2102430 (Refugee)

[2022] AATA 2458

2102430 (Refugee) [2022] AATA 2458 (6 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Besmellah Rezaee

CASE NUMBER:  2102430

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kate Millar

DATE:6 June 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 06 June 2022 at 3:34pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – identity details – Pakistan citizenship – race – Hazara – non-refoulement obligations – visa would still have been granted – best interests of the Australian citizen children – substantial hardship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 48 97-105, 107-109, 140, 189, 195-198
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Migration Regulations 1994, Schedule 2; Schedule 2, cl 050.212; r 2.41

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
Commonwealth v AJL20 [2021] HCA 21
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] came to Australia as an illegal maritime arrival and sought protection, claiming to be an Afghan national of Hazara ethnicity.  On 11 May 2011, he was granted a protection visa.

2. After [the applicant] applied for citizenship on 25 May 2015, the Department of Immigration and Border Protection conducted enquiries into his identity using documents [the applicant] had provided, and other checks.  The Department found that a school certificate provided by [the applicant] was for a person named [Alias A] and that [the applicant’s] sister, [Sister A], had entered Australia and declared she is a citizen of Pakistan, and provided Pakistani identification documents including a birth certificate, identity card and passport.

3. As a result, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found [the applicant] had provided incorrect answers in his protection visa application and cancelled his protection visa. 

4. This is a review of the decision to cancel [the applicant’s] protection visa.  In issue is whether the correct process to cancel his visa has been followed, whether a ground to cancel his visa specified in the Migration Act 1958 (Cth) (the Act) exists, and if it does exist whether his visa should be cancelled.

5. [The applicant] appeared before the Tribunal on 19 April 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from his wife [named] and father-in-law [Father-in-law A].  The Tribunal also heard from a friend [Friend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Act.

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101 of the Act. Section 101(b) states a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.

   Was the correct process to cancel [the applicant’s] visa followed?

9. To exercise the cancellation power under s 109 of the Act, the delegate must first have the required state of mind to issue the notice, and then must issue 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.

10. In this case, the delegate had the necessary state of mind to engage s 107 as the delegate had information that [the applicant’s] sister is a citizen of Pakistan.

11. The Tribunal is satisfied that the s 107 notice issued to [the applicant] provided particulars of the non‑compliance and otherwise complied with the statutory requirements.

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

12. 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, in summary because he did not declare that he was also known as ‘[Alias A]’ and because the delegate considered he and his family members were citizens of Pakistan.

13. The notice particularised that [the applicant] had given incorrect information in his protection visa application in the following respects:  

    In relation to his name

    ·     At question 4 of his application, he was asked what other names he had been known by, and he did not provide an answer.  This was considered incorrect as he was also known as ‘[Alias A]’. 

    In relation to his citizenship or nationality

    ·     At question 9, where [the applicant] provided details of his family members, he stated his parents, [and specified family members] were all Afghan citizens.  This was considered incorrect because information before the Department indicated that [the applicant] and his family members are citizens of Pakistan. 

    ·     At question 20, he was asked his current citizenship, if different from birth, and he did not provide an answer.  The delegate considered this was incorrect as there was information that he was a Pakistani citizen. 

    ·     At question 21 he was asked whether he held any other citizenship or was a national of any other country.  [The applicant] answered ‘no’ which the delegate considered incorrect as there was information that he is a Pakistani citizen, including at the time of the grant of his protection visa.

    ·     At question 22 he answered ‘no’ to the question of whether he has the right to enter and reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or former country(s) of habitual residence.  He answered no which was considered incorrect as there was information that he is a citizen of Pakistan and has the ability to enter and reside in Pakistan.

    ·     At question 41 he claimed he was seeking protection in Australia, so he does not have to go back to Afghanistan / Pakistan.  In answer to questions about why he left, what he fears if he returns and why he thinks this will occur, he referred to his request for refugee status assessment.  The delegate provides a quote from this request:

    1.       I am a citizen of Afghanistan by descent. I am a Hazara and a Shia. I do not have a right to citizenship or a right to reside in any other country.

