2010004 (Migration) - [2021] AATA 2022

2010004 (Migration) [2021] AATA 2022 (20 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2010004
MEMBER:Mila Foster
DATE:20 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 20 May 2021 at 11:33am
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – previous application as secondary applicant under another name and brother in Australia not declared – forensic facial image comparison – discretion to cancel to visa – ethnicity and religion – Hazara Shia – advised by other Hazaras in immigration detention not to disclose previous application – grant of protection visa not based on incorrect information – work and religious and community activities in Australia – country information – non-refoulement – returnee from Western country – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 36, 101, 107, 109, 375A, 424
Migration Regulations 1994 (Cth), r 2.41
CASES
DSH17 v MICMSMA [2021] FCCA 16
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant’s Resident Return visa should be cancelled because the applicant provided incorrect information in the protection visa application he made on 27 August 2012. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the Resident Return visa should be cancelled.
The Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
RELEVANT LAW
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
ISSUE IN THE REVIEW
The applicant was issued with a notice under s.107 on 11 November 2019. Having regard to the notice and the evidence before it, 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. The issue before the Tribunal is thus 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The evidence before the Tribunal includes the following:
a.the Department of Home Affairs file relating to the cancellation of the applicant’s Resident Return visa,[1]
b.a document the Department produced to the Tribunal on 12 April 2021 pursuant to a summons issued on 6 April 2021[2] (‘the produced document’),
c.oral evidence the applicant gave at a Tribunal hearing on 7 April 2021,
d.written information the applicant provided to the Tribunal in response to an invitation made pursuant to s.424(2),[3]
e.English translations of tazkeras (Afghan identity documents) issued to the applicant and members of his family,[4] and
f.written submissions, photographic and documentary evidence presented to the Tribunal by the applicant’s solicitor.[5]
[1] Department file number: [Number].
[2] Department TRIM reference number: [Number].
[3] The s.424(2) invitation was issued on 19 January 2021; the applicant’s response was provided in the form of a statutory declaration made on 28 January 2021.
[4] The Tribunal requested the translated tazkeras on 12 February 2021; they were provided by the applicant on 16 February 2021 and 2 March 2021,
[5] Presented on 1 March 2021, 30 March 2021, 6 April 2021, 14 April 2021, 4 May 2021, and 10 May 2021.
The Department file contains a non-disclosure certificate issued on 25 June 2020 in relation to certain documents on the file.[6] A second non-disclosure certificate was issued on 13 April 2021 in relation to the produced document. Both certificates were purportedly issued pursuant to s.375A. A certificate which has been validly issued under that provision requires the Tribunal to do all that is necessary to ensure that the document or information to which the certificate applies is not disclosed to any person other the member of the Tribunal conducting the review. To be valid such a certificate must be dated and signed by a delegate and explain how disclosure of the document or information would be contrary the public interest.
[6] A reference in the certificate to a document with TRIM reference number [number] appears to be a typographical error and should read CLD2020/[Number].
In this case, both certificates are dated and signed by a delegate. The certificates state that disclosure of the documents would be contrary to the public interest for two reasons. Firstly, because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or be likely to prejudice the effectiveness of those methods. Secondly, where information has been provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant. While those are public interest reasons, there is information in the documents to which the certificates purport to apply which have been already been disclosed to the applicant in the s.107 notice. The Tribunal thus finds that the certificates are not valid insofar as they concern information which has been disclosed to the applicant in the s.107 notice. The Tribunal has not and will not disclose in this decision information contained in the documents which is the subject of the non-disclosure certificates and have not already been disclosed to the applicant but will refer to the documents as necessary by the Department’s TRIM reference number.
Was there non-compliance as described in the s.107 notice?
