2104797 (Migration)

[2021] AATA 2024

2104797 (Migration) [2021] AATA 2024 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104797

MEMBER:Frances Simmons

DATE:18 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2021 at 7:45am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – two previous applications not declared – different names, dates of birth and family members in each application – current visa granted in alias name after department ascertained incorrect information and cancelled protection visa – applications for review of both cancellations hear and decided together – discretion to cancel visa – ethnicity and religion – Hazara Shia –credible evidence establishing identity – born to refugees in third country and never lived in parents’ country – family’s status as refugees in third country and applicant’s loss of refugee status on departing – country information – non-refoulement – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 29, 36, 67, 68, 82, 101, 107, 109, 360
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 155.211; Schedule 4, PIC 4021

CASES
Asenso v MIBP [2016] FCCA 756
BLF20 v Minister for Immigration [2020] FCCA 878
Dy v MIMA [2006] FCA 676
Ibrahim v MHA [2019] FCAFC 89
Jalal v MIMA (2000) 60 ALD 779
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Jalal (2000) 102 FCR 63
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
SZEEM v Minister for Immigration [2005] FMCA 27
SZFDE v MIAC [2007] HCA 35

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.109 of the Act, on the basis that the applicant had provided incorrect information in his resident return visa application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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

   Background

4. The applicant arrived at Christmas Island by boat [in] May 2012 and identified himself as [Alias 1] (DOB: [Date 1]). He lodged a protection visa application on 22 July 2012 in which he sought protection as an Afghan national of Hazara ethnicity and Shia religion born on [Date 1]. He was granted a Protection (Subclass 866) visa on 11 September 2012.

5. On 31 May 2013 the applicant lodged a Global Special Humanitarian (GSH) visa application to sponsor his claimed mother, [Ms A] (DOB: [Date 2]), and his three sisters. This application was refused.

6. On 19 January 2019 the applicant lodged a Resident Return (Subclass 155) visa application.

7. On 25 June 2019, the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of his protection visa granted on 11 September 2012 (the ‘protection visa NOICC’). The NOICC informed the applicant that a forensic facial image comparison report undertaken on 18 June 2019 found that an image of [Alias 1], born on [Date 1], represented the same person as [Alias 2], born on [Date 3], and [the applicant], born on [Date 4]. [The applicant] (DOB: [Date 4]) was included as a dependent on a Global Special Humanitarian (GSH) (Subclass 202) visa application lodged in 2004 and [Alias 2] (DOB: [Date 3]) had previously applied for an orphan relative visa lodged in 2010.

8. In response to the NOICC, the applicant conceded that he had provided incorrect information to the Department. He declared that the correct information is that he is [the applicant], a [Age]-year-old national of Afghanistan of Hazara ethnicity and Shia religion. He claimed that his parents fled Afghanistan before he was born. The applicant declared that he was born in Iran in [Year 4] and resided there as a refugee until he travelled to Australia and sought asylum. He conceded that he made two prior applications for visas in Australia in 2004 (offshore GSH visa) and 2010 (orphan relative visa) that were rejected.

9. On 22 October 2019 the delegate cancelled the applicant’s protection visa. The delegate found the applicant had provided incorrect information in his visa application about his name, age, family composition, previous visa applications and relatives in Australia. The delegate did not doubt that the applicant was a Hazara Afghan and a Shia Muslim but considered that the decision to grant him a protection visa was based ‘at least partly’ on the incorrect information he provided about his immigration history, age, family composition and residential history.

10. On 6 January 2021 the Department granted the applicant a five year resident return visa in the name of [Alias 1]. On 15 April 2021, the delegate cancelled the resident return visa on the basis that the applicant did not comply with s.101(b) of the Act and determined, having considered the prescribed circumstances under reg.2.41 of the Migration Regulations 1994 (the Regulations), that the visa should be cancelled.

11. The applicant has applied for review of both decisions.[1]

    [1] The Tribunal has made a separate decision in relation to the review of the cancellation of the applicant’s Subclass 866 visa (case no.1932624).

    Relevant law

12. 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.

13. 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.

    Evidence before the Tribunal

14. The Tribunal has before it the departmental file relating to the decision to cancel the resident return visa and the Tribunal’s file. The applicant has requested that in assessing his application for review of the decision to cancel his resident return visa, the Tribunal have regard to evidence that he provided in relation to his application to review the cancellation of his protection visa. The Tribunal has therefore had regard to all the information that was before the Tribunal in case 1932624. The applicant appeared before the Tribunal on 1 December 2020 and 14 April 2021 to give evidence and present arguments in relation to his application to review the cancellation of his protection visa. The Tribunal also received oral evidence from the applicant’s brother, [Mr B], and his paternal relatives, [Mr C] and [Mr D]. The hearings were conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent [Ms E].

15. Having regard to the substantial body of evidence before it, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    Does the power to cancel the visa arise?

    First issue – whether the power to cancel the visa does not arise because the grant of the resident return visa to the applicant was invalid

16. The applicant’s representative has submitted that the grant of the resident return visa (the RRV) is invalid. He claims that he expected that, having notified the Department that he provided incorrect information about his identity, that the correct information would be taken into account in assessing his resident return visa application.

17. The Tribunal has considered the criteria that must be satisfied at time of application and time of decision for a resident return visa. At the time of application for the RRV, [the applicant] was an Australian permanent resident as his protection visa had not yet been cancelled and it appears he satisfied cl.155.211 at the time of application. There is no requirement to continue to satisfy the time of application criterion in cl.155.211 at the time of decision. For an applicant in Australia at time of decision, the only requirement to be satisfied at the time of decision is PIC 4021 (holding a valid passport or that it would be unreasonable to require the applicant to hold a passport). Therefore, it would not appear open to the delegate to refuse the RRV application on the basis that the applicant’s protection visa had been cancelled and that he was no longer a permanent resident. In these circumstances, it may be that the delegate formed the view that there was no basis to refuse the application for the RRV and therefore the appropriate course was to grant the visa so that consideration could then be given to the question of whether it should be cancelled.

18. With respect to the question of whether the delegate could grant a visa to the applicant in the name of [Alias 1], the provisions of the Act indicate that a visa is granted to a person, not a particular identity. Section 29(1) of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa to travel to and enter Australia, and remain in Australia. Section 5 defines a ‘Non-citizen’ as a person who is not an Australian citizen. A person may have a number of identities and a visa is granted to the person, and departmental systems may link the different aliases by which that person has been known. A decision to grant a visa is taken to have been made on the day and at the time the record is made and once a record is made in the departmental system (ICSE), the Minister has no power to vary or revoke that decision after the day and time the record is made: s 67(4).

