2000639 (Migration)

2000639 (Migration) [2021] AATA 5156 (15 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2000639

MEMBER:Kate Millar
DATE:15 December 2021
PLACE OF DECISION: Adelaide
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 15 December 2021 at 10:34am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – bogus documents – parents deceased – family composition – Pakistan citizenship – DNA testing – non-refoulement obligations – Hazaras in Pakistan – best interests of the child – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007, s 12
Australian Constitution, s 44
Australian Passports Act 2005
Commonwealth Electoral Act 1928
Migration Act 1958, ss 5(1), 36, 48, 97-105, 107-109, 140, 189, 197, 198, 359
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, Schedule 2, cl 309.311; rr 1.12, 2.12, 2.41
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
COT15 v Minister for Immigration and Border Protection [2015] FCACA 190
MIAC v Khadgi (2010) 190 FCR 248
Minister for Immigration, Citizenship and Multicultural Affairs v FAK19 [2021] FCAFC 153
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] came to Australia [in] April 2010 as a dependent of her sister [Sister A]. In coming to Australia, she claimed she was an Afghani citizen living in Pakistan, having fled to Pakistan from Afghanistan in 2003. She claimed both her parents were deceased and that she was dependent on her sister. She also claimed that she only had one sister and one brother.
[The applicant] was granted a Partner (Provisional) visa on 31 January 2010 on the basis that she was a member of [Sister A’s] family unit, and later granted a Partner (Migrant) visa.
On leaving and re-entering Australia in 2017, [the applicant] was granted a Subclass 155 (Five Year Resident Return) visa.
On 2 January 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled her Subclass 155 visa on the basis she had provided incorrect information in her visa application. The delegate found [the applicant] was a citizen of Pakistan and not Afghanistan, her parents were living, she had two brothers that were not declared in her visa application, and that she had also provided incorrect information that she had lived in Afghanistan until 2003.
[The applicant] has applied for a review of this decision. In reviewing the decision, the Tribunal must decide whether a ground to cancel [the applicant’s] visa exists, and if so whether her visa should be cancelled.
[The applicant] appeared before the Tribunal on 7 June 2021 to give evidence and present arguments and was represented in relation to the review by her registered migration agent. The Tribunal also received oral evidence from [Sister A]. The Tribunal was assisted by an interpreter in the Hazaragi and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CERTIFICATE ISSUED UNDER SECTION 375A OF THE ACT
The Department file contained a certificate issued under s 375A of the Migration Act 1958 (the Act). A certificate that is validly issued under this section requires the Tribunal not to disclose the document or information that is the subject of the certificate to any person other than a member of the Tribunal.
To be valid, the certificate must specify a public interest reason for non-disclosure, the information must meet the description of being against the public interest to disclose and the certificate must be signed.
The Tribunal wrote to [the applicant] through her representative on 6 January 2021 attaching a copy of the certificate and inviting any comments on the validity of the certificate. In response, the representative submitted she was unable to comment on whether non-disclosure was in the public interest without access to the information. She urged the Tribunal to comply with its obligation under s 359A and s 359AA of the Act.
The certificate specifies that folios 14–197, 241–246 and 267–272 may disclose the Department’s lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of these measures. The Tribunal has considered these folios and considered they meet the description of being against the public interest to disclose. The Tribunal further considered folios 238–240 and considers these may enable the identity of a confidential source of information to be ascertained.
The Tribunal is satisfied that the certificate specifies a public interest reason for non-disclosure of the information, and that the documents specified are consistent with that reason. The certificate is signed and dated and identifies the documents to which it applies. As a result, the Tribunal considers the certificate validly issued under s 375A of the Act.
