2101819 (Migration)

[2021] AATA 4089

2101819 (Migration) [2021] AATA 4089 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101819

MEMBER:Kira Raif

DATE:21 July 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 21 July 2021 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous protection visa application – applicant’s identity – Pakistani citizenship – known by another name – consideration of discretion – visa grant based on incorrect information – central claims not undermined – non-refoulment obligations – Hazara Shi'a – significant hardship – applicant’s present circumstances – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55
Zhao v MIMA [2000] FCA 1235

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 claims to be a national of Afghanistan. He arrived in Australia in January 2011 and made the application for the Class XA Protection visa in July 2012. The applicant was granted the protection visa in July 2012 and the Resident Return visa (RRV) in July 2018. In April 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 July 2021 to give evidence and present arguments. The applicant nominated two witnesses to give oral evidence but the Tribunal determined it was not necessary to take evidence from these witnesses. 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.

   Primary decision

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

11. The applicant arrived in Australia in January 2011 and made an application for a Class XA protection visa in July 2012. When completing the application form, the applicant gave the following answers

    a.The applicant gave his name, date and place of birth on the application form and stated that he was not known by any other name

    b.The applicant claimed to have been born in Jaghori, Ghazni, Afghanistan and to be of Hazara ethnic group

    c.The applicant stated that he was an Afghan citizen at birth, he answered ‘n/a’ with respect to his current citizenship and stated that he did not have a citizenship of any other country and had no right to reside in any other country.

    d.The applicant stated that he had a false Pakistani passport which was taken away from him by people smugglers

    e.When asked about the harm he would experience in his home country, the applicant referred to his request for status assessment (RSA) and his declaration and interview completed for the purpose of the RSA.

12. The primary decision record offers a summary of the claims made by the applicant in support of the RSA, set out below. The applicant claimed that  when his family lived in Afghanistan, his uncle was involved with a party, was perceived as being an oppressor by the locals and his uncle and other family members were killed. The applicant’s father was threatened by the locals as being sympathetic to the party and because of his association with the applicant’s uncle. The applicant was also in danger because he was a member of the party. The family decided to flee to Pakistan when the applicant was about 9 years old. Life in Pakistan was dangerous for Hazara and his brother was killed and his business suffered. The applicant stated that he feared returning to Afghanistan because of his Shia religion, Hazara ethnicity and because of his past political association. He stated that the family had nothing in Afghanistan and could not live there. The applicant stated that those who killed his uncle would still seek revenge against him. The applicant also submitted that he would be targeted as a western spy, as he had lived in a different country for many years.

13. The applicant was granted a protection visa in July 2012. In February 2017 the applicant attended an interview with a Department officer and admitted that he held Pakistani citizenship and identity documents. The applicant stated that these documents were fraudulently obtained by his father and had been used for a long period to obtain his Pakistani passport, register his marriage and obtain birth certificates for his three children. The applicant provided to the Department copies of the following documents

    ·his Pakistani passport in the name of [Name 1] (dob [date]) which identifies his father as [Mr A],

    ·Pakistani B Form identifying the applicant and his family by names,

    ·his Computerised National ID Card (CNIC) / NADRA Card,

    ·his wife’s Pakistani CNIC / NADRA Card,

    ·wedding certificate showing his marriage in the name of [Name 1],

    ·Pakistani birth certificates for the applicant’s three children, showing [Name 1] as the father and [Mr A] as the grandfather.

14. The primary decision record indicates that CNIC in the name of the applicant’s father had been verified as genuine by the National Database Registration Authority (NADRA) in July 2018 which might suggest that the father held a Pakistani citizenship. The applicant’s own CNIC was verified with NADRA in July 2018 with the advice that it was cancelled but was valid between June 2004 and May 2017. The applicant’s Pakistani passport was issued [in] 2009 and the delegate noted that both documents were issued well before the applicant made the application for the protection visa. The delegate formed the view that the availability of several documents such as ID card, marriage certificate, passport and birth certificates for the children indicates that the applicant’s true identity is [Name 1] and that he was a Pakistani citizen.

15. The primary decision record indicates that after being granted the protection visa, the applicant travelled to Pakistan on five occasions between 2013 and 2018 and had spent time in Pakistan and the delegate concluded that this travel may also suggest that he has the right to enter and reside in Pakistan.