    2.       I have never had a passport or any identification of any kind except for a false Pakistani passport given to me by the smuggler to use during my journey to Australia. I arrived at Christmas Island [in] October, 2010.

    3.       I am [age] years old and I was born in Daikondi. I do not have any family left there or anywhere else in Afghanistan. My family fled Afghanistan when I was [age] years old (2000). My brother [named] who was [age] years old at the time was lost along the way to Pakistan. We do not know what happened to him but he may have been taken by Taliban.

    5. We moved to Pakistan in 2000 and have remained there ever since. My family still live in Quetta. We do not have a legal right to live in Pakistan. I have not been back to Afghanistan since I left there when I was [an age] year old.

    6. I am at risk of persecution in Afghanistan and Pakistan.

    The delegate considered the answers to questions 42, 43 and 44 were incorrect as he is a Pakistani citizen including at the time of the grant of his protection visa in May 2011, and he has the right to enter and reside in Pakistan.

    ·     In his Form 80 he was asked his current citizenship and he answered ‘Afghanistan’.  He answered ‘no’ to a question about whether he is a dual citizen or held any other citizenship.  This was considered incorrect by the delegate because he was a citizen of Pakistan. 

14. The delegate found that [the applicant] and his family are citizens of Pakistan.  In his response to the s 107 notice, [the applicant] states he did not think his family had Pakistani identity documents.  He claims he was [age] years of age when his family fled Afghanistan, and [age] when he came to Australia and although his family has some Pakistani identity documents this does not give them Pakistani citizenship or status in Pakistan.  He claims many Afghans buy Pakistani documents to make their lives easier in Pakistan. 

15. In his response [the applicant] also claims the name ‘[Alias A]’ is a nickname only a few people called him in Pakistan, and he does not know why his parents registered him at school under his name.  He did not declare this name in his application for a protection visa because it was only a nickname he rarely used.

16. [The applicant name variant] claims his sister stated she is Pakistani because she left Afghanistan when she was young, and she now holds a Pakistani passport which he says was issued by reference to their father’s documents which [the applicant] claims he probably bought.     

17. [The applicant’s] sister [Sister A] is now in Australia.  She did not attend to give evidence as requested by the Tribunal.  On being asked why she did not attend to give evidence, [the applicant] said she was sick, and then that they are not on good terms and not close.  A medical certificate was not provided for [Sister A].  He said they fell out because they “live separate lives”, are busy with their own lives, and each have their own families. 

18. [The applicant] also said he did ask her to attend to give evidence, but she refused, and he did not insist because he had the feeling her husband did not want her to give evidence.  While she did realise his visa had been cancelled and this was a serious matter, she was unwilling to give evidence.  [The applicant] said he could not explain why [Sister A] came to have Pakistani identity documents.

19. This is a matter central to [the applicant’s] claim.  His sister is in Australia and could have provided information about how she came to have Pakistani identity documents.  [The applicant’s] evidence shows he is in contact with his sister and had discussed this matter with her, but when asked to explain her failure to attend to give evidence he provided vague responses about her being unwell and not wanting to attend to give evidence and his speculation that her husband did not want her to give evidence.  While he said their relationship had broken down, he said this was because they had separate lives and their own families, which does not suggest a serious breakdown to the extent that she would refuse to give evidence in support of his case.

20. [The applicant] states he has applied for a taskira (Afghan identity document) through the Afghan embassy in Canberra.  He supplied a copy of his taskira, and said he obtained his taskira 2– 3 years ago by going to Canberra where there were people who were helping others obtain a taskira at the Afghan Embassy.  The taskira he provided has his name in inverted commas and appears as [the applicant’s name variant, family name in inverted commas] and he said this was because he didn’t have that family name in Pakistan.  He nominated this as his surname when he entered Australia because this is what his parents told him to say.  The Taskira issued by the consulate is issued on the basis of his father’s taskira.  Taskiras do not have any security features and it is no longer possible to verify Afghan taskiras. 

21. This taskira is in a different name to other documents he provided about his education, and his school documents refers to him as [Alias A]. 

