2215743 (Refugee)

[2023] AATA 2549

2215743 (Refugee) [2023] AATA 2549 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Caitlin White

CASE NUMBER:  2215743

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Wayne Pennell

DATE:6 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 866 (Protection) visa.

Statement made on 06 June 2023 at 2:50pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information in the visa application – race – Hazara – religion – apostacy – mental health issues – employment for the US military – Pakistan citizenship – non-refoulement obligations – contribution to the community – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 140, 424AA
Migration Regulations 1994, r 2.41

CASES

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to cancel the Applicant’s Subclass 866 (Protection) visa under section 109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Delegate cancelled the visa on the basis that the Applicant provided incorrect information and answers to his application for a protection visa and therefore he did not comply with section 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the Applicant’s Protection visa should be cancelled.

3. The Applicant appeared before the Tribunal on 26 May 2023 and 5 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Psychologist A], a psychologist.[1] In addition to that evidence, the Applicant further relied upon the statutory declarations of [Declarant A] ,[2] [Declarant B][3] and [Declarant C],[4] along with a statement from [Mr A].[5]   

   [1][Psychologist A] had provided a report regarding a psychological assessment of the Applicant dated 17 May 2023.

   [2]Dated 25 May 2023.

   [3]Dated 19 May 2023.

   [4]Dated 18 May 2023.

   [5]Dated 6 May 2023.

4. The Applicant was represented in relation to the review and the hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s Protection 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 sections 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 section 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under section 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in section 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 section 107 and that the notice issued under section 107 complied with the statutory requirements.

   Section 438 Certificate

9. The Tribunal has been provided with the Department’s file in relation to the cancellation of the Protection visa held by the Applicant. The Department has placed restrictions on a number of documents contained within that file and had issued a certificate pursuant to section 376 of the Act.[6] Subsequently, that certificate was revoked and another certificate pursuant to section 438 of the Act was issued.[7] 

   [6]Certificate issued 10 March 2022.

   [7]Revocation of section 376 certificate and issuing of a section 438 certificate took place on 24 March 2023.

10. The purpose of the certificate being issued was the disclosure of the nominated documents would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. 

11. During the hearing, a copy of the section 438 certificate was provided to the Applicant’s representative. The certificate was signed and clearly relates with the state public interest reasons on the certificate. Neither the Applicant or the Applicant’s representative made submissions and the certificate’s validity was not challenged.

12. The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the documents to which the section 438 certificate relates, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the Applicants.

    Background information

13. The Applicant arrived in Australia [in] May 2009 as an irregular maritime arrival. He later lodged a request for a Refugee Status Assessment,[8] and subsequently, the Delegate found him to be a refugee.[9] At a later time, the Applicant requested the Minister lift the section 46A(1) to allow him to lodge an application for a Protection visa (subclass 866). That application was lodged with the Department and the Applicant was subsequently granted a Protection visa.

    [8]On 28 July 2009.

    [9]On 21 September 2009.

14. When completing the application for the Protection visa, there were numerous questions which required truthful answers in respect to the Applicant’s personal details, citizenship and the reasons or claims as to why he was seeking a Protection visa. Those questions were answered by the Applicant, however, he provided incorrect information in his answers in the application regarding his place of birth and nationality.

15. In the application, the Applicant claimed that he was born in [Village 1], Ghazni Province, Afghanistan on [DOB 1]. The Applicant went on to claim in his application that he was a Shia Hazara born in Afghanistan and he left Afghanistan for Pakistan in about 1990. He claimed he later returned to Afghanistan in late 2005 where he was employed by the ‘US military’ at various military bases, initially as an [occupation 1] and then as an [occupation 2].

16. The Applicant claimed he was in danger from the Taliban because of that employment. He claimed that he was told by a ‘source’ that the Taliban had his photograph and were aware that he was [working] for the US military as they had seen him travelling with the US military through Kandahar. He went on to claim that his cousin, who was also an [occupation 2] for the US military, had been killed as were many other [occupation 2]. He claimed that he was unable to return to Pakistan as his family lived there illegally as refugees and he feared for their safety; and it was dangerous for illegal refugees who are known to be Hazara and Shia.

17. In making his application, the Applicant completed the details in regard to his family members living in Pakistan. At a subsequent time,[10] the Applicant’s father, [Declarant B], arrived as an irregular maritime arrival. He was granted a temporary Humanitarian Stay visa, followed by a Safe Haven Enterprise visa (‘SHEV’) which was issued on 30 November 2020.

    [10]Arrived [in] November 2012.

18. Within his SHEV application, [Declarant B] declared he is a Hazara Shia Muslim and was born in Pakistan and, apart from Australia, has lived nowhere else. He claimed that his parents were born in Afghanistan and were Afghan citizens. They moved to Pakistan and he was born there. He said he was a Pakistani citizen and has previously held [number] Pakistani passports, copies of which he submitted with his application, together with two national identity cards and his local certificate to validate his identification.

19. In describing his family, [Declarant B] said that he had a wife, [and specified children]. He provided their names, dates of birth and where they were born. [Declarant B] advised that his wife and children were all born in Pakistan and they have always resided there and are Pakistani citizens. A subsequent investigation by the Department revealed that the names and approximate dates of birth [Declarant B] provided to the Department correlated with the details of the people the Applicant provided within his own application in respect to his own family composition. 

