2007959 (Refugee)

[2021] AATA 5140

2007959 (Refugee) [2021] AATA 5140 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007959

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:18 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 18 November 2021 at 12:40pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Pakistan – Federal Circuit Court remittal – incorrect answers and bogus documents in visa application – first information reports to police and statutory delaration – threats to family, attacks on father’s shop and brother, and applicant’s and father’s membership of religious organisation – departmental checks and answers by father in his visitor visa interview – credibility – reports obtained by father – concession that reports bogus but claim that events described in them occurred – claim that agent advised father not to mention applicant’s claims in his application and interview – discretion to cancel visa – Australian citizen partner’s mental health – effect of cancellation on possible partner visa application – study and plans to work in priority occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 107, 109, 359AA

Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

Sheptitskaya v MIBP [2015] FCCA 159

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis of concluding that documents that were submitted by the applicant through the protection visa application process were fabricated and that the subsequent retractions of his statements were not credible. 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 quashing the decision of the earlier differently constituted Tribunal. The court order explains the reasons as being:

   that the decision of the second respondent is affected by jurisdictional error because, in exercising its discretion under section 109(1) of the Migration Act 1958 (Cth) (“Act”), the second respondent had regard to the applicant’s provision of the Rawalpindi First Information Report (“FIR”) with his visa application as “another instance of non-compliance” for the purposes of considering the prescribed circumstance in reg 2.41(g) of the Migration Regulations 1994 (Cth), in circumstances where the Minister had not previously given the applicant a notice under section 107 of the Act giving particulars of any possible non-compliance in relation to the Rawalpindi FIR.

4. The applicant appeared before the Tribunal on 26 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], his partner. The resumed hearing proceeded by video on the 20 July 2021 as it was held during a period of lockdown arising from the Victorian government’s response to the COVID pandemic. The applicant had requested that the hearing proceed by video and not wait for a time in the future when a face to face hearing would be able to be held.

5. The Tribunal hearing was conducted in English with the assistance of an interpreter as and when it was required.

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

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. 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 two notices issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

11. 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 which are extracted below:

    Section 101:

    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.

    Section 103:

    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.

12. The delegate provided three notices of intention to consider cancellation. The first dated 17 March 2015 (“first NOICC”). A second notice the 2 November 2015 (“second NOICC”) provided additional particulars. A third dated 15 March 2016 (“third NOICC”) replaced the first NOICC as the wrong attachments were included with the first despatched NOICC.

    The First Information Reports

13. For the purposes of clarity, the applicant has throughout his engagement with the Department submitted three different First Information Reports (FIR), which are the mechanism by which a crime is reported to police in Pakistan. The three FIRs were lodged in three different police stations and as such I refer to them by the name of the police stations, the [Location 1 FIR] dated [May] 2010, Rawalpindi FIR dated [June] 2011 and the [Location 2 FIR] dated [July] 2011.

14. Similarly, for the purposes of clarity, I am providing extracts from these FIRs:

    [Location 1 FIR]:

    I had been receiving life threats on daily basis and people, who give the threats, say that they belong to Lashkar-e-Jhangvi. Yesterday on Friday [Date] May 2010, when I was present in the shop, seven persons suddenly intruded in the shop with sticks in their hands and they broke windowpanes of the shop and beat me with clubs and fists besides smashing [products] of worth 4/5 lac rupees. Meanwhile, people from the market gathered and saved my life and shifted me to hospital in injured condition. It is requested that legal action should be taken against the incident and security should be provided to me and my family.

    [Location 2 FIR]:

    At various intervals from different phone calls I am receiving messages from Lashkar-e-Jhangvi threatening to kill me and my family member, if I do not stop to preach Shiaism. Yesterday, due to this matter few accomplinces of the terrorists open fire on my son [the applicant] but by the sake of God he will escaped from the scene and save his life.

    Rawalpindi FIR:

    Yesterday, [Date] June 2011 at 2 o’clock (noon) I came from my native [village] towards Rawalpindi during that I saw a vehicle chase to us after that they hit our vehicle No. [Number 1] and our vehicle fell down in below the foot path. Due to this I and my children are seriously injured my vehicle are also damaged. When we reached the hospital we receive a call on that call the person who threatening to us ask to me that if you could not change your faith (Sect) we will kill you next time.

    The Notices of Intention to Consider Cancellation

15. The second NOICC identified the non-compliance as:

    1. On 11 October 2011 you applied for a Protection Visa. Included in your application are two documents described in paragraphs 2 and 3 below.

    2. A one page document in the Urdu language which I have attached to this notice and marked "attachment 1".

    3. A one page document purporting to be an English translation of the document described in paragraph 2. It is stated in this document that the document in paragraph 2 is a "First Information Report [FIR] Needing Police Intervention in Crimes Reported Under Section 154 of Criminal Procedure, No.[Number 2]" from the records of Book no.[Number 3], [Location 2] Police Station, Islamabad. I have attached this document to this notice and marked it "attachment 2".

    4. It is stated in the document described in paragraph 3 that the document described in paragraph 2 relates to a report made by [Mr B] [in] 07/2011 of a crime committed under section 427/506. 337G, 224/PC relating to threats from Lashkar-e-Jhangvi threatening to kill him and his family member if he does not stop "to preach shiaism".

    5. According to the document in paragraph 3, it is also recorded in the document described in paragraph 2 that the "informer" stated:

    ''Respected SHO Police Station [Location 2], Islamabad .. .. Yesterday due to this matter few accomplices of the terrorists open fire on my son [the applicant] but by the sake of God he will escaped from the scene and save his life ... "

    6. According to records of the Department of Immigration and Border Protection (DIBP), two DIBP officers, one of whom speaks Urdu, visited the [Location 2] Police station to verify the document described in paragraph 2. According to the record made by these DIBP officers:

    "The police were very forthcoming and the officers were able to inspect the FIR log book and determined that while there was a file number that corresponded to [the document described in paragraph 2] it in no way matched [it] and revolved around completely different people and circumstances."

