2208092 (Migration)

[2023] AATA 2233

2208092 (Migration) [2023] AATA 2233 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Haidari Smart

CASE NUMBER:  2208092

MEMBER:Justin Meyer

DATE:21 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 (155) (Five Year Resident Return) visa.

Statement made on 21 June 2023 at 11:23am

CATCHWORDS 
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information about her nationality and name – applicant had provided different details as to his family composition – problematic mental and physical health – law-abiding integration into the Australian community – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2

CASES
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 378 of the Migration Act 1958 and replaced with generic information.

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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the visa holder has not complied with section 101(b) of the Migration Act because when she lodged her application for a Resident Return (subclass 155) visa, after giving incorrect information about her nationality and name. 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 14 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mrs A],  [Mr B] and [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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.

8. 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?

9. 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 in the following respects (as summarised from the delegate’s decision):

   Section 101 Visa applications to be correct

   A non-citizen must fill in or complete his or her application form in such a way that:

   (b) no incorrect answers are given or provided.

   Section 102 Passenger cards to be correct

   A non-citizen must fill in his or her passenger card in such a way that:

   (b) no incorrect answers are given.

   By operation of s99 of the Migration Act 1958, 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.

   Section 107A provides that failure to comply with section 101 of the Act in connection with a previous visa application may be grounds for cancellation of a current visa. As such, if the visa holder has provided incorrect information on her application form for the class XA subclass 866 Protection visa, granted on 16 December 2009, this may result in her Resident Return (subclass 155) visa, granted on 3 April 2017, being liable for cancellation. Section 107A states:

   Section 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

   The possible non-compliances that:

   (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

   (b) if so specified, can constitute a ground for the cancellation of that visa under section 109;

   include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

   Evidence of non-compliance:

   Arrival to Australia

   On [date] October 2009, the visa holder arrived at Christmas Island as an irregular maritime arrival (IMA), with her daughter, [name deleted] (DOB [date]).

   In her entry interview, held on 31 October 2009, she provided the following information in respect to her identity:

   Family name: [Name]

   Given name: [Alias 1]

   Date of birth: [year]

   Place of birth: Jaghori, Ghazni, Afghanistan

   Citizenship: Afghanistan

   Religion: Shia Muslim

   Ethnic Group: Hazara

   Place of residence: Pakistan

   Marital status: Married

   Details of spouse: [name deleted] ([age] years old), Afghanistan (missing two years ago)

   …
   [the applicant wrote]

   My main reasons for seeking the protection of the Australian Government are based on fear of returning to Afghanistan because I will face persecution because of my Shi’a religion and Hazara  ethnicity and will possibly be killed, particularly by the Taliban. I will also face persecution because I am a woman. I believe my basic human rights have been and will be denied to me and to my children, particularly my daughters. As women in Afghanistan we are considered not worthy of dignity. The fact that I am a Hazara female puts me in danger of being assaulted, raped and possibly killed. I live in fear of attack and possible death from the Taliban and others if forcibly returned to Afghanistan.

10. After several trips abroad under her claimed name (having obtained a protection visa) the applicant made a citizenship application which was refused. She appealed this decision to the Tribunal, differently constituted. In that hearing on 4 January 2022 the applicant admitted that she had provided false information in all her dealings with the Department, including her identity, the identity of her husband and children and the fact that her husband is alive rather than deceased as she stated, their nationality being Pakistani rather than Afghani, and that he did not have any overseas identity documents.

11. Her real name is [Name 1], date of birth [date];

     She belongs to the Hazara ethnic group and Shia Muslim religious minority from Pakistan;

     She is a citizen of Pakistan, having been born in, and resided in Pakistan before she came to Australia;

     Her husband’s name is [Mr D] (date of birth [date]), who is alive and still residing in Quetta, Pakistan;

     She has a daughter by the name of [Ms C] (DOB [date]) and incorrectly provided her name as [Name 2] ([date]) in her previous dealings with the Department. She further falsely declared [Name 2] to be missing, whereas in reality, she had applied for a Prospective Marriage (subclass 300) visa in her correct identity of [Ms C] (DOB [date]), and declared she was a citizen of Pakistan.

