2002465 (Migration) - [2022] AATA 4237

2002465 (Migration) [2022] AATA 4237 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Besmellah Rezaee
CASE NUMBER:  2002465
MEMBER:Alison Murphy
DATE:27 September 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 27 September 2022 at 8:01am
CATCHWORDS
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa–applicant had given incorrect information – Tribunal is not satisfied that the applicant is a Pakistani national – an Australian citizen wife and child – severe hardship to the applicant, his wife and daughter in Australia – best interests of the applicant’s daughter– time that has elapsed since the non-compliance – decision under review set aside
LEGISLATION
Migration Act 1958, ss 46A, 101, 107, 109, 189
Migration Regulations 1994, r 2.41, Schedule 2
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that it was considered the applicant had given incorrect information in his earlier protection visa application. 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 16 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Ms [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a [age]-year-old male from Pakistan who arrived in Australia by boat and without a valid visa on [date] February 2012. He identified himself as [Alias 1] born [Date 1], an Afghan national of Hazara ethnicity who had living in Pakistan as refugee. The applicant subsequently lodged an application for a protection visa and on the basis of the information he provided he was granted that visa on 14 August 2012. On 7 February 2019 he was granted a Subclass (155) (Five Year Resident Return) visa and it is the cancellation of the resident return visa that is the subject of the current review.
In 2018, several years after the grant of the protection visa but prior to the grant of the resident return visa, the Department formed the view that the applicant was a Pakistani national named [Name 1] born [Date 2].This led to the Department undertaking an identity assessment and seeking further information from the applicant as to his identity.
On 12 August 2019, a delegate of the Minister issued the applicant with a Notice of Intention to Consider Cancellation of his resident return visa under s 116(1AA) of the Act (the first NOICC) on the basis that the delegate was not satisfied as to the applicant’s identity. In response to that notice, the applicant provided information indicating that he was the holder of Pakistani identity documents under the name of [Name 1] born [Date 2] as the Department suspected. Those documents included a Pakistani Computerised National Identity Card, a Pakistani birth certificate and a copy of his Pakistani secondary school certificate indicating he was born in Quetta, Pakistan on [Date 2] and attended school in that city. These documents satisfied the delegate that the applicant’s correct identity was [Name 1] born [Date 2] and that he was a national of Pakistan and the delegate did not proceed to cancel the visa under s 116(1AA).
On 23 October 2019, a delegate of the Minister issued the applicant with a Notice of Intention to Consider Cancellation of his resident return visa under s 109 of the Act (the second NOICC) on the basis that he did not comply with s 101(b) of the Act because he gave incorrect information in his protection visa application in the following instances:
·at question 1 (when he stated his name was [Name 2] instead of [Name 1]);
·at question 4 (when he stated that he had not been known by any other name);
·at question 8 (when he gave his date of birth as [Date 1] instead of [Date 2]);
·at question 9 (when he stated he was born in [Afghanistan] instead of Quetta, Pakistan);
·at question 20 (when he stated his citizenship at birth was Afghan);
·at question 22 (when he stated that he did not hold any other citizenship);
·at question 40 (when he stated that he was seeking protection so he did not have to return to Afghanistan);
·at questions 43, 45, 46, 47, 48 (when he referred to an attached statement in which he described his experiences living in Pakistan as a Hazara and a Shia living illegally in that country).
The s 107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether her visa should be cancelled.
The applicant’s response to the s 107 notice
The documents before the Tribunal indicate that the applicant responded substantively only to the first NOICC dated 12 August 2019, in which he provided the department with Pakistani identity documents in the name of [Name 1] born [Date 2]. At that time he was represented by a different migration agent and the written submissions and documents provided on his behalf across three emails are somewhat unclear. Submissions dated 19 August 2019 seek to address ‘relevant concerns arising with respect to the submitting of unverifiable documents’ that ‘did not have distinguishing photographs or other distinguishing features’. The submission does not address the issue of the applicant’s citizenship, but acknowledges he gave incorrect information about his age and place of birth on instructions from the people smugglers. It purports to correct the incorrect information by way of an attached Form 1023 ‘Notification of Incorrect Answers’.
