2201062 (Refugee)

2201062 (Refugee) [2023] AATA 2886 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Maria Psihogios
CASE NUMBER:  2201062
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:22 June 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 866 (Protection) visa.

Statement made on 22 June 2023 at 5:46pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – ground for cancellation – incorrect information in visa application – name – date of birth – place of birth – citizenship at birth – claimed profile and fears – Pakistani citizenship – Computerised National Identity Card of Pakistan (CNIC) – consideration of discretion – grant of visa based on incorrect information – circumstances giving rise to the non-compliance – desperation and fear – advice of people smugglers – present circumstances of the visa holder – mental health challenges – family’s safety and wellbeing – other instances of non-compliance – length of time spent in Australia – extended period of immigration detention – genuineness of remorse – element of futility – Hazara Shia in Pakistan – non-refoulement obligations – lengthy delays in each of the decision making stages – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 189, 197AB, 197C, 197D, 198
Migration Regulations 1994 (Cth), r 2.41
CASES
1901883 (Refugee) [2021] AATA 3216
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 dependant.
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 claimed in his protection visa application to be an Afghan Hazara fearing return to Afghanistan when it was subsequently determined that he was a Pakistani Hazara. In addition, when considering the discretionary elements after having found that there were grounds for the visa to be cancelled, the delegate determined that the visa should be cancelled.
Through the cancellation process the Department mistakenly sent two notices of intention to consider cancellation (NOICC). This mistake was detailed to the applicant in a letter dated 24 January 2022:
On 19 May 2021 you were notified of, and invited to comment on, the intention to consider cancellation of your Protection (subclass 866) visa granted on 28 September 2011. Your legal practitioner, Maria Psihogios, replied in two emails containing several attachments, on 2 June 2021. On 19 July 2021 you were issued a further notice to which you responded on 29 July 2021.
The notice issued on 19 July 2021 was sent in error and as a result, neither the information in that notice, nor your response of 29 July 2021 will be considered. A decision as to whether there was non-compliance by you, as described in the Notice of Intention to Consider Cancellation (NOICC) issued on 19 May 2021, will be made based solely on the information contained in that NOICC, and on your responses of 2 June 2021.
No matters relevant to this Tribunal’s decision making arise from this mistake.
The issue in the present case is whether the ground for cancellation identified by the Minister’s delegate is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) which reads:
Visa 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.
The NOICC identified non-compliance in the following respects:
I consider you are [the applicant], born [date]. You were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan. Your claims relating to your experiences in Afghanistan and your reasons for leaving, and being unable to return there, are incorrect. The claim your father was an interpreter and was killed by the Taliban is also incorrect. Your claim to have been shot at by the Taliban while driving is incorrect, as is your statement that they took over your land and house. I also find that, as a Pakistani citizen, you did not reside there illegally. You lived in a family house, attended primary and secondary school, completed a university degree and worked in Quetta.
Specifically, the delegate of the Minister determined that the applicant had answered incorrectly the following questions in his subclass 866 visa application form:
Question 1 asked ‘What is your full name?’ to which you answered ‘[Name 1]’. I consider this answer to be incorrect as the Department has established you are [the applicant], as verified by the genuine CNIC number [number] you provided to Department on 17 June 2019.
Question 7 asked ‘Date of birth’ to which you answered ‘[alternate date]’. I consider this answer to be incorrect as the Department has established your date of birth is [date]’ as verified by the genuine CNIC number [number] you provided to Department on 17 June 2019.
Question 8 asked ‘Place of birth; Town/city & Country’ to which you answered ‘Lashkargah, Kateh Lagan, Afghanistan’. I consider this answer to be incorrect as the Department has established you hold a genuine Pakistani CNIC number [number] which you provided to Department on 17 June 2019. CNICs are issued to citizens of Pakistan, thereby indicating you were not born in Afghanistan.
Question 19 asked ‘Your citizenship at birth’ to which you answered ‘Afghani’. I consider this answer to be incorrect as you hold a genuine Pakistani CNIC number [number] which you provided to Department on 17 June 2019. CNICs are issued to citizens of Pakistan, thereby indicating you are a Pakistani citizen not an Afghan citizen.
Question 21 asked ‘Do you hold any other citizenship or are you a national of any other country?’ to which you answered ‘No’. I consider this to be incorrect as you hold a genuine Pakistani CNIC number [number] which you provided to Department on 17 June 2019. CNICs are issued to citizens of Pakistan, thereby indicating you are a Pakistani citizen.