The non-compliance identified and particularised in the s.107 notice sent to the applicant on 11 November 2019 was non-compliance with s.101(b) in the following respects:
a.the applicant answered ‘No’ to question 3 of Part B of the protection visa application form which asked whether he had previously made an application to the Department when he had applied for a Global Special Humanitarian visa as a secondary applicant on 17 March 2010 and a Provisional Partner visa as a secondary applicant on 13 June 2012;
b.the applicant answered ‘N/A’ to question 4 of Part C of the protection visa application form which asked what other names he was known by when he had applied for the Global Special Humanitarian visa and Provisional Partner visa as [Alias]; and
c.the applicant incorrectly answered ‘No’ to question 12 of Part B of the protection visa application form which asked whether he had any close relatives in Australia when he had a brother named [Mr A] in Australia.
Evidence referred to in the s.107 notice included a forensic facial image comparison dated 17 June 2019 which compared a photograph of the applicant submitted in connection with his protection visa application and a photograph of the applicant submitted in connection with the humanitarian visa made on 17 March 2010. The delegate noted that the examiner of the photographs found that there were indications that the applicant and [Alias] were the same person.
The applicant’s response to the s.107 notice was provided in three emails which were sent to the Department by his former solicitor on 22 November 2019, 13 December 2019 and 17 December 2019. The response included a statutory declaration made by the applicant on 12 December 2019 and submissions by the solicitor. The applicant acknowledged that he had provided incorrect information to the Department as specified in the s.107 notice. He said he had been known as [Given name] from birth until he left Afghanistan when he began using [Alias Surname] as his family name, and that he had a brother in Australia named [Mr A] who had made the humanitarian and partner visa applications on his behalf. On review the applicant confirmed that he had provided the incorrect information and also noted that as he had not seen the humanitarian or partner visa applications he was unaware of any other incorrect information provided in the applications.
The Tribunal is satisfied on the evidence before it and particularly the forensic facial image comparison that the applicant has been known as [the applicant] and [Alias]. The Tribunal is also satisfied on the evidence before it and particularly the Global Special Humanitarian visa application made on 17 March 2010[7] that the applicant had applied for a visa prior to his protection visa application.
[7] TRIM reference number [Number].
However, the Tribunal is not satisfied that the applicant applied for a Provisional Partner visa on 13 June 2012 as stated in the s.107 notice. Document CLD2021/[number] and particularly page 14 of that document, indicates that [Alias] was not included as a secondary applicant in the partner visa application referred to in the s.107 notice. The Tribunal notes that the delegate referred in the s.107 to the sponsor of the partner visa application withdrawing his sponsorship for [Alias] and that there is a case note to that effect in CLD2019/[number]. However, there is no evidence before the Tribunal, including in the other case notes in CLD2019/[number], that [Alias] was initially included or subsequently added to the partner visa application referred to by the delegate. Hence, there was no sponsorship relating to [Alias] for [Mr A] to withdraw.
While not without doubt the Tribunal accepts on the evidence before it that the applicant and [Mr A] are brothers. The Tribunal asked the applicant to provide translations of his tazkera and the tazkeras of any family members which he could provide. The applicant presented translations of his tazkera and those of his father[8] and all but two of his six siblings - a sister who he said did not have a tazkera and his brother [Mr A] who the applicant said had refused to provide his tazkera. Tazkeras identify the father and grandfather of the person to whom it is issued. Therefore, if the applicant and [Mr A] were brothers (the applicant did not suggest that they were anything other than natural brothers with the same father), [Mr A]’s tazkera would corroborate that there were brothers. Asked at the hearing why [Mr A] had refused to provide his tazkera, the applicant said his brother may have been concerned about having his own visa being cancelled. It is not apparent why [Mr A] would have that concern if he was indeed the applicant’s brother. [Mr A]’s unwillingness to provide his tazkera thus raises doubt about he and the applicant are siblings as claimed. Further, the applicant stated in response to the s.107 notice that he began using [Alias Surname] as his family name before he left Afghanistan because it was derived from [the name of his clan]. This raises the possibility that the applicant and [Mr A] share the same family name because they belong to the same clan and not necessarily because they are siblings. Nevertheless, it appears to the Tribunal that the applicant has been forthcoming in providing information about his family and circumstances since he was issued the other s.107 notice and there is evidence on the Department file including information contained in CLD2019/[number] which leads the Tribunal to accept that the applicant and [Mr A] are brothers and that [Mr A] was in Australia when the applicant applied for the protection visa.