    7. A senior officer at [Location 2] Police Station stated in relation to the document described in paragraph 2 that the FIR [Number 2] on their records related to a petition filed by a different person relating to a different crime and that the document described in paragraph 2 is "fake and selfmade".

    8. On 19 June 2014, your father, [Mr B], was interviewed by DIBP officers in relation to his application for a visitor visa. A documentary record was made of the answers he gave to the questions asked by DIBP officers. On this document it is recorded that he said to DIBP officers that he had only filed one FIR with the police and that related to a car accident.

    9. Based on the information in paragraphs 3, 6, 7, and 8, I reasonably suspect that the document described in paragraph 2 is a bogus document as that term is described in section 5 of the Act, as I reasonably suspect that it is a document that purports to be, but is not a record of [Location 2] Police Station, Islamabad and is therefore counterfeit.

    10. Your migration agent gave the document described in paragraph 2 to the Department on 10 November 2011 in connection with your visa application. I therefore infer that you gave this document to your migration agent and caused this document to be given to an officer performing a function under the Migration Act (deciding your protection visa application).

    11. Based on my conclusions in paragraph 9 and paragraph 10, I consider that you have not complied with section 103 of the Act.

16. The applicant responded in writing through his lawyers. The written submission included the claim, ‘Looking back in hindsight the document provided was most likely a fabrication given to the father to grant him false hope that the police would fulfill their duties and aid him.’ The submission went on to explain that the police were intimidated by militants and as such had reason to fabricate the document. Because of this fear, the submission explained, the report would not have been recorded into the computer system at the station. It is claimed that the applicant received the document from his father believing it to be legitimate.

17. At the hearing we discussed this [Location 2 FIR]. The applicante explained that it described an incident that involved his younger brother. He was coming back from university on a motorbike when some people opened fire on him. He said that the family were getting threats at the time and later he claimed that they received a telephone call stating that his son was lucky but that he wouldn’t be the next time. The applicant stated that his brother had not faced any other incidents since then. This incident occurred about a month after the earlier incident against the entire family which was reported in the Rawalpindi FIR. While the applicant’s father had body guards at this time following the first incident his son did not have any body guards.

18. I put to the applicant that the NOICC mentioned that when the Departmental officers engaged with the Pakistan police officers they wrote: 'The police were very forthcoming and the officers were able to inspect the FIR log book and determined that while there was a file number that corresponded to [the document described in paragraph 2] it in no way matched [it] and revolved around completely different people and circumstances.’ The applicant responded that the FIR was given to him and he is not denying the research undertaken by the Department, but he is simply not sure what happened.

19. The applicant said at the hearing and made submissions following the hearing that the reason for the Department’s inability to find the FIR is that the ‘book number’, that is the FIR book that was used to register the FIR, was different. This is correct. For the [Location 1 FIR] submitted by the applicant the book number is [Number 4] whereas the book number of the FIR held at the [Location 1] Police Station is [Number 5]. The Department’s investigation involved sending the FIR number and the date of the lodgement to the relevant police station. In response the police identified an alternative FIR document that had the same FIR number but a different book number. I find that the argument is not persuasive. The Department visited the police station and together with a a person described as a long serving police officer reviewed the FIR Register. Together they identified the FIR with the claimed FIR number. To suggest that the Department officials and the long serving police officer did not understand that there are book numbers is unconvincing. That the book number is different to the book number present in the police station is only further indication that the FIR itself is fraudulent and the book number was created without knowledge of the actual book being used in the police station.

20. The third NOICC identified the non-compliance as:

    1. On 11 October 2011 you applied for a Protection Visa, documents relating to this application are contained on Department of Immigration and Border Protection (DIBP) file [number]. Included in your application are the following documents.

    2. A two page statutory declaration made by you on 8 November 2011 that I have attached to this notice and marked "attachment 1 ". In that statutory declaration you state that you are a member of Shia community Fiqah Jaffaria and that you came to Australia on a student visa in desperation to leave Pakistan where you were being arrested and persecuted because of your faith.

    3. A one page document in the Urdu language contained on folio 39 of DIBP file [number], which I have attached to this notice and marked "attachment 2".

    4. A one page document purporting to be an English language translation of the document described in paragraph 3, which I have attached to this notice and marked "attachment 3".

    5. On 19 June 2014 your father, [Mr B], was interviewed by DIBP officers in relation to his application for a visitor visa. A documentary record was made of the answers he gave to questions asked by DIBP officers. On this document it is recorded that he gave DIBP officers the following information:

    • He does not belong to any political or religious organisations and has no leadership position in the Shia community.

    • No one in his family has ever been attacked. No one has ever shot at his family with a gun. He has no bodyguards or security guards. Everything is normal for his life and his family's life in Pakistan.

    • There has never been any problems with his shop.

    • You had only been hurt twice, in a car accident and a bike accident. There was no one in the car with you at the time of the car accident, you were returning from college alone. No one else in your family was injured in a car accident.

    6. In July 2014 DIBP officers made inquiries with the [Location 1] Police Station, who purportedly authored the document described in paragraph 3. In response to these inquiries an officer from [Location 1] Police Station stated in a one page document that the document described in paragraph 3 “is totally fake and not registered in the FIR book of P.S. [Location 1].” I have attached this document to this notice and marked it "attachment 4".

    7. Based on the information in paragraphs 5 and 6, I consider that the information in paragraphs 6, 8, 9, 11, 13 and 15 of the document described in paragraph 2 is incorrect.

    8. Based on the information in paragraph 6, I consider that the document described in paragraph 3 is a "bogus document" as that term is defined in section 5 of the Act as it purports to have been issued by [Location 1] Police Station but was not in fact so issued. It appears that you caused this document to be given to an officer performing a function under the Migration Act (deciding your protection visa application).

