2200104 (Refugee)

[2023] AATA 2438

2200104 (Refugee) [2023] AATA 2438 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2200104

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:8 May 2023

PLACE OF DECISION:  Melbourne

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.

Statement made on 08 May 2023 at 2:48pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – identity and incorrect information given in visa application – other name known by, citizenship, right to enter and passport not declared – Afghan identity documents provided with visa application – information about Pakistani passport in different name received by department – other details and computerised national identity card number – genuine documents obtained fraudulently – evidence supporting original identity – country information – endemic document fraud – discretion to cancel visa – non-refoulement – ethnicity, religion and imputed political opinion – Hazara Shia who worked for foreign forces and wife’s work with international organisation – visa would have been granted in any case – long residence, education, work and financial support to family members overseas – voluntary return unlikely and prolonged immigration detention possible – protection finding not quashed or set aside – volatile security situation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 197C(3), 197D(2), 438(1)(a), (b)(3),
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 050.212

CASE
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

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

3. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], President of [Organisation], and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages, although the applicant chose to give his evidence in English.

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

   BACKGROUND

5. The applicant is a male who arrived in Australia by boat and without a visa [in] April 2013. He identified himself as [the applicant] born in Kandahar province, Afghanistan, on [Date]. He claimed to be an Afghan national of Hazara ethnicity who had fled Afghanistan for Pakistan after receiving threats from the Taliban because of his work for NATO forces. He was invited to lodge an application for a Subclass 790 (Safe Haven Enterprise) visa (the SHEV), and on the basis of the information he provided in that application he was granted that visa on 15 March 2017.

6. In support of the visa application, he provided copies of his Afghan passport, his Afghan taskera and Afghan driver’s licence as well as copies of his wife’s Afghan identity documents.

7. According to the delegate’s decision, the Department subsequently received information indicating that the applicant is the holder of a Pakistani passport under the name of [Alias], son of [Mr C]. That passport refers to his computerised national identity card number and states that the card holder was born in Quetta, Pakistan, on [Date]. This led to the Department seeking verification from the Pakistani authorities, who confirmed the authenticity of the passport and the bearer’s date of birth, father’s name, passport issue and expiry dates and CNIC number. This led the Department to consider that the applicant is a citizen of Pakistan with the identity shown on that passport.

8. On 27 August 2020, a delegate of the Minister issued the applicant with a notice of intention to consider cancellation of his resident return visa under s 109 of the Act (the NOICC). The NOICC advised the applicant that the Department was considering cancelling his visa because it considered he gave incorrect information in his SHEV application in the following instances:

   ·at question 9 of application form 790C (when he stated that he had never been known by another name);

   ·at question 22 (when he stated that he did not hold any other citizenship);

   ·at question 25 (when he stated that he did not have the right to enter or reside in, whether temporarily or permanently, any country other than his country of nationality or former habitual residence);

   ·at question 58 (when he stated he had never had or used any other passport or travel document, including expired, lost or stolen documents).

9. The NOICC advised the applicant that based on the above information, his SHEV was liable for cancellation under s 101(b) of the Act and invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.

   The applicant’s response to the s 107 notice

10. The documents before the Tribunal indicate that the applicant responded to the NOICC by way of submissions and supporting documents on 17 September 2020 and 13 March 2021. In his response he denied that his identity was that set out in the Pakistani passport referred to by the Department, rather his correct identity was as set out in the visa application.

11. In support of his assertions as to his identity, the applicant provided letters of support from his cousin [Mr D] in Kabul; a friend [Mr E] in Kandahar province, Afghanistan, and [Mr A], President of [Organisation], an Afghan association incorporated in Australia. He also provided copies of pages of his passport showing his identity and that he had obtained visas to enter Pakistan between 2007 and 2011; and staff emails from the International Security Assistance Force’s (ISAF) contractor [and] a certificate of appreciation dated [July] 2010 from the Special Operations Task Force in relation to his role during [an operation]. As well he provided a screenshot of his [Online] account in the name of [the applicant] showing he had held that account since 2003.

12. On 13 March 2021, the applicant provided further documents evidencing the identity and nationality of his wife, [Ms F].

    The cancellation decision

13. On 14 December 2021, a delegate decided to cancel the applicant’s visa on the basis that he had provided incorrect information in the manner set out in the s 107 notice. In doing so the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations, the delegate considered that the applicant would not necessarily be returned to his country of origin in breach of non‑refoulement obligations because there would be a future assessment undertaken as to whether the applicant would be at risk of harm in his country or countries of origin, including Pakistan. For this reason, the delegate did not make their own assessment of Australia’s international obligations.

14. The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    THE REVIEW PROCEEDING

    Non-disclosure certificate

15. 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 by way of two certificates issued under s 438(1)(b)(3) and s 438(1)(a) of the Act and dated 24 January 2022.

