2104741 (Refugee) - [2021] AATA 3961

2104741 (Refugee) [2021] AATA 3961 (13 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2104741

COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Michael Hawkins AM
DATE OF ORAL DECISION:  13 August 2021
TIME OF ORAL DECISION:  10.26am (QLD time)
DATE OF WRITTEN STATEMENT:         30 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 30 August 2021 at 1:44pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information in the visa application – nationality – Pakistan citizenship – identity and age details – religion – Shia – race – Hazara – unaccompanied Hazara Shia minor – torture – fear of killing – employment – restrictions and attacks on Hazara Shias in Pakistan – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101, 107, 109
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with sections 101(a) and 101(b) of the Act in respect of answers he had provided in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, [Friend A].
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal gave its decision on the review at the conclusion of the hearing on 13 August 2021. The following are the reasons for that decision.
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 visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
What are the issues before the Tribunal?
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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
Section 107 is only engaged if the Minister or delegate considers that the applicant has not complied with one of the provisions mentioned in s.107(1). If a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the applicant has not complied with one or more of the relevant provisions.
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?
What were the particulars of the non-compliance set out in the notice?
On 2 October 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with sections 101(a) and 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects:
Particulars of the possible non-compliance:
[In] May 2010 you arrived on Christmas Island as an irregular maritime arrival (IMA).
On 22 June 2010 you were interviewed by a departmental officer with the assistance of an interpreter in the Hazaragi language.
During this interview you identified yourself as [Alias 1] and stated the following claims:
·You were born in Ghazni, Afghanistan on [DOB 1].
·You are a citizen of Afghanistan and hold no other right of residence or citizenship in any other country.
·You illegally entered and resided in Pakistan as an undocumented person in 2000 and illegally departed in 2010 making your journey to Australia.
·Your father’s name is [Father B name variant] and your mother’s name is [Mother C].
·You identify as Hazara and you are a Shia Muslim.
·Your father is missing and you suspect he was taken by the Taliban and may have been killed. You cannot return to Afghanistan because you fear suffering the same fate as your father who was killed by the Taliban. You have nothing left in Afghanistan.
·In Pakistan, you were beaten and tortured (stabbed with a knife) by the Balochi people because you are Hazara and a Shia Muslim.
On 22 February 2011 you lodged a Form 866 – Application for a Protection (Class XA) visa. This application included the following components which you completed in full.
·Part B – Persons included in this application and family composition.
·Part C – Application for an applicant who wishes to submit their own claims to be a refugee.
Your name is listed on this application as [Alias 1]. You provided your date of birth as [DOB 1] in answer to question 7 of part C of the Form 866.
Also at question 7 of part C of the Form 866, you listed that you were [age] years of age (at the time you lodged the application for a Protection visa).
You provided information as an attachment to part B of the Form 866 in answer to question 19 where you were asked to provide information about your parents. In the attachment titled ‘Family Composition’ you listed your father’s name as [Father B] and that he is missing or presumed dead since 2001. You listed your father’s citizenship as ‘Afghan’.
You also listed your mother’s name as [Mother C variant], your sister [name] and your brother [name]. You listed their citizenship as ‘Afghan’.
You provided a statement in a Statutory Declaration dated 24 October 2010 as part of your Refugee Status Assessment (RSA). This statement was also referenced in your Protection visa application. Your claims are set out below:
·Your family originates from the Jaghori district in the Ghazni province in Afghanistan. You belong to a Hazara family and you are the eldest of your siblings ([age] years of age).
·You recall your father was a labourer and he owned land in [Area 1], Afghanistan.
·You fled Afghanistan because of the Taliban. Your father was taken by the Taliban. You suspect your mother had paid someone to take you and your family to Quetta, Pakistan where you continued to live undocumented (illegally) for 10 years until 2010.
·Your mother’s landlord (in Quetta) assisted you to enrol in a school where you completed nine years of schooling.
·Your father escaped the captivity of the Taliban and came to Quetta when he found out you, your mother and your siblings had all gone to Pakistan. He remained with you in Quetta for one month before he returned to Afghanistan. You claimed he never returned to Quetta.
·You undertook part-time work as [an Occupation 1] however you were subjected to beatings by the ‘Balochi’ employees because of your religion and being the only Hazara employed with the business. You decided to leave your employment because of the harassment, and you were unable to find any other work.
·You cannot go back to Afghanistan because you fear the Taliban (who may have killed your father) and that as a ‘young boy’ (minor) you have no remaining family support or protection in Afghanistan.
In your application for a Protection visa you provided the following answers to the below listed questions:
At question 4 of part C of the Form 866, which asked “What other names have you been known by?” you did not provide an answer to this question.
At question 19 of part C of the Form 866, which asked “Your citizenship at birth?” you did not provide an answer to this question.
At question 20 of part C of the Form 866, which asked “Your current citizenship” you answered, “N/A”.
At question 21 of part C of the Form 866, which asked “Do you hold any other citizenship or are you a national of any other country?” you indicated your answer by placing a tick in the checkbox marked ‘No’.
At question 22 of part C of the Form 866, which asked “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” you indicated your answer by placing a tick in the checkbox marked ‘No’.
At question 23 of part C of the Form 866, which asked “if you are stateless, how, when and why did you lose your citizenship?” you answered, “N/A”.
At question 41 of part C of the Form 866, which asked “I am seeking protection in Australia so that I do not have to go back to?” you answered, “Afghanistan”.
As part of the Refugee Status Assessment (RSA) you provided a Statutory Declaration dated 24 October 2010. You referred to this Statutory Declaration in your application for a Protection visa in the below listed questions of part C of the Form 866.
At question 42 of part C of the Form 866, which asked “Why did you leave that country?” you answered, “See statement attached to RSA application”.
At question 43 of part C of the Form 866, which asked “What do you fear may happen to you if you go back to that country?” you answered, “See statement attached to RSA application”.
At question 44 of part C of the Form 866, which asked “Who do you think may harm/mistreat you if you go back?” you answered, “See statement attached to RSA application”.
At question 45 of part C of the Form 866, which asked “Why do you think this will happen to you if you go back?” you answered, “See statement attached to RSA application”.
At question 46 of part C of the Form 866, which asked “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” you answered, “See statement attached to RSA application”.
Your Protection visa was granted on 23 February 2011, on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugee Convention. You claimed that you could not return to Afghanistan because you were a minor with no remaining family support in Afghanistan. You feared persecution or death by the Taliban who you claimed had captured and possibly killed your father in Afghanistan. You also stated you could not return to Pakistan because you were harassed, and on occasion beaten, by the Balochi employees at your workplace. They harassed you because you were Shia, undocumented and because you were the only Hazara employed by the business.
These claims were fundamental to the determination that you are a person to whom Australia has protection obligations. Notably, in the decision to grant you a Protection visa, the delegate considered:
“The claimant is [an age] year old boy of Hazara ethnicity and Shia religion. He fled to Pakistan with his family when he was [age] years old after his father was taken by the Taliban. He is the eldest male in his family. The claimant fears that he would be harmed in Afghanistan by the Taliban or other Pashtuns because he would be Hazara and Shia. He fears he will be at greater risk because he is a minor, he has not lived there since he was [age] years old, he has no links or support in Jaghori and he will be imputed, as a Hazara, to support the Government. He would have no employment in Jaghori and expects he would have to travel out of Jaghori to obtain an income, thereby increasing the risk of harm from the Taliban, Pashtuns or other anti-government elements.
…
with the Taliban undisputedly controlling the roads around Jaghori; with the drought and limited economic opportunities forcing residents to travel for income; with word spreading about persons returned from Australia; and with children particularly vulnerable to exploitation and abuse – I consider that an unaccompanied Hazara Shia minor returning to Jaghori alone after 11 years, without any links or support and attempting to find an income and a home has a real chance of suffering serious harm because he is an unaccompanied minor, because he is a Hazara Shia and because of his imputed support for the government.