The Tribunal notes that some information has been disclosed in general terms in the decision of the delegate and has relied on this information in this decision.
THE HEARING
The Tribunal wrote to [the applicant] before the hearing and asked her brother, [Brother A] to attend the hearing. Mr Ali declined to attend the hearing and said he would appear by telephone. As identity is in issue in this matter, the Tribunal requested that he provide photo identification and attend by Microsoft Teams. He declined to attend. [Sister A] said he is the only butcher in a big supermarket and because the other butcher was sick, he could not attend.
[Brother A] did not provide photo identification and did not attend by Microsoft Teams. The Tribunal was not content to hear from him by telephone.
EVIDENCE OF [THE APPLICANT]
In opening it was stated that [the applicant] had significant learning or memory problems, and a report from a psychologist would be available three days after the hearing. This was of some concern to the Tribunal as the decision was made 18 months ago, and [the applicant] was aware this matter has been under active consideration by the Tribunal for six months. The matter was previously adjourned for a period of two months at the request of her representative. [The applicant] said she first saw the psychologist who prepared a new report for the Tribunal six weeks before the hearing.
Prior to the hearing, [the applicant] provided a letter from her general practitioner dated 15 October 2020 stating she has [a] baby, and her husband is in Pakistan. It states she is finding it difficult to look after her daughter without the support of her husband, and requests consideration of her husband’s visa.
A letter dated 29 September 2020 from a clinical psychologist [states] she has had two sessions and has reported anxious and depressive symptoms and stressors including obsessive/compulsive symptoms, sad mood, anxiety, confusion and forgetfulness and a lack of focus, financial stress, social isolation and adjustment issues (culture shock).
A further letter dated 24 May 2021 from a general practitioner, addressed to the Department of Immigration states [the applicant] has [specified medical conditions]. It is stated she has obsessive compulsive disorder and a longstanding history of mental health problems.
The psychology report provided after the hearing is from a registered psychologist. This type of registration can be distinguished from clinical psychologists who are trained in the assessment and diagnosis of mental illness.[1] The report states [the applicant] has impaired cognitive function but does not list any specific testing of her cognitive function, instead administering tests relating to her anxiety and depression, a PTSD questionnaire, a feelings and needs chart, a mindful anxiety questionnaire and a hierarchy of fear form.
[1] Clinical psychologists | APS (psychology.org.au)
Most of the report is a record of [the applicant’s] claims including her difficulty accessing documents to support her case. It includes the opinion of the psychologist on circumstances of the Afghan displaced community in Pakistan, such as “normally children witness atrocities that happen on a daily basis”. These statements of opinion are not support by any country information. All sessions were conducted with her sister present. Her sister, [Sister A], has also had her visa cancelled and has a current application before the Tribunal, and has a strong interest in maintaining a consistent history.
The assessment and findings in the report do not list impaired cognitive function unlike the introduction but provide a diagnosis of PTSD with severe depressive features. While these conditions may impair a person’s ability to perform some cognitive tasks, it does not indicate [the applicant] has a cognitive impairment or a learning problem. It includes a self-report from [the applicant] that she forgets ordinary daily tasks. The onset of this condition is since [the applicant’s] visa was cancelled.
The Tribunal was not satisfied that the report of the psychologist supports her claimed memory loss. The Tribunal is mindful of the effect of trauma on people may mean that a person’s recall of events may be impaired but is not satisfied this is to the global extent claimed by [the applicant]. The Tribunal found the report of the psychologist partisan and seeking to support the claims of [the applicant]. It places little weight on this report.