16. In his responses to the NOICC the applicant stated, essentially, that his father obtained the Pakistani citizenship by fraudulent means and that he had never been a citizen of Pakistan. The applicant states that his true name is [the applicant] which is recorded in his tazkera, and the name of [Name 1] was used by his father when obtaining the Pakistani citizenship through an agent with connection to the NADRA office in Quetta. The applicant states that the family obtained the alleged Pakistani citizenship around 1990 – 1991. The applicant states that his citizenship was questioned by NADRA in 2010 and marked as ‘suspect’ and it was subsequently cancelled by NADRA, which supports his claim that the Pakistani citizenship was questionable. This led him to believe he was not a citizen of Pakistan when he made the application for the protection visa in 2012. The applicant states that identity fraud is prevalent in Pakistan and a number of NADRA officials had been arrested for providing bogus documents. The applicant presented, with his evidence to the delegate, the Pakistani visas attached to the Australian Titre de Voyage.

    Relevant country information

17. Pakistan law provides for conferral of citizenship to persons by birth in Pakistan. Under Pakistan’s Citizenship Act 1951, section 4 provides for citizenship for all children born in Pakistan, and provides freedom from discrimination by of race, ethnicity or religion.[1] In practice, however, the government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[2] despite being the subject of legal challenge in the past.[3]  

    [1] 'Pakistan Citizenship Act 1951', 18 April 2000, 20190207160648; ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 39, 20200312102402.

    [2] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 30, 20200312102402

    [3] For example; 'NADRA submits reply in Hafiz Hamdullah citizenship case', Pakistan Today, 23 November 2019, 20191127145641.

    Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.

18. In its Country Report on Human Rights Practices for Pakistan, published 11 March 2020, the United States Department of State noted that the government of Pakistan does not accord Pakistani citizenship to the children of Afghan refugees and did not accept refugees for resettlement from other countries.[4]

    The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) impacted the ability to obtain national identity documents in Pakistan after 1952 and had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[5] Subsequently, a declaration made by the Pakistan government in 1962 that conferred tribal status upon Hazaras and other ethnic groups, generated uncertainty about the legal status of Hazaras in Pakistan and their access to citizenship at law.[6] The United States Library of Congress’ Birthright by Citizenship Around the World report observed that despite the unconditional provision for citizenship by birthright in Pakistan, the claims of children of Afghan refugees born in Pakistan are denied at both administrative and judicial levels.[7] In practice, the operation of Pakistan’s Foreigners Act 1946, has enabled the direct displacement of rights to naturalisation and citizenship by birthright, for Afghan refugees and, indirectly, it has enabled the implied exclusion of these rights to their Pakistani-born descendants.[8] Referring to a 1999 judicial decision in Peshawar,[9] a report published by the European University Institute noted that Pakistan law regards Afghan refugees, who may also be parents, to be foreigners and aliens under the Foreigners Act 1946 and that the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[10]‘relevant officials had been issued directives to not consider any proof of immigration from the 60s or 70s as valid and report such documentation so (Computerised National Identity Cards) CNICs of these individuals be blocked.’(sic)[11] We do not know who took the decision, but the new policy is that any Afghan family which migrated after 1951 will be considered illegal immigrants and their CNICs will be blocked after separate verification from the Special Branch and Intelligence Bureau (IB) …

    The decision was probably taken after reports emerged that several refugees who managed to get CNICs had purchased land using backdated documents …
    

    [4] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 30, 20200312102402

    [5] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015, CX6A26A6E14660

    [6]  see: ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p. 145, St Martin’s Press, New York, in: ‘Pakistan: Shias Muslims’, 20 November 2015, COISS, p. 27, CRF909496121

    [7] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, pp. 30, 45, 20190306112250

    [8] 'Birthright Citizenship Around the World', Law Library of Congress, 01 November 2018, p.  45, 20190306112250

    [9] Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18

    [10] 'Report on Citizenship Law: Pakistan', European University Institute , Faryal Nazir, 01 December 2016, CIS38A80125116

    [11] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [12] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    The instructions are clear cut. Any document from 1951 onward will not be accepted and all those who migrated subsequently will be considered illegal immigrants.[12]

19. According to the same report, information sourced from an Intelligence Bureau official indicated that as a result of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) anyone who moved to Pakistan after this date ‘would have to apply for nationality as per the procedures set by the government.’[13] Further information from the official indicated ‘(a)fter the introduction of this act, no person could automatically become a Pakistani national by purchasing land or obtaining a CNIC’ due to verification of Afghan refugees.[14]