19. There are provisions to cancel visas where a false identity has been used (such as a s.109 cancellation on the basis of s.101(b) i.e. an incorrect answer has been given, or s.116(1AA) where the Minister is not satisfied as to the visa holder’s identity). Therefore, for a visa to cease to be in effect, a cancellation power must be used: s.82(1). However, in the present case, the applicant had notified the Department that he had provided incorrect information about his identity and the Department was aware the identity was fraudulent at the time they assessed the RRV application. In other contexts, the Courts have found that where the grant of a visa is affected by fraud by third parties, the fraud stultifies the statutory process because it prevents the decision maker from carrying out his or her statutory functions.[2]

    [2] SZFDE v MIAC [2007] HCA 35; see also Singh v MIBP [2018] FCAFC 52.

20. A question may arise about whether the primary decision maker had the power to grant the applicant a permanent visa in the name of [Alias 1] in circumstances where the decision maker knew, at the time of the grant, that [Alias 1] was a false identity. The grant of the RRV exists to facilitate travel of a permanent resident out of Australia for up to five years from the date of the grant of the visa. While there is no suggestion that such conduct has occurred in this case, granting a RRV to a person in the name of a false identity carries with it the risk that the person may seek to rely upon that visa grant to represent himself as that person to obtain identity documentation and, in so doing, perpetuate the fraud.

21. The Tribunal considers it unnecessary to resolve the question about the validity of the grant of the visa because the practical effect of the visa and migration scheme is that, even if a visa has been granted in error, the visa, by virtue of s.68 of the Act, is still in effect until it is either set aside, cancelled or ceased. In the present case, the visa has been cancelled and it is clear the Tribunal has the power to review that cancellation even if the decision of a delegate to cancel the visa was affected by error: BLF20 v Minister for Immigration & Anor [2020] FCCA 878 (23 April 2020).

    Second issue – whether the power to cancel the visa does not arise because the incorrect information was known to the Department at the time the visa was granted

22. The case involves the unusual circumstance of the Department granting a visa to a person in an identity that the Department knew to be fraudulent.

23. In MIMA v Jalal (2000) 102 FCR 63 the Full Court was of the opinion that, if Subdivision C of the Act were applicable, the Minister had power to cancel the visa even though the non-compliance was known when the visa was granted.[3] While Finkelstein J in Jalal v MIMA (2000) 60 ALD 779 considered that the power to cancel a visa for non-compliance with a provision relating to an application form is confined to non-compliance that was not known when the visa was granted,[4] the Full Court disagreed, stating (at [18]):

    The legislation does not expressly qualify or modify a Minister's power of cancellation in the way his Honour suggested. The provisions of the 1996 Act confer a discretion on the Minister either to cancel or not to cancel a visa in the event of non-compliance with the requirements of Subdivision C. While the fact that the visa was granted by the Minister with full knowledge of the non-compliance may be a matter that could be taken into account by the Minister, there is no basis for concluding that, in such circumstances, the power of cancellation is negated.

    [3] MIMA v Jalal (2000) 102 FCR 63 at [18].

    [4] Jalal v MIMA (2000) 60 ALD 779 at [30], [32].

24. This decision of the Full Court was relied on in Dy v MIMA[5] where North J refused leave to raise an argument that the power to cancel could not arise in relation to a non-compliance known at the time when the visa was granted, on the basis that it was bound to fail. The Court’s obiter comments in Asenso v MIBP[6] also support the position that a visa can be cancelled under s.109 even if non-compliance was known, and excused, when the visa was granted.

    [5] Dy v MIMA [2006] FCA 676.

    [6] Asenso v MIBP [2016] FCCA 756 at [20].

25. The Tribunal therefore considers that the correct approach, based on the relevant authorities, is that the power to cancel a visa pursuant to s.109 of the Act can still arise even where the decision maker granted the visa knowing that the information was incorrect. The fact that the visa was granted with knowledge of the non-compliance then becomes a matter that can be taken into account in considering whether the visa should be cancelled.

    Third issue – whether the power to cancel the visa does not arise because the cancellation of the resident return visa is based on the same facts and information as the cancellation of the protection visa

26. The Tribunal considers the circumstances in this matter are distinguishable from the circumstances in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (‘Makasa’) which concerned the cancellation regime in s.501(2). Mr Makasa was convicted of four driving offences in 2009. In 2011, a delegate suspected that Mr Makasa did not pass the character test and exercised their discretion to cancel Mr Makasa’s visa. That cancellation decision was set aside by the General Division of the AAT, exercising its review powers in s.43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth). In 2017, with reference solely to Mr Makasa’s 2009 convictions, the Minister found that the character test was not met and personally purported to cancel Mr Makasa’s RRV under s.501(2). The High Court held that the power to cancel Mr Makasa’s visa under s.501(2) had been ‘spent’ following the delegate’s decision which was subsequently set aside by the Tribunal, and that there was no legal basis to re-exercise that same cancellation power in respect of the same circumstances.

27. In the Tribunal’s opinion, the situation in the present case is distinguishable from the situation in Makasa. Subdivision C was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application.[7] Section 101(b) of the Act requires a non-citizen to fill in or complete their application form in such a way that no incorrect answers are given or provided. It places an onus on non-citizens to provide accurate information in relation to visa applications. Whereas Makasa concerns a situation where an applicant may face the prospect of having his visa cancelled on two separate occasions as a consequence of the same criminal conduct, the current matter concerns a situation where the applicant has given incorrect information about his identity in two separate visa applications.

    [7] Explanatory Memorandum to the Migration Reform Bill 1992 (Cth) at 32.

28. The present case is not one where an allegation that the applicant has provided incorrect information about his identity has previously been made in relation to another visa application and a decision was made not to cancel that visa because there was no relevant non-compliance. Rather it is a case where there no dispute that the applicant provided inaccurate and untruthful information about his identity in two separate visa applications (the protection visa application and the resident return visa application) in the hope of obtaining a favourable immigration outcome. At the time of the resident return visa being cancelled there had been no decision to set aside the cancellation of the applicant’s protection visa. The information that was said to be incorrect in the 2012 protection visa application was the same information, in some respects, as the information that was said to be incorrect in the 2019 RRV application but there were some differences. Based on information the applicant had provided to the Department in response to the NOICC, the delegate who considered the cancellation of the RRV also considered that the applicant provided incorrect information about where he was born and whether he was in possession of identity documents.

29. The Tribunal considers that the power to cancel the visa arises because the applicant provided incorrect information about his name, date of birth, and place of birth as well as whether he was in possession of identity documents at the time he applied for a resident return visa. The fact that he provided incorrect information in an earlier visa application does not protect him from the operation of s.109 of the Act. While the situation would be different if an earlier statutory process had examined the essentially the same allegations that the applicant provided incorrect information about his identity and concluded that there was no relevant non-compliance, this is a case where it is conceded by the applicant that he provided incorrect information in two separate visa applications. As discussed above, the fact that the decision maker was aware of the incorrect information at the time the visa was granted does not mean that the power to cancel the visa does not arise, but it is a relevant matter to consider in determining whether the visa should be cancelled.

