2007140 (Migration)

[2022] AATA 407

2007140 (Migration) [2022] AATA 407 (20 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007140

MEMBER:Michael Cooke

DATE:20 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Statement made on 20 January 2022 at 4:07pm

CATCHWORDS

MIGRATION – cancellation – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – Federal Circuit Court remittal – incorrect answers in the visa application – bogus death certificate – father’s whereabouts unknown – providing financial support to parents – applicant’s community involvement – residence in Iran – disruption to education and employment – non-refoulement obligations – race – Hazara – security situation in Afghanistan – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 48, 99, 101, 107, 109, 140
Migration Regulations 1994, rr 1.14, 2.41; Schedule 2 cls 117.211, 117.221

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133           

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 117 (Orphan Relative) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that he breached ss.101 and 103 of the Act. 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. The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for reconsideration.

4. The applicant was represented in relation to the review by [his representative].

5. 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

6. 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.

7. 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.

   Visa applications to be correct

8. 101. A non-citizen must fill in his or her application form in such a way that:

   (a) all questions on it are answered; and

   (b) no incorrect answers are given.

   Bogus documents not to be given

   A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.

   If the visa holder did not comply with s101 incorrect information - application form, or s103 bogus document, his visa may be cancelled under section 109 of the Migration Act 1958.

   ·section 101 requires that a non-citizen must fill in or complete his or her application form in such a way that:

   (b) no incorrect answers are given or provided.

   ·section 103 Requires that a non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided;

9. At the time of the applicant’s visa application Section 97 of the Act (s.5 (1)) defines a bogus document as being “a document that the minister reasonably suspects:

   (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.’

10. By operation of s.99 of the Migration Act, any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

11. The evidence from the Orphan Relative (Offshore) Class (AH) (Subclass 117) visa discloses that:

12. On 30 October 2011 the applicant lodged an application for an Orphan Relative (Offshore) Class (AH) (subclass 117) visa. The application was based on him being an Orphan Relative of the sponsor, his older brother: [Mr A] ([DOB 1]).

13. To meet the requirements for the grant of an Orphan Relative visa, the applicant must satisfy, among other requirements, clause 117.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations), specifically:

14. The applicant:

    (a) continues to satisfy the criterion in clause 117.211.

15. At the time of decision clause 117.211 requires that:

    The applicant:

    (a) is an orphan relative of an Australian relative of the applicant; or

    (b) is not an orphan relative only because the applicant has been adopted by the Australian relative mentioned in paragraph (a).

16. Regulation 1.14 gives definition to an Orphan Relative for the purpose of the Act, as follows:

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a) the applicant:

    (i) has not turned 18; and

    (ii) does not have a spouse or de facto partner; and

    (iii) is a relative of that other person; and

    (b) the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c) there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.

17. The visa application form 47CH – Application for migration to Australia by a child that was submitted to the Department contained the following information:

    ·At question 2 in part A of the 47CH Form where it asked for the “Type of Application” the box denoting “Orphan Relative” was ticked

    ·At question 3 in Part B of the 47CH Form where it asked for the visa holder’s “Full name” the following information was provided:

    Family Name: [Specified]

    Given Names: [Applicant’s name]

18. At question 8 in Part B of the 47CH Form where it asked for the visa holder’s “Date of birth” the following information was provided:

    ”[DOB 2]”

19. At question 27 in Part D of the 47CH Form where it asked for “Details of other family members” the following information was provided:

    Name - Relationship - Current Residence

    [Mr B] - Father - Missing

    [Ms C] – Mother - Deceased

    [Mr A] – Brother - Australia

    [Ms D] – Sister - Pakistan

    [Mr E] – Brother - Iran

20. At question 56 in part M of the 47CH Form – “Declaration and Consent” when asked to declare the following the applicant said:

    ·I declare that the information I have supplied in this application is complete, correct and up to date in every detail

    ·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

    ·I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered.