Although there is no campaign to target Hazaras, and although the Taliban are not acting effectively within Jaghori itself, they are controlling the roads in and out of the area. There is more than a remote chance (and it is not far-fetched) that a young Hazara Shia returning alone to an area surrounded by Taliban without any links or shelter and seeking an income, in the lead up to an election, would face serious harm because of his vulnerable age, imputed political opinion, ethnicity and religion
…
The claimant is an uneducated, minor who has never lived in Kabul and has no connections there. Whilst it might be acceptable to expect an adult Hazara to relocate and assimilate in Kabul, the delegate does not consider it reasonable or acceptable to expect a minor to relocate and assimilate into a city for which he has no family ties nor support networks”
The delegate accepted your claims that you were a citizen of Afghanistan, a minor, and that you did not have a right to enter or reside in any other country. The delegate was satisfied you had a real chance of suffering persecution and therefore you could not return to Afghanistan.
On 10 July 2017 and in support of your application for Australian citizenship, you provided a Pakistan National Identity card (Number: [PNIC 1]) to the Department. The identity card contains your photograph and listed your name as [the applicant] (date of birth [DOB 2]).
Your Pakistan National Identity card is evidence you are a citizen of Pakistan and suggests you were not a minor ([age]) as claimed in your Protection visa application or at the time of your arrival on Christmas Island in 2010. Your Pakistani National Identity card shows you are also known by another name which you failed to disclose to the Department in your application for a Protection visa. Further, as a citizen of Pakistan, you do have a right to enter and remain in Pakistan with full access to the rights and privileges as a citizen, as well as, the safety and protections of the Pakistani government as afforded to its citizens.
You provided your father’s Pakistan National Identity card (Number: [PNIC 2]) which lists his name as [Father B] (date of birth: [DOB 3]). Your father’s identity card was issued [in] 2014. Your father’s Pakistan National Identity card is evidence your father is a citizen of Pakistan. According to part 14 of the Pakistan Citizenship Act 1951, dual citizenship or nationality is not permitted in Pakistan.¹ Therefore your father is not a citizen of Afghanistan as claimed in your application for a Protection visa. Your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan which raises the possibility he was not captured by the Taliban or had disappeared as you had claimed in your application for a Protection visa. It is also apparent that your father’s name is not [Father B] as claimed in your Protection visa application.
You provided your mother’s and your brother’s Pakistan National Identity cards which are evidence they are also Pakistani citizens. As Pakistani citizens, you and your family would not have ‘illegally’ entered Pakistan as undocumented persons after you claimed to have fled the Taliban in Jaghori, Afghanistan. According to part 6, 7 and 8 of the Pakistan Citizenship Act 1951, the provisions by which a person can acquire Pakistani citizenship (although possible) are restrictive and largely dependent on that person’s, or their father’s or grandfather’s, history of residing in or migrating to the territories now included in Pakistan before January 1952.
According to part 6 of the Pakistan Citizenship Act 1951, acquiring Pakistani citizenship through migration requires a person to have migrated to the territories (now included in Pakistan) from any territory in the Indo-Pakistan sub-continent, with the intention of residing permanently in those territories prior to January 1952.²
This suggests you and your family are more likely to have acquired Pakistani citizenship by birth or descent. It appears highly unlikely that you have since acquired Pakistani citizenship after illegally entering Pakistan as claimed in your Protection visa application. As you and your family are confirmed to be Pakistani citizens, it is reasonable to assert that you and your family would not have required the assistance of your mother’s landlord to obtain enrolment for you in a school, nor would you have had any legal limitation precluding you from employment in Pakistan.
As you claimed to have been an undocumented non-citizen in Pakistan, the delegate in deciding to grant you a Protection visa assessed your protection claims in reference to Afghanistan.
It is apparent that you were an adult at the time of your arrival in Australia and that all your family members are documented Pakistani citizens. Together with the evidence that your father is alive, suggests your claims for a Protection visa were not correct. As a citizen of Pakistan, it is apparent you have a right to enter and reside in Pakistan with the effective protection of the Pakistani government as is afforded to all other Pakistani citizens, and this was the case at the time you applied for your Protection visa.
On the basis of the above evidence, I consider that at the time of lodging your application for a Protection visa you were a documented citizen of Pakistan and therefore your claims for a Protection visa, that you fled Afghanistan in fear of the Taliban, were not correct.
Non-compliance with s.101(a)
I consider that you have not complied with section 101(a) of the Migration Act because in support of your Protection visa application and in order to satisfy the legislative requirements for the grant of a visa, you did not provide an answer to the following questions.
You did not provide an answer to question 4 of part C of the Form 866 where you were asked “What other names have you been known by?” This information is relevant to your Protection visa application because you are known as [the applicant] which appears to be your true and correct name which was not disclosed at the time you applied for a Protection visa.
You did not provide an answer to question 19 of part C of the Form 866, where you were asked “Your citizenship at birth?” This information is relevant to your Protection visa application because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.
Non-compliance with s.101(b)
I consider that you have not complied with section 101(b) of the Migration Act because in support of your Protection visa application and in order to satisfy the legislative requirements for the grant of a visa, you provided incorrect information to the Department.
Specifically, I consider that you have provided incorrect information in the application form in the following manner:
At question 1 of part C of the Form 866 where you were asked “what is your full name?” you answered [Alias 1]. This information is incorrect because your true and correct name is [the applicant] as is listed on your Pakistani National Identity card (Number: [PNIC 1]).
At question 7 of part C of the form 866, you listed that you were born on [DOB 1] ([age] years of age at the time you completed and lodged the application for a Protection visa). This information is incorrect because your correct date of birth is [DOB 2] as is listed on your Pakistani National Identity card (Number: [PNIC 1]). Therefore, you were not a minor as claimed at the time of your arrival on Christmas Island and in the Form 866.
You answered “N/A” to question 20 of part C of the Form 866, where you were asked “Your current citizenship” This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.
At question 21 of part C of the Form 866, you answered ‘No’ to the question which asked, “Do you hold any other citizenship or are you a national of any other country?” This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.
At question 22 of part C of the Form 866, you answered ‘No’ to the question “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” This information is incorrect because you are a citizen of Pakistan and therefore you do have a right to enter and reside in Pakistan.
At question 41 of part C of the Form 866, where you were asked “I am seeking protection in Australia so that I do not have to go back to?” you answered “Afghanistan”. This information is incorrect because you are a citizen of Pakistan and were so at the time of lodging your application for a Protection visa.
At question 42 of part C of the Form 866, where you were asked “Why did you leave that country?” you answered “See statement attached to RSA application”. In your statement, you claimed you and your family fled Afghanistan during a period when the Taliban were active in your (claimed) home district of Jaghori. You claimed that your father was later taken and presumed to have been killed by the Taliban when he returned to work on his land in [Area 1]. Fearing the same fate as your father in Afghanistan, as well as experiencing harassment and a lack of suitable employment opportunities in Quetta, you decided to leave Pakistan. This information is incorrect because you and your family (including your father) are documented citizens of Pakistan and therefore you and your family are not citizens of Afghanistan as claimed in your application for a Protection visa. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, it raises the possibility he was not captured and killed by the Taliban in 1999 or, ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.
At question 43 of part C of the Form 866, where you were asked “What do you fear may happen to you if you go back to that country?” you answered “See statement attached to RSA application”. In your statement, you claimed you and your family fled Afghanistan during a period when the Taliban were active in your claimed home district of Jaghori. You claimed that your father was later taken and presumed to have been killed by the Taliban when he had returned to work on his land in [Area 1]. You claimed you fear returning to Afghanistan because the Taliban had captured and killed your father and as “a young boy” ([age] years old at the time) you claimed you had no remaining family in Afghanistan to protect you against the Taliban.