[The applicant] was asked about her mental health at the hearing. She says she suffers forgetfulness and memory loss due to tension. She was not aware of a diagnosis of mental illness but reiterated she has required surgery [and] claimed that she could not remember matters because she had [surgery]. In the absence of medical evidence to support her contention that the surgery, which her sister said was for a [specific condition], affected her memory, the Tribunal does not accept [this condition] or surgery for this condition affects her memory.
[The applicant] says she lives alone with her daughter, and she can care for her daughter and manage her household finances and pay bills. She does her own shopping and manages her household. She said she travelled alone to Quetta for her own wedding and could provide details of her travel to Quetta for her wedding. This does not support the extent of her claimed impairment.
[The applicant] claimed to not remember anything to do with her father, her mother, or any time she lived in Afghanistan. She said she was too young to remember anything about either parent. She could not recall the names of any of her aunts and uncles other than an aunt to whom it is claimed the family transferred money to assist. She could not recall anything about travelling to Pakistan. She could not recall where they lived on arriving in Pakistan. She could not recall which city they left from when they came to Australia. She could not tell the Tribunal anything about the DNA test showing that [Brother B] was her brother. She could not tell the Tribunal who she lived with when she came to Australia.
[The applicant] could not recall any of the people to whom she had transferred considerable sums of money over a lengthy period when in Australia or how she transferred money to them. It was put to her this was not consistent with her ability to manage her household finances, as, if she was able to manage her own finances, the Tribunal would expect her to know about her money and where it was going.
She could, however, remember information about a claimed aunt to whom they sent money. She could recall she applied for her taskira through the embassy, and that she paid for the taskira herself.
Any details [the applicant] did recall were those details that supported her and her sister’s claims. She could recall details that supported her husband’s claims for a spouse visa, including how they met and what she was doing when they met, and that his mother came from Melbourne with a proposal.
The Tribunal did not find her highly selective recall convincing. While [the applicant] suffers from a mental illness, listed by her general practitioner and a clinical psychologist as obsessive/compulsive symptoms, the Tribunal does not accept the effect of this condition is such that she would not recall anything about her circumstances up until the time she entered Australia. Instead, this came across as an attempt to obfuscate and make it difficult for the Tribunal to establish what had occurred, either to support [the applicant’s] previous account or refute it.
One matter on which [the applicant] was clear was that she was born in [year]. At the time it is claimed her father died she was [age] years old, and they travelled to Pakistan when she was [age]. It is claimed her mother died when she was [age] years old, and they travelled to Australia when she was [age] years old. In her statutory declaration dated 21 April 2021, she claimed to remember living and growing up in Afghanistan.
While the Tribunal does not expect her to know details inconsistent with her age at the time, it would not expect that a child of these ages would have no recall at all about these events, as she had sworn a statutory declaration saying she did remember living in Afghanistan.
Her sister [Sister A] said [the applicant] required surgery on several occasions on arriving in Australia as she had a [specific condition]. This does not appear on any of the medical reports provided, but the Tribunal has no reason to doubt she required surgery. [Sister A] said she must remind [the applicant] of matters and helps [the applicant] to attend medical appointments. [Sister A] said she pushes [the applicant] to take her daughter to the GP to get a plan to see a speech pathologist as her daughter is [age] and is not talking. She says [the applicant] repeatedly cleans the house because she has a mental problem.
It was put to [the applicant] and her representative that the Tribunal was concerned about her claimed lack of memory as the medical information before the Tribunal did not support the extent of her claimed memory loss. [The applicant] provided forceful and assertive responses, including interrupting the interpreter. She showed considerable confidence in asserting her lack of recall of events that would assist the Tribunal to determine if she had provided incorrect information on her visa application, but detailed recall of other events.
