice. He is also an active member of the Hazara community in Australia, as confirmed by the letters of support from [Community Organisation 2] and [Community Organisation 1].

    Other factors to be considered

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

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non‑refoulement obligations under relevant international agreements

28. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

29. As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

30. In relation to the Refugees Convention, the Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    -    there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    -    the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

31. In this case, the delegate’s decision records that the Department did not conduct an International Treaties Obligation Assessment before the decision to cancel the visa was made. The delegate records that for this reason, a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin as an International Treaty Obligations Assessment (ITOA) would be completed by a departmental officer prior to any decision to remove him to his country of origin.

    Country of nationality

32. It is not in dispute that the applicant is an Afghan national and I have assessed his claims against Afghanistan as his country of nationality and the receiving country.

    Well-founded fear of persecution

33. It is submitted that the applicant has a well-founded fear of persecution throughout Afghanistan for reasons of his Hazara ethnicity and his Shia religion.

34. In assessing those claims, I note that the applicant’s Hazara ethnicity and Shia religion are not in dispute. I have taken account of policy guidelines prepared by the Department of Immigration – Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case, the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019. I have also had regard to the large amount of country information submitted by the applicant’s legal representative in the submission dated 13 May 2021.

    The applicant’s personal background

35. The applicant’s family originates from the [Village 1] area of [District 1] of Ghazni province. His parents and [sibling] remain living there while his brother is in [Country 3]. The applicant’s wife and son live with his parents in [Village 1]. As the applicant’s family remain living in the applicant’s home area, I find he would return there if returned to Afghanistan.

    Hazara ethnicity and Shia religion

36. As early as 2016, the United Nations Assistance Mission in Afghanistan noted ‘an emerging patterns [sic] of deliberate sectarian attacks against the Shia Muslim minority’.[2] DFAT repeated these concerns in its September 2017 Thematic Report: Hazaras in Afghanistan which reported a rise in targeted attacks on Hazara Shias throughout Afghanistan since 2016.[3] Similarly in 2018, the UNHCR reported a significant increase in harassment, intimidation, kidnappings and killings of Hazara Shias at the hands of Taliban, Islamic State and other anti-government elements (AGEs).[4]

    [2] UNAMA Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016 (February 2017) 34; EASO, Country of Origin Information Report – Afghanistan – Individuals targeted by armed actors in the conflict December 2017 at 54

    [3] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 10

    [4] United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan 30 August 2018 at 94

37. DFAT reports that the Hazara are one of Afghanistan’s 14 recognised ethnic groups, with distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. Afghanistan’s Hazaras have long faced social, economic and political discrimination, although the extent has varied over time. DFAT states the takeover of Kabul and most of Afghanistan by the Taliban in 1996 marked a period of considerable repression for Hazara, leading many Hazara to flee Afghanistan.[5]

    [5] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8

1. DFAT reports that since the fall of the Taliban in 2001, the Hazara have made significant social, political and economic gains, however the continuing armed insurgence by the Taliban and others raises questions about the sustainability of Afghanistan’s progress, particularly since the emergence of religiously motivated attacks against Shias by militant groups. DFAT states that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’.[6]

   [6] Ibid at 3.7–3.16

2. In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[7]

   [7] Ibid at 3.42–3.46

3. In relation to the risk profile for ‘Shia’, DFAT reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid‑2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, Islamic State in the Khorasan Province (ISKP) emphasised that it was religiously motivated. The United Nations Assistance Mission in Afghanistan (UNAMA) documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018, there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city.[8]

   [8] Ibid at 3.29–3.35

4. In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul.[9] Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack.[10]

   [9] Ibid at 3.29–3.35

   [10] >

   In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[11]

   [11] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at >

   In June 2020, the UK Home Office reported high levels of sectarian-motivated violence by Daesh/ISKP against the Shia minority, most of whom also belong to the Hazara ethnic group:

   UNAMA reported in its annual report for 2018 that ‘UNAMA continued to document high levels of sectarian-motivated violence by Daesh/ISKP against the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. UNAMA remains gravely concerned about the safety and security of this religious minority population and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.[12]