Question 41 stated ‘I am seeking protection in Australia so that I do not have to go back to’ to which you answered ‘Afghanistan’. I consider this to be incorrect as you have declared you have never been to Afghanistan.
Question 42 asked ‘Why did you leave that country?’ you answered, in summary, because your father was killed by the Taliban and your mother feared they would also kill you and all your family, so your mother’s brother arranged for you all to escape to Pakistan. You also advised you left Pakistan because you were living there illegally and it was very dangerous; the Baluch and Pastun targeted and attacked Harara males as they wanted them to leave Pakistan. A friend of yours was killed by the Baluch when he was driving passengers; he was targeted because he was a Hazara. One day when you were driving passengers you were also shot at, but you were able to turn your car around and escape without being hit.
Your mother feared if you remained in Pakistan you would be killed. You could not return to Afghanistan as the Taliban controlled the area where you had lived and taken control of your land and house. They would also associate you with your father.
I consider this response to be incorrect because you were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan and therefore your claims relating to your experiences in Afghanistan and your reasons for leaving there and being unable to return there, are incorrect. I also find that as you are a Pakistani citizen, you did not reside there illegally. You lived in a family house, attended primary and secondary school, completed a university degree and worked in Quetta.
Question 43 asked ‘What do you fear may happen to you if you go back to that country?’ you answered in summary, you cannot return to Afghanistan as your area has been taken over by the Taliban and as the son of an interpreter they will kill you. You cannot go to any area in Afghanistan as they have spies and know the details of all persons entering and leaving. You also cannot return to Pakistan as you lived there illegally and they do not want Hazaras. I consider this response to be incorrect because you were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan and therefore your claims relating to your experiences in Afghanistan and your reasons for leaving there and being unable to return there, are incorrect. I also find that as you are a Pakistani citizen, you did not reside there illegally. You lived in a family house, attended primary and secondary school, completed a university degree and worked in Quetta.
Question 44 asked ‘Who do you think may harm/mistreat you if you go back?’ you answered ‘The Taliban’. I consider this response to be incorrect because you were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan. Therefore your claims relating to your experiences in Afghanistan and your reasons for leaving and being unable to return there, are incorrect, and you therefore did not come to the attention of the Taliban such that they would harm/mistreat you.
Question 45 asked ‘Why do you think this will happen to you if you go back?’ you answered because you are a Hazara and Muslim Shi’a and the son of an interpreter. I consider this response to be incorrect because you were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan and therefore your claims relating to your experiences in Afghanistan and your reasons for leaving there, being unable to return there, and what may happen to you if you go back, are incorrect.
Question 46 asked ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’ you answered ‘No’, because they are Pashtun and are associated with the Taliban. I consider this response to be incorrect because you were born in Pakistan and are a Pakistani citizen. You are not an Afghan citizen and have never visited Afghanistan and therefore your claims relating to your experiences in Afghanistan and your reasons for leaving there, being unable to return there, and what may happen to you if you go back, are incorrect.
In the applicant’s response to the NOICC he claimed he had corrected his information on 17 June 2019 following his brother’s confession to the Department on the 15 May 2019 when his brother admitted that they had both provided incorrect information. In addition, he wrote that he regretted not providing the correct information at the time.
As the applicant has acknowledged providing incorrect information through written correspondence and at the Tribunal’s hearing, I find that there was non-compliance with s 101 by the applicant in the way described 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 Regulations and are listed below as italicised headings:
The correct information
The correct information is that the applicant is [the applicant], born [date], in Quetta, Pakistan. He is a citizen of Pakistan and has not lived in Afghanistan. As such the applicant’s claims of his life in Afghanistan are also incorrect. The entirety of the applicant’s narrative pertaining to his life story and reasons for fearing harm are incorrect. For the reason of the extent of the applicant’s incorrect information I place considerable weight in favour of cancelling the applicant’s visa.
The content of the genuine document (if any)
Of the documents provided in support of the incorrect information the genuine document is the Computerised National Identity Card of Pakistan as opposed to the taskera, the Afghan national identity document. That the applicant went through the process of obtaining a fake document adds further concerns and leads me to place slight weight in favour of cancelling the applicant’s visa.