     Her [daughter’s] real name is [name], and she is married to [a named person] (DOB [date]). The visa holder has been residing with [her husband] in Australia.

     She has another daughter, previously declared, by the name of [name], whose real name is [name]. This daughter resides in Pakistan, and never lived in Iran, as she previously declared.
    A copy of the following identity documents were also provided to the Department:

     Pakistani National Identity Card in the name of [Name 1], with Identity number [deleted], date of birth [date]; date of issue [2017], date of expiry [date] 2027. This card listed the visa holder’s husband as [Mr D].

     Pakistan Passport, document number [deleted], in the name of [Name 1], (DOB [date]), date of issue [date] 2005, date of expiry [date] 2010. This document details the Citizenship number [and] lists the husband’s name as [Mr D].

12. A check with Pakistan authorities (National Database & Registration Authority- NADRA) confirmed that the holder is [Name 1], wife of [Mr D], and that it is a genuine document.

    Non-compliance present

13. The applicant has admitted non-compliance in the above way. Based on the evidence above, the visa holder has not complied with section 101(b) of the Migration Act because when she lodged her application for a Protection (subclass 866) visa on 15 December 2009, the above information on her name, age and nationality provided in that application was incorrect. The applicant was obliged must fill in or complete her application form in such a way that no incorrect answers are given or provided, and did not comply.

    SHOULD THE VISA BE CANCELLED?

14. 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).

15. 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. Briefly, they are:

    othe correct information;

    othe content of the genuine document (if any);

    owhether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

    othe circumstances in which the non-compliance occurred;

    othe present circumstances of the visa holder;

    othe subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

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

    othe time that has elapsed since the non-compliance;

    oany breaches of the law since the non-compliance and the seriousness of those breaches; and

    oany contribution made by the holder to the community.

16. 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.

    The correct information

17. In this matter, it was explained by the applicant in a written statement prepared by her daughter and in oral evidence in the hearing that:

    ·She is illiterate and belongs to a poor family;

    ·She married a young age and spent most of her time raising her children;

    ·She does not have sound judgement. When under stress as indicated by her medical conditions the ability to make sound decisions is removed;

    ·When she arrived in Australia by boat she spent days in open seas with a fear of drowning. She worried about her children, hunger and the lack of sleep. Along with her medical conditions she was in a situation which could not think rationally;

    ·Other people travelling by boat to Australia suggested she seek asylum as an Afghan refugee. This was even though the persecution of Hazaras was equal in Afghanistan and Pakistan. There asylum claim with genuine but she was compelled to make the wrong decision by others;

    ·She provided incorrect information on citizenship and family members but this was out of character. She is of good character and moral values is a good mother and grandparents. She took the risk to come to Australia for the family and children;

    ·She has not broken any laws or caused any problems in Australia since arrival; and

    ·She has had great issues with sleeplessness and not eating properly. She is very concerned about the children especially her eldest daughter who is fighting [medical condition], needing [an operation].

18. Further submissions to the Tribunal included:

    ·a Psychologist’s Report;

    ·[Name 1]’s GP’s health record. Active conditions include [deleted].  She takes 15 different types of medication.

    ·Character Reference of [an organisation];

    ·Character Reference of [an organisation];

    ·Character Reference of [an organisation];

    ·Character reference of [Mr B];

    ·Character reference of [a named person];

    ·Character reference of [Mrs A];

    ·Support letter of daughter [Ms C];

19. The representative submitted in writing on 12 June 2023 the following, as edited and paraphrased by the Tribunal:

    [The applicant] is a [age]-year-old woman who arrived in Australia via boat on [date] October 2009. She was initially granted a protection visa and currently holds a subclass 155 visa.
    Her father was from an area of Afghanistan called [name], making her of Afghan descent, but she is a Pakistani Citizen. Her ethnicity is Hazara, and her religion is Shia Muslim. She has seven daughters and one son, totalling eight children.1
    When [the applicant] arrived in Australia, she did not declare all information regarding her names, her family details, and her citizenship.