    [13] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660

    [14] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015, CX6A26A6E14660

20. In 2017, the Pakistan government announced a programme that aimed to provide ‘Afghan Citizen’ cards to up to one million undocumented Afghans in Pakistan.[15] The programme commenced in Islamabad and Peshawar, where the largest number of undocumented Afghans, such as Hazara refugees, reside. Information published by United Nations High Commissioner for Refugees (UNHCR) noted the cards would serve to provide legal protection from arbitrary arrest, detention or deportation under Pakistan’s Foreigner’s Act, to provide regularisation of their status until the Afghanistan government could issue passports.[16] The programme was arranged under Pakistan’s Comprehensive Policy on the Voluntary Repatriation and Management of Afghans, and included a six month period scheduled to target undocumented Afghans in Islamabad and Peshawar.[17] According to available information, by March 2018, over 175,000 cards had been issued out of over 878,000 applications.[18] By late May 2019, approximately 850,000 cards had been issued.[19] According to information provided by a government spokesperson in May 2019, 850,000 Afghan Citizen Cardholders, 500,000 unregistered Afghans and 1.4 million POR cardholders.[20]

    [15] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 8-9, 20191101144018

    [16] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 2-2, & 8-9, 20191101144018

    [17] 'Afghans dream of stepping out of the shadows with Pakistan ID scheme', United Nations High Commissioner for Refugees, 21 July 2017, CXC90406610815. See also: 'Common Claims: Pakistan', COISS, 31 October 2019, pp. 2-2, & 8-9, 20191101144018

    [18] ‘Documentation of Undocumented Afghans at Afghan Citizen Card (ACC) Centers’, International Organisation for Migration, March 2018, CIS7B83941489. This press release from a think tank that focuses on Afghan refugee issues claimed in March 2018 that 900,000 cards had been issued: ‘Pakistan Takes Afghan Refugees As A Humanitarian Issue, And Not A Political One; Tahir Khan At CRSS–ASC Youth Forum’, Afghan Studies Center (Pakistan), 29 March 2018, CXBB8A1DA40056

    [19] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

    [20] ‘Whoever try to take law in his own hands, will be dealt strictly: Shehryar Afridi’, Pakistan Tribune, 30 May 2019, 20190617115155

21. On 18 September 2018, Pakistan Prime Minister Imran Khan announced plans to grant citizenship to Afghan refugees,[21] although the Prime Minister did not specify whether citizenship would be granted to Afghans born in Pakistan or to all those who live in Pakistan.[22] According to the same report, Prime Minister Khan stated:

    "We will... god willing give (passports) to those Afghans whose children were born here and grew up in Pakistan,"…

    "When you are born in America, you get the American passport. It is the practice in every country in the world, so why not here? Why are we so cruel to these people? They are humans,".[23]

    [21] ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718

    [22] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946 

    [23] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018, 20200330111946 

1. In response to political backlash, the government shifted responsibility for the overseeing administration of the policy to a parliamentary committee.[24] No information was located that indicated that the committee has made progress toward implementation of the plan, or that any Afghans in Pakistan have been conferred citizenship under the plan.[25]

   [24] ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘Pakistan's Imran Khan skirts issue of Afghan refugees' citizenship’, Guardian, 19 September 2018, CXBB8A1DA35718; ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018, CXBB8A1DA36025; ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356; ‘Pakistan, Afghanistan, UNHCR sign declaration on return of refugees’, Tribal News Network (Pakistan), 19 June 2019, 20190624155044; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656.

   [25] ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,  20190614160356; ‘Citizenship promise’, Dawn News, 18 September 2018, CXBB8A1DA35577; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018, CXBB8A1DA35656; ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828

   Sources consulted during the research for this question include the including CISNET database, Refworld, Google search engine, the European Country of Origin Information Network, international human rights and humanitarian websites, and local news sources, including The National, The Express Tribune, Dawn, and Tolo News.

