2000443 (Migration)
[2021] AATA 3224
•14 July 2021
2000443 (Migration) [2021] AATA 3224 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2000443
MEMBER:Michael Hawkins AM
DATE:14 July 2021
PLACE OF DECISION: Brisbane
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 14 July 2021 at 2:16pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – Pakistan citizenship – race – Pashtun – fear of Sunni extremists – Pakistan passport – identity documents – return visits to Pakistan – people with disabilities – permanent incapacity – availability of medications – imputed pro-Western political opinion – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 116, 140
Migration Regulations 1994, r 2.41CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
COT15 v MIBP (No.1) [2015] FCAFC 190
Goundar v MIBP [2016] FCA 1203
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
Le v MIBP [2015] FCA 1473
MIBP v Le [2016] FCFAC 120
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Class BB, Subclass 155 (Five Year Resident Return) visa (BB 155 visa) under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) of the Act by stating he is an Afghan citizen who would be persecuted in Afghanistan. The delegate found the applicant was not an Afghan citizen; that he is a Pakistani citizen and was so at the time of arrival in Australia and at the time he applied for the protection visa; and that the applicant did not genuinely fear harm from the Taliban if he is returned to Afghanistan, because as a citizen of Pakistan he could reside in that country and does not have to return to Afghanistan. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 June 2021 and 12 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Afghanistan) and English languages.
The applicant was represented in relation to the review by his immigration lawyer. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the applicant has not complied with one or more of the relevant provisions.
The applicant’s representative provided submissions in relation to the validity of the s.107 notice in his pre-hearing submissions of 18 June 2021. The representative submitted that the delegate did not reach the requisite state of mind because no reasonable decision maker could consider that the applicant had not complied with his obligation to give correct information about his country of citizenship without reference to the laws of the country which it is contended gave him citizenship.
The representative submitted that the delegate made no suggestion in the NOICC and the decision to cancel that the applicant:
·has lied about the origins of his parents in Afghanistan and when they migrated to Pakistan;
·that he or his parents have taken any step to renounce their Afghan citizenship; or
·that they were deprived of their Afghan citizenship by some other administrative decision of the Afghan government.
The representative referenced Australian country information indicating that document fraud is widespread in Pakistan and that fraudulently obtained genuine documents can be obtained with fraudulent feeder documents. The representative also cited Australian country information indicating that the Pakistan government has dual nationality arrangements with 16 countries.
The representative submitted that no reasonable decision maker would have proceeded to issue the NOICC without first determining whether the applicant could, as a matter of Pakistani law, be a citizen of Pakistan on the facts which were not disputed.
The representative submitted that given that the delegate failed to reach the requisite state of satisfaction to issue the s.107 notice, the appropriate course of action for the Tribunal is to set aside the decision under review and substitute a decision that the applicant’s visa is not cancelled.
The Tribunal has considered the representative’s pre-hearing submissions, the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of his intention to consider cancellation. 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.
The Tribunal does not accept the representative’s submission. The submission that the delegate made “no suggestion” about certain facts ought not be taken that they are accepted or otherwise. The matters to which the representative alludes are substantive matters to which the Tribunal will give due regard in its consideration of whether information provided in the applicant’s protection visa application were correct or incorrect.
Was there non-compliance as described in the s.107 notice?
What were the particulars of the non-compliance set out in the notice?
On 27 November 2017, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:
On the material presently before me, I consider there has been non-compliance with the following section(s) of the Migration Act 1958:
Section 101. Visa applications to be correct
101. A non-citizen must fill in or complete his or her application form in such a way that
(b) no incorrect answers are given or provided.
By operation of s99 of the Act. 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.
Non-compliance with previous visa application constitutes grounds for cancelling your current visa.
Section 107A of the Act specifies non-compliance in relation to your application for a XA-866 Protection visa lodged on 13 July 2011 can constitute grounds for cancellation of your current subclass BB 155 Resident return visa granted on 20 June 2017:
Section 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
[In] March 2011 you arrived in Australia as an Irregular Maritime Arrival (IMA).
On 23 March 2011 you completed a biodata form with the following information (in italics):
At question 1, 2 & 3 of the biodata form you provided the following information:
1. Your family name: [name]
2. Your given name: [names]
3. Any other names you Are known by: [name]
At question 8 of the biodata form you provided the following information:
The place you were born: Peshawar Charsadda Pakistan
At question 9 of the biodata form you provided the following information:
Your citizenship: Pakistani
On 12 May 2011 you lodged a Protection Obligations Determination (POD) request.
On 12 May 2011 you signed a statement explaining your reasons for leaving Afghanistan and seeking asylum in Australia.
On 19 July 2011 you lodged an application for a Protection visa. As part of this application you provided a Form 866 - Application for a Protection (Class XA) visa. You provided the following information in the Form 866 (in italics):
At question 1 of part C of the Form 866 you provided the following information:
Family name: [name]
Given names: [name]
At question 8 of part C of the Form 866 you provided the following information:
Place of birth
Town/city: [Village 1 in] Charsadda, Peshawar
Country: Pakistan
At question 19 of part C of the Form 866 you provided the following information:
Your citizenship at birth: Afghani
At question 20 of part C of the Form 866 you provided the following information:
Your current citizenship (if different to at birth): N/a
At question 21 of part C of the Form 866 you provided the following information:
Do you hold any other citizenship or are you a national of any other country? No
At question 22 of part C of the Form 866 you provided the following information:
Do you have a right to enter or reside in, whether temporarily or permanently, and country(s) other than your country(s) of nationality or your former country(s) of habitual residence? No
At question 41 of part C of the Form 866 I am seeking protection In Australia so that I do not have to go back to (Give name of the country or countries):
Afghanistan
At question 42 of part C of the Form 866 Why did you leave that country?
"Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
At question 43 of part C of the Form 866 What do you fear may happen to you if you go back to that country?
"Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
At question 44 of part C of the Form 866 Who do you think may harm/mistreat you if you go back?
"Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
At question 45 of part C of the Form 866 Why do you think this will happen to you if you go back?
"Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
Question 46 of part C of the Form 866 Do you think the authorities of that country can and will protect you if you go back?
"Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
You resubmitted your signed statement lodged on the 12 May 2011, explaining your reasons for leaving Afghanistan and seeking asylum in Australia. This effectively addresses questions 42 to 46 of the Form 866.
Statement of [the applicant] - claimed the following:
Introduction
1. I am a citizen of Afghanistan, and I do not have a right to citizenship or a right to reside in any other country.
2. I am of Pashtun ethnicity, and a Sunni Muslim.
3. I arrived in Australia [in] March 2011.
4. I was born on [date], in the village of [Village 1], region of Charsadda, Peshawar. in Pakistan.
5. My family had originally left our home country of Afghanistan because of the danger from the Mujahaden (currently called the Taliban).
6. My father had not been in the Mujahaden, he was fleeing from them, with us in 1981 or 1982.
7. First we went to [a district], in the Northern-West Province of Pakistan for several months, then we moved to Charsadda, because of all the conflict between the Shi'a and the Sunnis, and also because my father could not work there in such a poor rural area to make enough for us to live on. Charsadda was where I was born and grew up.
8. To make the hazardous journey to Australia, I have had to leave my pregnant wife, [named]. and our [number] children, aged [ages], behind, as we could not afford to all try to escape to a safer place to live.
9. My parents live with them and they all rent together. Their rent is paid from my father 's income from his [business] in Charsadda.
10. They are all in good health, fortunately, at this time.
11. I was able to enter a private university and obtain a [degree] rnajoring in [subject], called a [degree name]. after [another qualification] in [subject] at a private [college].
12. I had a gap in my education while I helped my father in his shop and waited to gain entry to a university. It was not immediate or easy because of my being an illegal resident in Pakistan.
13. My father encouraged me greatly and I have been passionate since my childhood to try to get a good education. My father sold his land in Afghanistan to pay for my education privately because I could not study in the Pakistani government schools.
14. Out of us [number] children, only I was able to achieve this level of education. One brother, [name], has gone to [Country 1] on a scholarship from that country to study there.
15. I feel my education has been beneficial to me, even though hardly anyone would give me good work in Pakistan. I could only obtain work for an NGO [in] its special program during the [specified program].
16. They kept on asking for a police clearance too, but I was able to stall them to stay working with them during the program.
The country to which I fear returning
17. I fear returning to Afghanistan
Why I left that country:
18. In January 2010, I went back to Afghanistan on my own after realising that living in Pakistan as illegal refugees was no good for our family.
19. There were suicide bombers happening near us in Pakistan, and I felt it was very unsafe and no opportunity to get a job.
20. I had to pay bribes to go through all the checkpoints looking for work, it was very difficult.
21. My father finally greed that I should go back to try to start a new life there for us in our own country again.
22. I had [specified relatives] there (now deceased), and their families were still there.
23. I started building a small house back in our old village, [Village 2], In Afghanistan, so that my family could join me later back in our home village.
24. My cousin's friend helped arrange work for me with [a] company
25. It was in that period, in March 2010, that I was able to obtain my Taskera, my Afghani ID which I have provided to the Australian Department of Immigration since my arrival at [named detention centre].
26. After about three months back In Afghanistan, in about March, the Taliban started coming around, threatening me because they said I was helping the foreigners, the Christians, the Americans, whereas instead I should have been working for the holy war and the Taliban cause.