This information is incorrect because your Pakistani identity documents indicate that you were born on [DOB 2] and therefore you were not a minor at the time of lodging your Protection visa application. Further, you and your family (including your father) are citizens of Pakistan and therefore you and your family are not citizens of Afghanistan as claimed. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, it raises the possibility he was not captured by the Taliban in 1999 or ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.
At question 44 of part C of the Form 866, where you were asked “Who do you think may harm/mistreat you if you go back?” you answered “See statement attached to RSA application”. In your statement, you stated you would suffer the same fate as your father who you claimed was captured and possibly killed by the Taliban in Afghanistan. This information is incorrect because your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan. This is credible evidence that your father is alive and raises the possibility he was not captured by the Taliban in 1999 or, had disappeared as claimed in your application for a Protection visa. You and your family (including your father) are documented citizens of Pakistan. Your family continue to reside in Pakistan as documented citizens. Therefore you would not be captured or killed, or face persecution by the Taliban in Afghanistan.
At question 45 of part C of the Form 866, where you were asked “Why do you think this will happen to you if you go back?” you answered “See statement attached to RSA application”. In your statement, you claimed you would be captured or killed by the Taliban because your father was captured and presumed to have been killed by the Taliban in Afghanistan. You claimed that as “a young boy” ([age] years old at the time) you had no remaining family in Afghanistan to protect you against the Taliban. As noted earlier in this Notice, this information was central to the delegate’s decision to grant you a Protection visa. This information is incorrect because you are a citizen of Pakistan and were not a minor as claimed at the time of lodging your Protection visa application. Your family continue to reside in Pakistan as documented citizens. On the basis that your father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan, this raises the possibility he was not captured by the Taliban in 1999 or ‘had never since returned from Afghanistan’, as claimed in your application for a Protection visa.
At question 46 of part C of the Form 866, where you were asked ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?” you answered “See statement attached to RSA application”. In your statement, you claimed the authorities of Afghanistan could not protect you from the Taliban. In addition, you claimed that as “a young boy” ([age] years old at the time) you had no remaining family in Afghanistan to protect you. This information was central to the decision to grant you a Protection visa. This information is incorrect because you are a documented citizen of Pakistan and you were not a minor as claimed at the time of lodging your Protection visa application. Your family continue to reside in Pakistan as documented citizens.
The incorrect information you appear to have provided in your Protection visa application was material to the decision to grant your Protection visa and therefore it is likely you may not have engaged Australia’s protection obligations.
Consequently, I consider that you have not complied with section 101(a) and 101(b) of the Act because you have not provided answers to all questions and it appears that you have provided incorrect information to the above listed questions in your Protection visa application.

The delegate notes in the NOICC that he considered that the applicant has not complied with s.101(a) of the Act as he did not provide answers to questions 4 and 19 of the Form 866C of his protection visa application.
The delegate also notes in the NOICC that he considered that the applicant has not complied with s.101(b) of the Act as he has provided incorrect answers to questions 1, 7, 20 to 22 and 41 to 46 of the Form 866C of his protection visa application.
If the applicant has failed to fill in his application form in such a way that no incorrect answers are given or provided, his visa may be cancelled. The NOICC notes that by failing to comply with sections 101(a) and 101(b) of the Act, the applicant’s XA 866 visa is liable for cancellation under s.109 of the Act
NOICC Response
The applicant responded to the NOICC through his representative on 16 October 2019. The delegate summarised the applicant’s response as follows:
The visa holder’s migration agent advised that the visa holder has provided incorrect information in relation to his identity in his Protection visa application form. The visa holder has advised in his own statement attached to his agent’s response that his correct name is [the applicant] and he was born in Pakistan on [DOB 2]. He is a citizen of Pakistan and has never previously travelled to Afghanistan. The visa holder has confirmed his identity by providing his Pakistani National Identity card (Number: [PNIC 1]) and his Pakistani Birth Certificate (Number [PBC 1]) in response to the Notice. The visa holder expressed remorse for providing incorrect information in relation to his identity and has provided documentary evidence in support of his correct identity.
The applicant submitted the following reasons why the visa should not be cancelled (as summarised by the delegate):
·The visa holder was [age] years old, alone and in a position of extreme vulnerability at the time of his arrival.
·Prior to his arrival, the visa holder was living with his parents in Pakistan and studying a [Course 1] at University. He also had an apprenticeship position at [an Occupation 1] shop.
·The visa holder was harassed, bullied and physically assaulted by local Baluch and Pushtun people while working at the [an Occupation 1] shop. The visa holder suffered an injury to his [body part] as a result of an attack.
·The visa holder felt unsafe and had to disguise himself as a Baluch or Pushtun person by wearing a turban to avoid harassment while travelling to his technical college.
·The visa holder’s friend was killed in a bomb blast while out walking in Quetta, Pakistan.
·It was not safe for the visa holder’s father to travel outside the Hazara enclaves to find work to support the family. The visa holder’s father told him to go to Australia for work to assist the family financially. The visa holder’s father approached a people smuggler and organised for the visa holder to travel to Australia. The visa holder’s parents sold jewellery and borrowed money to pay the people smuggler.
·The visa holder felt he was responsible for repaying his parent’s debt.
·The visa holder did not intend to provide incorrect information about his claims for a Protection visa. However, he was advised by the people smuggler that there were no guarantees of being accepted as a refugee in Australia. The people smuggler suggested the visa holder should say he was from Afghanistan and to say he was [underage] years old. The people smuggler assisted the visa holder to fabricate a story because the visa holder knew nothing about Afghanistan.
·The visa holder felt guilty about providing incorrect information to the Department however once he had given incorrect information, he felt he had to continue with his false claims and his false identity. The visa holder was fearful that if he told the truth he would be sent back to Pakistan.
·The visa holder is employed in Australia as [an Occupation 2] and has a good rapport with his employer and co-workers.
·The visa holder submits that although he had provided incorrect information in relation to his identity and Protection claims in relation to Afghanistan, his claims in relation to his Hazara ethnicity and persecution in Pakistan would likely have been accepted. The visa holder’s migration agent submits the following in relation to this claim;
‘…had he told the truth about his identity and claims at the time of his arrival in Australia, as a Pakistani Hazara and Shia Muslim, he would almost certainly have been found to be owed protection. The information was overwhelming during the period 2009 -2011 that Hazaras in Pakistan and in particular in Quetta, were being targeted for persecution’.
·The visa holder requests that his visa not be cancelled and that he is given another opportunity to remain in Australia.
The applicant had submitted the following documents to the Department:
·Submission dated 17 October 2019 by migration agent [named];
·Statutory Declaration by [the applicant] dated 16 October 2019;
·Pakistani Passport issued to [the applicant] (Passport Number [specified]);
·Pakistani Birth Certificate issued in the name of [the applicant];
·Electronic file titled ‘Local Residence Certificate’ containing a copy of an untranslated document displaying the visa holder’s photograph and his Pakistani National Identity card number [PNIC 1], signed by the Executive District Officer, Quetta (Pakistan);
·Employment letter issued to [Alias 1 variant] for [Employer 1] dated 24 October 2019;
·Character Reference letter dated 25 October 2019 in relation to [Alias 1 variant] and signed by the visa holder’s manager [named] of [Employer 1];
·Medical referral letter dated 10 April 2012 regarding treatment for [Alias 1 variant]; and
·[Agency 1] card issued to [Alias 1 variant].
Departmental decision to cancel the applicant’s visa under s.109 of the Act
The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 31 March 2021. The Department did not interview the applicant.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to provide an answer to certain questions and failed to give correct information regarding his identity and protection claims in Form 866C of his protection visa application. The Department made the following findings:
In relation to section 101(a) the visa holder did not provide an answer to question 4 and 19 of part C of the Form 866, which asked (Q4) ‘What other names have you been known by?’ and (Q19) ‘Your citizenship at birth?’. Therefore, I consider the visa holder has not complied with section 101(a) of the Act because the visa holder did not provide an answer to question 4 and 19 of part C of the Form 866. I consider the visa holder did not provide a response to these questions in order to avoid providing details of his true name and true citizenship, which would have contradicted his claimed identity as an Afghan minor under a different name.