[8] The applicant claimed his mother did not have a tazkera.
As the Tribunal is satisfied that the applicant has also been known as [Alias], he applied for the Global Special Humanitarian visa on 17 March 2010 and [Mr A] is his brother, the Tribunal finds that were was non-compliance in the way described in the s.107 notice.
Should the visa be cancelled?
As there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c).
The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
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 such as hardship to the applicant.
The correct information
As indicated above, the correct information is that the applicant has also been known as [Alias], he had a brother in Australia when he applied for the protection visa and he had previously made an application to the Department. The Tribunal considers it important that non-citizens who apply for visas, especially visas which let them stay in Australia permanently, provide correct information about their identity. Hence, the Tribunal places a moderate degree of weight on the information about the applicant’s other name in favour of cancelling the visa. The Tribunal regards the correct information about the applicant’s previous visa application and brother in Australia of less significance and hence places limited weight on that information in favour of cancelling the visa.
The content of the genuine document (if any)
This is not relevant in this case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a protection visa on 4 April 2013 after he successfully applied to the Refugee Review Tribunal (RRT) for review of the decision of a delegate to refuse him the visa.[9] The delegate who cancelled the applicant’s Resident Return visa found that the applicant was granted the protection visa partly on the basis of his Hazara ethnicity and Shia Muslim religion, and partly on the basis of the applicant’s identity, name, date of birth, family composition and life story and hence partly on incorrect information.
[9] RRT case no.1218443.
The Tribunal has had regard to the decisions of the delegate who refused the applicant’s protection visa application and the RRT decision. The delegate found the applicant was an unreliable witness and his account of events relating his claim to have been identified by the Taliban while taking a government employee (a teacher) to Kabul for medical treatment to be inconsistent. The delegate did however accept that the applicant was a national of Afghanistan, of Hazara ethnicity, and a Shia Muslim.
The RRT found that the applicant’s claim relating to the Taliban to have been fabricated but accepted that the applicant was a national of Afghanistan, of Hazara ethnicity, a Shia Muslim, and that he ran a shop in his home area which involved travelling to Kabul for supplies. On the basis of the claims it had accepted and independent evidence about conditions in Afghanistan, the RRT found that there was a real chance the applicant would be targeted for reasons of his ethnicity and religion by the Taliban in the course of travelling to Kabul for his shop. It was on that basis that the RRT was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention and satisfied the criterion for a protection visa in s.36(2)(a). The RRT’s decision record does not indicate to the Tribunal that the RRT would have reached a different decision had it been aware of the correct information or that the applicant had provided the incorrect information.
Thus, on the evidence before it, the Tribunal finds that the decision to grant the applicant a protection visa was not based wholly or partly on the incorrect information. The Tribunal regards this as weighing significantly against cancellation of the applicant’s visa.
The circumstances in which the non-compliance occurred
In his response to the s.107 notice the applicant said he provided the incorrect information because he had been threatened by the Taliban and came to Australia in fear for his life and to seek protection. He said he was advised by other Hazaras in the camp (immigration detention centre) that if he disclosed his previous visa applications and that his brother was here, he would be asked a lot more questions and if he did not get those questions one hundred per cent right he would be sent back to Afghanistan. He said he was only in his early twenties and easily influenced by his elders and other Hazaras. He felt guilty about his family living in danger and wanted to bring his mother and siblings to Australia and change their lives for the better. The applicant did not provide any further explanation for his non-compliance on review.
While the applicant feels he had good reasons to provide the incorrect information, the fact he provided incorrect information knowingly and intentionally weighs in favour of cancellation but to a lesser degree given the circumstances the applicant outlined. In particular, the Tribunal believes the applicant held a genuine fear for his safety were he returned to Afghanistan even if not precisely for the reasons he claimed in his protection visa application.
