2103134 (Migration)

2103134 (Migration) [2022] AATA 1933 (23 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2103134
MEMBER:R. Skaros
DATE:23 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 23 May 2022 at 1:06pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect information provided in previous applications – other name known by and earlier applications not declared – forensic facial image comparison – included in earlier applications as member of family unit of cousins, claimed as brother – discretion to cancel visa – admission of knowing applications made but denial of knowing information in them – provided passport photos and attended interviews – claim of understanding that question referred to applications made as primary applicant – Hazara Shia and father’s political party membership – long residence, business and family and community ties – financial support for wife and children residing illegally in third country – partner visa application may be refused because of this cancellation – mental health – best interests of children can include those outside Australia’s territory – non-refoulement and possibility of indefinite detention – country information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A(1), 48, 100, 101(b), 107, 107A, 109(1), (3), 189, 195A, 197C(2), 198
Migration Regulations 1994 (Cth), r 2.41(c)
CASE
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

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).
The applicant’s Subclass 155 visa was cancelled on the basis that he had not complied with s.101(b) of the Act. The delegate found that the applicant had provided incorrect information in connection with his previously held protection visa application.[1] The applicant provided a copy of the delegate’s decision record to the Tribunal.
[1] Section 107A of the Act provides that failure to comply with s.101 of the Act in connection with a previous visa application may enliven grounds for cancellation of the applicant’s Subclass 155 visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 9 May 2022, the Tribunal received a written submission from the applicant’s representative, which was signed by the applicant, together with the following supporting documents: various statutory declarations from relatives and friends in Australia, various identity documents for the applicant, medical records and a psychologist report for the applicant, and business records, including income statements, relating to his business activities and earnings in Australia. The applicant also provided identity documents for his wife and children, who are currently residing in [Country 1], and photographs and video of the applicant’s son ([Master A]) showing facial injuries.
The applicant appeared before the Tribunal on 16 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the applicant has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the applicant 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.
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?
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 section 101(b). The Tribunal notes that the s 107 notice was set out in full in the delegate’s decision record and indicated the following:
[In] May 2010, the applicant arrived on Christmas Island as an undocumented irregular maritime arrival (IMA).
On 26 May 2010, the applicant participated in an entry Interview. In that interview, the applicant stated his name to be [the applicant]. The applicant also stated that he, and members of his family, had never previously applied for a visa to enter Australia.
On 8 October 2010, the applicant requested a Refugee Status Assessment (RSA) and lodged a Form 80 Personal particulars for character assessment, in support of the RSA.
At question 1 of the Form 80 in response to ‘Write your name and birth details as shown on official documents such as birth certificate, family book, passport or identification document’, the applicant answered:
Family name: [the applicant – family name]
Given names: [the applicant – given names]
At question 28 of the Form 80 in response to ‘Contacts in Australia’, the applicant answered:
Family name: [Family name B]
Given names: [Given names Z]
Date of birth: [Age 1] years old
Relationship to you: Cousin
A letter of support from [Mr ZB], dated 2 November 2010 and signed on 2 December 2010, was taken into consideration as part of the applicant’s application for an RSA. [Mr ZB] advised in the letter of support that he is the applicant’s first cousin. He also stated that the applicant is the son, of his father’s brother.
On 13 December 2010, an officer of the Department had determined that the applicant was not a refugee as defined in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention) and the RSA was subsequently refused. The applicant requested an Independent Merits Review (IMR) of the RSA outcome. On 10 November 2011, an independent reviewer assessing the applicant’s RSA recommended that he be recognised as a person to whom Australia has protection obligations under the Refugee Convention.
On 12 December 2011, the applicant lodged a submission to the Minister requesting that he allow the applicant to lodge an application for a visa. On 19 November 2011, the Minister exercised his power under section 195A of the Act to allow the applicant to lodge a visa application. On 15 December 2011, the applicant lodged an application for a Humanitarian Stay Temporary (subclass 449) visa and on 20 December 2011, he was granted a Humanitarian Stay visa.
On 27 June 2012, the applicant lodged a submission to the Minister requesting that he allow the applicant to lodge a Protection (Subclass 866) visa application.
On 1 July 2012 the Minister exercised his power under section 46A(1) of the Act to allow the applicant to lodge a valid application for a Protection visa.
On 12 July 2012, the applicant lodged a Form 866 – Application for a Protection (Class XA) visa. This application included the following components that the applicant completed in full:
·Form 866B – Persons included in this application and family composition
·Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee.