On 10 July 2017 the visa holder provided a Pakistani National Identity card (Number: [PNIC 1]) to the Department. The identity card displays his name as [name] (date of birth: : [DOB 2]).
I consider the Pakistani National Identity card is evidence the visa holder is a citizen of Pakistan and further suggests he was not a minor ([aged]) as claimed in his Protection visa application. The visa holder’s Pakistani National Identity card shows he is also known by another name which the visa holder has not disclosed to the Department in his application for a Protection visa.
Furthermore, as a citizen of Pakistan, the visa holder does have a right to enter and remain in Pakistan with full access to the rights and privileges as a citizen, as well as, the safety and protections of the Pakistani government as afforded to its citizens.
The visa holder also provided his father’s Pakistan National Identity card (Number: [PNIC 2]) which lists his name as [Father B] (date of birth: [DOB 3]). The visa holder’s father’s identity card was issued [in] 2014. His father’s Pakistan National Identity card is evidence the visa holder’s father is a citizen of Pakistan. According to part 14 of the Pakistan Citizenship Act 1951, dual citizenship or nationality is not permitted in Pakistan. Therefore, as a Pakistani citizen, his father cannot also be a citizen of Afghanistan as claimed in the visa holder’s application for a Protection visa. The visa holder’s father’s identity card was issued in 2014 and lists his ‘country of stay’ as Pakistan which confirms he was not captured by the Taliban or had disappeared in contradiction to what the visa holder had claimed in his application for a Protection visa. It is also apparent that the visa holder’s father’s name is not [Father B] as claimed in the visa holder’s Protection visa application.
The visa holder also provided his mother’s and his brother’s Pakistani National Identity cards which are evidence they are also Pakistani citizens. As Pakistani citizens, the visa holder and his fa mily would not have ‘illegally’ entered Pakistan as undocumented persons after he claimed to have fled the Taliban in Jaghori, Afghanistan. As the visa holder and his family are confirmed to be Pakistani citizens, it is reasonable to assert that the visa holder and his family would not have required the assistance of the visa holder’s mother’s landlord to obtain enrolment in a school, nor would the visa holder have had any legal limitation precluding him from employment in Pakistan.
As the visa holder claimed to have been an undocumented non-citizen in Pakistan, the delegate in deciding to grant a Protection visa assessed the visa holder’s protection claims in reference to Afghanistan.
It is apparent that the visa holder was an adult at the time of his arrival in Australia and that all his family members are documented Pakistani citizens. Together with the evidence that the visa holder’s father is alive, suggests the visa holder’s claims for a Protection visa were not correct. As a citizen of Pakistan, it is apparent the visa holder has a right to enter and reside in Pakistan with the effective protection of the Pakistani government as is afforded to all other Pakistani citizens, and this was the case at the time he applied for his Protection visa.
On the basis of the above evidence, I consider that at the time of lodging the application for a Protection visa, the visa holder was a documented citizen of Pakistan and therefore the visa holder’s claims for a Protection visa, that he fled Afghanistan in fear of the Taliban, were not correct.
In response to the Notice, the visa holder has provided a statement as well as documentary evidence in support of his correct name, date of birth and his citizenship status in Pakistan. Therefore, the visa holder has provided incorrect information in his application for a Protection visa where he stated that his name was [Alias 1] (DOB [DOB 1]) and that he was born in Jaghori, Afghanistan.
The visa holder provided incorrect information in his statement attached to his Protection visa application in relation to his father being taken and presumably killed by the Taliban in Afghanistan. The visa holder stated that he could not return to Afghanistan in fear that he may suffer the same fate as his father. Therefore I consider the visa holder has not complied with section 101(b) of the Act.
Pre-hearing submissions dated 29 April 2021
The applicant’s representative provided pre-hearing written submissions dated 29 April 2021.
The representative confirms that the applicant agrees he provided the Department incorrect information in relation to his identity in his protection visa application and that there has been non-compliance with s.101 of the Act. The representative confirms the applicant’s true identity is [the applicant], born on [DOB 2] in Quetta, Pakistan and he is a Pakistani citizen.
The representative submits the applicant disclosed his true identity to the Department in 2017 and that four years have since passed with no further evidence of dishonesty. The representative submits the applicant has been completely honest in his dealings with Australian authorities since 2017.
The representative submits that if the applicant had provided correct information at the time he applied for a protection visa, it is very likely that he would have been granted a protection visa on the basis that he was a Hazara and Shia Muslim from Quetta, Pakistan.
The representative submits the applicant did not simply come to Australia to work in order to support his family. The representative claims the applicant’s statutory declaration sworn on 16 October 2019 describes the persecution he experienced as a Hazara Shia living in Quetta, Pakistan and that his experiences are strongly supported by country information from that time.
The representative describes the circumstances in which the non-compliance occurred as follows: The applicant arrived in Australia as [an age]-year-old in 2010. He was fearful and felt a strong obligation to his family. He had experienced physical and sexual abuse, which he did not disclose to anyone until 2021. The representative submitted that while these factors do not excuse the applicant’s actions, they do provide an explanation for his choices.
The representative submits the applicant is a decent and hardworking young man, well-integrated into the Australian community, and loved and valued by those close to him. The representative submits the applicant is a blood donor and he is generous with his time and money. The representative submits the applicant is currently undertaking counselling to manage the ongoing effects of his prior physical and sexual abuse.
The representative submits his family, including his siblings, in Pakistan have been displaced from Quetta and they are now living in a suburb outside Islamabad, where they continue to experience harassment and discrimination due to their ethnicity and religion as Hazaras and Shia Muslims. The representative submits they are stopped regularly at checkpoints, harassed and extorted due to their distinctive Asian features as Hazaras. The representative submits there have been numerous recent attacks on Hazara Shias throughout Pakistan since DFAT’s most recent country information report on Pakistan.
The representative submits the current security situation in Pakistan is extremely volatile and that the recent advances made by the Taliban in Afghanistan are likely to spill over into Pakistan. The representative submits some analysts believe that despite assurances made by the Pakistani government, official support for the extremist ideology of the Taliban has never really gone away. The representative submits the Tehreek-e-Taliban Pakistan (TTP) have long been known for their active anti-Shia Muslim ideology and that the increasing Pakistani-wide anti-Shia rhetoric emanates from the Afghan, Pashtun and Baluch extremist groups, as well as the Punjab Assembly and increasingly, the mainstream population.
Statutory declaration from the applicant, sworn 3 August 2021
The applicant states he continues to rely on his statutory declaration sworn on 16 October 2019. He confirms his true name is [the applicant] and he agrees the identity he used to enter Australia is false.
The applicant claims he lived his entire life in [his home town in] Mariabad, Quetta, Pakistan, which is a predominantly Hazara area. He claims his parents were both Pakistani citizens of Hazara ethnicity.
The applicant claims he first received ill treatment because of his ethnicity in year 7 at [a named] High School, which was located on the border of the Pashtun and Hazara areas. He claims the perpetrators were Pashtun and Baluch students. He claims Pashtun and Baluch students targeted and abused him during his walk home after school because of his appearance and religious practices.
The applicant claims that in 2004 when he was [age]-years-old, he was participating in the tenth of Muharram (Ashura) parade in [a location] when it was targeted by bombers and snipers. He claims he and his friend ran through the [named location] and jumped over the wall, where they were found by a Punjabi man, who helped them ring his mother to confirm he was alive.