   The current security situation in Afghanistan

   [12] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) June 2020 at 5.8.2

5. The most recent DFAT report dated 27 June 2019 indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of AGEs remain engaged in a violent armed insurgency against the government and its international partners, and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province has been a growing concern for the international community. DFAT reports that considerable ethnic and intra‑ethnic tensions exist throughout the country, separate from the continuing armed conflict, and no part of Afghanistan can be considered free from conflict-related violence.[13]

   [13] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52–2.59

6. Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, improvised explosive devices and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties.[14]

   [14] Ibid at 2.52–2.59

7. DFAT also reports that Afghanistan’s road network is generally poor, with the Taliban, other AGEs and criminal elements targeting national highways and secondary roads and unofficial checkpoints manned by armed insurgents common. DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress, and Hazaras are particularly at risk in this regard. DFAT assesses that abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence.[15]

   [15] Ibid at 2.70–2.74

8. DFAT reports that while Kabul remains under the control of the Afghan government, it has been experiencing large-scale violent attacks for some years:

   The conflict in the city is characterized by asymmetric tactical warfare. Although the Afghan capital remains under government control, armed opposition groups have shown that they can infiltrate the city and have the capacity to carry out attacks. Kabul regularly witnesses violence. Large-scale suicide and complex attacks causing hundreds of civilian casualties were recorded in previous years.[16]

   [16] ‘COI Focus – Afghanistan: Security Situation in Kabul City’, Documentation and Research Department (Cedoca), Office of the Commissioner General for Refugees and Stateless Persons (CGRS) (Belgium), 08 April 2020, p.10

9. Since the DFAT and UK Home Office reports were published in 2019, the security situation in Afghanistan has significantly worsened. In each of 2019 and 2020, the Global Peace Index rated Afghanistan as the least peaceful country in the world.[17]

   The peace process

   [17] Global Peace Index 2020 at Global indexes – Vision of Humanity

10. On 29 February 2020 an agreement between the US and the Taliban committed to the withdrawal of US and allied forces from Afghanistan by 1 May 2021 (the Doha deal).[18] Peace talks between the Afghan government and the Taliban finally commenced in September 2020, made possible only after the Afghan authorities agreed to the release of thousands of Taliban militants accused of serious offences.[19] Despite the commencement of peace talks, the conflict continued to kill civilians and violence surged around the country with the Taliban refusing to implement a ceasefire before the peace negotiations.

    [18] Terrorism Assessment, Afghanistan (satp.org)

    [19] ‘Taliban Ready for Peace Talks with Kabul as Fighters Released’, The Australian newspaper, 10 August 2020 at >

    In the 12 months following the Doha deal on 29 February 2020, at least 26,953 persons were killed in terrorist incidents across Afghanistan and UNAMA reported increasing civilian fatalities in every quarter throughout 2020. Rahmatullah Andar, spokesman of the National Security Council, observed in February 2021 that the Doha agreement ‘has only ensured [the Taliban’s] ceasefire with the US, while relations between the Taliban and Afghans remained limited to killings, terror and horror’. The South Asia Terrorism Portal reports that ‘it is abundantly clear that the Doha deal has fallen flat and the ongoing Doha talks are of little significance’.[20]

    [20] Terrorism Assessment, Afghanistan (satp.org)

11. On 14 April 2021 US President Biden announced plans to withdraw all US military forces from Afghanistan by 11 September 2021 and similar announcements followed from NATO and the other coalition partners.[21] Shortly before the announcement, the United States Director of National Intelligence opposed the move, stating in its Annual Threat Assessment:

    We assess that prospects for a peace deal with remain low during the next year. The Taliban is likely to make gains on the battlefield, and the Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.[22]

    [21] United States Office of the Director of National Intelligence, Annual Threat Assessment of the US Intelligence