27. I try to be a good Muslim, and I advocate peace. education, progress, development, but the Islamic religion that the Taliban pushes, uses weapons instead of education. They force their fanatic ideologies on individuals and say that because I am a Pashtun and a Sunni, I should not be working for an NGO company helping the infidels.
28. I had been tutoring English to the local children in the village of [Village 2], two or three days a week usually, for free.
29. The Taliban heard about this and tried to discourage me.
30. The first time I was threatened was from my local mosque mullah, when he said I should stop working where I was, and to stop teaching English.
31. The Taliban had approached the Mullah to tell my uncle and I about their demands.
32. They started threatening the security guards where I worked, firing near them, and demanding we stop working on the project where we were.
33. They had fired rockets and thrown grenades into the premises, which were burnt down.
34. So I realised it was not safe for me to live there, and I decided to go back to my family in Pakistan in May, 2010, in the middle of last year.
35. My uncle went with me. and he called his wife back in the village - she said after we had left, the Taliban had gone around to their house, looking for me, saying they would not spare me if they found me.
36. After July 2010, when I found work with the NGO, I started receiving threats over the phone, about three or four a day, sometimes, and by a threatening letter delivered to our house accusing me of working for foreigners still, and working with English speakers.
37. It was then that I realised the Taliban was still watching me in Pakistan, and it was no longer safe there for me, either. They would report me to the Pakistani police, and having no legal status, I could not protect myself or my family there.
38. That was in August 2010 I left Pakistan to reach Australia the next month, in September, via Lahore. where I waited for two months to obtain false documents for the trip.
What I fear may happen to me if I return to that country and why:
39. The Taliban are still very strong in Afghanistan and Pakistan, they have contracts and spies everywhere in both countries, including within the government and police. I am very much afraid of what they will do to me if I am sent back.
40. They expect me to be part of their power struggle for supremacy because I am a Sunni and a Pashtun, as many of them are, but this is not for me.
41. I do not believe that Islam is a violent or vengeful religion like the Taliban do, and I do not want to live that way, ever.
42. The Taliban knows now where I lived in Pakistan, and that I will not stop trying to teach English or working for companies that work on good projects for my country and for the benefit of the people.
43. The Taliban are against any of the organisations who are trying to rebuild my country, and they target anyone who is involved with them, threatening their lives and livelihood.
44. I am sure my life would be in great danger if I had to go back, and that I would be killed.
45. Instead, I want to contribute to the community where I live in a good way. using my training and skills, and not live the threatening life that the Taliban do,
46. I am sure they would continue to try to either convert me to be like them or kill me if I desist.
Who I think may harm/mistreat me in that country and why:
47. It is the Taliban I am very afraid of, I am sure they will kill me if I returned to the region, either in Afghanistan or Pakistan. I have no doubt of that. I would be defenceless against them.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country
48. There are many Pashtuns and Sunnis in the government and the police who are aligned with the current Taliban.
49. I believe they will not want to be seen to be protecting me, who is also a Pashtun and a Sunni like them. They will not care about me at all and would offer no protection for me.
Why I think relocation to another area in my country is not a reasonable option:
I am Pashtun and a Sunni, and there are many areas in my country, Afghanistan, where I would be persecuted. The Taliban targets all Sunnis, Pashtuns and they expect us to join them and be like them, and to fight for their cause, but many of us do not want to. I cannot do that, I do not believe in their cause, and on the grounds of my race, I claim that I do meet the requirements of the UN Convention as a genuine refugee because I am being persecuted for my ethnicity as a Sunni Pashtun by the Taliban.
On 20 July 2011, based on this information and meeting all other relevant criteria the class XA subclass 866 Protection visa was granted.
[In] June 2012 you departed Australia on your Titre De Voyage document number [number] stating on your outgoing passenger card you would be offshore for three months spending most of your time in Pakistan. You returned 2 months later on [a day in] August 2012 on the same travel document stating on your incoming passenger card most of your time was spent in Pakistan. Upon arrival in Australia [in] August 2012 you were spoken to by an Immigration officer and explained to them you had spent 50 days in Pakistan. You did not indicate you had faced any apparent harm whilst in Pakistan.
[In] January 2014 you departed Australia on the same Titre De Voyage document number [number] stating on your outgoing passenger card you would be offshore for two months spending most of your time in Pakistan. You returned 4 months later [in] May 2014 on the same travel document stating on your incoming passenger card most of your time was spent in Pakistan.
[In] July 2017 you departed Australia on your Titre De Voyage document number [new number]. You returned 4 months later [in] November 2017 on the same travel document stating on your incoming passenger card most of your time was spent in Pakistan.
Since being granted your Protection Visa you have voluntarily departed Australia on three different occasions and have spent a total of 10 months in Pakistan, spending a significant amount of time each visit.
On 5 February 2016 you were interviewed at the Brisbane office as part of the Citizenship application process where you provided the following information:
·You used a fake Pakistani passport in your own name ([specified]) to leave Islamabad airport.
·You stated your father helped you obtain this passport by bribing officials. The document genuinely has your details however, you state as you are not Pakistani you should not have this document.
·You state both your parents were Afghani refugees living in Pakistan, and even though you were born In Pakistan you are considered to be an Afghani citizen. Both your parents were registered as UNHCR refugees and were successful in getting placed in [Country 2] in 2009.
·You provided numerous documents to support your identity including copies of your marriage certificate which states your name as [name], Afghani Taskera ([number]), and original Afghani driver's licence to name a few.
In support of your Citizenship application longed 22 July 2015 you provided the following documents:
·Original of your Pakistan Marriage Certificate - ([Number])
·Original of your Pakistan Birth Certificate - (CRMS No: [Number] Form No: [Number])
·Tazkira - registration number [Number]
·Afghani driver's license - number [Number]
The Pakistani marriage certificate and Pakistani birth certificate have been verified by Pakistani authorities informing the Department they were genuine.
·The Pakistani marriage certificate provided included the number of your Pakistani Computerised National Identity Card (CNIC) ([Number]), this is only issued to Pakistani citizens.
·Your Pakistani birth certificate (CRMS No: [Number], Form No: [Number]) was issued to your father, [name] and carries your father's Pakistani CNIC ([number]) indicating your father is a Pakistani citizen. The birth certificate also shows your [named mother’s] CNIC number ([number]) indicating her Pakistani citizenship.
·Based on information from your birth certificate further evidence was provided in the form of your Pakistani national identity card ([Number]). Information on the identity card stated your name, your father's name and date of birth it also indicates the card was issued [in] 2014 with an expiry date [in] 2024, it stated you old identity card number ([number]), indicating you have previously been Issued a Pakistani national identity card.
Based on the above evidence I consider the documents provided indicate you are a citizen of Pakistan and not Afghanistan.
The Tazkira was sent to the country of issue for verification with the following results:
·The Tazkira registration number [Number] and dated in the year 1389 from [District 1] of Kunarha province belonging to [applicant’s name] Son of [father’s name], son of [name], is not registered and it is fraudulent.
·Your Afghan driver's licence issued in the name of [name] numbered [Number] was sent to the Departments Document Examination Unit to determine its authenticity. The report concluded the document was legitimately manufactured but has been fraudulently altered.
Apparent non-compliance with section 101(b) of the Act
From the above evidence I consider you did not comply with the requirements of section 101(b) of the Act because at the time you lodged your Protection Visa application the answers to the following questions in it were incorrect:
At question 19 of part C of the Form 866 you provided the following information:
Your citizenship at birth: You answered Afghani
Upon your arrival in Australia you were asked to complete a biodata form and, on this form, dated 23 March 2011 you stated your citizenship as Pakistani. This information appears to be correct.
However, the information you provided on Form 866 appears to be incorrect because you are a Pakistani citizen based on the following information:
·Your Pakistani birth certificate, marriage certificate and national identity card confirm you are a citizen of Pakistan
·The documents to support your claims to being an Afghani citizen have been verified and it has been found they are fraudulent.
At question 20 of part C of the Form 866 you provided the following information:
Your current citizenship (if different to at birth) - You answered N/a
·This appears to be incorrect because you hold a Pakistani birth certificate, marriage certificate and national identity card indicating you are a citizen of Pakistan and not Afghanistan.
At question 21 of part C of the Form 866 you provided the following information:
Do you hold any other citizenship or are you a national of any other country? You answered: No
Upon your arrival in Australia you were asked to complete a biodata form and on this form, dated 23 March 2011 you stated your citizenship as Pakistani. This information appears to be correct.
However, the information you provided on Form 866 appears to be incorrect because you are a Pakistani citizen based on the following information:
·Your Pakistani birth certificate, marriage certificate and national identity card confirm you are a citizen of Pakistan
·The documents to support your claims to being an Afghan] citizen have been verified and it has been found they are fraudulent.
At question 22 of part C of the Form 866 you provided the following information:
Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence? You answered: No.
This appears to be incorrect as your Pakistani birth certificate, marriage certificate and national identity card indicates you are a Pakistani citizen.
At question 41 of part C of the Form 866 - I am seeking protection in Australia so that I do not have to go back to (Give name of the country or countries)
You stated - Afghanistan
This appears to be incorrect because:
Your Pakistani birth certificate, marriage certificate and national identity card indicates you are a citizen of Pakistan and would be able to live there with your family members. As you are a citizen of Pakistan you would not have to return to Afghanistan
At question 42 of part C of the Form 866 - Why did you leave that country?