The Tribunal accepts [the applicant] has had health problems including a [specific condition] and required surgery for her condition. It accepts that she suffers from obsessive compulsive disorder. It does not accept that she has a cognitive impairment that results in an inability to recall information to the extent that she claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel [the applicant’s] visa under s 109(1) of the Act.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101 of the Act. This section requires non-citizens to provide correct information in their visa applications and passenger cards.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act as she had provided incorrect information in her application Form 47SP, being:
·At question 19 of the application where she stated she was a citizen of Afghanistan.
·At question 37 where she declared her parents [Father A] and [Mother A] were deceased.
·At question 38 where she stated that her [Sister A] and her brother [Brother A] were her only siblings.
·At question 83 where it was stated she had resided in Afghanistan prior to June 2003.
The delegate found these were incorrect answers as she found [the applicant] was a citizen of Afghanistan, her parents were living, she has other siblings who were not declared in the application and she had not lived in Afghanistan.
The Tribunal has considered each of these factors in turn.
Is [the applicant] a citizen of Afghanistan?
The delegate found [the applicant] is a citizen of Pakistan. This finding was based on the following:
·     Information received by the Department that [the applicant’s] parents [Father A variant] and [Mother A] were not deceased and are alive and living in Karachi.
·     Multiple money transfers between 2012 and 2016 from [the applicant’s] [Brother A], [Sister A] and [Mr A] ([Sister A’s] husband) to [Father A] entitled “family support”.
·     The money was transferred to [Bank 1]. The website of the [Bank 1] states that to obtain a cash payment sent, the person needs the remittance reference number and a CNIC (Computerised National Identity Card). CNICs are issued to Pakistani citizens over 18 years. To collect the money [Father A] was required to hold a CNIC as a citizen of Pakistan.
[The applicant] had previously provided to the Department a taskira issued [in] May 2007 and a translation of this taskira. She provided to the Tribunal a taskira and translation, a verification of identity form and translation, an Afghan passport and a letter from [an official] of [Community Organisation 1] stating [the applicant] is of Afghan origin.
The Tribunal requested verification of the most recent taskira provided by [the applicant] in April 2021, however the Department advised verification of the taskira was not possible.
[The applicant] said she had tried to obtain an Afghan taskira and went to the Afghan embassy in 2019 to do the paperwork to obtain a taskira while absent from Afghanistan. [The applicant] provided a taskira issued [in] February 2020 and a verification of a taskira issued based on her relationship with [Brother B], stated to be a paternal cousin. As stated above, [the applicant] had previously provided a taskira issued [in] May 2007, and it is unclear why she decided to obtain another taskira. [The applicant] provided a copy of an Afghan passport which included visas for Pakistan issued 2013, 2014, 2017 and 2018, and stamps to show she entered Pakistan using this passport.
The Department of Foreign Affairs and Trade (DFAT) report, DFAT Country Information Report Afghanistan (27 June 2019) states document fraud is a major issue in Afghanistan, and genuine documents can be issued on false information. This is particularly problematic for taskiras.[2] Taskiras issued before 2018 do not contain any security features. In 2018 an electronic taskira was launched but does not appear to have been widely available. It is no longer possible to verify taskiras.
[2] At [5.54]
The Tribunal is not satisfied that the documents provided establish that [the applicant] is a citizen of Afghanistan. It does not accept her submission that thorough identity checks are completed before a taskira is issued and does not accept the taskira provided is a genuine document. It is not satisfied that the visas for entry to Pakistan show she is a citizen of Afghanistan and does not accept her explanation that she would not have obtained visas if she was a citizen of Pakistan. It does not accept that the letter from [Community Organisation 1] establishes her citizenship of Afghanistan, as a person may be of Afghan origin and still be a citizen of Pakistan.