    Did the notice comply with the requirements in s.107?

30. 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.

1. Section 107(1)(a) stipulates that particulars of non-compliance are to be given. The Federal Magistrates Court in SZEEM v Minister for Immigration [2005] FMCA 27 at [38] has stated that the particulars should be stated in a manner that enables the applicant to respond to an allegation of non-compliance:

   … the “particulars” referred to in s.107(1)(a) are not only particulars which “specify” (c.f. the language used in s.107A) the “possible non-compliances”, in the sense of identifying the statements made in documents or otherwise which are alleged to have been made incorrectly. Such a reading might on occasions provide sufficient notice of the allegations of falsity, but will not do so if the falsity is alleged to relate to a general statement such as “I fear persecution.” In relation to an allegation that a general statement was made falsely, the requirement of 'particulars' must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.

2. In this case, while the particulars upon which each separate allegation is based could have identified the specific information relied upon instead of referring more generally to the information ‘set out above’, the Tribunal considers that a common sense reading of the NOICC puts the applicant on notice that the Department alleges that he provided false information about his name, date of birth, place of birth, whether he was known by any other names, whether he had any other identity documents and whether he had provided correct information in his responses in the resident return visa application.

3. 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?

4. 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.

5. At paragraphs 10–20 of the NOICC, the delegate states:

   10. On 18 June 2019 the Department completed a forensic Facial Image Comparison Report which compared photographs from an application for a Global Special Humanitarian (subclass 202) visa application lodged on 16 June 2004 by [the applicant], born [Date 4]; an Orphan Relative visa application lodged on 26 September 2010 by [Alias 2], born [Date 3] and your photograph supplied with your Protection visa application, lodged 22 July 2012.

   11. The images compared were referred to as follows:

   - [Alias 1], born [Date 1] - referred to as P1

   - [Alias 2], born [Date 3] – referred to as P2

   - [The applicant], born [Date 4] - referred to as Q1

   12. The findings of the forensic Facial Comparison Report indicated that P1, P2 and Q1 represent the same person.

   13. On 25 June 2019, you were issued a Notice of Intention to Consider Cancellation (‘the Notice’) of your Protection visa granted on 11 September 2012 under Section 109 of the Migration Act 1958.

   14. The Notice set out that there appeared to be grounds for cancellation of your Protection visa under section 109 of the Act as it appeared you had failed to fill in your Protection visa application in such a way that no incorrect answers were given or provided.

   15. A departmental delegate set out in the Notice that there appeared to be non-compliance with section 101(b) of the Act as it appeared you had provided incorrect answers about your name, date of birth and country of birth (amongst other matters).

   16. You responded to the Notice on 4 July 2019 and 9 July 2019 respectively.

   17. You agreed in your response there had been non-compliance as set out in the Notice and provided the following information:

   - You assumed the false identity of [Alias 1], born [Date 1] when you arrived in Australia.

   - Your correct name and date of birth is [the applicant], born [Date 4].

   - You were born in Iran and not Afghanistan as claimed on arrival to Australia.

   - All your siblings were also born in Iran aside from your brother, [Mr F] ([Date 5]), who was born in Afghanistan before your parents fled to Iran as refugees.

   Your family are still registered as refugees by the Iranian Government, however you lost your residence status in Iran when you left to seek asylum in Australia.

   18. You also provided the following supporting evidence with your response to the Notice:

   - Copies of untranslated Iranian identity documents belonging to you, including what you referred to as your Iranian registration card. You explained that this card is a special residence card for Foreign Citizens, headed in translation as “Pass Special for Foreign citizens”.

   - Copy of your Afghanistan Central Civil Registration Authority - National Identity Verification Centre Verification Form, lodged at the Afghan Embassy, Canberra Australia for verification of your identity.

   19. On 22 October 2019 a departmental delegate found you had not complied with section 101(b) of the Act as you were found to have provided incorrect information in your Protection visa application. As such, your Protection visa was cancelled under section 109 of the Act on the same date. On 16 November 2019 you lodged an application for a merits review of the cancellation decision with the Administrative Appeals Tribunal (AAT). The review is currently pending.

   20. On 6 January 2021 you were granted your Resident Return (subclass 155) visa based on the answers and information you had provided in your application lodged on 19 January 2019.

6. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:

   a.In his application for a resident return visa record of responses when asked to confirm that the following information is correct and in correct fields the applicant answered yes.

   Family name: [Alias 1 family name]

   Given names: [Alias 1 given name]

   Date of birth: [Date 1]

   Country of birth: Afghanistan

   The delegate considered this information was incorrect because information before the Department, as set out above, indicates that he is [the applicant], born [Date 4] in Iran.

   b.In the application for the visa when asked to provide details about his place of birth, the applicant answered he was born in [Location], Afghanistan.

   The delegate considered this information was incorrect because information before the Department, as set out above, indicates that the applicant was born in Iran.

   c.In his application for the resident return visa when asked whether he was currently or had ever been known by any other names, the applicant answered no.

   The delegate considered this information was incorrect because information before the Department, as set out above, indicates that his name is [the applicant] and that he has also been known by the name of [Alias 2].

   d.In the application for a resident return visa when asked whether he had any other identity documents the applicant answered no.

   The delegate considered this answer was incorrect as information before the Department, set out above, indicates he has a genuine Iranian Registration Card, also known as an Iranian Special Pass for Foreign Citizens.

   e.In his application for a resident return visa when asked if he had provided correct and complete information in every detail on this form and on any attachments to it, he answered yes.

   The Department considered this answer was incorrect as information before the Department indicates that he provided incorrect information, as set out above, in his application for a resident return visa.

   Response to the NOICC

7. In the response to the NOICC the applicant’s representative submitted that it is clear from the contents of the NOICC that at the time of granting the resident return visa the Department was aware that the applicant had admitted providing false information about his identity in his protection visa application. It was submitted that the applicant believed that because of the cancellation of his protection visa he was ineligible for the grant of any other visa unless the Tribunal set aside the decision to cancel his protection visa and his current migration agent was not aware he had applied for a RRV.

8. The applicant’s representative submitted that the RRV should have been refused or, in the alternative, that the RRV grant was not valid. It was argued that it was an error to grant the RRV to the applicant because ‘there was enough evidence before the Department to refuse the visa’. It was suggested, without reference to any legal authorities to support this proposition, the Department’s decision to grant the visa is voidable.