    ·I have read and understood the information supplied to me in this application.

21. The Tribunal notes that the declaration was signed and dated.

22. The visa application form 40CH – Sponsorship for a child to migrate to Australia submitted to the Department contained the following information:

    At question 2 in Part B of the 40CH Form where it asked for “Child’s Full name” the following information was provided:

    Family Name: [Specified]

    Given Names: [Applicant’s name]

23. At question 6 in Part B of the 40CH Form where it asked for “Child’s Date of Birth” the following information was provided:

    [DOB 2]

24. At question 9 in Part B of the 40CH Form where it asked for “Child’s Relationship to you” the box denoting “Brother/sister” was ticked.

25. At question 12 in Part E of the 40CH Form where it asked: “Are the child’s parents both either dead, of unknown whereabouts or permanently incapacitated?” the box denoting “Yes” was ticked, and the following additional information was provided:

    Parent’s full name: [Mr B]

    Sex: Male

    Unknown whereabouts

    Parent’s full name: [Ms C]

    Sex: Female

    Dead

26. At question 15 in Part H of the 40CH Form where it asked for “Your details” the following information was provided:

    Family Name: [Family name specified]

    Given Names: [Mr A]

27. At question 17 in Part H of the 40CH Form where it asked for the applicant’s “Date of birth” the following information was provided:

    “[DOB 1]“

28. In support of the applicant’s Orphan Relative visa application a copy of his mother’s death certificate, dated [in] May 2011, was submitted which stated that his mother had been severely injured in a car accident and subsequently passed away from her injuries in September 2010.

29. On 15 January 2012 the applicant’s Orphan Relative visa was refused as the delegate was not satisfied that he met clause 117.221 (the applicant continues to satisfy clause 117.211) as the delegate was not satisfied the applicant met the age requirements due to the absence of verifiable documentation.

30. On 23 August 2012 the (former) MRT overturned the refusal decision on review. The Presiding Member (separately constituted) was satisfied based on documentary evidence submitted to the Department (and provided at the review stage) that the applicant was under 18 years of age.

31. In addition, the Presiding Member (separately constituted) accepted the evidence before it regarding the death of the applicant’s mother and his father who had been claimed as ‘missing/whereabouts unknown’ since 2007. The applicant was deemed to satisfy clause 117.22.

32. As a result, the applicant’s Orphan Relative visa was granted on 30 January 2013.

    Evidence – Financial Information

33. The Department has disclosed (in its decision record) that from investigation it had collated information which indicated the applicant had made a number of money transfers to accounts in Iran, Afghanistan and Pakistan in the period between [February] 2015 and [December] 2016.

34. This information included the following remittance transactions:

    Date, Transaction Amount, Recipient Name, Recipient contact

    [February] 2015, 2,630,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [September] 2015, 300 IRR, [Ms C variant 1] (Iran) [Account number]

    [October] 2015, 6,829,500 IRR, [Ms C] (Iran) [Account number]

    [April] 2016, 13,000,000 IRR, [Ms C] (Iran) [Account number]

    [May] 2016, 18,600,000 IRR, [Ms C] (Iran) [Account number]

    [December] 2016, 29,6000,000, IRR [Ms C variant 2] (Iran) [Account number]

35. In addition, the Department had information which indicated the applicant’s [Mr E] had made several money transfers to accounts in Iran, Afghanistan and Pakistan over the past few years.

36. This information disclosed the following remittance transactions:

    Date - Transaction Amount - Iranian Rials (IRR)

    Recipient Name - Recipient - Contact

    [June] 2013, 66,000,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [June] 2013, 3,070,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [September] 2013, 8,760,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [March] 2014, 10,400,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [September] 2014, 3,324,000 IRR, [Mr B variant 1] (Iran) [Account number]

    [June] 2015, 7,470,000, IRR [Ms C variant 1] (Iran) [Account number]

    [July] 2015, 13,481,500 IRR, [Ms C variant 1] (Iran) [Account number]

    [August] 2015, 5,760,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [October] 2015, 9,282,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [July] 2016, 40,000,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [July] 2016, 7,740,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [March] 2017, 11,640,00 IRR, [Ms C variant 1] (Iran) [Account number]

    [April] 2017, 14,250,000 IRR, [Ms C variant 1] (Iran) [Account number]

    [April] 2017, 10,000,000 IRR, [Ms C variant 1] (Iran) [Account number]

    Consideration regarding evidence.