You stated: "Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form''.
In the statement of claims dated 12 May 2011 which you lodged in support of your Protection Obligations Determination (POD) Application and referred to in your Form 886; you claimed you left Afghanistan because:
·In January 2010, you went back to Afghanistan on your own after realising living in Pakistan as an illegal refugee was no good for your family.
·There were suicide bombings happening near you in Pakistan, you felt it was very unsafe and there were no opportunities to get a job. You claim it was very difficult to look for work as you had to pay bribes to go through all the checkpoints.
·Your father finally agreed you should go back to try to start a new life in your own country. You still had family back in Afghanistan
·You started to build a house in Afghanistan so your family could join you. You cousin helped to arrange work for you with a [company].
·You stated you obtained your Taskira , Afghani ID in March 2010. This was provided to the Department.
·After three months in Afghanistan the Taliban started threatening you as they said you were helping foreigners, namely the Christians and, the Americans, and you should have been working for the holy war and Taliban cause.
·You state because you are Pashtun and a Sunni you were threatened by the Taliban for teaching English and working for an NGO company helping infidels. The Taliban fired rockets and grenades into your work premises burning it down.
·You decided to return to your family in Pakistan in 2010 with your uncle. Your uncle had contacted his family In Afghanistan and his wife advised him the Taliban was looking for you saying they would not spare you if they found you.
·After July 2010 you found work with an NGO and started receiving threats over the phone. You also received a letter delivered to your house accusing you of working for foreigners. You realised the Taliban were still watching you in Pakistan and it was no longer safe for you in Pakistan.
·You were afraid the Taliban would report you to the Pakistani police as you had no legal status to live there and would not be able to protect your family.
This appears to be incorrect because:
·Your Pakistani birth certificate, marriage certificate and national identity card indicates you are a citizen of Pakistan therefore, having a right to reside and work legally in Pakistan.
·The Taskira you provided to the Department to support your claims of being an Afghani citizen has been verified and found it is not registered and is fraudulent.
·Upon arrival in Australia [in] August 2012 you were spoken to by an Immigration officer and explained to them you had spent 50 days in Pakistan. You have voluntarily returned to Pakistan on 3 separate occasions for significant periods of time since being granted your Protection visa 20 July 2011. You did not indicate you had faced any apparent harm.
At question 43 of part C of the Fom1 866 - What do you fear may happen to you if you go back to that country?
You stated: "Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
In the statement of claims dated 12 May 2011 which you lodged in support of your Protection Obligations Determination (POD) Application and referred to in your Form 886, you stated:
·The Taliban are still very strong in Afghanistan and Pakistan, they have contracts and spies everywhere in both countries, including within the government and police. You are very much afraid of what they will do to you if you are sent back.
·The Taliban know where you live in Pakistan and that you will not stop teaching English or working for companies that work on good projects for your country and the benefit of the people.
·Your life would be in danger if you had to go back and that you would be killed. You state the Taliban would continue to try to either convert you to be like them or kill you if you resist.
This appears to be incorrect because:
·You appear to be a citizen of Pakistan and would be able to live there with your family members. Your Pakistani birth certificate, marriage certificate and national identity card confirm you are a citizen of Pakistan therefore, having a right to reside and work legally in Pakistan. As you are a citizen of Pakistan you would not have to return to Afghanistan.
·You have voluntarily returned to Pakistan on 3 separate occasions for significant periods of time since being granted your Protection visa 20 July 2011. You did not indicate you had faced any apparent harm.
At question 44 of part C of the Form 866 - Who do you think may harm/mistreat you if you go back?
You stated: "Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form ".
In the statement of claims dated 12 May 2011 which you lodged in support of your Protection Obligations Determination (POD) Application and referred to in your Form 886, you stated:
·You claim you are very afraid of the Taliban and are sure they will kill you if you return to the region, either in Afghanistan or Pakistan. You have no doubt of this and claim you would be defenceless against them.
This appears to be incorrect because:
·You have voluntarily returned to Pakistan on 3 separate occasions for significant periods of time since being granted your Protection visa 20 July 2011. When spoken to upon arriving into Australia [in] August 2012 returning from 50 days in Pakistan, you did not indicate you had faced any apparent harm whilst in Pakistan.
·You are a citizen of Pakistan and would be able to live there with your family members. As you are a citizen of Pakistan you would not have to return to Afghanistan.
At question 45 of part C of the Form 866 Why do you think this will happen to you if you go back?
You stated: "Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
In the statement of claims dated 12 May 2011 which you lodged in support of your Protection Obligations Determination (POD) Application and referred to in your Form 886, you stated:
·You are a citizen of Afghanistan and do not have the right to citizenship or a right to reside in any other country.
·You are Pashtun and a Sunni, and there are many areas in your country of, Afghanistan, where you would be persecuted. The Taliban targets all Sunnis, Pashtuns expecting you to join them, be like them, and to fight for their cause, but many of you do not want to.
·You do not believe in the Taliban cause , and on the grounds of your race, you do meet the requirements of the UN Convention as a genuine refugee because you are being persecuted for your ethnicity as a Sunni Pashtun by the Taliban.
This appears to be incorrect because:
·You have voluntarily returned to Pakistan on 3 separate occasions for significant periods of time since being granted your Protection visa 20 July 2011. When spoken to upon arriving into Australia [in] August 2012 returning from 50 days in Pakistan, you did not indicate you had faced any apparent harm whilst in Pakistan.
·Your Pakistani birth certificate, marriage certificate and national identity card indicates you are a citizen of Pakistan therefore, having a right to reside and work legally in Pakistan.
At question 46 of part C of the Form 866 - Do you think the authorities of that country can and will protect you if you go back?
You stated: ''Please refer to the POD lodged to DIAC in particular the statement of claims attached to the POD form".
In the statement of claims dated 12 May 2011 which you lodged in support of your Protection Obligations Determination (POD) Application and referred to in your Form 886, you stated:
·There are many Pashtuns and Sunnis in the government and the police are aligned with the current Taliban.
·You believe the authorities will not want to be seen to be protecting you, who is also a Pashtun and a Sunni like them. They will not care about you and would offer no protection
This appears to be incorrect because:
·You have voluntarily returned to Pakistan on 3 separate occasions for significant periods of time since being granted your Protection visa 20 July 2011. When spoken to upon arriving into Australia [in] August 2012 returning from 50 days in Pakistan, you did not Indicate you had faced any apparent harm whilst in Pakistan.
·Your Pakistani birth certificate, marriage certificate and national identity card indicates you are a citizen of Pakistan therefore, having a right to reside and work legally in Pakistan.
Therefore your visa is being considered for cancellation under section 109 of the Act.
The delegate notes in the NOICC that they considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 19, 20, 21, 22, 41, 42, 43, 44, 45 and 46 of Part C of the Form 866 in his application for a protection visa. If the applicant has failed to fill in his application form in such a way that no incorrect answered are given or provided, his visa may be cancelled.
The NOICC states that by failing to comply with s.101(b) of the Act in relation to his application for a protection visa, the applicant’s BB 155 visa is liable for cancellation under s.109 of the Act.
Response to the NOICC
The applicant responded to the NOICC through his representative on 14 December 2017. The applicant separately responded to the NOICC on 11 January 2018 and 16 January 2018. The delegate summarised the applicant’s response as follows:
·He accepts he has a Pakistani birth certificate and a Pakistani CNIC.
·He accepts his parents also have Pakistani CNICs.
·He has not misrepresented or provided incorrect information in this regard.
·Though he is technically a Pakistani citizen, he remains an Afghan migrant in Pakistan, for most purposes and is vulnerable to be sent back to Afghanistan on any policy decision to do so.
·There have been several movements initiated by the Pakistani government, military, and the general public, to send back Afghan migrants, with one such movement occurring in 2010.
·Afghan migrants in Pakistan can be distinguished by their physical features, and therefore face many difficulties with regard to employment, social status, and have fear of persecution even if they have a Pakistani birth certificate and a CNIC. They may become targets of terror groups, especially the Taliban, as they cannot find jobs and are denied basic rights such as education. Due to these reasons he said in the visa application he is an Afghan national.
·He was unaware his Afghan Taskera and driver's licence were bogus documents.
·He maintains the information in the documents is correct. He stated it is extremely difficult for an Afghan living in Pakistan to obtain a Taskera, therefore most people employ agents with connections to the interior authorities to obtain such documents. Such practices are standard, and a person is required to pay a fee to obtain the services of such agents. The visa holder stated he assumed the Taskera document to be authentic and that it was rightfully issued by the authorised body. The visa holder claimed he had no verification method to check their authenticity, but he believes them to be true, and this was represented to him by his hired agent.
·After receiving the NOICC and being made aware his Taskera and driver's licence were fraudulent, he obtained a further Afghan Taskera document, number [Number B], together with English translation, confirming he is an Afghan citizen.
The applicant submitted the following reasons why the visa should not be cancelled (as summarised by the delegate):
·He did not misrepresent information or provide incorrect information at any stage. For most aspects of life, he still remains an Afghan national living in Pakistan, regardless of the fact he has a Pakistani birth certificate and a Pakistani CNIC. He has not wilfully provided any incorrect advice or information to the Australian authorities.