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 applicant claims that the decision to grant his protection visa was not based upon being a citizen of Afghanistan but rather on his race and religion, namely Shia Hazara. I do not accept this. Being Shia Hazara in of itself does not expose someone to persecution, it is only within a particular context that Shia Hazara would be persecuted. The context matters. In this instance the applicant’s claims were assessed against the circumstances of Afghanistan rather than those of Pakistan.
The applicant explained in a written submission
the truth is when I fled Quetta in 2011, the violence and killings of Shia Hazara – ordinary Shia Hazara like me, was worse than Afghanistan. I say that I regret not saying the truth but the only reasons I said Afghanistan not Pakistan, was because I wanted to be granted protection. I thought I would face being returned to Pakistan but the situation in Pakistan at that time and in the previous year in 2010 was the most violent – this is what led me to flee to come to Australia with my brother [Mr A].
The question that needs to be considered isn’t whether the applicant would have been granted the visa if all of the correct information had been provided. Such a retrospective exercise is untenable as it is highly dependent upon the information available to a decision maker at the time.
The question that needs to be considered is whether the decision that was made by the delegate relied wholly or partly on the incorrect information. In other words, whether the incorrect information featured as a reason or part of the reason for the decision. In this instance the country of citizenship against which the applicant’s claims would be considered was wholly relevant. The Taliban had a long history of violent persecution of Shia and in particularly Shia Hazara. The applicant didn’t choose to lie with regards to his nationality to weaken his application but believed that by claiming to be from Afghanistan it would strengthen his claims.
The delegate accepted that the applicant was originally from Afghanistan although the applicant had acknowledged that prior to arriving to Australia he had lived in Pakistan since about the age of [age] years. The delegate found that the applicant could not return to his hometown of Lashkargah in Afghanistan, nor could he relocate to Kabul.
As the decision relied wholly on the false information I place considerable weight in favour of cancellation.
The circumstances in which the non-compliance occurred
The applicant gave a considerable amount of information about his circumstances in Pakistan both in oral evidence and written submissions, arguing that because of his dire situation there, he did not want to return to Pakistan and hence gave wrong information. He explained how the Hazara of Pakistan are persecuted and their safety at risk. He noted that even when his mother was at her death bed, he was unable to return for fear of his life.
But when turning my mind to this consideration I note that the question isn’t why he left Pakistan but rather why he chose to provide the incorrect information. His background circumstances may play some role in this, particularly as context, but ultimately it is a question of what made him choose to provide incorrect information as opposed to telling the truth.
When this clarification was made, the applicant responded that after he had arrived in Australia, he was terrified of saying anything which would result in his application being refused as his life and his family’s life depended on it. Therefore, he provided the incorrect information. He believed he had to say he was from Afghanistan to be granted protection. If he said he was from Pakistan, he was concerned he would be required to produce identity documents which could lead to him being returned there.
The applicant said that he had decided to make the lie when they were on the way to Australia by boat. He described his journey of being on a very small and narrow boat thinking that he may not reach Australia. While on the boat people smugglers took their passports and identity cards and threatened them if they told the Australian authorities about them. They said that they will kill them. He said that he was afraid.
The applicant said that the smugglers didn’t give them instructions on what to say other than to keep their real identity hidden and that he should make a false identity. They didn’t explain why, nor did he ask, as he claimed that he was afraid. He said that he just wanted to reach Australia. I asked whether when they reached Australia, he thought about why they had given such instructions, to which he said no, as he was still fearful of how they had threatened him, and he feared being sent back. He said that he was stressed, anxious and depressed at the time.
While I accept that the people smugglers had been threatening him and the journey itself was confronting, he nevertheless, upon reaching land and having the safety and security of being in a detention centre continued the lie. The applicant appeared not to have thought about why he would not tell the truth and instead believed those who had told him to lie. While the applicant claims that he would have faced harm equally, at the time, if not more so in Pakistan as a Hazara than in Afghanistan, he nevertheless chose to tell authorities that he was Afghan.

The applicant’s evidence suggests that his fear of being sent back led him to accept the wisdom of the people smugglers. While this was unwise, as he may have been granted a visa had he told the truth, it is believable. That it reflects poorly on his character must be considered against the backdrop of the applicant being motivated to grab any chance he had to access a new life in Australia.
