2016243 (Migration)

[2021] AATA 4158

2016243 (Migration) [2021] AATA 4158 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016243

MEMBER:Kira Raif

DATE:22 September 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 22 September 2021 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – identity – secondary applicant to mother’s refugee visa application, proposed by father – forensic biometric checks for citizenship application revealed previous refugee application, proposed by brother – different name, date and place of birth, family composition, marriage and children, and employment – separation from family and father’s and brother’s lack of knowledge of details and circumstances – claimed date of birth results in marriage and children at implausibly young age – passport issued in third country on self-reported personal details with no checks – discretion to cancel visa – applicant’s and mother’s health, and applicant’s physical, emotional and financial support to parents – strong family links – non-refoulement – country information – Hazara Shia woman with no right to live in another country – best interests of children living undocumented in third country – application for substantive visa not finally determined – prospect of indefinite detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36, 91W, 99, 101, 107, 109, 116(1AA), 189, 195A, 196, 197AB, 197C, 197D, 198
Migration Regulations 1994 (Cth)

CASES
Commonwealth of Australia v AJL20 [2021] HCA 21
Ibrahim v MHA [2019] FCAFC 89
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 dated 2 November 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan, born in [Year 1]. She was granted a protection visa in Subclass 200 in March 2014 and a Resident Return visa (RRV) in July 2019. In March 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate was not satisfied as to the applicant’s identity. The applicant provided her response to the NOICC and her visa was cancelled in November 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for a Refugee (Subclass 200) visa in October 2013 as a secondary applicant, included in the application made by her mother [Ms A]. They were proposed by the applicant’s father [Mr B]. In support of that application the applicant completed Form 842 in which she gave the following answers

   a.The applicant gave her name, date and place of birth

   b.The applicant stated that she was the biological daughter of the main applicant and that she had never married or been in a de facto relationship

   c.She has no children

   d.She had not applied for an Australian visa before and has no relatives residing in Australia

   e.She has been residing in Quetta, Pakistan since 2013 and prior to that in Afghanistan

   f.She had never been employed in the past 15 years.

7. The applicant also completed Form 80 in which she also stated that she

   a.had never been married or in a de facto relationship

   b.had not been known by any other name and did not have a different date of birth

   c.referred to her natural father residing in Australia and mother living in Pakistan

   d.referred to her siblings

8. In December 2013 the applicant’s mother attended an interview in which the following information was provided

   a.the family has been living in Quetta. They had been threatened by the Pashtun neighbours who had tried to take their land. As a result, the applicant’s father left Afghanistan

   b.the applicant received marriage proposals but they were refused

9. The applicant included in her application the Polio Vaccination Certificate issued by the government of Pakistan in the name of [Applicant Given Name] (born in [Year 1]) and an Afghan passport in the same name, issued by the Afghan Consulate in Quetta.

10. The applicants were granted the Refugee (Subclass 200) visa on 17 March 2014 and arrived in Australia on 20 November 2014.

11. In December 2018 the applicant made an application for the Australian citizenship. In that application the applicant also gave her name as [Applicant Name] (dob [Date 1]), her place of birth as Helmand, Afghanistan and details of her Afghan passport. The applicant included a number of Australian identity documents including her Medicare and healthcare cards, a driver license, a travel document, and other materials.

12. The primary decision record indicates that forensic biometric checks indicate that the applicant had previously made an application for a Refugee Subclass 200 visa in July 2012 under the name of [Applicant Alias] (born in [Year 2] in Jaghori) and she stated in that application that

    a.she was widowed. The applicant gave details of her partner and stated that she was in a relationship between 2005 and 2010 and that there was a child from that relationship,

    b.the applicant gave different details about her family composition and referred to her employment from 2000,

    c.the applicant referred to her two siblings and claims that she had adopted her siblings following the deaths of her parents.

13. That application was withdrawn in August 2014.

14. The delegate concluded that the applicant provided inconsistent and contradictory information about her identity. In the Refugee application made in October 2013 she declared her name as [Applicant Given Name], stated that she was born in Helmand Province in [Year 1], stated that she was never married or been in de facto relationship and that she was the daughter of the primary applicant [Ms A] and that she was sponsored by her father [Mr B]. The applicant stated that she had no children, had never applied for an Australian visa, had always been unemployed and that she had been living in Pakistan since 2013. The applicant provided the same information in her Australian citizenship application made in December 2018. However, the information indicates that he applicant did previously apply for the Refugee visa in July 2012 in a different name of [Applicant Alias], claiming she was born in [location] Jaghori in [Year 2] and that she had been living in Pakistan since 1999 and that she was previously married and became a widow in 2010. The applicant stated that she had children from that marriage and gave a different family composition. She stated that both her parents are deceased. The applicant also provided information about her employment. The delegate was not satisfied as to the applicant’s identity.

