2203480 (Refugee)

[2022] AATA 4396

2203480 (Refugee) [2022] AATA 4396 (14 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Field (MARN: 2016135)

CASE NUMBER:  2203480

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Kira Raif

DATE:14 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 October 2022 at 12:48pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – criminal convictions – time spent in remand deemed to be time served – discretion to cancel visa – young Hazara man – unlawful maritime entry as unaccompanied minor – visa now expired – protection findings made and applicant cannot be involuntarily removed – ongoing immigration detention and prospect of indefinite detention – setting aside of cancellation will allow more visa application options – mental health – country information – political and security instability – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

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 dated 26 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) (SHEV) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Afghanistan, born in [Year]. He was granted the SHEV in October 2016. In February 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling his visa under s. 116 of the Act. It appears that the applicant did not respond to the NOICC and his visa was cancelled in February 2020. The applicant was renotified of the cancellation decision in March 2022. The applicant seeks review of the delegate’s decision.

3. The applicant was represented in this review by Ms Carina Field of the Asylum Seeker Resource Centre. The Tribunal gratefully acknowledges the useful submissions prepared by Ms Field and her colleagues in representing [the applicant]. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g).

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

6. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   The applicant’s capacity to give evidence and present arguments

7. In the multiple submissions to the Tribunal the applicant’s representative submits that due to his poor mental state the applicant may not have capacity to give instructions and meaningfully participate in a hearing. The Tribunal is mindful that there is no medical or otherwise probative evidence to support that claim and the Tribunal acknowledges that it has not been possible so far to obtain the medical evidence. Having regard to the various submissions and evidence regarding the applicant’s capacity to give evidence, the Tribunal invited his representative to make written submissions. Ultimately, the Tribunal was able to make a favourable decision without requiring the applicant to provide oral evidence.

   Does the ground for cancellation exist?

8. Information on the Departmental file (which was the subject of the Tribunal’s s. 359A correspondence to the applicant) indicates that the applicant arrived in Australia in July 2013 as an Unauthorised Maritime Arrival and in October 2016 he was granted a Safe Haven Enterprise Visa (SHEV).

9. It is stated that the Department received information that in September 2019 the applicant was convicted of the following offences:

   a.Common assault – basic offence

   b.Fail to comply with bail agreement (two counts).

10. It is stated that no further penalty was handed down upon conviction for the offences as the applicant has been held in remand for 8 months and 13 days at the time of conviction and it was deemed to be time served.

11. The applicant was issued with the NOICC which referred to grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa). It is stated that the applicant did not respond to the NOICC and his visa was cancelled.

12. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (SHEV) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

13. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

15. The applicant travelled to Australia to seek protection and has been offered protection through the grant of SHEV. In his submission to the Tribunal of 11 May 2022 the applicant states that he entered Australia and made an application for a protection visa, which was granted. His representative submits that the applicant is a young Hazara man who travelled as a minor, which would have caused him significant hardship. The representative submits that the decision to grant the applicant a protection visa recognises the harm that he would face if he is returned to Afghanistan and the situation for Hazaras in Afghanistan has not improved since that time. this is consistent with the country information cited below. The Tribunal is of the view that the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

16. The primary decision record indicates that the applicant’s visa was subject to a condition which required the applicant to inform the Department of his change of address. It is stated that the applicant moved from SA to Victoria but failed to inform the Department of his change of address, which would indicate that he has not complied with a condition of his visa.

17. The Tribunal acknowledges that this constitutes a breach of a visa condition. The applicant’s representative has undertaken to inform the applicant of any future visa conditions, should he be granted another visa.

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

18. The applicant states in his written submissions that he travelled to Australia as an unaccompanied minor and he refers to the hardship faced by Hazaras in Afghanistan (by reference to country reports). The applicant refers to the hardship that he faced during his journey and the period of establishing himself in Australia. While the Tribunal accepts that  evidence, the Tribunal is of the view that his factor is concerned with hardship resulting from the cancellation of the visa, and not to any hardship the applicant may have experienced in the past on his journey to Australia.

19. The applicant refers in his written submission to the Tribunal to the possibility (or likelihood) of prolonged or even indefinite detention, as he cannot be removed from Australia and the impact it may have on his mental health. The applicant notes that he has been detained for over two years since the cancellation of his visa and ongoing detention would contribute to the deterioration of his mental health. The Tribunal accepts that evidence. The Tribunal is mindful that even if the present cancellation is set aside, the applicant would not be a holder of a substantive visa (the visa in question having already expired), and thus, the setting aside of the cancellation would not enable the applicant to be released from detention. That is, at least in present, the cause of the applicant’s ongoing detention may be the fact that he does not have a visa, rather than the cancellation of his earlier held visa. However, the Tribunal acknowledges the applicant’s evidence that if the cancellation of his visa is set aside, he would have the option of requesting that a bar on further applications is lifted and making other visa applications. If his visa remains cancelled, the applicant will have far more limited opportunities (if any) of making other visa applications.