The present circumstances of the visa holder

The applicant claims he is employed as [an Occupation] and presented evidence of income tax assessments.[10] He claims he is active in the Hazara community, volunteers his time at cultural and religious events and makes donations. Photographic and documentary evidence regarding his community activity including a letter from the [Organisation] has been presented in response to the s.107 and on review. The evidence indicates that the applicant is well-settled in Australia and making a positive contribution to the community. This weighs to some degree against cancellation of the visa.
[10] See response to s.107.
It was also submitted in response to the s.107 notice and on review that it is relevant to the applicant’s present circumstances that he continues to be owed protection due to his Hazara ethnicity and Shia religion. This is referred to further below in relation to Australia’s non-refoulment obligations.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant acknowledged in response to the s.107 notice that he had provided incorrect information in the way described in the notice, expressed regret for providing false information and has corrected the information. Although the applicant corrected the information seven years after he provided it and only when he faced cancellation of his visa, the fact he has done so in what seems a forthcoming manner and expressed what seems genuine regret weighs to some degree against cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister
Having regard to the recent judgment in DSH17 v MICMSMA,[11] the Tribunal finds no other instances of non-compliance and gives this little weight against cancellation.
The time that has elapsed since the non-compliance
[11] [2021] FCCA 16 (Federal Circuit Court of Australia, Judge Driver, 29 January 2021).
The non-compliance occurred in connection with the protection visa application the applicant made almost nine years ago which represents a significant period of the applicant’s adult life. During that time the applicant has settled in Australia and made a positive contribution to the community. The Tribunal thus gives this moderate weight in favour of the visa not being cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The applicant advised on review that he lost four demerit points in December 2018 for driving about 10 kms over the speed limit. Relatively speaking this is a minor breach. The Tribunal gives the lack of any evident serious breach of the law over a period of almost nine years some weight in favour of the visa not being cancelled.
Any contribution made by the holder to the community
The Tribunal gives some weight in favour of not cancelling the visa to the applicant’s activities within the community.
Relevant matters referred to in Departmental PAM 3 guidelines
Consequential cancellation There is no evidence before the Tribunal of any persons in Australia whose visas would or may be cancelled under s.140.
Interests of child/ren The applicant has no children and there are no other children whose interests would be affected by the cancellation of the applicant’s visa.
Liable for detention If the applicant’s visa is cancelled, he will be an unlawful non-citizen. Provisions in the Act would bar him from making a further visa application without the personal intervention of the Minister. As an unlawful non-citizen, the applicant may be detained in immigration detention and liable for removal from Australia to his country of nationality. On the evidence before the Tribunal the applicant is a national of Afghanistan and no other country. There is no evidence that he has a right to enter and reside in any other country.[12]
[12] The applicant states his wife and mother are living in Pakistan but without any right to do so.
Non-refoulment obligations Considerable information from a range of independent and credible sources has been submitted by the applicant’s solicitors to indicate that Australia would breach its non-refoulment obligations if the applicant was removed to Afghanistan because he would be persecuted for reasons of his Hazara ethnicity, Shia religion, and membership of the particular social group of ‘returnees from a Western country’. As already noted, both the delegate who refused the applicant’s protection visa application and the RRT accepted that the applicant is Hazara and Shia. There is no evidence to the contrary before the Tribunal and thus the Tribunal also accepts that the applicant is Hazara and a Shia Muslim. The information presented about the risk of harm faced by Hazaras, Shias and returnees from the West in Afghanistan includes the following.
The United Nations High Commissioner for Refugees (UNHCR) profiles of people who may be at risk of persecution in Afghanistan include members of minority ethnic groups such as Hazaras[13] and members of minority religious groups such as Shias.[14] The harm faced by those individuals include societal discrimination, extortion, harassment, kidnapping, targeted attacks, and killing primarily by the Taliban and other anti-government elements (AGEs).
[13] UNHCR Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (UNHCR Guidelines), 30 August 2018, pp.93-94.
[14] UNHCR Guidelines, pp.61-62.