37. The Tribunal notes that the names of the recipients of the above financial transfers; [various spellings of Ms C’s name] and [Mr B] match the names of both the applicant’s mother and father; [Ms C] and [Mr B]. Furthermore, there was no evidence before the Department that the applicant has any additional family members with similar names. The Department concluded that these transaction recipient names were slight variations on the names of the applicant’s mother and father. The applicant’s [Mr E] has acknowledged that his parents are alive thus the Tribunal is satisfied that the Departmental conclusion was correct.

38. The above information indicates that the applicant was regularly transferring funds to his mother who it is now conceded was not deceased as claimed in his application for his Orphan Relative visa lodged on 30 October 2011.

39. This significance of this information is that it strongly indicates he was not an orphan as claimed at the time of his Orphan Relative visa application and that he had intentionally provided incorrect information regarding his orphan status which was the primary consideration for the grant of his Orphan Relative visa.

40. As the applicant’s mother is not deceased as previously claimed, he would not meet (as a corollary) the criterion prescribed at clause 117.221 of The Regulations at time of decision. This would indicate that the applicant was/is not an Orphan Relative of the sponsor as defined in the Migration Act. The relevant information also discloses that while the applicant’s father may have been missing and thought dead at the time of the applicant’s Orphan Relative visa, this is not the case. As such the answers provided to questions in form 47CH – Application for migration to Australia by a child lodged on 30 October 2011 are also incorrect.

41. In response to the NOICC issued on 18 October 2017 the applicant provided the following information:

    ·The applicant completed [School 1], where besides achieving multiple awards he was the first school captain in history from a non-English speaking background

    ·He has been actively involved in fundraising for foster care, Syrian refugees, and Nepalese earthquake among many other charities.

    ·The applicant is currently studying a [two specified degrees] in [University 1] under a scholarship.

    ·He is currently working as an intern at [Employer 1].

    ·The applicant is heavily involved with the [Community Group 1] and provides support to community members. He is also a student member of [Professional Association 1].

    ·He resides with his brother; [Mr A] and provides him with moral support.

    ·The applicant has no criminal record and is a law-abiding citizen.

    ·He is regarded as peaceful, respectful and decent. He is greatly loved and respected by community members.

    ·The situation in Afghanistan is becoming more dangerous with the armed conflict involving the Taliban and other forces.

    ·No region in Afghanistan is immune from violence.

    ·As a citizen of Afghanistan, the applicant would be unable to reside in Iran permanently.

    ·At the time of visa application and decision the applicant was at a formative age and believed his parents were alive.

    ·It was not his intention to mislead the Department.

    ·If his visa is cancelled the applicant will be prevented from continuing to work with [Employer 1]. They have invested in me for two years. My double degree will remain uncompleted.

    ·I have two important projects with [Professional Association 1] which will be negatively impacted if my visa is cancelled.

    ·I have established my life in Australia.

    ·I will not be able to re-establish my life in Afghanistan. I will not be safe in Afghanistan

    ·The situation in Afghanistan is becoming more dangerous. The armed conflict involving the Taliban and other forces is becoming widespread around the country.

42. A statement provided by the applicant’s elder brother ([Mr A]) provided the following information:

    ·[The applicant] does very well in his studies, and he is the first and only member of our family to attend university.

    ·I am very proud of his academic achievements and good character. He is an ambitious person who dreams of working for NASA one day.