21. For the purposes of this decision I have summarised attachments 1-4 of the third NOICC.

    Attachment 1: Statutory declaration made by the applicant on 8 November 2011 for the purposes of his application for protection. I have extracted the key paragraphs from the statutory declaration. These are paragraphs that were identified in the third NOICC as comprising the incorrect information:

    6. [In] May 2010 seven persons intruded into my father's shop where I was working and beat me with sticks and fists and threaten that they will kill me. I have a scar on my [body part] from this incident.

    8. Shortly after I came to Australia I was advised that my family had been attacked again.

    9. [In] June 2011 at 2:00pm, my family were driving from [our native village], and they were followed by a car. This car intentionally crashed into my family car and my family were all seriously injured.

    11. My father is the [office holder] of Tahreek Jaffaria, which is a Shia Muslim religious group. This body holds records of all Shia Muslims in Pakistan.

    13. Shortly after this my little brother was going to college on his bike and some people shot at him, however he was fortunate enough to escape.

    15. My father's high profile and position within the Tahreek means that I too am well known and easily identifiable

22. Attachment 2 and 3 are the Urdu and English language translations of the FIR dated [May] 2010 lodged at [Location 1]. The key information in this FIR is:

    Respected Sir, it is stated that my father, [Mr B] has a business of [products] shop in the name of [Shop name] in [Location 3] area with partnership of [Mr C]. I had also been working on the shop of [Shop name] in [Location 3] area with partnership of [Mr C]. I am a member of lmamia Students Organization. I had been receiving life threats on daily basis and people, who give the threats, say that they belong to Lashkar-e-Jhangvi. Yesterday on Friday, [Date] May 2010, when I was present in the shop, seven persons suddenly intruded in the shop with sticks in their hands and they broke windowpanes of the shop and beat me with clubs and fists besides smashing [products] of worth 4/5 lac rupees. Meanwhile, people from the market gathered and saved my life and shifted me to hospital in injured condition. It is requested that legal action should be taken against the incident and security should be provided to me and my family.

    The report has been prepared after receiving application from the plaintiff at 0245 P.M for the above mentioned crime. The original application along with a copy of FIR is being sent through the SI for investigation through the constable, who brought the [indecipherable] of the FIR are being dispatched to concerned authorities.

1. Attachment 4 is the letter from the [Location 1] Police Station obtained by DIBP officers. It states in full the following:

   It is certified that the FIR No.[Number 6] dates [May]-2010 under [specified section] P.S. [Location 1] which is discussed in your letter is totally fake and not registered in the FIR book of P.S. [Location 1]. I have checked records of said date and sending the details to you.

   24.      The applicant responded to the third NOICC with the following:

   a.That because the FIR (attachment 2) does not exist in the police system as detailed in attachment 4 does not mean that it is fake.

   b.That the police officer who had responded to the Departmental request for verification was never spoken to and as such the investigation is incomplete.

   c.The father obtained the FIR and as such the applicant should not be held culpable for its possible fabrication.

   d.Regarding the father’s evidence, it was claimed that the father ‘shied away from raising many political claims as he believed they would adversely affect his chances of being granted protection.’ In addition, he can’t speak English and as a result an agent in Pakistan wrote answers down that the agent believed to afford the father a better chance of being granted protection.

2. At the hearing we discussed the third NOICC. The applicant claimed that the [Location 1 FIR] was obtained by his father who obtained it from the police station. He said that he then sent it to the applicant. He had enquired of his father how he had obtained it to which his father said that he had gone there personally to obtain it. We discussed the process of making a FIR and who can obtain one. The applicant said that only the people who made the FIR can obtain a copy of it. He said that the FIR was made by himself and his father.

3. I noted that the Department had followed up with the police station to inquire about the validity and I asked the applicant what the reason could be that the FIR was found to be invalid. He said that Shia Muslims are minorities in Pakistan and when they file FIRs no action is taken. He said that his father received a copy of the FIR and that he isn’t sure what happened for this to have changed. He added that there is a chance that it was simply misplaced and not followed up. He said that FIRs are written by hand in books and that its easy to tear them off. He described that each page in the book is a new FIR with sequential serial numbers.

4. I put to the applicant that he had claimed to have reported it to the police himself. He claimed that he witnessed the writing of the report into the FIR log book. I asked if he had any ideas of how this inconsistency could have emerged in that he watched it being inputted into the FIR book while Departmental investigations reveal that this was not the case. He fears that it is because he is Shia Muslim and therefore they don’t care what happens to people like him.

5. The Tribunal may consider other evidence relevant to the particularised non-compliance that was not used to make out the grounds in the third NOICC.[1] In this instance I noted at the hearing that the Departmental officers visited the police station in [Location 1]. A report which was available to the Tribunal was put to the applicant under s.359AA. The information I put to the applicant was that subsequent to the delegate’s decision the Department visited the [Location 1] police station. I read to the applicant from the findings:

   The Police report was confirmed as "not-genuine" by Police at SI Police station [Location 1], Rawalpindi, Pakistan. The police showed the departmental officer the book in which FIRs are all recorded by serial number. The FIR numbered [Number 7] was located in the book. The serial number was in order ie: following [the number before Number 7] and before [the number after Number 7]. The text of the report at [Number 7] did not match that on the report provided by the applicant.

   [1] Sheptitskaya v MIBP [2015] FCCA 159 at [10]–[16].

6. I explained to the applicant that the information is relevant to the review as it leads to the credibility of his claim and would reinforce the view that he had submitted a bogus document and that this may lead the Tribunal to find that there are grounds for cancellation. I asked whether the applicant needed an adjournment to which he responded that he did not need one and proceeded to provide a response. He accepted that there was no FIR as he had submitted to the Department but said that he had never been dishonest and that the FIR was given to him. He said that he doesn’t know how the book was changed or if the serial number was changed. He said that there is so much corruption in the country that you need money to ensure action is taken by the police following the submission of a FIR. He inferred that there was some mix up or dishonesty on the part of others.