22. [The applicant] relies on the invitation by [an Afghan sporting group] to play in [an] international [tournament].  He was unable to play as he did not have travel documents but claims only Afghans were allowed to play in this team, so the Afghan [sporting group] management is sure he is Afghan.  He provided a letter from [Mr A] stating [the applicant] was selected for the [representative] team.

23. [The applicant] provided a statutory declaration from [Father-in-law A] stating he has known [the applicant] since 2012 when he joined a [sport] team [Father-in-law A] was coaching.  He since married [Father-in-law A’s] daughter and works in his [business].  [Father-in-law A] states he has no doubt [the applicant] is Afghan because he speaks Hazaragi.  He states [the applicant] is accepted by the local community as Afghan and there are people in the community who knew his family in Afghanistan and grew up with his father in Afghanistan.  [Father-in-law A] also refers to his selection for a squad for Afghan [sporting group] and that he would not have been asked to try out for the [specified] team if he was not Afghan.  [Father-in-law A] states many Afghans flee to Pakistan and Iran to live illegally and obtain Pakistani documents so they can access services and that this does not make [the applicant] Pakistani. 

24. In giving oral evidence, [Father-in-law A] stated he believed all people who are Hazara are Afghani.  While there were influxes of Afghans to Pakistan after the 1978–1979 Afghan war, following the Taliban takeover in 1996 and more recently with the Taliban’s seizure of power in 2021,[1] there are some Hazaras who have lived in Pakistan for generations and hold Pakistani citizenship.[2]  The Tribunal does not accept that merely because a person is Hazara they are a citizen of Afghanistan and do not hold citizenship of Pakistan. 

    [1] PAKISTAN – DFAT Country Information Report – 25 January 2022

    [2] ‘Hazaras in Pakistan’, Australia: Department of Foreign Affairs and Trade (DFAT), CX283938

25. [Friend A] gave oral evidence and said that he has known [the applicant] for 3 years, through his father-in-law and as they are part of the Afghan Shi’a community in Adelaide.    [Friend A] said he is from Afghanistan but did not know [the applicant’s] family in Afghanistan.  [Friend A] believes [the applicant] is Afghan as he participates in community activities and is of the same religion. [Friend A] acknowledged that while Hazaras originated in Afghanistan, there are some Hazaras who are Pakistani.   

26. A statutory declaration from [Mr B] states he met [the applicant] in 2015 when they were working at a [farm].  [Mr B] stated he is Afghan and can confirm [the applicant] is Afghan because of his knowledge of Afghan Hazara culture and acts like other men who are Hazara and Afghan.  He sees [the applicant] at Afghan Hazara cultural events.  [The applicant] speaks Hazaragi and has an Afghan accent.

27. There is a large Hazara community in Pakistan, and the Tribunal does not accept that knowledge of Hazara cultural events or an accent from this area of itself means the person is a citizen of Afghanistan and is not a citizen of Pakistan. 

28. When he left Pakistan, [the applicant] said he travelled on a Pakistani passport and flew to [Country 1].  The passport had his photograph.  He said he did not know how the passport was obtained and that he was given it, and the airfare was arranged.  His parents paid for the passport and the airfare.

29. While [the applicant] has provided some evidence in support of his claimed Afghan nationality, his sister holds a Pakistani passport and identity documents.  Unless obtained unlawfully, on the face of the documents, this establishes she is a Pakistani citizen.  It is submitted country information is available regarding the ease of obtaining Pakistani identity documents, and the Tribunal acknowledges there are reports of genuine documents being obtained through the use of other fraudulent documents[3] and the Tribunal accepts that this does occur. It is also reported that CNICs, SNICs and passports contain security features that have reduced the incidence of fraud.[4]

    [3] PAKISTAN – DFAT Country Information Report – 25 January 2022 at [5.53]

    [4] PAKISTAN – DFAT Country Information Report – 25 January 2022 at [5.52]

30. [The applicant] was less than forthcoming with information about his past including his siblings, how he obtained a Pakistani passport and how his sister obtained Pakistani identity documents.  He says he is unable to provide information on his siblings in Pakistan, and whether they attend school.  He could not say if any of his siblings had been harmed in Pakistan, or whether his parents had ever been harmed in Pakistan. 

