2105466 (Migration)

[2021] AATA 5277

2105466 (Migration) [2021] AATA 5277 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105466

MEMBER:Alison Murphy

DATE:7 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made on 07 December 2021 at 9:03am

CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Federal Circuit Court remittal – incorrect answers provided in visa application – other name known by and previous humanitarian visa application not declared – facial image comparison – discretion to cancel visa – incorrect answers conceded – humanitarian visa application made by son, using name he assumed while hiding from Taliban and changing applicant’s name to match that – current visa might or might not have been granted if correct answers given – all family members well settled in Australia – applicant’s domestic support for children’s work and grandchildren’s education – country information, non-refoulement and possibilities of prolonged immigration detention or applying for protection visa – consequential cancellation of daughter’s dependant visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 140, 360(2)(a), 375A
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248


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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 143 (Contributory Parent) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

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

3. On 3 November 2020, this Tribunal (differently constituted) affirmed the decision to cancel the visa. The Tribunal’s decision was set aside by the Federal Circuit Court of Australia on 16 April 2021, the Minister conceding the Tribunal’s decision was affected by jurisdictional error as it had misconstrued s 140(1) of the Act.

4. On 17 May 2021 I determined the review application of the applicant’s son, [Mr A – alias], AAT proceedings 1914841. That review application raised similar issues and evidence to the current review.

5. The applicant was represented in relation to the review. In addition to the material on the departmental file, further submissions and documents were provided to the Tribunal on 10 November 2021.

6. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s 360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

7. The applicant is a [Age 1]-year-old female who arrived in Australia [in] March 2016 as the holder of a Contributory Parent (Subclass 143) visa, sponsored by her Australian citizen son, [Mr B]. She was accompanied by her daughter, [Ms C], who was granted a visa as a member of the applicant’s family unit.

8. The Department later biometrically matched the photographs of the applicant and her daughter to photographs of persons identified as [the applicant – alias] and [Ms C – alias], who were included in an application for a Global Special Humanitarian visa application lodged on 21 January 2010 which was later refused.

9. On 1 August 2018 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s 107 of the Act (the s 107 notice), advising that the delegate was considering the cancellation of her Contributory Parent visa on the ground that the applicant had given incorrect information in her visa application in breach of s 101(b) of the Act.  The applicant responded to the notice, providing statutory declarations and other documents relevant to the issues raised in the s 107 notice.

10. On 14 November 2018 the delegate cancelled the applicant’s Contributory Parent visa. The applicant seeks a review of that decision from this Tribunal.

    THE REVIEW PROCEEDING

    Non-disclosure certificate

11. The Tribunal has before it the departmental file relating to the cancellation of the applicant’s Contributory Parent visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 375A of the Act.

12. The certificate is dated 3 December 2018 and states that disclosure of folios 143-146 and 187 of the Department’s cancellation file would be contrary to the public interest because they relate to investigations undertaken by the Department, the disclosure of which would reveal the Department’s internal procedures and investigations. The certificate states that disclosure of folios 159-157 would be contrary to the public interest because they are classified as sensitive and their disclosure would reveal the Department’s internal procedures.

13. Where a certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the review.

14. The s 375A certificate appears to be valid on its face and the applicant’s representative has advised the Tribunal that they do not challenge the validity of the certificate. The Tribunal has not disclosed the information covered by that certificate during the course of the review, but it notes that the substance of the certificated information has been disclosed to the applicant in the s 107 notice and the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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.

17. 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?

18. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act in the following respects:

    ·The applicant applied for a Contributory Parent (Subclass 143) visa on 27 August 2013, sponsored by her Australian citizen son, [Mr B]. Her daughter, [Ms C], born [Date 1], was included in that visa application;

    ·In the visa application the applicant stated she had not been known by any other name and that she had been refused an offshore Subclass 202 visa in about 2008;

    ·A Facial Image Comparison conducted by the Department linked the applicant’s photograph in the Contributory Parent visa application to the photograph of an applicant for a Global Special Humanitarian visa application lodged on 21 January 2010 in the name of [the applicant – alias], born [Date 2]. That visa application was refused on 7 June 2010;

    ·A Facial Image Comparison conducted by the Department linked [Ms C]’s photograph to an applicant for a Global Special Humanitarian visa application lodged on 21 January 2010 in the name of [Ms C – alias], born [Date 3];

    ·In view of these matters, the s 107 notice set out that the delegate considered the applicant had given incorrect information in the Contributory Parent visa application  at question 8 (when she did not disclose that she had been refused a Global Humanitarian visa on 7 June 2010) and at question 15 (when she did not disclose that she had been known by the name [the applicant – alias]).