7. I shared at the hearing a document that the applicant had submitted to the Department in response to the third NOICC. It is a document addressed to the ‘Visa Officer’ purportedly from the [Location 1] police station. It states, ‘On the request of Plaintiff, we had search our FIR database back to 2010. We found our record books of FIR’s in which FIR No.[Number 7] dated [May]-2010 under [specified section] P.S. [Location 1] is present. Due to 2013 floods, our record was damaged and was very difficult for us to find this report.’ I read this to the applicant.

8. The applicant was aware of the document. He explained that when the NOICC was received, he spoke to his father and his father went back to the [Location 1] police station and the document was provided. I asked him about the discrepancy between what the Department experienced in engaging with the [Location 1] police station relative to what the applicant had submitted. He responded that his father had confronted the police station officers stating that his son was in trouble because officers in the police station had given different information to the Department than what they had received. The applicant said that in response to this the police officers gave that letter explaining the situation. He also said that the officer who made the FIR probably moved to another police station and no one had asked that person.

9. In extensive and detailed submissions made by the applicant’s lawyer it was claimed that the events described in both the [Location 2] and [Location 1 FIR] were accurate but that the applicant does not dispute that the FIRs themselves are bogus.

10. I discussed at the hearing s.103 noting that it encompasses situations when a non-citizen gives, presents or produces to the Department a bogus document or ‘states or cause such a document to be so given, presented, produced or provided’. As such that the applicant did not know that the FIRs were bogus believing them to be real does not obviate the obligation upon the applicant to provide documents that are not bogus.

11. In addition to the claimed submission of a bogus document we discussed the other content of the third NOICC, namely the interview with the applicant’s father for his visitor visa application. The applicant’s father applied for a visitor visa on the 19 June 2014 after the applicant’s protection visa had been granted. I noted that it was recorded in the NOICC that the father gave the following information:

    He does not belong to any political or religious organisations and has no leadership position in the Shia community.

    No one in his family has ever been attacked. No one has ever shot at his family with a gun. He has no bodyguards or security guards. Everything is normal for his life and his family's life in Pakistan.

    There has never been any problems with his shop.

    You had only been hurt twice, in a car accident and a bike accident. There was no one in the car with you at the time of the car accident, you were returning from college alone. No one else in your family was injured in a car accident.

12. The applicant explained that when his father applied for the visitor visa the agents in Pakistan told him not to mention anything about his son’s protection visa claims during the interview. He said that for that reason the father avoided mentioning anything related to the applicant’s protection claims. He believes that this was done to help him get the visitor visa as his son had claimed protection and he feared that the Australian government would deny him a visitor visa believing that he too would apply for protection. The father subsequently provided a declaration dated 24 March 2015 that the answers to the questions he had given at the visitor visa application were not based on fact. He does not specify, in this declaration, which answers were not factual.

13. In summary, the Department provided to the applicant three notices of intention to consider cancellation. The first was abrograted by the third. Across the two remaining NOICCs there were three issues particularised as grounds for cancellation, namely the [Location 2] and [Location 1 FIR] as being bogus documents and the applicant’s 8 November 2011 statutory declaration accompanying his visa application as including incorrect information. The evidence to find that the applicant had acted in breach of ss.103 and 104 was the Department’s correspondence and engagement with the [Location 2] and [Location 1] police stations and the statement of the applicant’s father that contradicted the statements of the applicant in the 8 November 2011 statutory declaration.

14. The applicant has claimed that the events described in the FIRs did occur, even if the FIRs are fraudulent, and that his father’s denials regarding those events during his visitor visa interview were fabricated to increase his chance of obtaining a visitor visa. The applicant suggested that one explanation for the absence of the FIRs could have been that the police were afraid of repercussions and as such did not formally record the complaint into the computer system. This explanation, though, does not align with the applicant’s evidence regarding how FIRs are recorded. He explained that they are recorded in books with each page being a single FIR, consecutively numbered. The applicant suggested that the FIR could have been torn out of the book but this was rebutted by information I gave to the applicant under s.359AA that the the Departmental officers personally went to the police station and viewed the FIR book and found no missing pages. The applicant referred to corruption being endemic and suggested that this could be a reason, earlier indicating that the police didn’t want to admit to error or fraud or that they possibly used a fake book when the FIRs were lodged. A document had been submitted earlier suggesting that the FIR could not be found due to flooding. None of the applicant’s reasoning are convincing. The applicant’s own evidence was that they used books not computer systems. He said that he knew what a FIR book looked like and that he had personally lodged the [Location 1 FIR] into the FIR Register. The Australian government found the specific book for the [Location 1 FIR] and was able to verify the non-existence of the claimed FIR. There was no suggestion of a flood affecting the book. While corruption is extensive in Pakistan, the claims, as narrated by the applicant, was that the police accepted the FIR he claimed to have personally made.

15. In pre-hearing submissions by the applicant’s representative it is stated that the applicant does not dispute that the [Location 2 FIR] and the [Location 1 FIR] are both bogus documents as defined by s 5. Despite the written submissions by the representatives in the accompanying statutory declaration the applicant did not personally make a similar statement.

16. As noted above, s.103 does not require knowledge by an applicant of a document being bogus but rather only that the applicant has caused a bogus document to be given to the Department. In this case it is not in dispute that the applicant caused the documents to be given.