    ·He is a devoted young man who spends time running programmes to help disadvantaged refugee students and families

    ·At the time of lodgement of their orphan visa application [Mr E] and [the applicant] were living in Iran alone and illegally. I received calls relaying the news t our mother had been killed in a car accident.

    ·Once, our mother was found, we realised the news which we had been given about her death was incorrect. I supported [the applicant] to travel to Iran and visit our mother. [The applicant] was very happy when he was back from Iran.

    ·We were thinking about informing the Department about the great news our mother was alive, but we received advice saying we should wait until [the applicant] and [Mr E] obtained their Australian Citizenships in order to reduce the risk of their visas being cancelled.

    ·I will be severely affected emotionally and physically if my brothers are sent back to Afghanistan.

43. A statement provided by the applicant’s mother included the following information:

    ·In 2010 I was attacked and put into a vehicle where I was blindfolded and threatened with a handgun.

    ·They asked me about my husband, [Mr B].

    ·We were on the road for a long time before I was taken to a Mosque where I was interrogated and subjected to physical harm.

    ·Two days later I saw my husband inside the mosque.

    ·I was kept there for three years before being released

    ·I see my [children] are in Australia living in security without danger. I am concerned a visa cancellation outcome will put their lives at risk.

    ·My [children] have no chance of surviving in Afghanistan or Iran especially after residing in a Christian country such as Australia.

44. The following attachments were included in the response to the NOICC:

    ·[1] - Evidence of Involvement with Enlightenment Movement

    ·[2] - Evidence of Qualifications

    ·[3] - Reference letter from [School 1]

    ·[4] - Evidence of achievements at [School 1]

    ·[5] – Evidence of volunteering work

    ·[6] - Evidence of paid internship

    ·[7] - [Mr A] personal statement

    ·[8] - [Leader name] from [Community Group 1] statement

    ·[9] - Afghanistan country profile

    ·[10] - [The applicant’s] and [Mr E’s] joint personal statement - past history

    ·[11] - Personal statement from [Professional Association 1]

    ·[12] – Personal statement from the visa holder

    ·Citizenship letter from [named person]

    ·Australian media article: “Sydney man killed by Taliban because he was Australian”

    ·Photographs of the injury sustained by the visa holder’s father whilst in captivity

1. 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?

2. 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 ss.101 and 103 in the following respects: submission of incorrect information and a bogus document.

   Particulars of non-compliance under s.101.

3. The Tribunal is satisfied that incorrect information was provided on the applicant’s Orphan Relative visa which was lodged on 30 October 2011. In particular, the applicant’s role as an ‘Orphan Relative’ of the sponsor who is his older brother: [Mr A].

4. This information was incorrect as:

   ·At question 2 in part A of the 47CH Form where it asked for the “Type of Application” the box denoting “Orphan Relative” was ticked. The information collated by the Department (see the delegate’s decision record submitted to the Tribunal) indicates the applicant’s mother was not deceased at the time he applied for his Orphan Relative visa on 30 October 2011.

   ·At question 27 in Part D of the 47CH Form where it asked for “Details of other family members” the applicant stated his father was missing and his mother was deceased. The evidence before the Tribunal (see the delegate’s decision record submitted to the Tribunal) indicates that the applicant’s mother was not deceased at the time of his Orphan Relative visa application on 30 October 2011. Furthermore, while the applicant’s father may have been missing at the time of his application, this is patently no longer the case a conclusion supported by the evidence of the overseas currency transfers to him.

   ·At question 56 in part M of the 47CH Form – “Declaration and Consent” the applicant declared the following:

   I declare that the information I have supplied in this application is complete, correct and up to date in every detail

   I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

   I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered.

