2119363 (Refugee) - [2022] AATA 1775

2119363 (Refugee) [2022] AATA 1775 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2119363
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Alison Murphy
DATE:14 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 14 April 2022 at 1:47pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – identity details – family composition – race – Hazara – protection obligations – visa would still have been granted – contribution to the community – consequential cancellations – indefinite detention – best interests of the Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 195-198, 425, 431, 440
Migration Regulations 1994, Schedule 2, cl 050.212; r 2.41
CASES
Akter v MIBP [2018] FCCA 3604
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
MIAC v Khadgi (2010) 190 FCR 248
Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Sankey v Whitlam (1978) 142 CLR 1
Singh v MIBP [2020] FCA 783
SZMTA v MIBP [2017] FCA 1055
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant 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 4 April 2022.
The applicant was represented in relation to the review. This matter was constituted and decided together with the related cases of [Relative A] (AAT proceeding 2119365) and [the applicant’s wife] (AAT proceeding 2119364).
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside pursuant to s 425(2)(a) of the Act.
BACKGROUND
The background to the review is set out in the Department’s s 107 notice dated 29 June 2020. It records the applicant arrived at Kingsford Smith International Airport in Sydney [in] September 2008 as an unauthorised air arrival, identifying himself as Afghan national [the applicant’s name], a widow with two sons, [Relative B] and [Relative A].
On 1 October 2008 he lodged an application for a protection visa, again identifying himself as Afghan national [the applicant], father to [Relative B] and [Relative A]. He stated he was also known by the name [Alias A], as he had left Pakistan with a false Pakistani passport organised by a people smuggler. On 15 January 2009 he was granted the protection visa.
On 8 October 2009 [Relative B] lodged an application for an offshore humanitarian visa naming [himself] and [Relative A] as dependent applicants. That visa application was proposed by the applicant based on his claimed relationship of father to [Relative B] and [Relative A]. Humanitarian visas were granted to [Relative B] and [Relative A] on 30 April 2013.
On 4 December 2014, the applicant lodged an application for Australian citizenship and on 27 June 2017 he participated in an identity interview at which certain adverse information about his identity and family composition was put to him. On 20 January 2018 the Department’s Citizenship Section wrote to the applicant inviting him to comment on adverse information about his identity and family composition.
In a statutory declaration made 31 May 2018, the applicant declared his correct name was [Alias B] and that he had given incorrect information about his name and family composition in his protection visa application. In that statutory declaration he outlined his correct family composition, stating that [Relative B] and [Relative A] were in fact his step-brothers and not his sons and their parents are the applicant’s father, [Father A], and step-mother, [Stepmother A].
On 29 June 2020 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 him that they were considering the cancellation of his protection visa on the ground that he appeared to give incorrect information in his protection visa application. The s 107 notice alleges the applicant provided incomplete and/or incorrect information in his protection visa application in the following respects:
·At question 1 of the Form 866C when he stated his full name was [the applicant’s name];
·At question 4 of the Form 866C when he stated he had also been known by the name [Alias A];
·At question 9 of the Form 866C when he gave details of his family members who were not in Australia to include [Relative B] and [Relative A], whom he identified as his sons.
The s 107 notice invited the applicant to comment on the information contained in the notice.
In his response to the s 107 notice, the applicant conceded he had given incorrect information in the manner set out in the notice. The applicant stated that the incorrect information regarding his family composition and name had been detailed and corrected in the statutory declaration made 31 May 2018. In that statutory declaration the applicant also acknowledged giving incorrect information about other aspects of his family composition not specified in the notice.
The applicant asked the Department to exercise the discretion available to them under s 109 of the Act not to cancel his visa, noting that the incorrect information did not affect his protection claims as a Shia Hazara from Afghanistan; that the discretionary factors strongly weighed against cancellation of the visa; and that the adverse effects of the cancellation on the applicant and his family, including [number] Australian citizen children, are excessive in light of the prospect of his indefinite detention, as he faces persecution in Afghanistan.