In a report published for the purposes of protection status determination,[15] the Australian Department of Foreign Affairs and Trade (DFAT) states that Hazaras are widely perceived to be supporters of the Afghan government[16] and assesses that people perceived as such face a high risk of violence perpetrated by AGEs[17] particularly the Taliban.[18] They are also particularly vulnerable to being abducted for ransom or violence by criminals and insurgents when travelling on unsafe roads in Afghanistan.[19] DFAT further assesses that Shias face a high risk of being targeted for attacks by the Islamic State in Khorasan Province and another militant groups when gathering in large and identifiable groups.[20] DFAT notes that most Hazaras are Shia and are usually identifiable as Hazaras by their Asiatic physical features.[21]
[15] DFAT Country Information Report Afghanistan, 27 June 2019, (DFAT Report).
[16] DFAT Report, [3.16].
[17] Individuals and armed groups involved in armed conflict with or armed opposition against the government of Afghanistan and/or international military forces: DFAT Report [2.55].
[18] DFAT Report, [3.46].
[19] DFAT Report, [2.73]-[2.74].
[20] DFAT Report, [3.35].
[21] DFAT Report, [3.7].
Also included in the UNHCR profiles of individuals at risk are ‘Individuals perceived as Westernised’. UNHCR states there are reports that individuals who have returned from Western countries have been threatened, tortured or killed by AGEs because they were perceived as having adopted values associated with the West, to have become ‘foreigners’, or to be spies for or supporters of a Western country.[22] The European Asylum Support Office also concluded on the basis of various sources that Afghans perceived as Westernised may be persecuted by family members, conservative elements of society, insurgents and criminal elements because they are perceived as un-Islamic, pro-government, spies or wealthy.[23]
[22] UNHCR Guidelines, pp.46-47.
[23] European Asylum Seeker Office, Country Guidance: Afghanistan, June 2019, pp.19, 22,24,65,74; European Asylum Seeker Office, COI Query Response – Information on the treatment of Afghan nationals perceived as ‘Westernised’ (2018-2020), 2 September 2020, pp.9-13.
The information presented indicates to the Tribunal that it is likely that Australia would be in breach of its non-refoulment obligations if the applicant was returned to Afghanistan as a consequence of his visa being cancelled. That weighs significantly against cancellation of the visa.
Other relevant matters Even if there was no breach of Australia’s non-refoulment obligations, the information referred to in the solicitors’ submissions as well as other information the Tribunal has had regard to, indicates that the applicant would face significant hardship if he was returned to Afghanistan due to conditions there. The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported in December 2020, that 40 years of war, recurrent natural disasters, increasing poverty and COVID-19 are devastating the people of Afghanistan.[24]
[24] Office for the Coordination of Humanitarian Affairs, Afghanistan Humanitarian Needs Overview, 17 December 2020 (OCHA 2020), p.6.
The United Nations High Commissioner for Human Rights has referred to Afghanistan as one of the deadliest places in the world to be a civilian.[25] According to the United Nations Assistance Mission in Afghanistan (UNAMA), 3,035 Afghan civilians were killed and 5,785 injured as a result of the current armed conflict in Afghanistan (between the Taliban and other AGEs, and the Afghanistan government and international forces).[26] UNAMA reports that the devastating impact of the conflict on civilians is widespread and goes beyond the high levels of death and injury:
The harm caused to civilians in 2020 is a continuation of the pain and suffering from armed conflict that people of Afghanistan have endure for decades. The anguish caused by the armed conflict continued to be widespread and felt in cities and rural areas by people of all ages, genders, ethnicities and social-economic backgrounds. Beyond the physical harm, the armed conflict continued to cause psychological trauma and poverty and left many civilians reliant on humanitarian aid and with limited access to education and justice. In 2020, the ongoing fighting interfered with the necessary healthcare response to the COVID-19 pandemic.[27]
[25] United Nations Human Rights Office of the High Commissioner (OHCHR), ‘Civilian casualties surged after peace talks began in Afghanistan – UN report’, Press Release, 23 February 2021.
[26] United Nations Assistance Mission in Afghanistan, Afghanistan Protection of Civilians in Armed Conflict Annual Report 2020 (UNAMA Report), February 2021, p.11.
[27] UNAMA Report, pp.11-12.