    The incorrect details provided by [the applicant] are as follows: a. [the applicant] erroneously only declared her adopted name, name [Alias 1], when she should have correctly declared that she was also known as [Name 1];

    She wrongly declared she had current Afghan citizenship when she was actually a citizen of Pakistan. Although, at the time she had a genuine link to Afghan ancestry, as all Hazaras migrated from Afghanistan to Pakistan, and her own father was from [Afghanistan]; and
    She declared her family member details incorrectly when she applied for the visas.
    Due to the above, a section 109 intention to cancel notice was sent to [the applicant] on 13 January 2022, indicating that her Resident Return (subclass 155) is being considered for cancellation. It is worth consideration of the Tribunal whether the section 107 notice was properly sent, and subsequently, whether the response of [the applicant] was considered by the delegate under section 108. However, we agree with any conclusion reached by the learned member in regard to the section 107 notice.
    On 30 May 2022, the Delegate cancelled [the applicant]’s visa under section 109.
    As [the applicant] initially gave Immigration incorrect information in relation to her husband, children and her circumstances including identity, this enlivens section 109 of the Act.
    [The applicant] does not deny that the incorrect information was provided to immigration, but she only did so due to the instructions and pressure placed upon her by others accompanying her on the boat to Australia, and the people smuggler.
    [the applicant], like many Hazaras, have given incorrect details to the department and subsequently failed to inform Immigration of the correct information. This can be supported by the conclusion of an integrity review into Afghan visa applications conducted in 2012, which found that 90 per cent of Afghan applications were flawed.2 This ultimately has resulted in situations where the correct information has been uncovered, and their visas end up in jeopardy. There is therefore a need to explore the question as to why so many Hazaras put themselves at risk of cancellation. However, there has been little research as to why such a large number of the same ethnic group provide incorrect information to Immigration. The unknown reasons are concerning, and the subsequent result of providing this false information leads to numerous visa cancellations. Such visa cancellations without knowing the root causes, not only affect a settled individual but also the whole community.

    Reasons for noncompliance

    [The applicant]’s noncompliance was because of pressure from other people including people smugglers and her unfortunate situation as well. [the applicant] had gone through a very difficult journey to Australia. Once her boat capsized after [the applicant] was on the boat for 9 days. She was rescued by the Indonesian police and taken back to Indonesia (Kupang). After some time, she again attempted to come to Australia and after 5 days on a boat, she arrived in Australia (Christmas Island). The journey to Australia traumatized her which subsequently contributed to her wrong decision making.

    While travelling to Australia via boat, [the applicant] was told by the people smuggler, and others accompanying her, that she should declare her identity as an Afghan national, rather than a Pakistani national. It is noteworthy to mention that while [the applicant] is a Pakistani national, she is of Afghan descent. While ordinarily, acting on the suggestion of others to provide an incorrect identity is often not a good enough reason to provide false information. However, in cases such as this, we may need to approach these situations with the understanding that these individuals are in a vulnerable position, and easily influenced by others into making critical mistakes. As mentioned above, around 90 per cent of Afghan national Applications are flawed.

    The Applicant is a Hazara Shia from Quetta, Balochistan, Pakistan. Since 1999, Hazaras in Pakistan are subjected to genocide by different terrorist organizations including Lashkar-e-Jhangvi (“LeJ”) and other similar terrorist organizations which are internationally known and declared as terrorist organizations. Regardless of their social and economic standing, Hazaras in Pakistan have been killed based on their race and religion.6 According to a British report released in 2017, 95 per cent of the sectarian violence worldwide focused on Shias only.

