2211105 (Migration)

[2023] AATA 4515

2211105 (Migration) [2023] AATA 4515 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Haidari Smart

CASE NUMBER:  2211105

MEMBER:Kate Millar

DATE:20 November 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 20 November 2023 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – satisfaction as to identity – facial comparison check – two previous visa applications under another identity – previous identity acknowledged and some refugee claims conceded to be untrue – claim of risk as Hazara Shi’a – name changed for personal reasons, not to obtain visa outcome – relationship with father and brother established by DNA tests – other family composition inconsistent, confusing and unsatisfactory – credibility – mental health – detained and tortured in third country – untreated PTSD with severe depressive symptoms – advised by people smugglers not to give information that would jeopardise application – consequences of cancellation and degree of satisfaction required – father’s and brother’s changes of names and incorrect information – reliability of home country documentation – discretion to cancel visa – ethnicity accepted – conditions in Afghanistan and no right of entry to Pakistan – possibility of applying for protection visa – no assessment of physical health provided – degree of hardship – wife and child in Pakistan with partner visa application in progress – mandatory legal consequences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1AA), 359AA, 375A
Migration Regulations 1994 (Cth), r 2.12

CASES

BQG21 v MICMA [2023] FCA 865
Plaintiff M1-2021 [2022] HCA 17
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v MIBP [2016] FCAFC 52

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. [The applicant], who claims to be a citizen of Afghanistan, arrived in Australia in 2013 after being granted a Refugee (Subclass 200) visa.  At that time he claimed his father had been killed and his brother kidnapped by his uncles because of a land dispute.  He claimed his cousins and uncles were connected to a local Harakat commander.  On the basis of these claims, the UNHCR found he was a refugee.   

2. In 2018, [the applicant] was granted a Subclass 155 (Resident Return) visa to allow him to travel overseas, and his Subclass 200 visa ceased.

3. Following a facial comparison check conducted by the Department, [the applicant] was matched with a person named [Alias], who applied for a Global Special Humanitarian visa as a dependent of his mother in 2005, and who applied for an Aged Dependent Relative visa in 2008, again as a dependent of his mother. 

4. As a result, the delegate cancelled his visa under s 116 of the Migration Act 1958 (Cth) (the Act) because the delegate was not satisfied as to [the applicant]’s identity.

5. [The applicant] acknowledges that he is the same person as [Alias].  He further acknowledges his father and brother are alive and living in Australia but says he remains at risk as a Hazara who is a citizen of Afghanistan. 

6. This is an application for review of the decision to cancel [the applicant]’s Subclass 155 (Resident Return) visa. The issue is whether a ground for cancellation is made out, and if so, whether his visa should be cancelled.

7. [The applicant] appeared before the Tribunal on 31 July 2023 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent. The Tribunal also took evidence from his brother [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

8. The Tribunal adjourned to allow [the applicant] to provide further information and DNA tests to establish his relationship with his claimed father and brother who live in Australia, and a copy of the outcome of these tests was provided on 12 October 2023.  [The applicant] was requested to provide any final submissions by 10 November 2023; however, no further submissions were provided. 

   BACKGROUND

9. [The applicant] acknowledges his name is [Alias].  He said he changed his name when he was in [Country] because [Given name] means “[Meaning],” and [Main part of surname] is his grandfather’s name.  He said he did not change his name to obtain a favourable visa outcome, but that it is true he applied for a visa in 2008 and was sponsored by his brother. 

10. [The applicant] said he provided his passport and taskira with the application for a Subclass 200 visa in 2008.  [The applicant] was advised the Tribunal did not have these documents and he was asked to provide his taskira and passport.  He provided three expired titre de voyage documents issued in Australia but did not provide a taskira or Afghan passport. 

11. [The applicant] states he was born in [Location], Daykundi District, Afghanistan. 

12. He said his mother’s name is [Ms B].  He said his father was called [Mr C], but is currently known as [Mr C – Alias 1].  The Tribunal asked his father to attend to give evidence, however, [the applicant] said he was unwell, and he did not attend the hearing .  After the hearing he provided a copy of his father’s Australian passport but did not provide a copy of his father’s taskira as requested.

