2118425 (MIGRATION) - [2024] AATA 547

2118425 (MIGRATION) [2024] AATA 547 (21 JANUARY 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ahmad Dostizada
CASE NUMBER:  2118425
MEMBER:Wayne Pennell
DATE:21 January 2024
PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 21 January 2024 at 2:13pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) – repeated false and misleading information about identity – inconclusive authenticity of Tazkira – Hazara ethnicity – Shi’a Muslim – failing to declare his full name within the applications to the Department – impact on mental health – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 46, 116, 375, 423
Migration Regulations 1994, Schedule 2
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision dated 1 December 2021 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under section 116 of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa under section 116(1AA) of the Act on the basis that the delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 September 2023 and 6 November 2023 to give evidence and present arguments. The applicant was represented in relation to the review hearings which were conducted with the assistance of an interpreter in both the Hazaragi and English languages.
APPLICANT’S BACKGROUND AND IMMIGRATION HISTORY
Applicant’s arrival at Christmas Island and protection visa application
To fully explain the circumstances in respect to the applicant’s identity, and his lengthy association with the Department involving a number of different applications, it is important for those circumstances be outlined.
The applicant initially arrived as an irregular maritime arrival by boat at Christmas Island on [date] July 2010. He sought to engage Australia’s protection obligations and he identified himself as [Applicant Name]. He claimed he was born in Afghanistan in [year] and was a [age] year old unaccompanied minor. He did not have any identification documents in his possession to prove his identity or his citizenship as an Afghan national.
On 21 July 2010, the applicant took part in an ‘entry interview’ with an officer from the Department. During that interview, he claimed that he fled to Pakistan because his father refused to join the Taliban to fight, so the Taliban killed him (his father). He said that his mother told him the Taliban wanted to occupy the family’s land and that they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2118425 (MIGRATION)

Details

AGLC: 2118425 (MIGRATION) [2024] AATA 547
Case: [2024] AATA 547
Decision Date: 21 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who arrived in Australia as an irregular maritime arrival in 2010, had a history of providing inconsistent information to the Department regarding his identity, family, and reasons for fleeing Afghanistan. The core of the dispute revolved around the applicant's repeated provision of false and misleading information, particularly concerning his name and the circumstances of his father's death, which he initially claimed was at the hands of the Taliban due to his Hazara ethnicity and Shi’a Muslim faith.

The Tribunal was required to determine whether the cancellation of the applicant's visa was justified, considering the applicant's submissions regarding the potential hardship he would face, including risks to his life if returned to Afghanistan due to his ethnicity and religion. The Tribunal also had to consider whether any cancellation would result in a breach of non-refoulement obligations. A key legal issue was the weight to be given to the applicant's claims of potential harm in Afghanistan against the established pattern of providing false and misleading information to Australian authorities.

In its reasoning, the Tribunal found that the applicant's claims of fleeing Afghanistan due to persecution based on his ethnicity and religion were contradicted by evidence, including his mother's earlier statements to the Department that the family moved for his father's medical treatment. The Tribunal accepted that while the applicant's ethnicity and religion might be relevant in a protection visa application, there was nothing preventing him from making such an application. The Tribunal applied the principle that visa cancellation is legally distinct from removal and concluded that cancellation would not breach non-refoulement obligations. The Tribunal also considered the applicant's submissions regarding hardship, including potential impacts on his mental and physical health and financial situation, but ultimately found that the evidence strongly favoured cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 22 September 2023 and 6 November 2023 to give evidence and present arguments. The applicant was represented in relation to the review hearings which were conducted with the assistance of an interpreter in both the Hazaragi and English languages.APPLICANT’S BACKGROUND AND IMMIGRATION HISTORYApplicant’s arrival at Christmas Island and protection visa application To fully explain the circumstances in respect to the applicant’s identity, and his lengthy association with the Department involving a number of different applications, it is important for those circumstances be outlined. The applicant initially arrived as an irregular maritime arrival by boat at Christmas Island on [date] July 2010. He sought to engage Australia’s protection obligations and he identified himself as [Applicant Name]. He claimed he was born in Afghanistan in [year] and was a [age] year old unaccompanied minor. He did not have any identification documents in his possession to prove his identity or his citizenship as an Afghan national. On 21 July 2010, the applicant took part in an ‘entry interview’ with an officer from the Department. During that interview, he claimed that he fled to Pakistan because his father refused to join the Taliban to fight, so the Taliban killed him (his father). He said that his mother told him the Taliban wanted to occupy the family’s land and that they (the Taliban) would also kill the applicant because he was a Shi’a Muslim. He claimed that he left Afghanistan between 2002 and 2003 and fled to Pakistan. As revealed later, his claim about his father being killed by the Taliban was a fabrication. He told the Department that after he arrived in Pakistan, he worked for approximately three years as a [Occupation 1] and in 2006, the Pakistan authorities deported him back to Afghanistan. He claimed that to make a living in Afghanistan, he worked as a street vendor. He did not stay in Afghanistan for very long and he returned to Pakistan where he met with a smuggler who provided him with identity documents which allowed him to travel to another country. In late 2006 he travelled to [Country 1] where he worked for three years in a [workplace]. He was able to save enough money to fund his travel Australia. At the time he participated in the entry interview, he provided the following names in respect to the composition of his immediate family.(a)Father – [Mr A] – born in [year] – deceased in 2003.(b)Mother – [Ms B] – born in [year] – residing in Afghanistan.(c)Sister – [Ms C] – born in [year] – residing in Afghanistan.(d)Sister – [Ms D] – born in [year] – residing in Afghanistan.(e)[Mr E] (male cousin) – born in [year] – residing in Afghanistan.(f)[Ms F] (female cousin) – born in [year] – residing in Afghanistan. The applicant went on to claim that his mother was caring for his cousins, [Mr E] and [Ms F] because his maternal aunt had died. He also said had never been in contact with anyone in Australia and that he had never previously applied for a visa to enter Australia. The Department later discovered that those claims were untrue.