·He has integrated into the Australian way of life and in his current circumstances, it would be extremely hard for him to go back to Afghanistan. He has been in Australia for six years.
·He sustained serious injuries from a motor vehicle accident in February 2017 that has left him permanently injured. He suffered head injuries and multiple vertebrae fractures, resulting in short- and long-term memory issues. He claims to still be receiving treatment for his injuries and taking ongoing pain medication. He is unable to work or "function as a normal person". He is restricted in his movement, and in his emotional and psychological capacity. He provided a copy of his Pensioner concession card from Centrelink, as evidence of his incapacity.
·He claims to have an ongoing third-party insurance claim with [an insurer] as he is permanently disabled and unable to work again.
·He provided medical evidence of a request for a spinal x-ray, dated 27 March 2019, to demonstrate he has crush fractures on two vertebrae. In addition, he provided a range of photographs of a damaged motor vehicle, an injured person (head wound and damaged ear) and a copy of a supporting letter from his General Practitioner (GP), [Doctor A], [from a named] Medical Centre [in] Queensland. The GP attested to the visa holder being a patient of the clinic, the visa holder having been involved in a motor vehicle accident in 2017, and the clinic's ongoing treatment of the visa holder's chronic pain management by prescribing doses of analgesics.
·He claimed he will not have access to treatment in his home country where medical facilities are over-burdened and treatment options are minimal.
·It was further submitted that, without financial welfare, the visa holder, his wife and their [number] children will all be destitute if his visa is cancelled.
·The visa holder states he passed his citizenship test in 2015 and is currently waiting for approval to attend the citizenship ceremony.
·In support of his NOICC response, the visa holder provided several letters of support, titled "Volunteer Work appreciation letter'' from "[Agency 1]" and three personal references from members of the community titled "Character and Community Contribution Certificate". All attested to the visa holder's maturity, his good behaviour, his involvement in community gatherings, and his willingness to assist new refugees by undertaking translation services on a volunteer basis.
·The visa holder also attached a copy of an email sent by "[Agency 2]" to the visa holder, indicating he may have supported this charity in the past.
The Department subsequently received advice from the National Identity Verification Centre of the Afghanistan Central Civil Registration Authority (ACCRA), that the new Taskera document ([Number B]) provided with the NOICC response is also bogus. ACCRA advised "the information of the Taskera is not corresponding to the PRO records".
The Department wrote to the visa holder offering him opportunity to comment on this adverse information. The delegate summarised the applicant’s response as follows:
In response, the visa holder claimed he requested a friend in Afghanistan to obtain the second Taskera for him, as he was unable to do this from Australia. A "middle-man" was engaged by the visa holder's friend to obtain the Taskera, as is the usual practice in Afghanistan. He claims to be unaware the document was bogus and maintains the information in it is correct. He assumed the document to be authentic and that it was rightfully issued by the authorised body. However, his village [is] very remote and details of people are not recorded properly, as the village does not have a proper record keeping system. To guarantee the authenticity of documents such as Taskera, one has to be physically present at the specific authorised body allowed to issue the document. He claims this is an ongoing issue for many Afghans living overseas, as well as those living in Afghanistan, who are unable to physically present themselves to the authorised body.
Department’s decision to cancel the applicant’s BB 155 visa under s.109 of the Act
The delegate proceeded to cancel the applicant’s BB 155 visa in a decision made on 2 January 2020. The Department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to give correct information in his XA 866 visa application.
The delegate’s decision record indicates that the applicant has provided incorrect information in Part C of his Form 866 Application for a Protection Visa regarding his identity and protection claims. The Department made the following findings:
(a) the correct information
Based on the above evidence, I find the correct information is the visa holder is not a citizen of Afghanistan who was residing in Pakistan as an illegal refugee but has been a citizen of Pakistan since his birth. As such, he has always had the right to lawfully reside and work in Pakistan, so did not require protection from Afghanistan as he did have to return to that country, given he could legally reside in Pakistan.
The correct information is significantly different from that provided in his answers in the Protection visa application.
(c) 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 findings of the Protection Obligations Determination stated the visa holder was subject to persecution and harm in Afghanistan due to his imputed political opinion (pro-Afghan government and pro-Western), as a result of his work as an English language teacher, and his employment with a company engaged in government contracting. His claimed threats and harm occurred whilst he was working and residing in Afghanistan for several months in 2010. The decision to grant the visa was partly based on this fact, as well as the visa holder's claim of being an Afghan citizen with limited avenues to relocate outside of his claimed home province of Kunar, due to lack of family and social networks, and with no right to lawfully reside in any other country.
The correct information - that the visa holder is not an Afghan citizen, that his father is a Pakistani citizen and that the visa holder has been a Pakistani citizen since his birth - was directly relevant to the POD delegate's assessment. Had the correct information been provided at the time of that assessment, the visa holder's claims would have been assessed against his home country of Pakistan, and the delegate would have had the opportunity to fully explore the visa holder's claims in relation to his Pakistani citizenship, his right to reside there and whether he was able to avail himself of protection by the authorities in Pakistan. This may have resulted in a different assessment of whether he was owed Australia's protection.
In not providing the correct information, the visa holder has denied the delegate this opportunity and obtained a Protection visa to which he may not have been entitled.
Pre-hearing submissions dated 18 June 2021
The applicant’s representative submitted pre-hearing submissions dated 18 June 2021.
The representative submitted that the applicant did not provide incorrect information in the manner specified by the Department and that the discretionary factors weigh strongly in favour of the applicant’s visa not being cancelled.
Invalid primary decision
The representative submitted that the primary decision is affected by jurisdictional error as the primary decision maker failed to comply with his mandatory procedural obligations under s.108 of the Act. The representative submits this is because the delegate was informed by factors which had not been the subject of a valid notification under s.107 of the Act.
The representative submits that a substantial part of the delegate’s reasoning under s.108 of the Act for concluding that the applicant had not complied with s.101 was the fact that he had provide an Afghan Taskera document numbered [Number B], which the Department concluded to be bogus based on advice provided to it by the ACCRA.
The representative submitted that the delegate could only consider Afghan Taskera [Number B] in his decision if he had first considered any written response given by the applicant in the way required by paragraph 107(1)(b). The representative submitted that the delegate could not have done so, because a notice was not issued under s.107 of the Act about the provision of Afghan Taskera [Number B], and the Department’s email dated 29 August 2019 does not meet the requirements of s.107.
The representative submitted that any evidence about the applicant’s Afghan Taskera [Number B] cannot be considered by the Tribunal in its s.108 considerations as the applicant has not been provided with the appropriate opportunity to respond under s.107.
In light of the foregoing, the representative submitted that the appropriate course of action for the Tribunal is to set aside the decision under review and substitute a decision that the applicant’s visa is not cancelled.
Invalid NOICC
The representative submitted that the NOICC dated 27 November 2017 is also defective, as it did not make clear to the applicant that he was legally required to communicate his address to the Department in response to the notice. The representative also submitted that the NOICC also inaccurately provided the applicant’s date of birth.
Was there non-compliance by the applicant?
The representative submitted that the following should be treated as agreed facts, as the delegate has not contended to the contrary in either the NOICC or cancellation decision:
·The applicant claims to have been born in [Village 1 in] Charsadda, Peshawar, Khyber Pakhtunkhwa, Pakistan on [date].
- The applicant claims his father was born in Kunar Province, Afghanistan. He claims his paternal grandparents were both also born in Afghanistan.
- The applicant claims his mother was born in Kunar Province, Afghanistan. He claims his maternal grandparents were both also born in Afghanistan.
- The applicant claims his parents left Afghanistan for Pakistan in the early 1980s during the soviet occupation of Afghanistan.
The representative submits that the above agreed facts, along with the applicant’s and his father’s evidence that neither have renounced or otherwise been deprived of their Afghan citizenship is sufficient to conclude that this review application should be decided in favour of the applicant.
The representative submitted that there is no evidence to suggest that the applicant was aware that any information he provided may have been incorrect, and that this lack of awareness must significantly or entirely reduce any moral culpability associated with any incorrect answers (if any).
Afghan citizenship law
The representative submitted that through the operation of Articles 1 and 2 of the Law of Citizenship in Afghanistan 1936 (Afghanistan), there is undisputed evidence demonstrating that both of the applicant’s parents, having been born in Afghanistan in the 1950s to Afghan parents, are Afghan citizens.
The representative submitted that because the applicant’s parents are Afghan citizens, it follows by virtue of Article 2 that the applicant also held Afghan citizenship on his birth in Pakistan.
The representative submitted that it is the applicant’s evidence that he has never taken any step to renounce his Afghan citizenship or been deprived of his Afghan citizenship in any other way.
The representative submitted that the Afghan citizenship law was amended in 1986, 2000 and after the fall of the Taliban. He submitted that the 1986 and 2000 iterations of the Afghan citizenship law contained prohibitions on dual citizenship, but it did not contain provisions to make these prohibitions apply retrospectively.
The representative submitted that this means the laws did not purport to deprive Afghan citizenship to those who already held Afghan citizenship prior to the commencement dates. The representative submits that it should be assumed that there was no intention to deprive any person of citizenship in light of the general principle under Islamic law that prohibitions should not apply retrospectively.