    The other issue is the weak justice system in Pakistan, where no culprit has been successfully prosecuted for thousands of Hazara murders. The same was mentioned in the UK Parliament by Mr John Denham “Shockingly, in the past 16 years, not one person has been brought successfully to justice. The Al-Qaeda-affiliated organization, Lashkar-e-Jhangvi, has openly claimed responsibility for the killings while leading members have been seen associating with public figures and politicians in Pakistan. A few people have been arrested, but have then been released or able to escape or cases have been dismissed. It is clear that the Pakistan authorities have failed to act with any effectiveness to protect the Hazara community, with attacks taking place close to the presence of security forces”.

    Generations have now been brought up with segregation, discrimination, and fear of ethnicity-based killings which are targeted, mass, chased, random, or planned. Hazaras regardless of demographic, whether they are elderly or young, whether they are men, women, or children, and regardless of their social standing, whether they are unarmed businessmen, government officers, teachers, or if they are, vegetable merchants, labourers, or pilgrims. All are persecuted on the constant of their ethnicity. There are no Hazaras from any community, or status, who are safe, or unaffected by this act of terrorism. As per a Dawn News article, "If you were a Hazara in Pakistan, you were a marked person. If death didn't catch you in a bomb blast, it would come in the shape of a bullet in the back of your head. It didn't matter if you worked for the police or any security agencies, it didn't matter if you were an Olympian boxer or a famous TV actor or a much-loved schoolteacher; all were on an arbitrary death row. …When it became clear that Hazara killings will not end in Pakistan any time soon when it became obvious that the very people tasked with protecting citizens were facilitating their killers, the exodus began. Some Hazaras moved to other parts of the country. But the Hazaras' cursed fate is in their face. Descendants of Central Asian  city. They are restricted because of the fear of attacks and bad conditions of the law and order of the city.”

    The long journey to Australia onboard a dangerous boat, dealing with a completely unfamiliar culture and language upon arriving in Australia, and the circumstantial background from Pakistan where the provision of such information relating to identity is not a big deal in practice, all contributed to her lacking understanding and thought, impacting her decision to provide false information. She took the advice she received from others at its face value. This can be inferred from the fact that if she could understand the situation and make a proper decision, she would be of the understanding that the prospect of her application's success with her original identity as a Hazara living in Quetta Pakistan was no less than her declared identity and claim as an Afghan national. It is also questionable why she did not subsequently inform the Department. As mentioned above, a woman of that age, education, mental illness, and other physical illnesses can take fear more seriously than an ordinary person. She has always been in fear of what will happen if she is sent back to Quetta Pakistan where Hazaras are targeted and killed. The external factors exhausted her energy and prevented her from voluntarily informing the department of the errors and correcting the information. Instead, she kept the same identity. [the applicant] is suffering from numerous mental and physical health issues. She is a vulnerable [age]-year-old woman, and the visa cancellation will result in further mental and physical health deterioration. One of the values of the Australian community is to deal compassionately with ill and elderly people suffering from health-related issues, and those who have been victims of terrorism. The visa cancellation not only will affect her but also the people around her in Australia. A cancellation would leave her without a visa which will subsequently result in the cancellation of her Medicare. As she is unable to work and will not be able to work if her visa is cancelled, she will have no income and no access to treatment for the myriad of different conditions she is suffering from, as evidenced by the doctor's report. While she was in Quetta, she did not have access to any mental health treatment and had limited access to health treatment in general. If her visa is cancelled and she is transported back to Pakistan, she will be once again left in a dire situation, and will also experience limited health care and financial support. We, therefore, submit that her current personal circumstances warrant a significant weight in favour of noncancellation. According to her situation and instructions, we submit that after providing incorrect information on her initial protection visa application in 2009, she did not have the courage to correct her mistakes. In normal circumstances that may not be forgivable, but in this matter where we are dealing with a person facing so many issues, we submit this warrants a compassionate approach.

    The Applicant is a Hazara Shia from Quetta, Balochistan, and while in Pakistan, has witnessed the worst form of persecution and genocide of people of her ethnicity and religion.  Hazara Shias face approximately 22 per cent higher risk of threat in Pakistan than other Shia ethnicities. This is because Hazaras have distinct Eurasian facial features which make them highly recognizable, and easily distinguishable from those of other ethnicities. Due to the targeted killings, Hazaras are compelled to live in a "caged" environment in their city.