On 9 December 2021 a delegate decided to cancel the applicant’s visa, considering that the ground for cancellation was made out and the visa should be cancelled. In relation to the discretionary factors, the delegate concluded that the applicant had purposely given incorrect information in his protection visa application to obtain a migration outcome to which he was not entitled. The delegate also found the applicant gave incorrect information about the death of his brother [Brother A] in 2002 (being that [Brother A] is his cousin and not his brother as stated in the visa application) and his marriage to [Ms A] (being that they were never married but he claimed they were to support the claim that [Relative B] and [Relative A] were his sons). The delegate considered the other circumstances to which the Department’s Policy Guidelines required him to have regard but decided to cancel the visa.
The applicant sought a review of the decision to cancel his visa from this Tribunal.
THE REVIEW PROCEEDING
Non-disclosure certificates
The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 438 of the Act by issuing a certificate dated 21 November 2021 relating to three documents held on the Departmental file.
Where a valid certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
The certificate dated 21 November 2021 states that disclosure of the information subject to the certificate would be contrary to the public interest because it contains information given to an officer of the Department in confidence and the Department considers the documents or information should not be disclosed to the applicant or the applicant’s representative because such disclosure might make known lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
Generally speaking, public interest immunity operates to restrict the disclosure of otherwise relevant evidence in legal proceedings where that disclosure would be against the public interest. Determining whether public interest immunity applies is a balancing exercise between the principles that:
·no harm should be done to the nation or to the public service by the disclosure of the material; and
·the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. [1]
[1] Sankey v Whitlam (1978) 142 CLR 1 at 39.
Where these two principles conflict, it is necessary to consider which of the two competing principles predominates.[2] In order to determine whether the certificate is valid, the Tribunal should have regard to the information covered by the certificate to determine whether the information in fact falls within the stated public interest reason, and if it does not, the certificate may not be valid.[3]
[2] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
[3]Akter v MIBP [2018] FCCA 3604 at [58
The Federal Court has held that it is not sufficient that the reason stated in the certificate would be a public interest reason but, having regard to the material subject to the certificate, there must be a logical, probative or rational basis for finding that disclosure of that material would be contrary to the public interest.[4]
[4] Singh v MIBP [2020] FCA 783 at [55]–[59]
The information in this case consists of an Identity Assessment Report dated 14 August 2017 and a Priority Caseload Assessment. The Identity Assessment Report contains a comparison of information provided by the applicant in his various visa and citizenship applications and at an identity interview by a Departmental officer. It records at some length the questions asked of the applicant at an identity interview and the responses given by him to adverse information that was put to him at that interview. It examines his social media accounts and concludes that his true family name is [his alias surname] and that [Relative B] and [Relative A] are likely his step-brothers and not his children. It is apparent that adverse information was also put to the applicant in writing in the context of his citizenship application.
I am unable to locate any information in that document that could be said to have been provided in confidence by a third party as stated on the certificate. With the exception of the [social media] posts, all of the information that forms the subject of the assessment was provided by the applicant. To the extent that any of that information relates to persons other than the applicant, they are the applicant’s family members in the related proceedings and that information was provided by the applicant in the various visa applications.
The only information or documents I can identify as not provided by the applicant are the [social media] posts of the applicant and his related family members. However, the identity assessment makes clear that they were discussed with him at interview and so to the extent that the Department’s use of social media may be said to constitute an investigative method, it has already been disclosed to the applicant. Nor can those [social media] posts be said to be confidential given the Department’s ability to view them on [social media] indicates that they were publicly available.
I note that in similar factual circumstances the Federal Court has held that there is not a rational or logical basis to conclude that disclosure of an applicant’s [social media] posts would be contrary to the public interest where the only people to whom the Tribunal had any reason to disclose the [social media] posts were the authors of those posts who already knew their contents and where the posts were also obviously public in nature and there was no suggestion that the applicant or sponsor intended them to be confidential.[5]
[5] Singh v MIBP [2020] FCA 783 at [55]–[59]
I have considered whether disclosure of the certificated documents might otherwise make known lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. I do not consider the documents disclose such matters, noting that the Identity Assessment Report is an officer’s comparison of the information provided by the applicant to the Department at various times, much of which has already been disclosed to the applicant at the identity interview, in writing following the identity interview and in the s 107 notice.