In that attached Form 1023, the applicant acknowledges providing incorrect information about his date and place of birth but says nothing about his citizenship. The Tribunal considers that this is likely because the first NOICC was concerned with the applicant’s identity rather than his nationality and set out the basis on which the Department had formed the view that the applicant was [Name 1]. The first NOICC did not directly allege that the department considered the applicant to be a Pakistani rather than an Afghan national. As the two notices were issued relatively close together in time, this may explain why the applicant did not address the critical issue of his citizenship in his various responses to the NOICCs.
In response to the first NOICC submissions were also made as to the applicant’s young age at the time he provided the incorrect information, his conduct in Australia, his reasons for travelling to Australia (being a member of a persecuted religious and ethnic minority) and the hardship that would be caused if his visa was cancelled.
On 7 November 2019, the applicant provided a statutory declaration dated 4 November 2019 from [name deleted], said to be the applicant’s brother. In that declaration [his brother] states that when the applicant was young he was known as [Name 1], but that due to some health problems it was suggested by local religious leaders that his name should be changed to ward off further health issues. Their parents agreed and the applicant’s name was changed to [Name 2] but no official documents exist to prove this. The covering email from the applicant’s representative indicates that it was send in relation to second NOICC, but there do not otherwise appear to be any substantive submissions as to the applicant’s citizenship or the information set out in the second NOICC.
The cancellation decision
On 4 February 2020 a delegate decided to cancel the applicant’s visa on the basis that he had provided incorrect information in the manner set out in the s 107 notice. In doing so the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Pakistan before he was removed to that country and therefore a decision to cancel his visa would not necessarily cause him to be returned to Pakistan in breach of Australia’s non-refoulement obligations. For this reason the delegate did not make their own assessment of those obligations.
The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
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.
Did the notice comply with the requirements in s 107?
The notice sets out in some detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or his representative that the notice is deficient or invalid.
I am satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. I am satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
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). The notice alleges that the following declarations made by the applicant in her protection visa were incomplete or incorrect in respect of questions 1, 4, 8, 9, 20, 22, 40, 43, 45, 46, 47 and 48.
In his response to the NOICC, the applicant appeared to acknowledge that he gave incorrect information in each of the respects set out in the notice:
·at question 1 (when he stated his name was [Name 2] instead of [Name 1]) the applicant acknowledges this was incorrect in that his Pakistani identity documents record his name as [Name 1] but states he was in fact known by his family as [Name 1] following a childhood illness which caused his parents to accept the advice of religious leaders to change his name;
·at questions 43, 45, 46, 47, 48 (when he referred to an attached statement in which he described his experiences living in Pakistan as a Hazara and a Shia living illegally in that country). In essence the applicant acknowledged he was not living illegally in Pakistan as stated but maintains that his experiences as a Hazara Shia as described in that statement are correct.
Consistently with the statements in the original protection visa application, the applicant gave evidence to the Tribunal that he made contact with the UNHCR in Indonesia, although it is unclear whether he was officially registered. I note that handwritten notes of an interview conducted with the applicant during the course of the assessment of his protection visa application are contained on the Department’s grant file ([deleted]). Those notes record that the applicant stated that he gave the name [Alias of Name 1] to the UNHCR. The departmental file also contains authority signed by the applicant permitting the department to disclose his personal information to the UNHCR and the authorities of Malaysia, Indonesia and Thailand for the purposes of making enquiries about his immigration status in those countries. The materials before the Tribunal do not indicate whether the department ever made such enquiries of the UNHCR.
In relation to the applicant’s name and date and place of birth, the Tribunal finds the applicant gave incorrect information at questions 1, 4, 8 and 9 of his protection visa application when he identified himself as [Name 2] born [Date 1] in [Afghanistan] instead of [Name 1] born [Date 2] in Quetta, Pakistan. While the Tribunal accepts he may also have been known by his family as [Name 2], he did not disclose his legal name of [Name 1] either as his current name (at question 1) or as another name by which he had also been known (at question 4).