2. According to information published by the United States Department of State on 11 March 2020, the government of Pakistan established a parliamentary committee to evaluate the possibility of extending citizenship to Pakistani-born children of refugees and stateless persons.[26]  In early 2019, Pakistan media reported the government permitted Afghan refugees to open bank accounts in Pakistan.[27]

   [26] ‘Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020, p. 30, 20200312102402

   [27] ‘Pakistan’s Govt Allows Afghan Refugees To Open Bank Accounts’, Tolo News (Afghanistan), 26 February 2019, 20190227074310; ‘Bank accounts promise to Afghan refugees in Pakistan comes true’, Dawn (Pakistan), 5 June 2019, 20190606103550 

3. Proof of Residence (PoR) Cards issued by the National Database and Registration Authority (NADRA) to Afghans registered with the UNHCR, who arrived before February 2007, provide for freedom of movement and temporary legal status within Pakistan.[28] Many, however, did not register, with estimates varying between one and three million Afghan refugees who did not register and obtain PoR cards.[29] In 2019, the government extended the validity of the PoR cards until the end of June 2020.[30]

   [28] ‘Conditions for asylum caseloads: Afghan refugees’, Department  of Foreign Affairs and Trade, 19 July 2010, CX246370; ‘World Refugee Survey 2009 – Pakistan’, US Committee for Refugees and Immigrants, 17 June 2009, CX5E56FED19048  

   [29] 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, p. 30, CISEDB50AD247. See also: 'Fact Sheet UNHCR Pakistan Registration Information Project for Afghan Citizens (RIPAC)', United Nations High Commission for Refugees (UNHCR), 01 October 2009, CX235649  

   [30] ‘Pakistan extends stay of Afghan refugees’, Gulf News, 28 June 2019, 20190716133522

4. National Identity documentation is available through both official and unofficial means in Pakistan, and document fraud ubiquitous.[31] Documentation including National Identity Cards, CNICs, passports, and PoR Cards, are subject to counterfeiting and being obtained by fraudulent means, and significant numbers of Afghans have illegally obtained identity documents in Pakistan.[32] One report, for example, estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[33] Anthropologist and Hazara expert Alessandro Monsutti examined the existence of large and complex Hazara networks and observed the relative ease with which Hazaras may enjoy access to work, housing and identity documents.[34] Monsutti indicated connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly:

   Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. [35]

   [31] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 20 February 2019, p. 71, 20190220093409​​; 'Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees', Human Rights Watch, 13 February 2017, pp. 28-32,CISEDB50AD247

   [32]  'NADRA is disrupting demographics in Balochistan by issuing fake ID cards', The Nation (Pakistan), 7 August 2015, CXBD6A0DE19423, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17, DFAT, 9 March 2005, CX116630, ‘Afghan refugees’ Pakistani passports, identity cards illegal: NA told’, PAK Tribune, 17 November 2005, CX142357.  ‘Situation and return of Afghans in Pakistan’, DFAT, 19 April 2000, CX41729, ‘Pakistani/Afghan mixed marriages’, Country Information Report No.123/01, DFAT, 23 April 2001, CX52331, ‘Afghans holding Pakistani passports’, Country Information Report No.124/01, DFAT, 24 April 2001, CX52333, ‘Unregistered Afghans to be treated as illegal immigrants’, IRIN News, 22 November 2006, CX165588.

   [33] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015, CX6A26A6E14660

   [34] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, pp. 101, 111, 120–121, CIS29035. In a 2014 email to the department, Monsutti elaborated on this point, noting, ‘Access to Pakistani papers depends on personal connections more than on recognized formal rights. It means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. I know many Hazaras in Quetta who came from Afghanistan in the 1970s and never got Pakistani papers. They may own a house in Quetta, have not been to Afghanistan for more than 30 years, without being formally Pakistani citizens’. ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802. See also 'Participatory Needs Assessment of Afghan Refugees in Balochistan 2014', United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180

   [35] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’', Monsutti, A, 15 December 2014, CIS2F827D91802

5. Monsutti also observed the government of Pakistan ‘readily granted [Hazaras] Pakistani papers to offset Pashtun influence in the region’ between 1971 and 1977.[36]

   [36] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan', Alessandro Monsutti, Routledge, 2005, p. 104, CIS29035

6. The protracted residence of Afghan refugees in Pakistan has continued to manifest issues associated with Pakistan’s citizenship restrictions.[37] Pakistan officially hosts around 1.4 million registered Afghan refugees. A Refugee Summit convened in Islamabad in February 2020 examined the longstanding challenges faced by the governments of Afghanistan and Pakistan,[38] while United Nations Secretary-General António Guterres resolved to continue promoting cooperation on region-specific support platform to assist voluntary repatriation and sustainable reintegration of refugees in Afghanistan, stating: ‘I want to reaffirm that the preferred durable solution for refugees has always been voluntary repatriation in safety and dignity to their country of origin. This is also true for Afghan refugees.’[39]   