13. His eldest brother is [Mr A], previously known as [Mr A – Alias]. His brother changed his name in Australia in March 2019.  A change of name certificate was provided for his brother and a copy of his brother’s Australian passport.  His brother has a taskira obtained in Afghanistan.  A taskira for [Mr A] was provided, naming his father as [Mr C – Alias 2].  This has a date of issue of 1 December 2019, and it appears the taskira was registered in 2017. 

14. [The applicant]’s Subclass 200 visa application lists a brother [Mr D] who is claimed to be missing, brothers [Mr E] and [Mr F], and sisters [Ms G], [Ms H], [Ms I] and [Ms J].  He lists a nephew [Mr K] as part of his family group. 

15. After from his father and brother, whose relationship with [the applicant] ws established by DNA tests, his family composition has varied. 

    ·     The application for a Global Special Humanitarian visa in 2005 lists his mother as [Ms B – Alias 1] and his father as [Mr C – Alias 3] (missing).  He lists siblings [L] (missing), [Ms M], [Ms N], [Ms O], [Ms P], [Ms Q], [Ms R] and [S]. 

    ·     In his application for a Subclass 200 visa, his parents are listed as [Mr C – Alias 4] and [Mr B – Alias 2].  His siblings are listed as [Ms G], [Mr F], [Ms H], [Mr E], [Ms I], [Ms J] and a nephew [Mr K].  He lists a brother who is missing with the name [Mr D]. 

    ·     In written submissions prior to the hearing his siblings are listed as [Mr A – Alias], [L], [Ms M], [Ms N], [Ms O], [Ms P], [Ms Q], [Ms R] and [S].

    ·     At hearing [the applicant] said he has a sister [Ms M] who is deceased.  He has sisters [Ms N] , [Ms P], [Ms Q], [Ms R] and [Ms O], with the latter two sisters born in Quetta.  He later corrected this to state that all of his siblings were born in [Location], Daykundi District in Afghanistan. 

    ·     [The applicant] said he does not have a sister called [Ms J] or a nephew called [Mr K] as listed in his application for the Subclass 200 visa, and said he received misguided information in [Country], where he added a sister and brother (nephew) who are not real.  

16. [The applicant] provided a death certificate and translation for [Ms H], daughter of [Mr C – Alias 1], dated 31 July 2013 and issued on 16 August 2023.  He said [Ms H] came to Australia in 2009 with his father but returned to Quetta and died in Quetta.  The Department found that facial comparison showed that [Ms H] is the same person as his sister [Ms M].  No explanation was provide on the basis on which a death certificate in the name [Ms H] was obtained. 

17. His family composition is confusing and has been misleading from the first application, and I am not satisfied of his correct family composition or the names of his family members. 

18. [The applicant] says his family left Afghanistan in 2002 and relocated to Quetta in Pakistan, living in [a] district in Quetta.  He said his brother came to Australia in 2006 and his father and one sister came to Australia in 2009.

19. [The applicant] left Pakistan in 2010 and travelled to [Country].  He was detained in [Country], and on 9 November 2011, the UNHCR issued a refugee certificate recognising him as a refugee.  His claims to UNHCR included that his father had been killed and his brother abducted in a land dispute with his paternal uncles.  The UNHCR certificate was renewed on 9 November 2012.  He did not declare any relatives in Australia.  The information provided to UNHCR is false as his father and brother were in Australia. 

20. [The applicant] initially said he had only applied for a protection visa in 2008 and had an interview in Islamabad.  On being asked if there was an application in 2005 for an Aged Dependent Relative visa, he said he did not know exactly when and how he had applied for that. 

21. Since he has been in Australia, [the applicant] has travelled to Pakistan on three occasions in 2016, 2018 and 2020 for periods of approximately three, four and eight months respectively.  He said he returned to Pakistan to see his family.  He married in Pakistan and said he now has a wife and [Child] who live in Quetta. 

    SECTION 375A CERTIFICATE

22. Under s 375A of the Act, the Minister may certify in writing that the disclosure of information contained in a document would be contrary to the public interest.  If a valid certificate is issued, the Tribunal must do all things necessary to ensure the document or information is not disclosed to any person other than a member of the Tribunal constituted for the purposes of the review.