The certificate also covers a priority caseload assessment and record of correspondence. That is clearly an internal working document recording various administrative events in the visa processing. Again, I am unable to locate any information in that document which was provided by any person outside of the Department other than the applicant and his legal representatives or any information that could be said to have been provided in confidence. Internal communications between Departmental officers are not ‘given’ to the Minister or an officer of the Department in confidence.[6] Nor does that document otherwise disclose methods for preventing, detecting and investigating breaches or evasions of the law.
[6] SZMTA v MIBP [2017] FCA 1055 at [52]–[54]
For these reasons I can see no logical, probative or rational basis for finding that disclosure of that material covered by the certificate would be contrary to the public interest. I do not consider the information covered by the certificate provides a basis for the stated public interest immunity reasons listed on the certificate and I find the s 438 certificate to be invalid. It follows that the applicant is entitled to see the documents and I have directed that the names and contact details of the departmental officers be removed and the documents otherwise released to the applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
No issues have been raised as to the validity of the notice. 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?
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 when he stated that his full name was [the applicant’s name] and he had also been known by the name [Alias A], and when he gave details of his family members who were not in Australia as including his sons [Relative B] and [Relative A].
The applicant concedes that he gave incorrect information in response to questions 1 and 4 of the protection visa application when he stated that his name was [the applicant’s name] and when he did not disclose that his correct name is [Alias B]. In his statutory declaration dated 31 May 2018, the applicant confirms his correct name is [Alias B] and that [Relative B] and [Relative A] are his step-brothers and not his children, born of the applicant’s father [Father A] and stepmother [Stepmother A]. While not specified in the s 107 notice, it is apparent that the applicant also gave incorrect names for them and that their correct names are in fact [Relative BB] and [Relative AB], rather than [Relative B] and [Relative A].
The Tribunal notes that the applicant’s latest evidence about his name and family composition is consistent with the information contained in the Department’s Identity Assessment Report in 2017, which concluded the applicant’s surname was likely [his alias surname] and that [Relative B] and [Relative A] were likely his brothers rather than his children.
For these reasons I find the applicant’s correct name is [Alias B] and that [Relative B] and [Relative A] are his step-brothers and not his children. It follows that the applicant gave incorrect information at questions 1, 4 and 9 of the protection visa application in the manner set out in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth).
The correct information
For the reasons set out above, I have found that the applicant incorrectly stated in his protection visa application that his name is [the applicant’s name] and that [Relative B] and [Relative A] were his sons. The correct information is that the applicant’s name is [Alias B] and that [Relative B] and [Relative A] are his step-brothers.
It is a very serious matter to misrepresent a person’s identity in a visa application and I weigh this factor in favour of the cancellation of the visa.
The content of the genuine document (if any)
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
The Department’s file contains a copy of the decision record dated 15 January 2009 in respect of the applicant’s protection visa application. The decision record indicates the applicant is a Hazara Shia from Malistan district who was found to be a refugee on the basis of his imputed political opinion arising out of his [Relative C’s] connection to [a named] party, perceived by the Mujahadeen who controlled the area as having [opposing party] ties.

The decision record cites country information indicating that while Afghanistan’s small Hazara population had found some peace in post-Taliban Afghanistan, Hazaras were critical of the Karzai government’s favouring of Pashtuns in the context of the historical genocide perpetrated against them and that those Afghans perceived as critical of factions or individuals exercising control over a region are at risk of harm. The delegate accepted the applicant’s claims to be plausible and concluded there was a real chance the applicant would be targeted for harm by the local mullahs and representatives of the ruling Wahdat party if he returned to Malistan.
The delegate records in the cancellation decision that the applicant’s failure to provide his correct name and family composition meant that relevant character and security checks were not undertaken against his correct identity and concluded that the visa grant was based, in part, on the incorrect information.
The Tribunal accepts that a person’s identity is always an important component of a decision to grant a visa and that the provision of the incorrect information about the applicant’s name meant the Department was denied the opportunity to carry out the usual character and security checks before the protection visa was granted in 2009.