17. Need to understand whether he said that they were fake

18. For this reason, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

19. As noted above, the third NOICC also identified incorrect information arising from the applicant’s 8 November 2011 statutory declaration. There is a degree of overlap relating to the incidents as is shown below. But the substance of the matter is different. The NOICC particularised incorrect information in this instance as opposed to bogus documents. In response, the applicant maintains that the incidents did occur even though the FIRs may be fraudulent. The relevant information in the applicant’s statutory declaration is:

    a.the claimed incident [in] May 2010 in which the applicant claimed that seven persons intruded into his father's shop where he was working and beat him with sticks and fists and threatened to kill him [this claim relates to the same incident as was described in the [Location 1 FIR]

    b.a further incident in which he claims that his family had been attacked. This incident was said to have occurred [in] June 2011 at 2:00pm when his family were driving from [Village 1] and a car intentionally crashed into them. [this claim relates to the same incident as was described in the Rawalpindi FIR]

    c.claims that his father is the [office holder] of Tahreek Jaffaria and related to this that because of his father’s high profile position he is also well known and easily identifiable.

    d.The attack on the applicant’s brother while he was on his way to college [this claim relates to the same incident as was described in the [Location 2 FIR]

    The claimed incident [in] May 2010

20. I will consider each separately. With regards to the incident [in] May 2010 the applicant has maintained a consistent narration through multiple engagements including the Department and a differently constituted Tribunal. This weighs in favour of his claims. But he has also claimed that he personally completed a FIR at the [Location 1] police station for which there is no record. This is vexing. The applicant’s responses to this lack of a record were not convincing, as discussed above. In addition, there is the issue of the answers given by the applicant’s father. The applicant explained the father’s answers as being coached. In a declaration dated 24 March 2015 the father stated that he was ‘mentally depressed’ and that he gave answers in ‘extreme frustration’ because he wanted to see his son. Considering the evidence as a whole, I am swayed by the difference in claims between the applicant claiming to have lodged a FIR and there been proof that it did not exist. I find that this inconsistency outweighs the other arguments put to the Tribunal explaining the circumstances that surround this issue. As such I find that the applicant did provide incorrect information by way of claiming that he was involved in an incident [in] May 2010.

    The claimed incident [in] June 2011

21. Regarding the incident in which it is claimed that the applicant’s family were run off of the road I note that the associated FIR has not been disputed by the Department. In addition, newspapers clippings were provided of the There is no evidence to suggest that it is not genuine. While the applicant’s credibility is damaged as a result of having found that he provided incorrect information regarding being involved in an incident at his father’s shop it is not sufficient for me to find that the applicant is lacking credibility. Without evidence to the contrary I accept that were run off the road [in] June 2010 and as such the applicant did not provide incorrect information.

    The applicant’s father and the Tahreek Jaffaria

22. I next turn my mind to the claims that the applicant’s father is the [office holder] of Tahreek Jaffaria and that the applicant is well known as a result. The pertinent issues to consider are whether the applicant’s father holds a position with the Tahreek Jaffaria, whether he is the [office holder] secretary and whether his prominent is such that his son is well known and easily identifiable.

23. The applicant provided a considerable number of photos of his father alongside high profile TJP leaders. The applicant provided photos of his father claiming to be in Pakistan and Iran. He claimed that the photos of his father in Iran was from late 2019 or early 2020. In the photographs he was photographed alongside Ulama Ameen Hussain Shaheedi, Director of Majlis e Wahdat e Muslimeen; Ulama Syed Sajjd Ali Naqvi, TJP leader; Syed Sajjad Kazmi, District President in Pridi Division; Arif Wahidid, TJP General Secretary; Ulama Syed Jan Ali Shah Kazmi, highest religious leader and banned from Pakistan; Ulama Syed Tehreer Naqvi, a teacher of TJP in Iran.

24. The applicant explained the structure of TJP in relation to the photos of the people the applicant’s father was standing next to. He explained that the General Secretary sits at the top with a secretary/president for each of the districts immediately below and under them are ulema who go to the towns and villages to preach. The applicant’s father is on the third or fourth hierarchy below the in hierarchical order, the general secretary and secretaries. His father reports to the secretaries but sometimes to the general secretary. He deals with [specified tasks] at the national level including [examples redacted].

25. The applicant explained that his father does not appear in the media because all of the representation in the media is through the general secretary.

26. I put to the applicant country information that suggests the TJP has links to Iran, in part, as it was established to follow the teachings of Ayatollah Khomeini who led the Iranian revolution.[2] Country information indicates that Ulama Syed Sajjd Ali Naqvi took over leadership of TJP in 1988. The TJP was proscribed as a terrorist group by President Pervez Musharraf on January 12, 2002. Syed Naqvi then renamed it to Tehrik-e-Islami Pakistan. This group was then proscribed as a terrorist outfit in 2003. The current incarnation of the group is ‘Shia Ulema Council’. 

    [2] >

    He responded that the links to Iran are based upon Shia teaching and that is that one follows an Ayatollah. In the applicant’s case he follows Ayatollah Sistani. The link to Iran was due to the relationship with Ayatollahs in Iran. He also responded that the TJP remains in existence while there is also a Shia Ulema Council. He described the TJP as the main group with others as off shoots.

27. I put to him that there are reports that, ‘since 1994, the Sipah-e-Muhammad Pakistan (SMP), a splinter group of the TJP with a significant following in Jhang has emerged as a prominent Shia terrorist outfit involved in anti-SSP campaigns, violence and target killings.’[3] Since then according to an Australian government research report members of the group have been operating under various other names including Islami-e-Tehreek-e-Pakistan, Millat-e-Jaferia and Tehrik-e-Nifaz-e-Fiqh-e-Jafaria[4]

    [3]

    [4] Pakistan – PAK33887 – Tehreek-e-Nifaz-e-Fiqh-e-Jafariya (TNFJ) – Tehrik-e-Jafariya Pakistan (TJP) – Islami Tehreek-Pakistan (ITP) – Millat-e-Jafariya – Sectarian Groups – Shi’a – Sunni – Rawalpindi

28. The applicant said that he is only familiar with the last one but he is not associated with any of them. He said that there are many groups with new names and new ulema.

29. Reports describe tensions and violence between extremist Sunni groups such as Anjuman Sipah-e-Sahaba and the Shia community of TJP and its militant group, SMP. At the heart of the differences is a fear of forced domination over the other by the rival theology.[5] But by 2016 it was claimed that TJP/its successor ‘had lost almost all relevance’, and instead another Shia party, ‘Council of Unity of Muslims’ had been able to mobilise Shias at huge conventions and in country-wide street agitation.[6] The applicant responded that there were a lot of political issues in the group. He said that he is not sure what happened there. He said that he believes that the TJP still have support. When asked whether he discussed these issues with his father he said that his father doesn’t talk about such things with him when they talk.