16. Where a 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.

17. I am satisfied that each of the s 438 certificates are valid. The documents covered by the certificates evidence investigations undertaken by the Department in relation to the applicant’s identity and nationality. Information about the applicant’s Pakistani passport and the steps taken by the Department to verify the genuineness of that passport has already been disclosed to the applicant in the NOICC and the delegate’s decision. At hearing the Tribunal discussed with the applicant that the certificated material also included a gun licence and bank documents issued under the Pakistani identity attributed to the applicant. The Tribunal has not otherwise provided copies of the certificated material or disclosed the source of that material to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 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.

19. 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.

20. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Did the notice comply with the requirements in s 107?

21. The notice sets out in some detail the information given by the applicant in his protection visa application that is now said to be incorrect, as well as the reasons the Department formed that view. It is not suggested by the applicant or his representative that the notice is deficient or invalid.

22. I am satisfied that the information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation. I am 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?

23. 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.

24. The non-compliance identified and particularised in the s 107 notice was non‑compliance with s 101(b). The notice alleges that the following declarations made by the applicant in his protection visa were incomplete or incorrect in respect of questions 9, 22, 25 and 58. The central issue in each instance is the applicant’s identity and citizenship. In that regard the applicant maintains that his correct identity is Afghan national [the applicant], son of [Mr G], born in Kandahar province, Afghanistan, on [Date].

25. The Department believes his correct identity is Pakistani national [Alias], son of [Mr H], born in Quetta, Pakistan, on [Date]. The applicant acknowledges that he departed Pakistan on a passport issued in that identity in early 2013, but maintains it is not his correct identity.

    The applicant’s identity

26. At hearing the applicant gave detailed evidence as to the timing and manner in which he obtained the Pakistani identity documents. That process started in 2011, when his then wife [Ms I] introduced him to her relative, [Mr J], a person he says is well-known in Quetta for arranging genuinely produced Pakistani identity documents for members of the Hazara community who relied on those documents to give them legal status in Pakistan, as well as to depart Pakistan to seek asylum elsewhere. The applicant was still living and working in Kandahar, Afghanistan, but his wife encouraged him to obtain the documents so that their children could go to school in Pakistan.

27. The applicant gave evidence he paid 60,000 Pakistani rupees to [Mr J] for a genuine computerised national identity card (CNIC) in 2011. Upon payment he was instructed to travel to a mosque in Hyderabad where a NADRA van containing fingerprint scanners and iris scanners was waiting to take biometric markers of a number of people seeking to obtain false CNICs. He was fingerprinted and had iris scans and was provided with a CNIC which not only appeared genuine but contained data that was recorded in the NADRA database. After paying 60,000 Pakistani rupees he discovered that others present had only paid 30,000 Pakistani rupees for their CNIC. When he complained he was told that his CNIC cost more because he had been allowed to choose the name ([Alias]) and date of birth (his own birthdate of [Date]) that appeared on the CNIC. He was unhappy about this but could not do anything about it at that stage.

28. After the issue of the CNIC, the applicant’s former wife used it to obtain a bank account that the applicant used to pay money to support her and their children in Pakistan, as well as a gun licence. At this time the applicant was still living in Afghanistan and his wife wanted the gun licence to protect herself and the children in Quetta. In 2012, a passport was obtained so that the applicant could depart Pakistan and travel to Australia. These documents required separate payment from the CNIC and [Mr J] told him that other kinds of documents could also be obtained, including false employment and educational documents. All of the documents obtained by the applicant reproduced the information on the CNIC, including that the applicant is the son of [Mr C].

29. The applicant gave evidence that after an acrimonious divorce from his former wife [Ms I] and his subsequent remarriage to [Ms F], his former wife told him that she would send his Pakistani identity documents to the Australian authorities. He told her to go ahead and do so, believing that any investigation by the Australian authorities would quickly establish that he had obtained the documents fraudulently in order to save his life and that his Afghan nationality was demonstrably provable.

30. As discussed in detail below, the applicant’s account of the circumstances in which he obtained the Pakistani identity documents is consistent with his previous statements to the Department; the content of the Afghan and Pakistani identity documents; and country information about the purchase of genuinely issued Pakistani identity documents by Afghan Hazaras in Pakistan. For the following reasons, the Tribunal accepts that the applicant is a national of Afghanistan and not Pakistan.

    Documentary evidence

31. The documents obtained by the Department that form part of the certificated material referred to above are materially consistent with the applicant’s evidence to the Department throughout the process of the grant and cancellation of the visa. As set out in the NOICC, the Pakistani passport issued to the applicant under the name of [Alias] was issued [in] 2012. This is consistent with the applicant’s statements to the Department that he departed Pakistan in early 2013 on a genuinely issued (but fraudulently obtained) Pakistani passport. In an arrival and induction interview that took place at [Immigration Detention Centre] on 10 June 2013, the applicant was recorded as stating that a people smuggler organised a Pakistani passport bearing his photograph and that he paid 18,000 (currency not recorded) for the passport, tickets and accommodation for the whole journey. He said that passport was thrown away on the boat during his travel to Australia.

