2102897 (Migration)

[2022] AATA 279

2102897 (Migration) [2022] AATA 279 (13 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2102897

MEMBER:Alison Murphy

DATE:13 January 2022

PLACE OF DECISION:  Melbourne

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 13 January 2022 at 11:38am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – bogus document – capacity to participate in Tribunal proceedings – identity details – family composition – Pakistan citizenship – race – Hazara – religion – Shia – non-refoulement obligations – incorrect information did not affect visa grant – mental health issues – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 116, 140, 189, 195-198, 360
Migration Regulations 1994, Schedule 2; r 2.41

CASES

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 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his previous protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review. In addition to the material on the Departmental file, further submissions and documents were provided to the Tribunal on 18 November 2021.

4. For the following reasons, and having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s 360(2)(a) of the Act. 

5. Firstly, medical evidence indicates the applicant lacks the capacity to participate in a Tribunal hearing due to his diagnoses of depression, anxiety and post-traumatic stress disorder (PTSD). His treating psychologist since 2017, [named], raises concerns that he may self-harm in potentially lethal ways (report dated 16 March 2021). In a further report dated 17 November 2021, [the psychologist] states that the applicant’s psychological state continues to decline, that his depression, anxiety and PTSD have persisted chronically for more than two years and that they significantly affect his capacity to give reliable responses at any interview or hearing. As well she considers his trauma symptoms may aggravate in response to revisiting his trauma during a hearing which would be detrimental for his future mental health. I accept the applicant does not have the capacity to meaningfully participate in a hearing and that requiring him to do so may have adverse consequences for his health.

6. Secondly, on 24 February 2020 I determined the review application of the applicant’s brother, [Brother A], AAT proceedings [File number]. That review application raised almost identical issues and evidence to the current review and I heard oral evidence from [Brother A] as well as another brother of the applicant, [Brother B], about the issues central to the current review. The Departmental file indicates that the Department relies on the same evidence produced in [Brother A’s] review, about which this Tribunal has already made detailed findings.

7. In circumstances where there is no new evidence before the Tribunal as to the issues already considered and determined in AAT proceedings [File number] and where the medical evidence indicates the applicant does not have the capacity to meaningfully participate in a hearing and doing so may have detrimental health consequences, the Tribunal considers it appropriate to determine the review pursuant to s 360(2)(a) of the Act. 

   BACKGROUND

8. The background to the review is set out in the Department’s s 107 notice dated 26 May 2020. It records the applicant is [an age]-year-old male who claims to be an Afghan national. He arrived in Australia by boat [in] December 2009, identifying himself as [the applicant’s name] (also recorded as [name variation]), a citizen of Afghanistan of Hazara ethnicity and Shia faith. He claimed to fear persecution in both Afghanistan and Pakistan on the basis of his Hazara ethnicity and Shia faith and stated that he had no legal right to reside in Pakistan. On the basis of information provided in his protection visa application, he was granted a class XA Subclass 866 protection visa on 17 February 2010.

9. [In] February 2014, the applicant lodged an application for Australian citizenship. On 23 April 2018 and 18 June 2018 he participated in interviews about his identity, in which certain information was put to him. The s 107 notice records that he conceded that he had fabricated information about his family composition in his protection visa application by acknowledging that he is the brother of [Brother B Alias A] (also known as [Brother B] or [a variant]) and [Brother C] (also known as [an alias]), both resident in Australia.

10. On 26 May 2020 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s 107 of the Act (the s 107 notice), advising him that she was considering the cancellation of his protection visa on the ground that she was not satisfied as to his identity.  The s 107 notice alleges the applicant provided incomplete and/or incorrect information in his protection visa application in the following respects:

    ·At question 20 of the Form 866B, when he did not disclose that he was also a Pakistani citizen. The s 107 notice alleges that since the grant of the visa, the Department has received information indicating the applicant is a Pakistani citizen which the applicant omitted from the visa application;

    ·At question 9 of the Form 866C, when he stated that his brother [Brother B variant] was deceased and that his father’s name was [Father A]. The s 107 notice alleges that this is incorrect because [Brother B variant] is alive and residing in Australia and the Department’s subsequent investigations have found that his father’s name is [Father Alias A];

    ·At question 21 of the Form 866C, when he stated he did not hold citizenship and is not a national of any other country. The s 107 notice alleges that this is incorrect because the Department has been advised by the Pakistani authorities that [Brother B variant] is a citizen of Pakistan named [Brother B Alias B], son of [Father Alias A]. As such the department considers the applicant is also a Pakistani citizen through his father in accordance with Pakistani citizenship law;

    ·At question 22 of the Form 866C, where the applicant stated that he did not have the right to enter or reside in any other country. The s 107 notice alleges that this is incorrect for the same reasons set out in relation to question 21 in the paragraph above.