While the applicant has individual agency and should have chosen the right path, I accept that through desperation and fear he chose to take the advice of people smugglers. Despite not being in a vulnerable situation when this choice was made, for instance fearing for his life at the hands of the smugglers, he persisted with the lie. He did so as he was desperate, and by this stage he had accepted the view that he was best placed to claim to be Afghan. For the reason of the applicant’s broader circumstances, I place moderate weight against cancellation.
The present circumstances of the visa holder
The applicant has two brothers who are resident in Australia. Together with his Australia based brothers the applicant is responsible for supporting 11 family members in Pakistan including providing for the costs of separate living arrangements for his wife to live with her family as his family home was too crowded.
The applicant wrote that due to the financial support he and his brothers were sending, it allowed the sole remaining brother in Pakistan, who is the only adult male among the 11 people, to not have to leave the Hazara enclave where it remains safe and find work outside which would put him at risk of harm.
I asked whether the other members of his wife’s family which includes several people who live in Australia could support her. He said that since his marriage they have stopped supporting her, including her brother in Pakistan with whom she lives, as she is his wife and so his responsibility. He said that it is not the role for other family members to step in nor would they. He said that if he was unable to provide for her it would then turn to his family members to ensure that she is provided for.
The applicant has not worked since his visa was cancelled. I put to the applicant that he has worked hard over the past decade prior to his visa being cancelled and that as a result he has bought two properties together with his brother. I asked if he sold his share whether he would have enough assets to continue to support his family, potentially during an extended period in immigration detention.
Firstly, he noted that the family’s safety would remain a risk and that without financial support it would only exacerbate the situation as they would be forced to live in conditions that would place them at risk. I put to him that he hasn’t worked for 1.5 years and yet they have survived, to which he responded that he had savings, more than $30,000, which was used to provide for them but is now almost all gone. In addition, he said that he feels that he is obliged to pay back the support his brothers have provided in supporting his family.
Regarding the houses that he bought in March 2016 and 2021, he said that they have ongoing mortgage payments which would affect his brother with whom he bought them. I put to him that if they sell one then he would have some profit with which he could use to paydown the mortgage on the other or have the funds contribute to other expenses. He acknowledged that he could sell one house.
As a result of this situation, the applicant said that he is feeling anxious, depressed and not sleeping well. He said that he has suicidal thoughts that come to mind but because he is a Muslim, he knows that its wrong and has not acted on them.
The applicant spent over a year in immigration detention. I asked him to consider his experiences then and to reflect on how it impacted him now, if he was detained for an extended period of time. He said that first and foremost he is concerned about how it would impact his family’s safety. He believes that being in immigration detention and the inability for him to earn money poses a threat to their safety, as noted earlier, but also to his safety, as his mental health is under pressure, and he is afraid that he would not be able to control himself at that point.
He said that even now he is completely shattered and that he hardly goes out of the house as he fears whether the police will stop him and what would happen to him. He said that he gets irritated with his wife which in turn is affecting his marriage. He worries that this will lead to divorce and in turn she would be left alone.
In considering the applicant’s present circumstances and how they would be impacted by an adverse decision I note that, as is explained further below, this decision does not lead to the applicant being deported and returned to Pakistan. The applicant was previously found to be owed Australia’s protection and following new legal measures introduced in 2021 a further assessment will need to be undertaken which can be appealed to the Tribunal if adverse. As such when considering the applicant’s present circumstances, I do so under the assumption that an adverse decision will lead to the applicant being detained in immigration detention for an extended period until such time as the further legal process is concluded.
Noting the applicant’s past experiences in immigration detention provide some insight into his challenges I accept what he has described as being insightful and credible. I accept that he would face some mental health challenges and that his family would be impacted. In a further section below, I place weight on the impact detention would have on him personally and as such do not do so here.
But noting that detention would extend to some years and that in turn it would have a severe impact on his family’s safety and wellbeing, a family who are already living as minorities at threat of persecution, I place moderate weight against cancellation.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There are no other known behavioural concerns relating to the obligations upon visa holders in Subdivision C of Division 3 of Part 2 of the Act. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant applied for citizenship on 30 September 2015. In this application the applicant continued to claim to be a citizen of Afghanistan. Should this be considered another instance of non-compliance or simply an extension of the same instance? I find that it is something in between in that it is a new instance of non-compliance but building on the prior instance for which this decision has given considerable weight already. When this instance of non-compliance was put to the applicant, he again said that he regrets his actions. As such in considering this instance of noncompliance, I only place marginal weight in favour of cancellation as it is an extension of the same non-compliance.