32. In the visa application made in May 2016, he stated that his Afghani passport was not useful to make the journey from Karachi airport and therefore the people smuggler provided all the required fake documents for the flights to [Country 1]. He later stated that the agent made him a Pakistani passport to enable him to travel from Karachi, Pakistan to [Country 2].

33. At hearing the applicant gave evidence that the first document he obtained was a computerised national identity card (CNIC) in 2011, a foundational or feeder document for obtaining all other Pakistani identity documents. That document is dated [June] 2011. At this time the applicant was still living in Kandahar, Afghanistan, where he worked in [Work sector] for [Employer] who were engaged by [Country] Ministry of Defence to undertake projects for the main operating base at [Location].

34. There is a significant amount of credible documentary evidence of the applicant’s employment with for [Employer] at that time, including routine email correspondence between [Employer] and ISAF about the security vetting procedures for [Employer]’s employees and ISAF (including but not limited to the applicant) as well as various references and recommendations for both [Employer] and the applicant. Some of that email correspondence cites the applicant’s taskera number and that is consistent with the Afghan identity documents provided by the applicant.

35. The applicant gave evidence that the CNIC was then used to apply for the gun licence and the Pakistani passport, both issued in August 2012. The passport correctly references the number of the CNIC and both documents describe the applicant as being the son of [Mr C]. The applicant believes that [Mr C] is a real person and a Pakistani national, but the applicant is not in fact related to him. Since the visa cancellation the applicant has made attempts to track down [Mr C] by paying a taxi driver to search for him but he has been told that the address shown on the CNIC does not exist and [Mr C] cannot be located, possibly because he has either died or moved out of Quetta.

36. The applicant claims that the people smuggler who organised the passport and travel provided a copy of the documents and his travel arrangements to his wife after his departure, giving evidence that the people smugglers often do this to prove to the families that they have provided the services paid for. It also allows the families remaining in the country of origin to track the movements of their family members.

37. Significant among the documentary evidence is the applicant’s Afghan passport, first issued to him in Kandahar in [2007] and valid until [2008], but later extended to 2009 and further extended to 2012. That document contains multiple visas to enter Pakistan in 2008, 2009 and 2011 as well as entry and exit stamps for his travel between Afghanistan and Pakistan between 2008 and 2011. This is consistent with the applicant’s evidence that he did not obtain a Pakistani passport prior to 2012 as such a passport would have entitled him to visa-free entry to Pakistan.

38. As well, the applicant has provided a significant number of Afghan identity documents including his taskera and driver’s licence. These documents do not contain security features and their authenticity cannot be verified, but they are consistent with the applicant’s evidence over many years. The applicant has also provided Afghan CNICs for his cousins [Mr D] and [Mr K] which do contain security features and these documents corroborate the applicant’s evidence that his whole extended family are known by the surname [Surname] in Afghanistan.

1. The applicant’s name in the marriage certificate to his current wife in November 2019 is recorded as [the applicant], son of [Mr G] and grandson of [Mr K]. One of the witnesses named on that marriage certificate is [Mr M], also the grandson of [Mr K]. The marriage certificate records [Mr M] to be of Afghan nationality and the applicant gave evidence that [Mr M] is his cousin and they have the same grandfather. That marriage took place almost a year before the Department notified the applicant that they were considering cancelling his visa on the basis that they considered he is a Pakistani national named [Alias].

2. Finally, the two witnesses who provided evidence to the Tribunal each gave evidence that they knew the applicant and his father [Mr G] in Afghanistan. They confirmed the applicant’s evidence that his father was well known in Jaghori and was killed when the applicant was a young child.

   Country information

3. In a thematic report about Hazaras in Afghanistan and Pakistan published in 2014, the Department of Foreign Affairs and Trade (DFAT) reports the Hazara ethnic group has lived in Pakistan for centuries and those who are Pakistani citizens can access formal identification such as CNICs. According to DFAT, the Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan. This group of Hazaras are Pakistani nationals entitled to hold CNICs and other Pakistani identification documents.[1]

   [1] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March at 3.14.

4. As noted above, the applicant holds an Afghan passport, taskera and other identity documents, and there is credible documentary evidence of his residence and employment in Kandahar up until 2011. As well, each of the two witnesses gave evidence that they knew the applicant and his family at the time he was growing up in Afghanistan. For these reasons, the Tribunal accepts that the applicant and his family were not resident in Pakistan in 1962 and did not become citizens of Pakistan at that time.