However in relation to whether the applicant gave incorrect information about his country of citizenship, it became apparent at hearing that the applicant was confused about the legal effect of the Pakistani identity documents that he provided to the Department. The applicant gave evidence that his parents were born in Afghanistan and travelled to Pakistan as refugees prior to the applicant’s birth in 1991. He said that his father paid money to obtain Pakistani identity documents for the family and he believed these identity documents were genuine. He said that most Hazaras living in Quetta, Pakistan purchased genuine Pakistani identity documents to avoid harassment from the Pakistani authorities.
The Tribunal discussed with the applicant that even genuinely issued Pakistani identity documents would not confer citizenship upon him if he was not legally permitted to hold those documents, for example if they were obtained by way or a bribe or false statement about the holder’s identity. The applicant said that at the time his family obtained those documents, the Pakistani authorities encouraged Hazara refugees in Quetta to obtain such documents because it made things easier and that Hazaras living in Pakistan without such documents faced ongoing harassment from the Pakistani authorities. He gave evidence that while he believed those documents were genuinely issued by the Pakistani authorities, his father had told him that their family belonged to Afghanistan not Pakistan. The applicant appeared unsure as to whether being the holder of Pakistani identity documents in these circumstances entitled him to Pakistani citizenship.
The applicant’s representative submitted that the applicant had little knowledge of the manner in which the applicant came to be issued his Pakistani CNIC and passport, other than that it was purchased by his father many years ago. It was submitted that even if those documents were genuinely issued, the applicant and his family are not legally entitled to hold them and so they were at risk of being cancelled by NADRA which had recently cancelled thousands of documents issued in the same manner to Aghans resident in Pakistan. The applicant has provided a copy of his father’s Afghan taskera, the primary identity document used in Afghanistan.
DFAT reports that document fraud is widespread in Pakistan. While NADRA issued CNICs and passport contain security features, these genuine identity documents can be obtained with fraudulently issued or counterfeit feeder documents. NADRA can verify whether CNICs and passports are genuine but may not be able to identity fraudulently obtained genuine documents.[1] DFAT reports that given the high rate of document fraud in Pakistan, it can be difficult to verify whether someone is a Pakistani or Afghan national and the legal status of Afghans in Pakistan varies.[2]
[1] DFAT DFAT Country Information Report: Pakistan 25 January 2022 at 5.52 – 5.54
[2] DFAT DFAT Country Information Report: Pakistan 25 January 2022 at 3.19
Pakistan is host to approximately 1.4 million registered Afghan refugees and at least the same number of unregistered Afghan refugees. The Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan. However more recent Hazara arrivals from Afghanistan, being citizens of Afghanistan and not Pakistan, are not legally able to obtain Pakistani NICs.[3] As the applicant’s parents were born in Afghanistan and arrived in Pakistan before the applicant’s birth in 1991, the Tribunal accepts it to be unlikely that the family has any legal entitlement to Pakistani citizenship.
[3] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March at 3.14.
DFAT notes that while Afghan refugees residing in Pakistan have access to schools and education run by the UNHCR, resource constraints mean that Afghan refugees compete with the host population for such resources. It is apparent from the DFAT information that there is a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain genuine Pakistani identity documents that they are not legally entitled to hold in order to obtain access to government-run services including health and education, which are otherwise reserved primarily for Pakistani nationals.[4]
[4] Ibid
There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally have access to the fraudulently obtained but genuine Pakistani national identity cards required to access government and other services. DFAT reported in 2017 that the NADRA was engaged in a campaign to target fraud in relation to CNICs and had identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation. Pakistani authorities have put in place measures to combat the fraudulent issue of documents and can cancel or block CNICs suspected to be fraudulent.[5]
[5] DFAT 2017, DFAT Country Information Report Pakistan, 1 September at 3.10.