31. [The applicant] relies on the age at which he arrived in Australia to explain his lack of knowledge, and says he arrived in Australia when he was [age] years old.  He was not forthcoming about his circumstances, and this appeared an attempt to obscure his origins given his current age and that he could ask for more information from his family. The void in his evidence is filled by the documents provided by his sister which include a Pakistani passport, birth certificate and identity card.  [The applicant’s] sister did not give evidence, and his reasons for her failing to attend to give evidence were not persuasive.

32. The Pakistan Citizenship Act, 1951 provides for citizenship by descent.  Pakistan does not allow dual Afghan/Pakistani citizenship.  It has not been suggested [Sister A] obtained her passport other than through her father.  The Tribunal finds [the applicant’s] father is a citizen of Pakistan and it follows that [the applicant] also holds Pakistani citizenship.

33. The Tribunal finds that as [the applicant] has provided incorrect information about his citizenship there was non-compliance with s 101of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

34. Having found [the applicant] provided incorrect information as specified in the notice issued under s 107 of the Act, it is necessary to consider whether the visa should be cancelled under s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

35. In exercising this power, the Tribunal must consider the applicant’s response 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 reg 2.41 of the Migration Regulations 1994.

36. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly 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.

    Response to the s 107 notice

37. [The applicant] provided a response to the s 107 notice through his representative.  In this response he maintains that he has not provided incorrect information. 

    The prescribed and other factors

38. The Tribunal first considered the factors in reg 2.41, and then the additional factors.

    The correct information

39. The correct information is that [the applicant] was also known as [Alias A] and is a citizen of Pakistan.

    The content of the genuine document (if any)

40. It was not alleged in the s 107 notice that [the applicant] had provided incorrect documents.

    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

1. In finding that [the applicant] is a citizen of Pakistan, the Tribunal accepts he is Hazara and Shi’a.  He stated his father was a member of the Hezbe Wahdat political party.  In his application for the visa, his circumstances were assessed if he were to return to Afghanistan, and the grant of the visa is partly based on incorrect information.

2. This is not to say, as submitted by the representative, he would not have been granted a protection visa had he declared he was a citizen of Pakistan. Country information shows that at the time, Hazara Shi’a were targeted by armed Sunni militants in Pakistan under successive Pakistani governments,[5] and there was a high level of generalised violence In Balochistan, and that Hazaras are targeted by sectarian militants due to their distinct ethnicity.[6]

   [5] “We are the Walking Dead”: Killings of Shia Hazara in Balochistan, Pakistan | HRW, Blast in Pakistani city of Quetta kills at least 28 | Reuters

   [6] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan (immi.gov.au)

3. While the Tribunal finds that the decision to grant the visa was partly based on incorrect information, it places limited weight on this factor as country information supports his claims that he would have met the criteria for the grant of the visa regardless.

   The circumstances in which the non-compliance occurred

4. [The applicant] gave evidence that his family in Pakistan had a normal life “not good, not bad”.  On being asked why he travelled to Australia if his circumstances were neither good nor bad, he said because of the war and people were killing people who are Hazara and Shi’a.    He said they don’t come to their house shooting, but if they are found they are shot.  This is supported by country information cited above regarding attacks on people who are Hazara at the time he left Pakistan. 

5. As noted in submissions, the Courts have repeatedly stated that the perceived moral deficiency in which a lie is told believing that this is necessary to save the person from threats to their safety is different to the oral deficiency associated with a lie told for personal enrichment.[7]  The Tribunal accepts that there were significant safety concerns in the Hazatra community at the time Mr

   The present circumstances of the visa holder

   [7] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [72]

6. [The applicant] married an Australian citizen in 2016, and they have a child who is approximately [age].  [The applicant] is the primary breadwinner as his wife is at home caring for their child. 

7. He has trained as [an occupation 1] with [Father-in-law A] and works in [Father-in-law A’s business].  [Father-in-law A] states he is the backbone of the business. 