I am more concerned by the applicant’s provision of incorrect information in his May 2019 submission in which he was correcting his previous incorrect information.
I noted to the applicant that some of the information the applicant provided in his May 2019 submission to the Department appeared to indicate continuing provision of incorrect information in relation to his family composition arising from evidence that he had transferred monies to family members whom he had claim to be deceased.
Specifically, the applicant claimed in his ‘corrected’ submission that he had a brother named [Mr B], born [date], who died [in] July 2015; however, I noted, it appears that he had transferred monies overseas to a person with this name. The applicant responded that his brother died in 2015 and he had not transferred money after his death. I accept this explanation.
The applicant had advised in the same ‘corrected’ document that he had a brother [Mr C], who is deceased; however, I put to him that it appears that he had transferred monies overseas to a person with the name [Mr C]. The applicant acknowledged that he had lied about his brother.
He said that he was not thinking clearly, and he had not taken proper legal advice. He noted in his written statement from 2021 that [Mr C] was in Australia at the time and ‘it was very difficult for me to course correct given the incorrect information he [[Mr C]] had previously provided.’ He explained this further at the hearing stating that had he come forward and given the correct information, and the department had cancelled all of their visas then they would be in great danger financially without a way to work and as a result the 11 family members in Pakistan would be in increased danger.
He said that his brother who remains in Pakistan has a business, but it only covers a small portion of the daily expenses. His hope was to keep someone hidden who could provide for the family, but he said that they didn’t want to be dishonest but rather all they wanted was to keep the family alive.
The applicant’s behaviour in this aspect is appalling considering that he had acknowledged that he had provided incorrect information and yet intentionally withheld the correct information so that he could circumvent Australian government processes by keeping one of his brother’s ‘off the books’ so to speak. This leads me to question to what extent his claims of regret and remorse for his actions is genuine, a matter that I return to again below.
With regards to his further instances of non-compliance and noting the nature of them being that he has not only reinforced earlier lies but subsequently added new lies, I place moderate weight in favour of cancelling the applicant’s visa.
The time that has elapsed since the non-compliance
The applicant has lived in Australia since July 2010. The applicant was granted a protection visa on the 22 June 2011. He has been in the country for over thirteen years and in the community for around twelve years. This is a substantial period during which he has established ties to the community and lost ties to his former community.
I place moderate weight against cancellation based upon the length of time that he has spent in Australia.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no breaches of the law known to the Tribunal. Noting that compliance is a basic expectation of all visa holders I place limited weight against cancellation.
Any contribution made by the holder to the community.
The applicant sought to present his employment as a contribution to the community. In considering this claim I am of the view that a contribution to the community is something that is not a peripheral benefit that arises through the course of pursuing something that is inherently of self-interest. Instead, it is those activities that help make the Australian community greater than the sum of individual interests. While I accept that the applicant has excelled in his job and pursued numerous courses and training opportunities, as demonstrated by the certificates he has submitted, I do not see this as a contribution to the community.
When this was explained the applicant said that he regularly helps the community. He said that he helps people who ask him about accessing government support and he has been involved in charities that help Pakistani widows.
I accept that the applicant has done what he described but place limited weight against cancellation based upon these contributions for the reason that as described they are very limited in scope and impact as it would affect the Australian community.
Other considerations
While these 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 Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140.
There are no consequential cancellations that arise from the cancellation of the applicant’s visa and for that reason this consideration weighs neutral.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations.
The issue of non-refoulement has been addressed above with a finding that the applicant will not be removed within the context of this decision and as such the situation does not expose Australia to be in breach of its non-refoulement obligations. As such I place no weight on this consideration.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and he exhausts any rights of judicial review, he will be an unlawful non-citizen. As the law currently stands, unless the applicant can regularise his position, he faces the prospect of an extended period in detention for the reasons explained below.
Due to the operation of s46(A) the applicant, as an unauthorised maritime arrival, is unable to apply for a further visa unless the Minister lifts the bar. Even if the Minister were to lift the bar, relevant to this decision due to the operation of s 48 of the Act a non-citizen who has a visa refused or cancelled may only apply for a particular visa. The prescribed visas are listed under r 2.12. None of the prescribed visas aligns with the applicant’s circumstances and as such there is no clear pathway to an alternative visa.
