2016248 (Migration)

[2021] AATA 4157

2016248 (Migration) [2021] AATA 4157 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016248

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 1:28pm

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 and employment – separation from family and father’s and brother’s lack of knowledge of details and circumstances – passport issued in third country on self-reported personal details with no checks – discretion to cancel visa – financial, emotional and psychological hardship – strong family links – non-refoulement – country information – Hazara Shia – 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, 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]. He was granted the Refugee (Subclass 200) visa in March 2014 and a Resident Return visa (RRV) in January 2019. The applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) in March 2020 and provided his response to the NOICC in April 2020. The applicant’s visa was cancelled in November 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 September 2021 to give evidence and present arguments. Although that hearing was adjourned, the applicant informed the Tribunal that he consented to the Tribunal proceeding to make the decision on the material before it. 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 or the Tribunal 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 the Refugee Subclass 200 visa on 1 October 2013 as a secondary applicant, included in the application made by his claimed mother [Ms A]. The application was proposed by the applicant’s claimed father [Mr B], who had been living in Australia since July 2013.

7. As part of the application, the applicant completed Form 842 in which he gave the following information:

   a.the applicant gave his name and date of birth (in [Year 1]) and stated that he was born in Helmand, Afghanistan,

   b.he had never been married or in a de facto relationship,

   c.he was the biological son of the main applicant,

   d.he had not applied for an Australian visa before, had no relatives or other links to Australia,

   e.he had been residing in Quetta, Pakistan since 2013 and between 2003 and 2013 in Helmand Province in Afghanistan,

   f.he had not been employed in the past 15 years.

8. The primary decision record indicates that in December 2013 the applicant’s mother attended an interview at the Australian High Commission. During that interview she is recorded to have stated that

   a.the family had been living in Quetta for ten months and at Helmand Province prior to that,

   b.the applicant’s father left Afghanistan because of threats to the family from Pashtun neighbours over a land dispute. He informed the family that he intended to travel to Australia and later called from [country]. The family moved to Quetta about 2-3 months later.

9. The applicant included with his application, as proof of identity, his Afghan passport and his Polio Vaccination certificate, both in the name of [Applicant Name] with the date of birth of [Year 1]. It is recorded that the applicant’s sister [Ms C] completed Form 80 in which she referred to [Mr B] and [Ms A] as the biological parents and identified several siblings. The family were granted the Refugee (Subclass 200) visas in March 2014 and arrived in Australia in November 2014.

10. In December 2018 the applicant made an application for the Australian citizenship. In that application the applicant again stated his name as [Applicant Name], born in [Year 1], and stated that he had not been known by any other name. The applicant gave details of his Afghan passport issued in Quetta in November 2013. In support of that application the applicant provided a number of identity documents such as his Victorian driver license, a Medicare card, a Pensioner Concession card, a travel document and his Afghan passport.

11. The primary decision record states that the forensic biometric checking undertaken by the Department indicates that the applicant was previously included in an application for the Global Special Humanitarian (GSH) visa in Subclass 202, lodged in July 2012 in the name of [Applicant Alias] (born in [Year 2]). The facial image assessment compared the photographs included in the applicant’s Refugee (Subclass 200) application and the GSH application made in 2012 and concluded that these were of the same person.

12. In the GSH application the applicant was included as a member of the family unit of his claimed customarily adopted sister [Ms C, Alias] and they were proposed by the applicant’s claimed brother [Mr D]. In the application form 842, submitted with that application, the applicant made the following claims:

    a.the applicant identified himself as [Applicant Alias], born in [Year 2] at Jaghori, Afghanistan

    b.he had never been married or in de facto relationship

    c.he was customarily adopted by the main applicant.

13. The applicant included in the application a school certificate in the name of [Applicant Alias].

14. In November 2013 the sponsor informed the Department that [Ms C, Alias] and [Applicant Alias] were killed and in August 2014 the sponsor advised that he wished to withdraw the application.

15. The delegate found that the applicant provided inconsistent information concerning his identity in the two applications. In the Subclass 200 application the applicant stated that he had not applied for any other visa, had no relatives in Australia, had no employment history and provided certain family composition. That application was made in the name of [Applicant Name] and the applicant included the passport in that name and a polio vaccination certificate. The same information was provided in the citizenship application. However, in the GSH application made in July 2012 the applicant gave a different name of [Applicant Alias] with a different date of birth, the applicant referred to his brother [Mr D] who was a permanent resident in Australia and declared different parents and siblings. The applicant stated in that application that he had worked as [an occupation] in Pakistan. The applicant included in that application his schooling certificate in the name of [Applicant Alias].