Evidence

Evidence Before The Court

In respect to the statutory declaration from [Mr L] dated 2 July 2021, the contents of the statutory declaration have already been discussed by the Tribunal in paragraphs 76 to 79 of these Reasons in respect to the applicant sending money to [Mr L].Applicant’s evidence at the review hearing Throughout the hearing process, it was found that the information provided by the applicant was contrary to the position he had always maintained in respect to his name and the fate of his late father. As it has already been identified in these Reasons, the applicant has always maintained that his name was [Applicant Name] and that his family had to flee Afghanistan because the Taliban killed his father. He no longer holds that position. When describing his family composition during the hearing, the applicant said that his father’s name was [Mr K] but he had passed away in Pakistan sometime around 2004 or 2005. His mother is [Ms B] and she lives in Pakistan with the applicant’s wife. His brother [arrived] in Australia before the applicant arrived and he lives in Australia and is an Australian citizen. His sister [Ms I] has also relocated to Australia about seven years ago and she lives with her husband. His other sister [Ms J] still lives in Pakistan. He had an older brother called [name] who is missing in Afghanistan. He cannot recall ever meeting him. When asked why he and his family left Afghanisan, he said that he was not sure as his mother never told him why they left Afghanistan and moved to Pakistan, although he did recall that the Taliban were capturing and killing people and the was a lot of danger around. The Tribunal found that his responses to the questions on this issue were vague and when pressed as the circumstances that led up to his family relocating to Pakistan, he said that he recalls they left Afghanistan because there was fighting between different groups and there was unrest and the Taliban was taking people and torturing them. In regard to the reasons for his family relocating from Afghanistan to Pakistan, the Tribunal accepts the explanation given by the applicant’s mother in her statutory declaration that the family moved because the applicant’s father required medical treatment. That explanation is corroborated by what she said in her 2008 interview with the Department. When asked about his father and whether his father was with him in Pakistan, the applicant confirmed that when he and his family moved to Pakistan, his father passed away sometime around 2004 or 2005. Clearly his father had not been killed by the Taliban as he had always claimed. When asked about the 2007 and 2009 visa applications where his brother was sponsoring the family to come to Australia, the applicant confirmed that he was nominated in those earlier applications, but claimed that he did not know at the time what name he was nominated as. When asked about the Department’s interview process in 2008 relating to the family’s 2007 application, he said that he could not recall speaking to anyone from the Department, but knew that his mother had been interviewed.

Decision

Reasons for decision

The Tribunal has very carefully considered all of the circumstances, evidence and features of this matter and is satisfied that the evidence support a finding in very strong weight in favour of cancellation of the applicant’s visa.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.Wayne PennellSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. The applicant claims that the risk of harm is associated with his ethnicity as a Hazara and his religion being Shi’a Muslim, however the Tribunal is satisfied (and so finds) that there is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application, and there is no suggestion that he is prevented from validly applying for a protection visa by section 48A of the Act, or from being granted one because of any character issues or any other criteria.[12][12]BCR16 vMinister for Immigration and Border Protection (2017) 248 FCR 456.CONSIDERATION OF DISCRETION There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.·the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia. The applicant submitted that he fled Afghanistan because his life was at risk there due to his religious and ethnic identity, and the Department had assessed him as a genuine refugee. Since arriving in Australia, he has worked hard and supported himself and his family in Quetta Pakistan, and he has paid his fair share of taxes and has never been in trouble with the law. In response to that submission, the Tribunal accepts that the Department had undertaken an assessment and was satisfied on the information he provided at that time that he was a refugee. However, the Tribunal does not accept the submission that he fled Afghanistan because of his ethnicity and religion. The Tribunal in adopting that position considers that the evidence refutes his claim. When his mother was interviewed by the Department in 2008, she disclosed that the applicant’s family, including his parents, had moved from Afghanistan to Pakistan so that medical treatment could be obtained for the applicant’s late father. In respect to his claims that any cancellation of his visa provides that he is potentially liable to be deported to Afghanistan where his life as a Shi’a Muslim and a Hazara is at grave danger. This is particularly the case given that the whole country is now in the hands of the Taliban who have historically persecuted Hazaras and Shi’a Muslims in Afghanistan. ·degree of hardship that may be caused (financial, psychological, emotional or other hardship). The applicant argues that the Tribunal should place significant weight on this factor against the cancellation of his visa. He said that the immediate effect of the applicant’s visa being cancelled is that he would become an unlawful non-citizen and liable to be detained and potentially deported to Afghanistan, and his life is at serious risk of harm in Afghanistan. This would initially cause significant deterioration in his mental and physical health, and well-being. If his visa remains cancelled he will detained in an immigration detention centre and he will experience significant financial hardship, and through him, his wife and other family members in Pakistan will also be impacted.