11. The s 107 notice invited the applicant to comment on the information contained in the notice.

12. The applicant responded to the s 107 notice by way of documents and submissions provided to the delegate on 17 June 2020. Among other things the applicant’s representative noted that the s 107 notice made no reference to the findings of this Tribunal in its decision relating to the applicant’s brother [Brother A] on 24 February 2020, nor the applicant’s corrections provided to the citizenship team on 10 April 2020.

13. It was submitted that the Department was seeking to re-agitate matters in which comprehensive findings of fact had already been made by the Tribunal in the related case, without any additional facts or information which would justify a reconsideration of the Tribunal’s findings. It was reported that the applicant’s poor mental health had rendered him incapable of providing information to the Tribunal in relation to the cancellation in his brother’s case in 2020 and incapable of comprehending and engaging in his own cancellation processes. The applicant’s representative sought the withdrawal of the s 107 notice. It attached a notification of a change of circumstances which had already been submitted by the applicant to the Department’s citizenship team and a copy of the Tribunal’s decision in the related proceedings AAT case number [File number].

14. On 2 March 2021 a delegate decided to cancel the applicant’s visa, considering that the ground for cancellation was made out and the visa should be cancelled. The delegate noted the decision of this Tribunal in the related application, but considered it was made in the context of a cancellation on the basis of identity (s.116(1AA) of the Act) rather than incorrect information (s 109(1) of the Act). The delegate chose not to adopt the Tribunal’s findings in the related case, considering that the applicant’s explanation as to how his brother [Brother B] came to have a Pakistani Computerised National Identity Card (CNIC) was implausible. The delegate found the applicant had given incorrect information in his protection visa application about his Pakistani citizenship and his family composition and decided that the visa should be cancelled.

15. The applicant sought a review of the decision to cancel his visa from this Tribunal.

    THE REVIEW PROCEEDING

    Non-disclosure certificate

16. The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 376 of the Act by issuing a certificate dated 17 November 2021 relating to documents on the Departmental file.

17. An earlier certificate dated 19 March 2021 was issued under s 438 of the Act, however that certificate is invalid as it is issued under Part 7 of the Act, while this is a Part 5 review. Copies of both certificates were provided to the applicant with an invitation to comment on their validity.

18. The certificate dated 17 November 2021 states that disclosure of the information subject to the certificate would be contrary to the public interest because it contains confidential information about third parties, the disclosure of which would result in a breach of privacy. The certificate also states that disclosure of the information subject to the certificate would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods.

19. Where a certificate is issued under s 376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.

20. I am satisfied the s 376 certificate is valid on its face. The documents covered by the certificates reference investigations undertaken by the Department in relation to the applicant and other persons related to him. The substance of that information has been disclosed to the applicant in the s 107 notice and further details disclosed to the applicant’s brother in his own review and referenced extensively in the submissions in the current review. For that reason I have decided it is not necessary to exercise my discretion to release the documents covered by the certificate to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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 their circumstances.

22. 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. Extracts of the Act relevant to this case are attached to this decision.

23. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

24. 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 is non-compliance with s 101 when he did not disclose his Pakistani citizenship; when he stated he did not hold citizenship of any other country; when he stated he had no right to enter and reside in any other country and when he stated his brother [Brother B variant] was dead and his father’s name is [Father A].

    Incorrect information about family composition

25. The applicant concedes that he gave incorrect information in his protection visa application when he stated that his brother [Brother B] (also known as [Brother B Alias A] or [a variant]) was dead. [Brother B] is in fact alive and living in Australia and gave evidence at the Tribunal hearing in the related AAT proceeding [File number] for [Brother A] on 21 January 2020. For these reasons I find that the applicant gave incorrect information about his [Brother B’s] death in his protection visa application. However for the reasons that follow, I accept the applicant’s father is [Father A] and not [Father Alias A] as alleged in the s 107 notice.

