2013926 (Migration)

[2021] AATA 3652

2013926 (Migration) [2021] AATA 3652 (17 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013926

MEMBER:Kira Raif

DATE:17 August 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 17 August 2021 at 12:34pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information – identity and migration history – over 11 years passed since the non-compliance – fears harm in Pakistan for being a Hazara Shia – best interests of the applicant’s minor child – mental health – contribution to the Australian community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36, 101, 107, 107A, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

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

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant claimed to be a citizen of Afghanistan born in [year]. He was granted a protection visa in March 2010 and a Resident Return Visa (RRV) in December 2014. In October 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant had not complied with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in September 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

   Did the notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.  

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant entered Australia in December 2009 as an unauthorised maritime arrival. In February 2010 he made a request for Refugee Status Assessment (RSA). In that request and an accompanying statutory declaration, the applicant stated that

    -he was a citizen of Afghanistan from birth,

    -he was born in Oruzgan, Afghanistan. He left Afghanistan with his family in 1995 and travelled to Pakistan. His father was involved fighting the Taliban and feared for his safety,

    -he is a Hazara and a Shia Muslim,

    -in Pakistan they feared Sunni Muslim groups which targeted the Hazara Shias,

    -he was unlawful in Pakistan,

    -he left Pakistan in November 2009 with a help of a smuggler who arranged a false passport,

    -he fears harm in Pakistan from the Taliban and the Pashtun due to his Hazara ethnicity

11. The applicant was assessed as meeting the definition of refugee, as the decision-maker found that the applicant was a citizen of Afghanistan and had no right to live in any other country including Pakistan.

12. In March 2010 the applicant made the application for the protection visa and completed the application form 866. In that form, the applicant

    -gave his full name and stated that he was also known by the name of [Alias 1],

    -stated that he was born in [year] and provided his place of birth,

    -stated that he was a citizen of Afghanistan from birth and did not have citizenship / nationality of any other country,

    -indicated that he did not have details of his current travel document. The applicant referred to using a false Pakistani passport in the name of [Alias 1],

    -stated that he did not wish to return to Afghanistan and repeated the claims made in his RSA request,

    -referred to members of his family unit not in Australia as his father (missing), mother (deceased) and five siblings.

13. The applicant was granted the protection visa on 23 March 2010.

14. In March 2014 the applicant made the application for the Australian citizenship and in May 2019 the decision-maker wrote to the applicant with adverse information. The applicant provided a response in June 2019 and in his declaration the applicant stated that

    -his name was not [applicant name] but [Alias 2],

    -he is a Shia Hazara,

    -he is a citizen of Pakistan and was born in Quetta, Pakistan around [year]. He had never been to Afghanistan, was not born in Afghanistan and did not flee Afghanistan with his family in 1995,

    -he did not reside illegally in Pakistan and did not depart on a false passport. He was a citizen of Pakistan and departed using his genuine Pakistani passport which was issued to him in 2006,

    -the family composition stated in the protection visa was incorrect and he supplied a different family composition. Importantly, the applicant stated that his father was resident in Australia and his mother and 6 siblings live in Pakistan.

15. The applicant included in his response the Pakistani family registration certificate, his national ID card, Pakistani passport and other documents relating to his siblings.

16. In his response to the NOICC and evidence to the Tribunal the applicant concedes that he gave incorrect answers in his RSA request and protection visa application. Having regard to the applicant’s concession and the information set out in the primary decision-record, the Tribunal finds that the applicant gave incorrect answers in response to several questions on the application form, including questions about his name and date of birth, place of birth, his country of nationality at birth and at the time of application, the reasons he left Afghanistan and why he cannot return to Afghanistan and when describing his family composition. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act and that there was non-compliance in a way described in the s. 107 Notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. 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. They are:

    The correct information

19. The correct information is that the applicant was born in Pakistan and not Afghanistan and was a citizen of Pakistan. He did not flee Afghanistan with his family due to his father’s involvement in fighting the Taliban. The correct information is that the applicant had genuine identity documents in Pakistan and departed Pakistan holding his own genuine passport and not a false passport in a different name. The applicant’s family composition (and the circumstances of his parents) was not as recorded in the protection visa application form.