20. Within their subsequent inquiries in regard to his SHEV application, the Department interviewed [Declarant B].[11] Although he initially advised the Delegate that all his children lived in Pakistan, he disclosed that his son resided in Australia. In describing his son, he disclosed that when he was living in Pakistan, the Applicant regularly sent him money. [Declarant B] told the Delegate that he did not initially tell the truth about the Applicant because he was aware the Applicant had an ‘Afghan case’, while he ([Declarant B]) had a ‘Pakistani case’ and he did not want to ‘mix them up’. He went on to state his son had moved from Pakistan to Afghanistan and lived there for some time and that he had acquired Afghan citizenship, but he did not know how his son managed this.

    [11]On 27 June 2018.

21. Subsequent to the disclosures by [Declarant B], the Delegate wrote to the Applicant and advised him that based on the information provided by [Declarant B], the Department determined that he was [Declarant B’s] son, and was therefore he was born in Pakistan and was a citizen of Pakistan.

22. The Delegate also advised that Applicant that the information indicated that he had provided incorrect information in his Protection visa application when he declared that he was born in Afghanistan and was a citizen of Afghanistan. The Delegate went on to advise the Applicant that the information also raised questions in relation to the Applicant’s claims that he had been living and working in Afghanistan for the US military. It also raised questions about his claim that he could not travel and stay in Pakistan as he had no right to live in Pakistan.

23. Finally, the Applicant was advised of the Delegate’s decision that he had not complied with section 101(b) of the Act in relation to answers the Applicant provided in his Protection visa application when it was lodged on 19 November 2009.

24. In responding to the Delegate’s decision, the Applicant made full and frank disclosures that some of the information that he provided when applying for a Protection visa was incorrect.[12] He confirmed he was born in Quetta, Balochistan, Pakistan and that [Declarant B] was his biological father. The Applicant accepted that because he had provided incorrect information, it was open to the Department to be satisfied he had not complied with section 101(b) of the Act.

    [12]Applicant’s response provided on 12 August 2022.

25. However, in making that concession, the Applicant maintained the claims that he was an ethnic Hazara and, while he had been raised as a Shi’a Muslim, he had long-since abandoned this religion and now identified as a man of no religion. He also maintained that he had worked for the US Military in Afghanistan from about 2005, including as an [occupation 2].

26. It was the Applicant’s contention that he could not be returned to his country of birth, Pakistan, because of the dangers he would be exposed to as an ethnic Hazara. Furthermore, he was a person with no religion and as such belonging to the particular social group, namely ‘apostates and/or blasphemers in Pakistan’. He is also a person who had abandoned Islam. He also claimed that he suffers from a mental health issues. 

27. All of those issues are discussed in greater detail later in these reasons.

    Was there non-compliance as described in the section 107 notice?

28. The issue before the Tribunal is whether there was non-compliance in the way described in the section 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 section 107 notice was non-compliance with section 101(b) of the Act which requires that a non-citizen must fill in or complete their visa application form in such a way that no correct answers are given or otherwise provided.

29. The section 107 notice[13] alleged that as part of his application for a Protection visa, the Applicant provided incorrect information in respect to the following:

    [13]Dated 12 August 2022.

    ·Question 8: The Applicant was asked to provide his ‘Place of birth; Town/city & Country’ to which he answered [Village 1], Jaghoori, Ghazni, Afghanistan.

30. This answer is incorrect. Since being provided with a Protection visa, [Declarant B], the Applicant’s father, disclosed that the Applicant was born in Pakistan. At a subsequent time, the Applicant has confirmed [Declarant B’s] information. He now admits that he was born in Quetta, Balochistan, Pakistan. At the review hearing, the Applicant again confirmed that he was not born in Afghanistan but was a Pakistani national.

31. The Applicant disclosed to the Tribunal that his date of birth as recorded within the Protection visa application was also correct. It was noted that within his statutory declaration dated 24 July 2009 which he used to support his Protection visa application he deposed that he was [age] years of age at the time that document was signed, thus suggesting that he was born [on DOB 1]. When asked to clarify the contents of his statutory declaration,[14]  the Applicant told the Tribunal that his correct date of birth was [earlier DOB 2]. 

    [14]Migration Act 1958 (Cth), s 424AA.

    ·Question 19: The Applicant was asked to provide ‘Your citizenship at birth’ to which he answered Afghanistan.

    ·Question 21: When asked ‘Do you hold any other citizenship or are you a national of any other country?’, the Applicant answered No.

32. Both of those responses are incorrect. Both [Declarant B] and the Applicant have confirmed that the Applicant was born in Pakistan.

    ·Question 41: When asked to explain ‘Why did you leave that country?’, the Applicant claimed that he was born in Afghanistan, his ethnicity is Hazara and his religion Shia. In 1990 his family fled from Afghanistan to Pakistan. In late 2005 he returned to Afghanistan and worked for the US Military as [an occupation 2]. He said he feared for his life as the Taliban had his photograph and knew he was working for the US Military. His cousin, also an [occupation 2], had been killed, as were many other [occupation 2]. He could not live anywhere else and he could not go to Pakistan as he had resided there illegally. His family continue to live In Pakistan illegally as refugees and he feared for their safety.