19. There is no dispute that the applicant provided incorrect information in the Contributory Parent visa application in the manner set out in the notice.

20. In both the response to the s 107 notice lodged with the Department and in submissions lodged with the Tribunal, it is acknowledged that the applicant was included in the 2010 Global Special Humanitarian visa application under the name of [the applicant – alias] and that visa application was refused.

21. It is conceded that the applicant gave incorrect information in the Contributory Parent visa application when she failed to disclose her inclusion in the 2010 Global Special Humanitarian visa application and when she failed to disclose that she had been known by the name [the applicant – alias]. The circumstances in which that occurred are discussed later in these reasons.

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

    Should the visa be cancelled?

23. 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).

24. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) and I have considered each of those circumstances below.

    The correct information

25. For the reasons set out above, I have found that the applicant was included in a Global Special Humanitarian visa application lodged in 2010 under the name of [the applicant – alias] and that visa application was refused. The applicant gave incorrect information in her Contributory Parent visa application when she failed to disclose these matters.

    The content of the genuine document (if any):

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

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

27. The applicant was granted the Contributory Parent visa application on the basis of the information she provided in that visa application, including as to her name, her family composition and her visa history.

28. It is difficult to assess whether the applicant would have been granted the Contributory Parent visa application had her inclusion in the 2010 Global Humanitarian visa application under another name been known to the Department at the time the visa was granted.

29. On the one hand, the applicant met and continues to meet the criteria for the Contributory Parent visa notwithstanding the incorrect information provided in that visa application. The delegate may have accepted the applicant’s explanation of the circumstances in which she came to be included in that visa.

30. On the other hand, the correct information about the applicant’s inclusion in the earlier visa application under another name would have raised further questions about the applicant’s identity and her relationship to the proposer that would have required resolution before any visa was granted, and may have impacted on the grant of the visa.

31. In submissions to the Tribunal, the applicant’s representative concedes that it is possible – although far from certain – that the Minister or his delegate would have refused to grant the applicant the Contributory Parent visa had it been known that she had previously made a false statement in the earlier visa application. The Tribunal concurs with that assessment.

    The circumstances in which the non-compliance occurred

32. The incorrect information was provided in the Contributory Parent visa application, which was lodged in 2013. The applicant is an elderly woman who does not speak or read English and I accept she signed the visa application forms completed by her sons.

33. In making that assessment I note that statutory declarations from the applicant’s sons [Mr B] and [Mr A – alias] were submitted to the Department and the Tribunal. I also heard oral evidence from [Mr B] and [Mr A – alias] in May 2021 in the context of [Mr A – alias]’s review, which concerned the cancellation of his own visa in similar circumstances to those that arise in the current review.

34. [Mr B] gave evidence to the Tribunal in May 2021 that he left Afghanistan in December 2000 and arrived in Australia by boat in April 2001, a matter confirmed by the Department’s movement records.

35. The applicant, her husband, their son [Mr A – alias] and their daughter [Ms C] left Afghanistan in about 2006 for Pakistan following the abduction of their son and brother [Mr D] by the Taliban. They did not discover his whereabouts until they were reunited with him in Quetta, Pakistan in about 2009, learning then that he had been released by the Taliban and had assumed the name [Mr D – alias] to avoid the Taliban. In Pakistan the family lived as refugees and the applicant’s husband died in 2007.

36. In 2007, [Mr B] lodged an application for a global humanitarian visa, proposing to bring the applicant, her daughter [Ms C] and her son [Mr A – alias] to Australia. That application was refused in 2008.