    The content of the genuine document (if any)

20. 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

21. The applicant claims in response to the NOICC that he was targeted in Pakistan as a Shia Hazara and also because of his position as a [Occupation 1] and he claims these circumstances could have resulted in the grant of the protection visa anyway. The Tribunal finds the applicant’s evidence problematic because the applicant did not make many of these claims when applying for the protection visa and was not assessed on the basis of these claims. While the applicant claimed to be a Hazara and a Shia, his claims were in relation to his stated country of nationality, Afghanistan and the applicant was only assessed in relation to that country. The decision-maker found that the applicant had no right to permanently reside in Pakistan and therefore had not assessed his claims in relation to Pakistan. Neither did the applicant claim protection on the basis of being a [Occupation 1]. It is not sufficient to state that the applicant could have been granted a visa if he put forward the truthful information and correct answers. Such information was not put forward and was never assessed.

22. The Tribunal further finds that one’s identity is central to any assessment of visa criteria. The applicant gave incorrect name, date and place of birth and family composition. He therefore used a false identity to make the application and the decision to grant the visa was based on incorrect identity and incorrect information.

23. Ultimately it is not necessary for this Tribunal to determine if the applicant would have been granted the visa if the correct information was known. The Tribunal finds that the applicant’s country of nationality was central to the assessment of whether he was owed protection obligations. The reasons why he claimed to have left Afghanistan as a young child with his family were also central to his claims and to the determination that he was owed protection obligations. These claims were not true. The Tribunal finds that the decision to grant the visa was based, in part but to a very significant degree, on incorrect information. The Tribunal finds that these matters weigh very heavily in favour of the cancellation.

    The circumstances in which the non-compliance occurred

24. In his response to the NOICC the applicant explains that he had previously made an application for the Global Special Humanitarian visa in 2010 in the name of [Alias 3], which was refused. Due to a traumatic experience in Pakistan, he fled under threat to his life and en route to Australia was advised what to say upon his arrival. He was traumatised by the journey and the drownings and was frightened and traumatised upon his arrival in Australia and did not want to  be refused protection. He did not receive proper legal advice and relied on the advice of people in the community who told him to claim to be an Afghan national. When he applied for the RRV, he repeated the information in his protection visa application as he was afraid to change the information and did not know how to do it.

25. The Tribunal finds the applicant’s evidence problematic. Essentially, the applicant states that he had deliberately falsified his claims because he believed doing so would improve his chances of obtaining the visa. The Tribunal is of the view that even if the applicant did not receive legal advice and relied on advice from others, he would have been well aware that the provision of false claims, particularly regarding something so significant as country of nationality, was not an appropriate course of action. The Tribunal does not accept the applicant’s claim that he was too traumatised by the journey to appreciate the significance of providing incorrect answers. The applicant’s claims were detailed and well thought through and in the Tribunal’s view, the applicant had decided what claims he would make well before his arrival in Australia and in his oral evidence to the Tribunal the applicant confirms that he acted on advice of others he met in Indonesia. Neither does the Tribunal accept the applicant’s claim that he did not know how to change the information when applying for the RRV. By that time the applicant had been living in Australia for some years and on his own evidence, he was settled in Australia. He could have easily approached the Department or a migration advisor to seek professional advice, if he had any intention of providing truthful information in his dealings with the Department. Instead the applicant chose to continue with untruthful information because he wanted to preserve his visa.

26. In his evidence to the Tribunal the applicant states that he provided incorrect answers out of concern for his family. The applicant states that while in Indonesia he spoke to other refugees and he was told that if he claimed to be from Pakistan, he would not get the visa. The applicant states that he was new and did not know what to say so he said whatever others told him. He could not go back and would have done anything to avoid returning. The Tribunal does not consider that these circumstances justify the persistent provision of incorrect information, particularly as the applicant himself claims that he was targeted in Pakistan and he believes he could have been granted the protection visa on the basis of his genuine nationality and circumstances. The applicant states that he claimed his father was missing and his mother passed away because he wanted to bring his siblings to Australia. He was also told in Indonesia that he should claim to be a minor so as to speed up the process for his siblings.