15. In her response to the NOICC the applicant states that she was born in [Year 1] in Helmand Province. The applicant states that as the eldest child, she was responsible for providing care to her family and found a part-time job. The applicant described her family circumstances and stated that her family was targeted as Hazara and had to flee Afghanistan and she claims she later learned that her mother was killed. The applicant describes her marriage and a relationship with another person and the births of her two children. The applicant states that she later discovered that her mother was alive and she was able to locate the family. The applicant states that when her father lodged the application, he provided the information that he knew but he was not aware that she had given birth, nor of her marriage. The applicant explains that her personal details in the brother’s application were different because her brother adopted a different surname and her father was unaware of her previous application. The applicant states that her brother was unaware of her date of birth, hence the different dates were provided in two applications and her brother was also unaware of other information such as her employment, which was not included in the application. The applicant states that all the answers she gave in her application were correct. 

16. The applicant provided largely the same explanation in her evidence to the Tribunal. In her written submission to the Tribunal of 15 September 2021 the applicant submits that the issues that resulted in the cancellation of her visa arose due to the separation from her family, when she was a child, and there is sufficient evidence in relation to her identity to find that the ground for cancelling does not arise.

17. The applicant states that in 2001 she and her siblings fled Afghanistan. In 2012 she made the application for the Subclass 200 visa, proposed by her brother. In July 2013 her father arrived in Australia and in October  2013 the visa applicant was included in the father’s application under the split family provisions, which was subsequently approved. The applicant states that since her arrival in Australia, she has been living with her family and they provide support to each other. The applicant states that she made an application for a protection visa in July 2021 which remains outstanding.

18. The applicant has also addressed the discretionary considerations. In particular, the applicant refers to the hardship she would experience as a Hazara of Afghan nationality and the hardship the cancelation has already caused to her and the family.

19. With respect to her identity, the applicant states that the erroneous information concerning her identity can be explained in the context of her history, living as orphans in Pakistan and lodging the application without information about family details. The applicant confirmed her identity, date and place of birth and outlined her family composition, stating that a DNA test would confirm the family relationships, as is the fact that she has been living with her family since arrival in Australia.

20. The applicant states that she holds a valid Afghan passport obtained at the Afghan Consulate in Quetta and no concerns have been raised about the validity of that document.

21. With respect to the inconsistencies in the two visa applications, the applicant states that  these are explicable by her circumstances at the time and such inconsistencies do not negate the evidence concerning her identity. The applicant explains that the proposer had not resided with their mother before the application was lodged and had minimal knowledge about the family’s circumstances, including personal details. The applicant states that she had a ‘relationship for show’ with an Afghan refugee and a de facto relationship with another man with whom she had two children but none of her siblings were aware of the children’s parentage due to the threat of violence or ‘honour killing’. The applicant also notes that she and the proposer were very young at the time of the application and were illiterate with little knowledge of English. The applicant explains the use of the surname ‘[Applicant Alias Surname]’.

22. In oral evidence, the applicant told the Tribunal that when their area was attacked in Afghanistan, she was separated from her parents. She and a brother were brought to Pakistan by a neighbour, they were very young and did not know at the time what was going on. She did not know her date of birth and that is why she gave the incorrect date of birth.  After they came to Pakistan, they lived in a mosque for about five years and through the mosque they were able to be reunited with their mother when her mother and siblings came to Pakistan around 2013. The applicant stated that she lived in a mosque for about five years and then moved to another place and assisted someone working as [an occupation] in return for board. To avoid people talking, she had married that person. She also worked [doing a job task]. She started working around 2008 – 2011.