Subject to the outcome of those checks, there is otherwise nothing in the material before the Tribunal that would indicate that the decision to grant the protection visa would have been different had the Department been aware of the applicant’s correct name and family composition. In particular, it is not in dispute that the applicant is a Hazara Shia or that Hazaras are readily identifiable by their distinctive East Asian appearance and Hazaragi language and that they have historically faced persecution in Afghanistan and continue to be assessed as at high risk of harassment and violence from both the Taliban and Islamic State – Khorasan Province (ISKP).[7]
[7] DFAT Country Information Report Afghanistan 4 January 2022 at 3.2 and 3.5
In these circumstances, the Tribunal concludes that the decision to grant the applicant the protection visa was based in part on the incorrect information about the applicant’s identity. As noted above, it is a serious matter to misrepresent one’s identity in a visa application and I weigh this factor in favour of the cancellation of the visa.
The circumstances in which the non-compliance occurred
The applicant states that he left Afghanistan desperate to save his life and he gave the wrong information because he was frightened and did what he was told to do by the people smugglers. That explanation fails to account for what can only be the deliberate misrepresentation of [Relative B] and [Relative A] as his sons to facilitate a later visa application on their behalf and this reflects poorly on the applicant’s credibility.
I accept, however, the incorrect information occurred in the context of the applicant’s experience of being displaced from Afghanistan with his family to live as refugees in Iran and Pakistan, his concern for the safety of his younger step-brothers and the plethora of misinformation promulgated by the people smugglers and others in the community.
I weigh this factor in favour of the cancellation of the visa.
The present circumstances of the visa holder and their contribution to the community
The applicant has been in Australia for 14 years. Since his arrival he has travelled to Iran to marry his wife, [name], and subsequently sponsored her to Australia on a partner visa. They have [number] Australian citizen children, being [gender and ages specified].
The applicant operates a [business] while his wife cares for their [young] children. As a result of the visa cancellation, the applicant and his wife have lost access to Centrelink payments, which they used to care for their children. Various letters of support from colleagues, friends and community members have been submitted to the Department and the Tribunal and I have had regard to those letters in my assessment. I note in particular that the applicant coaches [a sporting] team and is involved in the organisation of [competitions].
I have had regard to the applicant’s long residence in Australia, his financial commitment to his young family and contribution to the community and I weigh this factor against the cancellation of the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The delegate’s decision records that the applicant responded to the s 107 notice in a timely manner and that he had previously admitted to and corrected the incorrect information about his name and family composition. I weigh this factor against the cancellation of the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate’s decision records that there are no other instances of non-compliance known to the Minister. I weigh this factor against the cancellation of the visa.
The time that has elapsed since the non-compliance
The non-compliance took place in 2008 and approximately 14 years have elapsed since then. The applicant corrected the incorrect information in his statutory declaration dated 31 May 2018 in the context of his application for citizenship.
Given the applicant’s long period of residence in Australia, I weigh this factor against the cancellation of the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The delegate’s decision records that there is no evidence the applicant has breached any laws since the non-compliance. I weigh this factor against the cancellation of the visa.
Other factors to be considered
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.
Consequential cancellations
In this case, there are two consequential cancellations as a result of the cancellation of the applicant’s visa. [The applicant’s wife’s] partner visa has been cancelled under s 140 of the Act and is the subject of one of the related proceedings. [Relative A’s], visa has also been cancelled and is the subject of the other related proceedings.
While not consequential cancellations under s 140 of the Act, a number of the applicant’s other family members have had their visas cancelled on the basis of the same incorrect information that grounds the cancellation of the above three visas. The applicant’s second step-brother, [Relative B], had his visa cancelled on 31 March 2022. [Relative B’s] wife, [Ms B], and daughter, [named], had their visas consequentially cancelled on the same date as a result of the cancellation of their husband and father’s visa. The applicant’s representative has foreshadowed that applications for review of those decision will shortly be made to the Tribunal and that [Relative B] and [Ms B] also have an Australian citizen child born in Australia.
I give this factor significant weight against cancellation of the visa.
Mandatory legal consequences of the cancellation
In considering the mandatory legal consequences to the cancellation decision, the applicant will have very limited options to make any other visa applications onshore. Section 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister decides it is in the public interest to allow such an application.