    The present circumstances of the visa holder

27. In response to the NOICC the applicant refers to having completed training as a [tradesperson] and refers to operating his own [business]. He told the Tribunal that he has been carrying out renovations in [venues] and is held in good regard by his colleagues. The applicant presented a number of supporting letters with his response to the NOICC. The Tribunal accepts that  evidence and also accepts that the applicant has community support, although it is not apparent from these statements that those who prepared them are aware of the circumstances that gave rise to the cancellation of the applicant’s visa.

28. The applicant refers in his evidence to the delegate to the purchase of two properties and states that he provides financial support to his family in Pakistan and other support he provides to his family in Australia. The applicant presented medical evidence relating to his father in Australia. The applicant’s evidence to the Tribunal is that his father’s visa was also subject to a cancellation but in March 2021 a decision was made not to cancel the visa. The Tribunal accepts the applicant’s evidence. 

29. The applicant explains that in 2013 he sponsored his wife and child for the Partner visa and he cannot continue to sponsor them if his visa is cancelled. In his submission to the Tribunal of 12 August 2021 the applicant states that his relationship with his wife has broken down due to the length of their separation and the couple obtained a divorce in Pakistan. The applicant claims the breakdown of the relationship was caused by the separation of the couple and has had a detrimental effect on him. The Tribunal is prepared to accept that evidence.

30. The applicant told the Tribunal that some years ago he had health issues and was unable to work and had financial difficulties. He had to move house to be able to work and make repayments. The applicant claims that he supports his father, who has his own health issues, and his younger brother. The applicant refers to his own depression due to the visa issues and the uncertainty about the future. The Tribunal is prepared to accept that  evidence.

31. The applicant told the Tribunal that he has two brothers in Australia. His brother is an Australian citizen and his brother and father have permanent resident visas. His mother and [sisters] live in Pakistan.

32. The applicant states that he intends to seek custody of his son, born in [year], and intends to sponsor the child to Australia. His wife’s family do not oppose that course of action. The applicant states that he is concerned about his child’s welfare, given his ex-wife’s intention to re-marry however, the Tribunal notes that there is nothing to indicate that the child’s mother does not provide appropriate care to the child and there is no evidence before the Tribunal from the child’s mother, or her family, supporting the child’s migration to Australia.

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

33. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

34. The applicant concedes in his response to the NOICC that he provided incorrect answers in his application for the Resident Return visa. The Tribunal finds that this is another instance of non-compliance with s. 101 of the Act. The applicant told the Tribunal that he was worried because he had already lied in his initial application and felt that he had to continue with the lies, otherwise the entire family would be affected.

    The time that has elapsed since the non-compliance

35. The application for the protection visa was made in March 2010 and over 11 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period and that the applicant has settled in Australia since his arrival.

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

36. in his response to the NOICC and evidence to the Tribunal the applicant refers to traffic offences but states that he has otherwise been a law-abiding citizen. The applicant explained to the Tribunal that he has been stressed about the visa issues and the uncertainty about the future and also pressure from [his employers].

1. The applicant also confirmed that he used his false identity to obtain the driver license and the home loan and his other dealings with the authorities. These actions may also constitute breaches of the law. The applicant claims that he felt compelled to use the false identity once he started and that he had no other option but in the Tribunal’s view, he did have the option of providing truthful information. He chose not to.

   Any contribution made by the holder to the community.

2. In his response to the NOICC the applicant refers to his [business] and states that he helps whose who cannot afford his rates. The applicant refers to his involvement with [a named organisation] and playing soccer with the local community and his plans to be a coach to younger players. The applicant states that he cares for his father. The Tribunal accepts that the applicant has made a contribution to the community.

3. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140.