33. The Tribunal considers that the Applicant’s response is partially incorrect because as already indicated, he was born in Pakistan and is a Pakistani citizen. As a result of that citizenship, he is legally able to live in Pakistan. His father, mother and siblings were all born in Pakistan and are Pakistani citizens. With the exception of his father, the remaining members of his family legally live in Pakistan; they are not illegal refugees, and his family did not flee from Afghanistan to Pakistan as the Applicant claimed.

34. In respect to the remainder of the information he provided, the Tribunal accepts that it is correct that he worked for the US Military in Afghanistan as an [occupation 2]; his cousin was also an [occupation 2]; his cousin was killed by the Taliban in Afghanistan, as were many other [occupation 2]; and the Taliban had identified him as being an [occupation 2] assisting the US Military.  

    ·Question 42:  The Applicant was asked ‘What do you fear may happen to you if you go back to that country?’. He responded that he feared being killed.

35. This response incorrect because the Applicant was born in Pakistan, and he had no reasons or need to return to Afghanistan where he claimed he would be fearful of being killed.

    ·Question 43: The Applicant was asked ‘Who do you think may harm/mistreat you if you go back?’. He responded by outlining that he feared the Taliban and Pashtuns who are all Taliban; they are the majority of the population and have control of Afghanistan.

36. This response is also incorrect because as already explained in these reasons, the Applicant was born in Pakistan and is a Pakistani citizen. There was no need or requirement for him to return to Afghanistan where he claimed that he was fearful of being killed.

    ·Question 44: The Applicant was asked to respond, ‘Why do you think this will happen to you if you go back?’. He response was that because he was a Hazara and can be immediately recognised by the Taliban. He also said that the Taliban also have his photograph and he would be targeted because he assisted the US Military. 

37. The Applicant’s response it partially correct. It is correct that he identifies as a Hazara and that the Taliban did possess a photograph of him. However, it is not correct that he was fearful of being targeted in Afghanistan by the Taliban as he had no need or requirement to return to Afghanistan.

    Delegate’s assessment and the NOICC

38. When assessing the information discussed, the Delegate decided that the Applicant had provided incorrect information and answers in his application for a Protection visa and therefore he had not complied with section 101(b) of the Act. A notice of intention to consider cancelling (‘NOICC’) his visa under section 109 of the Act was provided to him.[15]  He was also afforded with an opportunity to comment on the non-compliance and to give written reasons why his visa should not be cancelled. 

    [15]Provided on 12 August 2022. 

39. In responses to the NOICC from his legal representative, the Department was informed that the Applicant concedes and admits that he had provided incorrect information with respect to his country of birth and citizenship. It was confirmed that he was born in Quetta, Balochistan, Pakistan and not in Afghanistan as claimed. He also provided incorrect information about his family living illegally in Pakistan.   

40. Notwithstanding that he had no objection to a conclusion being reached that he had not complied with section 101(b) of the Act, the Applicant has maintained his original claims that he is an ethnic Hazara and a Shia Muslim. Although with the passage of time since he has resided in Australia, the Applicant now says that he is a man without religion. He also maintains that he lived in Afghanistan from 2005 where he worked for the US Military as an [occupation 1] and then as an [occupation 2].

41. The Delegate reached a conclusion that the Applicant had provided incorrect answers to questions 8, 19, 21, 41, 42, 43 and 44 of his application for a Protection visa, and as such he had not complied with section 101(b) of the Act. The Delegate found that there were grounds for the cancellation of his Protection visa pursuant to section 109 of the Act.

42. The Delegate considered that those answers already discussed were incorrect because of the reasons already explained.  That is, since being granted a Protection visa the Applicant has admitted that he had provided incorrect answers. Although it was only after his father has disclosed that true circumstances of the Applicant’s country of birth and citizenship. That took place a decade after the Applicant had been granted a Protection visa, and even after learning of his father’s disclosures, the Applicant did not come forward and discuss with the Department his inappropriate behaviour in providing incorrect answers in his application.  

1. In conclusion, the Tribunal observes that the Applicant does not contest the Delegate’s findings and he acknowledged that he had not complied with the provisions of section 101(b) of the Act. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act by the Applicant in the way described in the section 107 notice.

   The Tribunal’s Review

2. The Applicant’s legal representative provided comprehensive submissions to the Tribunal in respect to the Applicant’s position and claims. To support those submissions were statutory declarations from the Applicant, [Declarant C], the Applicant’s father [Declarant B], and [Declarant A]. There is a further statement from [Mr A] who is the [Position 1] of the [Community Organisation 1].

3. Also provided to the Tribunal was a medico-legal report from [Psychologist A]. He undertook an assessment of the Applicant and the detailed and comprehensive medical report provided a helpful analysis of many aspects relating to the Applicant, including a diagnosis of his mental health.   

4. Because of the uncontroversial nature of the evidence contained within their statutory declaration, the Tribunal did not take personal evidence from [Declarant C], [Declarant B], [Declarant A] or [Mr A]. Each of those witnesses relayed to the Tribunal in their evidence that they were aware that the Applicant provided incorrect responses within his Protection visa application. Aside from that transgression, it seems that this is the only time the Applicant has departed from his otherwise extemporary good character.