20. In his written submission to the Tribunal the applicant  states that he has been residing in Australia for six years prior to the first offence. It is stated that if his visa is not restored, then in accordance with s. 197C, he is facing indefinite detention or refoulement. The Tribunal acknowledges that it has been previously recognised that protection obligations are owed to the applicant and, as s. 197C states, he cannot be returned to his home country involuntarily. That may ordinarily mean a prolonged, or even indefinite period of detention and the Tribunal accepts that his could cause extreme hardship to the applicant.

    Circumstances in which ground of cancellation arose

21. The ground for cancellation arises because the applicant was a holder of a temporary visa and was convicted of offences. In his written submissions to the Tribunal the applicant appears to concede that the grounds for cancellation may exist. There is little information before the Tribunal regarding the circumstances leading to the conviction.

    Past and present behaviour of the visa holder towards the department

22. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act. The applicant did not respond to the NOICC but the reasons for his failure to do so are not known to the Tribunal.

    Whether there would be consequential cancellations under s 140

23. There are no persons whose visa would be subject to consequential cancellation.

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

24. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and (subject to the operation of s. 197C) removal from Australia. If the applicant’s visa is cancelled, he would have very limited options of seeking other visas onshore (although this may be as much a consequence of the mode of his arrival in Australia as of the cancellation). The applicant may be subject to an exclusion period in relation to an offshore visa application.

25. It is significant that protection findings had been made in relation to the applicant. As such, he may not be involuntarily removed from Australia. As the applicant claims he would be subjected to harm in Afghanistan, it is unlikely in the Tribunal’s view, that he would wish to return to Afghanistan voluntarily. If the applicant cannot be removed from Australia and is not granted another visa, there is a real prospect of the applicant being detained indefinitely.

26. The Tribunal acknowledges that long term or even indefinite detention may be a consequence of the present cancellation, if it prevents the applicant from being able to apply for, or be granted, other visas (noting that the visa in question has already expired). The applicant refers in his written submission to the impact of prolonged detention on his mental health and the Tribunal accepts his evidence.  

    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

27. As noted above, there are protection findings in relation to the applicant and he cannot be involuntarily removed from Australia. The Tribunal does not consider that  Australia’s non-refoulement obligations would be breached as a result of the cancellation.

28. There is no information before the Tribunal to indicate that there are children who would be affected by the cancellation of the applicant’s visa.

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

29. The visa in question is a temporary visa.

    Country information

30. The Tribunal has considered the available country information in relation to the situation in Afghanistan.

31. In an article by Mirwais Wakil and Prof. Anthony Pahnke helpfully titled, 'Peace is possible in Afghanistan: Once American and NATO troops leave, it is the only realistic course of action' the authors state neither the Taliban nor the Afghan government possess the ability to defeat the other and as such there is an impasse. As a result, interests will prevail. The authors then go on to describe the possible wealth that could be accrued to the people (and presumably the leadership) if they were to make peace. The article notes some caveats such as that the Taliban will need to integrate into the political system and human rights cannot be ignored and that the Taliban must know that they can't 'erase the freedoms that women have earned'. Ultimately, economic prosperity is critical as, 'This money would help stop young men from choosing the path of war and, instead, to rebuild their country. Local Taliban leaders, therefore, would have a more difficult time recruiting people who wish to dedicate their time to jobs, families and school'.

32. NBC News referenced a U.S. Defense Intelligence Agency report that provides some insight into the capabilities of the Taliban:

    The report cited analysis from the Defense Intelligence Agency saying that from Jan. 1 through March 31, 2021, the Taliban's military strategy was to prepare for large-scale offensives against provincial centers, complex attacks against the Afghan National Defense and Security Forces' bases, and degrading the Afghan forces' capabilities.

33. In the first two months of 2021, the Taliban surrounded the provincial capitals of Baghlan, Helmand, Kandahar, Kunduz, and Uruzgan provinces to prepare these offensives, and they continued assassinating government employees, security officials, and journalists, the report says.

34. Citing information from the Defense Intelligence Agency, the report says al Qaeda continues to rely on the Taliban for protection, and that ties between the two groups have strengthened. At the same time, the Afghan Security Forces have conducted offensive operations against the Taliban but the Defense Intelligence Agency reported that these offensives 'did not accomplish anything of strategic value'.

35. The United States has indicated that it will be expediting U.S. visa processing for Afghans who were employed by the U.S. government in Afghanistan as they are believed to be at risk of harm arising from the absence of international forces. Zalmay Khalilzad, the U.S. Special Envoy for Afghanistan was reported as sharing 'the concerns of lawmakers for the safety of Afghans who worked as interpreters or in other jobs for U.S. troops and diplomats. He said the Biden administration was working to expedite applications for U.S. visas under a program designed for Afghans who were employed by the U.S. government'. The Australian government has closed its embassy in Afghanistan prior to the withdrawal of U.S. troops. Both of these actions are an implicit acknowledgement that the security situation is predicted to deteriorate, particularly for those members of society who have relied upon international forces for protection.