Pakistan citizenship law
The representative submitted that Pakistan citizenship law is governed by the Pakistan Citizenship Act 1951 (Pakistan) and that the Islamabad High Court has concluded that anybody born in Pakistan is entitled to Pakistani citizenship regardless of the status of the citizenship of their parents, except if they are refugees. The representative further submits however, that section 14 of the Pakistan citizenship law qualifies the right to citizenship by virtue of birth by prohibiting dual citizenship or nationality.
Interaction between Afghan and Pakistani citizenship law
The representative submitted that when the applicant was born in Pakistan, he held Afghan citizenship pursuant to the citizenship laws of Afghanistan, by virtue of his parents’ Afghan citizenship.
The representative submitted that the applicant may have also become a Pakistani citizen at birth, however his parents were Afghan refugees and therefore it is probable that the applicant was not lawfully eligible for Pakistani citizenship on the current judicial interpretation of section 4 of the Pakistan citizenship law.
The representative submitted that Afghanistan is not specified as “such other country” for the purposes of section 14(3) of the Pakistan citizenship law. The representative submitted that from [2004], the applicant ceased holding Pakistani citizenship, if he had ever held it, by virtue of s.14(1) of the Pakistan citizenship law, having reached 21 years of age.
The representative submitted that it is possible that at some point between 1986 and the early 2000s the applicant may have been in breach of the prohibitions against dual citizenship under relevant Afghan laws. However, the representative submitted the applicant was not automatically stripped of his Afghan citizenship as these laws did not apply retrospectively.
The representative submitted that from [2004] onwards, Afghanistan has been the only country of which the applicant was a citizen. The representative submitted that it follows that the applicant did not provide incorrect information when he listed his citizenship as being Afghanistan (and only Afghanistan) when he applied for his protection visa and that he did not hold any other citizenship.
On this basis, the representative submitted that the decision under review should be set aside and a decision substituted that [the applicant] visa is not cancelled.
Discretionary matters under s.109
The applicant’s representative submitted that the followed prescribed or policy considerations militate strongly in the applicant’s favour against visa cancellation:
·the present circumstances of [the applicant];
·non-refoulment obligations under the Refugees Convention;
·non-refoulement obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights;
·the degree of hardship and risk of harm to him as a person with disability in Pakistan; and
·the degree of hardship to his family members in Pakistan.
The representative submitted that if the Tribunal finds that there was non-compliance, it is submitted that such incorrect information was not provided intentionally. The representative submitted that this important factor should weigh heavily in the Tribunal’s decision and that the Tribunal should find that the prescribed circumstances in regulation 2.41(d) weighs in the applicant’s favour.
The representative noted that the applicant was not provided with a copy of the correspondence between the Department and ACCRA. He submitted that there may have been factual or descriptive errors in the Department’s request to ACCRA or ACCRA’s response, but this is not possible for the applicant to clarify without having seen a copy of this correspondence.
The representative also noted that the Department wrote in its reasons that based on this information it obtained a copy of the applicant’s Pakistani computerised national ID card (CNIC) number. The representative submitted that the applicant does not have information or documentation demonstrating how the Department obtained a copy of the CNIC, nor from which branch of the Pakistani government the Department corresponded with to obtain this CNIC.
Prescribed circumstances, non-refoulement obligations and the incorrect information
The representative submitted that the applicant was previously recognised as a refugee for the purposes of the Refugees Convention as he was granted a subclass 866 visa. The representative submitted that he continues to fear harm in the form of abduction, physical assaults, torture and possible death from the Taliban or other Islamic Terrorist groups in both Pakistan and Afghanistan. The representative submitted that, irrespective of whether the country of reference is Pakistan or Afghanistan, he is at risk of this harm and that non-refoulement obligations are owed. The representative submitted that it was at least partly on the above basis that the applicant applied for his protection visa.
The representative submitted that even if the 866 Delegate based its decision on the fact that the applicant was only a citizen of Afghanistan, the 866 delegate may well have reached the same conclusion if it had found that the applicant was also or only a citizen of Pakistan.
The representative submitted that in these circumstances, the Tribunal should find that the prescribed circumstances in regulation 2.41(a) & (c) weigh in the applicant’s favour.
The representative submitted that as a person with a disability, the applicant is at risk of serious harm or significant harm in either Afghanistan or Pakistan. He submitted that barriers to accessing medication, medical treatment and rehabilitation for people with disabilities, further compounded by discrimination in employment and social stigma against people with disabilities, cumulatively amounts to serious or significant harm. The representative referenced country information outlining these harms against people with disabilities in Pakistan. The representative submitted that given the applicant’s serious disability, the Tribunal should find “the present circumstances of [the applicant]” (i.e. the matter identified in regulation 2.41(e)) weigh in favour of his visa being restored.
The representative submitted that if it is accepted that non-refoulement obligations apply in the applicant’s case, it follows from visa cancellation that there is a risk of the applicant being indefinitely detained in immigration detention.
Hardship caused to the applicant’s family
The applicant’s representative referenced the applicant’s statutory declaration sworn on 18 June 2021 and his evidence in relation to the financial support he provides to his [minor] children in Pakistan.
The representative submitted that cancellation of the applicant’s visa has led to a recent cessation of his Centrelink payments in June 2021, thereby placing a barrier on his ability to financial support his children in Pakistan. The representative submitted that this in turn may affect the ability of relatives caring for his children to pay for basic needs of the children, such as medicine, medical care and schooling.
Summary of the representative’s position on discretionary matters
The representative submitted that the discretionary matters in regulation 2.41 should be applied as follows:
a.the correct information: The correct information was not deliberately withheld. It follows that no moral opprobrium should be attached to [the applicant’s] actions. This factor should therefore be given weight in [his] favour.
b.the content of the genuine document (if any): The primary decision maker found that this matter was not relevant. The Tribunal should do the same.
c.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: If the decision to grant the visa was made partly because of incorrect information it is likely that the same decision would have been reached in any event. [The applicant] conducted his 866 application on the basis that he would be harmed whether returned to Pakistan or Afghanistan. This factor should therefore be given considerable weight in [the applicant] favour.
d.the circumstances in which the non-compliance occurred: See paragraph (a) above.
e.the present circumstances of the visa holder: [the applicant] has regrettably been involved in a serious and life altering car accident. He suffers from serious physical and mental health issues. This factor should be given considerable weight in [the applicant’s] favour.
f.the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act: In response to the NOICC [the applicant] provided a Taskera which the Department found to be non-genuine. This Taskera was obtained through agents acting on his behalf and [the applicant] had no way of knowing with certainty whether it was genuine. The document was not provided with any intention to mislead. This factor should be given neutral weight.
g.any other instances of non-compliance by the visa holder known to the Minister: The primary decision maker found that this matter should be considered in [the applicant’s] favour. The Tribunal should do the same.
h.the time that has elapsed since the non-compliance: The primary decision maker found that this matter should be considered in [the applicant’s] favour. The Tribunal should do the same.
i.any breaches of the law since the non-compliance and the seriousness of those breaches: The primary decision maker found that this matter should be considered in [the applicant’s] favour. The Tribunal should do the same.
j.any contribution made by the holder to the community: The primary decision maker found that this matter should be considered in [the applicant’s] favour. The Tribunal should do the same.
The representative submitted that the regulation policy matters should be applied as follows:
a.Consequential cancellations: Not applicable.
b.Breach of international obligations: Australia would be in breach of its international obligations if it were to remove [the applicant] from Australia as a consequence of this cancellation. This factor should be given weight in [the applicant’s] favour.
c.Other legal consequences: Given the international obligations Australia has in respect of [the applicant], a cancellation decision may have the consequence that he will be indefinitely detained. The primary decision maker found that this matter should be considered in [the applicant] favour. The Tribunal should do the same.
Applicant’s statutory declaration sworn on 18 June 2021
The applicant provided a statutory declaration sworn on 18 June 2021.
Afghan citizenship
The applicant claims he was born in Pakistan. He claims his father, both of his father’s parents, his mother and both of his mother’s parents were born in Afghanistan.
The applicant claims that prior to leaving Afghanistan for Pakistan in 1980, his parents had lived all of their lives in Afghanistan. He claims his parents left Afghanistan at the same time in 1980 during the soviet occupation of Afghanistan, because there was a lot of fighting at the time and no work.
The applicant claims he was granted identity documents in Pakistan because his father had been granted identity documents before him. He claims to not know whether the process his father followed in obtaining Pakistani identity documents was the correct legal process.
The applicant claims he has never done anything to renounce citizenship of Afghanistan. He claims he does not think the Afghan government has done anything to cancel his or his parent’s Afghan citizenship. He claims to believe neither his father nor mother have done anything to renounce citizenship of Afghanistan.
The applicant claims he intends to travel to the Afghan embassy in Canberra to obtain a document to confirm his Afghan citizenship, however his Centrelink payment has been cancelled and he cannot work due to his medical conditions.
Protection claims
The applicant claims to continue to fear being killed by the Taliban if he is returned to Pakistan or Afghanistan, because he has been threatened and wanted by them in 2010. He claims that if he was returned from Australia, he would be at risk of kidnapping because he would be seen as a rich person. He claims the Taliban and other groups think that people who live in the west should be killed. He claims he would be unable to protect himself from these risks because of his disabilities.