5. Pakistan’s Citizenship Act 1951 provides that an individual may also obtain Pakistani citizenship by birth, descent, migration or naturalisation. For the reasons set out above, I have found the applicant was born and grew up in Afghanistan and therefore I am satisfied that he is not a Pakistani citizen by birth. I have considered whether the applicant may have later obtained Pakistani citizenship by marriage, migration or naturalisation. The applicant has married three times, but all of the evidence before the Tribunal indicates that each of his wives are Afghan nationals, not Pakistani nationals. Even if one of them had been a Pakistani national, Pakistan’s Citizenship Act 1951 does not provide citizenship for men married to Pakistani women.[2] Reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[3]

   [2] ‘Citizenship Act 1951’, Government of Pakistan, CIS38A80123108

   [3] See e.g. ‘Pakistan: Renewed Threats to Afghan Refugees’, Human Rights Watch, 1 July 2016, CX6A26A6E16077; ‘Afghan Refugee Repatriation Threatens to Tear Marriages’, Khan, A., News Lens Pakistan, 16 August 2016, CX6A26A6E16076; ‘Fractured Relations’, Dawn, 31 January 2017, CXC9040661323

6. Section 9 of Pakistan’s Citizenship Act 1951 provides that the federal government may register as a citizen of Pakistan by naturalisation any person who has been granted a certificate of naturalisation under the Naturalisation Act 1926. Independent sources indicate that despite the fact that many Afghan refugees living in Pakistan may technically be eligible for citizenship by naturalisation under the provisions of that Act, Pakistan’s Ministry of Interior has a longstanding policy of denying the benefit of naturalisation to Afghan applicants.[4] This is confirmed by a 2012 report by the Community Appraisal and Motivation Programme (CAMP) which states that Pakistan’s policy towards Afghan citizens in Pakistan entails temporary protection, so that the provisions of the Citizenship Act 1951 do not apply to them.[5]

   [4] Gilani, U, ‘Afghan ‘Refugees’, The International News, 27 October 2016, available at

   [5] Accessing Justice for Registered Afghan Citizens Living in Pakistan: A Guide to Pakistani Institutions, Laws and Procedures, Community Appraisal and Motivation Programme (CAMP), 2012, p.69, CIS961F9402857

7. The applicant’s evidence that he and his former wife and children were residing in Pakistan as refugees at the time he came to Australia is corroborated by country information indicating that there is no lawful way they could have obtained Pakistani citizenship if they arrived after 1962. Further, DFAT reports that Pakistan is host to approximately 1.4 million registered Afghan refugees and an estimated one million unregistered Afghan refugees. DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani national identity cards required to access government and other services.[6]

   [6] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March at 3.14

8. Such a situation creates a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain non-genuine Pakistani identity documents in order to avoid harassment from the Pakistani authorities and to obtain access to government-run services including health and education which are otherwise reserved primarily for Pakistani nationals.[7] This is consistent with the applicant’s evidence that his wife wanted him to obtain Pakistani identity documents even before his travel to Australia because it would allow their children to access education and health services.

   [7] DFAT Country Information Report: Pakistan at 3.48–3.58

9. Finally, country information indicates that the pathway the applicant claims to have used to obtain the genuinely issued Pakistani identity documents is commonly used by Hazaras residing as refugees in Pakistan. DFAT reports that document fraud is endemic in Pakistan, and while CNICs contain a number of security features which have reduced the incidence of document fraud, genuine documents are sometimes issued on the basis of false information, including Afghans who had been added to household registration lists without authorisation.[8]

   [8] DFAT 2017 DFAT Country Information Report Pakistan 1 September at 3.10 and 5.45

10. There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani national identity cards required to access government and other services.[9] DFAT reports that in August 2015, Pakistan’s Federal Investigation Authority was reportedly investigating allegations of National Database and Registration Authority (NADRA) officials issuing fake CNICs in return for bribes as low as US$100.[10]

    [9] DFAT 2010 Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta 30 July CX246851; ‘Ethnic bias seen in blocked CNICs’, The Express Tribune, 27 March 2017, CXC9040669341; ‘100,000 Pakistanis lose nationality for being suspect aliens’, Dawn, 29 May 2015, CXBD6A0DE7355; ‘Senate body admonishes NADRA for issuing thousands of fake CNICs’, The Express Tribune, 8 May 2017, CXC9040667033; ‘The discriminated Pashtun’, The News on Sunday, 5 March 2017, CXC9040669342

    [10] DFAT 2017, DFAT Country Information Report Pakistan, 1 September at 3.10.

11. In 2017 DFAT reported that NADRA was engaged in a campaign to target fraud in relation to CNICs and had identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation.[11] Tens of thousands of fraudulently issued CNICs were reportedly blocked by NADRA, with the former Interior Minister Rehman Malik stating that he had ordered NADRA to block as many as 85,000 CNICs in Balochistan alone during his tenure between 2008 and 2013. NADRA’s deputy assistant director Qamar Nadeem was found guilty of issuing CNICs and birth certificates to foreigners in September 2015 and another assistant director, Shahid Yousaf, was arrested in Peshawar in 2017 for issuing CNICs to Afghan nationals. NADRA reportedly sacked 200 officials for issuing CNICs to foreign nationals and collaborated with the Pakistani authorities in relation to the arrest, investigation and prosecution of those suspected of registering foreigners.[12]

    [11] Ibid, p.42

    [12] ‘House of cards - Why NADRA’s system is far from being flawless’, Herald (Pakistan), 19 April 2017, CXC90406619198

12. In 2022 DFAT reported that genuine documents such as CNICs and passports can still be obtained with fraudulently issued or counterfeit feeder documents including academic degrees and transcripts, bank statements, references and ownership deeds. While union councils and NADRA can verify whether documents are genuine, they may not be able to identify fraudulently obtained genuine documents.[13]