5. The Applicant told the Tribunal that he was not contesting the Delegate’s findings in respect to him providing incorrect information in his application for a Protection visa. The Applicant also said that should he be forced to return to Pakistan, he is at risk of harm given his Hazara ethnicity, his abandonment of his Islamic faith and his mental health. He said that he would be punished, and if that were to occur he had a well-founded fear of persecution.

6. The circumstances, Applicant’s submissions and the Tribunal’s findings are discussed in greater details later in these reasons.

   FINDINGS AND REASONS

7. When assessing the evidence, the Tribunal finds that the Applicant provided incorrect information in response to questions 8, 19, 21, 41, 42, 43 and 44 of his application for a Protection visa.  In responding to those questions, the Applicant claimed that the only incorrect information related to his declaration was about his country of birth and citizenship, although he did concede at the review hearing that the date of birth he provided in his application was also incorrect.

8. In respect to the remainder of the claims, the Applicant has maintained his original claims that he is an ethnic Hazara and a Shia Muslim. Although he now says that he is a man without religion. He also maintains that he lived in Afghanistan from 2005 where he worked for the US Military as an [occupation 1] and then as an [occupation 2], his life was at risk because the Taliban knew his identity and they had a photograph of him. This caused him fear because a number of other [occupation 2] employed by the US Military had been killed by the Taliban, including his cousin.

9. The Applicant does not dispute that he provided incorrect information in regard to those questions discussed above, and for those reasons the Tribunal finds that he did not comply with section 101(b) of the Act in the way described and outlined in the NOICC.

   Should the visa be cancelled?

10. Because the Tribunal has decided that there was non-compliance in the way described in the notice given to the Applicant under section 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to section 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under section 109(2).

11. In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the section 107 notice about the non-compliance and have regard to any prescribed circumstances.[16] The prescribed circumstances are set out in regulation 2.41 of the Regulations. Briefly, they are:

    [16]Migration Act 1958 (Cth), s 109(1)(b) and (c).

    ·The correct information

12. The correct information is that the Applicant was not born in Afghanistan. The correct information is that his correct country of birth is Pakistan and he holds Pakistani citizenship.

13. Therefore, the Tribunal gives this factor weight in favour of cancellation.  

    ·       The content of the genuine document (if any).

14. There is no issue relating to a genuine document, therefore the Tribunal gives this factor neutral weight.

    ·       Whether the decision to grant a visa or immigration clear the Applicant was based, wholly or partly, on incorrect information or a bogus document.

15. The Applicant was granted a Protection visa based on his claims that his country of birth was Afghanistan and he was a person who feared harm if he returned to Afghanistan. Fundamentally, the Delegate was satisfied that he was owed Australia's protection obligations on the basis of being a citizen of Afghanistan, he had worked as an [occupation 2] for the US Military, and because of that work he was at risk of harm by the Taliban.

16. The Applicant accepted that the decision to grant him a Protection visa was based on his claim to fear persecution and significant harm in Afghanistan. He also acknowledges that the correct information establishes that he is in fact a Pakistani national, having been born in Quetta, Pakistan and does not require protection from Afghanistan as he could return to Pakistan and legally reside there. If indeed that correct information had been provided to the Delegate at the time of the assessment undertaken of his application for protection, the Delegate would have considered whether he was at risk of serious or significant harm if he was to return to Pakistan. The Applicant accepts that the disclosure of the correct information about his country of birth may have resulted in a different outcome from the assessment as to whether he was a person in respect to whom Australia has protection obligations. 

17. Notwithstanding that, the Applicant suggests that even if he had provided the correct information there was a reasonable prospect that he would still have been granted a Protection visa as a Hazara facing return to Pakistan. The Applicant refers to an earlier Tribunal decision on the issue of an Applicant having a well-founded fear of persecution based on his Hazara ethnicity if he were to return to Pakistan. Although the Tribunal found that matter provided some assistance, the Tribunal’s view is that the Applicant’s case should be decided on its own set of fact, features and circumstances.  

18. The Tribunal will return later in these reasons and discuss the Applicant’s ethnicity and whether protection considerations would be applied thereto. The Applicant argument is that while the incorrect information he provided may have been regrettable, it did not result in him being granted a visa that he would otherwise not have been entitled to. Therefore, this lessens the weight that could otherwise be given to this consideration in favour of cancellation. Respectfully, the Tribunal disagrees with that submission. There is a lawful expectation for an Applicant to be truthful when making an application and it is incumbent upon an Applicant to provide correct responses to the questions posed to them in a protection application.  

19. When considering the features of the information relating to this factor, the Tribunal is satisfied that the decision to grant the Applicant the protection visa was based wholly or partly on the incorrect information he provided in his application for a Protection visa.

20. Therefore, the Tribunal gives this factor weight in favour of cancellation.

    ·       The circumstances in which the non-compliance occurred.

21. The non-compliance occurred when the Applicant claimed to be a citizen of Afghanistan who had feared that he would suffer harm if he were to return to Afghanistan. In response to the NOICC and to the Tribunal, the Applicant has conceded that for protection, he incorrectly made the claim he was Afghanistan. The Tribunal notes the Applicant’s level of cooperation with the Department, albeit he was at time less than proactive in engaging with the Department. The Tribunal accepts that the Applicant has genuinely expressed remorse and apologised.  