    According to the current Department of Foreign Affairs and Trade’s report “A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’”

    Psychological and Medical Reasons

    [The applicant] is a person who is psychologically ill and vulnerable therefore a lenient approach is preferable.  [the applicant] is from Quetta Pakistan and belongs to a Hazara Community. By the time she arrived in Australia in 2009, she already faced 10 years of targeted killings and terrorism situations which have affected her whole Hazara community. In accordance with the Medical Journal of Cambridge "[i]n light of the study conducted, PTSD and Depression have a high prevalence among the Hazara community of Quetta. The participants involved in the study have limited access to the psychiatry clinics of the  city. They are restricted because of the fear of attacks and bad conditions of the law and order of the city.”

    [The applicant] has been diagnosed with numerous mental health issues, including Post-Traumatic Stress Disorder ("PTSD"). This has been confirmed by two separate psychologist reports, Dr [E] in his 17 March 2022 report and Dr [F] in her 5 June 2023 report. Dr [E] in paragraph 92 of his report also confirmed that it was highly probable that [the applicant] developed mood problems and PTSD around 1999 and 2000 as a result of Hazara persecution at the hands of militants.

    This psychologist report confirms that in around 1999 or 2000, approximately nine years before [the applicant] travelled to Australia, it was highly probable that she developed PTSD. In light of the likelihood that she experienced a severe mental illness and the other issues outlined in the report, we submit that her circumstances were such that she experienced incapacity which was a major contributor to her providing the incorrect information initially, and her subsequent failure to correct this information.

    In addition to the psychological reports, a report from [the applicant]’s GP report confirms, among other things, that [the applicant] suffers from PTSD. She is on medication for the same and other health issues

    Based on the circumstances of this matter and available evidence, it is our submission that [the applicant] was suffering from PTSD and other mental illnesses when she arrived in Australia in 2009. After experiencing over ten years of brutal terrorism, she was psychologically vulnerable and accepted the advice from the people smuggler and the other asylum seekers, who themselves were not thinking correctly, to provide incorrect information.

    In addition, to psychological vulnerability due to terrorism, [the applicant] did not have a privileged background and had an upbringing that encouraged submissible behaviour. [The applicant] was not educated, had an abusive childhood with her stepmother, and was expected to adhere to the passive role of women in a Pakistani tribal community. She was predisposed to having decisions made on her behalf, and doing what others ask, rather than having any opportunity to make decisions for herself. Inevitably, she was persuaded by the influence of others.

    Evidence in the hearing

1. The applicant gave evidence consistent with her written submissions. She said that she had her genuine passport taken when she relied on people smugglers to go to Australia.

2. Her husband remains in Pakistan.

3. She is of Afghani ancestry and all of her family are Hazaras.

4. She came to Australia because of the situation in Pakistan where Hazaras are targeted.

5. She went to Australia first without her husband because he was sick - so she went first.

6. I asked what the first time was that she was told to wrongfully declare her country of origin as Afghanistan. She said people smugglers and ‘our own people’ suggested this. She was told that if she wrote Pakistan she would not be accepted. A Pakistani man in Jakarta told her to. The other people in the boat were also Hazaras. She gave the name [name], which was false.

7. The applicant said that she was full of stress and tension at the time. She said that she apologised. She said she was not comfortable because of the issue. She said she went to Pakistan several times to see her children, and although this was risky she did this in any event.

8. She said that living in Pakistan safely was not possible for her. She said it was not possible for the children either. She said she went there for two to three months but stayed inside. She went straight from the airport to the family home and remained there and did not come out.

9. Three of the children are with her husband.

10. The applicant discussed her medical problems including high cholesterol, high blood pressure and depression.

11. She discussed the price, availability and quality of treatment in Pakistan. She said that people ended up having to do their own injections as patients and died. She said the health system in Australia was good and subsidised.