Due to the operation of s 48A of the Act where a protection visa holder has had their visa cancelled, the citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and I note that specifically includes temporary protection visas such as the type the applicant held.
The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.
When all of these legislative pathways are considered, it is clear that the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removed.
Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the relatively new ss 197C(3) and 197D which entered into force by way of the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) that came into effect on 25 May 2021.
In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken. These additional steps to the removal provisions have added a new process that works to prevent people from being refouled.
A full accounting of these new process was undertaken in a separate case 1901883 (Refugee) [2021] AATA 3216 (2 September 2021) which was heard by this member and Deputy President Redfern.
The new process created by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) is untested in that an applicant has not seen through the entire process including availing themselves of the opportunity to appeal before the Tribunal. As such the length of time it would take is unknown but based upon current timeframes for other visa processes it could amount to a few years or more and as such the applicant could remain in detention for an extended period until an outcome through this additional process is finalised.
It is relevant to appreciate that following this extended period of detention (including any appeals) the process would be finalised. This is because either the applicant retains the protection finding or alternatively he is found to ‘no longer’ be a person for whom a protection finding would be made (s 197D(2)) which would then open a pathway to removal.
If it is determined that a protection finding would still be made at the time of the decision or at the time of the review, it is not clear how the tension between the cancellation of his original visa, making him an unlawful non-citizen, would interact other than that he would be unable to be sent to Pakistan but also unable to enter the community and as such will remain in immigration detention. This is because s 189 states that an officer who ‘knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.’ But as noted above, the Minister has the power to grant the applicant a visa which may occur by way of s 195A.
Alternatively, if the applicant is no longer a person for whom a protection finding would be made, the applicant would be considered for removal under s 198.
An alternative possibility during the applicant’s detention waiting for the next stage of the process arises from s 197AB which provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. This is the power that has allowed non-citizens to be placed in what is colloquially known as ‘community detention’.
There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[1] Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister relevant to the applicant is:
a.where a person knowingly fails to provide information, or provides misleading information, about their identity (such as age, nationality, citizenship or ethnicity).
[1] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
On the other hand, among the profile of cases to be referred to the Minister’s attention there are none that align with the applicant’s circumstances. The grant of a favourable residency determination is therefore a highly unlikely outcome in the circumstances of this case.
As the law stands the applicant’s circumstances are such that he is liable to be held in immigration detention for an extended period until such time as the applicant’s case is considered under s 197D(2).
The applicant explained in a written submission how this would impact him:
The long-term detention will definitely shatter my last hope to life and even the thought of it depresses me and affected my mental health. Since the hearing, I haven't been able to sleep properly due to the same reason and continuously have suicidal thoughts to end my life. Long-term detention not only affects me but also affect my married life and my wife can't live without me while I am being in detention. She is also depressed with my current visa condition and cries on occasionally and her mental health is deteriorating as well. The long-term detention also affect my family members mental health and restrict me to support them financially and my wife as the females do not work and take care of the kids at home. I know very well how it feels being in detention a· I have already been in detention for 14 months.

Noting the adverse impact of detention on individuals including levels of post-traumatic stress disorder, depression, and anxiety,[2] and recognising that the period would be an extended period of time, I place considerable weight against cancellation arising from the impact of immigration detention.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
[2] ‘The Impact of Detention on the Health of Asylum Seekers: A Systematic Review’, Campbell Systematic Review, 2015
With regards to the Convention on the Rights of the Child Article 3.1 of the Convention on the Rights of the Child (CRC) states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
But Article 2 states, ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction.’ Noting that it is for children within the jurisdiction of the state party, I place no weight on the best interests of the applicant’s children in Pakistan.
Family unity is a principle that is derived from international treaties such as the International Covenant on Civil and Political Rights, Article 23: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ But as the applicant’s family is in Pakistan and their unification is not a possibility that arises from the exercise of the Tribunal’s powers in this case, I place no weight on family unity principles.
Any other relevant matters
The applicant had repeatedly expressed both in writing and at the hearing his regret over the provision of incorrect information. He specifically claimed that he was ‘ashamed’ and ‘embarrassed’. I asked him why he would regret what he said as his lie had secured him 10 years of opportunity in Australia whereas telling the truth may not have. I asked him in particularly whether he would risk it all by telling the truth. The applicant said that his original decision was influenced by his fear of returning to Pakistan, but when he realised what he had done, he wishes he could fix it.