22. He claimed that prior to arriving in Australia, other refugees who had befriended him suggested that he should tell the Australian immigration authorities that he was from Afghanistan because he would be rejected as a refugee if the authorities found out that he was from Pakistan. He claimed that this was reinforced by the people smugglers who encouraged him to hide his Pakistani citizenship. He accepts that what he did was wrong and he was very sorry for doing it.  He said that living with that lie has impacted upon his life for several years and has even impacted upon his relationships with his family. The Tribunal heard that even though his own father has been in Australia for a number of years, their relationship has been estranged.

23. The Act provides that a visa can be cancelled if a non-citizen provides incorrect information.  This is a demonstration that the legislation views the provision of incorrect information in an application for a Protection visa to be serious enough for the cancellation of a visa.  Essentially, the Applicant claimed that he provided the incorrect information because this was the advice he received from other before he arrived in Australia.  He was also advised by a people smuggler to his Pakistani citizenship. 

24. Australia has a demonstrated commitment to granting Protection visas to those people of whom Australia has protection obligations.  That commitment is derived from the multiple international instruments of which Australia is a signatory, including the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention.  When considering the potentiality of incorrect information in an application to destabilise the very essence of the migration program, the Tribunal considers that the provision of incorrect information for a protection visa is a serious issue.

25. The Tribunal gives this factor weight in favour of cancellation.

    ·       The present circumstances of the Applicant.

26. The Applicant’s evidence at the review hearing was that he has lived in Australia since 2009. At times he has been employed within the community and has been what the Tribunal considers to be a productive member of society. Prior to the cancellation of his Protection visa, he was employed as [an occupation 3]. The cancellation of the Protection visa meant that he could not renew his [occupational] licence.

27. The Tribunal accepts that when he was working in the community, he used his income to provide financial support to his family in Pakistan, as well to his elderly father who lives interstate. It is the Applicant’s intention that if his application to the Tribunal is successful, then he will return to the workforce as [an occupation 3]. This will allow him to provide further financial assistance to his elderly father, as well as his family in Pakistan.

28. In his evidence to the Tribunal, the Applicant outlines that he was born into a Shia Muslim  family but has since abandoned Islam after he arrived in Australia. For several years he considered himself as an atheist, but now identifies as agnostic. He claims that he does not follow or agree with any organised religion, including Islam.

29. Recently, and for the purposes of the review hearing the Applicant consulted with [Psychologist A]. Evidence was given by [Psychologist A] at the review hearing and in the Tribunal’s consideration, he was an impressive witness. In regard to the Applicant’s current mental health, it was [Psychologist A’s] opinion that although the Applicant did experience PTSD in the past which was attributable to the past traumas he was exposed to in Afghanistan, he no longer is afflicted by that condition. Accompanying that PTSD were occasions when the Applicant unfortunately resorted to excessive alcohol consumption. However, it appears to [Psychologist A] that for the past three years, the issue in the Applicant’s life in regard to excessive use as a coping mechanism for PTSD has abated.

30. The Tribunal has evidence from [Declarant A] and [Declarant C], both of whom have known the Applicant for a significant time. [Declarant C] was also an [occupation 2] employed by the US Military and he worked with the Applicant in Afghanistan. Both [Declarant A] and [Declarant C] describe the Applicant in a positive way. Although the Tribunal accepts their evidence, it also recognises that it would be a highly unusual set of circumstances for close friends to say something adverse about the Applicant. Nevertheless, the Tribunal accepts the veracity of their evidence about the Applicant’s character being genuine.

31. Therefore, this factor is given significant weight against cancellation.         

    ·       The subsequent behaviour of the Applicant concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act.

32. It was the Applicant who voluntarily provided disclosures to the Department that he had provided incorrect information when applying for a protection visa.  The Tribunal considers that he has co-operated with the Department, including responding to the NOICC within the prescribed timeframe.  It is the Tribunal’s view that he has engaged with the Department in respect to the cancellation process.

33. The Tribunal gives this factor significant weight against cancellation.

    ·       Any other instances of non-compliance by the Applicant known to the Minister.

34. There are no other instances of the non-compliance by the Applicant and under those circumstances the Tribunal gives this factor neutral weight.

    ·       The time that has elapsed since the non-compliance.

35. The Applicant ‘s non-compliance occurred in November 2009 when he lodged his application for a Protection visa application.  It is the Tribunal’s consideration that the passing of over thirteen years is a lengthy and significant period of time during which he has significantly established himself in Australia. 

36. The Tribunal gives this factor significant weight against cancellation.

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

37. The Applicant voluntarily disclosed to the Tribunal that he has been prosecuted three times in court for driving a motor vehicle whilst the concentration of alcohol in his blood was over the prescribed legal limit (‘drink driving’). The Tribunal considers that it was to his credit that he made that disclosure, as it was information was not otherwise available to the Tribunal.

38. It was established through the evidence of [Psychologist A] that there was a correlation between the Applicant’s PTSD and his excess consumption of alcohol. The Tribunal was told that his last drink driving offence took place over five years ago.