37. [Mr D] arrived in Australia by boat in 2009, using the name [Mr D – alias]. He lodged a further global humanitarian visa application for the applicant, his brother and sister. In this visa application the applicant, his brother and sister were incorrectly identified as [the applicant – alias], [Mr A] and [Ms C – alias] and that visa application was refused in January 2010. [Mr D – alias] states in his statutory declaration made 12 August 2018 that after he arrived in Australia, other detainees told him that if he told the Australian authorities his real name, he would be deported back to Afghanistan and so he assumed the name he had used in Afghanistan when hiding from the Taliban. When he tried to sponsor his mother and siblings to come to Australia, he changed their names to match his own.

38. The applicant’s son, [Mr A – alias], arrived in Australia in May 2010 aged [Age 2]. He gave evidence he was afraid he would be refused refugee status and expose his brothers in Australia to trouble if he gave his real name and was linked to the earlier visa applications and his brothers in Australia. He was granted his visa under the assumed name of [Mr A – alias] without the Department becoming aware that he had been included in the earlier visa applications, or of his relationship to his brothers [Mr B] and [Mr D – alias] who were already in Australia.

39. The applicant and her daughter [Ms C] arrived in Australia [in] March 2016 as holders of a Contributory Parent visa sponsored by her Australian citizen son, [Mr B].

    The present circumstances of the visa holder

40. The applicant lives in Melbourne with her adult children [Mr B], [Mr A – alias] and [Ms C] as well as [Mr B]’s wife and children. Her other son [Mr D – alias] lives nearby with his own wife and children. [Mr D – alias], [Mr B] and [Mr B]’s wife and children are all Australian citizens.

41. The applicant is supported entirely by her four children in Australia. She does not receive government benefits (other than access to Medicare); rather, she is entirely financially supported by her children including the annual $4,344 cost of her private health insurance policy (as evidenced by the [Health insurer] policy statement dated 8 November 2021). She has 10 grandchildren in Australia for whom she cooks and cleans, allowing their parents to work. Her two eldest grandchildren are studying [Subject] and her children run successful [businesses], allowing [Mr B] to save the $84,440 contribution that enabled the applicant and her daughter to obtain their visas for Australia.

42. The applicant has had a traumatic life, losing one daughter in childbirth and another daughter when the vehicle in which she was travelling with her husband was hit by a Taliban rocket. She was displaced from Afghanistan and lived as a refugee in Pakistan, where she was widowed.

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

43. The applicant acknowledged the non-compliance in the response to the s 107 notice and has provided particulars of the incorrect information and the circumstances in which it was provided, including statutory declarations from her three sons [Mr B], [Mr D – alias] and [Mr A – alias].

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

44. Apart from the non-compliance set out in the s 107 notice, the delegate records that the applicant also gave incorrect information in the Contributory Parent visa application when she stated that her sons [Mr A] and [Mr D] were dead, when in fact they were resident in Australia using the names [Mr A – alias] and [Mr D – alias]. The applicant acknowledges this to be the case, but notes it was voluntarily disclosed to the Department by the applicant and her children in response to the s 107 notice.

    The time that has elapsed since the non-compliance

45. The relevant non-compliance took place when the applicant made the Contributory Parent visa application in 2013 and approximately eight years have elapsed since then. She and her daughter were the last of their immediate family members to resettle in Australia and I accept they are well-settled in this country with their other family members.

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

46. The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

    Any contribution made by the holder to the community

47. The applicant’s representative acknowledges that the applicant’s contribution to the community is primarily reflected in her efforts to support her family. She supports her adult children to raise her 10 grandchildren, cooking and cleaning for them, thereby supporting the adult children to work and the grandchildren to study. As noted above, her adult sons run a successful [business] that employs others and pays taxes and two of her grandchildren are currently studying [Subject] degrees.

    Other factors to be considered

48. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Mandatory legal consequences of the cancellation

1. In considering the mandatory legal consequences to the cancellation decision, I note that if the applicant’s Contributory Parent visa remains cancelled the applicant will have the option of making an application for a protection visa. In the absence of the grant of another visa, the applicant will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. While a detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so, such a decision is not reviewable or compellable.

2. Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[1] However, it remains the case that s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal and any consideration of how the Minister may exercise his discretion is merely speculative. Therefore, I accept that the potential impact of cancellation is that the applicant may be liable to prolonged detention unless she decides to return to Afghanistan voluntarily.

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

3. The prospects of any voluntary return appear remote, given the collapse of the elected Afghan government in August 2021 and the takeover by the Taliban. Further the applicant’s three adult sons are settled in Australia and are unlikely to return to Afghanistan. I consider the prospect of the applicant facing a prolonged period in immigration detention weighs significantly against the cancellation of the visa.

4. For the sake of completeness I note that the provisions s 197C(3) of the Act do not apply in this case as the applicant has never made a valid application for a protection visa that has been finally determined pursuant to s 197C(3)(a).

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

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

6. As a party to the Refugees Convention, Australia has non-refoulement obligations in respect of people who are refugees as defined in Article 1 of the Convention. 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.

7. In relation to the Refugees Convention, the 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.

8. The delegate’s decision records that the applicant is an Afghan national whose three sons arrived in Australia as asylum seekers and were granted protection based on their persecution in that country as ethnic Hazaras. The delegate notes that the applicant fled Afghanistan and lived in Pakistan prior to her arrival in Australia. However, the delegate considered that cancelling the applicant’s Contributory Parent visa would not breach Australia’s non-refoulement obligations as the applicant could make an application for a further visa to remain in Australia.

9. In the current review, it is submitted that the Tribunal should apply the findings it reached about Australia’s non-refoulement obligations in respect of the applicant’s son [Mr A – alias] (AAT proceedings 1914841). It is submitted that the applicant in this case is at an even higher degree of risk as an elderly Hazara woman without male protection in Afghanistan.

10. It has been widely reported that in August 2021, in the wake of the withdrawal of international troops from Afghanistan, there was a rapid deterioration of the security and human rights situation across Afghanistan. The Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[2] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[3] By 17 August 2021, the Taliban had declared they had no interest in a shared interim government and installed themselves as the new government of Afghanistan.[4]

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

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

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

11. The recent nature of these developments raises questions about the future of religious and ethnic minorities and other vulnerable groups in Afghanistan under Taliban rule, including Hazara Shias such as the applicant. History shows that the Taliban’s previous takeover of Kabul and most of Afghanistan in 1996 marked a period of considerable repression for Hazara, leading many to flee Afghanistan.[5]

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

12. Other country information to which the Tribunal has been referred suggests that the last time the Taliban controlled Afghanistan, it subjected Hazara Shias to violent persecution including the Mazar-e-Sharif massacre on 8 August 1998 in which the Taliban went from house to house systematically executing all males of fighting age in front of their families, killing around 2,000 people.[6]

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

13. There are some indications that the new Taliban regime may be more inclusive than the previous Taliban regime that fell in 2001. On 22 September 2021, the International Crisis Group (ICG) reported that the Taliban had published new ministerial appointments which slightly broadened the new government’s makeup and included a small number of ethnic minorities, including one Hazara. However, it noted that while the inclusion of more officials from minority groups is something western and regional governments have been pushing for, these nominations do not indicate the Taliban are willing to make any significant concessions for the sake of international recognition, sanctions relief or foreign aid, rather they are ‘designed largely to strike an internal balance by accommodating various Taliban factions that felt neglected following the first round of nominations.’[7]

    [7] ICG, 28 September 2021

14. The United Nations General Assembly (UNGA) reports that while the Taliban have attempted to portray to the world that they will respect human rights and lead a more inclusive government, the reality on the ground does not reflect this. Rather, after seizing Kabul, the Taliban are reported to have erected checkpoints throughout the capital and shot people who crossed checkpoints without approval, and conducted house-to-house searches for government personnel, weapons and property.[8]

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

15. Analysts describe the Taliban as a ‘religiously motivated, religiously conservative movement that will not give up what they consider their core “values”.’[9] Reuters reported on 17 August 2021 that, ‘[a]lthough much had yet to be finalised, [Waheedullah] Hashimi [a senior member of the Taliban] said the country would not be a democracy, “There will be no democratic system at all because it does not have any base in our country,” he said. “We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is sharia law and that is it.”’[10]