The delegate found [the applicant] has a sibling [Brother B] who had arrived in Australia claiming to be a citizen of Pakistan and in possession of Pakistani identity documents, including a driver’s licence. [Brother B] lived with [the applicant], [Sister A], [Brother A] and [Mr A] when he arrived in Australia. The Tribunal invited [the applicant] to undertake DNA testing with [Brother B] to show the relationship between them.
The DNA test results showed a probability of 99.98% that [the applicant] and [Brother B] were full biological siblings (approximately 4,399 times more likely to be full biological siblings compared to unrelated individuals), and a probability of 99.98% of being half siblings (approximately 6,117 times more likely to be related as half biological siblings compared to unrelated individuals). The information was provided to [the applicant] under s 359A of the Act, together with a copy of the DNA test results.
In response she provided a statutory declaration, a document that was purportedly a death certificate of her mother, and a taskira and translation of the taskira. It was submitted that her sister was in the process of obtaining a death certificate for their father and that Pakistani documents for members of [Brother B’s] family would be provided to show they are from different families, and that the sister [Brother B] names in his application as [the applicant’s name] is not [the applicant].
[The applicant] denied at the hearing that she has any siblings other than [Sister A] and [Brother A].
Neither a death certificate, nor any other documents regarding [Brother B] were provided to the date of this decision. [The applicant] provided a statutory declaration from herself, and one from her sister. They have been unable to obtain a death certificate for her father.
[The applicant] states in her statutory declaration that she was shocked and saddened to learn [Brother B] is her sibling, and she does not consider him to be her sibling. She claims to have known of [Brother B’s] family as they are well known and respected by the Afghan community and ran a house where people could stay in Karachi. She states they are locals of Karachi. [The applicant] claims to have only met [Brother B] when he was a driver for [a named relative].
A statutory declaration from [Sister A] states she knows [Brother B’s] family are Pakistani citizens. She declares [Brother B’s] parents in Karachi are not her parents. This statutory declaration acknowledged [Brother B’s] parents live in Karachi.
Substantial money transfers have been made to a person with the same name as [the applicant’s] father in Pakistan. This is [Brother B’s] father. [The applicant] said she had not transferred money to anyone other than to assist with the medical expenses of her aunt [Aunt A]. She could not recall the illness her aunt suffered, and said her aunt was living in Karachi. She could not tell the Tribunal anything about others to whom she transferred money. The transfers included money sent to [Brother C], who is [Brother B’s] brother and who lives at the same address in Karachi as [Father A].
The delegate obtained information from the [Bank 1], which is the bank to which money was transferred to [Father A]. This shows a person requires a Computerised National Identity Card (CNIC) to collect money. CNIC’s are issued to Pakistani citizens, and this is regarded as the one of the most reliable form of documentation in Pakistan[3].
[3] DFAT Country Information Report Pakistan (20 February 2019) at [5.46]
On the basis of the DNA test results showing [the applicant] and [Brother B] are siblings, evidence that [Brother B] is a citizen of Pakistan, the money transfers to a person with the same name as her father and who is [Brother B’s] father, that this person is acknowledged to be [Brother B’s] father, and as there is information to show [Father A] had to hold a CNIC to collect the money, and that a CNIC is issued to Pakistani citizens, the Tribunal finds that [the applicant’s] father is living and that her father and brother are citizens of Pakistan.
Section 5 of the Pakistan Citizenship Act 1951 provides for citizenship by descent if a parent of the person is a citizen of Pakistan at the time of the birth. The Tribunal has found [the applicant’s] father is a citizen of Pakistan
The Tribunal also finds [the applicant] is a citizen of Pakistan and has provided incorrect information on her visa application.
At the time of the visa application, were her parents deceased?
The Tribunal has found that [the applicant’s] father was not deceased at the time of the visa application. It follows she has provided incorrect information on her visa application in stating that her father is deceased.
The information is more equivocal about her mother, with a document produced from the Hazara Cemetery in Quetta stating she is deceased. This document has no security features, and the Tribunal has evidence to show the family of [the applicant] lives in Karachi and not Quetta. However, the Tribunal accepts for the purposes of this decision that her mother is deceased.
Does [the applicant] have other siblings not declared in her application?
As a result of the DNA test results, the Tribunal finds [the applicant] has a brother [Brother B] who was not declared in her visa application.
It is acknowledged that [Brother B] has a brother [Brother C] to whom money was also transferred by the family. DNA test results show [the applicant] is the sibling of [Brother B]. In her statutory declaration [the applicant] states she has never met [Brother B’s] brother [Brother C].
[The applicant] has transferred money to [Brother C]. The Tribunal does not accept this was solely for the purpose of supporting her sick [Aunt A], or for clothing, and finds this was for the purpose of supporting [Brother C] who is also her brother. This also makes sense of her family composition, where there are otherwise large gaps between the birth of [the applicant], [Sister A] and [Brother A].
The Tribunal finds [the applicant] has two siblings who were not declared on her visa application, and she has provided incorrect information about her family composition.
Did [the applicant] live in Afghanistan until June 2003?
The Tribunal has found [the applicant] is a citizen of Pakistan and finds she did not live in Afghanistan until June 2003.
As the Tribunal has found [the applicant] provided incorrect information about her nationality, whether her father was living, her siblings and when she lived in Afghanistan these reasons, there has been non-compliance with s 101 by [the applicant] in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has considered each of the circumstances prescribed in reg 2.41 and any other circumstances including those set out in the Procedures Advice Manual.