Medical conditions
The applicant claims he sustained serious injuries from a motor vehicle accident in February 2017 where part of his brain was exposed, [and he suffered specified injuries]. He claims to be permanently disabled and permanently unable to work. He claims that because of this accident, he is required to wear a brace and he can only remain in one position for approximately 20 minutes. He claims his doctor has said he needs to use a wheelchair if he needs to walk more than 100 metres.
The applicant claims that since his motor vehicle accident, his memory has been affected very badly by brain injuries. He claims his memory is also affected by his mental illnesses and the strong medication he needs to take for chronic [pain] management.
The applicant claims he has an ongoing requirement to take prescription drugs for chronic spinal cord management. He claims to have depression, post-traumatic stress disorder and anxiety. He claims to be restricted in his movement and in his emotional and psychological capacity.
The application claims the medication he takes is [drugs, amounts and reasons].
The applicant claims he has a caseworker at [name], a not-for-profit organisation whose purpose is to help people with disabilities find a job. He claims his caseworker said all the jobs they have are physical and that they could not let him do the work.
The applicant claims that in the future, he would like to apply to undertake the New Enterprise Incentive Scheme program to obtain assistance with starting a business. He claims to hope to be able to one day find work in Australia using his brain and be his own boss.
The applicant claims he applied to the NDIS for funding for disability support and services. He claims the NDIS have approved his case, but it is currently on hold as NDIS are waiting for his permanent visa to be restored or to be granted Australian citizenship.
The applicant claims that when he travelled back to Pakistan in 2018 after his accident, he took all of his medication from Australia with him. He claims to believe his medications may be available in Pakistan, but he would not be able to afford them. He claims there are other opioids available in Pakistan and Afghanistan, but they are expensive. He claims that even if he managed to get access to the medication, they are illegal and he is worried about developing an addiction.
Family and financial situation
The applicant claims to be married with [number] children, who all live in Pakistan. The youngest child is [age] years old and his eldest child is [age] years old. He claims he last travelled to Pakistan in 2018 to visit his wife and children.
The applicant claims he and his wife separated in April 2020. He claims his wife is now living in her father’s house with his youngest child. He claims the rest of his children live with his [Relative A]. He claims his [Relative A] is married to a farmer and they have [number of children] to provide for. The applicant claims before he separated from his wife, his wife and youngest child also lived with his [Relative A].
The applicant claims he used to send [amount range] a month to his [Relative A] through [named money transfer services]. He claims to have sent more than this when his wife and youngest child lived with his [Relative A].
The applicant claims his family in Pakistan are financially reliant on him and will become destitute if his visa is cancelled. He claims there is no financial welfare system in Pakistan to help him and his family. He claims that if he were returned to Pakistan or Afghanistan, he would not be able to work because of his injury and he would therefore not be able to feed himself or his family.
The applicant claims his wife and children have supported themselves through his payments of [amount range] per month.
The applicant claims the payments he used to send to his family in Pakistan are subsidised by his friend, Afghan community members and Centrelink payments.
The applicant claims his Centrelink payments were cancelled in early June 2021 as his visa had been cancelled. He claims Centrelink told him that he will need to repay a debt of around $20,000. He claims that before his Centrelink payments were cancelled, he received approximately $600 to $700 per fortnight. He claims to have also been issued a Centrelink pensioner card.
The applicant claims to receive financial help from a close friend and other members of the Afghan community. He claims his close friend is totally blind and the amount of help he provides varies from [amount range] a week. He claimed he helped his friend set up a company in its early states. He claims he was in a serious motor vehicle accident in February 2017 when he was going to [a named town] to inspect [equipment] for his company. He claims he ordered [equipment details deleted].
The applicant claims his friend started another business as [a service] provider by himself. He claims to have helped his friend organise all of the paperwork for his company with the [government agency].
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms (visa application). The relevant protection visa was granted to the applicant on 20 July 2011;
·The applicant’s identity documents being a copy of his Afghan taskeras, Afghan driver licence, Pakistani marriage certificate, Pakistani birth certificate and Australian pensioner concession card;
·The Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 dated 27 November 2017 (NOICC);
·The Record of Decision of Whether to Cancel under Section 109 of the Migration Act 1958 dated 2 January 2020 (the delegate’s decision record);
·The application for review dated 9 January 2020, which did include a copy of the delegate’s decision record;
·All documents contained in Department file [number] concerning the cancellation of his BB 155 visa, including the following:
oextract of the overview page of [a Pakistan Government] Department’s website;
oinformation about [a named] Program in Pakistan;
oPakistani passports issued to his wife and [children];
ostatement of claim dated 12 May 2011;
oresponse to a Departmental invitation to comment dated 11 September 2019 and all attachments, including written submissions from his representative dated 11 September 2019, a medical letter, a statement from the applicant in relation to his physical injuries and medical treatment requirements, evidence of donations made to [Agency 2], evidence of his support of [a named NGO], x-rays of his spine, support letter and photographs from his car accident; and
oresponses to the NOICC dated 14 December 2017, 11 January 2018 and 16 January 2018.
·All documents submitted to the Tribunal in support of the applicant’s application for review, including:
opre-hearing submissions from his representative dated 18 June 2021;
oa statutory declaration from the applicant sworn on 18 June 2021;
oa medical letter from [Doctor A] from the [named] Medical Centre dated 17 November 2020;
oreport from the [a health] Centre dated 6 August 2020;
opost-hearing submissions from his representative dated 25 June 2021;
oa journal article entitled, ‘Adequacy of Pain Control in Patients With Advanced Cancer in Pakistan’, published in the Journal of Palliative Care in 2019;
oa medical letter from [a specified doctor] dated 24 June 2021;
oa statement from the applicant dated 25 June 2021; and
oa character reference from a friend and previous employer, [named] dated 24 June 2021.
·Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 23 June 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Afghanistan, published on 27 June 2019 (DFAT Report on Afghanistan) and DFAT’s most recent Country Information Report on Pakistan, published on 20 February 2019 (DFAT Report on Pakistan).
Hearing:
The Tribunal conducted an in-person hearing on 23 June 2021. The applicant attended the hearing with his representative. The hearing was conducted with the assistance of an interpreter in the Pashto (Afghanistan) and English languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Home Affairs (the Department) to cancel his BB 155 visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had provided incorrect information in his application for a protection visa. As a result of this, the applicant was served with a NOICC of his BB 155 visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his identity and his protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a Class XA, Subclass 866 (Protection) visa on 20 July 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and his representative that the Tribunal might take the applicant’s claims for protection in his protection visa application lodged with the Department of Home Affairs on 19 July 2011 as having been read.
The Tribunal adjourned the hearing on 23 June 2021 and provided notice to the applicant and his representative that the hearing may be resumed on 28 June 2021 and that notification would be provided to the parties by 25 June 2021. The parties agreed to the shortened notification period.
The Tribunal scheduled a further in-person hearing on 28 June 2021. On 25 June 2021, the Tribunal received and granted a hearing postponement request in relation to the hearing to be held on 28 June 2021. The Tribunal postponed the hearing to 30 June 2021.
The Tribunal hearing to be held on 30 June 2021 was postponed to 12 July 2021 due to the COVID-19 pandemic-related lockdown in Brisbane.
Section 375A Certificate
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.375A of the Act. The first Certificate was issued on 20 January 2020. The first Certificate was subsequently revoked by the Department as it was not signed by the delegate and re-issued on 8 June 2021 (second Certificate).
The second Certificate states that disclosure of folios 1-5, 26-34, 35-43, 133-136 and 213-219 of Department file [number] to the review applicant would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would be likely to prejudice the effective use of those methods.
The Tribunal noted that it had provided to the applicant and his representative a copy of the second Certificate prior to the hearing and they both confirmed having received it.
The Tribunal considered the validity of the Certificate.
100. The applicant’s representative provided submissions in relation to the validity of the first and second Certificates in his pre-hearing submissions of 18 June 2021.
101. The representative submitted that the second Certificate is wholly invalid, as the delegate unlawfully acted under the dictation of the Tribunal and the issue of the certificate was beyond power. The representative further submitted that the Tribunal lacked power to invite the delegate to re-issue the certificate and therefore the document purportedly issued in response must be considered invalid.
102. The representative submitted that the first Certificate is also wholly invalid, because the delegate failed to sign it.
103. The representative further submitted that should the Tribunal find that the Certificates are not wholly invalid, they are at least partially invalid. The representative submits that the Certificate purports to prevent the disclosure of 30 pages of material which contains information that would reveal methods for preventing, detecting and investigating breaches or evasions of the law, which would be likely to prejudice the effective use of those methods.
104. The representative submits that it seems highly improbable that the entirety of each page covered would reveal such methods used by the Department. The representative submits that to the extent that the pages covered merely contain original documents provided for examination, factual information or conclusions reached, the Tribunal should find that the Certificate does not validly apply to those sections and the information should be released.
105. The Tribunal acknowledged that the first Certificate had been revoked and that the representative was only aware of its presence by reason that he had requested, and obtained, a copy of the Tribunal file prior to the hearing. The first Certificate had not been provided to the applicant in accordance with the Act.
106. In relation to the second Certificate, the Tribunal considered the representative’s submissions. The Tribunal did not accept the submission. The Tribunal determined that it did not exceed its powers by contacting the department about reissuing the certificate. The Tribunal noted that s.349(1) of the Act gives to the Tribunal all of the powers and discretions that are conferred by the Act on the person who made the decision. The Tribunal also maintains all of its general information gathering powers.