12. The applicant said that her daughter works and supports the family, including those back in Pakistan.

13. She had previously received Centrelink, but this benefit has stopped.

14. Presently she lives in Melbourne with her daughter.

15. The applicant said that she had helped the community in the past by caring for the children and had done some similar caring for other people. She said that she had broken no Australian law. She said that if she was not sick, she would have liked to work. She said the breadwinner and the householders are her elder daughter and her husband.

16. She said that her son-in-law also s

17. There were other witnesses who gave character evidence including [a named person] who was originally from Quetta, Pakistan. She is presently in Australia. She said she saw the applicant every week in Australia and knew about her stress, diabetes and other health issues.

18. Also giving evidence was [Mr B] who is a neighbour in the same suburb in Australia, living 500 metres away. He described the peer pressure where people tell a woman what to do and she must comply. He said this was the explanation for the false information being given.

19. I asked the witness if the applicant were living in Quetta would it be necessary for her to leave a Hazara area of the city to go outside for specialist medical assistance (for diabetes management for example), which she needs. He said it would be a necessary and a dangerous expedition.

20. The applicant’s daughter [also] gave evidence and repeated that her mother was compelled to make a fake name and origin story. She said that the mistake had been made 14 years ago. She said that her mother was stressed but would not have made the mistake had she known. She said her elder sister was very unwell. If the applicant had to go back to Pakistan it would have a big impact on her sister as well.

    Analysis

21. In all, the Tribunal is satisfied that the applicant and all witnesses gave straightforward evidence.

22. The Tribunal considers the relevant matters, per the below.

    The content of the genuine document (if any)

23. This case involves the applicant having provided incorrect answers on her visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant in this case and the Tribunal gives it no weight.

    Whether the decision to grant a visa or immigration clearance to the visa holder was based, wholly or partly, on incorrect information or a bogus document

    &

    The circumstances in which the non-compliance occurred.

24. It is clear to the Tribunal that the decision to grant a visa to the applicant was based partly on incorrect information. The position for Hazaras in Afghanistan was generally difficult in Afghanistan, and this would conceivably have played a large role in grounds being found for the visa grant.

25. The circumstances are such that the applicant succumbed into providing a false story of her origin and other personal details. A visa application requires good faith – without it the integrity of the system breaks down. It is very undesirable that persons make such false claims. This weighs against the applicant.

26. Her excuse of being pressured is not one which softens the concerns of the Tribunal, as this is essentially blame shifting. Nonetheless, erring is human and does not to the Tribunal’s mind eliminate the worthiness of other arguments supporting the non-cancellation of the applicant’s Subclass (155) (Five Year Resident Return) visa.

    The present circumstances of the visa holder

27. Tied in with this are her present circumstances. She is an unwell woman and presented as such to the Tribunal. She has a variety of debilitating physical and mental health conditions.

28. The continued stabilising of her health could only occur if she had the level of health care that she currently experiences.

29. Hazaras in Quetta have little choice in Pakistan but to remain in their locality for their own safety. The level of medical care is minimal. Work and other opportunities are slim. The Tribunal refers to DFAT’s most recent report on Pakistan and its discussion of Hazaras:[1]

    [1] DFAT Country Information Report Pakistan 25 January 2022

    Hazaras

    3.3

    The Hazaras are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. There are an estimated 600,000 to 1 million Hazaras in Pakistan. Most are Shi’a Muslims of the Twelver Sect, although some belong to the Ismaeli sect and a small number are Sunni.

    3.4

    Large groups of Hazaras migrated to Pakistan from Afghanistan in the late 19th century, during the 1978-89 Afghan War, and following the Taliban takeover in 1996. Most live in enclaves in Quetta due to the security situation in Balochistan. Smaller populations live in Karachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack. Hazaras participate in regional politics, and there are two MPs from the Hazara Democratic Party (HDP) in the Balochistan provincial assembly. Some Hazaras are documented Pakistani citizens or possess other forms of documentation that permit them to legally reside in Pakistan. Others are undocumented. Whether a Hazara is legally entitled to access public services and the like depends partly on their documented status (see also Afghans and National Identity Cards), although other factors may curtail access regardless, including the security situation for Hazaras in Pakistan.