At question 1 of the Form 866B in response to ‘Give details of ALL persons included in this application (those claiming to be refugees and members of the same family unit)’, the applicant provided the following information:
Name: [the applicant]
Date of Birth: [Date 1]
Relationship to applicant: Self
At question 3 of the Form 866B in response to ‘Has any person named in Question 1 previously made any other type of application to the Department (including a Parent visa)?’ the applicant answered ‘No’.
At question 1 of the Form 866C in response to ‘What is your full name?’ the applicant answered:
Family Name- [The applicant – family name]
Given names: [The applicant – given names]
At question 4 of the Form 866C in response to ‘What other names have you been known by? (such as name before marriage, previous married name, alias)’, the applicant answered ‘N/A’.
Based on the above information and meeting all the relevant criteria the applicant was granted a Protection visa on 23 July 2012.
On 19 October 2018, the applicant was granted the Resident Return (Subclass 155) visa.
Forensic facial image comparison
A forensic facial comparison was undertaken by the Department which compared the photograph the applicant submitted in his Protection visa application lodged on 12 July 2012 and the photograph of a dependent applicant in an application for a Global Special Humanitarian (subclass 202) visa lodged offshore on 15 July 2005 for [Alias], by [Mr YB], born [Year 2].
The photographs compared were for applicants who identities were declared as:
· [The applicant], DOB [Date 1]
· [Alias], DOB [Date 3]
The findings of the Forensic Facial Image Examiner were that [the applicant], and [Alias] represent the same person.
Global Special Humanitarian visa applications
Departmental records indicate that [Mr YB], born [Year 2], lodged a Global Special Humanitarian (subclass 202) visa application on 4 January 2005, which included [Alias], born [Year 3], as a dependent applicant. This application listed [Mr ZB], born [Date 4], as a brother and the proposer. The application was subsequently refused on 7 March 2005, as the applicants did not meet the requirements for the grant of the visa.
[Alias], born [Date 3], was included as a dependent applicant in a subsequent application for a Global Special Humanitarian (subclass 202) visa lodged offshore on 15 July 2005 by [Mr YB], born [Date 2]. This application listed [Mr ZB], born [Date 4], as a brother. The application included a photograph of [Alias], which was later compared with the applicant’s photograph. The application was subsequently refused on 18 July 2005, as the applicants did not meet the requirements for the grant of the visa.
Relationship with [Mr ZB]
On 27 September 2005, the applicant lodged an application for a Child (subclass 101) visa in the name of [Alias], born [Date 3]. In this application, the applicant listed [Mr ZB], born [Date 4], as the brother and sponsor. The application was subsequently refused on 14 November 2006, as the applicants did not meet the requirements for the grant of the visa.
During the applicant’s entry interview, conducted on 26 May 2010 on Christmas Island, the applicant advised the Department that he has a cousin named [Mr ZB].
In the applicant’s Form 80, dated 08 October 2010, provided in support of his RSA application, the applicant advised that [Mr ZB] was his cousin. [Mr ZB] provided the Department with a signed letter of support dated 2 November 2010. This letter of support advised that the applicant is [Mr ZB]‘s first cousin because the applicant is the son of his father’s brother (uncle).
Response to the s 107 Notice
Prior to responding to the s 107 notice, the applicant’s representative lodged a Freedom of Information (FOI) with the Department requesting the photographs used in the facial recognition analysis and the application form for the Subclass 202 visa. The applicant subsequently obtained new representation through [Organisation], who on 7 February 2020 confirmed that the applicant had received the photographs but not the Subclass 202 visa application. The Department refused a request for extension to respond to the s 107 notice, and so prior to the receipt of the requested information the applicant, on 14 February 2020, provided a response to the Department.
In his response, the applicant rejected the allegations set out in the s 107 notice. He claimed he was the victim of an agent in [Country 1] who charged him $4000 for an Australian visa, and that he had no knowledge of the details provided in the visa application. He claimed that the details provided in the 866B/866C forms were correctly answered. The applicant contended that as he had no knowledge of the 15 July 2005 visa application, and as the Department had not provided him with a copy of the application as requested under FOI, it would be an injustice for the Department to rely solely on the forensic facial image comparison to cancel his visa under s 109.