   Assessment of applicant’s claims

   [37] ‘Only 1 In 3 Pakistanis Believe That The Government Of Pakistan Should Allow Afghans To Remain In Pakistan’, Gallup Pakistan, 4 March 2020, 20200330114828; 'Refugees mark 40 years at ‘mini Kabul’ in Pakistan', Agence France Presse (AFP) - France, 16 February 2020, 20200217155129; 'Afghan refugee crisis not over yet: UNHCR', Mohammad Zafar, Express Tribune (Pakistan), 16 February 2020, 20200217145504; ‘A different kind of pressure: The cumulative effects of displacement and return in Afghanistan’, Internal Displacement Monitoring Centre (IDMC), 14 January 2020, 20200113181041 ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 20190614160356

   [38] 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307.  See also: 'Repatriation of Afghan refugees', Pakistan Observer, 3 March 2020, 20200303122159; ‘Pakistan to close border with Iran, Afghanistan over coronavirus’, New Straits Times, 14 March 2020, 20200316114441; ‘Flow Monitoring - Spontaneous Returns of Undocumented Afghans from Pakistan (24th November - 7th December 2019)’, International Organisation for Migration (IOM), 22 January 2020, 20200123160906.

   [39] For further details of the statement made by the United Nations Secretary General, please see: 'Arrivals from Afghanistan Exceeding Arrivals from Syria as Returns Hit Historical Low, Secretary-General Tells Pakistan Conference on Hosting Afghan Refugees', United Nations Secretary-General, 17 February 2020, 20200219104307.

7. The applicant provided a written submission to the Tribunal in June 2021. The applicant outlined his immigration history and the reasons for the primary decision. The applicant concedes that he had been known by another name in Pakistan which he failed to disclose in his protection visa application. The applicant confirmed that he used the Pakistani identity documents for many years in Pakistan but he claims that does not mean that he was a Pakistani citizen. The applicant submits that in the absence of independently verifiable information about the reasons why his CNIC was cancelled, he should be given the benefit of the doubt. He believes his documents were cancelled after his CNIC was marked as suspect in June 2010. The applicant states that his wife and family in Quetta approached NADRA to provide evidence of his Pakistani citizenship and were given evidence that his CNIC was cancelled. The applicant requested the Tribunal to carry out checks with the Pakistani authorities to prove that his Pakistani citizenship was obtained fraudulently. The applicant states that he believed that since his Pakistani citizenship was fraudulently obtained, it did not need to be disclosed as he was not legally a citizen of Pakistan at the time of his protection visa application.

8. The applicant provided further evidence to the Tribunal on 14 July 2021. It includes a statement from NADRA indicating the applicant’s document are considered in the ‘suspect category’, ID cards, a military service card for his father and other identity documents, country reports on the situation in Pakistan and on the availability of fraudulent documents and evidence relating to the applicant’s present circumstances including evidence of his business registration and a character reference.

9. In oral evidence, the applicant confirmed that his family were using genuine Pakistani documents in different identities which did not belong to them and that was the passport he used to leave Pakistan when he travelled to Australia. The applicant confirmed that he did  not disclose the different identity in his protection visa but he did disclose in 2017 that his father bought Pakistani documents.

10. The applicant claims that he and his father were born in Afghanistan. The applicant’s country of origin appears not to have been in dispute and the delegate had not found that this information provided by the applicant in his application was incorrect. The above-cited country information indicates that as an Afghan, it would not have been possible for the applicant to acquire the Pakistani citizenship, even if he was born in Pakistan to an Afghan refugee (and he does not claim this to be the case). The country information also refers to the availably of fraudulent identity documents. The country information supports the applicant’s claim that the Pakistani citizenship and the various papers such as his ID card, passport, marriage certificate and any other Pakistani identity documents were fraudulently obtained.