    Incorrect information about country of nationality

26. The applicant maintains that he did not give incorrect information about his country of nationality in his protection visa application and that he is a national of Afghanistan and not Pakistan. He maintains that his brother’s correct identity is [Brother B], notwithstanding that he holds a Pakistani CNIC in the name of [Brother B Alias B]. He maintains his father’s name is [Father A] not [Father Alias A].

27. While the delegate relied on a different ground for cancelling the applicant’s visa in the related case (being that she was not satisfied as to the applicant’s identity), the delegate relies on the same evidence as to the nationality of the applicant and his brothers in the current review as was considered in detail by this Tribunal in the related proceedings.

28. In summary, the Department believes that the applicant and his brothers [Brother A] and [Brother B] are Pakistani nationals, because the Department’s investigations indicate that [Brother B] holds a Pakistani CNIC in the name of [Brother B Alias B], son of [Father Alias A], and [Brother B’s] children each hold National Database and Registration Authority (NADRA) issued birth certificates. Such documents, should they be genuinely issued to persons who are entitled to hold them, are only issued to Pakistani nationals and are indicative of Pakistani nationality. The Department reasons that if the applicant’s brother [Brother B] is a Pakistani national named [Brother B Alias B], son of [Father Alias A], then the applicant’s father is also [Father Alias A] and the applicant will also have inherited Pakistani nationality from his father.

29. However the applicant and his brothers strenuously deny that [Brother B’s] correct identity is [Brother B Alias B] son of [Father Alias A], or that they or their father are Pakistani nationals. Rather they have each consistently stated that the family are Afghan nationals who fled to Quetta, Pakistan when the Taliban came to power in 1996 where they lived as refugees. They claim that [Brother B] purchased a genuine Pakistani CNIC in the name of [Brother B Alias B] while in Quetta to allow his children to attend public schools that were not otherwise open to them, but that [Brother B] is not legally entitled to hold that document as [Brother B Alias B] is not his correct identity.

30. After careful examination of the documents relied upon by the Department, the documents produced by the family and country information about the situation for Afghan Hazaras living in Pakistan in the related AAT proceeding [File number], this Tribunal ultimately accepted the family were Afghan nationals. In summary:

    ·The Tribunal accepted the oral and documentary evidence of [Brother B] that he had purchased the CNIC in the name of [Brother B Alias B] in about 2003 or 2004. The Tribunal accepted that while that document is genuinely issued, [Brother B] is not entitled to it because he is not [Brother B Alias B], rather he had purchased the CNIC from an agent at the cost of 20,000 rupees and had his own photo substituted for that of [Brother B Alias B];

    ·The Tribunal accepted that [Brother B] bought the CNIC after becoming engaged to his [wife], a Pakistani citizen of Hazara ethnicity, in 2001. He did so to avoid harassment by the Pakistani authorities and because their children could not inherit Pakistani citizenship through their mother and as such were not entitled to attend public schools in Pakistan. The Tribunal noted this to be consistent with country information about Pakistani citizenship laws, which do not allow the inheritance of citizenship through the mother where the father is not a Pakistani national;

    ·The Tribunal had regard to DFAT’s advice that Pakistan is host to approximately 1.4 million Afghan refugees and an estimated one million undocumented Afghans. DFAT reports that undocumented Afghan refugees face a high risk of official and societal discrimination, as well as harassment by security services. There is a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain non-genuine Pakistani identity documents in order to avoid harassment from the Pakistani authorities and to obtain access to government-run services including health and education.[1] Further DFAT reports that document fraud is endemic in Pakistan, and genuine documents are sometimes issued on the basis of false information.[2] 

    ·The Tribunal also had regard to reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani CNICs required to access government and other services.[3] DFAT reports the NADRA is currently engaging in a campaign to target fraud in relation to CNICs and has identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation;[4]

    ·The Tribunal noted that the applicant’s brothers [Brother A] and [Brother B] had each provided to the Tribunal copies of their Afghan identity documents, issued by the Afghan Embassy in Canberra under their absentee taskera procedures pursuant to procedures consistent with available country information about the issue of absentee taskeras by the Afghan authorities;