   I have read and understood the information supplied to me in this application. The evidence before me indicates the visa holder did not provide correct information in his Orphan Relative visa application lodged on 30 October 2011, specifically questions 2 and 27 of the 47CH Form

5. However, as has been elaborated earlier, further evidence has surfaced from Departmental investigation and visa processing which indicates that the applicant’s parents are alive and residing in Iran. Furthermore, the applicant has been in contact with them and has even sent them money on a regular basis. As a result of this revelation, the Tribunal finds that that the applicant does not meet the definition of ‘orphan’ as previously claimed. Consequently, the applicant did not also meet clause 117.221 of Schedule 2 to the Regulations as required for the grant of an Orphan Relative visa at time of decision.

6. Having read the accumulated evidence before it, the Tribunal finds that the applicant has not complied with section 101 of the Migration Act as incorrect answers were given in his application for the Orphan Relative visa application he lodged on 30 October 2011. That answer claimed that he was an Orphan Relative of his sponsor being his older brother [Mr A], and, furthermore, that he could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.

   Particulars of non-compliance under s.103

7. The Tribunal has concluded that the applicant has also not complied with section 103 of the Act either as he has provided a bogus document being the confirmation of his mother’s death in a certificate (dated [in] May 2011) which he submitted in support of his Orphan Relative visa application.

8. As Departmental investigation has shown, the evidence indicates that the applicant’s mother is not deceased and is, actually, residing in Iran.

9. The Tribunal finds that his mother’s (purported) death certificate provided with his Orphan Relative visa was, therefore, a bogus document.

   Conclusion on non-compliance

10. For these reasons, the Tribunal finds that there was non-compliance with ss.101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

11. 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).

12. 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. Briefly, they are:

    ·     the correct information

13. The correct information is that the applicant was not an orphan as claimed at the time of his Orphan Relative (Subclass 117) visa application on 30 October 2011.

14. Furthermore, his Orphan Relative visa was granted on the basis he satisfied the Minister he met the criteria for the visa, in that he was actually an orphan relative of the sponsor (his older brother [Mr A]) and that he could not be cared for by either parent because each of them was either dead, permanently incapacitated or of unknown whereabouts.

15. It is now apparent that the applicant’s parents are alive. The parents are residing in Iran and the applicant and his brothers have been transferring monies to their parents on a regular basis since June 2013. It was claimed that the applicant’s father was not released until April 2014. Yet there is evidence of two payments which were made to a beneficiary matching the name of their father on [date] and [date] June 2013.

16. The Tribunal is not satisfied that the applicant was an orphan as previously claimed.

17. The Tribunal observes that the correct information was material to the grant of the visa. The Tribunal, therefore, give this consideration significant weight in favour of cancellation.

    ·     the content of the genuine document (if any)

18. The evidence indicates that the applicant tendered a document (confirmation of his mother’s demise by way of a death certificate dated [in] May 2011) in support of his Orphan Relative visa application. The certificate denoted that his mother was severely injured in a car accident and died of the sustained injuries prior to reaching a hospital. The evidence before the Tribunal indicates his mother is not deceased and resides in Iran and the purported death certificate, he tendered, is thus a bogus document.

19. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document

20. The Tribunal observes that the Department relied on the accuracy of the applicant’s responses and declarations and the genuineness of his tendered documents when it made the decision to grant his Orphan Relative visa on 30 January 2013. Of course, his submitted information was incorrect and/or bogus and he should never have met clause 117.221 of Schedule 2 to the Regulations which was required for the grant of his Orphan Relative visa.

21. Plainly, his parents are very much alive, and their Australia-based family has been sending them continuing remittances to Iran. Thus, it can readily seen that the whole basis for the grant of his Orphan Relative visa was based, at least in part, on the incorrect information and a tendered bogus document all of which he used to intentionally mislead the Department in order to facilitate the grant of his visa.

22. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     the circumstances in which the non-compliance occurred

23. The circumstances in which the non-compliance occurred was when the applicant provided incorrect information in his application for his Orphan Relative visa. He also provided the Department with a bogus document in support of this application (his mother’s death certificate dated [in] May 2011). In response to the NOICC he has claimed that he truly believed his mother was deceased and his father was missing at the time of application and lodgement of his Orphan Relative visa. He further claims he did not become aware of their existence until June 2013 for his mother and April 2014 for his father.