11. In Zhao v MIMA [2000] FCA 1235 the Court stated the following with respect to the consideration relevant to a visa cancellation at [25] and [32]:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

12. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

13. In the Tribunal’s view, there is insufficient basis for a positive finding that the applicant held the citizenship of Pakistan at the time when he made the application for the protection visa. The delegate concluded that the long term use by the applicant and his father of the Pakistani ID cards, the applicant’s ability to obtain the passport and other documents, all suggest  these documents are genuine. The Tribunal does not consider this provides a sufficient basis for cancellation of one’s visa. There needs to be a positive finding that the applicant gave incorrect answers on the application form – and in this case, that he was a national of Pakistan – and not mere guesswork or belief. The applicant had provided a plausible explanation as to how his identity documents were obtained and his explanation is consistent with the available country information which indicates that Afghan refugees are not entitled to lawfully acquire Pakistani citizenship and that  fraudulently obtained identity documents are commonly used. As such, the Tribunal is not satisfied that the applicant gave an incorrect answer in his application in relation to his country of nationality and the Tribunal is not satisfied that this basis for cancellation, as set out in the NOICC, is made out.

14. However, it is not in dispute that while residing in Pakistan, the applicant used a different identity. He was known by a different name of [Name 1] and with a different date of birth to what he claims to be his genuine date of birth. A question on the application form was whether the applicant was known by any other name and the applicant stated ‘no’. The Tribunal finds that this answer was incorrect. The applicant concedes in his submission to the Tribunal of 14 July 2021 that he provided incorrect information to the Department in his protection visa application and the identity interview.

15. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer was given or provided. For these reasons, the Tribunal finds that there was non-compliance with s. 101 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

16. 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).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

18. The correct information is that the applicant had been known by a different name while residing in Pakistan. In his submission to the Tribunal the applicant states that he did provide correct information to the Department during his identity interview in 2017 but he admits there was non-compliance in relation to the protection visa application.

    The content of the genuine document (if any)

19. 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

20. The applicant claims that his Pakistani citizenship was fraudulently obtained and has now been revoked. The applicant presented evidence which he claims was obtained from NADRA to indicate that his identity papers had been revoked and were considered in the suspect category. For the reasons set out above, the Tribunal is prepared to accept that the applicant did not hold the citizenship of Pakistan, which would indicate that his Pakistani identity documents were not genuine. The Tribunal is mindful, however, that the issue here is not only the applicant’s citizenship but his identity. It is not in dispute that the applicant used another identity which he failed to declare in his protection visa application.

21. The applicant submits that the decision to grant him the RRV was made after he had made admissions to the Department about his Pakistani citizenship and the visa was granted to the applicant as a citizens of Afghanistan when the information about his citizenship, name and date of birth was known to the decision-maker. The Tribunal notes, however, that the s. 107 Notice relates to non-compliance in relation to the protection visa and not the RRV and the Tribunal is not satisfied the correct information was known to the decision-maker when the application for the protection visa was made.

22. A person’s identity is central to the assessment of any claims and of the statutory criteria. It is also central to the assessment of a person’s character, which must be completed before a visa can be granted. The Tribunal finds that the applicant’s identity (the use of a different name and date of birth for a number of years) played a significant role in the decision to grant him the visa. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information. In the Tribunal’s view, that is a very strong consideration that favours the cancellation.

    The circumstances in which the non-compliance occurred

23. The non-compliance occurred because the applicant failed to indicate that he had been known by another name while living in Pakistan.

24. In his submission to the Tribunal of 14 July 2021 the applicant explains that when he left Pakistan in 2011, he feared his family would experience problems with their Pakistani citizenship if he declared himself to be a citizen of Pakistan, particularly as his ID Card was marked to be in ‘suspect category’ and the applicant concedes that the information he provided in his protection visa and the RRV application was incorrect. The applicant states that his Pakistani citizenship has been revoked after the authorities found it was fraudulently obtained, but he cannot provide evidence to support that claim.

1. In oral evidence, the applicant also states that before he left Pakistan, his father told him that their documents would be questioned because they had no history of living in Pakistan and his father suggested that he should disclose his Afghani identity. He did not disclose the Pakistani identity because he was trying to protect his family from being harassed or deported and to ensure they could maintain their false documents. The Tribunal accepts that this may have been the applicant’s motivation but it is unclear how the disclosure of what the applicant claims to have been his false Pakistani identity would have prevented him from disclosing the genuine Afghan identity. The Tribunal is also mindful that the information the applicant would have supplied in his protection visa application was confidential and would not be passed to the authorities in Pakistan although the Tribunal acknowledges that the applicant may not have been aware of the process.

2. The Tribunal finds that the applicant had deliberately withheld information about his Pakistani identity and that the breach was intentional.

