2104047 (Migration)

[2021] AATA 4147

2104047 (Migration) [2021] AATA 4147 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2104047

MEMBER:Kira Raif

DATE:7 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2021 at 2:25pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – incorrect answers in the visa application – Pakistan citizenship – fraudulent identity documents – previous visa application – race – Hazara – credibility issues – Australian citizen children – best interests of the children – non-refoulement obligations – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 36, 101, 103, 109, 116, 140
Migration Regulations 1994

CASES

Ibrahim v MHA [2019] FCAFC 89
WKMZ v MICMSMA [2021] FCAFC 55   

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 Resident Return visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan, born in [year]. He was granted a protection visa in August 2009 and a Resident Return visa (RRV) in January 2020. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate was not satisfied as to the applicant’s identity. The applicant provided his response to the NOICC and his visa was cancelled in March 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant travelled to Australia in May 2009 as an Illegal Maritime Arrival and identified himself as [Alias 1], born in Jaghori, Afghanistan in [year]. The applicant attended an interview on 31 May 2009 and also gave his name as [Alias 1] with the same date of birth and provided his identity documents such as tazkera, marriage certificate and an education certificate.

7. On 22 August 2009 the applicant made the application for the protection visa and completed the application form 866. In that form, the applicant

   a.Gave his name as [Alias 1] (dob [DOB 1]) and stated that he was born in Jaghori, Ghazni province Afghanistan

   b.stated that he was a citizen of Afghanistan from birth

   c.stated that he had not previously applied for refugee status or a protection visa or any other visa

   d.gave details of his family members, stating that his father was missing and his mother, [and specified family members] lived in Quetta Pakistan,

   e.did not provide an answer to a question whether he had been known by any other name

   f.gave his past residential addresses, stating that he lived in Afghanistan from birth until 2001 and between 2004 and 2008 and that he lived in Pakistan between 2001 and 2004 and also between 2008 and 2009.

   g.stated that he completed primary and secondary schooling between [specified years].

8. The applicant was granted the protection visa on 27 August 2009. In November 2013 the applicant informed the Department that he had changed his name to [the applicant] and provided a Change of Name Certificate issued by the [relevant state authority]. In September 2013 the applicant made an application for the Australian citizenship. In that application the applicant

   a.Gave his name as [the applicant], born in Jaghori in [year]. The applicant gave details of his parents and [siblings].

   b.Presented his ID documents including educational documents in the name of [Alias 1], Afghani citizen refugee cards issued to his siblings by the Pakistani authorities, the Afghan tazkera and a number of Australian documents.

9. The primary decision record indicates that the applicant’s photograph taken upon his arrival in Australia matched other images held by the Department, that of [the applicant] ([DOB 1]) and of [Alias 2] (dob [DOB 2]). The primary decision record indicates that [Alias 2] made an application for the Global Special Humanitarian (GSH) visa in October 2005 as a secondary applicant with his mother being the primary visa applicant. That application was refused in October 2005. In that application the applicant

   a.Gave his name as [Alias 2] (dob [DOB 2]) and stated that he was born in Kabul, Afghanistan

   b.Gave details of his mother and [siblings]

   c.Gave his residential address in Afghanistan from birth until 2002 and in Quetta Pakistan from 2002 until the time of the application

   d.Stated that he had never married.

10. In November 2009 the applicant’s spouse [Ms A] made an application for the Global Special Humanitarian visa, proposed by the applicant. That application included the tazkeras for the applicant’s spouse, daughter and [other relatives]. The delegate notes that these tazkeras were issued in 2007 and 2008 but are numbered sequentially despite the one year gap in the date of issue. The delegate also notes that the name of the father was the same on each tazkera, including for the applicant’s spouse, daughter and his [siblings]. The delegate notes that the application included the applicant’s marriage certificate and one of the witnesses’ photographs on that marriage certificate had been submitted to the Department in relation to other marriage certificates under a different identity.

11. The primary decision record indicates that Departmental records show that the applicant’s wife [Ms A] is a Pakistani citizen from her paternal line.