    ·The Tribunal had regard to DFAT’s advice that the Pakistani government recognised the Hazara tribe as ‘local’ in 1962, with the result that Hazaras resident in Pakistan at that time became citizens of Pakistan. However more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani CNICs required to access government and other services.[5]  As the applicant’s family did not arrive in Pakistan until 1996, the Tribunal was not satisfied they would have been able to obtain citizenship by way of the Pakistani government’s recognition of Hazaras as ‘local’ in 1962;

    ·The Tribunal had regard to country information indicating that Pakistan’s Citizenship Act 1951 provides that an individual may also obtain Pakistani citizenship by birth, descent, migration or naturalisation. Having accepted that [Brother A] and his brothers were born in Afghanistan, the Tribunal was not satisfied they became Pakistani citizens by birth;

    ·The Tribunal noted that Pakistan’s Citizenship Act 1951 does not provide citizenship for men married to Pakistani women and reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[6] For these reasons the Tribunal was not satisfied the applicant or any of his brothers became Pakistani nationals by marriage;

    ·The Tribunal had regard to country information indicating section 6 of Pakistan’s Citizenship Act 1951 enabled persons arriving in Pakistan before 1952 from any territory in the Indo-Pakistan sub-continent, with the intention of residing permanently in the territories of Pakistan, could be registered as a citizen of Pakistan, but as the applicant’s family arrived in 1996 it was not satisfied they were entitled to citizenship under this provision;

    ·The Tribunal considered whether the applicant and his brothers could have gained citizenship by naturalisation, noting that section 9 of Pakistan’s Citizenship Act 1951 provides that the Federal Government may register as a citizen of Pakistan by naturalisation any person who has been granted a certificate of naturalisation under the Naturalisation Act 1926.  However independent sources indicate that despite the fact that many Afghan refugees living in Pakistan may technically be eligible for citizenship by naturalisation under the provisions of that Act, Pakistan’s Ministry of Interior has a longstanding policy of denying the benefit of naturalisation to Afghan applicants.[7] The Tribunal considered country information indicating that an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels;[8]

    ·Having regard to the totality of the information before it, the Tribunal concluded it was unlikely that the applicant and his siblings could have become eligible for Pakistani citizenship through any lawful means and accepted that [Brother B] obtained his apparently genuine CNIC by fraudulent means.

    [1] DFAT Country Information Report: Pakistan 20 February 2019 at 3.49 – 3.58

    [2] DFAT Country Information Report: Pakistan 1 September 2017 at p.42

    [3]

    [4] DFAT 2017 DFAT Country Information Report: Pakistan 1 September 2017 at 3.10.

    [5] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March at 2014 3.14

    [6] ‘Citizenship Act 1951’, Government of Pakistan, CIS38A80123108; ‘Pakistan: Renewed Threats to Afghan Refugees’, Human Rights Watch, 1 July 2016, CX6A26A6E16077; ‘Afghan Refugee Repatriation Threatens to Tear Marriages’, Khan, A., News Lens Pakistan, 16 August 2016, CX6A26A6E16076; ‘Fractured Relations’, Dawn, 31 January 2017, CXC9040661323

    [7] Gilani, U, Afghan ‘Refugees’, The International News, 27 October 2016, available at

    [8] EUDO Citizenship Laboratory Report on Citizenship Law: Pakistan December 2016 available at

1. As noted above, the delegate relied on the same evidence as to the nationality of the applicant and his brothers in the current review as was the subject of the above consideration by this Tribunal in the related proceedings. For the reasons summarised above, this Tribunal is not satisfied that either the applicant or his brothers are Pakistani nationals as asserted by the Department.

2. It follows that the Tribunal is not satisfied the applicant gave incorrect information at question 20 of the Form 866B (when he did not disclose that he was also a Pakistani citizen); at question 21 of the Form 866C (when he stated he did not hold citizenship and is not a national of any other country) or at question 22 of the Form 866C (when he stated that he did not have the right to enter or reside in any other country).

3. However as the Tribunal has found that the applicant gave incorrect information about his brother [Brother B’s] death at question 9 in his protection visa application, the Tribunal is satisfied that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

4. 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).

5. 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 reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations) and I have considered each of those circumstances below.