In written submission to the Tribunal (and in the applicant’s oral evidence at the hearing) it was claimed that the applicant had provided correct information in his protection visa application about his identity, and that he is [the applicant] (DOB: [Date 1]). In support of this claim, the applicant provided a National ID card (with translation), which was also provided on his arrival in Australia. He has also provided an Afghan passport which was issued by Afghan consulate in Canberra. It was submitted that those documents are verifiable and should be given substantial weight when considering the applicant’s identity. It was also submitted that the applicant had provided a National ID card for his father, National ID cards for his children, and his marriage certificate, which are verifiable and substantial documents to prove the applicant’s identity.
The Tribunal acknowledges the submissions relating to the applicant’s identity, however, the issue in this case (as described in the notice) is whether the applicant had provided incorrect information in the protection visa application about whether he had previously made any other type of visa application and whether he has been known by any other names.
The evidence before the Tribunal, including the forensic facial image comparison of the passport photographs depicting the applicant, which were provided with the protection visa application and the global special humanitarian and child visas, strongly suggest that the applicant had previously applied for other types of Australian visas and that he had applied for those visas in the name of [Alias] (DOB: [Date 3]).
In submissions to the Tribunal, the applicant admitted that he had been included as a member of the family (secondary applicant) in previous visa applications under the name [Alias] (DOB: [Date 3]). The applicant claimed that this was arranged by his father (through his cousin) as they feared for the applicant’s safety due to his father’s political affiliations.
The applicant submitted that after his father joined the Nazhad political party, the family faced tension and threats from Koochi and Nasser party. The applicant’s father escaped to [Country 2] and the applicant became a target. It was claimed (as indicated in the protection visa application) that the applicant was under constant threat and abuse by the hand of Koochi and the leader of Nasser party, Irfani and Ehsani. After hearing that the Koochi and Irfani were threatening the applicant, the applicant’s father returned from [Country 2] to protect his family. It was submitted that the applicant’s father had requested his brother’s son (the applicant’s cousin) to help the applicant escape from Afghanistan. As [Mr YB]’s brother ([Mr ZB]) was in Australia, he also sponsored the applicant for visas. In the humanitarian visas, [Mr YB] was the primary visa applicant as he is the biological brother of [Mr ZB], and the applicant was included in the application (also as a brother) as a secondary applicant for the visas.
The applicant admitted that visa applications had been lodged by his cousin ([Mr ZB]) on his behalf. However, he claimed that he could not recall how many applications had been lodged and was unaware of the information that had been given in the forms. The applicant stated that due to his lack of English, he never reviewed or filled in the application.
In seeking to recollect the applications made on his behalf, the applicant stated that [Mr YB] had requested a passport size photograph and advised that they would try and apply for a visa for him. The applicant stated that he had also give a passport size photo to an agent to apply for a visa. The applicant admitted that he attended two interviews in [Country 1], however, he stated that he could not recall the third application, or any other application lodged by the agent. The applicant stated that the case officer had doubts about his age and his relationship with the main applicant. He stated that he undertook bone age testing. The applicant claimed that he had never made or provided any document to the Department under the name of [Alias] (DOB [Date 3]).
The applicant stated that his life was in danger and that his father wanted him to escape. He said that he was scared for his life and accepted the advice given to him by his father and other elders. He stated that he could not go against his father’s decision, which would be disrespectful. He did not personally make any ID cards or documents.
In relation to why he had not declared the previous visa applications, made on his behalf, in his protection visa application, the applicant claimed that he misunderstood the questions. He claimed that he was under the impression that the question was referring to him making an application by himself as the main (primary) applicant. He claimed that he did not declare this information on his protection visa because he did not apply for any visa application as the primary applicant. He claimed to have also paid an agent in [Country 1] to get him a visa for any country, but the agent disappeared. The applicant claimed that he was unsure if any other visa applications for Australia or any other country had been made on his behalf and did not understand that he had to declare the applications which were applied for on his behalf by his cousin.
The applicant claimed that if he had the intention to hide the information about his previous applications, he would also have hidden that his cousin was in Australia. He stated that after receiving the cancellation notice, he consulted with his friends and they advised him that he would be deported if he told the truth now. They gave him examples of friends who had been deported after telling the truth to immigration and told him that his cousin would be deported. The applicant stated he feared being deported; he had no one left in Afghanistan, his family were experiencing difficulties in [Country 1], and he feared losing everything he had established in Australia, so he denied (in his response to the s.107 notice) that he had provided incorrect information to the Department.
The applicant stated that he regrets taking advice from friends who scared him and guided him in the wrong path, and he regrets denying that he had provided incorrect information in his response to the Department. He stated that he has learnt a lesson and that the incorrect information has impacted his and his family’s life.