23. The Tribunal has formed the view that the applicant’s evidence about her date of birth is incorrect. This is because, firstly, the applicant told the Tribunal that she had a religious marriage ceremony in 2005 and the Tribunal does not accept that it could have been done when the applicant claims she was born in [Date 1] and would have been [Age 1] years of age at the time. The applicant told the Tribunal that the person who offered her accommodation suggested that they should get married so that the community would not talk about the arrangement. They had the religious marriage ceremony around 2005 and because she was very young, the celebrant put a different date of birth on her marriage certificate. The applicant states that the ceremony was only for security rather than to have a relationship. Even if all of that was true, the Tribunal does not accept the marriage ceremony would have been conducted when the applicant was only [Age 1] years of age.

24. Secondly, the applicant told the Tribunal that her children were born in [Year 3] and [Year 4]. If her date of birth is [Year 1] as she claims, the Tribunal considers it implausible that the applicant would give birth to children at the age of [Age 2] and [Age 3]. The applicant repeatedly told the Tribunal that she did not know when she was born and her father told her she was born in [Year 1]. The applicant claims that in the first application [Year 2] was given as an approximation of her date of birth. The Tribunal does not accept that evidence as in the Tribunal’s view, an approximation may be within some months or a few years of the person’s age, not nine years. The Tribunal has formed the view that the applicant’s claimed date of birth of [Year 1] is incorrect, having regard to her claimed marital and employment history and the dates when her children were born, and [Year 2] appears to be a more likely date of birth or at least a more accurate approximation of her date of birth.

25. With respect to the different place of birth in the two applications, the applicant explained to the Tribunal that her brother who filled in the papers, was very young at the time and did not know the information, so he put down their mother’s place of birth. The applicant states that they were all born in Helmund, which is the information that she put on her passport application. It is unclear to the Tribunal why her brother would not know his own place of birth, which according to the applicant’s evidence is the same place of birth as the applicant’s, even if he was young when he proposed the applicant for the visa. The discrepancy in the applicant’s place of birth has not been explained to the Tribunal’s satisfaction.

26. The Tribunal has considered the information contained in the applicant’s Afghan passport. The applicant told the Tribunal that when she applied for the passport, she was required to complete an application form and provide passport photos. The applicant states that she did not have the tazkera and could not provide any personal documents when applying for the passport. The applicant told the Tribunal that the consulate accepted whatever she put on the application form without any checks. In such circumstances, the Tribunal is not satisfied the Afghan passport is probative evidence of the applicant’s identity because it appears to have been issued entirely on the applicant’s self-reported personal information. The applicant’s own evidence is that she is uncertain about her date of birth (and the Tribunal found it is not [Year 1] as claimed) and inconsistent evidence about the applicant’s place of birth is not satisfactorily explained. The Tribunal does not accept the passport as probative evidence of the applicant’s date and place of birth.

27. The applicant also refers to her Australian visa and states that she used that document as evidence of her identity. However, as noted elsewhere, the Tribunal does not consider that  the Australian authorities would have conducted any independent checking of the applicant’s identity, including at the time when her visa was issued, and all such documents, including the visa, driver license, Medicare, etc would have been issued on the basis of the applicant’s passport (which the Tribunal considers unreliable) and self-reported information. The Tribunal gives these documents no weight as evidence of the applicant’s identity.

28. The applicant had presented completely different accounts of her identity and personal circumstances in the two visa applications. These included different names and dates of birth, different marital and employment history and different family composition. The applicant gave different names of her parents and claimed that they were deceased in one application and that they were alive in another. The delegate also rejected the applicant’s evidence about the paternity of her children. However, the Tribunal is of the view that much of the information on which the delegate relied is not relevant to establishing one’s identity. Thus the applicant’s marital status or the existence of children or the paternity of these children have no bearing on the applicant’s identity. Whether the applicant’s parents were alive or not at the time the applications were made also has no bearing on her identity.

29. For the reasons noted above, the Tribunal finds that there are significant concerns about the applicant’s identity. The applicant’s representative refers to the policy which states that the relevant test for the decision-maker is to be ‘more satisfied than not’ and that it is not necessary to be satisfied as to every element of identity. The Tribunal acknowledges the Departmental policy (although not bound by it) with respect to cancellations under s. 116(1)(AA). The representative submits that considerable weight should be given to the applicant’s familial relationships, which can be proved, as well as the fact that the applicant was born in Afghanistan. In this case, the Tribunal has rejected the applicant’s claim that she was born in [Year 1] and is unable to determine with any degree of satisfaction her date of birth. The Tribunal accepts the representative’s submission that in Afghanistan, dates of birth are always an approximation but in this case, the Tribunal has formed the view that the approximation of [Year 1] is entirely inaccurate and not close to the applicant’s actual date of birth. Importantly, the Tribunal’s concerns here go beyond the applicant’s date of birth. The applicant’s place of birth has also been inconsistent in the two visa applications. The applicant claims that her brother made a mistake due to his young age and declared their mother’s place of birth but given the applicant’s evidence that all the children were born elsewhere, it is difficult for the Tribunal to understand why the brother would be unaware of his own place of birth. In the circumstances of this case, and given these concerns, the Tribunal has formed the view that establishing the applicant’s connection with family members in Australia would be insufficient to establish her identity.