   The correct information

6. For the reasons set out above, the Tribunal has found that the applicant incorrectly stated in his protection visa application that his brother [Brother B] (also known as [Brother B Alias A] or [a variant]) was dead. The correct information is that [Brother B] is alive and living in Australia and he gave evidence at the Tribunal hearing in the related AAT proceeding [File number] for [Brother A] on 21 January 2020.

   The content of the genuine document (if any):

7. This prescribed circumstance is not relevant in the present case because the s 107 notice relied solely on s 101, not on s 103 of the Act (relating to bogus 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

8. The Department’s file contains a copy of the applicant’s protection visa application but does not contain any decision record setting out the reasons the applicant was granted the protection visa, rather that process appears not to have been the subject of a formal written decision of a delegate. The Department’s ICSE records indicate the applicant was the subject of a refugee status assessment on 9 February 2010 and was found to be a refugee on the basis that he was a member of an ethnic and religious minority as a Hazara Shia.

9. The s 107 notice records that in his protection visa application the applicant claimed to fear persecution in Afghanistan and Pakistan who would face harm from the Taliban and other Sunni Muslim groups on the grounds of his Hazara ethnicity and Shia Muslim religion.

10. The delegate records in the cancellation decision that the applicant was granted the protection visa on the basis that he engaged Australia’s protection obligations as a citizen of Afghanistan with no lawful right to reside in Pakistan and that his citizenship status in Pakistan was material to the assessment of his claims in Pakistan. While there can be no doubt that the applicant’s nationality was material to the finding that he was owed protection, for the reasons already stated this Tribunal is not satisfied that the information provided by the applicant about his nationality is incorrect. Rather the Tribunal has concluded that it is unlikely that the applicant and his siblings could have obtained Pakistani citizenship by any lawful means and has accepted that they are nationals of Afghanistan. The Tribunal has accepted, however, that the applicant gave incorrect information in the visa application about the death of his brother [Brother B].

11. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion. As it was that these matters, together with his citizenship of Afghanistan, that determined the applicant’s eligibility for the protection visa, the Tribunal is not satisfied that the decision to grant the applicant the protection visa in 2010 was based on the incorrect information about his family composition, nor that the decision would have been different had it been known that [Brother B] was still alive at the time the applicant applied for the protection visa.

    The circumstances in which the non-compliance occurred

12. While the applicant does not have the capacity to give evidence about the circumstances in which the non-compliance occurred, it was acknowledged by his brothers [Brother A] and [Brother B] in the related proceedings that the applicant originally advised his brothers to obscure their relationship when they arrived in Australia and claimed protection for fear that their claims would be rejected and they would be returned to Afghanistan.

13. However, the applicant was the first of the brothers to arrive in Australia. It follows that he did not give incorrect information about [Brother B’s] death in order to hide his relationship with his brothers, rather it is clear from the claims made in the protection visa application that he made false claims about [Brother B’s] death at the hands of the Taliban in order to bolster his own claims for protection, thus undermining the integrity of Australia’s migration program.

14. While this reflects poorly on the applicant’s credibility, I accept it occurred in the context of the family’s experience of fleeing Afghanistan during the first Taliban regime to live as refugees in Pakistan, the difficult journey to Australia and the plethora of misinformation promulgated by the people smugglers and others in the community.

    The present circumstances of the visa holder

15. As noted above, the applicant suffers from depression, anxiety and PTSD and is at significant risk of self-harm. The medical evidence indicates that the applicant’s psychological state continues to decline and he lacks the capacity to understand the issues relating to his visa cancellation or to participate meaningfully in the hearing. He has been separated from his wife in Pakistan for a significant period of time. The applicant relies on his younger brother [Brother A] for financial support, given his significant current health issues.

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

16. The delegate’s decision records that the applicant responded to the s 107 notice, acknowledging he provided incorrect information about his family composition and correcting that information.

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

17. The delegate’s decision records that there are no other instances of non-compliance known to the Minister.

    The time that has elapsed since the non-compliance

18. The non-compliance took place in 2010 and approximately 11 years have elapsed since then. The applicant corrected the incorrect information during the identity interviews with the Department in 2018 and later through a formal process of correction in 2020.

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

19. The delegate’s decision records that there is no information indicating that there have been any breaches of the law since the non-compliance.