    [9] CTC Sentinel, Have the Taliban Changed? (page 1), March 2021

    [10] Reuters, ‘Exclusive: Council may rule Afghanistan, Taliban to reach out…’, 18 August 2021

16. The current situation in Afghanistan is described as tense and fragile:

    The Taleban as a movement is involved in a complicated transition from a relatively lean and loosely organised insurgent movement, with a very rudimentary governance structure, to a complete administration that is supposed to make, clarify and communicate policies, regain control over its own ranks, determine where and by whom decisions are made, establish diplomatic relations and stave off economic disaster. All in the span of weeks, while wrapped in a tight-lipped internal power struggle and disagreements over what it means to be an Islamic Emirate. They feel the heat and psychological impact of scattered Islamic State Khorasan Province (ISKP) attacks and are closely watched and criticised by an impatient outside world.[11]

    [11] Martine van Biljert The Taleban’s caretaker Cabinet and other senior appointments Afghan Analysts Network 7 October 2021

17. Amnesty International reported that Taliban fighters massacred nine ethnic Hazara men after taking control of Afghanistan’s Ghazni province in July 2021 in the village of Mundarakht, Malistan district.[12]

    [12] AI – Amnesty International: ‘Afghanistan: Taliban responsible for brutal massacre of Hazara men – new investigation’, Dokument #2058574 - ecoi.net

18. In June 2021 EASO reported that:

    According to two international sources interviewed by Landinfo in October 2019, 10 to 15 kilometres on the Kabul-Bamyan Highway had been controlled by the Taliban for several years… Roadblocks/checkpoints and IED emplacement by armed opposition groups have been reported, as well as people being killed, kidnapped, (passengers working for the Afghan government, NGOs or international troops) and/or extorted by Taliban militants. The victims were mainly Hazaras travelling on this route between Kabul and the Hazarajat region.’[13]

    [13] EASO, Afghanistan security situation, Country Information Report, (page 139) June 2021

19. However, in 2020 EASO noted that:

    The Taliban denied involvement in recent attacks on Shias and at occasions condemned them. Nevertheless, local populations reportedly do not necessarily distinguish between the Taliban and the IS, which also includes former Taliban members.’[14]

    [14] EASO, ‘COI query: Hazaras, Shias’, 29 July 2020

20. In November 2018, the Afghan Analysts Network reported Taliban attacks on the Hazara community in Uruzgun and Ghazni provinces, describing them as unprecedented in terms of the number of incursions and casualties and the level of coordination:

    The initial attack on the largely self-governing Hazara enclave in the northeast of Khas Uruzgan was in response to Shujai’s visit – and possibly his behaviour towards Pashtuns while he was there. At the same time, it came in the context of increased pressure by the Taleban on the Hazara population in areas they had so far largely left alone. Coming at a time when the government and the Taleban are talking about a possible peace process, the Taleban suddenly seemed keen to show their reach and to increase their local revenue streams. The attacks appeared to fly in the face of local agreements between Hazara populations and the Taleban to largely leave each other alone. The level of violence and the slowness of the government to respond have, moreover, fed into fears of ethnic targeting by the Taleban and ethnic bias from the government.’[15]

    [15] AAN, ‘Taleban Attacks…A new and violent push into Hazara areas’, 28 November 2018

21. Even prior to the takeover of Afghanistan by the Taliban in August 2021, Afghanistan’s Shia Hazara minority was targeted by other anti-government elements (AGEs), most notably Islamic State Korasan Province (ISKP). As early as 2016, the United Nations Assistance Mission in Afghanistan noted ‘an emerging patterns [sic] of deliberate sectarian attacks against the Shia Muslim minority’ by a range of AGEs including, but not limited to, the Taliban.[16] The Department of Foreign Affairs and Trade (DFAT) repeated these concerns in its September 2017 Thematic Report: Hazaras in Afghanistan, which reported a rise in targeted attacks on Hazara Shias throughout Afghanistan since 2016.[17] Similarly, in 2018, the UNHCR reported a significant increase in harassment, intimidation, kidnappings and killings of Hazara Shias at the hands of Taliban, Islamic State and other AGEs.[18]