At the hearing, the applicant confirmed that he was aware that previous visa applications had been made on his behalf and that he was included in those visa applications as the brother of [Mr YB] and [Mr ZB] (his cousins). The applicant stated that this was arranged by his father as they feared for his (the applicant’s) life. The applicant stated that he genuinely believed the question in the protection visa application was referring to visa applications that he had made as the main applicant and did not realise that he had to declare the visa applications made on his behalf by his cousin.

While the Tribunal has some concerns about the applicant’s claim that he misunderstood that the question about whether he had applied for any other visas, or been known by any other name, given he was well aware of at least two previous applications for which he attended an interview in [Country 1], and claimed to be [Alias] (DOB: [Date 3]), the brother of [Mr YB] and the brother of the sponsor (his cousin [Mr ZB]), it is not necessary for the Tribunal to establish (for the purpose of determining whether there was non-compliance as described in the notice) that the applicant was aware that the information provided in his visa application was incorrect. As explained to the applicant at the hearing, s.100 of the Act provides that 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.
Based on the evidence before it, including that which was set out in the s.107 notice (as detailed above) and the applicant’s written and oral evidence, the Tribunal finds that the applicant has provided incorrect information in his previously held protection visa application about previous applications for visas for which he had applied and other names by which he has been known.
For the above reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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 Regulations. The Tribunal’s consideration of each of these circumstances follow.
The correct information
The correct information is that the applicant had previously been included (as a secondary applicant) in applications for Global Special Humanitarian and Child visas, and that he applied for those visas under the name of [Alias] (DOB: [Date 3]), and was therefore known to the Department by another name.
Had the correct information about the applicant’s previous visa application in another name been known by the Department, this would have prompted the Department to undertake further enquiries or investigations in relation to the applicant’s identity and claims for protection. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.
The content of the genuine document (if any)
The s.107 notice does not indicate that any bogus documents have been provided with the application. This circumstance is therefore not relevant to the exercise of the Tribunal’s discretion.
Whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The applicant’s representative submitted that the decision to grant the protection visa, on 23 July 2012, was based on the applicant’s protection claims. He stated that the applicant acknowledges that incorrect information was given, however, it was contended that, had the correct information been given, the assessment would not have been significantly affected as the applicant had declared his true identity and personal information in his protection visa application. It was submitted that although the information was critical, the protection visa assessment was conducted on the applicant’s current and accurate identity and claims. The Tribunal has considered these submissions, however, as noted above, by not declaring that he had been included in previous visa applications for a visa in another name, the Department was prevented from undertaking a full assessment of the applicant’s claims, including identity and background checks which are also relevant to the assessment of character.
The representative submitted that the delegate who assessed the applicant’s protection was satisfied that the applicant is a Hazara who originated from [Location] in Jaghori, Ghazni, Afghanistan, and that based on the applicant’s life story, experiences in Afghanistan and his general knowledge about the country, the delegate concluded that he was a citizen of Afghanistan who faced a real chance of harm on the basis of his race and religion (as Shia Hazara), which was found to be the essential and significant convention reasons for fearing the harm. The delegate also found that the harm feared by the applicant in Afghanistan, namely a threat to his life, involves serious harm and systematic and discriminatory conduct, which would amount to persecution. The Tribunal accepts that these findings were made by the delegate, as indicated by material in the Department’s file.
The Tribunal has had regard to the submission that the protection visa was granted to the applicant on the basis of his claim to be a Hazara Shia Muslim from Afghanistan, and while the Tribunal accepts that the applicant may have still been granted the protection visa had he declared the correct information about having been included in previous visa applications in another name, the Tribunal nevertheless considers the applicant’s failure to declare that he was known to the Department by another name prevented the Department from undertaking further enquiries and background checks so as to satisfy itself that the applicant is who he claimed to be in the protection visa application, namely [the applicant] and not [Alias] as previously declared in previous (offshore) visa applications.
The consideration in r. 2.41(c) is not whether the applicant would have still been granted the visa had the correct information been provided, but whether the decision to grant the protection visa was based, wholly or partly, on incorrect information.
The Tribunal considers that the correct information would have been relevant to any background or verification checks the Department may have conducted against each name the applicant had been known by. For these reasons, the Tribunal considers that the decision to grant the applicant the protection visa was based, in part, on the incorrect information that the applicant had not been known by any other name or made any previous applications for a visa. For these reasons, the Tribunal gives some weight to this consideration in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the applicant did not declare in the protection visa application that he had previously applied for global humanitarian and child visas in another name.