    Any contribution made by the holder to the community

20. It is submitted that the applicant is limited in his ability to contribute to the community by significant mental and physical health issues and I accept that to be the case. His brother [Brother A] gave evidence in the related proceedings that the applicant was attempting to retrain as [an occupation 1].

    Other factors to be considered

21. While the above 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 PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Consequential cancellations

22. In this case, there are no persons in Australia whose visas would, or may, be cancelled under s 140 of the Act. However, unless the applicant’s visa is reinstated, he would no longer be eligible to sponsor his wife to Australia, nor travel to visit her in Pakistan.

    Mandatory legal consequences of the cancellation

23. In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s resident return visa remains cancelled, it appears he will have the option of making a further application for a protection visa. This is because s 48A bars a non-citizen from making a further onshore application for a protection visa without the Minister’s intervention only where a protection visa has been refused or cancelled. In this case, the protection visa granted to the applicant in 2010 was neither refused nor cancelled, rather it ceased to operate when the applicant was granted the resident return visa in 2016.

24. The recent events in Afghanistan cause me to consider the applicant may be successful in his application for a protection visa. In that sense the cancellation of the applicant’s resident return visa will not necessarily lead to the applicant’s removal from Australia. However, the process of application and decision may take considerable time and I accept that the outcome cannot be certain.

25. In the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, such a decision is not reviewable or compellable.

26. Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[9] However, it remains the case that s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and any consideration of how the Minister may exercise his discretion is merely speculative. Therefore, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless he decides to return to Afghanistan voluntarily.

    [9] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5

27. The prospects of any voluntary return appear remote given the applicant’s poor health and the recent collapse of the elected Afghan government in August 2021. I consider the prospect of the applicant facing a prolonged period in immigration detention weighs significantly against the cancellation of the visa, particularly in the context of his serious mental health conditions.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

28. The Department’s Policy Guidelines set out that Australia is party to four international treaties that generate explicit or implicit non-refoulement obligations, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Convention on the Rights of the Child (CROC). The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

29. In this case the delegate’s decision records that if the applicant’s visa is cancelled, an International Treaties Obligation Assessment would be completed by a Departmental officer before any decision is made to remove him from Australia. The delegate considered that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin. Further the delegate considered that the applicant has a legal right to reside in Pakistan, however, for the reasons set out above, the Tribunal has reached a different conclusion on that matter.

30. There has been a significant change to the law since the delegate’s decision. Amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:

    (a)  the non‑citizen has made a valid application for a protection visa that has been finally determined; and

    (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

    (c)  none of the following apply:

    (i)  the decision in which the protection finding was made has been quashed or set aside;

    (ii)  a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

    (iii)  the non‑citizen has asked the Minister, in writing, to be removed to the country.

31. In this case the applicant made a valid application for a protection visa in 2010 and that application was finally determined when a refugee status assessment resulted in a ‘protection finding’ in respect of the applicant on 9 February 2010. In these circumstances s 197C(3) does not require or authorise the applicant’s removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless the decision finding that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.

32. There is nothing in the material before the Tribunal that would suggest the decision to grant the applicant a protection visa has been quashed or set aside. Nor has the applicant requested removal from Australia and I accept that is unlikely to occur given current circumstances in Afghanistan. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).

33. Unless and until one of the circumstances set out in s 197C(3) arises, the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s resident return visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.

34. However for the reasons set out above, while the applicant cannot be removed from Australia except pursuant to the statutory process set out in s 197C, if his visa remains cancelled and he is not granted another visa he is liable to be detained for a potentially prolonged period.

    Any other relevant matters

35. I accept that the applicant has a genuine fear of return to Afghanistan which is now under the control of the Taliban. It has been widely reported that in August 2021, in the wake of the withdrawal of international troops from Afghanistan, there was a rapid deterioration of the security and human rights situation across Afghanistan. The Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[10] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[11] By 17 August 2021, the Taliban had declared they had no interest in a shared interim government and installed themselves as the new government of Afghanistan.[12]

    [10] UNHCR Position on Returns to Afghanistan, August 2021 at Refworld

    [11] BBC News Ashraf Ghani: Afghanistan’s exiled president lands in UAE ,18 August 2021