The applicant claims that in 2008 when he was [age]-years-old, store-keepers and pedestrians stopped what they were doing and hurled abuse and threats at him as he rode on his pushbike to a technical training centre where he was studying. He claims he used to vary the route he took and tried to disguise himself by wrapping his face in black shawls called ‘longis’. He claims the students in his class treated him with hostility and abuse. He claims he could not finish the course because it was too dangerous and the teaching staff refused him access to equipment he required to properly study.
The applicant claims that during his time at the technical training centre in 2007 or 2008, he had an apprenticeship in a workshop near [a location] where he worked under a Punjabi man who accepted him. He claims he was the only Hazara on the street and he was targeted for verbal, physical and sexual abuse by the Pashtun and Baluchi people. He claims his [body part] was [injured] after an assault and he had to put his [body part] back into place to get himself home. He claims his [body part] never properly healed and it still gives him trouble today.
The applicant claims he first disclosed his sexual abuse to his current migration agent. He claims he is very traumatised by the memories and that he feels ashamed and dirty.
The applicant provided the following explanation for why he provided incorrect information in his protection visa application. He submits this information is not an excuse for lying and that he is sincerely apologetic for lying to the Australian government. He claims he considered disclosing the correct information, but he feared the consequences and being sent back home. He claims he feared the burden of letting his family down, that his family would discover his sexual abuse, and coming into contact with his abusers.
The applicant claims that when he visited his family in Pakistan in November 2012, they were stopped at the police checkpoints in Islamabad. He claims that although they showed their Pakistani identity documents, the police demanded payment of 1000 rupees or they threatened to take them to prison.
The applicant’s family’s current circumstances in Pakistan
The applicant claims that in 2019, it became impossible for his family to live in Quetta, so they relocated to [a named] Town outside of Islamabad. He claims his family experienced discrimination during their search for accommodation because of their Hazara appearance and assumed Afghan citizenship. He claims his family had to pay more than other Pakistani citizens in order to secure accommodation.
The applicant claims his brother sometimes has to pay bribes and is subject to physical abuse, harassment and taunts on his way to university in Islamabad. He claims his brother is of the view that it is not safe to sit in a café and have coffee, as passers-by and groups of young men comment on his appearance, taunt and threaten him. He claims his brother struggles to find employment in circumstances where his non-Hazara classmates can find work even though their grades are lower. He claims his sister is taunted for looking Asian and she covers her face with a scarf called a ‘Chador’.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a) The applicant’s protection visa application form. The relevant protection visa was granted to the applicant on 23 February 2011;
(b) The applicant’s identity documents being a copy of his Pakistani passport, Pakistani birth certificate, Pakistani national identity card and Pakistani Local Residence Certificate, provided to the Department;
(c) The Notice of Intention to Consider Cancellation under s.109 of the Act dated 2 October 2019 (NOICC);
(d) The Notification of Cancellation and Record of Decision of Whether to Cancel under s.109 of the Act, both dated 31 March 2021 (delegate’s decision record);
(e) The application for review form dated 14 April 2021, which did include a copy of the delegate’s decision record;
(f) Department file [number] concerning the cancellation of the applicant’s protection visa;
(g) All documents submitted to the Department in support of the applicant’s protection visa application and NOICC response, including the documents outlined above at paragraph 18 and his statement of claims dated 24 October 2010;
(h) All documents submitted to the Tribunal in support of the applicant’s application for review, including:
·Pre-hearing written submissions from his representative dated 29 April 2021;
·A statutory declaration from the applicant, sworn on 3 August 2021;
·A report prepared by a Counsellor from the [named agency]; and
·Statutory declarations from the applicant’s uncle, co-worker and friends.
(i) Country information from the applicant’s submissions and other sources, further discussed below, including the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Pakistan, published on 20 February 2019 (DFAT Report on Pakistan).
Hearing:

The Tribunal conducted an in-person hearing on 13 August 2021. The applicant attended the hearing with his representative. The Tribunal also received oral evidence from the applicant’s friend, [Friend A].
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department to cancel his protection visa under s.109 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant had failed to provide answers to certain questions and provided incorrect information in his application for a protection visa. As a result of this, the applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds.
The Tribunal noted that the Departmental delegate had formed a view that the applicant had not complied with the requirements of sections 101(a) and 101(b) of the Act, referring amongst other things to the answers the applicant had failed to provide and answers the applicant had provided in his application for a protection visa regarding his identity and his protection visa claims. The Tribunal noted that based on all of the evidence before them the delegate proceeded to find that the applicant had failed to provide information and provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided to the Tribunal at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 NOICC, and if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant’s benefit.
The Tribunal noted that the applicant was granted a XA 866 visa on 23 February 2011. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision record and suggested to the applicant and his representative that the Tribunal might take the applicant’s claims for protection in his protection visa application lodged with the Department of Home Affairs on 22 February 2011 as having been read. The applicant and representative agreed.
Conclusion on non-compliance
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.
Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh vMIEA[4] and Housam Slayman v MIMA.[5] In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[6]
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383.
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32].
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP.[8] In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his Statutory Declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(a) and s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form, were incorrect. In summary, the applicant had provided an incorrect statement that he was a national of Afghanistan and the particulars relied upon the applicant’s claim that he was an Afghan and the examples and incidents of discrimination he had experienced as a consequence of being an Afghan.
On 10 July 2017 and in support of his Application for Australian Citizenship, the applicant provided a Pakistan National Identity Card to the Department. The Identity Card contained the applicant’s photograph and identified him as [the applicant], with a date of birth of [DOB 2].
It is not in dispute that the Pakistan National Identity Card is evidence of a person’s citizenship of Pakistan.
It is not in dispute that his date of birth indicates that he was not a minor as he had claimed in his Protection Visa application and as he had claimed at the time of his arrival on Christmas Island in 2010.
It is not in dispute that the applicant’s Identity Card shows that he is known by another name that had not been disclosed to the Department in his Application for Protection Visa.
It is not in dispute that the applicant also provided his father’s Pakistan National Identity Card, which is evidence of his father’s citizenship of Pakistan.
According to Part 14 of the Pakistan Citizenship Act 1951, dual citizenship or nationality is not permitted in Pakistan.
It is not in dispute that the applicant’s father, as a citizen of Pakistan, can not also be a citizen of Afghanistan as claimed by the applicant in his application for a Protection Visa.
It is noted that the applicant’s father’s Identity Card was issued [in] 2014 which would indicate that the applicant’s father was alive as at that time and had not been killed by the Taliban as claimed by the applicant in his Statutory Declaration dated 24 October 2010.
On 16 October 2019, the applicant provided a Statutory Declaration confirming his correct name and identity and acknowledged that the identity he used when he first came to Australia was false. On 3 August 2021, the applicant provided a further Statutory Declaration confirming that the information he had provided in his Statutory Declaration of 16 October 2019 was correct.
In his Statutory Declaration of 3 August 2021, the applicant further states that he was born and lived his entire life in Pakistan.
The applicant, as a citizen of Pakistan, does have a right to enter and remain in Pakistan with full access to the rights and privileges as a Pakistani citizen, as well as the safety and protections of the Pakistani government as afforded to its citizens.
In the Representative’s submission of 29 April 2021, the applicant’s Representative states that her client, the applicant, does not resile from the fact that he provided immigration officials with a false name and identity when he first arrived in Australia. The Representative states that the applicant acknowledges that as a result, there has been non-compliance with section 101 of the Migration Act and that as a consequence, the Minister is entitled to cancel the non-citizen’s visa.
The Tribunal accepts the Statutory Declarations of the applicant and the submission of the applicant’s Representative, noting that the applicant, in many instances, has provided incorrect information in his Protection Visa Application.
The applicant and representative accept that the applicant provided incorrect information in his Protection Visa application and further accepts that there is non-compliance with s.101(a) and s.101(b) of the Act as identified by the delegate in the NOICC.
The applicant states that he is remorseful and apologetic to the Government of Australia.