The applicant claimed that he did not declare this information in his protection visa application because he misunderstood the questions. He claimed that he was under the impression that the question referred to application he made by himself as a main (primary) applicant. He claimed that he did not declare this information on his protection visa because he had not applied for any visa as the primary applicant as he did in Australia. He also claimed to have paid an agent in [Country 1] to get him a visa for any country, but the agent disappeared, and he was unsure if the agent had applied for any visa for Australia or another country. The applicant also claimed that he did not understand that he had to declare the applications that were lodged on his behalf by his cousin. It was submitted that if the applicant intended to hide information about his previous application, he would not have declared that his cousin was living in Australia and would not have obtained the letter of support from him, which had been included in the protection application.
The Tribunal does not accept the applicant’s claim that he misunderstood the question about whether he had previously applied for another visa and whether he had been known by any other name. The applicant’s evidence indicates that he was aware of at least two visa applications that had been made by his cousin in which he was included as an applicant. The applicant stated that he gave his cousin the passport size photos which had been provided with the offshore applications, and furthermore, the applicant attended two interviews in [Country 1] claiming to be [Alias] (the brother of his cousin) and he also undertook a bone density test: all for the purpose of securing a visa for Australia. In these circumstances, the Tribunal does not accept that the applicant misunderstood the questions in the form about previous applications made and other names by which he had been known.
The fact that the applicant declared his cousin in Australia ([Mr ZB]) and provided a letter of support from him does not prove that the applicant had misunderstood the question on the form or did not intend to hide the previous applications made in another name. In the previous (offshore) visa applications, [Mr ZB] was declared as the brother, whereas in the protection visa application he was declared as the cousin, and the Tribunal considers it likely that the applicant did not suspect the Department would detect the previous visa applications given it was in a different name, and in which a different relationship with [Mr ZB] had been declared.
The applicant claimed that his life was in danger, that his father wanted him to escape, and that his father asked for assistance to get him out of Afghanistan. At least three attempts were made (as identified by the Department) to get the applicant a visa. These circumstances suggest that there were strong motivations to obtain an Australian visa for the applicant. The applicant provided numerous identity documents with his protection visa application, including officially issued documents for his father and children, which stated that he is [the applicant] (DOB: [Date 1]). The Tribunal considers the applicant did not declare that he had been included in previous visa applications (in a different name) so as not to jeopardise his chances of securing protection, and not because he misunderstood the question on the form.
The Tribunal considers that the circumstances of the non-compliance weigh in favour of cancelling the visa.
The present circumstances of the applicant
The applicant has resided in Australia for over 10 years. It was submitted that the applicant is well established in the community. He has been working as a sole trader and established a [Job task 1] and a [Job task 2] business. At the hearing, the applicant informed the Tribunal that he had to stop the [Job task 1] business due to the impact his mental health issues had on his sleep cycle, which made it impossible for him to keep to the hours required in the [Job task 1] business. It was submitted that the applicant has been a law-abiding resident and taxpayer. At the hearing, the applicant gave evidence that his wife and children rely on his income and that he financially supports them by regularly sending funds to [Country 1].
In relation to his family ties in Australia, the applicant informed the Tribunal that his cousin and his cousin’s family, all of whom are Australian citizens, reside in Adelaide. He also has many friends in Australia with whom he shares a close relationship. It was submitted that the applicant is very active within the community and regularly attends mosques and other traditional and cultural events. He has been supporting the community financially and by volunteering at the mosque.
In relation to the present circumstances of his wife and children, the applicant gave evidence that they are residing illegally in [Country 1], and due to current events in [Country 1] and Afghanistan, they are not safe. The applicant fears that his family may be deported to Afghanistan, where they will face torture at the hands of the Taliban. The applicant gave evidence that his son was recently attacked in [Country 1] and severely injured in the face. The Tribunal has received a photo and video of the injuries. It was submitted that the increase of Afghan migrants in [Country 1] has caused tension and Afghan citizens are being targeted and attacked everywhere.
The applicant is currently awaiting the outcome of a Partner (Provisional) (Subclass 309) visa application for his spouse and his children. The Subclass 309 visa application was lodged in June 2013 but is yet to be determined, though on 22 April 2022 the applicant received a natural justice letter informing him that the partner visa application for his wife and children may be refused because his visa had been cancelled, and he is no longer an Australian permanent resident. The applicant gave evidence that he became extremely stressed and anxious upon receiving that letter, given he had been waiting for 9 years, for his partner and children to join him in Australia. He fears he might not be able to provide them with a better life and opportunity in Australia.