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.
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.[8] 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 he decides to return to Afghanistan voluntarily.
[8] Home Affairs website, Afghanistan update, cited in the submissions of the applicant’s representative lodged 30 September 2021 at 3.5
The prospects of any voluntary return by the applicant appear remote given the recent collapse of the elected Afghan government in August 2021 and the formation of a new government by the Taliban.
I consider the prospect of the applicant facing a prolonged period in immigration detention weighs significantly against the cancellation of the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements
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.
In this case the delegate’s decision records that if the applicant’s visa is cancelled, an International Treaties Obligation Assessment would be completed by a Departmental officer before any decision is made to remove him from Australia. The delegate considered that for this reason a decision to cancel the applicant’s visa would not necessarily cause him to be returned to his country of origin.
There has been a significant change to the law since the delegate’s decision. Amendments to s 197C of the Act have resulted in the insertion of a new s 197C(3). The effect of this provision is that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country where:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
In this case the applicant made a valid application for a protection visa in 2008 and that application was finally determined when a delegate made a ‘protection finding’ in respect of the applicant in the protection visa decision record dated 15 January 2009. In these circumstances, s 197C(3) does not require or authorise the applicant’s removal unless the decision finding that he engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.
There is nothing in the material before the Tribunal that would suggest the decision to grant the applicant a protection visa has been quashed or set aside. Nor has the applicant requested removal from Australia and I accept that is unlikely to occur given current circumstances in Afghanistan. There is no suggestion that the Minister has made a decision that the applicant no longer engages protection obligations under s 197D(2).
Unless and until one of the circumstances set out in s 197C(3) arises, the existing protection finding will ensure that the applicant is not removed in potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed based on an assessment of those obligations, any removal will not give rise to such a breach. This means that the cancellation of the applicant’s resident return visa would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions.
Other international obligations arise under the Convention on the Rights of the Child (CROC). As recorded in the delegate’s decision, the Department’s Policy Guidelines provide that a decision maker is obliged to consider the best interests of children under the age of 18 within Australia’s territory or jurisdiction.
As noted above, the applicant and his wife have [young] Australian citizen children. For the reasons set out above, if the applicant’s visa remains cancelled, he faces potentially indefinite detention as he cannot be returned to Afghanistan where he faces a well-founded fear of harm and he cannot apply for another visa other than a bridging visa without the intervention of the Minister.
While the applicant currently holds a bridging visa, he meets the criteria for the grant of that visa because of the current review proceedings. If his visa remains cancelled at the conclusion of these proceedings, he will need to meet one of the other grounds for being granted that visa contained in cl 050.212. Broadly speaking, those grounds require the applicant: to have made acceptable arrangements to depart Australia; or to have made an application for a visa of a kind that can be granted to him; or to have outstanding judicial review proceedings relating to an earlier visa refusal or to have applied for Ministerial Intervention. While the applicant has the right to seek judicial review and the intervention of the Minister if his visa remains cancelled, he is only able to be granted the visa while those proceedings remain to be determined. As noted above, the applicant is statute barred from applying for another protection visa and cannot be returned to Afghanistan because he is the subject of a protection finding.
The situation for the applicant’s wife is somewhat different. If [the applicant’s wife’s] partner visa remains cancelled she would appear to have the option to apply for a protection visa as she arrived in Australia lawfully and she has not previously applied for that visa. The recent events in Afghanistan, as discussed below, cause me to consider that she would have very strong claims for being granted that visa if she made such an application.
In that sense the cancellation of the applicant’s protection visa will not necessarily result in the applicant’s [young] Australian citizen children facing the prospect of being placed in immigration detention with their parents or removed from the care of their parents while their parents are detained. 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 any visa application cannot be certain.
While it is theoretically possible that the family could return together to Afghanistan, I consider there to be no realistic prospect of this occurring given the current situation in Afghanistan and the fact the children are Australian citizens.
In any case, I consider it is clearly in the children’s best interests that the applicant’s visa not be cancelled, given that he is their father and the family breadwinner and he faces the prospect of indefinite detention or a voluntary return to Afghanistan where he faces persecution. I give this factor very significant weight against cancellation of the visa.