    [5] Quoted in Pakistan: CI171220170941198 - Tehreek-e-Jaffaria Pakistan - Daily

1. The applicant described to the Tribunal his role with the Imamia Students Organisation (ISO) while living in Pakistan. He said that the ISO was working under the coordination of Tehreek-e-Jaferia Pakistan (TJP). Some of the activities he would do include checking for weapons at events, helping new students so that they are not discriminated against and that they have a basic foundation of knowledge. He would assign tasks. If he were to return to Pakistan he said that he would once again contribute to ISO despite not being a student as it allows non-students to participate. He said that he was a ‘senior member of ISO’ meaning that he was a long serving member.

2. I put to the applicant country information that the Imamia Student Organisation was banned along with all student organisations in Pakistan in 1984. The ban was lifted in 2008. From what I have read the ISO was established before the TNJ/TNFJ but became a dominant wing of the TNJ subsequently.[7] The applicant said that in 2008/9 he completed his year 12. I put to him that the ban on ISO was lifted in 2008 and asked how he was participating in ISO if it was a banned organisation. He said that in Pakistan, even if the organisation is banned, during community events, Ramadan, Muharam, they are still active and involved. The TJP relied on the younger generation, officially banned but still active. He said that most of the time with religious groups were volunteers, still operated as normal even if banned. It affected the leaders, but as young generation still helped to get things moving.

   [7] Pakistan – PAK38118 – Imamia Student Organisation (ISO) – Tehrik-e-Nifaz-e-Fiqh-e-Jafaria (TNFJ) – Tehrik-e-Jafaria Pakistan (TJP) – Rawalpindi 28 February 2011

3. Based upon the above information I am satisfied that the applicant’s father held at the time of application when the applicant’s statutory declaration was made and continues to hold a position with the Tahreek Jaffaria. I am not convinced that the applicant’s father is the [office holder] as opposed to a [office holder] among others considering that he operates at the provincial level. As to the prominence of the father and therefore the degree to which the son is ‘well known’ and ‘easily identifiable’, I find that this is subjective and contextual. Some may consider him well known others may not. It may be that he is well known in a particular area of Pakistan and not in another. The answer to these question is relevant in a future review of whether the applicant is at risk of refoulement but not as a grounds for cancellation.

   The claimed incident on the applicant’s brother

4. In this instance the applicant has acquiesced that the [Location 2 FIR] is a bogus document but claims that the incident nevertheless did occur. The question in this case is not whether the [Location 2 FIR] is bogus but rather, specifically, whether what the applicant wrote in his statutory declaration amounts to incorrect information. In this instance it is important to repeat the relevant statement:

   Shortly after this my little brother was going to college on his bike and some people shot at him, however he was fortunate enough to escape.

5. As noted above, the applicant’s credibility is compromised but not fatally for having provided incorrect information regarding his own involvement in lodging a FIR. In this instance, country information incidates that the period during which the applicant claims his brother was attacked was a particularly violent period in Pakistan’s history.[8] In addition, the applicant provided newspaper clippings of reports describing the attack. As there is no evidence to contradict the applicant’s claims and they align with country information and noting that in his statement the applicant was simply claiming that ‘some people’ had attacked his brother I find that the event occurred without accepting the applicant’s speculation as to who and why he was attacked. For this reason I find that the applicant did not provide incorrect information regarding the incident involving his brother.

   [8]

6. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in only one element, namely the applicant’s claims regarding the incident at his father’s shop, from among what was particularised in the s.107 notice.

   Should the visa be cancelled?

7. As the Tribunal has decided that there was non-compliance under ss 101 and 103 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).

8. In exercising this power the Tribunal must have regard to the prescribed circumstances set out in r.2.41 of the Regulations.

   The correct information

9. Of the information that was particularised in the NOICC and which I found to be incorrect information and therefore grounds of cancellation is that the applicant’s father is not the [office holder] of the TJP but an [office holder] among others. This is an important difference that reflects the seniority of the applicant’s father and subsequently the risk that the applicant may be exposed to. Having said that I am not convinced that this distinction was by design as opposed to a wrong impression of the level of detail required by Departmental officers to accurately assess claims. For this reason I place some weight in favour of cancelling the applicant’s visa.

   The content of the genuine document

10. Of the documents that were particularised in the NOICC as being bogus documents as per s 103, I found the [Location 1] and [Location 2 FIR] to be bogus. While the applicant claimed that he had completed a FIR at the police station, I found that he had not. As such there is no genuine document. With regards to the [Location 2 FIR], while I accepted that the event occurred I did not accept that there exists a genuine [Location 2 FIR] as I found that the applicant’s family did not lodge a report. As the applicant has caused to be given to the Department two bogus documents I place substantial weight in favour of cancelling the applicant’s visa.

    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

11. The application for a visa was initially refused on 18 January 2021 by the Minister’s delegate but subsequently remitted for reconsideration by a member of the Refugee Review Tribunal. The member accepted the applicant’s claims and found him credible. The member concluded in his decision dated 3 May 2013 that the there is a real chance tha the applicant will attract the attention of Lashkar-e-Jangvi or other Sunni extremists and be assaulted such that he would suffer severe injury that amounts to persecution. The reasons given by the member for foreseeing this real chance of harm include separately and individually, reasons of the applicant’s Shia faith, because of his membership of his father’s family, because of his involvement in the ISO or because of his views against the Lashkar-e-Jangvi and other extremist groups.

12. The member accepted the applicant’s evidence including the two FIRs discussed above and the evidence provided in his statutory declaration accompanying his application. The member found the applicant credible and accepted his narration of events. As I have found some of the information to be incorrect and some of the documents to be bogus documents I find that the decision to clear the visa holder was based partly on incorrect information and bogus documents. 