    [13] DFAT 2022, DFAT Country Information Report Pakistan, 25 January at 5.52–5.55

13. I note the delegate’s conclusion that if the applicant had obtained the CNIC through fraudulent means as he claims, that fraud would have likely been detected when the Department carried out checks with the Pakistani authorities because a fraudulently issued CNIC would likely not have been reflected in the NADRA database and therefore the checks would have shown it to be non-genuine. The Tribunal is unable to locate any country information cited in the delegate’s decision or elsewhere that would support that conclusion, rather it appears contrary to the DFAT advice cited by the delegate to the effect that detection of such fraud is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents.[14] As noted above, DFAT’s current report indicates that genuine documents such as CNICs and passports can still be obtained with fraudulently issued or counterfeit feeder documents and union councils and NADRA may not be able to identify fraudulently obtained genuine documents.[15]

    [14] DFAT 2019, DFAT Country Information Report Pakistan, 20 February cited in the delegate’s decision under heading ‘Reasons’

    [15] DFAT 2022, DFAT Country Information Report Pakistan, 25 January at 5.52–5.55

    Conclusion on identity

14. In view of the documentary evidence and country information cited above, together with my finding that it is unlikely that the applicant could have become eligible for Pakistani citizenship through any lawful means, I accept that the applicant obtained the apparently genuine CNIC in the name of [Alias] in 2011 by fraudulent means. I further accept that the applicant is not related to [Mr C] as stated on the CNIC and other Pakistani identity cards, rather it appears he was added to [Mr C]’s household registration in the manner set out in the country information cited above.

15. I note the discrepancy between the date of birth recorded for the applicant on the Afghan passport ([Date]) and that given by the applicant to the department ([Date]). DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain uncommon in Afghanistan. DFAT states the high number of home births makes the process of registering births challenging, the reporting of birth dates is unreliable and any reported dates are likely to be approximate.[16] This approximate nature of recorded dates of birth in Afghan identity documents is illustrated by the date of birth on the applicant’s taskera (which states that ‘as per facial appearance he is [Age] years old in 2007’) and driver’s licence (which states that the applicant is ’[a different age] in 2007’). I accept the applicant believes his date of birth to be [Date] and no reliable documentary evidence of his exact date of birth is available.

    [16] DFAT DFAT Country Information Report: Afghanistan 27 June 2019 at 5.49

16. For all the above reasons, the Tribunal finds the applicant’s correct identity is [the applicant], son of [Mr G], born in Kandahar province, Afghanistan, on or about [Date]. The Tribunal finds he is a national of Afghanistan and no other country.

    Conclusions on the information set out in the NOICC

17. The Tribunal has accepted that the applicant fraudulently obtained a genuinely issued Pakistani CNIC in the name of [Alias] in 2011. That identity was used to obtain a gun licence and operate a bank account in Quetta, as well as providing the applicant’s children with rights to education and health services in that country. In these circumstances, the Tribunal does not accept the applicant obtained that identity for the limited purpose of departing Pakistan, nor that he has never been known by the name of [Alias]. Rather the Tribunal is satisfied that the applicant gave incorrect information at question 9 of application form 790C of the SHEV application when he stated that he had never been known by another name.

18. The Tribunal has accepted that the applicant is a citizen of Afghanistan and no other country. Therefore the Tribunal finds the applicant did not give incorrect information at questions 22 and 25 of the form 790C when he stated that he did not hold any other citizenship and had no right to enter or reside in any country other than Afghanistan.

19. Question 58 asked the applicant whether he had ever had or used any other passport or travel document, including expired, lost or stolen documents, and the applicant answered no. As noted above, the applicant had earlier stated in the visa application that his Afghani passport was not useful to make the journey from Karachi airport and therefore the people smuggler provided all the required fake documents for the flights to [Country 1]. He also stated that the agent made him a Pakistani passport to enable him to travel from Karachi, Pakistan to [Country 2]. As these answers appeared before question 58, which asked if he had ever had or used any other passport or travel document, the Tribunal finds he answered that question correctly, having already stated earlier in that form that he departed Pakistan on a Pakistani passport provided to him by the people smugglers.

20. For these reasons, the Tribunal considers that the applicant did not give incorrect information at question 58 (when he stated he had never had or used any other passport or travel document, including expired, lost or stolen documents).

    Conclusion on non-compliance

21. Having found that the applicant gave incorrect information at question 9 of the SHEV application, the Tribunal finds that there was non-compliance with s 101 in the way described in the s 107 notice.

    Should the visa be cancelled?

22. 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).

23. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations.

    The correct information

24. For the reasons set out above, I have found that the applicant’s identity is [the applicant], son of [Mr G], born in Kandahar province, Afghanistan, on [Date] as stated in the visa application. I have also found that he fraudulently obtained a genuinely issued Pakistani CNIC in the name of [Alias] in 2011 and that identity was used to obtain a gun licence and operate a bank account in Quetta, as well as providing the applicant’s children with rights to education and health services in that country.