4. There are no persons whose visas would be subject to consequential cancellation.

   if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

5. The applicant’s evidence to the Tribunal is that his relationship with his wife has ended after his visa was cancelled and he intends to seek custody of his child, which is not opposed by his ex-wife’s the mother’s family. The applicant states that if his visa is reinstated, he will sponsor the child for a Child visa to enable the child to live in Australia, where the child will have a better life and better opportunities than he does in Pakistan. The applicant notes that if his mother and sister are granted Australian visas, that may affect the care the child receives.

6. The applicant submits that the child’s long term care remains a serious concern. The applicant submits that his ex-wife can only remarry if the child is cared for by another person and his mother and sisters may be unable to care for the child because they are expecting to be granted the Australian visas and travel to Australia. The applicant submits that he has been supporting the child financially since the child’s birth and has done everything to keep the relationship with his ex-wife. He can only sponsor the child if his visa is reinstated.

7. The applicant told the Tribunal that his son is a Shia and a Hazara and would face the same problems in the future. The present situation in Afghanistan may also affect the neighbouring countries. In all these circumstances, the Tribunal accepts that it may be in the best interests of the child to leave Pakistan and to stay in the care of his father. The Tribunal finds that the best interests of the child would be adversely affected by the cancellation of the applicant’s visa.

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

8. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

9. The applicant states that as a Shia Hazara, he would be subjected to harm upon return to Pakistan. In his submissions to the Tribunal the applicant outlines the harm he would experience as a Hazara and a Shia if he was to return to Pakistan and refers to several country information reports on the general security situation in Pakistan and the treatment of Hazaras in that country. The applicant submits that the worsening situation in Afghanistan may also affect the safety of Hazaras in Pakistan.

10. The Tribunal is of the view that in this particular case, the grant of the protection visa in the past is not necessarily an indication that the applicant is owed protection because the decision to grant the visa was based, to a significant degree, on incorrect information.

11. The Tribunal has had regard to the 2019 DFAT report on Pakistan, which relevantly states with respect to Hazaras living in Pakistan:

    The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.

    Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.

    Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ have targeted Hazaras in Pakistan for their sectarian affiliation.

    The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.

    Government forces also provide security for Shi’a religious processions. Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.

    Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.

    Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’

    An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta…

    Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.

    Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.

    Hazara children born in Pakistan are entitled to Pakistani citizenship…

    While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.

    DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.

    DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.

    DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.

    Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.

    While DFAT assesses Hazaras do not typically require official documentation to access non- government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health,  emergency care and education services.

12. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Pakistan, being a Hazara. The Tribunal also acknowledges the applicant’s evidence that the situation in Afghanistan may affect the safety of the Hazara population in Pakistan.

13. The Tribunal discussed with the applicant the possibility of making another application for a protection visa (such as a temporary protection visa) onshore. The applicant submits that due to the mode of his arrival, he may not have the option of seeking another visa onshore. The Tribunal acknowledges that even if the bar is lifted and the applicant is able to apply for another visa, there can be no certainty of the visa being granted.

14. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

15. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation. However, the Tribunal also acknowledges that if the applicant is not able to remain in Australia, his return to Pakistan may result in the applicant facing a real chance of persecution or a real risk of harm.

16. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of his Hazara ethnicity and his Shia religion. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

17. The applicant’s father and two siblings live in Australia. His mother and sisters and his minor child live overseas. The Tribunal has formed the view that the applicant has equally strong links to Australia as he does to Pakistan. The Tribunal does not consider that family unity obligations would be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

18. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia and he would be unable to sponsor his child (or other relatives) for the Australian visas. These matters weigh against the cancellation.

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

19. In his evidence  to the delegate the applicant refers to the hardship he has experienced due to the separation from his wife and child. The applicant notes that he had sponsored them for a visa in 2013 and he cannot continue to sponsor them if his visa is cancelled. (The applicant’s evidence is that his relationship to the wife has now broken down.) The Tribunal accepts that if the applicant does not hold a permanent visa, he cannot act as a sponsor to his child and that this may cause hardship to the applicant`  