9. The applicant submitted that the admissions he made with respect to non-compliance and the submissions made in relation to the cancellation of the resident return visa must be considered in relation to his current NOICC. The applicant submits that he is a refugee as he has a well-founded fear of persecution in Afghanistan, which is his country of nationality. He says he will be persecuted because he is a Hazara Shia who has never lived in Afghanistan.

   Whether there was non-compliance

10. The applicant has conceded that there was non-compliance of the type described in the notice. Relevant, this concession appears in response to the NOICC:

    The information set out in paragraphs 17 & 18 of the NOICC is correct – he is [the applicant], not [Alias 1], and therefore the other details are incorrect answers as he has previously advised the Department and has now advised the AAT in his Appeal against cancellation of his permanent visa.

11. In evidence to the Tribunal in case no. 1932624 the applicant and his brother provided consistent and credible evidence about his claimed identity. The applicant gave evidence that before he travelled to Australia he was included in a GSH visa application and an orphan relative visa application. He told the Tribunal that the information provided about his identity in the GSH visa application was correct. The orphan relative visa included incorrect information about his age. He explained that when he arrived in Australia he provided false information about his name, date of birth, relatives in Australia, immigration history and family composition because he knew his previous offshore visa applications had been refused and he wanted to be able to sponsor his mother and siblings to migrate to Australia.

12. For reasons detailed in case no. 1932624, the Tribunal found the oral evidence of the applicant and the witnesses who supported his claims to be [the applicant] to be consistent and credible. The application for review was supported by a significant volume of documentary evidence that was not before the delegate, including  documentation that supported the applicant’s claims that his immediate family members are Afghan nationals who are living outside of Afghanistan as refugees and evidence relating to the steps the applicant took to apply for a taskira through the Afghan Embassy in Canberra. The Afghan Embassy is not responsible for issuance of the taskira and, having regard to the available country information about the inherent unreliability of taskiras, the Tribunal does not consider the provision of the taskira to be determinative.

13. Overall, the Tribunal found the applicant’s evidence about his claimed identity to be credible.  The applicant’s claim to be an Afghan national who has resided in Iran as a refugee has been a consistent thread in the three visa applications he has made. It has never been doubted that he is a Hazara and nor has any evidence been put forward to suggest he is a citizen of a country other than Afghanistan. He has provided current identity documents for family members in Iran, and the Tribunal accepts that his parents and four of his six siblings are living in Iran as refugees. The Tribunal accepts that his brother was found to be a refugee by the Australian authorities after he travelled to Australia by boat and sought asylum in 2009. The Tribunal accepts, based on the oral testimony of the witnesses and the documentary evidence, that one  sister is currently seeking asylum in [Country].

14. In summary, the Tribunal is satisfied based on all the evidence before it and having regard to the concessions made by the applicant that there was non-compliance of the type alleged in the NOICC. The Tribunal finds that the applicant provided incorrect information in the resident return visa application when he stated his name was [Alias 1] and he was born in [Location], Afghanistan. The Tribunal also finds that he provided incorrect information when he answered no to questions about whether he had been known by any other names and whether he had any other identity documents.

15. Where an applicant becomes aware that earlier information provided was incorrect, there is an obligation under s 105 to provide particulars of incorrect answers and to give the correct answer. Therefore, the subsequent correction of incorrect answers, while it does not overcome the non-compliance with s 101, would avoid non-compliance with s 105, provided it was done as soon as practicable after becoming aware of the incorrect information.

16. The Tribunal accepts that before the applicant was granted a resident return visa the applicant advised the Department, in the context of responding to the NOICC his protection visa, that the information he had given to the Australian authorities about his identity was incorrect. The applicant’s failure to comply with the requirement to give correct information (s.101) at the time he applied for a resident return visa is not altered by the subsequent correction of the incorrect information in response to NOICC to cancel his protection visa.[8] However, the fact that the applicant subsequently corrected the error is relevant to the consideration of the discretion as to whether the cancellation power should be exercised: see s.109(1)(c) and reg.2.41(f).

    Conclusion on non-compliance

    [8] Jalal v MIMA (2000) 60 ALD 779 at [17]. The view expressed by Finkelstein J was not disturbed on appeal  MIMA v Jalal (2000) 102 FCR 63 at [19].

17. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg.2.41 of the Regulations. 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.

20. 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 Procedures 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 correct information

21. The Tribunal finds, based on the evidence that has been provided to the Tribunal, that the correct information is that the applicant is an Afghan citizen named [the applicant] who was born on [Date 4] in Iran to Afghan citizens. The Tribunal accepts that the applicant’s father and mother are citizens of Afghanistan who are residing in Iran as refugees. The Tribunal finds that the applicant was, at the time of his birth, and at the time he applied for the protection visa application, a citizen of Afghanistan. The Tribunal finds that the applicant has previously resided in Iran as a refugee and has previously held a genuine Iranian Special Pass for Foreign Citizens that was submitted with his previous application for a GSH visa. The Tribunal accepts that the applicant was issued with refugee documentation in Iran but, as he has left Iran, no longer has a legal basis to reside in Iran.

22. This consideration weighs in favour of cancelling his resident return visa.

    The content of the genuine document

23. This prescribed circumstance is not relevant in this case because the s.107 notice relied on s.101, not on s.103 (relating to bogus documents).

    The circumstances in which the non-compliance occurred

24. The applicant came to Australia as an unauthorised maritime arrival in 2012 and was granted a protection visa on the basis that he was an Afghan citizen of Hazara ethnicity and Shia religion. For the reasons given in case no. 1932624, the Tribunal has concluded that the applicant has deliberately provided incorrect information about his identity, age, family composition, place of birth, immigration history, and relatives in Australia in his application for a protection visa in 2012 and then in his application for a resident return visa in 2019. With respect to the non-compliance in 2019, the applicant has said that having obtained a protection visa in a false name he did not know how to extricate himself from this situation.

25. The Tribunal accepts that, prior to seeking asylum in Australia, the applicant lived as an Afghan refugee in Iran[9] and that most members of his immediate family still live in Iran as refugees. Credible sources indicate that Afghan refugees in Iran experience significant official and societal discrimination and that the Iranian authorities have subjected Afghan refugees to a range of rights abuses including arbitrary arrests and detentions.[10] It is becoming increasingly difficult for Afghan refugees who were registered as refugees before 2007 to reregister as refugees and Afghans are vulnerable to being deported without access to due process.[11] The Tribunal considers that the persecution faced by Hazara Shia Muslims in Afghanistan and the treatment of Afghan refugees in Iran provides the context in which the acts of non-compliance by the applicant occurred.

    [9] ‘Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights’, Human Rights Watch, November 2013, p. 65.

    [10] Ibid, p. 65.

    [11] Ibid, p. 65.