24. However, the financial transactions uncovered by the Department tell a different story. In fact, the evidence discloses the applicant and his parents commenced transactions in June of 2013. The transactions confirm that the applicant’s brother and sponsor ([Mr A]), sent payments to a beneficiary matching the name of their father ([Mr B]) on [date] June 2013 and [date] June 2013.

25. Additionally, the applicant has admitted he failed to inform the Department when he claimed he became aware his parents were both alive - thus intentionally misleading the Department to secure an immigration advantage.

26. The Tribunal gives this consideration heavy weight in favour of cancellation.

    ·     the present circumstances of the applicant

27. In his response to the NOICC the applicant claimed he is currently enrolled in his second year of a double Bachelor’s degree in [specified subjects] with the [University 1]. He has submitted evidence of his scholarship with the education provider which covers his fees for up to four years. In addition, the applicant is a co-founder of [a student organisation at University 1]. He claims if his visa were cancelled his degrees will remain uncompleted. Furthermore, he claims his contract with [Employer 1] will cease after they have already invested in him for two years.

28. The Tribunal acknowledges that a visa cancellation outcome would cause the applicant significant disruption to his scholastic life and effectively terminate his career objectives.

29. The Tribunal gives this consideration heavy weight against cancellation.

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

30. It is submitted in June 2013 the applicant’s mother contacted the applicant and it was at this point he claimed he became aware both his mother and father were held captive by the Taliban and were in fact alive. It was further submitted that his father was released by the Taliban in 2014 and joined the applicant’s mother in Iran. The evidence, on the contrary, indicates that the family was in contact with the applicant’s father as early as [June] 2013.

31. The applicant claimed at the time of the application, that he was only [age] years old and had observed abductions, extortion and other crimes of the Taliban. He maintained that a young boy would believe elders confirming the death of his mother. The Tribunal acknowledges these claims. However, he then declared that when both his parents were found and (he and his brothers decided to inform the Department about their parents being found) they were advised by anonymous sources that their visa would be cancelled if they informed the Department. The applicant claimed he also heard that the best way to reduce the risk of his visa being cancelled was to wait until he was granted citizenship in Australia. He and his brother then took up this advice and suggestion and failed to reveal the true situation to the Department.

32. The problem for the applicant is that these claims must be juxtaposed with his behaviour in when applying and being granted the Orphan Relative visa.  This discloses that he has a pattern of intentionally misleading the Department and thus has poor credibility when making claims in mitigation.

33. The Tribunal gives this consideration some weight in favour of cancellation.

    ·     any other instances of non-compliance by the applicant known to the Minister

34. The Tribunal has no other instances of non-compliance by the applicant.

35. 43. The Tribunal give this consideration no weight in favour of cancellation.

    ·     the time that has elapsed since the non-compliance

36. The non-compliance occurred when the applicant lodged his Orphan Relative visa application on 30 October 2011. He arrived in Australia [in] February 2013 and has spent approximately three months offshore. The Tribunal considers nearly 9 years to be a considerable amount of time. It acknowledges the applicant does provide moral support to his brothers: [Mr A] and [Mr E].

37. The Tribunal is satisfied that the applicant has built strong ties to the community over this period of time and has been an outstanding student including currently holding an internship since June 2016.

38. The Tribunal gives this consideration heavy weight against cancellation.

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

39. There is no information before the Tribunal to indicate there have been any breaches of the law by the applicant since the non-compliance occurred.

40. The Tribunal gives this consideration significant weight against cancellation.

    ·     any contribution made by the applicant to the community.

41. In response to the NOICC it was submitted that the applicant contributes significantly to the community. In support of him, a number of his colleagues submitted character references which declared he is involved in a number of extra-curricular activities such as actively engaging in fundraising for numerous charities and his heavy voluntary involvement with [Community Group 1] which provides valuable support to community members. It has been attested that the applicant has a lot of potential and the drive to make a positive change in the community and assist those in need of support.