Any other relevant matters
I accept that the applicant has a genuine fear of return to Afghanistan, which is now under the control of the Taliban. 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.[9] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[10] 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.[11]
[9] UNHCR UNHCR Position on Returns to Afghanistan August 2021 at Refworld
[10] BBC News Ashraf Ghani: Afghanistan’s exiled president lands in UAE 18 August 2021
[11] 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)
The Department of Foreign Affairs and Trade (DFAT) reports that the security situation in Afghanistan is volatile as a whole, but less dangerous than before August 2021 for many Afghans, due to the cessation of most armed conflict after the Taliban claimed victory. However, it notes that the security situation is still evolving and it is unclear how long the current relative peace will continue, particularly if Afghanistan’s economy collapses and the Taliban face greater internal challenge. Some sources suggest the Taliban is currently enjoying a honeymoon period which cannot endure, and that terrorist attacks will continue and likely increase.[12]
[12] DFAT DFAT Country Information Report Afghanistan 4 January 2022 at 2.16 – 2.23
These recent developments raise 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, and girls and women such as his wife and daughters. 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.[13] During that period, the Taliban 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.[14]
[13] DFAT Country Information Report Afghanistan 27 June 2019 at 3.8
[14]Human Rights Watch, The Massacre in Mazar-i-Sharif, November 1998,
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.’[15]
[15] ICG, 28 September 2021

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, conducting house-to-house searches for government personnel, weapons and property.[16]
[16] UNGA, 2 September 2021, p. 5
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.[17]
[17] UNHCR UNHCR Position on Returns to Afghanistan August 2021 at Refworld
In January 2022 DFAT noted that two of ISKP’s mass-casualty attacks, along with smaller attacks since mid-August 2021, have directly targeted Shia mosques used mostly by Hazaras, and that in October 2021, ISKP issued a statement declaring it would target Shia ‘in every way, from slaughtering their necks to scattering their limbs’. DFAT reports that while the new Taliban government may be attempting to disrupt ISKP and prevent attacks on Hazaras, this ‘does not indicate it has put aside its historical antipathy towards Hazaras’; rather it has summarily executed Hazaras who were members of the security forces and forcibly displaced hundreds of Hazara families from their homes in central Afghanistan. Overall, DFAT assesses that Hazaras continue to face a high risk of harassment and violence from the Taliban and ISKP on the basis of their ethnicity and sectarian affiliation.[18]
[18] DFAT DFAT Country Information Report Afghanistan 4 January 2022 at 3.4-3.5
DFAT further reports that violence against women in Afghanistan is widespread and that despite the Taliban’s early promises with regard to inclusivity and women’s rights, many consider the Taliban has already broken those promises and is in the process of returning women to the position they were in when the Taliban first held power in the late 1990s. At this time, the Taliban imposed their version of Sharia law on the country, barring women and girls from public life unless accompanied by a male relative and excluded them from schools and universities entirely. DFAT assesses that women and girls in Afghanistan face a high risk of official and societal discrimination and gender based violence including sexual assault, domestic violence and forced marriage.[19]
[19] DFAT DFAT Country Information Report Afghanistan 4 January 2022 at 3.12 – 3.19
As noted above, the Department’s current policy in relation to Afghan citizens in Australia provides that temporary visa holders will not be asked to return to Afghanistan at present given the current security situation.
In these circumstances, I accept the applicant’s fear of return is both genuine and well founded. I accept that cancellation of the applicant’s visa would result in severe hardship not just to the applicant, but also his wife and children and their other relatives in Australia.