26. The Tribunal accepts that when the applicant gave incorrect information in his protection visa application he knew that previous visa applications made offshore in his name had been rejected and he hoped that he would be able to sponsor his family members to join him in Australia. However, the non-compliance that occurred in the present case occurred in 2019, seven years after the applicant arrived in Australia. While the applicant states he would have withdrawn the resident return visa application had he understood it could still result in the grant of a visa to him and that he believed he was ineligible for any other visa unless his protection visa application was set aside, it remains the case that at the time of the non-compliance he had lived in Australia for seven years under a false identity and that he provided incorrect information about his identity when he applied for the resident return visa.

1. The Tribunal gives the applicant’s explanation of the circumstances of the non-compliance some weight in favour of the cancellation of the visa.

   Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information

2. By the time the resident return visa was granted, the applicant had made admissions to the Department as to his identity. The delegate stated that:

   Given that the correct information about his identity was known to the delegate at the time Resident Return visa was granted, the delegate would likely have taken this into consideration and deemed it reasonable to proceed to grant notwithstanding the incorrect information in the application form. Therefore I find the grant of the Resident Return was not made, even in part, on any incorrect information.

3. It is clear that the Department granted the visa to the applicant in the identity of [Alias 1] in the knowledge that he had admitted providing incorrect information about his name, place of birth, and date of birth and immigration history.

4. The Tribunal gives this factor weight against the cancellation of the visa.

   The present circumstances of the visa holder

5. Since arriving in Australia, the applicant has undertaken study and found work in his brother’s [business]. He is involved in his local [sport] club, and his application for review was supported by members of the Hazara community in Canberra. Since his protection visa application was cancelled in 2019, the applicant has lived in the community without a valid visa. This is because as an unauthorised maritime arrival the applicant is prevented by s.46A from making a valid application for any visa, including a bridging visa, unless the Minister lifts the bar and permits an application for a specified visa. While it is clearly undesirable for individuals to live and work in the Australian community without a valid visa, these circumstances were beyond the applicant’s control as without the personal action of the Minister he could not apply for a bridging visa to regularise his status while his application for review was before the Tribunal.

6. On 6 January 2021 the applicant was granted a resident return visa in the name of [Alias 1] and on 15 April 2021 the Department cancelled the visa on the basis that the applicant had provided incorrect information in his application for this visa. As a result of this decision, the applicant is once again an unlawful non-citizen. As an unauthorised maritime arrival who has had his protection visa cancelled and his resident return visa cancelled, the applicant has no access to Medicare, no work rights, and is liable to mandatory detention. For the reasons that are set out below, the Tribunal has found he has a well-founded fear of persecution in Afghanistan.

7. Overall, the Tribunal considers the present circumstances of the visa holder should be given weight in favour of not 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

8. In response to the NOICC, the applicant has conceded that he provided incorrect answers in in his application for a resident return visa. The Tribunal accepts that, following the applicant’s concession that he provided incorrect information, he has sought to be honest in his dealings with the Department. The Tribunal acknowledges that when the Department granted the applicant a resident return visa in the identity of [Alias 1] in January 2021 the applicant immediately brought this to the attention of the Tribunal. The applicant now maintains his true identity is [the applicant], born on [Date 4].

9. The Tribunal gives this factor weight in favour of not cancelling the visa.

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

10. The applicant lodged a protection visa application using the alias [Alias 1]. After he was granted a protection visa in this name, he lodged a GSH visa application to sponsor his mother and siblings in 2013, using the alias [Alias 1]. The applicant has said that he regrets this conduct and that he wanted to assist his mother and siblings. The applicant also applied for Australian citizenship in 2016 in the name of [Alias 1].

11. The Tribunal has given this factor weight in favour of cancelling the visa.

    The time that has elapsed since the non-compliance

12. The relevant non-compliance in the present case took place in 2019 when the applicant applied for a resident return visa. The incorrect information the applicant provided in his resident return visa was, in substance, the same incorrect information he provided in his application for protection. After the applicant was granted a protection visa in 2012, the applicant established himself in the Australian community.

13. The Tribunal gives this consideration weight in favour of not cancelling the visa.

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

14. The delegate’s decision states that there is no evidence to indicate any breaches of the law since non-compliance. The Tribunal gives this consideration some weight in favour of the applicant.

    Any contribution made by the visa holder to the community

15. The applicant says he complies with the law and is well-respected and liked within the community. The Tribunal has read two character references, his school reports from [School], and notes that he has submitted an AFP police clearance. Further references that were provided to the Tribunal attest to his skill as [an Occupation]. The Tribunal accepts that he is a member of the local [sport] team and that he has become part of the community in which he lives. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

    Other factors

    Mandatory legal consequences

16. The Tribunal is required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether, upon cancellation, a person would become an unlawful non-citizen.

17. The applicant arrived in Australia as an unauthorised maritime arrival. As of 15 April 2021, the applicant is an unlawful non-citizen. If the applicant’s visa is cancelled, s.46A of the Act will prevent the applicant from making a visa application except with the authorisation of the Minister. As a result, the applicant will be unable to apply for a bridging visa or protection visa. In these circumstances, the consequence of the cancellation would be that the applicant would be detained under s.189 of the Act.

18. Under s.198(5) of the Act, the applicant would be removed from Australia as soon as practicable. Under s.197C, Australia’s non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations. The plain language of the Act means that there is no statutory requirement to consider the potential harm to the applicant before removing him from Australia.

19. The mandatory consequences of cancellation weigh in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

20. There is no suggestion that another person holds a visa in Australia as a family member of the applicant. This factor is not relevant in this case.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international obligations, family unity principles, best interests of the child

21. The Tribunal has considered whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights (the ICCPR) and its Second Optional Protocol (the Optional Protocol to the ICCPR).

22. The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.[12] In the absence of specific guidance on whether the Tribunal’s consideration of non-refoulement obligations should address whether the applicant meets the definition of refugee in article 1A(2) of the Refugees Convention or the codified definition of refugee in s.5H of the Act, the Tribunal considers the preferable approach is to consider whether the applicant comes within article 1A(2) of the Refugees Convention. Relevantly, Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    [12] Section 5(1), Migration Act 1958.

23. The Department’s Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·     there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·     the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

24. This policy indicates that a detailed international obligations assessment is to be undertaken where there are indications that cancelling a visa may engage Australia’s non-refoulement obligations before making the decision to cancel the visa. Notwithstanding this policy, the Department has not undertaken an International Treaties Obligation Assessment in relation to the cancellation of the applicant’s protection visa or his resident return visa.

    Country of nationality

25. The Tribunal finds that the applicant is a citizen of Afghanistan and has assessed his claims against that country. As an Afghan national, the Tribunal is satisfied that the applicant does not have a right to enter or reside in Iran.[13]

    Claims to have a well-founded fear of persecution

    [13] DFAT Country Information Report – Iran, 14 April 2020.