Be that as it may, the Tribunal is left with the evidence before it and the fact of the applicant’s acceptance that he did lie and provide incorrect information, and it is for these reasons, the Tribunal finds there was non-compliance with s.101(a) and s.101(b) 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 r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal also gave consideration to the Departmental PAM 3 guidelines, including such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The correct information
The applicant claimed in his Protection visa application that he was a national of Afghanistan and was living in Pakistan as an illegal refugee. The applicant claimed that prior to leaving Afghanistan for Pakistan in 2000, his parents had lived all of their lives in Afghanistan.
As confirmed by the applicant in his Statutory Declarations of 16 October 2019 and 3 August 2021, the applicant’s true identity is [the applicant].
The correct information is that the applicant was born and raised in Pakistan.
The correct information is that the applicant, his parents and siblings are all Pakistani citizens.
The correct information is that the applicant was not a minor at the time of his arrival in Australia and at the time of making his Protection Visa Application.
The correct information is that the applicant’s father was not missing, presumed killed by the Taliban at the time of the applicant’s arrival in Australia and at the time of making his Protection Visa application.
The correct information is that the applicant is a Pakistani national and has been a Pakistani citizen since his birth. The applicant would have access to the benefits and rights accruing to Pakistani citizenship, including the right to reside and work in Pakistan. The correct information is that the applicant does not require protection from Afghanistan as he can return to Pakistan and legally reside in Pakistan.
The correct information is that the applicant departed Pakistan using his own validly issued Pakistani passport.
The content of the genuine document (if any)
The prescribed circumstance is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The decision to grant the applicant his protection visa was based on his meeting the definition of “refugee” within the meaning of the Refugees Convention and the relevant provisions of the Act and he was found to be a person to whom Australia owed protection obligations.
As has been explained in the delegate’s decision, the applicant would not have been granted a visa if it had been known that he had given incorrect answers about his claims in his application for the visa.
The decision to grant the applicant his protection visa was based on the applicant’s claim that he was subject to persecution and harm in Afghanistan.
The correct information is that the visa holder is not an Afghan citizen, that his father is a Pakistani citizen and that the visa holder has been a Pakistani citizen since his birth, was directly relevant to the assessment of his entitlement to a protection visa. Had the correct information been provided at the time of that assessment, the visa holder's claims would have been assessed against his home country of Pakistan, and the delegate would have had the opportunity to fully explore the visa holder's claims in relation to his Pakistani citizenship, his right to reside there and whether he was able to avail himself of protection by the authorities in Pakistan. This may have resulted in a different assessment of whether he was owed Australia's protection.
In not providing the correct information, the visa holder has denied the delegate this opportunity and obtained a Protection visa to which he may not have been entitled.
The representative, in her submission of 29 April 2021, has argued that notwithstanding the incorrect information provided, the Tribunal should find that the applicant is owed protection in any event.
The representative has submitted in her submission that in her response to the Department’s Notice of Intention to Consider Cancellation of the applicant’s visa, that even if the applicant had provided the correct information at the time he applied for a Protection Visa, it is very likely that he would have been granted a Protection Visa based on the fact that he was a Hazara Shi’a living in Pakistan at that time.
The circumstances in which the non-compliance occurred
The applicant and the representative explained the circumstances by which the applicant came to make the claims he did. The Tribunal notes the non-compliance occurred 10 years ago in 2011.
The representative explained that the applicant arrived in Australia as [an age]-year-old in 2010. He was fearful and felt a strong obligation to his family. He had experienced physical and sexual abuse, which he did not disclose to anyone until 2021. The representative submitted that while these factors do not excuse the applicant’s actions, they do provide an explanation for his choices.
The representative has made a strong submission that the delegate has misunderstood and/or mischaracterised the circumstances in which the applicant made his decision to provide incorrect information to the Australian authorities at his arrival interview and in his Protection Visa application. The representative submits that the delegate had noted that the applicant simply came to Australia to work in order to support his family. The representative submits that the applicant’s Statutory Declaration dated 16 October 2019 sets out the persecution he experienced as a Hazara Shi’a in Quetta at the time he left Pakistan. The representative further submits that the applicant’s claims to persecution are strongly supported by Country Information from that time.
In her submission, the representative cited words extracted from a Tribunal decision, with words to the effect that the applicant’s actions in providing false information were underpinned by a genuine fear of being sent back to Pakistan. She states that family is the single most important aspect of life in Pakistan. Pakistan culture is very collectivistic and people generally put their family’s interests before their own. She suggests that this means that family responsibilities tend to hold a greater importance than personal needs. She submits that as a young Pakistani male arriving in Australia by boat, the applicant would have experienced a level of cultural pressure and family obligation to assist his parents’ future travel to Australia.
The Tribunal noted the Representative’s personal experiences of having lived in Pakistan and the authenticity that brought to her submissions.
The Tribunal has considered that explanation, and is satisfied that the applicant acted of his own free will in claiming and maintaining that he was Afghani and a minor. He was an adult at the time of making his application for a protection visa. He formed the view that to lie, rather than tell the truth about his true position, would enhance his chances of obtaining a protection visa. He perpetuated that lie for several years up to the time of applying for citizenship.
The present circumstances of the visa holder

The Tribunal took evidence from a witness, [Friend A], a close friend of the applicant. The Tribunal noted that the witness had also provided a Statutory Declaration dated 3 August 2021 in support of the applicant.
The witness attested to the applicant’s good character.
The witness stated that she was a Youth Officer employed by [Community Organisation 1].
The witness stated that she has known the applicant since about 2012, not long after he had come to Australia.
The witness stated that the applicant has acknowledged that he has done wrong.

100. The witness stated that she first knew the applicant under his false identity when he was employed as [an interpreter], interpreting in the Hazara language. She stated that before he became employed by [Community Organisation 1], he also worked as a volunteer Interpreter to the organisation.
101. She stated that after they met and became friends, they started sharing a house in late 2012. She states that their friendship grew and they became close. After that, the applicant started to tell her about his story and about how he came to Australia. She states that after a while, the applicant showed her his [social media] account which was set in his correct name and he told her about how he had come to Australia, how he was afraid and how he was advised by the people smugglers not to give his correct name and identity. She stated that she could sense how fearful he was and how afraid he was of what would happen if he had told the truth.
102. The witness spoke of her experience working with refugees. She stated that she understood the applicant’s concerns and his dilemma. She spoke of stories about desperate steps that refugees have taken simply to survive.
103. The witness’ statement acknowledges that the applicant always went far beyond his paid position to help unaccompanied minor refugees. She stated that he would give them his telephone number and that they would call him if they needed help to go to appointments or just to be an older mentor.
104. Her statement remarks that she saw how hard he worked to make a life for himself in Australia. She states he was employed by [Community Organisation 1] as a casual worker. He then got a casual job as a Teaching Aide at [a named] School. She then spoke of him taking a full-time position at [Employer 1] as [an Occupation 3]. She spoke of the promotions that he had received at [Employer 1] and that he now held a responsible position.
105. The Tribunal asked the witness whether she knew of his Hazara ethnicity. She replied that the applicant had told her that he was an Hazara, but she also noted that [Community Organisation 1] had used him as an Hazara Interpreter.
106. The Tribunal also noted the letters of support obtained by the applicant, including his employer.
107. The Tribunal gives this some weight against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
108. The representative submits the applicant disclosed his true identity to the Department in 2017 and that four years have since passed with no further evidence of dishonesty. The representative submits the applicant has been completely honest in his dealings with Australian authorities since 2017.
109. The Tribunal notes the applicant’s subsequent apology and remorse at the hearing, but it notes again that the applicant was an adult, and an educated adult, at the time he made his entry interview and application for protection.
110. The Tribunal gives this some weight in favour of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
111. The delegate noted that there had been no breaches of his visa terms.
112. On the basis of the evidence before the Tribunal there are no other instances of non-compliance by the applicant known to the Minister.