16. In his response to the NOICC the applicant states that he was [age] years of age when the above events occurred and he cannot be held responsible for the information in the two applications as he did not know much about the two cases. (The Tribunal notes that under s.  99 of the Act the applicant is responsible for the information whether or not he had completed the application form and whether or not he was aware that incorrect information was submitted.) The applicant explains that his brother used the mother’s family name of [Applicant Alias Surname] as they were not unaware of the father’s name since the father disappeared when they were young. When the father located the family and proposed them for the visa, he was not aware that they had previously made an application for the visa. The applicant admits that the information about [his sister] being adopted is wrong as she is the biological sister but claims it was not an intentional mistake. The children of his sister [Ms C] were not mentioned because their father was not aware of their circumstances and was not told about the pregnancy. The applicant refers to his young age, stating that he was not aware of the information that was provided in the applications. The applicant notes that information about his employment made little sense, having regard to his age and lack of skills, but he was helping his brother in the business. The applicant states that he had not deliberately provided incorrect information in the application.

17. In his written submission to the Tribunal of 15 September 2021 the applicant submits that the issues that resulted in the cancellation of his visa arose due to the separation from his family, when he was very young, and there is sufficient evidence in relation to his identity to find that the ground for cancellation does not arise.

18. The applicant states that he and his siblings fled Afghanistan. In 2012 he made the application for the Subclass 200 visa, proposed by his brother. In July 2013 his father arrived in Australia and in October  2013 the visa applicant was sponsored by his father under the split family provisions, which was subsequently approved. The applicant states that since his arrival in Australia, he has been living with his family, which he would not have done if there was no relationship between them.

19. The applicant has also addressed the discretionary considerations. In particular, the applicant refers to the hardship he would experience as a Hazara of Afghan nationality and the hardship the cancelation has already caused to him and his family, including loss of employment and the ability to provide financial support to his parents.

20. With respect to his identity, the applicant states that the erroneous information concerning his identity can be explained in the context him and his siblings living as orphans in Pakistan and lodging the application without information about family details. The applicant claims that a DNA test would confirm his connection to the family in Australia.

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

22. 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 his identity. The applicant explains that his brother and his father, who proposed him for the two applications, had minimal knowledge about the family’s circumstances, including personal details as they had been living away from the family. The applicant explains the use of the surname ‘[Applicant Alias Surname]’.

23. In oral evidence, the applicant told the Tribunal that he was very young at the time and his father filled in the information on the form, so he was not sure what information was given. The applicant also claims that his brother who did the papers for the first application was too young. The Tribunal does not accept that evidence. If the brother was old enough to travel to Australia unaccompanied, in the Tribunal’s view, he was old enough or mature enough to fill in the papers and recall the visa applicant’s place of birth and date of birth.

24. With respect to the use of surnames, the applicant explains that prior to arriving in Australia he did not use a surname and was only known by his first name. The applicant states that they were separated from their father for many years, so when his brother filled in the form, he used the mother’s name, which was [Applicant Alias Surname]. When the father sponsored them for the visas, he used his own name, which was [Applicant Surname]. The applicant states that his brother estimated his date of birth as he was very young.

25. There appear to be significant inconsistencies in the two applications made by the applicant. These include evidence about family composition, place and date of birth and his past employment. The Tribunal has formed the view that some of these matters are irrelevant to establishing the applicant’s identity. Thus, the applicant’s employment, his previous visa application, his connections to Australia are not relevant in determining the applicant’s identity. However, other matters are. In particular, the applicant’s name, date and place of birth are relevant to his identity and the inconstant evidence in the two applications in relation to these matters raises concerns about the applicant’s true identity. The Tribunal acknowledges the applicant’s evidence that he was too young and that the applications were prepared by others. However, as noted above, the applicant is responsible for the content of the applications he makes. Also importantly, in the Tribunal’s view, by the time the second application was made, the applicant was old enough to appreciate details such as his full name, place and date of birth. It is not apparent why the persons completing the application forms – whether it was the applicant’s brother or his father – would not be aware of such details.

26. The Tribunal accepts that there may have been unintentional errors on the application forms, however, it is difficult to determine which, if any, information is correct. The use of a different surname on its own may be explicable but the use of a different surname, different date of birth and different place of birth, as well as different information about family composition in the two applications, altogether raise serious concerns about the applicant’s identity. The Tribunal acknowledges the applicant’s willingness to undertake DNA testing to establish his relationship with his family in Australia but given the concerns about other aspects of the applicant’s identity, the Tribunal has formed the view that confirming the applicant’s connections with other family members in Australia would not be sufficient to establish his identity.