    The circumstances in which the non-compliance occurred

13. The applicant claims that he was not aware of the documents being bogus. He claims that he was present at the police station when the [Location 1 FIR] was lodged. He claims that police may have been afraid to formally register the FIR.

14. In summary, the applicant has claimed and has maintained that he personally applied for the FIR, that it was registered properly and that any subsequent discovery of improprietry was possibly due to the police fearing or requiring to be paid to register claims made by Shia or claims against Shia.

15. In considering the evidence before me it is accepted that the [Location 1 FIR] submitted by the applicant is not the FIR that is recorded in the [Location 1] police station. The question is whether the applicant’s suspicions for the reasons that this is the case are true. I do not accept that they are for the following reasons. The applicant has described the process of registering a FIR. He explained that it included writing out the matter on a sequentially numbered page in a large book which holds the reports. For the applicant’s suspicions to be borne out the police would have had to have maintained a fake FIR book which they would use when applicants whose incidents they do not want to respond to or those that don’t bribe the police come to lodge complaints. I find this to be highly unlikely as there are other ways that police could not investigate an incident or pressure applicants to pay a bribe such as by simply not committing the necessary resources to follow up on the incident. There is no country information to suggest that this approach has been reported or recorded as happening anywhere in Pakistan.[9] For this reason I do not accept that the applicant registered a FIR as he described.

    [9]

16. As the circumstances in which the non-compliance occurred do not mitigate his culpability I place substantial weight in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

17. The applicant is in a relationship with [Ms A] since 2012. They moved in together late 2012. Since then they tried to have a baby but have experienced tragedy including a miscarriage and the birth of a still born child. They want to have a family together. They have had a religious marriage but they have not married legally as they want to finish their studies. They plan to marry at the end of the year and buy their own house. The applicant stated that [Ms A]’s parents offered to contribute to buying a house.

18. I asked what options they would have as a couple if the visa cancellation was affirmed. The applicant responded that there is a cultural difference in Pakistan to Australia and that this would be difficult for them and in particular for [Ms A]. He said that she only speaks English and has not lived outside of Australia. He said that because of the threats on his life he would be effectively under house arrest. He said that he wouldn’t be able to do things with his partner. He said that he would have to be with her the whole time but wouldn’t be able to do activities that a normal couple do. He said that the rules and regulations are different in Pakistan. He said that she would be discriminated against because she can’t speak Urdu. I put to him that there are aid workers, diplomats and business people who are foreigners. He said that they live in high society in secure areas of Islamabad but the applicant can’t afford such security. I asked what would prevent them from being separated for a short period until they apply for a partner visa. He said that they rely upon each other. They support each other in day to day activities. He said that he has lived his entire adult life with her.

19. I put to them that [Ms A] could travel to Pakistan and they could see each other on an ad hoc basis. He said that he can’t imagine living without her. They have gone through tragedy and are still dealing with it.

20. The applicant started his studies after his visa was cancelled and as such has been paying full fees. He said that he works 60-70 hours a week in [an] industry. He is a supervisor of a team of 20.

21. The witness, [Ms A], provided evidence. She explained that she is in love with the applicant. She has been with him since she was 18 years. She said that her parent’s offer needed her parents to put their house up as collateral and the couple chose not to go down that path. They have been looking for houses. She explained that she is studying to become [an Occupation 1].

22. Evidence was submitted that the [Ms A] has been diagnosed with Depression, Anxiety and Adjustment Disorder because of her fear of losing her long-term partner.

23. The applicant is seeing a psychologist since 2015. Now he is seeing her once a month and by video while his state has been in lockdown. He is receiving support to help cope with his challenges. He has not been prescribed any medication.

24. The applicant is a practicing Shia. [Ms A] converted to Islam in 2009 before meeting the applicant. She gave a deeply thought through insight into her faith. She does not associate with either Shia or Sunni sect. She converted from Roman Catholicism as she was questioning aspects of Christian theology such as understanding the Godhead. Islam gave her the answer that made sense.

25. The applicant is in a genuine relationship with his partner. They have tried to have children. They are in the process of buying a house. They are very dependent upon each other. For these reasons I give considerable weight against cancelling the applicant’s visa based upon his relationship with his partner.

26. The applicant has asked permission of his partner’s father to marry.

27. Regarding the applicant’s mental health, I have considered whether he would be able to obtain mental health support while in Pakistan. I accept that there are limited options to obtain the type of mental health support the applicant has been receiving while in Australia. I asked the applicant whether he could continue to receive counselling by his current psychologist via video calls, which I note he has to date and is the norm for people living in rural and remote areas of Australia[10] as well as through the COVID pandemic.[11]

    [10] Australian Psychological Society, ‘Psychological services via telehealth (videoconference) for people living in rural and remote Australia’, Australian Psychological Society, ‘Psychological services via telehealth,’ >

    The applicant said that he prefers in person and that his psychologist also prefers in person. But he is not sure how it would work were he to be living in Pakistan.   

28. Regarding the applicant’s partner, [Ms A], and her mental health challenges I find that her ongoing struggle with mental health which may worsen with the applicant’s departure will weigh heavily on the applicant.

29. As the applicant is in a genuine relationship, has tried to establish a family, his partner is suffering from mental health challenge, I place considerable weight against cancelling the applicant’s 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

30. Subdivision C of Division 3 covers ss 101 through to 105. These sections require the applicant not to provide incorrect information, complete their passenger cards correctly, not to give bogus documents, to notify the Department of changes of circumstances and to update the Department as soon as practicable that they had provided incorrect information to correct it.

31. Having provided the incorrect information at the primary review stage, namely claiming to have been involved in an incident in his father’s store and submitting a FIR to the police, that he has persisted with this claim at four further review stages is of concern. The applicant provided the same information at the RRT review of the applicant’s visa refusal, to the Department in response to their NOICC and then again to the Tribunal at the review stage of the Department’s cancellation and once again at this Tribunal’s hearing.