   The present circumstances of the visa holder

3. The applicant refers to his employment and he provided in his response to the NOICC a reference from his employer. The Tribunal accepts the information contained therein. The applicant provided to the Tribunal a copy of his drivers license and evidence of his ABN. He told the Tribunal that he was doing [specified] work and had registered his own company.

4. The applicant refers to the psychological hardship he had experienced as a result of the visa cancellation and there is medical evidence before the Tribunal. The applicant told the Tribunal his mental health had suffered and he had also undergone a [specified] operation. The Tribunal accepts that evidence. The applicant states that if his visa is cancelled, he cannot sponsor his partner and children for the Australian visas and the Tribunal accepts that this is so.

5. In his submission to the Tribunal the applicant states that his elderly father lives with his wife and children and they cannot renew his Pakistani documents. The applicant told the Tribunal that the Pakistani identity documents of his family had been affected and cannot be renewed, since they do not have the history of residence in Pakistan, while his own identity document has been cancelled. The applicant claims that his father is a national of Afghanistan and has provided his father’s military discharge documents. The applicant states that his two brothers are Australian citizens and he has another brother living in [Country 1] as a refugee.

6. The applicant told the Tribunal that he has been providing financial support to his wife and children and has been using his savings to support this family. His elder children attend school and the youngest is aged 2. The applicant states that he had sponsored his wife and four children in 2012 but their application was put on hold. The applicant told the Tribunal that he is fearful for his family’s circumstances.

7. The applicant states that since his visa was cancelled, he has lived in the community without a visa as he is prevented by s. 46A from making an application for any visa. He has no access to Medicare, no work rights and is liable to be detained. He cannot return to Afghanistan due to his fear of persecution and he cannot return to Pakistan as his citizenship has been revoked.

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

8. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act. The applicant has expressed regret about his conduct. 

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

9. The primary decision record indicates that when applying for the RRV, the applicant failed to disclose another name he had been known by. The Tribunal finds that the applicant completed the application form with respect to the RRV application in a way that incorrect answers were given and that constitutes another instance of non-compliance with s. 101 of the Act.

   The time that has elapsed since the non-compliance

10. The application for the protection visa was made in July 2012 and approximately nine years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

11. There are no known breaches of the law.

    Any contribution made by the holder to the community.

12. The applicant claims in his submission of 14 July 2021 that he has established himself in the Australian community and had been working as a subcontractor and paying taxes. The applicant refers to his involvement with [a not-for-profit welfare organisation] and he told the Tribunal that he helps others as part of this involvement. The Tribunal accepts the applicant has made a contribution to the community.

13. 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.

14. There are no persons whose visas would be consequentially cancelled as a result of the cancellation of the applicant’s visa.

    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

15. The applicant’s four minor children reside with their mother in Pakistan. The applicant told the Tribunal that he considers Australia to be a safe country where he can practise his religion and his children would be safe here. The applicant told the Tribunal the identity documents of his wife and children have expired and cannot be renewed, so they cannot be used. He states that his wife and children remain at home and cannot go anywhere. The Tribunal accepts that the situation in Pakistan may not be safe, nor beneficial for the children if they reside in that country without authority and are at risk of removal. The Tribunal accepts that it would be in the best interests of the children to have a safe and stable environment and the care of both parents. The Tribunal acknowledges that the children’s opportunity to be in Australia and with their father may be lost if the applicant’s visa is cancelled.

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

16. The Tribunal has considered whether Australia’s non-refoulment obligations arise in this case. Other than CROC, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

17. The applicant was granted the protection visa on the basis of his claim of being a Hazara in Afghanistan. The applicant told the Tribunal he would be readily identified as a Hazara because of his appearance and he would be targeted by the Taliban which has control over most of the country. It is significant, in the Tribunal’s view, that the veracity of the applicant’s claims has not been questioned in the NOICC. As the applicant was granted a protection visa, he remains a person in respect of whom Australia has non-refoulement obligations. The applicant claims before this Tribunal that the situation for Hazaras remains unsafe and that he would be subjected to harm, if returned to Afghanistan. The Tribunal accepts that the applicant is a Hazara and had identified as a Shi'a Muslim before coming to Australia.

18. In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi'a targets. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.

19. In its 2018 Annual Report on Protection of Civilians in Armed Conflict, the United Nations Assistance Mission in Afghanistan (UNAMA) provided the following information:

    [ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.