12. The delegate concluded that the applicant

    a.provided inconsistent and contradictory information about his identity and about his place of birth. In his GSH application the applicant claimed to be [Alias 2] (dob [DOB 2]) and since entering Australia he claimed to be [Alias 1] ([DOB 1]),

    b.Failed to declare [in his protection visa application] that he had close relatives in Australia as he was previously proposed for the GSH visa by his uncle, who was resident in Australia when the application for the protection visa was made,

    c.Provided different family composition in the GSH application and the protection visa application. In the GSH the applicant stated that his father was deceased and he provided details of his mother and [specified siblings]. In the protection visa application and the Citizenship application the applicant stated his father was missing and mother deceased and he referred to [different specified siblings],

    d.Gave different names and dates of births for his mother, father and siblings,

    e.Gave different information about his places of residence,

    f.Gave evidence that his step-mother and [siblings] had been issued with refugee cards in Pakistan, contrary to his claims that he was an undocumented refugee in Pakistan,

    g.Provided inconsistent information about his partner. In the GSH, the wife’s tazkera indicated she shared the same father as the applicant’s [siblings] and daughter, while the marriage certificate named a witness who had given a different identity in other documents submitted to the Department,

    h.In the protection visa the applicant stated that he married his wife in July 2004 but in the GSH lodged in October 2005 the applicant stated that he had never married. The applicant also claimed that his wife is a citizen of Afghanistan while information before the Department indicates she is a Pakistani national.

13. The primary decision record notes that the applicant provided his tazkera as proof of his identity and Afghan nationality. The tazkera has been verified by the Afghan authorities and supports the applicant’s claimed identity as [the applicant] and names his father and grandfather. The applicant was interviewed upon entry to Australia and stated that he had a tazkera in his possession but it had not been provided. Instead, the applicant obtained a new Tazkera after his entry in Australia in a name that he had not been known by in Afghanistan.

14. The primary decision record has other information which caused the delegate to question the applicant’s credibility. In particular,

    a.The applicant stated that he does not have a step-mother and that [Ms B] is his birth mother while [Ms C] does not exist. The applicant admits to having provided a bogus death certificate for [Ms C] to get the visas for his siblings and expressed remorse for doing so. The delegate noted that the applicant’s response to the NOICC was the first time he admitted to having provided the bogus death certificate for [Ms C]. When he attended the Citizenship interview in July 2018 and asked to comment on the authenticity of the death certificate, the applicant claimed that it was obtained from a hospital and there was no evidence that it was not genuine,

    b.The applicant’s wife [Ms A] admitted at an interview with an officer of the Department that she was a citizen of Pakistan and held Pakistani identity documents. In his response to the NOICC the applicant claims that he has known his wife to be a citizen of Afghanistan. The delegate considered it implausible that the applicant would be unaware of his wife’s nationality,

    c.The applicant proposed his wife and children for the GSH and submitted his wife’s and daughter’s Afghan tazkeras. Subsequent to visa grant, the Department assessed the wife’s and eldest daughter’s tazkeras not to be genuine and to contain incorrect information about the wife’s grandfather. The applicant blamed the Afghan consulate but the delegate noted that the tazkeras would have been issued on the basis of self-reported information,

    d.The applicant’s marriage certificate, which was issued in October 2009, five years after the claimed date of marriage, contains a photograph of a witness who also appeared on other documents submitted to the Department under a different name. It also contains inconsistent information about the wife’s family composition. The applicant also blames the Afghan consulate and states that he had no involvement in procuring this document but the delegate concluded that the information would be based on self-reported information provided by the applicant and his wife. The delegate concluded that the marriage certificate and the wife’s and daughter’s tazkeras were manufactured to assist them with the visa applications,

    e.The applicant claims that even though his mother and siblings obtained the refugee documents from the Pakistani authorities, this was only done after his departure and he was not a documented refugee. However, country information indicates that  without documentation, refugees are excluded from accessing formal education, opening bank accounts, working legitimate jobs, owning property or vehicles, having access to utilities and healthcare. This is inconsistent with the applicant’s claims that he had completed several years of schooling. The delegate also notes that the refugee cards issued to the applicant’s mother and siblings have no expiry date and it is not possible to determine that these were issued after the applicant’s departure from Pakistan.