107. Accordingly, the Tribunal determines that the certificate is valid. The Tribunal is satisfied that in weighing the public interest aspects against the interest of the applicant being provided natural justice, the relevant information from these folios which is relevant to the decision had already been disclosed to the applicant in the delegate’s decision record. The Tribunal considers there are compelling public interest reasons for not disclosing the information in the folios, and the applicant’s interest of having access to the documents does not outweigh the potential harm to the public interest in the event the documents are disclosed.
Conclusion on non-compliance
108. 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.
109. Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004)
110. In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
111. The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. [6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
112. This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
113. In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
114. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the applicant had provided an incorrect statement that he was a national of Afghanistan and the particulars relied upon the applicant’s claim that he was an Afghan and the examples and incidents of discrimination he had experienced as a consequence of being an Afghan.
115. The Tribunal considered the submission made by the representative in relation to the application of the local citizenship laws of Pakistan and Afghanistan. In discussing it with the representative, it advised the representative that it was an impressive submission and the principles behind it were compelling. However, the Tribunal noted that there was a significant part missing, and that was the evidence of the parents’ nationality to support the contention.
116. The Tribunal noted that the father of the applicant had been advised as a witness for the hearing. The Tribunal also noted that a statement from the applicant’s father in relation to his intended evidence had not been provided by reason that the applicant was too ill to obtain it.
117. Before discussing the submission further, the representative advised the Tribunal that the applicant wished to make a statement.
118. The applicant asked the Tribunal to consider the discretionary circumstances as the priority, more so than the issue of incorrect information. He then explained that he wished to make changes to his statement.
119. The applicant stated that he was a member of the Pashtun community. He added that the younger generation have different ideologies. He stated that he considered himself as an Afghan.
120. But then the applicant went on to explain that his parents were in fact born in Pakistan, which was contrary to his earlier statements, and contrary to the foundation upon which the representative had made his submissions. The applicant explained that his parents were born in that part of Pakistan that had originally been considered to be Afghanistan. The Tribunal confirmed their dates of birth and also confirmed that the date of Pakistan’s independence was 1947. The Tribunal confirmed that Pakistan’s date of independence pre-dated the birth of his parents in the 1950’s.
121. The Tribunal noted the applicant’s claim, made as recently as 18 June 2021, in his statement, wherein he stated:
The applicant claims that prior to leaving Afghanistan for Pakistan in 1980, his parents had lived all of their lives in Afghanistan. He claims his parents left Afghanistan at the same time in 1980 during the soviet occupation of Afghanistan, because there was a lot of fighting at the time and no work.
122. The Tribunal confirmed again that his parents were in fact born in Pakistan.
123. The Tribunal then confirmed with the representative and the applicant that in fact the findings of the delegate were correct and that the information contained in the protection visa application was incorrect.
124. The applicant and representative accept that the applicant provided incorrect information in his Protection Visa application and further accepts that there is non-compliance with s.101(b) of the Act as identified by the delegate in the NOICC.
125. The applicant states that he is remorseful and apologetic to the Government of Australia.
126. Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that he did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
Should the visa be cancelled?
127. 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).
128. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
· the content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
129. 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 Procedural 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.
130. The Tribunal also gave consideration to the Departmental PAM 3 Guidelines, including such matters:
·whether there would be consequential cancellations under s.140;
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28];
·whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations;
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening;
·any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The correct information.
131. The applicant claimed in his Protection visa application that he was a national of Afghanistan and was living in Pakistan as an illegal refugee. The applicant claimed that prior to leaving Afghanistan for Pakistan in 1980, his parents had lived all of their lives in Afghanistan. He claimed his parents left Afghanistan at the same time in 1980 during the soviet occupation of Afghanistan, because there was a lot of fighting at the time and no work. He claimed he was at risk of harm from the Taliban for working for a foreign company and teaching the Afghani locals English. He claimed that if he returned to Afghanistan or Pakistan, the Taliban would expect him to be part of their power struggle for supremacy because the applicant is a Sunni and a Pashtun.
132. The correct information is that the applicant is a Pakistani national and has been a Pakistani citizen since his birth. The applicant would have access to the benefits and rights accruing to Pakistani citizenship, including the right to reside and work in Pakistan. The correct information is that the applicant does not require protection from Afghanistan as he can return to Pakistan and legally reside in Pakistan.
133. The correct information is that the applicant departed Pakistan using his own validly issued Pakistani passport.
The content of the genuine document (if any)
134. The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document.
135. The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
136. As has been explained in the delegate’s decision, the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.
137. The decision to grant the applicant his protection visa was based on the applicant’s claim that he was subject to persecution and harm in Afghanistan due to his imputed political opinion (pro-Afghan government and pro-Western), as a result of his work as an English language teacher, and his employment with a company engaged in government contracting. His claimed threats and harm occurred whilst he was working and residing in Afghanistan for several months in 2010. The decision to grant the visa was partly based on this fact, as well as the visa holder's claim of being an Afghan citizen with limited avenues to relocate outside of his claimed home province of Kunar, due to lack of family and social networks, and with no right to lawfully reside in any other country.
138. The correct information is that the visa holder is not an Afghan citizen, that his father is a Pakistani citizen and that the visa holder has been a Pakistani citizen since his birth, was directly relevant to the assessment of his entitlement to a protection visa. Had the correct information been provided at the time of that assessment, the visa holder's claims would have been assessed against his home country of Pakistan, and the delegate would have had the opportunity to fully explore the visa holder's claims in relation to his Pakistani citizenship, his right to reside there and whether he was able to avail himself of protection by the authorities in Pakistan. This may have resulted in a different assessment of whether he was owed Australia's protection.
139. In not providing the correct information, the visa holder has denied the delegate this opportunity and obtained a Protection visa to which he may not have been entitled.
140. The representative, in his submission, has argued that notwithstanding the incorrect information provided, the Tribunal should find that the applicant is owed protection in any event. The representative submits that the Pakistani Taliban were an extremely powerful force, particularly in the applicant’s home region. He submits that persons like the applicant, from the Pashtun ethnic group and with associations to NGO’s faced a real chance of serious harm on that basis.
141. As the delegate made a determination against the country Afghanistan, being the country from which the applicant claimed to fear harm, when making the decision to grant a visa, these claims could not have been considered by the delegate.
The circumstances in which the non-compliance occurred.
142. The representative explained the circumstances by which the applicant came to make the claims he did. The Tribunal notes the non-compliance occurred 10 years ago in 2011.
143. The Tribunal also notes the statement of the applicant wherein he states that he feels he has an enduring connection to Afghanistan as a Pashtun man.
144. The Tribunal has considered that explanation, and is satisfied that the applicant acted of his own free will in claiming and maintaining that he was Afghani. He restated the same position only days before the hearing in his statement of 18 June 2021. Furthermore, he was an adult at the time of making his application for a protection visa. He formed the view that to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa. He perpetuated that lie right up to the time of the hearing.
The present circumstances of the applicant.
145. The Tribunal noted the representative’s submission that the applicant suffers from significant medical conditions, being both physical and mental disabilities. He is heavily medicated for both. He is a harm risk.
146. The representative also submitted that the applicant has an established healthcare network in Australia which allows his conditions to be monitored and remain stable.
187. It is submitted that academic literature shows that in Pakistan, prescription of pain medication is only permitted through…. hospitals….and [that]…..opioid medications are very seldom prescribed.[15]
[15] Benefits and risks of pharmaceutical opioids: Essential treatment and diverted medication A global review of availability, extra-medical use, injection and the association with HIV. Accessed online at: Furthermore, it is submitted, that even if the applicant could find a doctor willing to prescribe the medications he requires, he would likely be unable to afford the cost of such medications as he would be unable to gain paid employment in Pakistan on account of his disabilities.
189. It is suggested that the applicant may then seek to access illegal drugs to control the pain he will inevitably suffer as a result of his injuries. Illegal drugs, such as heroin, are increasingly prevalent in Pakistan and it is submitted that the use of such drugs carry a high risk of addiction, infection, overdose and death.
190. The evidence before the Tribunal indicates that the applicant, whilst resident in Queensland was involved in a car accident in [a named town], in February 2017, the consequences of which led to life changing injuries. He suffered a fracture of the T3 and T4 vertebras, a spinal cord fracture and also a skull fracture which exposed parts of his brain. The evidence indicates that the accident occurred whilst he was doing his employer a favour in checking out [equipment] the business was considering acquiring. The evidence further indicates that as a result of the combination of those injuries the applicant since the time of the accident has not been able to return to work. The evidence further indicates that as a consequence of the accident, his physical injuries and his inability to work, the applicant suffers with serious mental health issues predominantly major depression and is under the treatment of a consultant psychiatrist and takes antidepressant medications. This is in addition to the strong pain killing medications he takes for his physical disabilities. It is noted from the medical reports that the applicant is required to wear a body brace and to use a wheelchair if he is required to move more than 100 metres.
191. The applicant submits that he will be unable to gain employment in Pakistan due to his medical conditions. However, he states that his previous employer (in the [specified] business) will offer him employment suitable to his condition.