20. In his response to the NOICC and written submission to the Tribunal the applicant notes that as soon as he received the natural justice letter from the Department, he decided to be honest and had volunteered the truthful information and provided the documents to support his evidence. The applicant states that he regrets providing incorrect answers and doing so had affected his mental heatlh. The applicant submits that the applicant fully disclosed the correct information to the Department and has taken steps to correct his name with other agencies. The Tribunal finds the applicant’s evidence unpersuasive. The applicant did provide incorrect answers in his RSA request, the protection visa, the application for the RRV and the application for citizenship. It was not until the Department wrote to him seeking his comments on adverse information, that is, when the correct information was already before the Department, that the applicant made the decision to correct the information and to supply truthful answers. The Tribunal is mindful that several years passed since the applicant first provided incorrect information in his RSA request and in his subsequent applications before he provided truthful information. In the Tribunal’s view, if the applicant did have any remorse about his conduct, or if he did feel compelled to provide truthful information, he would have done so much earlier and not only in response to the natural justice letter and only once the correct information was already before the Department. Thus, the Tribunal considers the applicant’s claim, and the provision of truthful answers, to be opportunistic.

21. The applicant states that he had made contact with the Department in June 2019 to disclose the correct identity and family composition and had subsequently made arrangements to formally change his name. He made an application for a Credit Report and provided evidence of his identity. (Evidence of these actions has been provided to the Tribunal.) The applicant told the Tribunal that  if his visa is cancelled, everything will be affected. His life, his work and his child. The applicant refers to the depression he has experienced as a result of the uncertain future. The Tribunal accepts the applicant’s evidence.

22. The applicant has referred the Tribunal to the decision made in his brother’s case, stating that their circumstances are very similar and that the same considerations apply in his case. the applicant states that there are more compelling circumstances in his case as the cancellation of the visa would prevent him from sponsoring his son to come to Australia. The Tribunal acknowledges that similar facts should lead to the same outcome but also notes that each case must be determined on its own merits.

23. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given or provided and that he had not complied with s. 101 of the Act. There are grounds for cancelling his visa.

24. The Tribunal considers the breach was very significant. The applicant relied on the incorrect identity (name, place and date of birth and family composition) when applying for the protection visa and referred to the incorrect country of nationality. These matters were central to the assessment of his claims and the decision to grant the applicant the protection visa. The breach was deliberate because, essentially, the applicant thought he would have better chances of obtaining the visa. The applicant continued to provide incorrect information in his RRV and the application for the Australian citizenship. The Tribunal finds that the circumstances in which the breach occurred weigh very heavily in favour of the cancellation. Importantly, the Tribunal considers that the fact that the decision to grant the visa was based on incorrect information and that information was central to the decision to grant him the visa to be strongly in favour of the cancellation. Essentially, the decision-maker was denied the opportunity to assess the applicant’s genuine circumstances when deciding to grant the visa because these circumstances were not disclosed and not known. The Tribunal finds that there are very strong grounds for cancelling the visa.

1. The Tribunal has considered other circumstances. The Tribunal acknowledges that the applicant has been living in Australia for over 11 years and is settled in Australia and is well regarded by others. The Tribunal accepts that the applicant has contributed to the community, has formed friendships and has strong family ties to this country. Importantly, the Tribunal acknowledges that if the applicant’s visa is cancelled, he would be unable to sponsor his son for the Australian visa and the Tribunal has formed the view that in the circumstances of this case, the cancellation of the visa would adversely affect the best interests of the applicant’s minor child.

2. The Tribunal places significant weight on the country information noted above. It essentially confirms the applicant’s evidence that the situation for the Hazaras in Pakistan remains unsafe and the Tribunal acknowledges the applicant’s evidence that it may deteriorate due to the present situation in Afghanistan. While the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation, the Tribunal does acknowledges the applicant’s evidence that the uncertainty about the future has affected his mental health and also that any future process (which may require the lifting of the bar to enable the applicant to make another visa application onshore) would be lengthy, exacerbating his own condition and affecting his ability to sponsor the son. These are all factors that weigh against the cancellation.

3. The Tribunal has decided that in the particular circumstances of this case, the factors that are against the cancellation outweigh those that favour the cancellation.

4. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. 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.

   Kira Raif
   Senior Member