2000665 (Migration)

[2022] AATA 4286

2000665 (Migration) [2022] AATA 4286 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Elizabeth Maree Thompson (MARN: 1171762)

CASE NUMBER:  2000665

MEMBER:Sean Baker

DATE:7 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2022 at 3:45pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information provided in protection visa application – name and citizenship – Pakistani claimed to be Afghani – identity assessed in associated with application for Australian citizenship – incorrect information conceded – discretion to cancel visa – marriage to permanent resident – support for family members in Australia, including citizens and permanent residents, and in home country – loss of work rights – family unity – mental health – country information supports claim of fear of harm as Hazara Shia – non-refoulement obligations and assessment – possibility of prolonged or indefinite detention – decision made without hearing necessary – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 197C(3), 197D(2), 375A

Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

MZAFZ v MIBP [2016] FCA 1081

1901883 (Refugee) [2021] AATA 3216

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

statement of decision and reasons

application for review

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

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his Protection visa application where he claimed to be an Afghan national. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. In this case, having reviewed all of the information before me I have decided that a decision can be made without inviting the applicant to a hearing.

4. The applicant was represented in relation to the review.

5. There is a purported s. 375A certificate on the Department File. This is not a valid certificate because it contains incomplete and circular reasoning. It does not explain why the information was given in confidence – only claiming it was, and then re-stating that these are internal deliberative documents given in confidence. There is insufficient information to allow a determination to be made that the certification has been validly made for a valid purpose. See MZAFZ.[1]. I find that the certificate is invalid.

   [1] MZAFZ v MIBP [2016] FCA 1081.

6. 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

7. 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.

8. 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.

9. 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?

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) in the following respects:

11. In his application for a Protection (Class XA) visa on 3 December 2010, the applicant had provided a different name or alias, and had claimed that he and his family in Pakistan were Afghan citizens and did not have any other citizenship. He claimed to fear harm on return to Afghanistan, and he detailed fears of harm and incidences of past harm in both Afghanistan and Pakistan.

12. The Department undertook an assessment of the applicant’s identity associated with his application for Australian citizenship. In relation to this assessment the Department obtained a Family Registration Certificate issued by the Pakistani authorities confirming that the applicant held a Computerised National Identity Card or CNIC. Following a disavowal by the applicant, the Department obtained further confirmation from the Pakistan authorities that the applicant held a CNIC. In addition, the Department had regard to the applicant’s sister’s visa application.

13. As a result, the Department officer considered that the applicant was the son of [Mr A] and had a family composition consistent with that set out in his sister’s visa application, that the applicant’s father being a Pakistani citizen it was likely that the applicant was also a Pakistani citizen.

14. The applicant responded to the s 107 notice and in a statutory declaration dated 2 October 2019 he conceded that he had provided incorrect information in relation to his nationality, name and date of birth and declared that he was a Pakistani citizen by birth and had been at the time he applied for the Protection visa application. He claimed however that his recounted experiences in Pakistan had occurred and that he feared harm on the basis of his race and religion if he was returned to Pakistan.

15. Having had regard to the s 107 notice and the applicant’s response, in particular his sworn evidence in his statutory declaration, I find that there was non-compliance with s101(b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. 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.

18. In addition to the information that the applicant provided to the Department during the cancellation process, I have before me more up to date information about the changes in the applicant’s circumstances. Consequently, these changed circumstances were not considered by the delegate. This information includes:

    ·A May 2022 submission from the applicant’s representative;

    ·A statutory declaration from the applicant, dated May 2022, explaining his changed circumstances;

    ·Information relating to the applicant’s relationship and marriage to [Ms B], including their marriage certificate, [Ms B]’s identification documents and evidence of her Australian permanent residency;

    ·Information relating to the connection between the applicant and his parents-in-law, including a statutory declaration of [Mr C], the applicant’s father-in-law, (May 2022) and a statutory declaration from [Mr D], the applicant’s mother-in-law, (May 2022) as well as evidence of [Mr C]’s medical conditions and his Australian citizenship certificate, and [Mr D]’s VEVO report;

    ·Information about the applicant’s sister’s situation contained in a statutory declaration of May 2022 and her Subclass 100 visa grant.

    the correct information

19. In this case, it has been conceded by the applicant, and accepted, that the correct information is that the applicant is and was a Pakistani citizen at the time of his Protection application, his correct name is [the applicant], and he was born on [Date] in Pakistan. In the response to the s 107 notice, the applicant said that he had provided the incorrect information because he was afraid of returning to Pakistan, those he spoke to in detention told him to claim he was from Afghanistan, and he fears for himself and his family if he has to return to Pakistan now.