12. Many commentators share those concerns. The Wall Street Journal reported that:

    President Biden’s decision … has dealt a blow to the ailing peace process, leaving the Kabul government without its main leverage against the Taliban. Hours after news of the U.S. withdrawal broke Tuesday, the Taliban ruled out attending a U.S.‑backed peace conference in Istanbul slated for next week, the Biden administration’s signature effort to fast-track a deal for Afghanistan’s post-American future.[23]

    [23] Sune Engel Rasmussen and Jessica Donati, ‘U.S. Plan to Withdraw Troops From Afghanistan Hampers Peace Talks With Taliban’, The Wall Street Journal (online, 14 April 2021) from-afghanistan-hampers-peace-talks-with-taliban-11618417275

13. Others warn of a resurgent Taliban:

    The reality of an imminent American withdrawal from Afghanistan differs from its long‑anticipated likelihood. Already the anxiety engendered by this new certainty in the capital, Kabul, and other urban centers is making itself felt.

    Afghans’ fear is multifaceted, evoked by the Taliban’s grim record, bitter and vivid memories of civil war and the widely acknowledged weakness of the current government. These conditions in turn push Afghan thinking in one direction: The country’s government and armed forces won’t survive without American support. Many American policymakers, security officials and diplomats concur with this gloomy view. Just this week, the U.S. intelligence assessment, presented to Congress, suggested as much: “The Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.”[24]

    [24] US Troop Withdrawal From Afghanistan: What to Know - The New York Times (nytimes.com)

14. There appears little cause for optimism concerning any improvement to the security situation in Afghanistan in the foreseeable future. Rather there are serious concerns that the withdrawal of US and coalition forces during 2021 is likely to result in a serious deterioration of the security situation in Afghanistan. In November 2020, NATO Secretary‑General Jens Stoltenberg warned that:

    Afghanistan risks becoming once again a platform for international terrorists to plan and organise attacks on our homelands … And ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq.[25]

    [25] NATO chief Jens Stoltenberg says Afghanistan could become terrorist haven if troops withdraw - The Washington Post

15. The South Asia Terrorism Portal assesses that Afghanistan is far from achieving any sustainable respite from terror, reporting the high but unrealistic hopes that were raised by some in the aftermath of the Doha deal have yielded to an enveloping gloom.[26]

    [26] Terrorism Assessment, Afghanistan (satp.org)

16. DFAT warns of the potential for increased risk of attacks around and following the expiry date of the Doha deal (1 May 2021), noting that the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021. Current DFAT advice reports that terrorists and criminal groups target foreigners and kidnapping is a serious and ongoing threat.[27]

    [27]

17. Fears of an increase in attacks around the date of the US withdrawal from Afghanistan may already have been realised. It was reported the Taliban conducted 62 bomb blasts and six suicide bombings in the 11 days leading up to 27 April 2021.[28] On the eve of the US withdrawal from Afghanistan, a truck laden with explosives blew up outside a guesthouse south of Kabul, killing at least 27 students preparing for their university entrance exams. The Afghan government has blamed the attack on the Taliban, which did not immediately claim responsibility.[29] A week later, at least 68 people died and more than 165 were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht-e-Barchi in Kabul. The dead and injured were mostly schoolgirls. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement.[30]

    [28] Afghan Blast on Eve of U.S. Pullout Deadline Kills at Least 27 - The New York Times (nytimes.com)

    [30] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511

18. In the capital city of Kabul, which remains under the control of the Afghan government, violent attacks against civilians by AGEs are reported to have continued throughout 2020 and 2021. The South Asia Terrorism Portal lists more than 50 terrorism attacks in Kabul between January and April 2021 alone, without identifying the victims by ethnicity or religion.[31] While not an exhaustive list, media reports indicate Hazaras and/or Shias or other minority religious groups were specifically targeted in many of the reported large‑scale attacks over the past year:

    ·8 May 2021: at least 68 people died and more than 165 (mostly schoolgirls) were injured, in an explosion outside a school in the Shia Muslim neighbourhood of Dasht‑e-Barchi in Kabul. Afghan President Ashraf Ghani blamed the attack on Taliban insurgents, while the Taliban denied involvement;[32]