15. In his response to the NOICC the applicant explains the reasons why he changed his name (stating that [one of his specified names] was not favoured in Australia and also that it caused confusion with his father whose name is also [the same name]). The applicant notes that his educational documents from Pakistan confirm his identity as [Alias 1]. The applicant states that his correct name is [the applicant] and he was previously known as [Alias 1]. He was born in Jaghori, Ghazni Afghanistan. The applicant gave details of his parents (father in Australia, mother and [siblings] in Pakistan, wife and daughter in Australia). The applicant states that he provided incorrect information about his family composition in the GSH to get a favourable visa outcome and expressed remorse for his actions. The applicant denied being known by the name [Alias 2]. The applicant states that he is not related to the proposer in the GSH visa [Mr D] but there was an arrangement between that person and the applicant’s mother involving the payment of a fee for the proposal and a claim of their relationship. The applicant states that photographs were provided in support of the application but he was unaware of the arrangement and all the information was provided without his knowledge. The applicant states that he was unaware that he was included in the GSH application under a different name and it was done due to the poor security situation. The applicant states that he is not [Alias 2] and has always been consistent and truthful in his dealings with the Department.

16. The applicant acknowledges the fact that in the GSH visa, his wife’s and siblings’ tazkeras had sequential numbers despite being issued a year apart. The applicant states that he did not check the authenticity of these documents which were issued in Quetta and had no involvement with these documents. The applicant denies that his siblings, wife and daughter share the same father and states that any errors were made at the Consulate and occurred after his arrival in Australia. The applicant denies that he had never provided incorrect or inconsistent information about his family composition and identity information of his relatives. The applicant confirms that [Mr D] is not a relative and was paid for his service.

17. The applicant submits that after his arrival in Australia, he lost his tazkera and had applied for a new one which he obtained through the Afghan embassy in Canberra and it has been verified as a genuine identity document. With respect to his place of birth and places of residence, the applicant states that the information in his protection visa was correct and he had no involvement in the provision of information in the GSH visa.

18. The applicant states that he is a citizen of Afghanistan and there is no evidence that he is a citizen of Pakistan. He did not have genuine Pakistani identity documents but obtained a false passport from people smugglers prior to his departure for Australia. He claims to have resided in Pakistan as an undocumented Afghan refugee and his family obtained the refugee cards after his arrival in Australia when he wished to sponsor them for Australian visas. His father, grandfather and uncles also hold tazkeras and other Afghan documents and the country information confirms that Afghan refugees may not obtain Pakistani documents and are therefore targeted by the Pakistani authorities. The applicant referred to various country reports concerning the availability of fraudulent documents in Pakistan.

19. The applicant presented additional evidence to the Tribunal on 2 September 2021. The applicant outlined his background and immigration history. The applicant notes that he is a Hazara Shia, which has not been questioned by the delegate.

20. The applicant explained the reasons for his change of name, again stating that he believed the name [one of his specified names] was not liked in Australia and would hinder him from obtaining a job and also because there was confusion with his father’s name. The applicant notes that when he applied for the Australian citizenship, he was able to provide several identity documents including his Student card in the name of [Alias 1]. As this card predates his arrival in Australia by six years, it is strong evidence of his actual birth name and identity prior to arrival in Australia. The applicant outlined his family composition and stated that he does not have a birth mother. The claims [Ms C] does not exist and he previously included a death certificate for [Ms C] to get a positive visa outcome for his [sibling], for which he is remorseful.

21. With respect to the facial imaging report, the applicant states that he had never been known by the name of [Alias 2]. The applicant states that  in 2005 [Mr D] travelled to Pakistan. He is not related to [Mr D] but [Mr D’s] wife is a friend or a distant relative of the applicant’s mother. [Mr D] intended to sponsor the applicant’s relatives for the Australian visa and requested a payment for the service. The applicant’s mother agreed to pretend to be [Mr D’s] relatives. The applicant was unaware of this arrangement and that he had been named [Alias 2] and of the details given in that application. he was not involved with making the application and did not provide any information in support of that application. The applicant claims that such arrangements are not uncommon. He claims he only found out about the earlier application once he made the citizenship application in July 2018. The applicant claims that the inconsistencies in these applications do not undermine his identity and he had not provided any inconsistent information since arriving in Australia.