23. A certificate issued under s 375A of the Act was included on the Department file.  The Tribunal provided a copy of the certificate prior to the hearing and invited comment on the validity of the certificate.  No comments were received, and on reviewing the certificate, it meets the requirements of s 375A of the Act. 

24. To the extent that it is relevant to this matter, the information addressed in the certificate is that a facial comparison showed that [the applicant] and [Alias] are the same person, which is conceded by the applicant and recorded in the decision record of the delegate. 

    INFORMATION UNDER S 359AA OF THE ACT

25. [Mr A] provided a statement, a taskira and oral evidence at the hearing.  In giving evidence, [Mr A] was asked if he had been truthful in his own visa application and in giving evidence to the Tribunal in the past. He said that he was. 

26. In a decision dated 5 February 2013, the Tribunal recorded the evidence of [Mr A] that his father returned to Afghanistan in 2004, and when the family heard nothing, his mother sent [Mr K] in 2005.  [Mr A – Alias] (as he was known then) claimed people from Afghanistan told their mother that their father had been killed, and that [Mr K] had been taken.  He gave evidence that [the applicant] had been kidnapped by the Taliban and no-one knew where he was.  

27. At that time, [Mr A]’s father and [the applicant] were in Australia and his evidence was not true.

28. [The applicant] was advised that if I relied on this information, I would find his brother has previously been untruthful to the Tribunal and that his evidence cannot be relied on. I would also find I have doubts about his brother’s identity, and that his relationship with [the applicant] does not assist to establish [the applicant]’s identity. [The applicant] was advised that if I find that I am not satisfied about his identity, the ground to cancel his visa in s 116(1AA) is established and this would be the reason or part of the reason for affirming the decision under review.

29. [The applicant] was provided time after the hearing to consider the decision of 5 February 2013 and provide any further responses.  No further response was provided.

30. As [Mr A] has previously been untruthful to the Tribunal, I am not satisfied that his statutory declaration or his oral evidence about [the applicant]’s identity, family composition or history can be relied on in the absence of supporting information. 

    CREDIBILITY

31. [The applicant] claimed that his ability to give evidence is affected by his mental health.  He suffers PTSD from his treatment while he was detained in [Country], and he provided headlines from internet articles on the conditions of people held in Indonesia. He claims that he suffered trauma from witnessing explosions in Pakistan in 2003 and 2004.

32. [The applicant] provided a report from [Mr T], a registered psychologist, dated 8 September 2022.  The report records [the applicant]’s account of witnessing three explosions in Pakistan in which many people were killed or injured in 2003 and 2004, which led to his decision to leave in 2010.  It records [the applicant]’s account of the deterioration in his mental health while detained for 15 months in [Country], and that he eventually obtained mental health support in [Country].  It reports that [the applicant] was told he should not give information that would jeopardise his application, and he did not provide or missed information partly as a result of his mental health.  He reported being affected by stress and that he experiences symptoms such as difficulty with his memory including dates, events and details of his experiences, and this has affected his interviews with the Department of Immigration and resulted in him not informing the Department of all matters about his case.   

33. [Mr T] diagnosed [the applicant] with PTSD with severe depressive symptoms, which are untreated.  He reports that [the applicant] requires treatment for PTSD.

34. Medical certificates were provided showing that [the applicant] had been prescribed antidepressant medication from 14 March 2022, after the notice of intention to cancel his visa was issued.  [The applicant] said that after this notice was issued, he suffered mental distress.   

35. In taking account of [the applicant]’s diagnosis, minor inconsistencies and difficulties with dates or descriptions of events have been disregarded.  However, I do not accept that PTSD accounts for differences in evidence over time about fundamental longstanding matters relating to his identity including his name, nationality and family composition. 

36. His mental health has also been relied on to explain why he was vulnerable to advice from others to conceal his identity and relationship to others in Australia, and this is considered further below. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

37. 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(1AA). If satisfied that a 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 degree of satisfaction required

38. In looking to the degree of satisfaction required to make a finding that a ground to cancel the visa exists, in Sun v Minister for Immigration and Border Protection,[1] Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making.  