    ·23 December 2020: at least two people were killed in a bomb attack in eastern Kabul. A day earlier, five people were killed by a roadside bomb, three of whom were doctors on their way to work;[33]

    ·2 November 2020: at least 22 people were killed and others wounded when gunmen stormed Kabul University. ISKP later claimed responsibility for the attack;[34]

    ·October 2020: at least 18 people were killed and 57 wounded in a suicide bomb attack outside an education centre in a heavily Shia neighbourhood of western Kabul, with ISIS claiming responsibility;[35]

    ·May and June 2020: two attacks on mosques and a bomb attack on a group of journalists;[36]

    ·6 June 2020: 24 people were killed in an attack on a Sikh and Hindu temple complex. IS claimed responsibility, however government sources said it was conducted by the Haqqani Network;[37]

    ·12 May 2020: gunmen entered a maternity hospital in Dasht-e-Barchi, a mostly Shia neighbourhood and home to a large Hazara population. Twenty four people were killed, including two newborn babies. While no group claimed responsibility, the attack has been attributed to ISKP;[38]

    ·6 March 2020: an attack on a ceremony commemorating a Hazara leader, Abdul Ali Mazari, which left at least 32 killed. The same ceremony was also attacked in 2019; ISKP claimed responsibility for the attacks in both 2019 and 2020.[39]

    [31] Timeline Terrorist Activities, Afghanistan (satp.org)

    [32] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021, 2021051006511

    [33] ‘Two killed in Kabul shooting, bomb attack’ | Conflict News | Al Jazeera, 23 December 2020

    [34] ‘Attack on Kabul University by ISIS gunmen leaves 22 dead’, The Guardian, 3 November 2020

    [35] ‘At least 18 dead in suicide bomb attack in Kabul’ | Afghanistan | The Guardian, 25 October, 2020

    [36] ‘Afghanistan: Two killed in bomb attack inside Kabul mosque’, Aljazeera, 3 June 2020; ‘Deadly blast hits Kabul mosque during Friday prayers’, Aljazeera, 13 June 2020

    [37] ‘Solidarity for Sikhs after Afghanistan massacre’, Ruchi Kumar, Aljazeera, 6 July 2020

    [38] ‘Babies among 24 killed as gunmen attack maternity ward in Kabul’, Aljazeera, 13 May 2020; Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce’, Stefanie Glinski, Foreign Policy, 14 May 2020

    [39] ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020; ‘Afghanistan: Taliban deny involvement in deadly attack on Hazara ceremony in Kabul’, The Defense Post, 6 March 2020

19. The US Department of State reported in 2020 that the Afghan authorities sought to address security issues in western Kabul’s Dasht-e-Barchi area, a target of major attacks during the year, by announcing plans to increase the presence of Afghan National Defense and Security Forces (ANDSF). According to the Shia community, there was no increase in ANDSF forces although the government distributed arms directly to the guards of Shia mosques in targeted areas.[40]

    [40] US Department of State Annual Report on Religious Freedom 10 June 2020

20. As well as confronting significant security issues, country information indicates that vulnerable groups such as returnees and internally displaced persons also face challenges accessing essential services in Afghanistan. Returnees and failed asylum seekers in Afghanistan face a food insecurity crisis. COVID-19 has increased unemployment, seen food supply disruptions due to border closures, and caused rising food prices. This has exacerbated Afghans’ food insecurity, previously impacted by the ongoing conflict and high poverty levels.[41] In January 2020, the Internal Displacement Monitoring Centre reported that just under 90% of returnees interviewed reported difficulties in subsisting.[42]

    [41] ‘Quarterly report to the United States Congress: 1 April to 30 June 2020’, Special Inspector General for Afghanistan Reconstruction, 30 July 2020, p.132, 20200803143728

    [42] ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan’, Chloe Sydney, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, p.14, 20200115130225

1. In view of the sources cited above, I am not persuaded that there will be any lasting or durable improvement to the security situation in Afghanistan in the foreseeable future. Rather I note DFAT’s 2019 assessment that the security situation throughout Afghanistan was at that time dangerous, complex and highly fluid, and I consider it has only deteriorated since the DFAT report was published.