22. With respect to his wife, the applicant confirms that he sponsored his wife and [siblings] for the GSHV and states that they had approached the Afghani Consulate General in Quetta to apply for the tazkeras. The applicant does not contest that the numbers were sequential but states he was not in the position to check the authenticity of these documents and believed the Consulate would issue them with genuine documents. The applicant confirms that the tazkeras incorrectly record the fathers (in oral evidence the applicant denied that the fathers were incorrectly recorded). The applicant notes that the marriage certificate was also  obtained from the Consulate General and he had no involvement in making that document and any fault for issuing bogus document lies with the Consulate General.

23. With respect to his wife’s nationality, the applicant states that he had always known her to be an Afghan citizen and if she is not, that is not his fault. The applicant states that he had provided consistent and correct information in all his dealing with the Department concerning his identity and citizenship and had not provided incorrect or inconsistent information about his family. He had no close family members in Australia prior to his arrival and [Mr D] is not related to him at all. The applicant states that he had his tazkera upon arrival in Australia which he had misplaced and obtained a new one through the Afghan embassy. He provided consistent information about his places of residence and provided additional documents in his protection visa application.

24. The applicant states that he is a citizen of Afghanistan and there is no evidence that he had the citizenship of Pakistan and he never had genuine documents from Pakistan. He resided in Pakistan as an undocumented Afghan refugee and his family obtained refugee cards after his arrival in Australia when he intended to sponsor them for the Australian visas. The applicant states that his father, grandfather and uncles hold tazkeras (copies of which the applicant presented to the Tribunal) and evidence of land ownership (which has also been provided). The applicant states that he never held any Pakistani identity documents except when arranging his departure from Pakistan and his passport was arranged by people smugglers. That passport was not otherwise used in Pakistan. The applicant referred to country information and other information concerning the availability of fraudulent documents in Pakistan and the availability of Pakistani citizenship for Afghan refugees. The applicant also addressed in his submission the discretionary considerations.

1. In oral evidence, the applicant states that his name at birth was [Alias 1] and had always used that name. The applicant states that his father has the same first and last names and the various letters were addressed to ‘[name variant]’, so he changed his name to avoid confusion. In relation to [Alias 2], the applicant claims he only became aware of that application when he applied for the citizenship. He was shocked to see it as he was not aware of what was going on. After the interview, he asked his mother about the situation. His mother told him that a relative told them that there was a process through which they could come to Australia, they asked for his photo (which his mother produced) and he was told not to say anything to anyone. The applicant reiterated that he did not know about the application before he applied for the Australian citizenship.

2. As noted elsewhere, the Tribunal finds the applicant’s evidence unpersuasive. The applicant was about [age] years of age when the application for the GSH visa was made and he is the eldest son in the family. The Tribunal is of the view that the applicant would have been the main source of support for his mother and does not accept that his mother did not confide in him about the process. The Tribunal does not accept that the mother would produce a current passport photo of the applicant without his knowledge. The Tribunal does not accept the applicant was unaware of the GSH visa application.

3. With respect to the tazkeras, the applicant states that it was only recently that he realised that the dates were different. With respect to the death certificate of [Ms C], the applicant states that his mother was concerned about his [siblings’] safety and the only way he thought he could bring [these siblings] to Australia was to claim that their mother had died. The applicant states that he was able to obtain the false death certificate from a medical clinic through the payment of a bribe.

4. With respect to his wife’s nationality, the applicant states that he is only aware of his wife’s Afghan citizenship and he asked her again recently and she confirmed that she is a national of Afghanistan and not Pakistan. The applicant states that on the day of the interview, they arranged for another person to collect the children from school but that did not happen and his wife was worried about the children and she gave any answer to get out of the interview. The Tribunal finds that  explanation implausible. Given the significance of that interview to the wife’s visa and the family’s future – which would have been obvious to her at the time – the Tribunal is of the view that the applicant’s wife could have explained her anxiety to the interviewer or she could have sought a break, rather than provide information which is now claimed to be completely incorrect.