36. It is known that the Taliban are determined to have an Islamic Emirate. For instance, when the Pakistani version of the Taliban, which was founded in December 2007, overcame the north and west of Pakistan in 2008, they demanded that Sharia law take precedence over Pakistan's constitution. In April 2009, US Secretary of State Hillary Clinton visited Pakistan and warned it of the consequences of acquiescing to the Pakistani Taliban; only then did Pakistan launch a war against the Pakistani Taliban in May 2009. The Pakistani Taliban either lost their lives or fled to Afghanistan.

37. The former Pakistan ambassador to the United States and a former diplomat, Najmuddin A. Shaikh, provided his analysis in a recent article in Dawn.

    Following an attack on a school where at least 60 Hazara were killed and an estimated 150 injured, he wrote, 'While the Taliban did not carry out this attack there is no doubt that given their Deobandi and Salafi beliefs they regard the Hazara as heretics. What is even more tragic is that not just the Taliban but every ethnic or religious community in Afghanistan perceives the Hazaras in the same way'… For the Taliban, this general Afghan contempt for the Hazaras is compounded many times by the role the Hazaras played in partnership with Uzbek opponents of Gen Rashid Dostum in 1997 massacring the Taliban trapped in Mazar-i-Sharif after their abortive effort to take over the city. More than 5,000 Taliban died mostly at the hands of the forces of Hizb-i-Wahdat, the Hazara political and military party. It is unlikely but even if there is some sort of reconciliation between the Taliban and other Afghan parties, the Hazaras cannot expect to escape the revenge the Taliban, who have long memories, will take.

38. The former ambassador then concludes by saying, 'what looms ahead is the elimination of this ethnic group'.

39. Time Magazine reported in May 2021 Islamic State (IS), another insurgent group, continuing attacks against those they view as apostates including exploding a bomb at a mosque which killed 12 Sufis. This attack follows a concerted and directed escalation of violence by IS against Shia in Afghanistan.

40. There are reports that the Taliban, predominantly Sunni Pashtun, have recruited Hazara in an effort to improve their image and be a more inclusive group. Dr Yatharth Kachiar argues that, 'In order to establish itself as a legitimate power in Kabul, the Taliban regime must offer something beyond its narrative of fighting the 'foreign infidel powers' and their 'puppet regime'. By presenting itself as a moderate group with support among all the major ethnicities in Afghanistan, the Taliban aim to quell the narrative that brands it as a fundamentalist, pro-Pashtun movement … Most importantly, by wooing the Shiite Hazaras in Afghanistan, the Taliban are sending an olive branch to its former ideological foe in the region, the Islamic Republic of Iran … The Taliban's overtures toward the Shiite Hazara minority community of Afghanistan are mainly due to the group's strategic interests in rebranding itself as a moderate and nationalist force and strengthening its relations with Iran. It is a calculated move and does not indicate any change in the ideology of the radical group or its deep-rooted hostility toward the Shiite Hazaras. The author then concludes by believing that 'Unless the Taliban agree to be a part of the democratic political structure in Kabul, any overtures shown by the radical group toward the Hazara minority community will be hollow'.

1. In another assessment of the Taliban's claims of inclusivity Stanford Law School Professor and Executive Director of the Rule of Law Program, Mehdi J Hakimi, writes that the Taliban delegation to the Doha peace talks insisted on Hanafi jurisprudence being the basis of negotiations which would exclude Shia and other minorities. He noted that at the same talks 'there is extremely little ethnic, religious, linguistic, cultural and professional diversity within their ranks'. Instead, he sees the rhetoric as being hollow and instead turns to the statements and actions of other insurgent groups such as Islamic State and al-Qaeda to appreciate the view towards minorities such as the Hazara.

2. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has been convicted of offences while a holder of a temporary visa and that there are grounds to cancel his visa.

4. There is little information before the Tribunal concerning the nature and the circumstances of the offending but the breach of the Australian laws does weigh in favour of the cancellation. However, the Tribunal has decided to place greatest weight on other factors. Most significantly, if the applicant’s visa remains cancelled, he is facing a real prospect of indefinite detention. The country information cited above suggests that the applicant is unable to return to Afghanistan and there is little to indicate that the situation in the applicant’s home country will improve in the near future. Thus, if the applicant has no options of seeking another visa in Australia, he will remain in detention. That will be a particularly harsh outcome for the applicant, given his mental health.

5. The Tribunal places weight on the fact that the applicant continues to fulfil the purpose of his travel and stay in Australia. the country information indicates that he may continue to be in need of protection (although that is not a determination to be made by the present Tribunal). The Tribunal is also mindful that setting aside the cancellation of the applicant’s visa will not entitle him to the grant of the visa but will merely enable him to seek other visas. In the Tribunal’s view, it is preferable, in the applicant’s particular circumstances, to enable him to have that option.

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

   decision

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

   Kira Raif
   Senior Member