20. Whilst I appreciate the reasons the applicant decided to provide incorrect information, which are further considered below, I consider that the provision of incorrect information is a serious matter, as the applicant himself averted to, and therefore I give no weight towards the visa not being cancelled in relation to this factor.

    the content of the genuine document (if any)

21. Not relevant in this case.

    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

22. The current visa grant was not, as far as the information indicates, based on incorrect information. However, the question is relevant to the Protection visa which the applicant held prior to the 155 visa.

23. The applicant has claimed that his Hazara ethnicity and Shia faith, and his life in Pakistan, which are not in dispute, were the basis on which his Protection visa was cancelled.

24. I am not convinced. The protection visa was granted to the applicant after an assessment of his claims against Afghanistan as his country of reference. Even where events in Pakistan were considered, this was ancillary to the question of whether he would face a real chance of persecution on being returned to Afghanistan. The information that the applicant is a Pakistan citizen, and therefore that Pakistan may be the country of reference is directly relevant to the consideration. I find therefore that the decision to grant the applicant his Protection visa was based at least partly on the incorrect information that he was an Afghan citizen with no right to enter and remain in any third country and was living in Pakistan unlawfully.

25. I therefore give this consideration no weight in favour of the visa not being cancelled.

    the circumstances in which the non-compliance occurred

26. The applicant states that he was told by the people smuggler and other asylum seekers in the detention centre to claim he was Afghan to strengthen his claims for protection. He states that his motivation to do so was because of his fear of being persecuted if he was returned to Pakistan.

27. It is relevant that the country information supports his claim to fear harm on return to Pakistan as a Hazara Shia.[2]

    [2] See DFAT Country Information Report Pakistan, 25 January 2022, and previous DFAT reports, which indicate the high levels of sectarian attacks directed towards Hazara in Pakistan and the difficult situation for those living in the Quetta enclaves.

28. The applicant has also indicated that he struggled at school, and it has been submitted that the applicant was, upon arrival in Australia, particularly ill-equipped to weigh the advice of his peers in detention. I accept this submission.

29. I accept that the applicant would have felt himself in a desperate situation and may have felt compelled to attempt to strengthen his claims by being untruthful. I accept that he is not well educated and that his fear, which has been characterised, reasonably I consider, as existential, acted to compel the applicant to provide the incorrect information.

30. This does not excuse the very serious nature of the applicant having provided incorrect information. It does however provide what I consider to be a compelling context within which the non-compliance occurred.

31. I give this factor some weight towards the visa not being cancelled.

    the present circumstances of the visa holder

32. The applicant has now been living in Australia for 12 years. As noted above, the circumstances of the applicant have changed significantly since the assessment by the delegate.

33. The applicant married an Australian permanent resident, [Ms B], [in] January 2022 at the [Location] (I accept the applicant’s explanations of why information on the marriage certificate provides different details, including the date). I accept that while this is a legal marriage, they are waiting until her father is well until they hold the ‘proper’ ceremony. The applicant had a pre-existing relationship with his wife’s family, his father and her father having been close. I have also had regard to the significant support that the applicant has provided to his father-in-law, an Australian citizen, when his father-in-law was being treated for cancer.

34. The applicant’s sister, [Ms B], is an Australian permanent resident. She writes of the stressful situation her and her husband’s visa uncertainty has caused them, and that she is fearful for her brother, should he have to return to Pakistan. She says that after their father was killed, the applicant was a big support to her and her family. She sees now that he is very depressed. He has needed surgery. She states that she needs her brother here to support her. She also states that the applicant was the only financial support for their family in Pakistan after their father was killed. She notes that his wife also needs his support.

35. Prior to the cancellation, I accept that the applicant’s father was killed in his shop in January 2013, this is confirmed consistently by the applicant and his sister. I accept that the applicant was a principal source of financial aid to his family since his travel to Australia, and after the death of his family became the sole source of financial aid to them. The applicant was running a business and paying tax.

36. Since the cancellation, he has been unable to work, and he and his sister aver that this has caused him and his family in Pakistan psychological and financial distress.

37. The cancellation has undeniably had an impact on the applicant’s psychological state and the financial situation of him and his family in Pakistan. Despite his inability to work and his psychological and financial distress he has significantly supported his Australian citizen father-in-law and his respective family, and has married [Ms B]. I accept that his sister, an Australian permanent resident, would be greatly impacted if the applicant’s cancellation is not set aside. The applicant clearly has ties to the Australian community through these citizens and permanent residents. His continuing cancellation would, I accept, have a profound effect on him and his ability to support them.

38. I give this factor significant weight in favour of the visa not being cancelled.

    the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

39. In his response to the s 107 notice the applicant disclosed the true information and expressed what I consider to be genuine and heartfelt remorse for providing the incorrect information.