5. The Tribunal has formed the view that the applicant is not a person of credibility. The Tribunal places significant weight on the following matters

   a.The applicant’s denial that he was known by another name, given the facial recognition report which establishes that the applicant did previously made an application under another name. Although the applicant claims he was not involved in that application, the Tribunal does not accept that he was unaware of it being made. The applicant was a young adult at the time the application was made and the Tribunal does not accept that he was entirely unaware of what was contained in it. The Tribunal considers the facial comparison report to be probative and persuasive and finds that the applicant did make an application in a different name. The Tribunal places greater weight on the findings of a facial recognition comparison than the applicant’s denial which the Tribunal finds to be untruthful.

   b.The applicant’s admission that he had previously claimed [Ms C] to be deceased and the provision of a bogus death certificate. It is important, in the Tribunal’s view, that according to the primary decision record, when the applicant was interviewed in relation to another migration matter, he denied that the death certificate was a bogus document and only in response to the NOICC he admitted that it was a bogus document. That is, the applicant had deliberately provided a false answer in his interview with an immigration officer, in addition to the provision of false information about [Ms C’s] death and the bogus death certificate.

   c.In oral evidence the applicant told the Tribunal that he was worried about his [siblings’] safety and that is the reason he claimed their mother passed away and he obtained a false death certificate through a bribe. The applicant appears to suggest that personal circumstances justify the provision of incorrect answers and bogus documents.

   d.The Tribunal is also mindful that other bogus documents had been submitted in various applications, including tazkeras relating to the applicant’s wife and daughter, as described above. The applicant appears to suggest that all fault lies with the issuing authority and that he had no involvement but the Tribunal does not accept this evidence. As the delegate points out, these documents would have been issued on self-reported information and the Tribunal does not accept the applicant had no involvement in providing this information. Further, the applicant would have been aware, by simply looking at these documents, that they contained incorrect information, yet he chose to submit these anyway, instead of seeking correction.

   e.The applicant failed to disclose significant information in his protection visa, for example, the fact that he had previously made an application for an Australian visa in a different name. Whether or not the applicant had much (or any) involvement in the previous application and the deliberately false claims about the relationship between his family and the proposer and his family composition, the Tribunal is of the view that the applicant was aware that such an application was made, yet he failed to refer to it when asked about his previous visa application.

6. In the Tribunal’s view, the applicant’s actions show his willingness to provide untruthful information and bogus documents when it suits his circumstances and when he believes it would assist him and his family members in obtaining visa.

7. The primary decision record indicates that multiple bogus documents had previously been submitted either by the applicant or his family members in various dealings with the Department. This includes evidence the claimed relationship between the applicant’s family and the proposer in support of the GSHV (the applicant now claims that a fee was paid to the proposer to claim there was a relationship where one did not exist), various tazkeras for family members and [Ms C’s] death certificate. Given the extent of the untruths that had been prepared in the applicant’s and his family’s past dealings with the Department, the Tribunal has formed the view that none of the evidence the applicant now presents can be considered reliable or truthful.

8. The Tribunal finds that the applicant is not a person of credibility and that his evidence is unreliable. The applicant told the Tribunal that he would not risk his family’s and his children’s future by providing incorrect information but the applicant did provide incorrect information and bogus documents in the past when he believed it would suit his circumstances and the Tribunal does not accept that he is unwilling or incapable of doing that again.

9. However, the issue here is not the provision of incorrect information or bogus documents. If the present cancellation was made under s.109 for breaches of s. 101 or s. 103 of the Act, the Tribunal may form the view that the grounds for cancellation exist because of the matters noted above. But that is not what the present cancellation is. The issue here is not the applicant’s answers on the form or the submission of bogus documents. The issue here is the applicant’s identity and in the Tribunal’s view, the legislation poses a very high threshold to establish that that ground for cancellation exists.

10. The Tribunal also notes that many of the issues raised above do not necessarily reflect on the applicant’s identity. Thus, his wife’s citizenship status, while relevant to the assessment of the applicant’s credibility, is not relevant in the Tribunal’s view to establishing the applicant’s identity. Whether the applicant had provided a bogus death certificate in the past or bogus tazkeras in relation to his wife and siblings, are similarly relevant to the applicant’s credibility but not necessarily to his identity. The key concern relating to the applicant’s identity appears to be the fact that he had previously applied for a visa under a different name and disclosed different date and place of birth and family composition. The applicant has explained this by stating that this was an arrangement proposed by another person who intended to sponsor the family to obtain the Australian visas in return for payment. In the Tribunal’s view, that is a plausible explanation. Importantly, there is nothing before the Tribunal to suggest that personal and identity documents submitted in support of that earlier application had been verified as being genuine (that is, that the applicant was previously known by a different name and date of birth). It is therefore possible that the information in the first application was false and arranged for the purpose of obtaining the visas.