    [12] Afghan Analysts Network: Afghanistan has a new government: The country wonders what the new normal will look like 17 August 2021 (afghanistan-analysts.org)

36. The recent nature of these developments raises questions about the future of religious and ethnic minorities and other vulnerable groups in Afghanistan under Taliban rule, including Hazara Shias such as the applicant. History shows that the Taliban’s previous takeover of Kabul and most of Afghanistan in 1996 marked a period of considerable repression for Hazara, leading many to flee Afghanistan.[13] During that period, the Taliban subjected Hazara Shias to violent persecution including the Mazar-e-Sharif massacre on 8 August 1998 in which the Taliban went from house to house systematically executing all males of fighting age in front of their families, killing around 2,000 people.[14]

    [13] DFAT Country Information Report Afghanistan, 27 June 2019 at 3.8

    [14] Human Rights Watch, The Massacre in Mazar-i-Sharif, November 1998,

37. There are some indications that the new Taliban regime may be more inclusive than the previous Taliban regime that fell in 2001. On 22 September 2021, the International Crisis Group (ICG) reported that the Taliban had published new ministerial appointments which slightly broadened the new government’s makeup and included a small number of ethnic minorities, including one Hazara. However, it noted that while the inclusion of more officials from minority groups is something western and regional governments have been pushing for, these nominations do not indicate the Taliban are willing to make any significant concessions for the sake of international recognition, sanctions relief or foreign aid, rather they are ‘designed largely to strike an internal balance by accommodating various Taliban factions that felt neglected following the first round of nominations’.[15]

    [15] ICG, 28 September 2021

38. The United Nations General Assembly (UNGA) reports that while the Taliban have attempted to portray to the world that they will respect human rights and lead a more inclusive government, the reality on the ground does not reflect this. Rather after seizing Kabul, the Taliban are reported to have erected checkpoints throughout the capital and shot people who crossed checkpoints without approval, conducting house-to-house searches for government personnel, weapons and property.[16]

    [16] UNGA, 2 September 2021, p. 5

39. In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[17]

    [17] UNHCR Position on Returns to Afghanistan August 2021 at Refworld | UNHCR Position on Returns to Afghanistan

1. As noted above, the Department’s current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan at present given the current security situation.

2. In these circumstances I accept the applicant’s fear of return is both genuine and consuming as evidenced by the medical reports submitted to the Tribunal. I further accept that cancellation of the applicant’s visa would result in hardship not just to the applicant, but also his brothers in Australia and his wife in Pakistan.

   EXERCISE OF DISCRETION

3. I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant knowingly provided incorrect information about the death of one of his brothers in order to bolster his chances of being granted the visa. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it is required to have regard weigh overall against cancelling the applicant’s visa.  In particular the Tribunal gives weight to the following matters:

   ·Had the delegate been aware that [Brother B] was still alive when the decision to grant the applicant the protection visa was made in 2010, it is likely that the applicant would still have been recognised as a refugee by the Department on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion;

   ·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As a consequence he cannot be removed from Australia unless the decision finding that the non-citizen engages protection obligations is quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal;

   ·If the applicant’s visa remains cancelled and he is not granted another visa, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged;

   ·The applicant is experiencing severe illness and is reliant on his brothers in Australia for financial and emotional support. He has resided in Australia for 11 years and has been separated from his wife for a significant period of time. Should the applicant be returned to Afghanistan, he will be without any family support and he has no legal right to enter or reside in Pakistan to re-join his wife;

   ·Country information indicates the security situation in Afghanistan remains tense and uncertain. The severity of the current security situation in Afghanistan is recognised by the Australian government’s current policy that Afghan citizens in Australia holding temporary visas will not be asked to return to Afghanistan until it improves.

4. For all of these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Alison Murphy
   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.

   
   

DFAT Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta 30 July 2010 CX246851; ‘Ethnic bias seen in blocked CNICs’, The Express Tribune, 27 March 2017, CXC9040669341; ‘100,000 Pakistanis lose nationality for being suspect aliens’, Dawn, 29 May 2015, CXBD6A0DE7355;
‘Senate body admonishes NADRA for issuing thousands of fake CNICs’, The Express Tribune, 8 May 2017, CXC9040667033; ‘The discriminated Pashtun’, The News on Sunday, 5 March 2017, CXC9040669342