EXERCISE OF DISCRETION
I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant knowingly provided incorrect information about his identity and family composition, which he assessed would increase his chances of being granted the visa. However, in balancing all of the relevant factors the Tribunal considers that the matters to which it is required to have regard weigh overall against cancelling the applicant’s visa. In particular, the Tribunal gives weight to the following matters:
·Had the delegate been aware of the correct information when the decision to grant the applicant the protection visa was made in 2009, it is likely that the applicant would still have been recognised as a refugee by the Department on the basis of his profile as an Afghan national of Hazara ethnicity and Shia religion who faced serious harm for reasons of his imputed political opinion related to his [Relative C’s] association with [a named] party in Malistan;
·At the time of the Tribunal’s decision, the applicant continues to be subject to a protection finding for the purposes of s 197C(3). As a consequence, he cannot be removed from Australia unless the decision finding that the non-citizen engages protection obligations is quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal;
·If the applicant’s visa remains cancelled and he is not granted another visa, he will be an unlawful non-citizen and will be liable to be detained under s 189 of the Act. That detention will potentially be prolonged;
·The applicant has [number] Australian citizen children from whom he will be separated if his visa remains cancelled and he is detained. It is in the best interests of the children that the applicant’s visa not be cancelled and I am required to treat that as a primary consideration;
·As a consequence of the cancellation of the applicant’s visa, the partner visa of his wife and the protection visa of his step-brother [Relative AB] have also been cancelled. Those cancellations impact on not only on those individuals, but also on the applicant’s [Australian citizen] children and the wife and children of [Relative AB];
·Country information indicates the security situation in Afghanistan remains volatile and uncertain. The severity of the current security situation in Afghanistan is recognised by the Australian government’s current policy that Afghan citizens in Australia holding temporary visas will not be asked to return to Afghanistan until it improves.
For these reasons I consider it appropriate to exercise my discretion not to cancel the applicant’s visa.
NON-PUBLICATION DIRECTION
The applicant has requested that the decision in this matter and the related matters not be published by the Tribunal because of the impact that would have on his family, in particular his wife who is concerned about the ability of people to identify herself and the children.
The AAT is authorised to publish its decisions and the reasons for them by section 66B of the Administrative Appeals Tribunal Act 1975 (AAT Act). However, it must not publish information if its disclosure is prohibited or restricted by the AAT Act or by any other legislation that gives the AAT jurisdiction.
The Tribunal may also make a direction in a Part 7 review under s 440 of the Migration Act 1958 to limit or prohibit the publication of information relating to the case. The Tribunal may only make an order under s 440 if satisfied that it is in the public interest to do so.[20]
[20] Section 440 of the Act
In the absence of a non-publication direction under s 440, decisions of the Tribunal are published in accordance with the Tribunal’s Publication of decisions policy. In the Migration and Refugee Division of the Tribunal, that policy sets out that 100% of decisions relating to a substantive review of a decision to cancel a visa will be published by the Tribunal. It follows that publication of the Tribunal’s reasons in the current review will necessarily follow unless the Tribunal makes a direction under s 440 of the Act that the decision not be published.
The applicant has understandable concerns that he and his family members may be identified if the Tribunal’s decisions in the current review and the two related cases are published. However in relation to Part 7 reviews such as the current review, s 431 of the Migration Act 1958 already operates to prohibit the Tribunal from publishing information that may identify an applicant or their relative or dependent. In order to comply with s 431, the Tribunal routinely de-identifies its Part 7 reviews to ensure that identifying information is not published. The Tribunal is satisfied that these processes are sufficient to ensure that publication of the Tribunal’s reasons will not lead to the identification of the applicant or his family members.
The material before the Tribunal does not indicate that there is any other public interest reason why the decisions should not be published once those decisions are de-identified. Further, the Tribunal has a statutory obligation to pursue the objective of providing a mechanism of review that is accessible and promotes public trust and confidence in our decision-making.[21] The Australian courts have held that publishing decisions contributes to achieving this objective and promotes the transparency of the Tribunal’s operations.[22] In these circumstances I am not satisfied that prohibiting publication of the Tribunal’s reasons in this case or the related cases is in the public interest.
[21] Sections 2A(a) and (d) of the AAT Act
[22] Re Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83 at [16]–[29]; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33: at 54.
I note however that the related reviews of [the applicant’s wife] and [Relative A] are reviewable under Part 5 of the Act and not subject to s 431. For these reasons I will make a direction under s.378 in respect of each of those reviews to the effect that information that would identify the applicant or any relative or dependant of the applicant must not be published by the Tribunal.

100. It follows that once de-identified, the Tribunal’s decision statement in the current review and the related reviews may be published by the Tribunal.
DECISION
101. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) 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.