2119356 (Refugee)

[2023] AATA 1992

2119356 (Refugee) [2023] AATA 1992 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2119356

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Sean Baker

DATE:28 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 28 February 2023 at 11:46am

CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – entered a country of reference – consideration of discretion – Hazara Shia – compelling need to travel to Australia – degree of hardship – circumstances giving rise to cancellation – care for unwell and elderly mother – circumstances beyond the applicant’s control – prolonged immigration detention – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189, 197C, 197D
Migration Regulations 1994 (Cth), Schedule 8, Condition 8570

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8570 and the factors in favour of cancellation outweighed those against. 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. The applicant was unrepresented and appeared before the Tribunal on 27 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Certificate

5. On the Department file is a purported s. 375A certificate. The certificate states that the information specified should not be disclosed  as it would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases which would or be likely to prejudice the effectiveness of those methods. Having reviewed the certificate and the information I have come to the view that the certificate appears valid on its face as the public interest reason is clearly specified in the certificate with sufficient detail to identify the claimed harm to the nation or public service that its release could lead to. The public interest reason being the protection of the precise manner in which investigations are carried out

6. I raised the certificate with the applicant at the hearing. He indicated he was aware of the certificate and had no concerns.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

8. A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8570 attached to the applicant’s visa. This condition requires that the visa holder must not enter a country of reference (that is that the applicant was found to engage Australia’s protection obligations in relation to that country), and in relation to any other country must only enter that country if the Minister is satisfied there are compassionate or compelling circumstances justifying the entry and the Minister has approved the entry in writing.

9. It is not in dispute that on 7 February 2017 the applicant was granted a Safe Haven Enterprise (subclass 790) visa. He was found to be a citizen of Pakistan and found to be owed protection obligations from Pakistan. His visa was granted with condition 8570 imposed.

10. The applicant had previously applied and been granted permission to travel to Iran for three months in late 2017 to visit his mother and siblings who he had not seen for more than five years. then on 22 June 2018, he again sought approval to travel to Iran to see his mother and younger brother whom he claimed not to have seen for five years. the request was refused but the applicant departed Australia [in] July 2018.

11. When the applicant returned [in] January 2019 the applicant was interviewed at the airport by the Department and said he had remained in Iran and not visited Pakistan. However, after some months the applicant informed the Department that he had travelled to Pakistan in this time, explaining that this was because he had to help his elderly and unwell mother who needed hospitalisation and there was no one there to take her to appointments.

12. On the basis of this information, it appears clear that the applicant did breach condition 8570.

13. I discussed this at the applicant at the hearing and he agreed that he had travelled to Iran and Pakistan in his most recent travels.

14. On the information before me I find that the applicant breached condition 8570 when he travelled to Iran and Pakistan in 2018.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. 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’.

17. The applicant responded to the notice of intention to consider cancellation of his visa under s. 116. In his response he said:

    When I requested the department about permission to travel to see my mother back in 2018 was because my mother was really sick and badly ill. There is no other person to look after my mother and take her to hospitals for check-up and admission I have got 3 sister and 1 little brother, 2 of my sisters has been already married and my little sister is [age] now [age] in 2018 and my brother is [age] now [age] in 2018. My mother had kidney problem which I had no idea about till 2018 when it gets worst and there was is no one to take her to hospitals for small and major check-ups I had no other option to breach my visa conditions at that time otherwise (I could’ve lost my mother) if I wouldn’t go to look after her. I will attached all the medical certificate from check-ups to kidney operation and discharge from hospital of my mother.

    I think the department should give me fair chance of not getting my visa cancelled because if my visa gets cancelled its will not only affect me but my future and my family’s too. I have never break any law and always been a good citizen/taxpayer of Australia. I admit that I have done a terrible breach of my visa conditions but it was all cause of my mother’s life. She’s the one which my family is still alive she is been looking after us since my dad was killed in Target Attack back in 2009. How could I let her die I risked my own life and career to save my mother’s life. I know it wasn’t the right way but I did inform the department myself when coming back from overseas. I had no intention to risk my future and my live just for visiting Pakistan, I had no other option at that time, I hope you understand and give me a chance of not getting my visa cancelled I’m the only provider of my family if get sent back to my country it’s going to be a disaster for the rest of our life. I OATH on my own life Whatever I have said is 100% truth.