26. Before the Department, he submitted that if the visa is cancelled, he has a well-founded fear of persecution in Afghanistan on the basis of his Hazara ethnicity and Shia religion and also as a person who was born and grew up in Iran, and has now lived in the West.

27. The Tribunal has considered the risk profile of the applicant. For the reasons given in this decision, the Tribunal finds the applicant is a national of Afghanistan of Hazara ethnicity and Shia religion. The Tribunal accepts that if he is removed to Afghanistan he will be identifiable as a Hazara Shia from his physical appearance and his language, Hazaragi. The Tribunal accepts the applicant was born in Iran in [Year 4] and has never lived in Afghanistan. The Tribunal accepts that the applicant lived with his parents in Iran as a registered refugee but when he left Iran he lost his right to reside in Iran. The Tribunal accepts that his parents, three sisters, and eldest brother reside in Iran as refugees and that his fourth sister has sought asylum in [Country]. His eldest brother sought asylum in Australia in 2009 and was found to be a refugee as a Hazara Shia from Afghanistan. The Tribunal accepts that the applicant has never lived in Afghanistan and that, while he has some extended family members in Kabul, he has no meaningful connections in the country or local contacts.

28. For the reasons that follow, the Tribunal finds that the applicant faces a real chance of being persecuted if he is removed from Australia to Afghanistan for reasons of his Hazara ethnicity and Shia Muslim faith.

29. In February 2020, the UN stated they were ‘gravely concerned about the safety and security of the Hazara minority group and the negative impact on their freedoms of religion and movement and their quality of life’.[14] The most recent DFAT report, which was published in 2019, states that since the fall of the Taliban, Hazaras have experienced significant social and economic improvements, albeit from a very low base.[15] More recently in February 2021, the New York Times reported:

    Under the Taliban’s rule, thousands of Hazaras were massacred in pogroms. But since the American invasion in 2001 toppled the Taliban government, Hazaras have carved out thriving communities, businesses, schools and mosques in western Kabul and in Hazarajat, in the highlands of central Afghanistan.

    Yet the targeted violence hasn’t stopped.

    In recent years, hundreds have died in attacks on tutoring centers, mosques, hospitals, voting sites and even a wrestling club. More than 80 people perished in a double suicide bombing at a Hazara protest in Kabul in 2016. At least 31 died in a suicide bombing in a Hazara area during a 2018 celebration for Nowruz, the Persian New Year. Most of these attacks have been claimed by Sunni Muslim extremists of the Islamic State, who consider Shiites apostates and heretics.

    What progress has been made by the ethnic minority is threatened by such attacks, and now a possible return of the Taliban to government. As recently as 2018, Hazara civilians were killed and forced from their homes during a Taliban offensive in Hazarajat.[16]

    [14] ‘Afghanistan Protection of civilians in armed conflict first quarter report - 1 JANUARY - 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020.

    [15] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, p. 25.

    [16] >

    Sustained targeting of civilians of Shia Islamic faith, most of whom are ethnic Hazaras, continued throughout 2019[17] and 2020.[18] As religion, ethnicity and political allegiance remain linked, it is not always possible to distinguish between religion and ethnicity as the primary element behind certain incidents or tensions.[19] The Taliban has also targeted both Hazaras and Shias in general.[20] However, a report published by the Finnish Immigration Service (FIS) in October 2019 found ‘Hazaras are generally more at risk from ISIS [Islamic State of Iraq and Syria] and the Taliban than other groups, because of both their ethnicity and religion (Shia Islam)’ and that sectarian attacks against Shia and Hazara communities in Kabul have increased in the last three years.[21]

    [17] ‘Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)’, United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 8.

    [18] ‘Afghanistan Protection of civilians in armed conflict first quarter report - 1 JANUARY - 31 MARCH 2020’, United Nations Assistance Mission in Afghanistan (UNAMA), 27 April 2020, p. 4; ‘Gunmen Kill Dozens at Event Attended by Afghan Politicians’, Najim Rahim and Mujib Mashal, The New York Times, 6 March 2020.

    [19] ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 30 August 2018, pp. 61-62.

    [20] 'The case of Mawlawi Mehdi and Balkhab District: Are the Taleban attracting Hazaras?', Thomas Ruttig, Afghanistan Analysts Network, 23 May 2020, p. 1.

    [21] ‘Afghanistan: Fact-Finding Mission to Kabul in April 2019 - Situation of Returnees in Kabul’, Finnish Immigration Service, 15 October 2019, p. 23.

30. DFAT describes the security situation in Afghanistan as complex, dangerous and fluid. With respect to the risks facing Hazaras, DFAT advises that the risk profiles of ‘people associated with the government or international community’ and ‘Shias’, which is a high risk, apply to Hazaras because ‘Hazara are widely perceived to be supporters of the government’ and ‘the overwhelming majority of Hazara are Shia (or are widely perceived to be)’.[22] Other sources indicate that the Taliban and Islamic State Khorasan (ISK) especially target Hazaras,[23] and suggest that Hazaras are targeted because of their Shia religion and perceived closeness and support for Iran.[24]

    [22] ‘DFAT Country Information Report – Afghanistan’, DFAT, 27 June 2019, p. 26; ‘Operation Freedom’s Sentinel: Lead Inspector General Report to the United States Congress I January 1, 2020 - March 31, 2020’, Lead Inspector General, 15 May 2020, p. 18.

    [23] 'BTI 2020 Country Report Afghanistan', Bertelsmann Stiftung, 29 April 2020, p. 29; 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.

    [24] ‘Country Guidance: Afghanistan’ European Asylum Support Office (EASO), June 2019, p. 69.

31. Attacks on Hazaras continued throughout 2020. On 6 March in Kabul gunmen killed at least 32 people  at a ceremony commemorating a Hazara leader, Abdul Ali Mazari.[25] On 12 May 2020, gunmen entered a maternity hospital in Dashti Barchi, a mostly Shia neighbourhood and home to a large Hazara population, and killed 24 people.[26] While no group claimed responsibility, the attack has been attributed to ISK.[27] In August and September, Hazara-populated areas were repeatedly attacked by the Taliban.[28] In October 2020 Human Rights Watch described a massive suicide bombing outside the Kawsar-e Danish educational centre in West Kabul, a mainly Hazara Shia area, as ‘the latest attack cruelly targeting the Hazara Shia minority’.[29] The report continued:

    The explosion took place in a crowded, narrow street outside the center, killing 30 people and injuring more than 70, mostly children and young adults between 15 and 26 years old who were attending classes.