113. The Tribunal gives this some weight against cancelling the visa.
The time that has elapsed since the non-compliance
114. The Tribunal notes that his visa was cancelled on 31 March 2021. It also notes that the incorrect information first occurred when participating in his entry interview on 22 June 2010 and again when he made a request for a Refugee Status Assessment on 24 October 2010 and yet again when making his protection visa application on 22 February 2011.
115. The applicant has been present in Australia since [May] 2010.
116. The Tribunal is sympathetic to that.
117. However, the Tribunal is also mindful of the fact that the applicant has been in Australia for this period of time by reason of his provision of incorrect information to facilitate the grant of a protection visa. The Tribunal is also mindful of the significant non-compliance that has occurred, and the maintaining of incorrect statements and information during this process.
118. Accordingly, the Tribunal gives this some little weight against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
119. The applicant advised that he has not breached any law.
120. On the basis of the evidence before the Tribunal the applicant has not breached the law since the relevant non-compliance.
121. The Tribunal gives this some weight against cancelling the visa.
Any contributions made by the visa holder to the community
122. The applicant has provided a detailed statement as to his work history. It is clear he has been employed and paid taxes.
123. The Tribunal has considered the references put forward by the representative, noting that one was from an employer who vouched for his honesty and integrity.
124. The Tribunal notes that the applicant is a blood donor.
125. The Tribunal recognises the evidence of the witness who attested to the volunteer work the applicant performed as an Hazara interpreter, especially for refugees who were minors.
126. The Tribunal notes that the applicant has many supporters praising his character.
127. The Tribunal accepts that the applicant has made a contribution to the community by virtue of some volunteer work in assisting new migrants with interpretation. He has also attended various community events.
128. The Tribunal also notes from the applicant’s statement that he works as [an Occupation 3] and meets many people each day. He has made friends and formed a connection with the Australian community. He has friends from his work and community. He has become very articulate in English.
129. The Tribunal accepts that the applicant has integrated into his community and has formed a number of friendships.
130. The Tribunal places some weight on this consideration in the applicant’s favour.
Whether there would be consequential cancellations under s.140 of the Act
131. There are no persons in Australia whose visa would, or may be, cancelled as a consequence of the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision
132. Should the visa be cancelled, the applicant would be subject to Section 46(1) of the Act, which bars him from making an application for a further visa. Also, as an IMA the applicant would become an unlawful non-citizen and would be subject to Section 46A(l) and barred from making a valid application for a further visa, including bridging visas, and may be detained. Further, a consequence of cancelling the Protection visa is that he would become subject to Section 48A(1B) of the Act barring him from making a further application for a Protection visa while in the migration zone. The applicant will be unable to make any visa application while in Australia unless the Minister intervenes and lifts the decision bar.
133. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and may be liable for detention under Section 189 of the Migration Act and removal from Australia under Section 198 of the Act. However, this can be mitigated by voluntary departure.
134. However, the Tribunal considers these to be standard mandatory legal consequences as a result of a visa cancellation outcome and gives these considerations minimal weight in the applicant's favour.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement, the rights of the children or family unity obligations
135. In the decision under review, the delegate took the view that a ‘decision to cancel a visa is not in itself a decision to remove a person from Australia, and therefore it is not, in and of itself, a breach of non-refoulement obligations. He noted that, if the visa were cancelled, the Department would undertake an International Treaties Obligation Assessment (ITOA) prior to the applicant’s actual removal from Australia. There was no further consideration of this matter.
136. The Tribunal agrees that the visa cancellation does not automatically lead to the applicant’s removal. Furthermore, as the applicant does not hold an Iranian passport, his return travel would require the issuance to him of a travel document. DFAT advised in its latest country report[9] that ‘Iran has a global and longstanding policy of not accepting involuntary returns’, and went on to describe a recent exception to that policy that is not relevant to this case. Although there may be some practical obstacles to the applicant’s return, the Tribunal considers it appropriate to consider in the exercise of its discretion whether the applicant’s removal would enliven Australia’s non-refoulement obligations (even though the Department would likely still need to conduct an ITOA at the time of any removal).
[9] DFAT, Country Information Report – Iran, 14 April 2020,
137. The Tribunal has given consideration to the claims of the applicant to being Hazara and a Shi’a.
138. The Tribunal notes from the uncle’s Statement that the family’s circumstances in Pakistan are worse than when they were in a compound in Quetta as he notes the family are experiencing harassment and discrimination because of their ethnicity and religion.
139. The Statement and Statutory Declaration speak of the harassment endured by the applicant’s siblings when they go through checkpoints.
140. The Tribunal discussed this issue with the applicant in the hearing.
141. The applicant explained that his brother moved to Islamabad first for educational purposes. His brother is studying [a specified course]. He went on to state that his sister completed her education in Quetta before also moving to Islamabad to study [a specified course]. He states that at the time of his sister’s moving to Islamabad, his parents moved as well. He states that his family now live in an area outside of Islamabad and have to travel through checkpoints daily to go to university and employment.
142. The applicant spoke of the experiences of his brother travelling to university daily by motorbike and having to go through checkpoints. He stated that if his brother forgets his ID, then he is interrogated by the police. As he is required to remove his helmet, he is quickly identified as an Hazara. The applicant states that on a number of occasions his brother has been taken to the police station for interrogation and has been physically slapped.
143. The applicant states that at the police station, and generally on the streets, his brother and family endure accusations that they, as Hazara people, are bringing risk of terrorism to Islamabad.
144. The Representative then took up to the argument that in addition to the Hazara ethnicity issue, there is also the issue of the applicant and his family being Shi’a Muslims. She went on to explain that if you were a white person, the locals will stop you in the street and want to talk about cricket. However, if the applicant or his family were to walk down the street, those same people would call him a “Kafir”.
145. The Tribunal considered country information it had obtained from the DFAT Report on Pakistan in relation to Hazaras and Shia Muslims:
Hazara
3.27 The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.
3.28 Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.
3.29 Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ have targeted Hazaras in Pakistan for their sectarian affiliation.
3.30 The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps (see Police, Frontier Corps and Rangers) maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.
3.31 Government forces also provide security for Shi’a religious processions. Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.
3.32 Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.
3.33 Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’
3.34 An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta.
3.35 Local sources consider the road from Quetta airport to the city and Double Road to be dangerous for all travellers, regardless of ethnicity. Local sources, including from the Hazara community, consider Giant Road to be dangerous for both Hazaras and Frontier Corps. Militants have targeted Shi’a pilgrims on the road through Balochistan during pilgrimage to Iran and Iraq and Hazara Shi’a are easier targets because of their distinctive appearance. Local sources claim that government security for Shi’a undertaking religious pilgrimage (see Shi’a) is more readily available for non-Hazara Shi’a, and the government provides escorts for Hazaras only every couple of months.
3.36 Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.
3.37 Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.
3.38 Hazaras claim that there are two government colleges within the enclaves, open to all children, offering the equivalent of Australian year six to 12, and that no universities are located in the enclaves. DFAT is unable to verify these claims. Hazaras seeking education outside the enclaves face a high risk of discrimination and violence. The high frequency of attacks against Hazaras, such as on 4 October 2016 when a gunmen attacked a bus in Quetta, killing at least four Hazara women, have led many education and health facilities in Quetta to deny Hazaras access to transportation or attendance, in order to protect non-Hazaras clients and students. Many Hazaras now refuse to take the bus to attend university outside of Hazara enclaves due to increased fear in the wake of attacks on transportation.
3.39 Hazaras claim that Hazara town has one hospital and one government hospital clinic, both staffed by Hazara doctors. Members of the community who can afford it travel to Karachi for treatment; those who cannot risk the journey for treatment in Quetta outside Hazara enclaves. Hazaras claim a private charity ambulance provides emergency transport in and out of Hazara town, but abductions of ambulance workers have led Hazaras to fear travel in the ambulance. DFAT is unable to verify these claims.