The applicant stated that he has not told his family about his visa cancellation because they would not handle the bad news. He stated that his family are already living in danger and telling them about his visa cancellation could lead to severe consequences such as his wife harming herself or the children being mentally tortured. The applicant stated that he has always assured his wife and children that they would join him in Australia soon but now he cannot tell them that their application may be refused, and that they may not see him for years. He stated that if the visa is cancelled, he and his family will not be able to cope, and he might harm himself. The applicant stated that he is emotionally and mentally tired of life and has been thinking of giving up, but he has tried to stay strong for his wife and children.
The Tribunal also has evidence before it, including medical certificates and reports, which indicate that the applicant has struggled with chronic back pain, headaches, and mental health issues since his arrival in Australia and that he has sought psychologist treatment for depression and anxiety.
The Tribunal has considered all the evidence before it regarding the applicant’s present circumstances. It accepts that he has strong financial ties to Australia, that he has integrated well into the community, has established close friendships, and has some family ties. The Tribunal accepts that the applicant has experienced significant health issues, including mental health issues, which have been exacerbated by the processing time (9 years) of his wife and children’s visa application and the fear that it may be refused altogether. The Tribunal accepts the evidence about his family’s circumstances in [Country 1], including the increased tensions in [City], due to the influx of Afghani refugees following the take over of Afghanistan by the Taliban in August 2021. This is consistent with country information before the Tribunal.[2]
[2] DFAT Thematic Report on Political and Security Developments in Afghanistan, January 2022.
The Tribunal gives weight to the applicant’s present circumstances in favour of not cancelling the visa.
The subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act
It was submitted that after receiving s.107 notice, the applicant requested documents from the Department, but the request was denied. It was noted that the applicant had initially rejected the allegations made in the notice due to advice given to him by friends that if he told the truth he and his cousin would be deported. The applicant stated that he feared deportation because he had no one left in Afghanistan, his family was residing illegally in [Country 1] and he had established a life in Australia.
At the hearing, the applicant stated that he was remorseful and should have told the truth. He stated that he was misguided by friends and hopes that he can be given another chance.
The Tribunal acknowledges that the applicant has now admitted to having provided incorrect information in his application and accepts that the applicant regrets taking the advice of his friends about denying the non-compliance as set out in the s.107 notice. The Tribunal gives this factor some weight, albeit limited, in favour of not cancelling the visa.
Any other instances of non-compliance by the applicant known to the Minister
There is no information before the Tribunal which indicates any other instances of non-compliance by the applicant. The Tribunal gives this consideration neutral weight in the exercise of its discretion.
The time that has elapsed since the non-compliance
The non-compliance occurred at the time the protection visa application was lodged (July 2012). Almost 10 years have passed since the non-compliance, which the Tribunal accepts is a considerable period. The Tribunal has accepted, as discussed above, that during that time the applicant has established financial, family, and social ties to Australia. The Tribunal gives weight to this consideration in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
It was submitted that the applicant has resided in Australia for the past 10 years as a law-abiding resident. There is no evidence before the Tribunal which indicates that the applicant has breached any other law since the non-compliance. The Tribunal gives this consideration some weight in favour of not cancelling the visa.
Any contribution made by the holder to the community
It was submitted that the applicant is a well-reputed member of the community and has no criminal history. The Tribunal has received a letter of support from [a named Association], which states that the applicant is a kind, generous and respectful individual. It was submitted that the applicant regularly volunteers at the mosque and has donated money. The applicant stated that he assists others who are less fortunate by sending money and, together with his community, has contributed towards the bushfire appeal and other community events. It was submitted that the applicant, since his arrival, has worked and paid tax. He had a [Job task 1] business and recently started a [Job task 2]. It was submitted that the applicant wishes to grow his business and create more jobs. The Tribunal gives this consideration weight in favour of not cancelling the visa.
While the factors in r. 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140
Cancellation of the applicant’s visa will not result in any consequential cancellations under s140 of the Act. This factor is therefore not relevant to the Tribunal’s considerations.
Children whose interests would be affected by cancellation
Departmental policy provides that decision-makers should consider the best interests of children as a primary consideration when deciding whether to cancel the visa. It also indicates that the obligation only applies to children who are within Australia’s territory or jurisdiction.