The United States government recently announced it would withdraw all its troops from Afghanistan by September 2021, the most likely outcome of which is predicted to be an exacerbation of the conflict as the Taliban moves to expand its territorial control and influence which will result in further suffering for Afghan civilians.[28]
[28] Clark, K., Afghan Analysts Network, ‘As US troops withdraw, what next for war and peace in Afghanistan?’, 1 May 2021; Institut Montaigne, ‘Afghanistan After the US Withdrawal: Elusive Peace’, Interview, Three Questions to Thomas Ruttig, 30 April 2021; Boot, M., Council on Foreign Relations, ‘Biden’s 9/11 Withdrawal From Afghanistan: What to Know’, 14 April 2021.
Living standards in Afghanistan are amongst the lowest in the world.[29] About half the population lives in poverty.[30] Before the COVID-19 pandemic, 90% of Afghans reported that it was difficult or very difficult to live on their current income and 57% reported struggles to afford food.[31] Estimates of unemployment rates in Afghanistan before the pandemic varied from 11% to 25% of the population.[32] The Afghanistan labour market is characterised by a high level of informality comprising of self-employment, day labour or unpaid work and about 80% of employment is vulnerable and insecure.[33] The majority of Afghans live in very poor housing conditions, most lack a safe water supply, adequate sanitation, and hygiene, and the majority have limited access to electricity.[34]
[29] The World Factbook, ‘Afghanistan – Summary’ (World Factbook), updated 11 May 2021,
[30] World Bank, Setting Course to Recovery: Afghanistan Development Update, April 2021, pp.1-2.
[31] McCarthy, J., Gallup, ‘Inside Afghanistan: Record Numbers Struggle to Afford Basics’, 26 August 2019, (Gallup 2019),
[32] European Asylum Seeker Office, Afghanistan Key socio-economic indicators: Focus on Kabul City, Mazar-e Sharif and Herat City, August 2020 (EASO August 2020), p.28; DFAT Report, [2.18].
[33] DFAT Report, [2.18]. EASO August 2020, p.27.
[34] EASO August 2020, pp.60,63.
After Afghanistan’s first recorded case of COVID-19 in February 2020, the virus spread to all 34 of the country’s provinces resulting in 48,000 confirmed cases and 1,900 deaths by June 2020.[35] An estimated 30% of the population was exposed to the virus.[36] Measures implemented to slow the spread of the virus such as border closures and suspension of livelihood activities triggered a sharp contraction in the economy, crippling household debt, elevated food prices and exacerbated rising food insecurity.[37] In November 2020, 42% of Afghans were in crisis or emergency levels of food insecurity.[38]
[35] OCHA 2020, p.6
[36] Ibid.
[37] Ibid.
[38] OCHA 2020, p.7.
Afghanistan has limited capacity to absorb and meet the needs of its large number of returnees.[39] Most returnees settle in urban areas where there is greater competition for limited job opportunities and resources.[40] Family networks are a crucial element to reintegration of returns but does not automatically makes it sustainable.[41] As a result, returnees often reported living close to or below the poverty line and experiencing crisis level of food insecurity.[42]
[39] Oxfam, ‘Returning to Fragility, Exploring the link between conflict and returnees in Afghanistan’, January 2018 (Oxfam 2018).
[40] EASO August 2020, pp.31, 32.
[41] Oxfam 2018, p.3.
[42] EASO August 2020, pp.32, 40-41.
The Tribunal has concluded that the applicant would face significant hardship if he returned to Afghanistan due to the ongoing armed conflict and poor economic conditions in addition to the risks he would face as a Hazara, Shia and returnee from a Western country. This weighs considerably against cancellation of the visa.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, the Tribunal had concluded that the visa should not be cancelled. In reaching that conclusion the Tribunal has given greatest weight to the fact the incorrect information was not the basis on which the applicant was granted the protection visa; the applicant has lived in Australia for almost nine years which represents most of his adult life and during which time he has been employed, contributed to the community, and not committed any serious breaches of the law; and he would face significant hardship if he returned to Afghanistan.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Mila Foster
Member

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