    [1] [2016] FCAFC 52

39. However, the Tribunal is mindful of the gravity of the consequences of cancelling a permanent visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[2]

    [2] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20]

40. In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:

    The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[3]

    [3] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119]

41. In looking at whether I am is not satisfied as to [the applicant]’s identity, I have kept in mind the gravity of the decision and the central relevance of such a finding and have exercised caution in evaluating the factual foundation for such a finding.

    Does the ground for cancellation exist?

42. A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

43. Identity is a concept to be considered in context, and in this case the context is the grant of the visa.  It involves looking at whether the applicant is the person they say they are, in the context of the information provided to support the grant of the visa, and whether the person is a different human being with a different background that may affect their visa.[4]

    [4] In the context of the Citizenship Act 2007, Chief Justice Mortimer used this formulation in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 at [32]

44. Identity comprises more than proof of name and date of birth, and may include a person’s country of nationality or habitual residence, citizenship, ethnic group, language and religion.[5] Establishing identity for people whose country of origin does not have robust documentation, or where the person may be unable to obtain any documentary evidence of his or her identity involves looking at the available documentary evidence, any biometric data and the narrative of the person.[6] 

    [5] Ibid

45. I explored whether [the applicant]’s identity could be established by providing evidence of a family relationship with other family members in Australia who in turn have established their identity.

46. DNA tests were provided to establish the relationship between [the applicant] and his father and brother who are in Australia.  The DNA test results show that the person who is now known as [Mr C – Alias 1] is his father, and the person now known as [Mr A] is his brother.  A taskira to establish the nationality of [Mr C – Alias 1] was requested by the Tribunal but was not provided.  [The applicant] provided copies of [Mr C – Alias 1] and [the applicant]’s Australian passports.

47. [The applicant] submits his father changed his name because they belong to a tribe called [Tribe name] and his father took the name of the tribe and also changed his name to [Mr C – Alias 1, given names]. 

48. A taskira was provided for [Mr A], which was issued in 2017.  In oral evidence, [Mr A] said he came to Australia in 2001, and he obtained his taskira in 2017, by going personally to Kabul where he also visited family members.  On being asked why he needed a taskira at that time, he said he did not need one.  He said he was required to take his father’s taskira and a letter of support to Kabul, where a taskira was issued.  The taskira is issued in in the name [Mr A], a name which he only used after he arrived in Australia. The translation of the document shows it was first registered in 2017, two years before [Mr A – Alias] changed his surname to [Mr A] in Australia.  The taskira states his father’s name is [Mr C – Alias 2], and his father is now known as [Mr C – Alias 1].  [Mr A]’s account of why he decided to travel to Kabul to obtain a taskira after becoming an Australian citizen is illogical, and he only provided a vague account of why he wanted to obtain a taskira.  It is issued in a name he did not use in Australia until after he obtained the taskira.   I do not consider I can rely on this document to establish [the applicant]’s nationality as a sibling of a citizen of Afghanistan.

1. [The applicant] has provided differing family compositions, has changed his name and narrative, and his father and brother in Australia have also changed their names.  His brother provided an untruthful account to the Tribunal.  I am not satisfied of the identity of any family members.

2. [The applicant]’s date of birth has also changed, and he submits this was because he advised his correct date of birth at the International Organisation for Migration (IOM) interview in [Country], but the officer did not believe him and wrote another date instead.  I can see little reason why an IOM officer would record a date other than that specified by an interviewee, and in conjunction with other false information provided by [the applicant], I am not satisfied that this was not another attempt to obscure his identity. 

3. In this case, the information provided by [the applicant] as to his nationality, name, age and family composition is inconsistent and confusing.  I am not satisfied his nationality can be established through his familial connection with this father and his brother as they have both changed their names and his brother has provided a false narrative to the Tribunal in the past. 

4. I am satisfied [the applicant] is ethnic Hazara as he communicated to the Tribunal using a Hazaragi interpreter during the hearing.

5. I am not satisfied that establishing his ethnicity is sufficient to establish his identity for the purpose of assessing his eligibility for a Subclass 200 visa, as this is the context in which his identity was required to be established.    