    Since 2017, the Dasht-e Barchi neighborhood, home to a predominantly Hazara community, has seen numerous attacks on civilians. A bombing at the Imam Zaman mosque in October 2017 killed 39; an attack on a school in August 2018 killed more than 34 students; and twin bombings at a wrestling club in September 2018 killed 20, including journalists and first responders who arrived after the first explosion. In May, gunmen murdered 15 women in the maternity wing of the Dasht-e Barchi hospital, many of whom were in labor or had just given birth.

    The Islamic State of Khorasan Province (ISKP), the Afghan branch of the Islamic State (ISIS), claimed responsibility for Saturday’s attack. The armed group has claimed responsibility for many such bombings and has long singled out Afghanistan’s Hazara Shia community for attack. Intentional attacks on civilians are grave violations of the laws of war, and those responsible should be prosecuted for war crimes.

    Many mosques and educational facilities in Kabul now have armed guards, but this offers little protection from such calculated attacks. Afghan authorities repeatedly promise investigations, including tasking the attorney general’s war crimes unit to carry them out, but none have yielded results, leaving family members of victims with neither answers nor justice.

    “They are killing our youth,” said the relative of one of the victims of Saturday’s attack.

    [25] 'Gunmen Kill Dozens at Event Attended by Afghan Politicians', Najim Rahim and Mujib Mashal, New York Times, The, 06 March 2020.

    [26] 'Babies among 24 killed as gunmen attack maternity ward in Kabul', Aljazeera, 13 May 2020.

    [27] Horrific Attack on Maternity Ward Threatens to Upend Afghan Truce', Stefanie Glinski, Foreign Policy, 14 May 2020.

    [28] 'Taliban kill 10 security forces in Daikundi and Urozgan', Kabul Now, 16 August 2020; 'More than 30 security forces killed in Daikundi in a month', Afghanistan Times, 08 August 2020; '14 Taliban fighters killed in Ghazni clash, bombing', Saifullah Maftoon, Pajhwok Afghan News -Afghanistan, 07 September 2020,; ''35 Taliban Killed' in Clashes with Security Forces: Officials', Tolo News, 27 September 2020,; 'Additional Forces Deployed in Ghazni', Mohammad Haroon Alim , Khaama Press, 07 September 2020.

    [29] 'Afghanistan School Bombing Targets Minority Community', Patricia Gossman, Human Rights Watch, 26 October 2020; 'The false inclusivity of the Taliban’s emirate', Mehdi J Hakimi, Aljazeera, 26 October 2020.

1. The government has implemented increased security measures to prepare for attacks against the Shia community, especially in Kabul. However, in 2019, most of the casualties inflicted on the Shia community were caused by targeted attacks during large religious or cultural gatherings.[30] Afghan media report that the Shia community consider that government protection from anti-government elements is inadequate.[31]

   [30] 'Afghanistan: Protection of civilians in armed conflict 2019 (February 2020)', United Nations Assistance Mission in Afghanistan (UNAMA), 22 February 2020, p. 48.

   [31] 'Afghanistan 2019 International Religious Freedom Report', US Department of State, 10 June 2020.

2. The applicant would be readily identifiable as a Hazara and a returnee from the West. Societal discrimination against Shia Hazaras occurs along class, race and religious lines, in the form of extortion of money through illegal taxation, forced recruitment and forced labour, physical abuse and detention.[32] Ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan[33] and the applicant would be in a particularly vulnerable position because of his lack of local knowledge and connections.

   [32] ‘2019 Country Reports on Human Rights Practices: Afghanistan’, United States Department of State, 11 March 2020, pp. 39-40; 'Persecution and perseverance: Survival stories from the Hazara community', Derakhshan Qurban-Ali and Hannah Scott, UN Human Rights Council, 24 July 2020; DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 14, 24.

   [33] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, p. 24.

3. Professor Maley warns that the situation in Afghanistan is extraordinarily fluid and that when the security situation in Afghanistan deteriorates ethnic minorities find themselves in the firing line. When security in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. Professor Maley observes that there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan observing:

   With the withdrawal of foreign forces, and particularly with the signing on 29 February 2020 of a US-Taliban agreement …there is a great deal of apprehension amongst Afghans about the future of the country, and there is a grave risk that Afghanistan will fall victim to what social scientists call a ‘cascade’, where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This .. [phenomenon] … would likely create especially serious risks for people of Hazara ethnicity since targeting Hazaras could be a device by which other groups might seek to establish their credentials in the eyes of the Taliban and their associates in groups such as the Haqqani network. [34]

   [34] On the return of Hazaras to Afghanistan, Professor William Maley AM, 7 November 2020

4. Professor Maley’s assessment is that, given this fluidity, there is no place in Afghanistan that can be considered safe for Hazaras.’[35]International troops are withdrawing at a time when violence is escalating and members of the Hazara community in Australia have expressed concerns that a resurgent Taliban will step up attacks against the Hazara community.[36] On 16 April 2021, the New York Times reported:

   Afghans’ fear is multifaceted, evoked by the Taliban’s grim record, bitter and vivid memories of civil war and the widely acknowledged weakness of the current government. These conditions in turn push Afghan thinking in one direction: The country’s government and armed forces won’t survive without American support. Many American policymakers, security officials and diplomats concur with this gloomy view. Just this week, the U.S. intelligence assessment, presented to Congress, suggested as much: “The Afghan government will struggle to hold the Taliban at bay if the coalition withdraws support.”

   During their five years in power, 1996 to 2001, the Taliban operated one of the world’s most oppressive and theocratic regimes, and there is little in their public posture and behavior during the group’s years of insurgency to suggest that much has changed, at least ideologically …

   [Under the heading ‘What does an American withdrawal mean for women and minorities in Afghanistan’ the article refers to the situation of the Hazara community as follows]

   … During the Taliban era, there was widespread persecution, and even massacres, of minority communities like the Hazara, an ethnic group that is mostly Shiite in a country where Sunnis predominate. Today’s Taliban, overwhelmingly Pashtun as before, single out the Hazara for mistreatment when they capture them at roadblocks, persecute them in their makeshift prisons, and have given no indication that they will protect minority rights in a government under their control.[37]

   [35] On the return of Hazaras to Afghanistan, Professor William Maley AM, 7 November 2020

   [36]

5. The evidence before the Tribunal is that the applicant’s father is from Maidan Wardak province although it appears the family may have lived in West Kabul before journeying from Afghanistan to Iran. The applicant has no family in Maidan Wardak province and has never lived in Afghanistan. DFAT reports that traditional extended family and tribal community structures are the main protection and coping mechanisms. The ongoing conflict has also significantly challenged the government’s ability to exercise effective control over large parts of the country. Large-scale attacks in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens. The ability of the Afghan national police to provide and maintain security and law and order remains limited, particularly outside major cities, and its overall capacity is constrained by a number of factors, including lack of resources, poor training and leadership, low morale and high levels of corruption. The COVID-19 pandemic has compounded these difficulties.