1. Having regard to the inconsistencies in the two visa applications and other concerns set out above, the Tribunal is not satisfied as the applicant’s date and place of birth. Overall, the Tribunal is not satisfied as to the applicant’s identity. The Tribunal finds that the ground for cancellation in s.116(1)(AA) exists.

2. The applicant’s evidence also makes it clear that she had answered questions incorrectly in her two visa applications, including the most recent one that resulted in the visa grant. The applicant gave incorrect answers about her marriage, being known by another name, her children and past employment. The Tribunal is mindful that the applicant claims her father or her brother completed the application forms and were unaware of these details but under s. 99 of the Act, the applicant is taken to have provided the answers, even if the application was completed by another person. It is thus insufficient to state, as the applicant does, that all the answers she had given are correct and genuine and incorrect answers were given by others because the applicant was responsible for the content of each application she has made irrespective of who had completed the application forms and there were clearly incorrect answers given or provided in the second visa application. The Tribunal has formed the view that the applicant did not comply with s. 101 and that this may provide a ground for cancelling her visa under s. 109 of the Act. However, that is not the basis of the cancellation that was used here. The visa was not cancelled for non-compliance with s. 101, nor was it cancelled under s. 107 of the Act. The applicant’s visa was cancelled under s. 116 and therefor the Tribunal has limited its considerations to that provision.

3. The Tribunal has found that a ground for cancellation in s.116(1)(AA) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

4. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

5. The applicant entered Australia on a Humanitarian visa as a member of the family unit of a person who held an Australian visa. The applicant’s relationship with the proposer has not been questioned (and the applicant agreed to undertake DNA testing to confirm that relationship). The applicant told the Tribunal that she feels safe in Australia. The Tribunal is satisfied the applicant is fulfilling the purpose of her visa. The Tribunal finds that the presence of her close family, including parents and four siblings in Australia may constitute a compelling need for the applicant to remain in Australia. The Tribunal is also of the view that the present situation in Afghanistan, including the risk to Hazaras, also constitute a compelling need for the applicant to stay in Australia.

   The extent of compliance with visa conditions

6. There is no evidence of any non-compliance with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

7. The applicant claims she is the key caregiver to her parents and she provided medical evidence in relation to her parents. The applicant states that as a result of her visa cancellation, her mother has had many health issues and recently had an operation. The applicant described the support she provides to her mother. The Tribunal accepts the applicant’s evidence and accepts that the applicant provides physical and emotional support to her parents. The applicant told the Tribunal that if she is sent back to Afghanistan, she may be killed and her parents would not survive that, given their poor health. The Tribunal accepts that significant hardship would be caused to the applicant’s family if the visa is cancelled and if that support is withdrawn.

8. The applicant refers to her own health concerns and the ongoing medication she has been receiving. The Tribunal accepts that evidence.

9. The applicant told the Tribunal that she had previously worked and also received Centrelink payments as a carer for her parents but these payments have been cancelled once her visa has been cancelled. The Tribunal accepts that some financial hardship would be caused by the cancellation of the visa.

   Circumstances in which ground of cancellation arose.

10. The ground for cancellation arises because the Tribunal is not satisfied as to the applicant’s identity. This is because of the inconsistencies in the two visa applications, the Tribunal’s view that the applicant’s identity documents are unreliable and the implausibility of some of the applicant’s evidence (such as marriage at the age of [Age 1] and giving birth to a child at the age of [Age 2]). The applicant’s evidence to the Tribunal is that she is not aware of her date of birth and she told the Tribunal that she is related to her parents and siblings as claimed.