11. The Tribunal acknowledges a number of Australian identity documents presented by the applicant but considers these unhelpful because these were issued on the basis of the applicant’s own claims as to his identity and without any verification or assessment of his identity.

12. Importantly, however, the applicant has presented a Tazkera which has been verified as being genuine. The applicant told the Tribunal that he lost the original tazkera when moving house and he approached the Afghan Consulate to obtain the new tazkera on the basis of his father’s tazkera. He provided the identity documents to a relative in Afghanistan who approached the authorities in Afghanistan to obtain the replacement tazkera. The applicant’s evidence is that he had been identified through formal documentation before he was able to obtain the tazkera and the applicant presented evidence that the tazkera is a genuine document. The applicant also presented the tazkeras for his father and grandfather, which appear to support his evidence concerning his identity. The applicant also presented contemporaneous schooling records which confirm his use of the same name that was used in the protection visa application and predate the application for the GSHV.

13. On balance, the Tribunal is prepared to accept that the information in the GSHV was incorrect and arranged to facilitate the family’s migration to Australia. The Tribunal has formed the view that the multitude of other concerns may give rise to a ground for cancellation under s. 109 but do not affect the issue of the applicant’s identity. Having regard to the applicant’s tazkera, and the identity documents of his immediate family, the Tribunal is satisfied that the applicant’s identity is [the applicant], previously known as [Alias 1]. In such circumstances, the ground for cancellation does not arise.

14. However, if the Tribunal was wrong in these findings, and if there was a ground for cancelling the applicant’s visa, for the reasons set out below, the Tribunal would exercise its discretion in favour of the applicant.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

16. The applicant travelled to Australia to seek protection and had been granted a protection visa. While the applicant’s identity has been questioned, the basis of his protection visa claims has not. The Tribunal finds that  the circumstances which led to the grant of the protection visa to the applicant, and the present situation in Afghanistan (set out below), constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

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

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

18. The applicant states that due to the stress and anxiety associated with the visa process, their child was born with a disability and is being kept alive through medical intervention that may not be available to the child otherwise.

19. The applicant states that his daughter has been offered a scholarship for gifted students but was unable to accept because of her visa status. His younger daughter sat an exam for a private school but was unable to proceed because of her visa status. The Tribunal is prepared to accept that evidence.

20. The applicant states that as Hazaras they cannot return to Afghanistan where they may be killed. The applicant’s evidence is that the family have no right to live in Pakistan, so the family would have to return to Afghanistan. Two of his children are Australian citizens.

21. The applicant told the Tribunal that he was working as [an occupation] but due to the cancellation of his visa, he has been unable to work, which resulted in financial hardship. The applicant refers to the payment of the mortgage and states that it is difficult for him to meet his financial obligations if he cannot work.

22. The Tribunal accepts that if the cancellation of the visa was to result in the family having to depart Australia, that would cause significant hardship to the family. However, the Tribunal is also mindful that the cancellation of the visa would necessarily result in the family having to depart Australia.

    Circumstances in which ground of cancellation arose.

23. The ground for cancellation arises because there is no satisfaction as to the applicant’s identity.

    Past and present behaviour of the visa holder towards the department

24. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

25. There are no persons who would be subject to consequential cancellation. The visas held by the applicant’s spouse and children have been cancelled through a separate process.

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

26. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention although there would be very limited types of visas he can apply for onshore. (The limitations apply primarily because of the mode of the applicant’s arrival in Australia rather than the present cancellation.) The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have been entitled to as a permanent resident of Australia.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

27. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

28. The applicant states that as a Shia Hazara, he has no future and no safety in Afghanistan and Pakistan and his children would have no opportunities. The applicant refers to the threat to Hazaras from the Taliban and states that his daughters would have no future and would be unable to achieve their aspirations. The applicant also states that he has been living outside of Afghanistan for most of his life, first in Pakistan and then in Australia and would be considered as an infidel by the Taliban.

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

30. In an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, 'Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action' the authors state neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can't 'erase the freedoms that women have earned'. Ultimately, economic prosperity is critical as, 'This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school'.