Tens of thousands of fraudulently issued CNICs have reportedly been blocked by NADRA, with the former Interior Minister Rehman Malik reported to have stated that he had ordered NADRA to block as many as 85,000 CNICs in Balochistan alone during his tenure between 2008 and 2013. NADRA’s deputy assistant director Qamar Nadeem was found guilty of issuing CNICs and birth certificates to foreigners in September 2015 and another assistant director, Shahid Yousaf, was arrested in Peshawar in 2017 for issuing CNICs to Afghan nationals. NADRA has reportedly sacked 200 officials for issuing CNICs to foreign nationals and is collaborating closely with the Pakistani authorities in relation to the arrest, investigation and prosecution of those suspected of registering foreigners.[6]
[6] ‘House of cards - Why NADRA’s system is far from being flawless’, Herald (Pakistan), 19 April 2017, CXC90406619198

The applicant has also submitted documents to the Tribunal indicating he was registered as a foreign arrival when he returned to Pakistan in January 2019 for his marriage to [Ms A]. Those registration documents indicate he entered Pakistan using his Australian travel document. If the applicant were a citizen of Pakistan as the second NOICC alleges, he would have been entitled to present his Pakistani identity documents and enter Pakistan without being registered as a foreign national by the Pakistani authorities.
In view of the applicant’s evidence and the country information cited above, the Tribunal is not satisfied that the applicant is a Pakistani national as set out in the s 107 notice, notwithstanding his possession of apparently genuine Pakistani identity documents. Rather the available country information indicates that Afghans residing in Pakistan who obtained their identity documents in the circumstances described by the applicant are not entitled to Pakistani citizenship. For these reasons the Tribunal is not satisfied the applicant gave incorrect information about his country of citizenship in the protection visa application at questions 20, 22 and 40.
The Tribunal notes that the events described by the applicant in the written statement that was submitted in response to questions 43, 45, 46, 47 and 48 of the protection visa application related to his experiences living in that country as a minority Hazara Shia rather than his nationality. Those experiences are consistent with country information about the situation for Hazaras living in Quetta and there is nothing in the information before the Tribunal that would indicate that they are incorrect. For these reasons the Tribunal is not satisfied the applicant gave incorrect information about his country of citizenship in the protection visa application at questions 20, 22 and 40.
As the Tribunal is satisfied that the applicant gave incorrect information in his protection visa application at questions 1, 4, 8 and 9 in the manner set out in the notice, the Tribunal finds the ground for cancellation is made out.
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.
The correct information: The correct information is that the applicant was born in Pakistan and not Afghanistan; that his legal name is [Name 1] although he is also known to his family as [Name 2] and that he was born on [Date 2] and not [Date 1] as stated in the protection visa application.
The content of the genuine document (if any): This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus documents).
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 decision to grant the applicant was made after a delegate found the applicant to be a refugee on the basis that he was a [age]-year-old male born in [Afghanistan] who held a well-founded fear of persecution due to his Hazara race and his Shia religion rather than a [age]-year-old Afghan Hazara born in Quetta, Pakistan where his family did not hold citizenship. The applicant’s Hazara race, Shia religion and residence in Pakistan are not in dispute and the delegate noted in the decision record that the applicant had no personal recollections of Afghanistan.
The Tribunal considers that had the correct information about the applicant’s name and date and place of birth been known, the applicant would still have been granted the protection visa. For these reasons the Tribunal considers the incorrect information had little if any bearing on the decision to grant the visa and this factor weighs against the cancellation of the visa.
The circumstances in which the non-compliance occurred: At the time the incorrect information was provided in 2012, the applicant was a [age] male who had travelled to Australia by boat with the assistance of people smugglers. At hearing he gave evidence that he was told by the people smugglers not to tell the truth about his Pakistani identity documents otherwise he would be in trouble with the Australian government. I accept he was advised by the people smugglers not to disclose his correct identity details on the basis that would enable the Department to link him to his Pakistani identity documents and result in the visa being refused. Although that advice was wrong, it resulted in the applicant giving incorrect information about his identity to distance himself from his Pakistani identity documents. The applicant states he was also advised to make himself appear younger than he was in order to obtain more favourable treatment and I accept that to be the case. The Tribunal considers that the applicant’s deliberate provision of incorrect information about his identity weighs in favour of the cancellation of the visa.
The present circumstances of the visa holder and his contribution to the community: The applicant has lived in Australia for more than ten years. He is married to an Australian citizen and they have a [daughter], [Miss B], also an Australian citizen. The applicant’s wife was involved in a serious car accident in 2014 and requires the applicant’s assistance to undertake household tasks and look after their child. The applicant is a blood donor as well as a member of [Organisation 1] and [a charity organisation]. ATO documents indicate that he has paid taxes and completed tax returns for all of the time he has been in Australia. Prior to the cancellation of his visa, he was also sending money back to Pakistan for the support of his family there. At hearing he impressed as being an honest and thoughtful witness who is committed to looking after his family and it was clear that his wife relies on his greatly for practical, emotional and financial support.