39. There are no other known contraventions the law by the Applicant and when considering the features of this factor, the Tribunal gives this factor neutral weight against cancellation.

    ·       Any contribution made by the holder to the community.

40. The Tribunal accepts the evidence of [Declarant C] and [Declarant A] in respect to the overall good character of the Applicant, along with the contribution he has made to improve his own wellbeing and life within the Australian community. The Tribunal also accepts that prior to his visa being cancelled, the Applicant significantly engaged himself in the workforce and was employed in a meaningful way.

41. The Tribunal was told of the Applicant’s charitable efforts in assisting other new refugees in Australia to access services, find employment and because he speaks very good English, he undertakes an interpreting role for them.

42. The Tribunal gives this factor considerable weight against cancelling the visa.

    Other factors

43. While those above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case.[17]  The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    ·Whether there would be consequential cancellations under s 140.

44. If the Applicant’s visa is cancelled, there would be no other cancellations considered. In that regard, the Tribunal gives this factor neutral weight against cancelling the visa.     

    ·If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]–[28].)

    [17]Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [68].

45. There are no children who will be impacted or affected by a cancellation of the Applicant’s Protection visa.

46. The Tribunal gives this factor neutral weight against cancelling the visa.

    ·Whether the cancellation of the Applicant’s visa would lead to his removal in breach of Australia’s non-refoulement obligations

47. In his submissions as to why the Tribunal is required to determine whether non-refoulement obligations are owed to him, the Applicant said that his non-refoulement claims are clearly articulated and supported by independent evidence and current country information, including the DFAT report. He suggested that there was a strong basis to conclude he faces persecution and significant harm if he is returned to Pakistan.

48. Firstly, the Applicant claims that because he is an ethnic Hazara, there is a risk he will be persecuted or will suffer significant harm for reasons of his ethnicity. He also said that the risks extend to his membership of a particular social group, namely ‘apostates and/or blasphemers in Pakistan’.

49. The Tribunal recognises that at all times, the Applicant has maintained his Hazara ethnicity. This is supported by the statement of [Mr A], the [Position 1] of the [Community Organisation 1]. In his statement, [Mr A] confirmed that the Applicant is recognised as Hazara by his local community. That recognition arises from the Applicant’s dialect, facial appearance and his familial connections to the Afghanistan region of Jaghori.

50. It is noted by the Tribunal that the Delegate accepted that [Declarant B] is the Applicant’s biological father; and it has been recognised by the Delegate that [Declarant B] engaged Australia’s complementary protection obligations as a Hazara Shia from Quetta, Pakistan.[18]

    [18]Decision and reasons of the Immigration Assessment Authority (‘IAA’) dated 16 November 2020 relating to [Declarant B], IAA reference [detail deleted].

51. Available to the Tribunal is reliable and credible country information within the DFAT Thematic Report on Hazaras in Pakistan and Afghanistan That report provides that the Hazara are an ethnic group which are believed to have originally settled in Afghanistan’s central highlands after Mongol invasions in the 13th century. They are a mixture of eastern and western Eurasian peoples, which makes them visibly distinct from many other ethnic groups in Afghanistan and Pakistan.[19] The country information went on to provide that: 

    Hazaras are not indigenous to Pakistan, but have migrated from Afghanistan over the last century. Although a number of families can trace their origins back to the first Hazara arrivals in the late 19th century, the majority of the community arrived in two waves, the first during the Soviet occupation of Afghanistan from 1979, and the next in 1996 following the Taliban takeover in Afghanistan. They initially stayed in mosques in Quetta, and then moved to homes with the help of Hazaras already living in Balochistan. These local networks allowed the Afghan Hazara refugees to bypass refugee camps and better integrate into local communities. Hazaras from Afghanistan have continued to arrive in Quetta and have also relocated to other urban areas in Pakistan.[20]

    As of 2015, there are estimated to be between 600,000 and 900,000 Hazaras living in Pakistan, which is less than one per cent of the population. Most live in and around the city of Quetta in Balochistan Province. There are also small Hazara communities in the Kurram Agency of Pakistan’s Federally-Administered Tribal Areas and in large urban areas, including in Karachi, Lahore, Multan, Islamabad and Peshawar.[21]

    Approximately 95 per cent of Pakistan’s population identify as Muslim. Sunnis represent approximately 75 per cent of the population and Shias 20 per cent. Other minorities, including Christians, Hindus and Ahmadis constitute the remaining five per cent of the population. Hazaras are overwhelmingly Shia Muslims, with a small Sunni minority[22] and are the only ethnic group in Pakistan that is majority Shia. Although they are generally free to practice their religion, DFAT assesses that the greatest threat for Hazara Shias in Pakistan is in the form of targeting by militants or, at times, sectarian clashes in the community[23]

    DFAT assesses that the health system in Pakistan is generally constrained by a lack of funding. The geographic constraints of providing services in Balochistan limit the quality of health care available to all, including Hazara communities there. Hazaras in Quetta have access to medical facilities, generally provided from within their own communities.[24]

    There is a high level of generalised violence in Balochistan and a low level of general law and order. Hazaras have been subject to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups.[25] There have been frequent attacks against the Hazara community in Balochistan. Most attacks on Shias in Balochistan have been against the Hazara community and Hazaras have been subject to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups.[26] For example, on 17 February 2013, at least 86 people, mostly Hazaras, were killed when a bomb exploded in a vegetable market in Quetta. A series of bombings in January 2013 targeted Hazaras in Quetta and claimed more than 90 lives. Responsibility for both these attacks was claimed by the anti-Shia LeJ. As a result of these attacks, Hazaras have retreated into the two predominantly Hazara enclaves in Quetta where they enjoy a greater degree of security.[27] 

    [19]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 3, paragraph 2.1.