    [16] UNAMA Afghanistan Protection of Civilians in Armed Conflict Annual Report 2016 (February 2017) 34; EASO, Country of Origin Information Report – Afghanistan – Individuals targeted by armed actors in the conflict December 2017 at 54

    [17] DFAT, DFAT Thematic Report: Hazaras in Afghanistan 18 September 2017 at 10

    [18] United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan 30 August 2018 at 94

22. The UNGA reported that the number of attacks by ISKP increased in the months leading up to the Taliban’s takeover, to 88 between 16 May and 18 August September 2021, compared with 15 during the same period in 2020. This included a series of attacks using improvised explosive devices against religious minorities, including a Hazara gathering in Kunduz city on 13 May and a Sufi mosque in Kabul on 14 May, and several passenger vans either carrying Hazara Shias or travelling through predominantly Hazara Shia populated areas in Parwan Province and Kabul between 1 and 12 June.[19]

    [19] UNGA, 2 September 2021, p. 6

23. In August 2021, the UNHCR reported that the situation in Afghanistan remains fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It states that in view of the volatility of the situation, the UNHCR does not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country has stabilised.[20]

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

24. As well, the applicant is an elderly woman who would be returning to Afghanistan without a male protector, her husband being deceased and her sons now long settled in Australia. DFAT reports that ‘Hazara women – like all women in Afghanistan – experience high levels of societal discrimination and gender-based violence, including sexual assault and domestic violence.’ DFAT describes violence against women as ‘endemic in Afghanistan’, recounting an example where the Taliban lashed two women on the accusation that they had committed ‘immoral activities’ including ‘speaking to men to whom they were not related over the telephone and being outside of their homes without a male relative to act as a guardian’. DFAT concludes that ‘the majority of Afghan women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination’ and that they are ‘particularly vulnerable to the effects of the continuing armed conflict, and face an elevated risk of conflict-related death or injury’. [21]

    [21] DFAT Country Information Report 27 June 2019 at 3.67 – 3.69

25. I note that DFAT’s current report was published more than two years prior to the recent takeover of Afghanistan by the Taliban. After the Taliban regained control over Afghanistan in August 2021, it was reported that the Taliban leadership asked women to stay at home until the situation normalised, warning that untrained Taliban forces may mistreat them.[22]

    [22] A Taliban spokesman urges women to stay home because fighters haven’t been trained to respect them, Maggie Astor, Sharif Hassan and Normitsu Onishi, New York Times, 24 August 2021 and updated 14 September 2021

26. Other media reports suggest that since seizing control of Afghanistan, the Taliban have rolled back women’s hard-won rights to work, leave home unchaperoned and attend high school, despite their initial assurances that women would be respected in accordance with sharia law. In November 2021 it was reported that the bullet-riddled bodies of four Afghan women said to have participated in demonstrations against the Taliban’s repression of women were found dumped in a pit in Mazar-e-Sharif, with fears that those protesting were being hunted down and picked off.[23]

    [23] Hodge A Female Activists killed after Taliban protests The Australian 6 November 2021 at theaustralian.com.au

27. At this stage there are many uncertainties as to the future for Afghanistan’s women, and religious and ethnic minorities under the new Taliban regime. This includes whether the Taliban themselves will be the agents of harm as they have been in the past, as well as the level of protection the Taliban will be willing or able to provide against attacks by other AGEs.

28. The recent events in Afghanistan, as discussed above, cause me to consider that the applicant has strong claims for protection by Australia if she makes an application for a protection visa. In that sense the cancellation of the applicant’s resident return visa will not necessarily lead to the applicant’s removal from Australia. However, I accept that the process of lodging a protection visa application and having that application assessed may be lengthy and in any event the outcome of such a visa application cannot be certain. If the applicant is not granted another visa she potentially faces a period of prolonged detention.

29. I consider these matters weigh very substantially against cancellation of the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

30. The applicant’s daughter [Ms C] was granted her visa on the basis that she was a dependent of the applicant, and [Ms C]’s visa was consequentially cancelled by operation of s 140 of the Act as a result of the cancellation of the applicant’s visa. That consequential cancellation is not reviewable by this Tribunal.