I have had regard to the length of time the applicant has lived in Australia, the presence of his family including an Australian citizen wife and child, and his contribution to the Australian community. I give this factor significant weight against cancellation of the visa.
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 applicant acknowledged the non-compliance in response to the first s 107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided. I give this factor some weight against cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister: The delegate states there are no other instances of non-compliance known to the Minister. I give this factor some weight against cancellation of the visa.
The time that has elapsed since the non-compliance: The relevant non-compliance took place in 2012 and approximately 10 years have elapsed since then, during which time the applicant has married an Australian citizen and had an Australian citizen child. I give this factor significant weight against cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches: The delegate’s decision records there are no known breaches of the law since the non-compliance occurred. I give this factor some weight against cancellation of the visa.
Any contribution made by the holder to the community: This matter has been addressed under the heading ‘The present circumstances of the visa holder’.
Other factors to be considered
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained under s 189. In these circumstances, he may be subject to lengthy or even indefinite detention unless granted another visa.
Consequential cancellations
In this case, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act as the other members of his family unit, being his wife and daughter, are both Australian citizens.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being: the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.
In this case the delegate’s decision records that if the applicant’s visa is cancelled, an International Treaties Obligation Assessment would be completed by a Departmental officer before any decision is made to remove him from Australia. The delegate considered that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin. However the Tribunal notes that since the delegate’s decision, there have been relevant legislative changes by way of the insertion in the Act of the new s 197C.
The applicant made a valid application for the protection visa on 26 May 2012 and the visa was granted on 14 August 2012 on the basis of the delegate’s finding that he had a well-founded fear of persecution in his country of citizenship, Afghanistan. Such a finding is a ‘protection finding’ for the purposes of s 197C(3)(b). In these circumstances s 197C(1) and (2) do not require or authorise the applicant’s removal from Australia unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal. None of these circumstances currently apply.
Unless and until the Minister makes a determination under s 197D(2) or the applicant asks in writing to be removed from Australia, the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on a new assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s resident return visa would not, of itself, lead to his removal in breach of Australia’s international obligations on non-refoulement.
However, for the reasons set out below the Tribunal considers that cancellation may lead to the prolonged or indefinite detention of the applicant.
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
If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act unless he applies for and is granted another visa. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, such a decision is not reviewable or compellable.
As well, various statutory bars effectively prevent the applicant from applying for other visa types. Section 48 prevents persons who have had a visa cancelled from making a further application onshore, except for a select few prescribed visas including partner, protection and medical treatment visas. However as the applicant has previously applied for a protection visa, he is prevented from lodging a further valid application for that visa by s 48A. While he may be eligible for a partner visa by reason of his marriage to an Australian citizen, as an unauthorised maritime arrival the applicant is prevented from lodging any visa application by s 46A. The Minister’s powers to intervene pursuant to s 48A and s 46A are only exercisable by the Minister personally and are not compellable or reviewable.
While the applicant currently holds a bridging visa, he meets the criteria for the grant of that visa because of the current review proceedings. If his visa remains cancelled at the conclusion of these proceedings, he will need to meet one of the other grounds for being granted that visa contained in cl 050.212. Broadly speaking, those grounds require the applicant to have made acceptable arrangements to depart Australia; or to have made an application for a visa of a kind that can be granted to him; or to have outstanding judicial review proceedings relating to an earlier visa refusal or to have applied for Ministerial Intervention. The applicant has the right to seek judicial review of the Tribunal’s decision and the intervention of the Minister if his visa remains cancelled, but he will only be eligible for a bridging visa on that basis while those proceedings remain to be determined.