A. Prescribed circumstances
The correct information

The correct information is that [the applicant] is a citizen of Pakistan who has two siblings who were not declared on her visa application. The correct information is that she has not lived in Afghanistan as she claims.
The content of the genuine document (if any)
This does not apply.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
[The applicant] was granted the visa as a secondary applicant on her sister’s visa. This requires that she was a member of [the applicant’s] household (cl 309.311 of Schedule 2 to the Regulations). To be a member of her sister’s family unit she is required to (among other things) be dependent on her sister (reg 1.12(e)(iii)). The Tribunal finds [the applicant’s] father was still living.
The Tribunal has found her father is alive. It infers that they were all living together before travelling to Australia.
The circumstances in which the non-compliance occurred
As [the applicant] maintains she was a citizen of Afghanistan living in Pakistan, and the Tribunal has found this is incorrect, the circumstances are not before the Tribunal.
However, the Tribunal also takes into account that she was a minor at the time of the visa application, and at the time she arrived in Australia. It also takes into account she required surgery for a [specific condition] at that time.
The present circumstances of the visa holder
[The applicant] has since married, and her husband is in Pakistan awaiting the outcome of his visa application. She has a child who is an Australian citizen. [The applicant] has had problems with her mental health, and a diagnosis of an obsessive-compulsive disorder. She has required surgery for a [specific condition].
[The applicant] submits she requires further surgery for a [further specified condition]. This is not mentioned in any of the medical reports including recent reports. The Tribunal is not satisfied that a medical practitioner would not include a significant medical issue and is not satisfied she requires surgery but acknowledges the report that she suffers [a specified medical condition].
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
[The applicant] provided a further taskira and translation and a verification of her taskira to show she is a citizen of Afghanistan. The Tribunal has found she is a citizen of Pakistan and finds she had provided bogus documents (within the meaning of s 5 of the Act) to maintain her claims.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance.
The time that has elapsed since the non-compliance
[The applicant] applied for the visa in 2007, over 14 years ago. It was granted over 11 years ago.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any other breaches of the law.
Any contribution made by the holder to the community
[The applicant] does not claim to have made contributions to the community.

B. Other circumstances

The Tribunal has considered other factors consistent with Department policy and on which [the applicant] made submissions.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If [the applicant’s] visa is cancelled, she will become an unlawful non-citizen, and liable to detention under s 189(1) of the Act. Under s 198(5) of the Act, she must then be removed from Australia if she does not apply for another visa.
Under s 197C Australia’s non-refoulement obligations are irrelevant to removal.
If [the applicant’s] visa is cancelled, under s 48 there are limited visas for which she can apply from within Australia. These are set out in reg 2.41 and include a protection visa (reg 2.12(c)).
Whether there would be consequential cancellations under s 140
Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa. There are no consequential cancellations that would occur in this case.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The facts of this case give rise to Australia’s international obligations in regard to non-refoulement and the best interests of the child.
(i)Non refoulement
The principle of non-refoulement is contained in Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and provides that no State shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
Under Article 1(2) of the Refugee Convention, a refugee is a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty (together the ICCPR), Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).
Article 7 of the ICCPR has been construed by the UN Human Rights Committee to include a non-refoulement component.[4] Article 3 of the Convention Against Torture states no State party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture. Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed.
[4] UN Human Rights Committee, General Comment No.20 (1992)
In COT15 v Minister for Immigration and Border Protection[5] (COT15) the Full Court of the Federal Court considered whether the cancellation of a visa that was not a protection visa would result in a breach of Australia’s non-refoulement obligations. The Full Court held:
The subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulment obligations when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.[6]
[5] [2015] FCACA 190
[6] At [38]
It was not argued in COT15 that if a visa is cancelled, the person becomes an unlawful non-citizen, and as a result must be detained under s 189 of the Act and removed as soon as reasonably practicable under s 198 of the Act. Under s 197C of the Act, Australia’s non-refoulement obligations are irrelevant to removal of unlawful non-citizens.
There have also been further developments in the view of the Full Federal Court about the extent to which the requirements for the grant of a protection visa in s 36 of the Act reflect the international obligations contained in the Refugee Convention and the Convention Against Torture. Most recently in Minister for Immigration, Citizenship and Multicultural Affairs v FAK19 (FAK19), Justices Kerr and Mortimer, with whom the Chief Justice agreed,[7] found the statutory provisions modified the obligations under the Refugee Convention as follows:
[7] [2021] FCAFC 153
(1)The modification (or abrogation) of the internal relocation principle: s 5J(1)(c);
(2)The behaviour modification requirements as a qualification to when a person will have a well-founded fear of persecution: s 5J(3);
(3)The imposition of a burden of positively satisfying a decision maker that conduct engaged in since arriving in Australia was not for “the purpose of strengthening the person’s claim to be a refugee: s 5J(6);
(4)The modification of the social group basis, by instructing decision makers to disregard certain matters relating to an applicant’s family: s 5K;
(5)The codification and narrowing of the social group characteristics: s 5L; and
(6)The codification and narrowing of what will constitute effective protection so as to deny refugee status: s 5LA (especially s 5LA(2)(c)).[8]