6. It follows I am not satisfied of [the applicant]’s identity and the ground in s 116(1AA) of the Act is established.

   Consideration of discretion

7. There are no matters specified in the Act or Migration Regulations 1994 (Cth) (the Regulations) that must be considered in the exercise of the discretion to cancel the visa. 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, and whether the visa holder has a compelling need to travel to or remain in Australia

8. [The applicant] came to Australia as a refugee, however, particulars of his claim that his father had been killed and his brother abducted are untrue.   These claims gave rise to the UNHCR certification which is the basis of the grant of the Subclass 200 visa.  These claims were also made in the 2005 and 2008 visa applications. 

9. [The applicant] said the purpose of his travel and stay was to save his life from the threat of the Taliban in Afghanistan, which have increased with the Taliban taking over the country.    

10. [The applicant] said he did not know where he would go if his visa was cancelled.  He said he cannot go to Afghanistan and has no right to return to Pakistan, and even if he does return to Pakistan, Hazaras are targeted and killed.  He said he had returned to Pakistan on several occasions because he had no option but to go to his family members even though Hazaras are not safe in Pakistan. 

11. [The applicant] said he wants to remain in Australia because it is a safe country and has good opportunities for him and his family.  In Afghanistan, Hazaras are not accepted as equals and their religion and ethnicity are not accepted.

12. If [the applicant] has a compelling need to remain in Australia because Australia has protection obligations, he can apply for a protection visa and have these claims assessed.  This is further considered below. 

13. [Mr A] states he suffers from a breathing illness and living with others is difficult.  He has been in hospital for his breathing to be monitored.  He said he has a machine to wear while he is asleep.  [Mr A] did not have any medical records about his conditions and said he has asked his doctor for them but was told “it was too many pages.”  In the absence of a medical report, I am unable to assess the severity of [Mr A]’s condition or the veracity of his claims about his breathing illness or any associated need for [the applicant] to remain in Australia to care for him.

    The extent of compliance with visa conditions

14. There is no information to show that [the applicant] has not complied with the conditions of his visa. 

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

15. [The applicant] states he suffers from numerous health conditions which will be exacerbated if his visa is cancelled.  His wife and [Child] are in Quetta and fear for their lives from targeted killings and terrorism, and if his visa is cancelled it will affect his partner visa application for his wife and [Child]. 

16. [The applicant] claims the cancellation of his visa will result in permanent separation from his wife and [Child].  I do not accept this is the case.  [The applicant] may apply for and be granted another visa, or a determination may be made about his nationality and he may be returned to his country of nationality.

17. He claims that his case should be viewed  in accordance with his situation when he was in [Country], and he had witnessed extreme terrorist acts carried out against people in his village, including bomb blasts and terrorism.  He was told to provide incorrect information by the people smuggler.  He said that in Afghanistan and Pakistan providing incorrect information is not seen as immoral, and it occurs frequently.

18. [The applicant] first sought treatment for his mental health in Australia in 2022 when his visa was cancelled.

19. [The applicant] has been diagnosed by a registered psychologist as suffering PTSD, which the psychologist states is untreated.  At the time of the psychology report he was also taking an antidepressant.  The antidepressant was first prescribed after the notice of intention to consider cancellation was issued. 

20. [The applicant] has suffered a [Body part condition], which has been surgically repaired. [The applicant] attributes this to the medication he received in [Country] causing a [related illness].  

    The circumstances in which the ground of cancellation arose

21. The Federal Court has stated that the perceived moral deficiency that arises when a lie is told believing that this is necessary to save the person from threats to their safety is different to the moral deficiency associated with a lie told for personal enrichment.[7] 

    [7] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [72]

22. [The applicant] said he was told by the people smuggler to provide an incorrect name and not to mention information from his previous visa application.  He was also advised that if he said his brother is in Australia, his application would be refused.  He said that at that time, he was an illiterate person unfamiliar with the Australian migration system and had been smuggled out of Quetta where he had seen targeted killing of Hazaras.