31. NBC News referenced a U.S. Defense Intelligence Agency report that provides some insight into the capabilities of the Taliban:

    The report cited analysis from the Defense Intelligence Agency saying that from Jan. 1 through March 31, 2021, the Taliban's military strategy was to prepare for large-scale offensives against provincial centers, complex attacks against the Afghan National Defense and Security Forces' bases, and degrading the Afghan forces' capabilities.

32. In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan provinces to prepare these offensives, and they continued assassinating government employees, security officials, and journalists, the report says.

33. Citing information from the Defense Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened. At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defense Intelligence Agency reported that these offensives 'did not accomplish anything of strategic value'.

34. The United States has indicated that it will be expediting U.S. visa processing for Afghans who were employed by the U.S. government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the U.S. Special Envoy for Afghanistan was reported as sharing 'the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for U.S. troops and diplomats. He said the Biden administration was working to expedite applications for U.S. visas under a program designed for Afghans who were employed by the U.S. government'. The Australian government has closed its embassy in Afghanistan prior to the withdrawal of U.S. troops. Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

1. It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan's constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

2. The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn.

   Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, 'While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazara as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way'… For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

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

4. Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.

5. There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, 'In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the 'foreign infidel powers' and their 'puppet regime'. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban's overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group's strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras. The author then concludes by believing that 'Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow'.

6. In another assessment of the Taliban's claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks 'there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks'. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al-Qaeda to appreciate the view towards minorities such as the Hazara.

7. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara.

8. However, the Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

9. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation. However, the Tribunal also acknowledges that if the applicant is not able to remain in Australia, his return to Afghanistan may result in the applicant facing a real chance of persecution or a real risk of harm.

10. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of his Hazara ethnicity and his Shia religion. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

11. The applicant has four minor children, aged [age], [age], [age] and [age]. With respect to the best interests of his children, the applicant claims that his children would have no future in Afghanistan. His daughters are good students and want to continue with their education which they would be unable to do in Afghanistan. The Tribunal accepts, having regard to the country information cited above and other materials, that the applicant’s daughters would have more limited opportunities in Afghanistan compared to what they may do in Australia. The Tribunal also accepts that the youngest child requires ongoing medical support which he presently receives from an Australian hospital. The Tribunal acknowledges and such support may be unavailable, or available to a lesser degree in Afghanistan.

12. Having regard to these circumstances, the Tribunal has formed the view that  it is in the best interests of the four children to remain in Australia and therefore that the applicant’s visa should not be cancelled (noting that due to their young age, the Australian citizen children would accompany their parents if the parents were required to leave Australia).

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

13. The applicant’s two younger children are Australian citizens. His wife and two elder children had their visas cancelled. The applicant has some family ties in Australia. the Tribunal also accepts that the applicant has been living in Australia for a number of years and has formed considerable business and social ties in this country.

14. The Tribunal has considered the totality of the applicant’s circumstances. As noted above, the Tribunal is not satisfied the ground for cancellation has been established but even if it exists, the Tribunal would exercise discretion in favour of the applicant.

15. The Tribunal has formed the view that the cancellation of the visa would cause significant hardship to the applicant and his family. This is particularly so as the basis for the grant of the protection visa has not been undermined by the past provision of incorrect information and bogus documents, nor by any issues concerning the applicant’s identity. The country information also suggests that the applicant and his family may be subjected to harm or persecution as Hazaras upon return to Afghanistan (although the Tribunal is mindful that the cancellation of the visa need not result in the family having to depart Australia).

16. The Tribunal has also found that it is in the best interests of the applicant’s four minor children to remain in Australia and therefore that the applicant’s visa should not be cancelled to enable him to remain in Australia to support the children. This is a primary consideration.

17. The Tribunal places significant weight on the fact that the applicant’s youngest child requires ongoing medical support that may not be available to him in Afghanistan. The Tribunal also accepts the applicant’s evidence that his daughters would have much more limited opportunities if they were to depart Australia and live in Afghanistan.

18. The Tribunal accepts that the applicant has been living in Australia for a lengthy period and has settled in this country. He has formed ties to this country. These factors weigh against the cancellation.

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

    DECISION

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

    Kira Raif
    Senior Member