It was submitted that if the applicant’s visa is cancelled, he will not be able to sponsor his children to come to Australia for a better life. The applicant gave evidence that his children currently reside illegally in [City, Country], and they are experiencing significant hardship. His daughters have not been able to attend school because of the harassment they would experience, which he indicated was due to their gender (female), nationality (Afghani) and ethnicity (Hazara) and religion (Shia Muslim). The applicant’s eldest son has also been the victim of an attack and suffered facial injuries. The applicant gave evidence that he has not seen his children for almost three years and that the separation has been difficult on them, particularly his youngest ([age]-year-old) son, whom he has never seen.

The UN Convention on the Rights of the Child 1989 does not use the word ‘territory’ but states that a signatory shall ensure the rights set out in the Convention for each child in its jurisdiction.[3] The reference to ‘jurisdiction’ rather than ‘territory’ suggests that the obligation is not restricted to children who are in Australia’s territory. The expansive language of the Convention and its references to international co-operation suggest that the Convention’s application to children within Australia’s jurisdiction can include children outside of Australia’s territory that would be affected by decisions made by the Tribunal.
[3] Article 2 of the United Nations Convention on the Rights of the Child 1989.
The Tribunal considers that the applicant’s children would be adversely affected by a decision to cancel their father’s visa, as their application (as secondary applicants) for the Partner (Subclass 309/100) visa would ultimately be refused. If this occurs, the applicant’s children would have to either remain illegally in [Country 1] or return to Afghanistan. Given the circumstances in Afghanistan and [Country 1], as discussed elsewhere in this decision, particularly in relation to Hazaras, it would not be in the children’s best interest for the visa to be cancelled. The Tribunal also considers, for reasons discussed elsewhere in this decision, that cancellation of the visa, may also result in the children being separated from their father for a prolonged period, which would not be in the best interest of the children. For these reasons, the Tribunal gives considerable weight to the best interest of the children in favour of not cancelling the visa.
Whether the cancellation would lead to the person's removal in breach of Australia's non refoulement obligations
The representative submitted that it would be a breach of Australia’s non-refoulment obligations if the applicant were sent back to Afghanistan, where his life and freedom are threatened. It was submitted that the Taliban currently has complete control of Afghanistan, and if the applicant was to return, he would face a real risk of harm, including being subjected to torture at the hands of the Taliban due to his ethnicity as a Hazara and religion as Shia Muslim. It was submitted that the applicant does not have the right to reside in any other country and therefore cannot avoid the torture and harm at the hands of the Taliban.
The Tribunal notes that cancellation of the visa would not, of itself, lead to the removal of the applicant from Australia in breach of Australia’s international obligations on non-refoulment, given the recent amendments made to s.197C. In this case, the applicant lodged a valid protection visa application and was found by a delegate of the Minister to be a person in respect of whom Australia has protection obligations. This decision has not been overturned, and no further assessment has been made by the Minister indicating that the applicant no longer engages Australia’s protection obligations, as provided for in s. 197D(2), and nor has the applicant requested removal. In the circumstances, the applicant is still be a person in respect of whom Australia has protection obligations and therefore the cancellation, of itself, will not lead to the applicant being removed to Afghanistan in breach of Australia’s non-refoulment obligations.
While the above consideration appears to weigh in favour of cancellation, this must be carefully balanced against the mandatory consequences of the cancellation, as discussed below, which may lead to the applicant being indefinitely detained.
Mandatory legal consequences of cancellation
If the visa is cancelled the applicant can apply for judicial review of that decision and would be eligible for a bridging visa during the processing of those applications. It was submitted that the cancellation would result in the applicant becoming an unlawful non-citizen and liable for detention under s.189 of the Act. The Tribunal accepts that if the applicant exhausts all his appeal rights, he would be liable for detention unless the Minister intervenes to grant the applicant a visa or lifts the bar imposed by s. 46A (which applies to unauthorised maritime arrivals) and s.48 which limits the options for onshore visa applications by persons who have had their visas cancelled.
The applicant however would not be liable for removal from Australia (under s.198 of the Act), unless the Minister determines that he is no longer a person who engages Australia’s protection obligations or the applicant requests removal. The applicant has not requested removal (and has claimed that he cannot return to Afghanistan or reside legally in [Country 1]). Furthermore, the Minister has not overturned the protection finding in respect of the applicant. In the circumstances, the applicant may be subject to detention for an indefinite period.