25. Therefore the correct information is that while the applicant is an Afghan national, he assumed another identity in Pakistan for a period of approximately two years using fraudulently obtained (but genuinely issued) Pakistani identity documents in the name of [Alias] and he did not disclose to the Department that he had been known by that name.

26. It is a serious matter to misrepresent or provide selective information about 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)

27. 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

28. The Tribunal has not been provided with a copy of a delegate’s decision setting out the reasons the applicant was granted the SHEV on 15 March 2017, although the Tribunal is aware that this may be because a formal decision record is not always produced where the Department grants the visa at first instance. The delegate records in the cancellation decision that the applicant was granted the visa in significant part on the basis that he engaged Australia’s protection obligations as a citizen of Afghanistan who had used a bogus Pakistani passport to leave Pakistan. The Tribunal’s findings indicate that those matters were and continue to be correct.

29. Case notes dated 13 January 2017 record that the applicant was indicatively found to be a refugee on the basis of his Shia religion, Hazara ethnicity and imputed political opinion in support of the former Afghan government and international community, due to his employment with [Employer] and his (now former) wife’s employment with [International organisation]. That case note records that the applicant extensively detailed his employment, his wife’s employment and the threats he had received at his protection visa interview and the interviewer was satisfied he had provided a true account of those events. As noted above, the Tribunal considers there is also significant and credible documentary evidence of the applicant’s employment with [Employer] in Kandahar at this time, as well as that company’s work for ISAF and NATO forces. Given the Tribunal’s conclusion that the applicant is in fact an Afghan national who held fraudulently issued but genuine Pakistani identity documents while living as a refugee in Pakistan, the Tribunal considers that the visa would still have been granted even if the details of the applicant’s Pakistani identity documents had been known.

30. The Tribunal accepts, however, that had it been known to the Department that the applicant was living in Pakistan using another identity, whether or not that identity was ultimately found to be genuine, further security and penal clearances would have been undertaken by the Department which may have delayed the grant of the visa.

31. As noted above, it is a serious matter to misrepresent or provide selective information about a person’s identity in a visa application. However, I consider that had the correct information been known, the applicant would still have been granted the visa on the basis of his Shia religion, Hazara ethnicity and imputed political opinion in support of the former Afghan government and international community. In these circumstances, the Tribunal concludes that the decision to grant the applicant the protection visa was not based on the incorrect information in the visa application.

    The circumstances in which the non-compliance occurred

32. The applicant states that he left Afghanistan to save his life and he obtained false Pakistani identity documents in the way that many Hazaras living in Pakistan do. He acknowledges that he did not disclose the correct details of his false Pakistani identity to the Department in the visa application, although he did consistently disclose that he had left Pakistan on a Pakistani passport arranged for him by the people smugglers.

1. As discussed with the applicant at hearing, I consider his statement to the Department that he could not remember the name on his Pakistani passport but thought it was ‘Ibrahim something’ was untrue. This is because the Pakistani passport was issued using the first name of the applicant [Given name] with the suffix [deleted] and contained his correct date of birth and he gave evidence that he paid double the rate charged to others for these reasons. I do not accept he was unable to remember those details, rather I consider he deliberately gave incorrect information on this point.

2. 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 Pakistan, his concern for his safety and that of his family, and the misinformation circulated by the people smugglers and others in the community.

3. I weigh this factor slightly in favour of the cancellation of the visa.

   The present circumstances of the visa holder and his contribution to the community

4. The applicant has now been in Australia for 10 years. Since his arrival he has divorced his second wife, [Ms I], with whom he had two [children]. They were trying to get to Europe to seek asylum following the fall of Afghanistan in 2021 on the basis of his wife’s former employment with [International organisation] in Afghanistan. At hearing the applicant gave evidence that be believed [Ms I] and their children were currently in [Country 3], but the breakdown in his relationship with his former wife meant that she was not open with him about her plans and he did not know the basis on which they were living in [Country 3].

5. The applicant has an adult child [from] his first marriage [which] ended many years ago in Afghanistan. [This adult child] lives with the applicant’s mother and sister and her children in Jaghori, Pakistan, and the entire family is financially supported by money sent to them by the applicant in Australia. In 2019 the applicant married [Ms F] who was living with his mother and sister in Jaghori but has since left Afghanistan for Pakistan after the Taliban threatened to marry off young women to their soldiers.

6. The applicant operates [a Work sector] business in [City], Victoria, and has provided the Tribunal with ASIC and ATO documents relating to that business. While he had qualifications and employment experience in the [Work] sector in Afghanistan, it was necessary for him to requalify in Australia in order to obtain related employment. The Tribunal notes that his visa restrictions meant that the applicant paid the full cost of those studies as an international student. He has provided to the Tribunal copies of his Advanced Diploma of [Subject]; professional certification from [Professional society]; his academic transcript for a Certificate IV in [Related subject], and various other educational and training certificates and statements of attainment.