6. The country information clearly indicates that Hazaras are at elevated risk of targeting on the road networks in Afghanistan due to their ethnicity.[38] Kidnapping and abductions by anti-government elements occur regularly, ‘particularly on Afghanistan’s highly insecure road network’.[39] Hazaras travelling to and from the Hazarajat by road face an increased risk of kidnapping and abduction;[40] the main road connecting Kabul to Hazarajat (via Maidan Wardak province) is called ‘the road of death.’[41] Incidents involving Hazaras had included hostage taking, abduction, kidnapping and beheading[42] and roads in areas with large Hazara populations also suffer from improvised explosive device (IED) attacks.[43]

   [38] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 21-22.

   [39] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, p. 21. 'On Afghan Highways, Even the Police Fear the Taliban’s Toll Collectors', David Zucchino and Fahim Abed, The New York Times, 01 November 2020; 'Security Force Members Escape from Taliban Custody in Zabul', Tolo News, 11 October 2020; 'Taliban Executes Female Prison Guard, and U.N. Raises Concern Over Afghan Violence', Mujib Mashal and Najim Rahim, The New York Times, 27 July 2020; 'Customs staffs on strike over growing insecurity across Islam Qala-Herat highway', Kabul Now, 06 July 2020; 'Last Week ‘Deadliest’ in 19 Years of War: NSC', Massoud Ansar, Tolo News, 22 June 2020.

   [40] ‘The 116,550sq km (45,000sq miles) region of highlands and pastures [in central Afghanistan] where Hazaras have traditionally lived’: 'What peace means for Afghanistan's Hazara people', Bismellah Alizada, Aljazeera, 18 September 2019; 'Taliban kidnap 28 civilians in Maidan Wardak', Afghanistan Times, 25 November 2020; 'Taliban kidnap 28 Hazara travelers in Afghanistan', La Prensa, 25 November 2020.

   [41] 'What peace means for Afghanistan's Hazara people', Bismellah Alizada, Aljazeera, 18 September 2019; 'Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government', Hazara People, 01 February 2019, p.27; Hazara People, 01 February 2019, p.2.

   [42] 'Over A Century Of Persecution: Massive Human Rights Violation Against Hazaras In Afghanistan Concentrated On Attacks Occurred During The National Unity Government', Hazara People, 1 February 2019.

   [43] 'Landmines still kill and maim in Afghanistan', Afghanistan Times, 01 October 2020; 'Blast in Daikundi Kills 14 Civilians: Interior Ministry', Tolo News, 29 September 2020; '21 dead and wounded in fresh wave of Taliban violence', Kabul Now, 30 September 2020.

7. The applicant has never lived in Afghanistan and has no meaningful family support and given the risk of travelling on roads – particularly for Hazaras and Western returnees – the Tribunal is satisfied that there is a real chance that the applicant will face persecution throughout Afghanistan. Based on the country information and taking into account the specific risk profile of the applicant, the Tribunal is satisfied there is a real risk the applicant’s life and freedom would be threatened for the essential and significant reasons of his Hazara race, Shia religion and imputed political opinion if he were returned to Afghanistan.

8. The harm that the applicant fears from anti-Shia militant groups is from non-state agents. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. As noted above, the ongoing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country.[44] In April 2021 the United States Office of the Director of National Intelligence reported that ‘the Afghan Government will struggle to hold the Taliban at bay if the Coalition withdraws support’.[45] The Tribunal finds that the level of protection available to the applicant from the Afghan government does not meet the level of protection which citizens are entitled to expect.[46]

   [44] DFAT Country Information Report - Afghanistan, DFAT, 27 June 2019, pp. 21-22.

   [45]

   [46] MIMA v Respondents S152/2003 (2004) 222 CLR 1.

9. The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shia religion and the political opinion that would be imputed to him by the Taliban and anti-Shia militants because he would be readily identified as a Hazara Shia who has returned to Afghanistan from the West. The applicant has never lived in Afghanistan and these factors will only serve to elevate the risks he will face on return. It is also clear that the applicant would suffer significant hardship if returned to Afghanistan, where he has no local knowledge or experience or family support or network and in the face of such dire security conditions.

10. The Tribunal finds that the applicant is a refugee as that term is defined by article 1A(2) of the Refugees Convention and if he were to be removed from Australia this would breach Australia’s non-refoulement obligations.

    Conclusion

11. The Tribunal has carefully considered the factors that weigh for and against the cancellation of the visa. In the Tribunal’s opinion, the factors against cancelling outweigh those in favour of cancelling. The Tribunal therefore concludes the visa should not be cancelled.

100.   The Tribunal acknowledges that the applicant gave incorrect information about his true age, name, family composition and immigration history in his resident return visa and protection visa applications. This factor weighs in favour of cancellation in this case, as does his use of an alias, [Alias 1], in earlier visa applications. However, against these factors, the Tribunal places very significant weight on the fact that the applicant continues to face a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Refugees Convention reasons of his Hazara ethnicity, Shia religion and his imputed political opinion and that his removal would be in breach of Australia’s non-refoulement obligations.

101.   The Tribunal has considered the serious nature of the non-compliance and the circumstances in which the non-compliance occurred. The applicant provided incorrect information about matters which are fundamental to his identity in his RRV application and he also provided incorrect information about his identity in earlier visa applications, including his application for a protection visa and applications to sponsor family members to migrate to Australia. These actions undermine the integrity of Australia’s immigration system. While there is no excuse for such conduct, the applicant has expressed remorse for his actions and explained that he was motivated by a fear of being removed to Afghanistan, a country where he has never lived, and a desire to provide his family members with a safe and secure existence. When first confronted with allegations of his non-compliance with s.101(b) in relation to his protection visa application, the applicant conceded he provided incorrect information. The Department was aware of the incorrect information at the time the resident return visa was granted and proceeded to grant the visa rather than give him an opportunity to withdraw or amend the resident return visa application.

102.   On the available evidence the Tribunal is satisfied that the applicant’s identity is [the applicant], an Afghan national of Shia religion and Hazara ethnicity born in Iran in [Year 4]. The applicant is a member of an ethnic minority that has been persecuted in his country of nationality. Until he travelled to Australia he lived as a refugee in Iran where Hazara Afghan refugees face high levels of discrimination and the risk of arbitrary arrest and deportation. Following his arrival in Australia, he has built a reputation for himself as a skilled [Occupation] while working at his brother’s business. He is known within the Hazara community in Canberra and a member of the local [sport] club.

103.   For the reasons given above, the Tribunal is satisfied that the applicant’s removal from Australia to Afghanistan would breach Australia’s non-refoulement obligations.

104.   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. Having regard to all the relevant circumstances, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Frances Simmons
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.