The Tribunal considers that the mandatory legal consequences of cancellation weigh strongly in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the applicant and any family members)
It was submitted that if his visa is cancelled, it would severely impact the applicant, his family, and their mental health. It was submitted that the applicant’s cousin lives in South Australia with his family, who are all citizens, and that the applicant shares a very close and strong bond with them and regularly visits them on special occasions. It was submitted that cancellation of the visa will adversely impact the applicant’s Australian cousin.
It was submitted that due to the situation in Afghanistan, the applicant will not be able to return because the Taliban will kill him. Further, his family are living in [Country 1] illegally. It was submitted that if the applicant does not sponsor his family to Australia, they will at risk of being deported to Afghanistan, where they will face torture by the Taliban due to their ethnicity as Hazara and Shia religion.
The applicant has not told his family about the visa cancellation because they would not be able to bear the news. He stated that his family are already living in danger in [Country 1], and he fears that telling them about his visa cancellation, and that he may not be able to sponsor them, could lead to his wife harming herself and the children’s mental health deteriorating.

100. It was submitted that the applicant’s protection visa was granted based on his true identity and that he is a refugee. It was submitted that cancellation would cause significant hardship because the applicant will be unable to return to Afghanistan, cannot make another visa application in Australia due to the mode of his arrival (as an IMA) and that he might be subject to lengthy detention. It was also submitted that if the applicant does not retain his visa, he would be unable to sponsor his wife and children for visas, resulting in the separation of the family.
101. The Tribunal has had regard to the submissions and accepts that, when considered in combination, cancellation of the visa is likely to cause significant financial, emotional, and psychological hardship for the applicant and his family members. The Tribunal gives this consideration weight in favour of not cancelling the visa.
Any other consideration: the situation in Afghanistan
102. The Tribunal has received detailed submissions regarding the current situation in Afghanistan, and particularly the situation for Hazara’s, which the representative submitted confirms that the applicant has a genuine fear of returning to Afghanistan. A summary of the representative’s submission follows.
103. 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 the country. 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.[4]
[4] UNHCR Position on Returns to Afghanistan, August 2021 at Refworld.
104. On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan. 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. It was submitted that the recent events in Afghanistan have caused significant risk to religious and ethnic minorities and other vulnerable groups in Afghanistan under Taliban rule, including Hazaras.
105. By reference to previous DFAT Country Information Reports on Afghanistan, it was submitted that, historically, the Taliban’s leadership of Afghanistan was marked by a period of considerable repression for Hazaras leading many to flee Afghanistan. It was noted that during their previous period of power, 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.[5]
[5]Human Rights Watch, The Massacre in Mazar-i-Sharif, November 1998, It was submitted that 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. 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 indicates 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.[6]
[6] UNHCR Position on Returns to Afghanistan August 2021 at Refworld | UNHCR Position on Returns to Afghanistan
107. It was further submitted that April 2022, there has been many attacks on Shia Hazara. On 19 April, an explosion took place in Dasht-e-Barchi targeting educational institutions killed at least six people and wounded 17 in a mostly Shia neighbourhood of Afghanistan’s capital.[7] On 21 April, At least 16 people have been killed and 58 wounded in bomb attacks in two Afghan cities at a Shia mosque in Mazar-i-Sharif in Balkh province.[8]
[7] The representative also referred to the Department’s current policy in relation to Afghan citizens in Australia, which states that temporary visa holders would not be asked to return to Afghanistan at present given the current security situation.
109. The Tribunal accepts that the situation in Afghanistan has significantly deteriorated since the takeover by the Taliban in August 2021, particularly for Hazaras who have been subjected to targeted attacks in recent months. The Tribunal accepts that the applicant cannot currently return to Afghanistan. It also acknowledges, as has been claimed (and found by the Department), that the applicant has no right to reside legally in [Country 1].
110. The current circumstances in the applicant’s country of nationality (Afghanistan) weigh in favour of not cancelling the visa.
Conclusion
111. The Tribunal has carefully considered all the evidence before it and weighed up the circumstances in favour of cancellation with those against cancellation. The Tribunal considers that the circumstances for not cancelling the applicant’s visa (when considered in combination), substantially outweigh the circumstances in favour of cancellation.
112. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
113. 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.
R. Skaros
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)     applicants in stated circumstances; or
(c)      applicants in a stated class of people (who may be applicants in a particular place); or
(d)     applicants in a stated class of people (who may be applicants in a particular place) in stated circumstances.
(2)If the applicant 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 applicant in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the applicant 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.

[2022] AATA 1933

23 May 2022

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