32. For this reason I place substantial weight in favour of cancelling the applicant’s visa.

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

33. The previous case was remitted on the basis that the differently constituted Tribunal had given weight to other non-compliance contained in the so called, ‘Rawalpindi First Information Report’. The Department remitted the matter on consent for the reason that the previous Tribunal had taken into consideration ‘circumstances [of non-compliance] where the Minister had not previously given the applicant a notice under section 107 of the Act giving particulars of any possible non-compliance in relation to the Rawalpindi FIR.’ Following the precedence of that earlier matter, I give no weight either way to this element.

    The time that has elapsed since the non-compliance

34. The applicant was granted his protection visa on 23 August 2013 after having arrived in Australia in 2010. He has spent ten years of his [age] years in Australia and seven and a half years since his non-compliance. I asked the applicant how his understanding of life has changed by living in Australia. The applicant discussed how he valued the opportunity to practice his religion safely. He mentioned that people would ask questions about his faith while in Pakistan. He said that he feels comfortable wearing the clothes that he wants to wear. He said that he feels safe and that he values the diversity. He said that in Pakistan there are a lot of restrictions and conventions on how you behave. He said that he has no problem with his partner working, his own way of communicating in the community has changed and his general view regarding that has changed. He said that he has learned to be more open including how he dresses and does his hairstyle.

35. The applicant’s age and subsequently the time that he has spent in Australia weight heavily in his favour. He has spent much of his adult life in Australia. Unsurprisingly this has had cultural consequences including seeing one’s role in society differently and how society itself should function. He has embraced Australian culture which is substantially different to Pakistani culture. I give this consideration some weight against cancelling the applicant’s visa.

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

36. There is no evidence before the Tribunal that the applicant has any breaches of the law. As this is a bare minimum expectation I give little weight against cancelling the visa.

    Any contribution made by the holder to the community.

37. The applicant claims that his studying to become [an Occupation 1] is contributing to the Australian community. He said that he has done 24 weeks of placements. He said that he contributes to charities as well as to the Pakistani community in Australia. This includes helping the Ashura walks held in Melbourne by coordinating participants. He also said that he participates with his mosque in raising funds for people in need.

38. The applicant said that he is paid reasonably well as a supervisor in [an] industry but he chose to pursue [Subject] studies as he wants to help others. He is two subjects away from completing a Bachelor in [Subject] degree. The applicant said that he has received an offer of employment upon the completion of his course. This is relevant as the applicant’s lawyer noted, ‘In recognition of this shortage, the Department has placed [Occupation 1] on the Priority Migration Skilled Occupation list (PMSOL). Of the 18 occupations listed [Number] of those occupations are [Occupation 1] positions. The PMSOL was made on the expert advice from the National Skills Commission and consultation with Commonwealth departments. The intention of the PMSOL is to fill critical skill needs to support Australia’s economic recovery from COVID-19.’

39. Based upon the applicant’s positive contributions to the community including showing an interest in helping others and engaging with the Pakistan diaspora and the applicant’s profession being in demand by the Australian community I give some weight against cancelling the applicant’s visa.

    Other considerations

1. 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.

2. The applicant will be subject to s.48 of the Act limiting his eligibility to apply for and be granted certain visas onshore. Though, there are certain prescribed visas which the applicant could apply for including an on-shore partner visa. On-shore partner visas (subclass 820) and off-shore partner visas (subclass 309) do not require Public Interest Criteria 4013 to be met (this limits an applicant’s ability to apply for a visa for three years from the date of cancellation). But before the applicant’s pending on-shore partner application could be substantially reviewed he would need to be considered to have compelling reasons to waive the schedule 3002 requirement that the applicant be the holder of a substantive visa for the 12 months preceeding the date of application (r.820.211(2)(d)(i)(B)). These policy obstacles may pose difficulties to the applicant in his efforts to remain with his partner and which in turn will cause the Australian citizen partner hardship. For these reasons I place some weight against cancelling the visa.

3. No consequential cancellations arise under s.140 was the applicant’s visa to be cancelled as such I give this consideration no weight for or against cancellation.

4. There are no children whose interests would be affected by cancellation as such I give this consideration no weight for or against cancellation. 

5. I accept that the applicant is liable to be detained under s.189. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non-citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request to be removed. If an unlawful non-citizen does not request to be removed they are liable to be removed under s 198, subject to the provisions of the new subsections 197C(3) and s197D of the Act, which was inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) and came into effect on 25 May 2021.

6. The provisions of the new subsections are relevant with regards to Australia’s international obligations against refoulement. I refer to the reasoning in the 1901883 (published), a case heard by this member and Deputy President Jan Redfern as it relates to the interpretation and implementation of these amendments. In short, removal under s 198 does not necessarily follow from a person becoming an unlawful non-citizen by reason of a cancellation because there is now a procedure contemplated under ss 197C(3) and 197D which provides for a further decision to be made about non-refoulement. As such I give no weight to considerations of the applicant being refouled.

100.   As noted above, s 189 leaves the applicant liable to be detained. The applicant has a pending partner visa which is yet to be finally determined. The applicant may remain in detention for an extended period of time until such time the partner visa is finally determined. Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is colloquially known as ‘community detention’. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[12]

[12] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

101.   Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister for consideration. None are relevant to the applicant’s circumstances. Among the public interest factors listed as being viewed favourably by the Minister for the grant of a residence determination and relevant to the applicant are family composition, health and well-being and relevantly:

where the person has a close relationship with an Australian citizen or permanent resident and not making a Residence Determination would result in irreparable harm and continued hardship to an Australian citizen or permanent resident;

any other significant issues concerning the person, including, but not limited to, unique family circumstances or health issues;

102.   The grant of a residency determination is a probably in the circumstances of this case, but the prospects of such an application are speculative. For this reason, I place some weight against cancellation for the reason that the applicant may remain in indefinite detention.

103. As noted above, 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 be cancelled.

DECISION

104.   The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

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.

Bazpurs