But I noted to the applicant that the incorrect information wasn’t a slip of the tongue or an insignificant change to the application form, but that he repeatedly and continually falsified details including not only at the protection application stage but when he applied for Australian citizenship. I noted that he even continued after he had corrected his original mistake by mis-representing his family composition in a May 2019 submission. I questioned whether his remorse was genuine considering the circumstances.
The applicant responded that he was afraid for his life in Pakistan. He said that he has contributed to the Australian community through a strong work ethic, that ked to him being promoted to be a manager, and that his character is always to help people, but ultimately, he does regret it, as he is still an honest man.
In considering the applicant’s remorse and whether he truly believes that if confronted with the same situation he would tell the truth, I note that he was given many opportunities to tell the truth and, in some instances, he specifically chose to not tell the truth because he wanted to ensure at least one family member was free to earn an income and would not have their visa cancelled. He achieved this by claiming that his brother was deceased when in reality the same brother was living in Australia. This is a deliberate deception and as such I do not accept the applicant’s claims of remorse. For this reason, I minimal weight on his pleadings of being ‘ashamed’ and ‘embarrassed’ and regretting his actions.
The applicant claimed that he would be unable to sponsor his partner to come to Australia if his visa is cancelled. I accept this to be the case at least through the period until the above mentioned additional process plays out and it is determined whether his circumstances are such that he cannot be refouled and if so the Minister of the day grants him a visa.
I accept that the circumstances until such point in time, if it were ever to occur, will have a considerable impact on him and his wife in terms of their relationship. But I note that while emotionally difficult the impact of a divorce or some sort of separation is not of such a scale that should elicit substantial weight. For this reason, I place minimal weight against cancellation arising from the impact to his relationship.
In considering the situation as a whole, I note that the weightings I have given are quite finely balanced. The applicant’s original lie and the extent of it, including organising for fake Afghan documents is egregious, as is his decision to continue to lie. But being detained in immigration detention for some years will have a severe impact on the applicant and I note that he has spent a considerable time, around twelve years, in the Australian community and away from Pakistan.
If the processing times for decisions by the Department and the Tribunal were shorter then the consideration related to his experience while in immigration detention would carry far less weight and the decision would skew in favour of cancellation, but as matters stand, the applicant could be spending a few or several years in detention simply to wait out the next steps in the review process.
But in making this decision, I note that there is an element of futility if the decision is adverse to the applicant. He is a Hazara Shia, which is an ethnicity that is associated with a sect that has been persecuted by extremist Sunnis for many years in and around Afghanistan and Pakistan. Pre-modern Sunni Islamic law justified the killing of Shia as apostates, laws that are now being revived by extremists. The presence of extremists in Pakistan is unlikely to change in the near future and as such the circumstances of the Hazara is unlikely to change.
In other words, Shia Hazara living in Pakistan will continue to have limited liberty, limited access to higher education and limited access to employment unless they risk leaving either of the two small enclaves in Quetta, an act which carries with it a potential exposure to serious harm. In such circumstances it is probable that a future decision maker when considering whether the applicant’s return to Pakistan would breach the law that prevents refoulement would in turn determine that the applicant should not be repatriated. I cannot make this conclusion definitively but even at a moderate level of confidence it is a relevant factor that the applicant will be subject to a process that itself is punitive.
It is unclear how a future Australian government will deal with individuals who are in immigration detention and cannot be refouled, namely whether the Minister of the day would use their powers to grant a visa. If the Minister were not to use their powers, then the applicant would face indefinite detention, a scenario that I find to be very unlikely. If they were to use their powers then the applicant would return to the community severely handicapped by aggravated mental health issues after a few or several years in immigration detention, his relationship quite possibly in tatters and his family suffering additional hardship. Under these unique circumstances it would seem a punitive outcome for the applicant to endure additional years in immigration detention only to return to this same place. This is a situation that arises as a result of the lengthy delays in each of the decision making stages and is the basis of placing moderate weight against cancellation.
With the additional reason that there is a degree of futility in going through further processes to reach a bureaucratic realization that the applicant cannot return, a process that would carry with it a punitive burden, I find that despite the repeated poor choices he has made, having regard to all of the relevant circumstances the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Denis Dragovic
Deputy President

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.

[2023] AATA 2886

22 June 2023

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