23. [The applicant] said he was in [Prison] in [Country] for around one and a half years and was tortured in the prison by authorities beating him with punches and kicks as well as electrocution with an electric baton.  He was depressed and most of the time had to take medication.  He visited the doctor approximately twice a week, and on one occasion was told that if he did not see a doctor that day, he would have brain damage.  He says he was given strong antidepressant medication. 

24. [The applicant] provide screen shots of headlines, “What do to about the Asylum Problem”, “Onward or return: Asylum Seekers in [Country]”, “[Prison] Stock Photos”, “Insider [Prison]; the future of offshore processing”, “Hazara teenagers wasting their youth in detention in …” and a photograph of [the applicant] next to writing on a board that is not in English, by an exit sign in English and another language. 

25. I accept [the applicant] was detained in [Country] for a period of approximately 18 months and this affected his mental health.  However, I do not accept his detention made him any more vulnerable to being untruthful about his identity because he initiated and maintained a false identity on arrival in [Country], and before his detention. 

26. [The applicant] also claims he was vulnerable to suggestion about information to include in his visa application having witnessed attacks on Hazaras in 2003 and 2004 in Quetta.  His representative provided many articles, not all of which are relevant to this matter, and which include unattributed and unexplained photographs of people with head wounds who are injured or deceased.

27. Of the articles, three relate to attacks in Quetta in 2003 and 2004:

    ·     Wikipedia entry, “2004 Quetta Ashura massacre”.

    ·     BBC News, 2 March 2004, “Carnage in Pakistan Shia attack”.

    ·     Dawn, 5 July 2003, “Attack on Quetta imambargah leaves 44 dead”.

28. The Tribunal accepts these attacks occurred; however, these attacks were not raised in [the applicant]’s previous claims, and there is little information to support his location at any particular point in time or that he witnessed these attacks.  The Tribunal accepts that if he was in Quetta at the time of these attacks, he is likely to have been affected by the attacks.  The Tribunal also accepts that a strong desire to leave Pakistan due to conditions would make [the applicant] more vulnerable to suggested responses from people traffickers.

    Past and present behaviour of the visa holder towards the Department

29. [The applicant] maintained the name of [the applicant], and an incorrect family composition, including in his application for Australian citizenship in 2017, until he was provided with a notice of intention to cancel his visa. 

30. It is submitted that while [the applicant] should have corrected the information earlier he was waiting for his wife and child to arrive in Australia before he corrected the information.  This was because he was afraid that as the information was false, any correction would put his partner and [Child]’s applications at risk, and he considered his wife and [Child]’s lives to be in danger. 

31. [The applicant] returned to Pakistan to marry five years after arriving in Australia and had ample opportunity to correct the information before he married.  I do not accept that he intended to correct the information at a later date. 

    Whether there would be consequential cancellations under s 140

32. There are no consequential cancellations that will occur if [the applicant]’s visa is cancelled.

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

33. [The applicant] arrived in Australia lawfully as the holder of a Subclass 200 visa.  He was granted a Subclass 155 visa on 15 May 2018, and his Subclass 200 visa ceased on the grant of the Subclass 155 visa under s 82(2) of the Act.  As he applied for and was granted a Subclass 200 visa offshore, he is not barred from applying for another protection visa under s 48A of the Act. 

34. If his Subclass 155 visa is cancelled, s 48 of the Act limits the types of visas that he can apply for from within Australia.  Under reg 2.12 of the Regulations, he can apply for a protection visa.

35. If he does not apply for a protection or other visa, he will be an unlawful non-citizen and detained under s 189 of the Act.  As a protection finding has not been made in the course of his Subclass 200 visa grant, as this is not defined as a protection visa in s 35A of the Act, he will be removed under s 198(5) of the Act as soon as practicable unless he applies for a protection visa. 

36. If [the applicant] applies for a protection visa, he cannot be removed from Australia until the application has been finally determined and the visa has been refused (s 198(5) of the Act).

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

37. There are no statutory bars to [the applicant] applying for a protection visa.

38. Where claims are made that relate to non-refoulement, a decision must have regard to what is said in the representations and must read, identify, understand and evaluate the representations.[8]

    [8] Plaintiff M1/2021 [2022] HCA 17 at [24]

39. As stated by Kiefel CJ, Keane, Gordon and Stewart JJ in Plaintiff M1-2021 [2022] HCA 17:

    Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4)[60], but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.