18. The following supporting documents were provided with his response:

    ·[Hospital 1], Quetta, [specified], 13/04/2018

    ·[Hospital 1], Quetta, [specified], 25/05/2018

    ·[Hospital 1], Quetta, [specified], 25/06/2018

    ·[Hospital 1], Quetta, [specified], 08/06/2018

    ·[Hospital 2], Quetta, Chemical Pathology, [specified], 08/06/2018

    ·[Hospital 2], Quetta, Chemical Pathology, [specified], 25/06/2018

    ·[Hospital 2], Quetta, Emergency Lab Services, [specified], 22/08/2018

    ·[Hospital 2], Quetta, Emergency Lab Services, [specified], 25/06/2018

    ·[Hospital 1], Quetta, Discharge Card, [specified], date of admission 21/08/2018, date of operation [date]/08/2018 – removal of kidney

    ·Letter from [Mr A], Operations Manager, [Business 1], dated 16 November 2021, attesting to the employment of [the applicant], [address], since 13 April 2021.

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

19. The applicant arrived in Australia as an Unauthorised Maritime Arrival (UMA). He was [age] years old. He was granted a Safe Haven Enterprise (subclass 790) visa on 7 February 2017 on the basis of his Syed ethnicity, association with Hazaras, Shia Muslim religion, association with his father and his political opinion and his association with the political organisation established in his father’s honour. On 1 September 2020 he lodged a Ministerial Intervention request for the Minister to lift the subsection 46A(1) bar to allow him to lodge another Safe Haven Enterprise visa application or Temporary Protection visa application.  The bar was lifted on 22 November 2021.

20. At the hearing the applicant told me that he had come to Australia as a minor, seeking protection, because of the targeted killing of his father. The applicant had received threat letters under the shop door because of his father. His paternal cousin’s also received threat letters because of their family – they travelled to Australia and now hold protection visas and two of them are Australian citizens.

21. I accept that the applicant travelled to Australia on the basis that he feared harm for reasons of his family relationship with his father, his ethnicity and his imputed or actual political opinion. I note that the decision maker granted the applicant his Safe Haven Enterprise visa on this basis and also that there is no information before me which refutes any of this information. I accept that the applicant’s purpose in travelling to Australia was to obtain protection so that he did not have to return to a country where he feared harm, and that this claim was accepted at the time. I consider seeking protection to be a compelling need to travel to Australia, in these sense that seeking protection from feared serious harm is an overwhelming or irresistible need. This purpose for the applicant coming to and wishing to remain in Australia must therefore weigh in favour of the visa not being cancelled.

22. I therefore give this factor significant weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

23. The applicant, as above, has not complied with condition 8570. This has founded the breach. As the delegate noted, there was one other condition, 8565 – holder to notify Department of new address within 2 days – placed on his Safe Haven Enterprise visa. As the delegate also noted, there is no indication that the applicant had not complied with this condition.

24. I therefore give this factor a little weight in favour of the visa not being cancelled.

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

25. The applicant gave evidence that he and his family would suffer very significant hardship were the visa to be cancelled. He said that since his visa has been cancelled he has been unable to send money back to his family in Pakistan and this has impacted their lives. He is worried because he is the sole provider for his mother and two younger siblings. He said that if he did not have the visa he would be unable to support himself or his family.

26. The applicant arrived in Australia as a minor. He was in immigration detention as a minor for three years. After his release he has gained work as a [Occupation 1] and has worked consistently. He has been paying taxes.

27. He said that if his visa remains cancelled it will be very difficult – he will not be able to live in Pakistan as last time he was there he was in hiding and with a lot of fear and the group aligned with Daesh was not aware of his presence. If he returned now he would face significant additional issues as his uncle is now a politician in Pakistan and the applicant would face further harm because of this.