192. The Tribunal considered country information it had obtained in relation to Pakistan’s healthcare system as follows:
Basic health care in Pakistan is free, but limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility.[16]
[16] Australian Department of Foreign Affairs and Trade, ‘Country Information Report: Pakistan’ (20 February 2019), [2.22]
Health care is free for Pakistani citizens but public facilities are of a poor quality. Public spending on health is low.[17] Private facilities provide better care than public facilities, but are inaccessible to those without means to pay, while some charities and religious groups also provide healthcare within their own communities.[18] In tribal areas, the support of a clan may be necessary to access healthcare as referrals and treatment may be organised in local communities rather than by medical administrators or doctors.[19] Family support is critical during hospitalisation because care is very basic.[20] Families were more likely to seek medical assistance for boys than for girls, despite them having equal access to government facilities.[21]
[17] ‘BTI 2020 Country Report - Pakistan', Bertelsmann Stiftung, 29 April 2020, p.16, 20200430152048
[18] ‘DFAT Country Information Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, s.2.28, 20190220093409
[19] 'Austrian Federal Office for Immigration and Asylum Fact Finding Mission Report Pakistan', Government of Austria, September 2015, p.42, CISEC96CF15310; 'Country Policy and Information Note - Pakistan: Medical and healthcare provisions', United Kingdom Home Office, September 2020, 20201012173511
[20] 'Austrian Federal Office for Immigration and Asylum Fact Finding Mission Report Pakistan', Government of Austria, September 2015, p.62, CISEC96CF15310
[21] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p.40, 20200312102402
193. The Tribunal has considered the representative’s submission of 18 June 2021 and country information referred to therein as follows:
Discrimination and Adverse treatment
83. Social stigma against disability in Pakistan leads to discrimination against people with disabilities. The British Council reports that, ‘Individuals and families are reluctant to admit disability. Disability is a stigma in Pakistan and culture norms are a hindrance to [inclusion]… In the deeply conservative circles of Pakistani society a person who is born with or develops a disability may be perceived as suffering from an affliction from God. The family can often retreat into a state of shame, fearing that they have been punished for some misdeed or placed in adversity as a test of their faith.’…There is an unwillingness to recognise disability… “We only think a person is disabled when he or she is not economically productive.”.[22]
[22] British Council, Moving From the Margin: Mainstreaming Persons with Disabilities in Pakistan (August 2014) at p13.
84. The Asylum Research Centre, citing a newspaper article by Dawn, notes that ‘in Pakistan, Persons with Disabilities still have difficulty exercising their civil and political rights, attending quality schools, and finding gainful employment, among other activities… They [persons with disabilities] face barriers to participation in society, such as access to healthcare facilities, education, information and communication, transportation services, employment opportunities as well as development and humanitarian programmes and funds… Persons with Disabilities also face enhanced risk to the effects of climate change, such as natural disasters and food insecurity; they are also more vulnerable in situations of conflict. In the past decade, Pakistan unfortunately has continuously faced both natural and complex humanitarian situations.’[23]
[23] Asylum Research Centre, Pakistan: Country Report (18 June 2018) at p. 290.
85. In relation to discrimination in employment and obtaining employment against people with disabilities, the British Council states, ‘Persons with disabilities face many barriers to entering employment. First, there are negative attitudes towards hiring persons with disabilities, with employers failing to see their talent and value in the workplace. In Pakistan, the stigma is compounded by the fact that for many the only image of a person with disability is that of a destitute street beggar. And if and when that stigma is overcome, for persons with visual, hearing or physical impairments there are infrastructure barriers to accessing work: getting to work (quality of roads and transport networks), moving around the workplace (ramps, accessible restrooms etc.) and carrying out the work (with the help of technology).’[24]
[24] British Council, Moving From the Margin: Mainstreaming Persons with Disabilities in Pakistan (August 2014) at p43.
Access to Service and Healthcare
86. A review of the research by Venkata S. Murthy Gudlavalleti on challenges in accessing health care for people with disabilities in South East Asia states, ‘In Pakistan, PWD with physical impairments reported significant physical barriers, due to the built environments, in accessing health services. These included transportation, and outdoor and indoor environments in which health services are delivered, including buildings, waiting areas, washrooms, examination tables, beds etc.’
87. The British Council notes, ‘In Pakistan, accessibility and quality of healthcare services are largely determined by an individual’s socio-economic and geographical conditions. Persons with disabilities in rural areas and without the financial means to pay for disability-related services, which are often required on a long-term basis, are not protected by the law to receive state-funded disability-related quality services. Since the prevalence of disability is higher in rural communities, a significant demand for service delivery remains unmet. Government healthcare policies demonstrate a gap in recognising the general or disability-related healthcare needs of persons with disabilities.’[25]
[25] British Council, Moving From the Margin: Mainstreaming Persons with Disabilities in Pakistan (August 2014) at p.14.
88. A newspaper, The Express Tribune, noted that ‘seven million persons with disabilities do not have access to wheelchairs in Pakistan and are therefore forced to remain within the confines their homes… Rehman said in a country like Pakistan, when a person with a disability is born, the entire family becomes disabled, as they are often discriminated against. “Before I was born my family was a ‘non-disabled’ family. The day I was born my family became disabled,” he said.’[26]
[26] The Express Tribune, Give Us Our Rights, Says Persons with Disabilities (3 December 2017)
89. Austrian Red Cross, citing another article by the Express Tribune, noted that ‘Mentally and physically disabled people in Pakistan lack proper rehabilitation centres… there are neither adequate number of qualified physicians nor centres for their rehabilitation to make them active members of society, who could lead their lives on their own.’[27]
[27] Austrian Red Cross, Country of Information on Pakistan (Aug 2016) p. 241.
90. The review by Murthy Gudlavalleti notes, ‘In Pakistan, PWD had poor access to reproductive health care services and insufficient knowledge of preventive measures for tuberculosis, hepatitis, and HIV/AIDS.’[28]
[28] Venkata S. Murthy Gudlavalleti, Challenges in Accessing Health Care for People with Disability in the South Asian Context: A Review, International Journal of Environmental Research and Public Health, published 26 October 2018, p. 5.
194. The Tribunal notes that the applicant’s parents now reside in [Country 2]. His wife resides with her father in Pakistan as she could no longer support an independent household. The applicant has supported his family in Pakistan by remitting money from Australia. His Centrelink benefits ceased in June 2021 as a consequence of the cancellation of his visa. What money he has since remitted has come from gifts from friends and supporters.
195. During the extended passage of time since the initial grant of permanent residence, the applicant as noted has established a life in Australia, he has worked continuously. However the applicant’s ability to work has been curtailed as a result of his car accident in February 2017 in which the applicant suffered a number of debilitating physical and mental injuries which have inhibited his return to work to date. The applicant has been undergoing extensive physical therapy and rehabilitation in an attempt to return to work. The evidence indicates that the applicant suffers with chronic pain and this has to be managed as required with strong analgesics. This pain, together with the uncertainty of residency status, which is compounded by the fact that the applicant is ineligible for any Commonwealth assistance due to the fact that he is an unlawful non-citizen as a result of the cancellation of his substantive visa, only serves to amplify his mental health illness. He is recorded as having attempted self-harm.
196. The evidence before the Tribunal indicates that the applicant suffers with a major mental illness, namely PTSD and a major depression and that he is under the care and control of a psychiatrist for this condition and is on antidepressant medication. The evidence indicates that the applicant’s depression stems from the accident that occurred in February 2017 and its impact on the applicant’s life and has been further exacerbated by the cancellation of the applicant’s visa.
Conclusion
197. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa, notwithstanding his present apology and remorse.
198. The Tribunal is satisfied that as a Pakistani citizen, the applicant would have access to the benefits and rights accruing to Pakistani citizenship on his return.
199. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[29]
[29] DFAT Report, paragraph 5.29 – 5.31
200. However, the Tribunal notes that the applicant has resided in Australia for around ten years and this is a substantial period of time. It also notes that the applicant has made connections with the community and speaks excellent English and has, until the time of his accident, maintained employment.
201. The evidence provided to the Tribunal indicates that the applicant has as a consequence of the accident has been able to avail himself of the expertise provided by the Australian medical profession and that the care and support that would be available to the applicant in Pakistan would be substantially inferior. The Tribunal finds that the lack of adequate medical treatment that would be available to the applicant is a relevant factor in its consideration as to whether the applicant’s visa should be cancelled.
202. The Tribunal discussed with the applicant the difficulty of its decision. On the one hand, the applicant, by lying in his protection claims, has obtained the benefit of a protection visa to which he may not have otherwise been entitled. By obtaining that visa, it has now put him in a preferred position to that of a person who was honest in his claims and failed to attain a protection visa, because the cancellation process enables an applicant to plead grounds to a delegate or Tribunal that might appeal to a discretion the decision maker has, that the decision maker does not have when considering whether to grant or refuse a protection visa.
203. The Tribunal explained that this imbalance weighs heavily on the Tribunal’s mind.
204. However, after very careful consideration, and weighing all of the discretionary issues the Tribunal is obliged to consider, the Tribunal finds that the cumulative effect of the evidence pertaining to the applicant’s accident and its effects on his life outweigh factors in favour of cancelling the applicant’s visa.
205. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
206. 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.
Michael Hawkins AM
MemberATTACHMENT – 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
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