If the applicant is not granted a further visa, s 196 provides that he must be kept detained in immigration detention until he is removed from Australia under s 198 or 199. For the reasons set out above, the Tribunal has concluded that he is the subject of a protection finding for the purposes of s 197D and he cannot currently be removed from Australia. Therefore, I accept that the potential impact of the cancellation of his visa is that he may be liable to prolonged and indefinite detention unless he decides to return to Afghanistan voluntarily. Any such voluntary return to Afghanistan in order to avoid indefinite detention in Australia may still constitute a breach of Australia’s non-refoulement obligations.[7] I accept that detention will cause significant hardship to the applicant and his wife and daughter who rely on him for emotional and financial support.
[7] XDJD and Minister for Immigration and Border Protection [2021] AATA 2882 at [101]; 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)
Other international obligations arise under the CROC. The Department’s Policy Guidelines provide that a decision maker is obliged to consider the best interests of children under the age of 18 within Australia’s territory or jurisdiction. As noted above, the applicant and his wife have an Australian citizen child, [Miss B]. I consider it is clearly in [Miss B]’s best interests that the applicant’s visa not be cancelled, given that her father is involved in her daily care, provides practical and financial support to her mother and is the family breadwinner. I give this factor significant weight against cancellation of the visa.
Any other relevant matters
I accept that the applicant has a genuine fear of return to Afghanistan, which is now under the control of the Taliban. It has been widely reported that in the wake of the withdrawal of international troops from Afghanistan in August 2021, there was a rapid deterioration of the security and human rights situation across Afghanistan. The Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[8] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[9] By 17 August 2021, the Taliban had installed themselves as the new government of Afghanistan.[10]
[8] UNHCR Position on Returns to Afghanistan August 2021 at Refworld
[9] BBC News Ashraf Ghani: Afghanistan’s exiled president lands in UAE 18 August 2021
[10] Afghan Analysts Network Afghanistan has a new government: the country wonders what the new normal will look like 17 August 2021 at Afghanistan Has a New Government: The country wonders what the new normal will look like - Afghanistan Analysts Network - English (afghanistan-analysts.org)
History shows that the Taliban’s previous takeover of Kabul and most of Afghanistan in 1996 marked a period of considerable repression for Hazara, leading many to flee Afghanistan.[11] During that period, the Taliban subjected Hazara Shias to violent persecution including the Mazar-e-Sharif massacre on 8 August 1998 in which the Taliban went from house to house systematically executing all males of fighting age in front of their families, killing around 2,000 people.[12]
[11] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8
[12]Human Rights Watch, The Massacre in Mazar-i-Sharif, November 1998,
On 22 September 2021, the International Crisis Group (ICG) reported that the Taliban had published new ministerial appointments which slightly broadened the new government’s makeup and included a small number of ethnic minorities, including one Hazara. However, it noted that while the inclusion of more officials from minority groups is something western and regional governments have been pushing for, these nominations do not indicate the Taliban are willing to make any significant concessions for the sake of international recognition, sanctions relief or foreign aid; rather they are ‘designed largely to strike an internal balance by accommodating various Taliban factions that felt neglected following the first round of nominations.’[13]
[13] ICG, 28 September 2021
The United Nations General Assembly (UNGA) reported that while the Taliban have attempted to portray to the world that they will respect human rights and lead a more inclusive government, the reality on the ground does not reflect this. Rather, after seizing Kabul, the Taliban are reported to have erected checkpoints throughout the capital and shot people who crossed checkpoints without approval, conducting house-to-house searches for government personnel, weapons and property.[14]
[14] UNGA, 2 September 2021, p. 5
In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[15]
[15] UNHCR Position on Returns to Afghanistan August 2021 at Refworld
In January 2022, the Department of Foreign Affairs and Trade (DFAT) reported that the security situation in Afghanistan is volatile as a whole, but less dangerous than before August 2021 for many Afghans, due to the cessation of most armed conflict after the Taliban claimed victory. However, it notes that the security situation is still evolving and it is unclear how long the current relative peace will continue, particularly if Afghanistan’s economy collapses and the Taliban face greater internal challenge. Some sources suggest the Taliban is currently enjoying a honeymoon period which cannot endure, and that terrorist attacks will continue and likely increase.[16]
[16] DFAT Country Information Report Afghanistan 4 January 2022 at 2.16 – 2.23