   Future risk of harm to the applicant

2. I note the delegate who assessed the applicant’s claims for protection in 2010 found him to be an Afghan Hazara from the [District 1] of Ghazni province, Afghanistan. The delegate cited country information about the situation in Ghazni province at the time, finding the applicant had a well-founded fear of persecution there at that time. The current DFAT report states that Ghazni province experienced an 84% increase in civilian casualties between 2017 and 2018, with large-scale Taliban attacks in the Hazara‑dominated areas of Ghazni leading to protracted fighting and large-scale displacement.[43]

   [43] DFAT Country Information Report Afghanistan 27 June 2019

3. At hearing, the applicant gave evidence that his family were under constant threat from the Taliban, who came to [Village 1] last winter and abducted people for ransom with three of those abducted being killed. He stated that [Village 1] was relatively distant from Ghazni and Qarabagh cities and close to areas of Pashtun control. He said his family did not travel to Qarabagh to shop for their daily necessities because the road is controlled by the Taliban, so they drive through the Hazara‑dominated areas to Ghor and Sang-e-Masha.

4. For the reasons set out above, I have found that the applicant is of Hazara ethnicity and Shia religion, and if removed from Australia to Afghanistan he will return to his home area in [District 1] of Ghazni province.

5. I give weight to the country information cited above, which indicates that:

   ·Even before the withdrawal of US and NATO troops from Afghanistan, the security situation in Afghanistan was assessed by DFAT as being dangerous, complex and highly fluid. DFAT notes that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict, and no part of Afghanistan can be considered free from conflict-related violence;[44]

   ·Since mid-2016, militants have conducted ongoing attacks against Shia targets who face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals;[45]

   ·Hazaras are overwhelmingly Shia and have distinct Asiatic features which make them visually distinguishable from other ethnic groups in Afghanistan. They are widely perceived as being supporters of the government;[46]

   ·Hazaras have been significantly impacted by attacks from insurgent groups, targeting Shia religious commemorations and political demonstrations, as well as sites in Hazara neighbourhoods in large cities including Kabul and Herat. ISKP targets Hazaras due to their perceived affiliation to the Afghan government and closeness to Iran and the fight against the Islamic State in Syria. There are reportedly instances of Hazara civilians being abducted or killed while travelling on the roads;[47]

   ·DFAT assesses that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul;[48]

   ·In June 2020, the UK Home Office reported high levels of sectarian‑motivated violence by Daesh/ISKP against the Shia minority, noting that UNAMA remained gravely concerned about the safety and security of this religious minority population and the extent to which these attacks are impeding their freedoms of religion and movement and quality of life;[49]

   ·While Kabul remains under the control of the Afghan government, it has been experiencing large-scale violent attacks for some years and those attacks have continued throughout 2020 and 2021, including since the peace talks between the Taliban and the Afghan government began in September 2020;

   ·The peace talks between the Afghan government and the Taliban have not resulted in a reduction of terrorist attacks or civilian casualties, rather DFAT warns the frequency of attacks in Kabul and across the country increased in 2020 and the level of violence was not expected to ease in 2021;

   ·Other commentators warn of a resurgent Taliban following the withdrawal of US and NATO forces during 2021 and that ISIS could rebuild in Afghanistan the terror caliphate it lost in Syria and Iraq. As DFAT sets out, both those groups have targeted Hazaras in Afghanistan for reasons of their Shia religion and because they are widely perceived as being supporters of the government and the coalition forces.

   [44] DFAT Country Information Report Afghanistan 27 June 2019 at 2.52–2.59

   [45] DFAT Country Information Report Afghanistan 27 June 2019 at 3.7–3.16

   [47] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at DFAT Country Information Report Afghanistan 27 June 2019 at 3.29–3.35

   [49] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at 5.8.2

6. In these circumstances, I accept there to be a real chance the applicant will face serious harm if he returns to his home area of [Village 1] in [District 1] of Ghazni province, for the essential and significant reasons of his Hazara race, his Shia religion and his imputed political opinion arising out of his profile as a Hazara Shia who has been resident in a Western country for an extended period.