100. Justices Kerr and Mortimer note that there is a demonstrated intention in enacting a statutory framework to move away from the international framework, including by removing reference to the Refugee Convention, but that the only location for assessment of non-refoulement obligations is the terms of the Refugee Convention.[9]
[9] [119]
101. The legislative scheme has also moved on, with the amendment of s.197C by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021. The effect of the amendments is that s 198 of the Act does not authorise or require the removal of a non-citizen from Australia if, in summary, the person has had a “protection finding” made in respect of him or her (s 197C(3)), unless the decision in which the protection finding was made had been set aside or quashed, a decision under s 197D has been made that a non-citizen is no longer a person in respect of whom any protection finding would be made, or the non-citizen has asked the Minister in writing to be removed.
102. Section 197C(3) does not prevent removal of [the applicant] in this case as there is no suggestion that a previous protection finding within the meaning of s 197C(4) – (7) has been made in respect of her.
103. The distinction between the ability to apply for a protection visa and international non-refoulement obligations may be resolved in current matters before the High Court such as PlaintiffM1/2021 v Minister for Home Affairs, however while this has been heard the decision has not yet been handed down.
104. Given the decision in FAK19, and as [the applicant] has made submissions that Australia’s non-refoulement obligations will be breached if her visa is cancelled, the Tribunal has considered her arguments regarding non-refoulement.
105. [The applicant] provided submissions which generally addressed the harm she may suffer if returned to Afghanistan on the basis that she is of Hazara ethnicity and Shi’a religion. The Tribunal has found she is a citizen of Pakistan, and the potential harm that must be considered to her is that which would result if she is returned to Pakistan. [The applicant] did provide further submissions about circumstances for Hazaras in Pakistan.

106. The Tribunal has found her father and brother are alive and living in Karachi, which is in the Sindh province. However, her husband is in Quetta. It is not known if [the applicant] would return to Quetta or Karachi if she returned to Pakistan as she denies being a citizen of Pakistan.
107. DFAT report[10] that less than 1% of the population in Pakistan are Hazara. Most Hazaras are Shi’a Muslim.[11] Lashgar-e-Jhangvi (LeJ) and other Sunni groups target the Shi’a community and particularly Hazaras in Quetta. Hazaras are visually distinct from other ethnic groups due to their Eurasian descent.[12]
[10] DFAT Country Information Report Pakistan (20 February 2019)
[11] ibid 3.27
[12] 3.27
108. DFAT report most Hazaras lived in enclaves in Quetta due to the security situation, and smaller but significant populations live in other areas such as Karachi. DFAT report that:
While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still face societal discrimination and security threats.
…
DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a greater risk than other Shi’a due to their distinct appearance and to segregation.[13]
[13] 3.47