   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. This Division contains requirements not to give incorrect answers, to complete visa applications correctly, to notify of changes in circumstances and to notify the particulars of any incorrect answer.

9. [The applicant] has maintained he is a citizen of Afghanistan, but there are no other instances of non-compliance with the obligations in Subdivision C of Division 3 of Part 2 to the Act before the Tribunal.

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

10. There are no other instances of non-compliance before the Tribunal.

    The time that has elapsed since the non-compliance

11. [The applicant] applied for the visa on 11 May 2011, and it is now nearly 12 years since the non‑compliance. In this period he has established himself in Australia including training as [an occupation 1], working, marrying and having a child.

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

12. There is no information to show that [the applicant] has otherwise not complied with the law.

    Any contribution made by the holder to the community

13. [The applicant] volunteers by coaching the [sport] team and is engaged with the Hazara community in Adelaide. If his visa is cancelled it will cause hardship to the community.

    Additional factors considered by the Tribunal

14. The Tribunal has also considered additional factors raised by the policy of the Department.

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

15. [The applicant] arrived in Australia as an irregular maritime arrival.  Under s 46A of the Act if his visa is cancelled, he cannot make a visa application except with the authorisation of the Minister.  This includes a further bridging visa as well as a partner visa on the basis of his relationship with his partner.

16. If the visa is cancelled and [the applicant] exhausts his appeal rights, his bridging visa will cease, and he will become an unlawful non-citizen. Under s 189 of the Act, he may be detained. He is then liable to be removed under s 198, however for the purposes of s 198 as a protection finding has been made for him, the Act does not require or authorise his removal (s 197C(3)).

17. This means he will face detention until a decision is made under s 197D that a protection finding would no longer be made, or the Minister personally decides to grant him a visa under s 195A, or the Minister decides under s 48A it is in the public interest for him to be able to apply for a further protection visa, or he acquires a right to enter and reside in another country.

18. All these possibilities are speculative, and [the applicant] faces the prospect of prolonged detention according to s 196.[8]

    Whether there would be consequential cancellations under s 140

    [8] Commonwealth v AJL20 [2021] HCA 21

19. Under s 140(2), if a person’s visa is cancelled under s 109 and another person holds a visa only because the person whose visa is cancelled held a visa, his or her visa may be cancelled. There are no consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

20. The facts of this case may give rise to Australia’s international obligations in regard to non‑refoulement and the best interests of the child.

    (i)Non-refoulement

21. The principle of non-refoulement is contained in Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and provides that no state shall expel or return (refouler) a refugee in any manner to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

22. Non-refoulement also comes into consideration where a person is not a refugee under other treaties entered into by Australia such as the International Covenant on Civil and Political Rights (ICCPR), Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty (Second Optional Protocol), Convention on the Rights of the Child (CROC) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).

23. The ICCPR and the Second Optional Protocol provide, for example, that no-one should be subjected to cruel, inhuman or degrading treatment or punishment (Art. 7), and no-one shall be executed (Art. 1 of the Second Optional Protocol).  

24. Article 3 of the Convention Against Torture states no state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing he would be in danger of being subjected to torture.  Torture is defined as (among other things) severe pain or suffering, whether physical or mental, intentionally inflicted on a person for the purpose of punishing him for an act he has committed or is suspected of having committed.

25. Turning to whether [the applicant] would be refouled if his visa is cancelled involves looking at the effect if his visa is cancelled, and whether he could apply for another visa.

26. If [the applicant’s] visa is cancelled, s 48A(1B) prevents him from making a further application for a protection visa while in the migration zone unless the Minister thinks it is in the public interest that this provision does not apply. The effect of these provisions is that [the applicant] would require the Minister to consider it is in the public interest to do so under s 48A of the Act before he could apply for another visa.

27. [The applicant] currently holds a Bridging E (Subclass 050) visa which will cease 28 days after this decision or after the determination of any subsequent appeal (cl 050.512).