   State protection

7. The harm that the applicant fears from anti-Shia militant groups is from non-state agents and the applicant claims that the Afghan authorities cannot and will not protect him from that harm. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm.

8. DFAT reports that the continuing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country. It also notes that the increase in the number and impact of large-scale attacks that have taken place in Kabul since the beginning of 2016 demonstrates the limits of the Afghan government’s ability to protect its citizens even where its security infrastructure is strongest.[50] In such circumstances, I find that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect.[51]

   Relocation

   [50] Ibid at 5.1–5.4

   [51] As discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1

9. A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. What is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[52]

   [52] SZATV v MIAC (2007) 233 CLR 18

100.   DFAT reports that Afghanistan’s Constitution guarantees citizens the right to travel and settle in any part of Afghanistan and there is no legal impediment to internal movement, with Afghans of all ethnicities relocating internally for a variety of reasons. Major cities, particularly Kabul, offer greater opportunities for employment and are home to communities from virtually all of Afghanistan’s ethnic groups. DFAT assesses that while there are generally options available for internal relocation in Afghanistan, there are considerable security and economic factors that limit the ability of Afghans of all ethnicities to relocate internally safely and successfully.[53]

[53] DFAT Country Information Report Afghanistan 27 June 2019 at 5.31-5.31

101.   I accept that the applicant is identifiable as a Hazara Shia from his physical appearance, his practice of the Shia religion and his language, Hazaragi. The applicant has not lived in Afghanistan for nine years. Given DFAT’s advice that no part of Afghanistan is free of conflict‑related violence and the Internal Displacement Monitoring Centre’s research indicating that 90% of returnees struggle with food security and subsistence, I accept that relocation outside of his home area in [District 1] of Ghazni province is not reasonable in the particular circumstances of the applicant.

102.   For these reasons, I accept the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and imputed political opinion. It follows that he comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non‑refoulement obligations.

103.   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members): The applicant’s parents, [sibling] and wife and son remain living in [Village 1], Afghanistan, and the applicant has been unable to travel to visit them since his visa was cancelled. Should the applicant’s visa remain cancelled, his citizenship application will necessarily be refused and his pending partner visa refused.

EXERCISE OF DISCRETION

104.   Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard strongly weigh against cancelling the applicant’s visa. In particular, I give significant weight to the following matters:

·Had the correct information about the applicant’s inclusion in the earlier visa applications been known to the delegate when the decision to grant the visa was made in 2012, I am satisfied the applicant would still have been recognised by the delegate as a refugee on the basis of his Hazara ethnicity and Shia religion;

·At the time of my decision, the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara race, his Shia religion and his imputed political opinion;

·If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal. I am satisfied that his removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations;

·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather he has completed a number of training programs and qualifications in his efforts to build a livelihood as [an Occupation 1]. He has been active in the Australian Hazara community and is also the main source of financial support for his family in [District 1], Afghanistan. If his visa remains cancelled, he will be unable to travel to see his wife and son, and his partner visa application and citizenship application will necessarily be refused.

105.   For these reasons, I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.

CONCLUSIONS

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

DECISION

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

Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

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

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

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

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

(A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

(f)      requiring the holder:

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

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

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

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

(b)     otherwise—14 days.

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

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

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

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

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

108Decision about non‑compliance

The Minister is to:

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

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

109Cancellation of visa if information incorrect

(1)The Minister, after:

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

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

(c)      having regard to any prescribed circumstances;

may cancel the visa.

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

Community, 9 April 2021, 25 Do We Deserve to Die? Kabul’s Hazaras Bury Their Daughters’, Adam Nossiter, New York Times, The, 09 May 2021, 20210510065847

‘Why Do We Deserve to Die? Kabul’s Hazaras Bury Their Daughters’, Adam Nossiter, New York Times, The, 09 May 2021, 20210510065847