In respect of the specific risk to Hazaras in Afghanistan, DFAT also notes that two of Islamic State – Khorasan Province (ISKP)’s mass-casualty attacks, along with smaller attacks since mid-August 2021, have directly targeted Shia mosques used mostly by Hazaras, and that in October 2021, ISKP issued a statement declaring it would target Shia ‘in every way, from slaughtering their necks to scattering their limbs’. DFAT reports that while the new Taliban government may be attempting to disrupt ISKP and prevent attacks on Hazaras, this ‘does not indicate it has put aside its historical antipathy towards Hazaras’; rather it has summarily executed Hazaras who were members of the security forces and forcibly displaced hundreds of Hazara families from their homes in central Afghanistan. Overall, DFAT assesses that Hazaras continue to face a high risk of harassment and violence from the Taliban and ISKP on the basis of their ethnicity and sectarian affiliation.[17]
[17] DFAT Country Information Report Afghanistan 4 January 2022 at 3.4–3.5
In February 2022 the UNHCR renewed their call for all countries to allow civilians fleeing Afghanistan access to their territories and to guarantee the right to seek asylum and ensure respect for the principle of non-refoulement, noting that recent developments are giving rise to an increase in the need for international refugee protection for people fleeing Afghanistan.[18]
[18] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022
In response to events in Afghanistan, the Australian government has announced it has increased its commitment to Afghanistan, recognising Afghan nationals as a priority group and providing an extra 31,500 places for Afghan nationals through the humanitarian and family visa programs.[19]
[19] Afghanistan update (homeaffairs.gov.au) as at 2 May 2022
At hearing the applicant and his wife were both distressed by the choice they will be forced to make if the applicant’s visa remains cancelled and the Minister does not intervene to allow him to apply for another visa. Those choices essentially boil down to the family’s permanent separation if the applicant returns to Afghanistan to avoid indefinite detention and his wife and child remain in Australia; or the dangers and deprivations the wife and young daughter will face if they return to Afghanistan with the applicant to keep the family together. In these circumstances, I accept that cancellation of the applicant’s visa would result in severe hardship not just to the applicant, but also his wife and daughter in Australia.
EXERCISE OF DISCRETION
I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant knowingly provided incorrect information about his identity and family composition, which he assessed would increase his chances of being granted the visa. However, in balancing all of the relevant factors the Tribunal considers that the matters to which it is required to have regard weigh overall against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the following matters:
·The applicant was very young at the time he provided the incorrect information, relying on the advice of people smugglers and being separated from his family after a difficult boat journey to Australia. At hearing he presented as an honest and thoughtful young man, committed to looking after his family in Australia and Pakistan;
·Had the delegate been aware of the correct information when the decision to grant the applicant the protection visa was made in 2012, it is likely that the applicant would still have been recognised as a refugee by the Department on the basis that he is an Afghan national of Hazara ethnicity and Shia religion and that he has a well-founded fear of persecution in Afghanistan;
·If the applicant’s visa remains cancelled, he cannot apply for any other substantive visa without the Minister’s intervention. If he cannot apply for or is not granted another visa, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. As he is the subject of a protection finding for the purposes of s 197C(3)(b) and none of the circumstances set out in s 197C(3)(c) currently apply, he cannot be removed from Australia and his detention may be prolonged or indefinite;
·The applicant is married to an Australian citizen and together they have an Australian citizen child, [Miss B]. The Tribunal is satisfied that cancelling the applicant’s visa will cause very significant hardship to the applicant and his family. Further it is clearly in the best interests of the applicant’s daughter that the applicant’s visa not be cancelled and the Tribunal is required to treat [Miss B]’s best interests as a primary consideration;
·Country information indicates the security situation in Afghanistan remains volatile and uncertain and DFAT assesses that Hazaras continue to face a high risk of harassment and violence from the Taliban and ISKP on the basis of their ethnicity and sectarian affiliation;
·The severity of the current security situation in Afghanistan is recognised by the Australian government’s increased commitment to Afghan nationals through its humanitarian and family visa programs. Cancelling the applicant’s visa at such a time to be disproportionate to the applicant’s actions in providing the incorrect information and difficult to reconcile with the Australian government’s stated commitment to assist Afghan nationals at risk of harm in that country.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
CONCLUSION
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.