    Past and present behaviour of the visa holder towards the department

11. As noted elsewhere, the Tribunal has formed the view that the applicant gave incorrect answers in her Refugee visa application, at least with respect to her relationship status, children and employment. The applicant’s evidence is that the application was completed by her father who was not aware of her circumstances but in the Tribunal’s view, and having regard to s. 99 of the Act, the Tribunal finds that such answers may constitute non-compliance with s.101 of the Act.

    Whether there would be consequential cancellations under s.140

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

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

13. If the applicant’s visa is cancelled and if she 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 she can apply for onshore. The Tribunal is mindful that the applicant did make an application for a substantive visa in Australia following the cancellation of her visa and that application has not been finally determined. 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 she may have been entitled to as a permanent resident of Australia and it would affect the applicant’s ability to sponsor her partner and children for the Australian visas.

14. The applicant submits that she may have difficulty meeting s. 91W if she cannot prove her identity and if she cannot establish her identity, her protection visa may not be granted. The applicant states that even if an ITOA assessment is done and is positive, under s. 197C she may still be removed from Australia because an ITOA assessment is not a determination with respect to protection obligations.

15. The Tribunal acknowledges that under s.197C(1), Australia's non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia's non-refoulement obligations: s.197C(2). However, the effect of the recent amendment to s 197(3) is that despite these provisions, s 198 does not require an officer to remove an unlawful non-citizen where a person has been found to be owed protection obligations, regardless of whether the grant of a protection visa is prevented because of other visa criteria or provisions. As a result of these amendments, the duty to remove the applicant under s.198(5) 'should not be enlivened where to do so would breach non-refoulement obligations'. However, the s 197D process may extend the period in detention. As noted above, the applicant as an unlawful non-citizen will be subject to mandatory immigration detention. As the Minister's statutory powers to grant the applicant a visa (s.195A of the Act) or move a non-citizen into 'community detention' (s.197AB of the Act) are non-compellable and discretionary, it is uncertain whether the applicant would be granted a visa or whether she would be eligible for community detention. Therefore, if the applicant were not removed pursuant to s.198(5), the consequence of the cancellation is that there is a prospect of ongoing and possibly indefinite detention. This majority judgment in Commonwealth of Australia v AJL20 [2021] HCA 21 considered the interpretation and effect of ss.189, 196, 197C and 198 and confirmed the lawfulness of detention of an unlawful non-citizen, even if the Executive has not been taking steps to remove a detainee as soon as reasonably practicable. The Tribunal acknowledges that a lengthy or indefinite detention will cause significant hardship to the applicant.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

16. 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.

17. The applicant states that as a Hazara and a woman, she would be subjected to harm upon return to Afghanistan. The applicant states that she never had papers to live in Pakistan and cannot live in that country.

18. The Tribunal has considered the available country information in relation to the situation in Afghanistan.

19. In an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, 'Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action' the authors state neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can't 'erase the freedoms that women have earned'. Ultimately, economic prosperity is critical as, 'This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school'.

20. NBC News referenced a U.S. Defense Intelligence Agency report that provides some insight into the capabilities of the Taliban:

    The report cited analysis from the Defense Intelligence Agency saying that from Jan. 1 through March 31, 2021, the Taliban's military strategy was to prepare for large-scale offensives against provincial centers, complex attacks against the Afghan National Defense and Security Forces' bases, and degrading the Afghan forces' capabilities.

21. In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan provinces to prepare these offensives, and they continued assassinating government employees, security officials, and journalists, the report says.

22. Citing information from the Defense Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened. At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defense Intelligence Agency reported that these offensives 'did not accomplish anything of strategic value'.

23. The United States has indicated that it will be expediting U.S. visa processing for Afghans who were employed by the U.S. government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the U.S. Special Envoy for Afghanistan was reported as sharing 'the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for U.S. troops and diplomats. He said the Biden administration was working to expedite applications for U.S. visas under a program designed for Afghans who were employed by the U.S. government'. The Australian government has closed its embassy in Afghanistan prior to the withdrawal of U.S. troops. Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

24. It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan's constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

25. The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn.

    Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, 'While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazara as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way'… For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

26. The former ambassador then concludes by saying, 'what looms ahead is the elimination of this ethnic group'.

27. Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.

28. There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, 'In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the 'foreign infidel powers' and their 'puppet regime'. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban's overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group's strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras. The author then concludes by believing that 'Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow'.

29. In another assessment of the Taliban's claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks 'there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks'. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al-Qaeda to appreciate the view towards minorities such as the Hazara.

30. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara and a woman.

31. 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.