    3.5

    Militant groups including, LeJ and IS (see Armed Groups) consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.

    3.6

    The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. The Pakistani government provides security in these communities, including vehicle checkpoints and searches on entry and exit. Government forces also provide security for Hazara religious processions (see Shi’a) and Hazarganji market. Hazaras who leave Quetta are required to notify the security agencies. Local sources report Frontier Corps routinely harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps have described Hazaras as ‘agents of Iran’ and ‘untrustworthy’.

    3.7

    Medical, education and other services inside the enclaves are basic. Food and other essentials must be brought in from outside, and prices are reportedly double those elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so, while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions, places of worship, and pilgrims on their way to Iran.

    3.8 Schools exist within the enclaves, but there is little opportunity for higher education. Many Hazara students have abandoned the hope of higher education due to the risk of travelling. A small number of wealthier Hazaras send their children to study at universities in Lahore or Islamabad, where they reportedly feel safer.

    3.9

    Many Hazaras in Quetta provide services to their own communities within the enclaves; others move to other cities across Pakistan to work. Whether a Hazara can relocate strongly depends on their personal resources and family connections. In the past Hazaras were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. Since the IS attack in Mach in January 2021, Hazaras are reportedly too scared to work in the Baloch mining industry, previously an important source of income. High rates of unemployment and limited prospects have reportedly led to a sense of hopelessness among Hazara youth in Quetta.

    3.10

    While most Hazaras in Pakistan can obtain formal identification such as Computerised National Identity Cards (CNICs), Hazaras claim National Database and Registration Authority (NADRA) officials at times cause delays for Hazaras. Hazaras have suffered lethal attacks outside the NADRA office in Quetta while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclaves to apply for documentation.

    3.11

    DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food. Within and outside the enclaves, Hazaras face a moderate risk of official discrimination, including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay in access to identity documentation, employment and services. DFAT assesses such discrimination reflects widespread individual prejudice rather than official policy.

    3.12

    DFAT assesses Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many (see Internal Relocation).

30. From this the Tribunal concludes that impecunious Hazaras such as the applicant face a high risk of having to travel outside of somewhat safer enclaves and in the meantime face substantial security risks.

31. Her health and the overall security risk for her in her country of origin are likely to be very unfavourable and this weighs in support of not cancelling the visa.

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

32. There are no other instances evident of non-compliance by the visa holder. This weighs in support of not cancelling the visa.

    The time that has elapsed since the non-compliance;

33. The non-compliance occurred in 2009 when the visa holder lodged her application for a Protection visa, which is about a decade and half ago. The visa holder states that she has since established significant ties to the Australian community through their family, and states that Australia is her home. Given this length of time this weighs in support of not cancelling the visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

34. There have not been any breaches of the law by the visa holders since the non-compliance occurred the applicant states. I have no evidence that there have been any breaches.

    Any contribution made by the holder to the community.

35. The applicant states that she has contributed to the community by looking after her children which I am prepared to accept. Given her health, lack of education and difficulty personal history this is what could be expected in the circumstances, and I give it some weight.

    Summary

36. On balance, the applicant has committed a substantial breach, but her problematic mental and physical health, the situation in her homeland for her ethnic group and gender, her family situation (including the poor health of her daughter) and her long-term and uneventful and apparently law-abiding integration into the Australian community lead me to the conclusion that a substitution and decision not to cancel her visa is the correct outcome.

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Justin Meyer
    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.

    102Passenger cards to be correct

    A non‑citizen must fill in his or her passenger card in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    105Particulars of incorrect answers to be given

    (1)If a non‑citizen becomes aware that:

    (a)     an answer given or provided in his or her application form; or

    (b)     an answer given in his or her passenger card; or

    (c)      information given by him or her under section 104 about the form or card; or

    (d)     a response given by him or her under section 107;

    was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

    (2)Subsection (1) applies despite the grant of any visa.

    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.