31. Should the applicant’s visa remain cancelled, [Ms C]’s visa will also remain cancelled and [Ms C] will also be liable to be detained or returned. The partner visa application made by [Ms C] before her visa was cancelled in respect of her UK based husband has been refused as a result of the consequential cancellation of [Ms C]’s visa.

    Mandatory consequences of the visa cancellation

1. The delegate’s decision records that if the applicant’s visa remains cancelled, she would become an unlawful non-citizen and liable for detention under s 198 of the Act. She would also be subject to s 48 of the Act, meaning that she will have limited options to apply for a further visa while in Australia and a three year exclusion period before she is eligible for the grant of a further visa. The delegate noted that the applicant would be able to apply for a bridging visa while finalising her departure arrangements or awaiting a review of the current decision. As noted above, the applicant may also apply for a protection visa.

   Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

2. As I noted in my earlier decision relating to the cancellation of the visa held by the applicant’s son, the provision of the incorrect information has had serious and long reaching consequences for the applicant and her family. As set out above, the applicant’s contributory parent visa required her sponsoring son [Mr B] to make a contribution of $84,440 to the Australian government. If her visa remains cancelled that contribution will be lost to the family.

3. The applicant’s daughter [Ms C]’s visa was consequentially cancelled pursuant to s 140 of the Act and her partner visa application refused.

4. The applicant’s son [Mr A – alias]’s resident return visa was cancelled on 7 June 2019 and that decision was overturned by this Tribunal on 17 May 2021. Processing of the partner visa application was still pending at the time of the decision to cancel, resulting in a lengthy separation from his wife in Quetta, Pakistan. His application for Australian citizenship was refused on 11 June 2019.

5. The applicant lives with her children and grandchildren who support her financially and she provides support to them by undertaking household duties to the family and helping look after the grandchildren. I accept that cancellation of the applicant’s visa will cause significant hardship not only to the applicant but also to her family members in Australia, many of whom are Australian citizens.

   EXERCISE OF DISCRETION

6. Having given careful consideration to all the relevant circumstances, I consider the matters to which I am required to have regard weigh overall against cancelling the applicant’s visa.  In particular, I give significant weight to the following matters:

   ·The applicant is an elderly woman who does not speak or read English and she signed the visa application forms completed by her sons;

   ·The applicant has frankly acknowledged the non-compliance and has provided particulars of the incorrect information and the circumstances in which it was provided, including statutory declarations from her three sons [Mr B], [Mr D – alias] and [Mr A – alias];

   ·If the applicant’s Contributory Parent visa remains cancelled the applicant will have the option to make an application for a protection visa and I consider she has strong claims against the protection criteria. In that sense the cancellation of her Contributory Parent visa will not necessarily lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement obligations. However, the process of lodging a protection visa application and having that application assessed may take considerable time and in any event the outcome of such a visa application can never be certain. If she is not granted another visa, she will become an unlawful non-citizen;

   ·Current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan given the current security situation.[24] Therefore the potential impact of cancellation is that the applicant may be liable to prolonged detention. Should the applicant’s visa remain cancelled, her daughter [Ms C]’s visa will also remain cancelled and [Ms C] will be liable for detention or removal;

   ·The applicant is financially supported entirely by her children in Australia. She does not receive government benefits (other than access to Medicare) and her son pays the annual $4,344 cost of her private health insurance policy. She has 10 grandchildren in Australia for whom she cooks and cleans, allowing their parents to work. Her two eldest grandchildren are studying [Subject] and her children run successful [businesses];

   ·The applicant has had a traumatic life, losing one daughter in childbirth and another daughter in Afghanistan’s conflict. The applicant and her family were displaced from Afghanistan and lived as refugees in Pakistan, where the applicant was widowed. Since her arrival in Australia with her daughter [Ms C], she has lived with her adult sons and their families;

   ·The material before me indicates the applicant has not breached any laws since arriving in Australia. Rather, she is an important part of a strong, multi-generational family unit who run successful businesses and are financially independent of the Australian government.

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

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

   CONCLUSIONS

8. 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 discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

   Alison Murphy
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.