32. The Tribunal is mindful that the applicant has made an application for a protection visa in Australia. The applicant’s evidence is that visa processing make take some years and the Tribunal accepts that such delay and the uncertainty about the future may cause hardship to the applicant. The Tribunal also acknowledges the applicant’s submission, noted above, that if she cannot prove her identity, this may affect the outcome of her application.

33. 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 cannot be removed to Pakistan and if she is not granted a visa, she may face indefinite detention. If the applicant is not able to remain in Australia and is required to return to Afghanistan, this may result in the applicant facing a real chance of persecution or a real risk of harm.

34. 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 her Hazara ethnicity and due to her status as a woman. The Tribunal has formed the view that the nature of her claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

35. With respect to the principles of family unity, the applicant’s parents and siblings live in Australia while her children and two of her siblings reside overseas.

1. The Tribunal has also considered the best interests of the applicant’s two children. The applicant told the Tribunal that the children reside with their father in Pakistan but have no papers to live in Pakistan. The applicant explained that she has not been able to sponsor her partner and children as she was not able to tell her parents about their existence and it was not until her visa was cancelled that her parents knew about the relationship.

2. The applicant claims that her children have no opportunities in Pakistan and they mainly stay at home. If her visa is reinstated, she plans to find a job and sponsor her partner and children. The Tribunal accepts that if the children are undocumented Afghan refugees in Pakistan, they would have very limited opportunities now and in the future, including educational and employment opportunities. The Tribunal also accepts that the applicant has no right to live in Pakistan and the family may be unable to return to Afghanistan, so unless the family is reunited in Australia, there may not be an opportunity for the children to live with their mother and the Tribunal is of the view that it is in the best interests of the children to have the support of both parents. The Tribunal also acknowledges that as Hazaras, the children may experience the harm noted above. Overall, the Tribunal finds that is in the best interests of the children to live with their mother in Australia and it is therefore in their best interests that the applicant’s visa not be cancelled.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

3. The applicant’s parents and siblings reside in Australia and the applicant’s evidence is that she has been residing with her family since her arrival in Australia and has been taking care of her parents. The Tribunal accepts that the applicant has strong family ties in Australia.

   Any other relevant matters

4. The applicant was granted the visa as a secondary applicant and therefore as a member of the family unit, or immediate family member of her mother. If the applicant’s relationship was declared, the applicant may not have met these definitions as she may not have been recognised as a dependent child. It is significant, in the Tribunal’s view, that the decision to grant the visa was based on incorrect information and that the decision-maker did not have the opportunity to assess the applicant’s eligibly for the visa on the basis of her correct circumstances.

5. The Tribunal has formed the view that there are grounds for cancelling the visa because the Tribunal is not satisfied as to the applicant’s identity.

6. There are reasons, in the Tribunal’s view, that favour the cancellation. In particular, the Tribunal notes that applicant may have been ineligible to the grant of the visa as a member of the family unit, or member of the immediate family of the primary visa applicant, her mother, as her marriage or de facto relationship may have precluded her from meeting those criteria. That is, if the applicant disclosed her circumstances, she may not have been granted the visa. This is a very strong consideration, in the Tribunal’s view, that favours the cancellation.

7. The Tribunal also notes that one’s identity is central to any visa assessment and in this case, the Tribunal has formed the view that the evidence as to the applicant’s identity is inadequate and unreliable. There is also information that the applicant had not been truthful in her visa application and provided incorrect answers (for example, in relation to the existence of the previous visa application, her marital status, children and employment details). These factors also favour the cancellation.

8. However, there are also strong grounds why the visa should not be cancelled. Important, in the Tribunal’s view, is the applicant’s status as a Hazara and a woman in Afghanistan. That information is not in dispute. The country information indicates that the applicant may face serious harm in Afghanistan or there is a prospect of lengthy or indefinite detention if she is not granted another visa. The Tribunal has also formed the view that it is in the best interests of the applicant’s two minor children to be reunited with both parents and that would be more likely to occur if the applicant retains her visa and is able to sponsor her family. The best interests of the children is a primary consideration.

9. The Tribunal has found that the applicant is fulfilling the purpose of her visa and that she has a compelling need to remain in Australia. The Tribunal finds that the applicant has strong family ties in Australia and that the cancellation of her visa may cause significant hardship to her family, given the applicant’s role as a caregiver to her mother.

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

11. 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