28. If [the applicant] is an unlawful non-citizen, he is liable to detention under s 189 of the Act. Under s 198 of the Act, he must be removed as soon as practicable.

29. Section 197C has recently been amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.

30. The effect of the amendments is that s 198 of the Act does not authorise or require the removal of a non-citizen from Australia if, in summary, the person has had a “protection finding” made in respect of him or her (s 197C(3)), unless the decision in which the protection finding was made had been set aside, a decision under s 197D has been made or the non-citizen has asked the Minister in writing to be removed.  None of the exceptions apply to [the applicant].

31. Under s 197C(5) a protection finding is made if the Minster was satisfied the non-citizen met the criterion in s 36(2)(a) and s 36(1C). A finding has been made in accordance with a decision of this Tribunal that [the applicant’s name variant] met s 36(2)(a). [The applicant] was also found to meet s 36(1C), as shown by the grant of the visa.

32. This means there is no requirement or authorisation in the Act that [the applicant] is removed from Australia (s 197C(3)).

33. The result of this is that if [the applicant] exhausts his appeal rights, he can be indefinitely detained,[9] unless he is removed to Pakistan.

    [9] Commonwealth v AJL20 [2021] HCA 21

34. As the Department is not authorised or required by the Act to return him to Pakistan, he will not be refouled as there will be no action to expel or return him to the frontiers of Pakistan in breach of Australia’s non-refoulement obligations.[10]  It follows that those obligations do not apply. 

    [10] Article 33 of the 1951 Convention relating to the Status of Refugees, International Covenant on Civil and Political Rights, Second Optional Protocol into Civil and Political Rights Aiming at the Abolition of the Death Penalty and Art. 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

    (i)Best interests of the Child

35. Article 3 of the CROC requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

36. This has been the subject of differing interpretations.  Most recently in CFE16 v Minister and CFD16 v Minister,[11] (CFE16 & CFD16) in a factual matrix that is very similar to this case, Judge Reithmuller referred to Art. 3 of the Convention and stated:

    … it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[12]

    [11] [2020] FCCA 1083

    [12] At [19]

37. Judge Reithmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgement.  This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant it intended to approach the case any differently. 

38. Judge Reithmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s bests interests.[13]  Judge Reithmuller states that:

    … by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children.  The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”.  The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[14]

    [13] At [24]

    [14] At [25]

39. [The applicant] has a child who is an Australian citizen.  If [the applicant’s] visa is cancelled, he is liable to be detained.  This separates [the applicant] from direct contact with his very young child.  [The applicant] is the primary breadwinner for the family and works for his wife’s father.  If his visa remains cancelled, it will cause substantial hardship to his child.

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

40. [The applicant’s] wife gave evidence and stated she is emotionally and financially dependent on [the applicant].  She has been studying a [qualification] but is currently caring for their child and assisting in the [family business].  If [the applicant] is not in the household, she will not be able to resume her study.  [The applicant] and his wife have purchased a house and the mortgage exceeds the amount she can earn if she were to return to work in [her profession].

41. [The applicant] has trained as [an occupation 1] and works for [Father-in-law A].  [Father-in-law A] said [the applicant] is the backbone of the business which has 20 employees and states the lives of his employees with be affected.  [Father-in-law A] has opened another branch of his business and is finding it very difficult to find employees.  He said it took 5–6 years to train [the applicant] and he could not easily be replaced. [Father-in-law A] said he runs the lives of 3 families and has a big role in the community.  He has status in the community as an elder and a decision to cancel [the applicant’s] visa would ruin his status in the community.

42. [The applicant] coaches [the sport team] and there would be hardship to the [sport] club and those he coaches if he were not available to undertake this voluntary role. 

    CONCLUSION

43. 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.

44. However, the Tribunal has also found it likely he would have been granted a protection visa had he provided correct information.  The best interests of his child weigh heavily against cancelling his visa, and that there will be substantial hardship to his wife, who is an Australian citizen if his visa is cancelled.  There is also a significant adverse effect on the business run by his father-in-law and on the [sport] club where he volunteers and coaches

45. Having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

46. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    Kate Millar
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.