109. In addition to being Hazara, [the applicant] has obsessive compulsive disorder and a young child. While will have the support of her father and her husband if she returns to Pakistan, the Tribunal considers she would have a well-founded fear of persecution if she were to return to Pakistan.
110. The Tribunal considers there is a real chance her life will be at risk if she returns to Pakistan due to her race and her religion. Given she will be detained as an unlawful non-citizen and removed from Australia if she does not apply for a protection visa, the Tribunal finds that the cancellation of her visa may lead to a breach of Australia’s international obligations.
(ii)Best interests of the child

111. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions concerning children, the best interests of the child shall be the primary consideration.
112. In CFE16 v Minister and CFD16 v Minister[14] (CFE16 & CFD16), Judge Riethmuller referred to Art. 3 of the Convention and stated:
[14] [2020] FCCA 1083
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[15]
[15] At [19]

113. Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant it intended to approach the case any differently.
114. Judge Riethmuller said the task required of the Tribunal is to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[16] Judge Riethmuller states that:
[16] At [24]
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[17]
[17] At [25]

115. Judge Riethmuller notes that as one of the children is an Australian citizen, she is entitled to all the protections and the benefits of the Australian state. The cancellation of the parents’ visas, given her young age, may on a practical level mean she is unable to take advantage of her status as an Australian citizen. Judge Riethmuller notes this is a factor that may need to be considered by the Tribunal.[18]
[18] At [28]
116. [The applicant’s] [daughter] is an Australian citizen. Her citizenship was acquired as she was born in Australia, and at the time she was born her mother was an Australian permanent resident.[19]
[19] Section 12 Australian Citizenship Act 2007
117. [The child’s] father is in Pakistan. Due to her young age, she is likely to remain with her mother.
118. In looking at what is in [the child’s] best interests, it is necessary to look at what Australian citizenship means for her. The preamble to the Australian Citizenship Act 2007 states parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth. The Australian Constitution is silent on citizenship and does not provide express protections for Australian citizens. The right to apply for a passport is contained in the Australian Passports Act 2005 (subject to some exceptions). The Act addresses non-citizens, and as such Australian citizens can enter and leave Australia as many times as they like. While not codified in law, Australian citizens can seek help from an Australian consulate while overseas. Australian citizens have political rights; the right to vote (Commonwealth Electoral Act 1928) so long as the person does not intend to live overseas for more than 6 years and stand for office if over 18 and not a dual national (Australian Constitution s 44(i)).
119. On a more practical level, the entitlements of Australian citizens relevant to [the child] are eligibility for Centrelink benefits and Medicare while in Australia, and access to free primary and secondary schooling and certain schemes to fund tertiary education.
120. If [the applicant’s] visa is cancelled, the Tribunal has found she is liable to be detained and removed from Australia unless she applies for a protection visa. Due to her daughter’s age, it is likely that her daughter will remain with [the applicant] and face similar consequences despite her Australian citizenship. If she does not, her daughter will face the prospect of being separated from her mother.
121. [The applicant] refers to the close relationship [the child] has with her cousins in Australia, and the distress it will cause her to be separated from her cousins.
122. The Tribunal finds it is in the best interests of [the applicant’s] daughter that [the applicant’s] visa is not cancelled.
Other matters raised
123. [The applicant] also refers to the hardship and pain for [the applicant’s] siblings if her visa is cancelled and this will separate a close-knit family. The Tribunal accepts it will cause some distress to her family, including her [Brother A] who is an Australian citizen.
CONCLUSION

124. 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. This was relevant to the grant of the visa, which is a serious matter.
125. However, having had regard to all the relevant circumstances, including that [the applicant] was a minor at the time, she has a mental illness, the best interests of the child and non-refoulement obligations, the Tribunal concludes that the visa should not be cancelled.
DECISION
126. 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.
Kate Millar
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[8] At [118]

[2021] AATA 5156

15 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Appeal

Jurisdiction