7. I have had regard to the applicant’s long residence in Australia, his financial commitment to his family members overseas, his educational and professional achievements since his arrival in Australia and his contribution to the Australian community, and I weigh this factor significantly 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

8. The delegate’s decision records that the applicant acknowledged the non-compliance only in respect of his failure to disclose that he was known by another name. For the reasons set out above, I have concluded that this was the only instance of non-compliance. I give a little weight to this factor against the cancellation of the visa.

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

9. The delegate’s decision records that the applicant has returned to Afghanistan since being granted the visa in breach of his visa conditions, as recorded on his incoming passenger card [in] December 2019.

10. However, I accept the applicant’s explanation for this, being that he misunderstood the question on that as referring to the country in which he had spent most time overseas across his lifetime, rather than on that particular trip. I note that the applicant was absent from Australia for approximately four weeks, during which time he married in Quetta, Pakistan, [in] 2019 as evidenced by the marriage certificate. I accept that he did not return to Afghanistan during this period.

11. I weigh this factor as neutral to my assessment as to whether the visa should be cancelled.

    The time that has elapsed since the non-compliance

12. The non-compliance took place in the SHEV application in 2016 and approximately seven years have elapsed since then. 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

13. The delegate’s decision records that there are no known breaches of the law by the applicant since the non-compliance. I weigh this factor against the cancellation of the visa.

    Other factors to be considered

14. 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

15. In this case, there are no consequential cancellations that will result from the cancellation of the applicant’s visa.

16. I weigh this factor as neutral to my assessment as to whether the visa should be cancelled.

    Mandatory legal consequences of the cancellation

17. In considering the mandatory legal consequences to the cancellation decision, the applicant will have very limited options to make any other visa applications onshore.

18. The delegate’s decision records that if the applicant’s visa is cancelled, he will be subject to s 46A and s 48A of the Act, which means that he will not be able to apply for another visa while in Australia, including a protection visa, unless the Minister lifts the relevant bars using his personal and non-compellable powers under s 46A(2) and s 48B(1) respectively. He will also be subject to public interest criterion 4013 for three years if the visa is cancelled.

19. As noted by the delegate, s 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. Section 46A prevents unauthorised maritime arrivals such as the applicant from making visa applications while onshore. The ss 46A and 48A bars may be lifted by the Minister personally where he or she considers it is in the public interest to do so, but such a decision is not reviewable or compellable and any consideration of how the Minister may exercise his discretion is merely speculative.

20. 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. 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.

21. 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.

22. 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

23. 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.

24. In this case, the applicant made a valid application for a protection visa in 2016 and that application was finally determined when a delegate made a ‘protection finding’ in respect of the applicant in the case note dated 13 January 2017. In these circumstances, s 197C(3) does not require or authorise the applicant’s removal from Australia 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.

25. 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, rather the delegate’s decision acknowledges that the applicant must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of his protection status. The applicant has not requested removal from Australia, and I accept that is unlikely to occur given the 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).

26. 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.

27. 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 involuntarily returned to Afghanistan because he is the subject of a protection finding. As a consequence he faces detention for a significant and indefinite period.

28. I give this factor very significant weight against cancellation of the visa.

    Any other relevant matters

29. The applicant left Afghanistan in 2011 after being threatened by the Taliban. He fears he will be killed if he returns.

100.   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.[17] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[18] 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.[19]

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

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

[19] 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)

101.   In August 2021, the UNHCR reported that the situation in Afghanistan remained 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 stated that in view of the volatility of the situation, it did 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 had stabilised.[20]

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

102.   In September 2021, the United Nations General Assembly (UNGA) reported 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 did not reflect this. Rather, after seizing Kabul, the Taliban reportedly erected checkpoints throughout the capital and shot people who crossed checkpoints without approval, conducting house-to-house searches for government personnel, weapons and property.[21]

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

103.   In January 2022, DFAT reported 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 noted that the security situation is still evolving and it was unclear how long the current relative peace will continue, particularly if Afghanistan’s economy collapses and the Taliban face greater internal challenges.[22]

[22] DFAT DFAT Country Information Report Afghanistan 4 January 2022 at 2.16–2.23

104.   In the same report, DFAT noted that two of ISKP’s mass-casualty attacks, along with smaller attacks since mid-August 2021, had 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 reported 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 assessed 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.[23]

[23] Ibid at 3.4–3.5

105.   In February 2022, the UNHCR renewed its call for all countries to allow civilians fleeing Afghanistan access to their territories and to guarantee the right to seek asylum and ensure respect for the principle of non-refoulement, noting that recent developments were giving rise to an increase in the need for international refugee protection for people fleeing Afghanistan. It noted a number of obstacles to the gathering of comprehensive information concerning the human rights situation and considered that the current uncertainties (including the Taliban’s disregard for the rule of law, the fear and uncertainties relating to authoritarian governance and the lack of information about the human rights situation) made it inappropriate to issue comprehensive guidance on the international protection needs of people fleeing Afghanistan. Rather, it urged states to suspend issuing protection decisions in all cases where it could not be readily determined that the person in question is a refugee within the meaning of the 1951 Refugees Convention.[24]