40. In support of the conditions for people of Hazara ethnicity in Quetta, [the applicant] provided the following:

    ·     Minority Support Pakistan, 2012, “The Shia Hazara of Pakistan: A community Under Siege”.

    ·     Zarak et al, 2020, “Assessment of Psychological Status (PTSD and Depression) Among the Terrorism affected Hazara Community in Quetta, Pakistan”, Cambridge University.

    ·     The Express Tribune, 7 October 2018, “No Country for Hazaras”.

    ·     Zafar, M, The Express Tribune, 25 May 2015, “Attacks on Hazara Shia in Quetta leave 4 dead, 9 injured”.

    ·     News Asia, 13 February 2013, untitled, with the headline “Taliban militants have attacked worshippers at a Shia mosque in Peshawar with guns and grenades, killing at least 19”.

    ·     Unknown source, 13 April 2014, “Two people shot dead in Quetta Hazara Shia”.

    ·     Balooch, S and Bangash, Z., The Express Tribune, 5 October 2014, “Sectarian Violence: 11 killed in Quetta, Kohat Bombings”.

    ·     Abbasi, O, 5 February 2015, “Taseer murder case: Qadri’s lawyer calls Charlie Hedbo attackers ‘heroes’”.

    ·     Baloch, S, 23 October 2014, The Express Tribune, “8 Hazaras killed in bus shooting near Quetta”.

    ·     The International News, 23 October 2014, “Nine killed in attack on bus in Quetta”.

    ·     SMAA TV, 22 December 2017, “Four Hazara community members shot injured in Quetta”.

    ·     Source unknown, photographs of people and bodies with head wounds.

    ·     Akram, M, The Express Tribune, 2 April 2018, “Protest in Quetta after Hazara man gunned down, another injured”.

    ·     The Express Tribune, 14 April 2018, “Explosives, suicide vests recovered from Islamabad’s G-14 sector”.

41. [The applicant] claims that he will be harmed if he is returned to Afghanistan by the Taliban as he is of Hazara ethnicity and Shi’a religion.  He claims to have no right to return to Pakistan as he was living in Pakistan unlawfully before coming to Australia. 

42. It is recognised that [the applicant] raises claims that relate to non-refoulement, however, it is appropriate for these to be considered in an application for a protection visa.

43. [The applicant] states he married in 2018 in Pakistan and his wife and child are in Pakistan. [The applicant] married after he arrived in Australia, and was out of Australia for approximately four months when he married, and then approximately eight months in 2020, when he said COVID-19 limited his ability to return to Australia.  If his visa is cancelled, he will be separated from his wife and child while his protection visa application is considered.  He will be unable to sponsor his wife and child unless he is granted a permanent visa. 

44. If [the applicant] applied for a protection visa, he would have to be in Australia to meet the requirements for the visa.  This will limit his ability to travel to see his child until his visa application is determined.

45. [The applicant] did not raise claims relating to the Convention on the Rights of the Child (the Convention), however he has a child from whom he may be separated if his visa is cancelled, and it is appropriate to consider the effect of the Convention.

46. Article 3 of the Convention states that in all actions concerning children, the best interests of the child shall be the primary consideration.  In this case, the action relates to [the applicant], however an indirect effect is that he will be separated from his child as he will be unable to travel if he applies for a protection visa. 

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

47. [The applicant]’s father and brother are in Australia.  It is claimed the remainder of his family are in Pakistan, including his wife and his [Child].  He works full time as [an Occupation] in Australia.  He said he does not have other ties to the community. 

    CONCLUSION

48. [The applicant] and his family have provided a false narrative over a long period of time.  On the information available to me, I am satisfied that he is of Hazara ethnicity and Shia religion.  I am not satisfied about his nationality, family composition or history.

49. In these circumstances, while he does raised claims of non-refoulment, these should be considered in the context of a protection visa application, where his claims for protection can be fully made and assessed in accordance with the Act and using his correct identity.

    DECISION

50. The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Kate Millar
    Senior Member