27. The Tribunal has considered the identity documents which the applicant had presented. The applicant holds an Afghan passport issued in Pakistan in 2013. There is no evidence before the Tribunal to indicate that the Afghan authorities had conducted any verification of the information in that passport or any independent checking of the information supplied by the applicant. If the passport was issued on the self-reported information produced by the applicant or his relatives, and given the inconsistences about the applicant’s personal details, the Tribunal does not consider such information to be probative or reliable. The Tribunal is not satisfied that the applicant’s Afghan passport is probative evidence of his identity. Similarly, the Tribunal does not accept the Australian identity documents, such as the travel document, driver license, Medicare, etc are probative evidence of the applicant’s identity as these would have been issued on the basis of the applicant’s passport and self-reported information and with no independent checking of the applicant’s identity.

28. Given the discrepancies in the two visa applications concerning key aspects of the applicant’s identity, the Tribunal’s concerns noted above and the paucity of probative evidence as to the applicant’s identity, 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.

29. The Tribunal has also formed the view that incorrect answers had been given or provided in the application, in particular whether the applicant had been known by another name, whether he had previously made an application for a visa and in relation to his family composition. That would indicate that the applicant had not complied with s. 101 of the Act and there may be grounds for cancelling his visa under s. 109 of the Act. However, as no Notice had been issued under that section of the Act, the Tribunal is unable to consider that ground and has limited its consideration to the issue of the applicant’s identity.

30. The Tribunal is satisfied that the 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

31. 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

32. 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 his father, who was the proposer, has not been questioned. The Tribunal is satisfied the applicant is fulfilling the purpose of his visa. The Tribunal finds that the presence of his close family, including parents and 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 (which is outlined below), also constitutes a compelling need for the applicant to stay in Australia.

    The extent of compliance with visa conditions

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

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

34. The applicant refers to the emotional and psychological hardship resulting from the cancelation of his visa and the uncertainty about his future. The Tribunal acknowledges that the applicant has made another visa application in Australia but that has not yet been determined. The Tribunal accepts that the cancellation of a permanent visa and the possibility of the applicant having to leave Australia or remain in detention in Australia would cause psychological and emotional hardship to the applicant and his family in Australia.

35. The applicant states that he was one of the main breadwinners for the family but had to give up his employment upon the cancellation of his visa. The Tribunal accepts that the cancellation of the visa has caused financial hardship to the applicant and his family.

    Circumstances in which ground of cancellation arose.

36. 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 in relation to the applicant’s date and place of birth, different surnames being provided and some inconsistencies in relation to family composition. The Tribunal’s view that the applicant’s primary identity document such as his Afghan passport is unreliable.

    Past and present behaviour of the visa holder towards the department

1. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

2. 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

3. 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 Tribunal is mindful that the applicant did make an application for a substantive visa in Australia following the cancellation of his 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 he may have been entitled to as a permanent resident of Australia.

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

5. 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 he 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

6. There are no children who would be affected by the cancellation.

7. 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.

8. The applicant states that as a Shia Hazara, he would be subjected to harm upon return to Afghanistan. The evidence before the Tribunal is that  the applicant‘s residence in Pakistan was not registered and the Tribunal accepts that the applicant has no right to reside in that country.

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

10. 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'.

11. 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.

12. 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.

13. 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'.

14. 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.

15. 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.

16. 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.

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

18. 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.

19. 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'.

20. 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.

21. 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.

22. 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.

23. 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 Afghanistan and if he is not granted a visa, he may face lengthy or 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.

24. 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. The Tribunal has formed the view that the nature of the claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

25. With respect to the principles of family unity, the applicant’s parents and siblings live in Australia.

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

26. The applicant’s immediate family reside in Australia, including his parents and siblings. The Tribunal accepts that the applicant has strong family connections in Australia.

27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa under s. 116(1)(AA) of the Act. However, the Tribunal places significant weight on the hardship that the cancellation would cause to the applicant and his family, which may result in the removal of the applicant to a country where he may face persecution or harm, or a prospect of lengthy or indefinite detention in Australia if the applicant is not granted another visa. The Tribunal also acknowledges the hardship that the cancellation would cause to the applicant’s family members, who are relying on the applicant for financial and emotional support and the applicant’s strong family links in Australia. the Tribunal acknowledges that the applicant has been living in Australia for approximately seven years and has formed strong links int his country.

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

    DECISION

29. 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