[24] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022

106.   In April 2022, the UK Home Office listed persons associated with the former Afghan government or international community as a potentially vulnerable group.[25] In February 2023, the UNHCR reported that civilians continue to be gravely affected by the security, human rights and humanitarian crises in the country. It noted that many Afghans will have international protection needs, identifying one of those groups needing protection as Afghans associated with the former government or international community in Afghanistan, including employees of international organisations. In relation to effective state protection, the UNHCR reported that it does not consider the de facto authorities are willing or able to provide protection to Afghans at risk of persecution. Nor does it consider it appropriate to deny international protection to Afghans on the basis of an internal flight or relocation alternative.[26]

[25] UK Home Office, Country Policy and Information Note Afghanistan: Fear of the Taliban, April 2022

[26] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2023

107.   In June 2022, the Danish Immigration Centre (DIS) reported that while a large number of Afghans affiliated with the former government were evacuated abroad, many remain in the country and have been subjected to different forms of violations, including killings, arrests, house searches etc. The DIS also notes that the Taliban generally has a well‑developed intelligence network throughout the country, especially in the rural parts of Afghanistan, where they have had a strong presence as an insurgency.[27]

[27] Danish Immigration Service Afghanistan: Taliban’s Impact on the Population June 2022 at K:\Kontoret for Landedokumentation\COI-team\FFM\FFM 2022\Afghanistan\Endelig rapport sendt til dep\Forside_Afghanistan_Rapport (europa.eu)

108.   In February 2023, the Special Rapporteur on the situation of human rights in Afghanistan reported that the humanitarian crisis had worsened since his initial report to the Human Rights Council a year earlier. While that report does not make specific mention of Afghans associated with the former government or international community, the Special Rapporteur reported that press freedoms had deteriorated, with an estimated 40% of media organisations ceasing operation and 60% of journalists losing their jobs since August 2021. The report noted serious challenges to the rule of law in Afghanistan and credible reports regarding extrajudicial executions and torture, the heavy suppression of communities and an information blackout. The Special Rapporteur expressed concern about the climate of impunity and the continued failure to hold officials and commanders accountable for serious violations of international human rights and humanitarian law, a trend that preceded the Taliban regime and that has continued. He referred to numerous reports of extrajudicial killings of former members of the Afghan National Defence and Security Forces, contrary to the declared amnesty, which had not been properly investigated.[28]

[28] Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, 9 February 2023

109.   In February 2023, the UNHCR issued an updated Guidance Note on the International Protection Needs of People Fleeing Afghanistan, reporting that the Taliban de facto authorities are reported to have committed serious human rights violations, including extrajudicial killings, arbitrary arrest and detention, torture and other forms of ill-treatment. It also noted that activities by armed opposition groups had intensified by the end of 2022 and that groups with increased international protection needs since 15 August 2021 included Afghans associated with the former international military forces, the former government or the international community in Afghanistan and members of minority religious and ethnic groups, including the Hazaras. It assessed that the de facto authorities are not willing or able to provide protection for Afghans at risk of persecution.[29]

[29] UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan – Update 1 February 2023

110.   In light of the available country information, the Tribunal considers that the applicant’s fear of future harm from the Taliban and other extremist groups operating in Afghanistan on the basis of his Hazara ethnicity, Shia religion and imputed political opinion in favour of the former Afghan government and international community continues to be both genuine and well founded.

EXERCISE OF DISCRETION

111.   I have considered the factors which weigh in favour of cancelling the visa, most notably that the applicant provided incorrect information about the Pakistani identity he had assumed and which he used to depart Pakistan in 2013. However, in balancing all of the relevant factors, the Tribunal considers that the matters to which it is required to have regard weigh strongly 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 2017, 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 in support of the former Afghan government and international community, due to his employment with [Employer] and that company’s work for ISAF and NATO forces and his (now former) wife’s employment with [International organisation];

·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 he requests removal from Australia;

·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. Given that he is statute barred from making further visa applications without Ministerial intervention and he cannot be removed from Australia except in the limited circumstances discussed above, that detention will potentially be prolonged and indefinite;

·Country information indicates the security situation in Afghanistan remains highly volatile. Since the Taliban overthrew the former NATO-backed Afghan government and formed a de facto government in September 2021, many Afghans affiliated with the former government have been subjected to different forms of violations, including killings, arrests and house searches.[30] DFAT reports multiple ISKP attacks directly targeting Shia mosques used mostly by Hazaras, issuing a statement in October 2021 declaring it would target Shia ‘in every way, from slaughtering their necks to scattering their limbs’. 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.[31]

[30] Danish Immigration Service Afghanistan: Taliban’s Impact on the Population June 2022 at K:\Kontoret for Landedokumentation\COI-team\FFM\FFM 2022\Afghanistan\Endelig rapport sendt til dep\Forside_Afghanistan_Rapport (europa.eu)

[31] DFAT DFAT Country Information Report Afghanistan 4 January 2022 at 3.4-3.5

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

DECISION

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