40. As did the delegate, I give this factor a little weight in favour of the visa not being cancelled.

    any other instances of non-compliance by the visa holder known to the Minister

41. There are no other instances of non-compliance and I give this factor a little weight in favour of the visa not being cancelled.

    the time that has elapsed since the non-compliance

42. The non-compliance occurred 12 years ago. It occurred in a context discussed above. More recently, the applicant has reflected on, and shown some contrition for, his non-compliance. Given the period of time that has elapsed, and his behaviour in that span of time, I give this factor a little weight in favour of the visa not being cancelled.

    any breaches of the law since the non-compliance and the seriousness of those breaches

43. There is no information before me that the applicant has breached the law since the non-compliance. I give this factor a little weight in favour of the visa not being cancelled.

    any contribution made by the holder to the community

44. As noted above, the applicant established a business which employed a number of people. He has been involved with events within the Hazara community here. As above, he has contributed significantly to the care of his father-in-law and his family, as well as that of his sister and her husband. I give this factor a little weight in favour of the visa not being cancelled.

45. 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.

    whether there would be consequential cancellations under s 140.

46. Not relevant in this case.

    The best interests of any children

47. Not relevant in this case.

    whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

48. In relation to this factor I have been correctly referred to the previous decision of the Tribunal (differently constituted) in 1901883.[3] That case helpfully discussed the amendments to the Act of ss 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to him prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to his removal, there being an intervening step in the way.

    [3] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

49. But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, cancellation may lead to prolonged detention. I have discussed this in more detail below.

50. However, the situation is not the same when considering family unity obligations. This is a principle which stems from a number of international human rights treaties to which Australia is a party and is expressed as a universal consensus that the family is entitled to respect and protection.[4] If the applicant’s visa remains cancelled, he would be liable to immigration detention – as noted below, this may be for a considerable period. Further, even if it was assessed that non-refoulement obligations adhered to him, there is no clear path for him to be granted a visa, and therefore leave immigration detention. Therefore, continuing cancellation would have the practical effect of parting him from his wife, from his father-in-law to whom he is a considerable support, his wife’s wider family, and his sister and her husband. The removal of the applicant would be significant even if not total – some visits are allowed in immigration detention, but it is not unknown for detainees to be moved to other states or territories for administrative convenience, making visits from his Melbourne and Adelaide based family prohibitive. Further, and as discussed below, such removal of him from his family would be for either an indefinite, or certainly long duration. The statements from all of these parties speak of their dependence on the applicant and his significance to them as a present and contributing family.

    [4] See Nicholson, F., “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied” January 2018, Division of International Protection UNHCR, PPLA/2018/01,

1. I therefore give this specific aspect of this factor significant weight in favour of the visa not being cancelled.

   whether there are mandatory legal consequences

2. If the visa remains cancelled, the applicant would be unlawful. He would be liable to immigration detention, and it is therefore a highly likely consequence. He is barred from making an application for a Protection visa or many other forms of visas. As noted above, he would not face removal as an immediate consequence, there being an assessment prior to removal. The country information referred to above indicates that the applicant’s strong fear of return to Pakistan, where he would be forced to work outside the Hazara enclaves and would face a high risk of harm were he to do so means both that he is likely to be assessed as being owed protection in any assessment under ss 197C(3) and 197D(2), but that such an assessment does not lead to a visa pathway. Further, this also means he would not voluntarily return. I accept therefore that he faces the very real prospect of ongoing, indefinite detention if the visa remains cancelled. I have had regard to the position paper of the Royal Australian and New Zealand College of Psychiatrists provided in submissions on the serious mental health impacts of prolonged detention. I accept that prolonged detention would further exacerbate the applicant’s psychological distress. It would, as above, deny family unity or any ability of the applicant to support his wife, his father-in-law, or his sister. As noted also below, the toll on these Australian citizens and permanent residents would be, I accept, profound. The continued cancellation therefore would lead to indefinite mandatory detention, which I accept would have a significant, serious impact on the applicant and those he is supporting in the Australian community.

3. I give this factor very significant weight in favour of the visa not being cancelled.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

4. In this case, the hardship to the applicant, his wife, his sister, his father-in-law, and mother-in-law, and to the applicant’s family in Pakistan who have relied on the applicant, is well established above. The submissions from the family members indicate that the cancellation has already profoundly affected all of them, and that if the cancellation were confirmed this would lead to further and ongoing hardship. I accept that the continuing cancellation would cause significant hardship to the applicant’s family members in Australia, most of whom are Australian permanent residents or Citizens, and to his family in Pakistan. I give this factor significant weight in favour of the visa not being cancelled.

5. I have carefully assessed the applicant’s claims and his circumstances. I have set out above my considerations and weighed these against the non-compliance. I have had careful regard to the findings of the cancellation delegate. However, the circumstances set out above differ in significant respects from those considered by the delegate. In my view, having assessed the factors I am required to assess, and those factors set down under policy - which I see no reason in this case to depart from, in this case I find that the factors against cancellation overwhelmingly outweigh the decision to cancel, and the non-compliance on which it was grounded.

   Conclusions

6. 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

7. 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.

   Sean Baker
   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.