42. The Tribunal gives this consideration heavy weight against cancellation.

43. 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.

    Consideration of the prescribed factors, where relevant, or indicate where not relevant; any matters raised by the applicant in response to the s 107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

    ·whether there would be consequential cancellations under s 140.

44. Not applicable

    ·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

45. Not applicable

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

46. The applicant has submitted he would not be able to re-establish his life in Afghanistan as he does not know anyone, and he will not be safe due to his conflicting values with Afghan culture and values. In addition, he claimed he would not be accepted by the Iranian communities due to his Afghan citizenship and from previously residing illegally in Iran. The applicant also claimed he would more likely be in danger in Afghanistan due to his involvement with the ‘Enlightenment Movement’ and the perception he would be a promotor of Christianity in Afghanistan because of his father. He has submitted a newspaper report, in relation to the death of an Afghan man who had been killed by the Taliban because he had previously sought refuge in Australia.

47. According to Afghanistan expert and Professor of Diplomacy at Australian National University - Professor Maley:

    Iran's treatment of Afghan refugees has been subject to sustained criticism for subjecting Afghan refugees to human rights violations, including arbitrary arrest, detention and refoulement to Afghanistan. The asylum system does not provide Afghan refugees who have arrived after 2007 opportunities to obtain refugee status and it is increasingly difficult for Afghan refugees who registered as refugees before this time to re-register.

48. As an Afghan national, the Tribunal is satisfied that the applicant has no right to enter or reside in Iran - in a permanent sense.

49. The applicant insists he cannot return to live in Afghanistan either because as a Hazara person he would be subject to persecution and death under the new Taliban regime. The Hazara belong to the Shi’a tendency in Islam whilst the Taliban maintain the Sunni variant. It is historical fact that the Hazara have been subject to persecution under the previous Taliban regime.

50. Professor Maley has issued a recent report titled 'On the Return of Hazaras to Afghanistan'. In this report, Professor Maley describes the situation in Afghanistan as 'extraordinarily fluid' and observes even recent assessments of the situation 'do not necessarily provide an accurate picture of the situation in 2020 and beyond'. In Professor Maley's opinion, this fluidity means that roads that may have been safe in '2018 or 2019 may be unusable in 2020, and towns and cities that appeared 'safe' in 2019 may be extremely unsafe in 2020'.

51. Despite that evidence, the Tribunal does not consider that the applicant will be refouled if his visa is cancelled because the applicant is able to make an application for a Protection visa if he believes Australia owes him protection obligations.

52. The Tribunal gives this consideration heavy weight against cancellation

    ·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.

53. The likely consequences of a decision to affirm the cancellation of the applicant’s visa are listed below:

    ·It would enliven section 48 of the Act, limiting the types of visas the applicant could apply for.

    ·It would result in the applicant becoming an unlawful non-citizen and liable to be detained and removed from Australia.

54. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained. If the applicant is no longer a holder of a permanent visa, he could lose certain entitlements he may have had as a permanent resident of Australia.

55. The Tribunal give this consideration some weight against cancellation.

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

100.   Irrespective of his age at the time and the circumstances of his childhood as refugee in Iran and Pakistan, the Tribunal finds that applicant’s subterfuge - in claiming he was an orphan when he plainly was not - particularly egregious. He used trickery to secure entry into Australia. Nevertheless, since settling in Australia he has behaved as an upright person and has been generous towards his family and the community. He has been an excellent student. He now wishes to pursue a new life. The Tribunal finds these factors significant.

101.   Were the applicant to have his visa cancellation affirmed, the Tribunal is satisfied (in the contemporary political circumstances of Afghanistan) that he would suffer serious hardship. This is aside from any contemporaneous familial financial obligations in Australia and the familial separation anxiety which would logically ensue. The fact is that he is part of an Afghani racial group (Hazaras) which has been persecuted historically by the Taliban – the new rulers of Afghanistan.