28. I have considered what I have before me. I accept that the applicant, and his family, would continue to suffer significant financial hardship if the visa remained cancelled. I also have considered that the applicant was previously in detention for three years from age [age] to [age]. If he were to be detained again, an inevitable consequence of the cancellation as discussed below, I accept that this would also lead to psychological hardship. It is difficult to weigh the impact of such hardship, particularly because the cancellation will affect not only the applicant but his family in Pakistan. Taking into account the severity of the hardship and the impact on more than the applicant I give this factor significant weight towards the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

29. The applicant has maintained that he was compelled to return to Pakistan to care for his very unwell and elderly mother. He has provided copies of hospital and pathology reports and a hospital discharge card indicating his mother had one of her kidneys removed on [date] August 2018. The applicant claims that there was no one else who could help his mother and that she would have been in a very difficult situation if he was unable to help her.

30. The delegate noted that the applicant had family in Pakistan at the time. It is true that the applicant has a younger sister and brother at home but as he noted at the hearing, they were [age] and [age] at the time. He does have two married sisters, but he explained that they were not living in Quetta. It is also worth noting that culturally in Pakistan it would be difficult, if not impossible, for the applicant’s married sisters to leave their families and take care of their mother for an extended period of time. The applicant, as the eldest male, would also be considered his mother’s guardian.

31. The applicant also explained that his paternal uncle and cousins were caring for his mother but that a family dispute arose prior to his return, where the applicant wished to sell his father’s shop, which the uncle had been renting. The uncle reused to allow this to happen and asserted that he owned the shop. Following this dispute, they did not speak and the uncle and cousin refused to help his mother.

32. It was clear from discussing this with the applicant at hearing that the applicant believed, and given Pakistan modes of behaviour I am convinced, practically, had little choice but to return to Pakistan to care for and assist his mother. It appears from the applicant’s behaviour and what he has consistently claimed that his main purpose for travelling overseas in 2018 was to assist his mother. Having had regard to the above information, I consider that this indicates that the ground for cancellation arose from circumstances beyond his control and that the applicant was compelled to travel to assist his mother and breach his visa condition.

33. I therefore give this factor significant weight towards the visa not being cancelled.

    past and present behaviour of the visa holder towards the department

34. As the delegate noted, the applicant has largely complied with obligations imposed on him. However, he did not initially disclose that he had travelled to Pakistan in 2018, until some months later. On the other hand, he did make this disclosure, fully aware that this would establish that he had breached both limbs of the condition on his visa. At the hearing the applicant was remorseful of breaching the visa condition whilst maintaining that he had felt compelled to do so for the above reasons.  

35. I give this factor a little weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s 140

36. There are no consequential cancellations to be considered in this case.

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

37. As noted in the delegate’s decision, the applicant is subject to ss. 46A and 48A of the Act, barring him from making a valid application for a further visa, including bridging visas. The effect of these provisions is that he will not be able to make any valid visa application while in Australia, unless the Minister intervenes and lifts the decision bars. (of which there is no indication that the Minister is minded to do). If the visa remains cancelled, the applicant will remain unlawful.  The applicant would be liable to immigration detention under s. 189 of the Act, and it is therefore a highly likely consequence. As further discussed below, he would not face removal as an immediate consequence due to the operation of ss. 197C(3) and 197D(2).

38. The question then arises – would the applicant depart to Pakistan, his country of nationality, and therefore not remain in detention? The applicant continues to assert his fears of harm on return to Pakistan. This would need to be assessed before he was able to be removed, which would not be a quick process. His evidence is and has consistently been that he would not do so voluntarily. He has provided clear and cogent reasons for being unwilling to do so. I have considered these in somewhat more detail below, but the essential point is that the applicant is clear that he will not agree to be removed voluntarily. Under the Act, he would therefore remain in detention until the process under ss. 197C(3) and 197D(2) is completed. There is no information before me about how long this would take, nor what the outcome would be. If the applicant were assessed as still engaging Australia’s protection obligations, there is no mechanism under the scheme in ss. 197C(3) and 197D(2) for the applicant to be granted a visa or released from detention.