    [20]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 5, paragraph 2.19.

    [21]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 4, paragraph 2.9.

    [22]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 3, paragraph 2.1.

    [23]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 6, paragraphs 3.5 to 3.7.

    [24]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 9, paragraph 3.29.

    [25]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 5, paragraph 2.19.

    [26]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, page 5, paragraph 2.19.

    [27]The DFAT Thematic Report, Hazaras in Afghanistan and Pakistan, 24 March 2014, pages 13 to 14, paragraphs 4.17 to 4.19.

1. Other reliable and credible country information published by the Unites States of America Department of State 2022 Human Rights Report on Pakistan (‘US report’) provides that sectarian militants continued to target members of the Hazara ethnic minority, who are largely Shia Muslim, in Quetta, Balochistan. The report continued on to outline that:

   Hazaras also continued to face discrimination and threats of violence. According to media and other reports, security concerns prevented Hazaras from moving freely outside of Quetta’s two Hazara-populated enclaves. Community members complained increased security measures had turned their neighbourhoods into ghettos, resulting in economic exploitation. Consumer goods in those enclaves were available only at inflated prices, and Hazaras reported an inability to find employment or pursue higher education. Hazara observers reported increased surveillance by authorities due to the arrival of Hazaras from Afghanistan following the August 2021 Taliban takeover of Kabul. Community members also alleged government agencies discriminated against Hazaras in issuing identification cards and passports. Authorities provided enhanced security for Shia religious processions but confined public observances to the Hazara enclaves.[28]

   [28]United States of America Department of State, Pakistan 2022 Human Rights Report, pages 53 to 53.

2. The DFAT Country Information Report (‘DFAT report’) provides that militant groups including, LeJ and IS consider the Hazaras ‘infidels’ who are ‘worthy of killing’. Quoting a 2019 report undertaken by the National Centre for Human Rights, 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.[29]

   [29]The DFAT Country Information Report, Pakistan, 25 January 2022, page 18, paragraph 3.5.

3. The DFAT report further provides that:

   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.

   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.

   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.

   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.

   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.[30]

   [30]The DFAT Country Information Report, Pakistan, 25 January 2022, page 19, paragraphs 3.7 and 3.9 to 3.12.

4. When careful assessment and consideration is applied to the country information and weighed against the Applicant’s evidence and submissions, The Tribunal accepts that there is a potential for him to be exposed to a risk of harm because of his ethnicity if he returned to Pakistan. The country information clarifies that Hazara people face a moderate risk of societal discrimination, there are reports of high rates of unemployment, and Hazara people have been targeted for attack by militant groups, and those groups have the intent and capacity to attack Hazaras throughout Pakistan. On that basis, the Tribunal finds that there exists a significant risk that the Applicant would suffer harm for reasons of his ethnicity if he returned to Pakistan.

5. In respect to his claim that he no longer practices religion and this exposes him to a risk if he returned to Pakistan, the Tribunal has carefully considered the Applicant’s claim that he fears returning to Pakistan because he is now a non-religious person who has abandoned Islam, and there is a potential for him to considered within Pakistan as a ‘blasphemer’. Within his evidence to the Tribunal, the Applicant outlined that he does not follow or agree with any organised religion, including Islam. He also claims that he is aware of the negative things that come from the Islamic religion and he will never return to Islam. The Tribunal accepts his evidence on that issue.

6. It was also the Applicant’s evidence that if he returned to Pakistan and he did not have a religion, he would be targeted as an infidel or blasphemer. He will be easily recognised a s ‘non-believer’ within Pakistan as he would not be attending a mosque, religious celebrations or pray sessions. This will expose him because within Pakistan, there is a very extreme attitude towards religion.

7. The country information available to the Tribunal support the Applicant’s argument on this point. The DFAT report provides:

   Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of  sectarian attacks decreased from 2013-20, in line with an overall improvement in the security  situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies.[31]

   [31]The DFAT Country Information Report, Pakistan, 22 January 2022, page 22, paragraph 3.31.

8. The United States of America Department of State 2022 Human Rights Report on Pakistan (‘US State Department report’) provides that significant human rights issues included credible reports of unlawful or arbitrary killings, including extrajudicial killings by the government or its agents; forced  disappearance by the government or its agents; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government or its agents; harsh and life-threatening prison conditions; arbitrary detention; political prisoners; transnational repression against individuals in another country; arbitrary or unlawful interference with privacy; serious restrictions on free expression and media, including violence against journalists, unjustified arrests and disappearances of journalists, censorship, and criminal defamation laws, and laws against blasphemy.[32]

   [32]United States of America Department of State, Pakistan, 2022 Human Rights Report, pages1 and 2.