3.40 Hazara youth understand the risks of illegal migration, but are increasingly frustrated by the security situation. The enclaves have limited entertainment options. Community leaders are concerned that long-term exposure to security threats is creating psychological issues for Hazara youth.
3.41 Hazaras claim access to services, including mobile SIM cards and internet connections, within the enclaves does not require formal documentation, such as a passport or CNIC (see Documentation ). However, travel in and out of, or between, the enclaves, involves document checks that can serve to block access to services. While most Hazaras in Pakistan can obtain formal identification such as CNICs, Hazaras claim the National Database and Registration Authority (NADRA) officials have at times caused delays for Hazaras applying for official documentation. Hazaras have suffered lethal attacks outside the NADRA office in Quetta, located outside the enclaves, while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclave to apply for documentation. Hazaras claim access to services, including mobile SIM cards and internet connections, within the enclaves does not require formal documentation, such as a passport or CNIC.

3.42 Hazara children born in Pakistan are entitled to Pakistani citizenship. Hazara arrivals from Afghanistan typically do not have citizenship, but have access to immigration cards, which provide some rights such as access to drivers’ licences.
3.43 Notwithstanding the risk of obtaining documentation, Hazaras that can afford to leave Quetta do so. Outside Balochistan, Hazaras report finding it safer to live separately amongst the general community than to relocate to live near other Hazaras, where they can be easily profiled and targeted. Hazaras’ preferred options for internal relocation are, in order, Lahore, Karachi and Islamabad. Hazaras report that the few Hazara enclaves in Karachi, such as Mungo Pir, are unsafe and have only arisen out of necessity where poorer Hazaras have had to pool resources.
3.44 While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.
3.45 DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.
3.46 DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.
3.47 DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation. Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.
3.48 While DFAT assesses Hazaras do not typically require official documentation to access non-government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health, emergency care and education services.
Shi’a
3.100 The LeJ has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’

146. It is not disputed that the applicant is a Hazara Shia male who was born and holds citizenship of Pakistan. He lived in Quetta all of his life.
147. The Tribunal notes that the applicant returned to Pakistan for a short visit in November of 2012. The Tribunal has not weighted this highly in considering the question of non-refoulement – the visit was for a short period and was made for a compelling reason, the necessity to see his family. He remained in Quetta for the entire visit.
148. The DFAT Report states above that LeJ primarily targets Shia, especially the Hazara community in Quetta.[10] The report contains a detailed analysis of the situation for Hazara in Pakistan, noting they have faced official and societal discrimination in Pakistan,[11] that ‘a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence,’[12] and that ‘Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment.’[13] This section concludes with DFAT’s assessment that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs (and face a higher risk than other Shi’a due to their distinct appearance and to segregation).[14]
[10] DFAT Country Information Report Pakistan, 20 February 2019, 2.89
[11] DFAT Country Information Report Pakistan, 20 February 2019, 3.29
[12] DFAT Country Information Report Pakistan, 20 February 2019, 3.32
[13] DFAT Country Information Report Pakistan, 20 February 2019, 3.36
[14] DFAT Country Information Report Pakistan, 20 February 2019, 3.47
149. This information is confirmed in other reputable government reports including the October 2020 European Asylum Support Office report which states that ‘most of the sectarian violence in 2019 was directed towards the Shia community (Hazara).’[15] This information accords with numerous other government and non-government reports on the situation for Hazara in Pakistan.
[15] EASO, Pakistan Security Situation Report, October 2020, 2020_10_EASO_COI_REPORT_Pakistan_Security_Situation_Final (europa.eu)
150. The representative, not surprisingly, cited this information in her submission.
151. The Tribunal has had regard to the applicant’s claims about the situation for him and his family in Pakistan. It has noted his evidence and the statement of his uncle, [Occupation 4].
152. It was not disputed by the delegate that the applicant was an Hazara and Shi’a Muslim. Further, these claims were accepted by the original delegate. This claim is not affected by the conclusion drawn by the cancellation delegate and myself that the applicant is actually a national of Pakistan.
153. The Tribunal accepts that the applicant, and his family, are Hazara Shias who lived in Quetta. The Tribunal accepts that the applicant, and his family, were targeted by militants for reasons of their religion and ethnicity. Having regard to the country information excerpted above, the Tribunal accepts that if the applicant returned to Pakistan now or in the reasonably foreseeable future, there is a real chance, that is one that is not remote, that he would be seriously harmed for reasons of his religion and ethnicity. The Tribunal accepts that the government of Pakistan has shown itself to be unable or unwilling to protect the applicant and other Hazara against the harm feared.
154. There is a strong basis to conclude that the applicant faces persecutory conduct if returned to Pakistan. As recorded above, the Tribunal does not think that this is displaced by his brief return, for a compelling reason, in 2012 for 40 days.
155. I do not believe that it is legally, logically or ethically plausible to maintain that cancellation of this visa would not lead to the applicant being removed from Australia and Australia potentially therefore being in breach of its non-refoulement obligations to the international community. As the cancellation delegate went through at length, and the Tribunal has referenced above, there is no legal pathway available to the applicant to seek a further visa in Australia. Therefore, the Act requires the removal of the applicant. Therefore, a consideration, in good faith, must be made of the question of refoulement as required under Department policy. The Tribunal can see no reason in this case to depart from policy. In the Tribunal’s view, taking account of the applicant’s claims and the country information, this consideration alone militates very highly against cancellation of the visa.
156. The Tribunal therefore finds that the applicant is owed Australia’s protection and consequently Australia would be in breach of its international obligations, such as non-refoulement obligations.
157. The Tribunal places significant weight on this consideration in favour of the applicant.
Conclusion
158. Given the findings herein, the Tribunal is satisfied the applicant’s breach of Australian migration laws has been proven, and this undermines the integrity of Australia’s migration program. By his deception, the applicant has retained significant benefit. The Tribunal is satisfied the applicant’s conduct has been deliberate and calculated for the purposes of enhancing his claims to be granted a Protection visa, notwithstanding his present apology and remorse.
159. The Tribunal is satisfied that as a Pakistani citizen, the applicant would have access to the benefits and rights accruing to Pakistani citizenship on his return.
160. The DFAT Report also notes that authorities pay little attention to failed asylum seekers.[16]
[16] DFAT Report, paragraph 5.29 – 5.31
161. However, the Tribunal notes that the applicant has resided in Australia for around ten years and this is a substantial period of time. It also notes that the applicant has made connections with the community and speaks excellent English and has maintained employment.
162. The Tribunal discussed with the applicant the difficulty of its decision. On the one hand, the applicant, by lying in his protection claims, has obtained the benefit of a protection visa to which he may not have otherwise been entitled. By obtaining that visa, it has now put him in a preferred position to that of a person who was honest in his claims and failed to attain a protection visa, because the cancellation process enables an applicant to plead grounds to a delegate or Tribunal that might appeal to a discretion the decision maker has, that the decision maker does not have when considering whether to grant or refuse a protection visa.
163. The Tribunal explained that this imbalance weighs heavily on the Tribunal’s mind.
164. The Tribunal has carefully considered the material before it individually and cumulatively. The provision of incorrect information in a visa application is a serious matter. The legislature and policy makers intended adverse consequences, including cancellation in such circumstances. There are aspects in the favour of cancellation but there are many in his favour including his contrition, non-refoulement obligations, his contribution to the Australian community and the support of his friends and colleagues. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.
165. The Tribunal shares the delegate’s concerns about the seriousness of the applicant’s non-compliance, and, as noted above, it has some ongoing concerns about his credibility and conduct. However, it finds that at the time of this decision, the considerations in favour of the applicant outweigh the grounds for cancellation, and the preferable decision is that the visa should not be cancelled.
Overall Conclusion
166. 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
167. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Michael Hawkins AM
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

572-573.