39. I accept therefore that he faces the very real prospect of ongoing, long term detention if the visa remains cancelled. I have had regard to a large body of research that indicates that prolonged detention has a serious impact on mental health, indicating that those detained suffer high levels of mental health problems, that these are higher than in non-detained asylum seeking populations, and that duration is positively associated with severity of mental symptoms.[1] I note in this regard that the applicant was previously placed in immigration detention from the ages of 15 to 18.

    [1] Royal Australian and New Zealand College of Psychiatrists (RANZCP), The provision of mental health services for asylum seekers and refugees, Position statement 46, September 2017; von Werthern, M., Robjant, K., Chui, Z. et al. The impact of immigration detention on mental health: a systematic review. BMC Psychiatry 18, 382 (2018).

1. I consider that there is a reasonable likelihood that prolonged detention would lead to long term mandatory detention of the applicant. Given the publicly available information about the impact on a person’s mental health of long term detention, and his prior detention as a minor, I consider this would have a significant, serious impact on the applicant’s mental health and I therefore give this factor significant weight in favour of the visa not being cancelled.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

2. In relation to this factor I have had regard to the decision of the Tribunal (differently constituted) in 1901883.[2] That case helpfully discussed the amendments to the Act of ss. 197C(3) and 197D(2), which preclude removal of an unlawful non-citizen unless they have had a negative determination of any non-refoulement obligations prior to the removal. Having considered these provisions, I consider, as did that decision, that the applicant would not be removed from Australia pending a consideration of any non-refoulement obligations adhering to him prior to that removal. As a consequence, it is not a factor which can weigh against non-revocation because the cancellation would not lead to his removal, there being an intervening step.

   [2] 1901883 (Refugee) [2021] AATA 3216 (2 September 2021)

3. But this is not, as was also discussed in the above case, the end of the matter, because in cases such as this, the corollary of the view expressed above that the applicant would not as a consequence be removed, necessarily demonstrates that cancellation may lead to prolonged detention. I have discussed this in more detail above.

4. I note however that the applicant continues to assert a fear of harm on return. I note that he satisfied the original decision maker that he was owed Australia’s protection. I appreciate the concern of the cancellation delegate that the applicant returned to Pakistan but I note that this does not necessarily displace the reasons the applicant fears harm. In particular I note that those of the Syed clan are associated with Hazara and I note the applicant speaks Hazaragi as his mother tongue. I note the information in the most recent DFAT report that Hazara face a considerable risk of harm outside the enclaves of Quetta.[3] As a Shia and a person associated with Hazara, the applicant would carry the same risk profile. I note also that his father, and now his uncle, have been involved in politics, a significant risk factor in Pakistan.

   [3] DFAT Country Information Report Pakistan, 25 January 2022.

5. On the basis of the discussion above, removal in breach of Australia's non-refoulement obligations would not be directly engaged by the cancellation. I therefore give this factor no weight in favour of the visa not being cancelled because this factor does not impact on the situation of the applicant if the visa is cancelled or reinstated.

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

6. As the visa being considered is not a permanent visa, I have considered these questions below.

   any other relevant matters

7. The applicant has family ties to his cousins in Australia who are currently supporting him. He has worked and paid taxes. He has some social contacts.

8. I give this factor some little weight in favour of the visa not being cancelled.

   Consideration and conclusion

9. I have carefully assessed the applicant’s claims and his circumstances. I have set out above my considerations and explained why I have weighted the factors the way I have. I have had careful regard to the findings of the cancellation delegate.

10. In this case, the purpose of the visa holder’s travel to and stay in Australia, the circumstances of the breach and the likelihood that he would face long term detention weigh most strongly against cancellation. When considered with the degree of hardship faced by the applicant and his family, these weigh strongly against cancellation.

11. The breach here has been significant, the breach of a condition upon the applicant’s visa. Such breaches are generally requiring of serious consequences because they may weaken the visa regime.

12. However, in this case the very serious impact that cancellation would have on the applicant as discussed above, outweighs the decision to cancel.

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

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

    Sean Baker
    Member