20. In 2018, UNAMA documented high levels of sectarian-motivated violence by Daesh/ISKP against the Shi'a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi'a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern about 'the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.'

21. DFAT's Thematic Report on Hazaras in Afghanistan stated:

    The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road… DFAT assesses that Hazaras face a greater risk than other ethnic groups of being targeted for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, particularly while travelling to or from the Hazarajat. In addition, economic and employment opportunities may be more limited in the Hazarajat than in other parts of the country.

22. In its June 2019 report, DFAT reiterated these views:

    Insecurity compounds the poor condition of Afghanistan's limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common…

23. In-country sources have advised that ethnic targeting can play a role in the selection of victims once an abduction is in progress, and that Hazara are particularly at risk in this regard. DFAT assesses that while abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped.

24. The obligation not to refoule a refugee is contained in Article 33(1) of the Refugees Convention. Having regard to the above country information, the Tribunal finds that the applicant faces a real chance of being subjected to serious harm in Afghanistan. Therefore, Australia may be in breach of its international obligations under the Refugees Convention if the applicant was removed to Afghanistan as a consequence of the cancellation of his visa.

25. However, it is important to note that the cancelation of the applicant's visa in itself would not be in breach of any of Australia's non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia. An applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is 'irrelevant' to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person 'as soon as reasonably practicable.' However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements. 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.

26. The Tribunal therefore does not consider that the cancellation of the visa would lead to a breach of Australia’s non-refoulement obligations.

27. The applicant’s two brothers are in Australia. The applicant’s wife and children and his father live in Pakistan and he has a brother in [Country 1]. Given the applicant’s extensive family ties overseas, the Tribunal does not consider the principles of family unity 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

28. 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 without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas. The applicant states that as an UMA, he is not able to apply for other visas but in the Tribunal’s view, that is the consequence of the mode of his arrival and not of the cancellation of the visa. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia. If the applicant does not hold a permanent visa, he may be unable to sponsor his partner and children for the Partner visa.

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

29. The applicant states that if his visa is cancelled, it would have a severe impact on him and his family and his mental health would be affected.

30. The Tribunal has considered the totality of the applicants’ circumstances. The Tribunal has formed the view that the applicant gave incorrect answers in his protection visa application when he failed to state that he had been known by another name and used a different identity during his residence in Pakistan. The Tribunal has found that the applicant had not  complied with s. 101 of the Act and that there are grounds for cancelling his visa. The Tribunal places weight on the fact that the decision to grant the visa was based on incorrect information because the Tribunal is of the view that a determination relating to one’s identity is highly significant to any decision to grant a visa. That offers a strong reason why the visa should be cancelled.

31. However, the Tribunal has decided to place greater weight on other factors. Significantly, the Tribunal determined that the applicant was not a citizen of Pakistan when applying for the protection visa but continued to be a citizen of Afghanistan, which was the basis on which he sought, and was granted the protection visa. The delegate’s finding that  the applicant was a national of Pakistan formed a significant reason for the decision to cancel the applicant’s visa and the Tribunal is not satisfied that basis exists. The applicant’s central claims had not been undermined by the incorrect answer and there is nothing in the NOICC to indicate that there is any evidence to establish that those claims were untrue. The Tribunal has also had regard to the country information regarding the situation of Hazara in Afghanistan and acknowledges that the applicant may be subjected to significant harm or persecution if returned to that country. These are strong reasons why the visa should not be cancelled.

32. The applicant has been living Australia for over ten years and has established himself in this country. The Tribunal accepts that significant hardship would be caused to the applicant if the visa is cancelled and, importantly, that he may be unable to return to Afghanistan. If the applicant is not able to make another visa application in Australia due to the mode of his arrival, he may be subject to lengthy detention and this would also cause him significant hardship. The Tribunal also acknowledges that if the applicant does not retain his visa, he would be unable to sponsor his wife and children for visas, resulting in separation of the family unit. These are all matters that weigh strongly against the cancellation.

33. Overall, the Tribunal has decided to place greater weight on the applicant’s present circumstances, the hardship that would be caused to him and his family if the visa is cancelled and, most significantly, on the fact that the applicant’s central claims that resulted in the grant of the protection visa do not appear to be in dispute. The Tribunal places weight on the country information which appears to support the applicant’s claims that he may face persecution if returned to Afghanistan.

34. 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

35. 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