9. The US State Department report went on to provide that civil society organizations reported prison officials frequently subjected prisoners accused of blasphemy to poor prison conditions. Non-governmental organizations reported many individuals accused of blasphemy remained in solitary confinement for extended periods, sometimes for more than a year. The government asserted this treatment was for the individual’s safety, in view of the likelihood that prisoners accused of blasphemy would face threats from the general prison population.[33] Civil society organizations reported judges were reluctant to exonerate individuals accused of blasphemy, fearing vigilante violence[34] and authorities sometimes denied bail in blasphemy cases because defendants who faced the death penalty if convicted were likely to flee or were at risk from public vigilantism. Officials often simultaneously charged defendants facing lower-order blasphemy charges with terrorism offenses, which are nonbailable. NGOs also reported that lawyers representing individuals accused of blasphemy often asked that their clients remain in pretrial custody to protect them from vigilante violence.[35]

   [33]United States of America Department of State, Pakistan, 2022 Human Rights Report, page 7.

   [34]United States of America Department of State, Pakistan, 2022 Human Rights Report, page 12.

   [35]United States of America Department of State, Pakistan, 2022 Human Rights Report, page 10.

100.   The Tribunal has given careful consideration to the Applicant’s claim in respect to him enouncing Islam and now being a religious non-believer. The Tribunal accepts his evidence that he no longer practices religion, and finds that should the Applicant return to Pakistan as a religious non-believer, there is a substantial risk of harm to him.   

101.   In respect to the Applicant’s mental health, it was [Psychologist A’s] assessment that because of the Applicant’s past traumas he experienced in Afghanistan, the Applicant suffered from Post Traumatic Stress Disorder (‘PTSD’). [Psychologist A] opined that because the Applicant had experienced, and still suffers from the PTSD condition, if he was forced to return to Pakistan, it is likely that he will experience a recurrence and an intensification of trauma-related symptoms and a deterioration of his mental state.

102.   When assessing that opinion and balancing that against the serious risk of persecution as discussed above in respect to his ethnicity and religious claims, the Tribunal is mindful of possibility of that risk occurring.

103.   [Psychologist A] explained to the Tribunal that during the time the Applicant has resided in Australia, the Applicant has adopted avoidance strategies to combat his PTSD. Although those strategies were varied, one such strategy was him resorting to an excess use of alcohol. However, as demonstrated in the Applicant’s evidence to the Tribunal, that issue relating to excessive alcohol consumption is no longer a factor and the Applicant’s mental health is stable.

104.   Notwithstanding that, [Psychologist A] stressed that should the Applicant be forced to return to Pakistan, that stability would not be sustainable if he was to be exposed to a trauma related environment such as Pakistan. This would have grave consequences for him and  there is an increase in the likelihood of a recurrence of PTSD symptoms.

105.   It was [Psychologist A’s] opinion that if the Applicant was to remain in Australia, his prognosis is good. That opinion is based on the Applicant not reporting that he had experiencing any mental health symptoms since 2020. The Tribunal accepts and acknowledges that should symptoms return while he is in Australia, he can easily engage with the appropriate support services and access the appropriate support.

106.   The Tribunal has applied a significant amount of consideration to the Applicant’s mental health and whether there is a risk that this would be impacted upon by any return of the Applicant to Pakistan. It is known that in Australia support services are readily available to assess, monitor, treat and rehabilitate people who experience mental health difficulties[; that is not the case in Pakistan as shown within the DFAT report:

Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated.[36]

[36]The DFAT Country Information Report, Pakistan, 22 January 2022, page 10, paragraph 2.14.

107.   The Tribunal has carefully considered the evidence of [Psychologist A] and finds that based on his opinion and assessment of the Applicant, the Tribunal accepts and finds that the Applicant suffers PTSD, and that is attributable to the trauma experiences he was subjected to during his employment as an [occupation 2] in Afghanistan with the US Military.

108.   The Tribunal also finds that when considering the country information, should the Applicant return to Pakistan then his mental health will be adversely impacted and he would not receive adequate treatment for that condition. 

109.   Having regard to the issues already identified in respect to country information as it applied to the claims made by the Applicant in respect to ethnicity, being a religious non-believer and his mental health, the Tribunal places significant weight on this factor against cancellation.

·Any other relevant matters (including the degree of hardship that may be caused to the Applicant and any family members).

110. Careful consideration has been given to the Applicant’s circumstances and the non-compliance with the provisions of the Act and the Tribunal views his provision of that incorrect information very seriously. He has accepted that he provided incorrect information and the Tribunal particularly notes his co-operation with the Department in respect to this matter.

111.   The Tribunal finds that factor to be in the Applicant’s favour.

Conclusion

112.   In assessing the factors in this matter, it is the Tribunal’s task to carefully weigh up all of the circumstances and relevant considerations.  In doing that, the Tribunal has individually and cumulatively considered all of the material before it. In its consideration, the Tribunal finds that there are very limited grounds for cancellation with other significant factors weighing heavily against cancellation. 

113. Notwithstanding the Tribunal has decided that there was non-compliance by the Applicant in the way described in the notice given under section 107 of the Act, when regard is given to all the other relevant circumstances, the Tribunal concludes that the Applicant’s visa should not be cancelled.

DECISION

114.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 866 (Protection) visa.

Wayne Pennell

Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

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

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.