102.   Country information (available to the Tribunal) indicates that Shi’a Hazaras face a high risk of being targeted by various militant groups for attack - based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.

103.   The Department of Home Affairs, Country of Origin Information Services Section (COISS), 'Return and Relocation Afghanistan' report, dated 23 October 2020, includes the following:

In February 2020, the UN stated they were 'gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life'.

104.   There is evidence that new Afghani Taliban Government has already persecuted Hazaras since their latest Governmental takeover. The country information clearly indicates that Hazaras are at elevated risk of targeting on the road networks in Afghanistan due to their ethnicity. Kidnapping and abductions by anti-government elements occur regularly, 'particularly on Afghanistan's highly insecure road network'. The Tribunal acknowledges the eventual future for Hazaras could be a repeat of the experiences they had under the previous Taliban regime pre-2001.

105.   The applicant, at a personal level, would have the added burden of confronting this situation alone when his family has already fled from Afghanistan to Iran or Australia. The applicant has espoused fears that, if returned to Afghanistan, he would be subject to repression and eventual death for reasons of his race and religious persuasion (Shi’a Muslim).

106.   The Tribunal is satisfied that, despite his birth in Iran and prior residence there with his family, were he somehow to enter Iran, he could be expelled back to Afghanistan at the whim of the Iranian Government. Thus, his personal long-term personal security would be impugned by any precipitate return to Afghanistan. The Tribunal accepts that if he is removed to Afghanistan, he will be identifiable as a Hazara Shi’a from his physical appearance and his language - called Hazaragi.

107.   The Tribunal accepts the applicant was born in Iran in [year] and has never properly lived in Afghanistan. The Tribunal accepts that the applicant has lived with his parents in Iran as a registered refugee but - having left Iran - he has lost his right to reside in Iran. The Tribunal accepts that his parents reside in Iran as refugees. His eldest brother sought asylum in Australia in 2009 and was found to be a refugee as a Hazara Shi’a from Afghanistan. The Tribunal accepts that the applicant has no meaningful connections in the country of Afghanistan.

108.   The foremost Australian expert on Afghanistan (Professor Maley) observes that there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan:

With the withdrawal of foreign forces, and particularly with the signing on 29 February 2020 of a US-Taliban agreement …there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a 'cascade', where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This … [phenomenon] … would likely create especially serious risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban and their associates in groups such as the Haqqani network.

109.   Professor Maley's assessment is that:

‘given this fluidity, there is no place in Afghanistan that can be considered safe for Hazaras.' International troops are withdrawing at a time when violence is escalating and members of the Hazara community in Australia have expressed concerns that a resurgent Taliban will step up attacks against the Hazara community.

110.   The Tribunal accepts that the aforementioned factors will only serve to elevate the risks he will face on any possible return. It is also clear that the applicant would suffer significant situational hardship if he returned to Afghanistan. Plainly, he has no local knowledge or experience let alone family support or network. Coupled with this are the ever-present and dangerous security conditions.

111.   The Tribunal has considered both the serious nature of the non-compliance and the circumstances in which the non-compliance occurred. Furthermore, the Tribunal acknowledges that tendering incorrect information and a bogus document to the Department is unethical behaviour and tends to compromise the entire visa system. Despite the Tribunal’s expressed concerns at the applicant’s disreputable visa history, it must be contrasted with applicant’s subsequent good behaviour, studiousness and community involvement since arrival in Australia.

112.   The egregious hardship factors elaborated above which could befall him (were he to be returned to Afghanistan) – are a significant concern to the Tribunal. As a consideration the Tribunal has decided to give these potential hardship considerations maximum weight against cancellation.

113.   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

114.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 117 (Orphan Relative) visa.

Michael Cooke
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.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

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.