Bakhsh (Migration)

[2021] AATA 2981

Bakhsh (Migration) [2021] AATA 2981 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arif Hussein Bakhsh

CASE NUMBER:  1820962

HOME AFFAIRS REFERENCE(S):          05051762 BCC2012/1097027 CLF2014/93678 CLF2016/38840

MEMBER:Denis Dragovic

DATE:29 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

Statement made on 29 June 2021 at 11:39am

CATCHWORDS
MIGRATION – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – Federal Circuit Court remittal – incorrect information given in visa application and failure to notify of changed circumstances – member of family unit – dependent child of primary applicant mother – applicant’s child born after application approved and before arriving in Australia – short, secret relationship with young woman in shared accommodation – woman died in childbirth and child now in care of relative – marriage and partner visa application by that relative – discretion to cancel visa – birth of child does not necessarily establish relevant relationship, or that applicant was not dependant on primary applicant – non-refoulement – Afghani Hazara Shia living in Pakistan with no immediate family in Afghanistan – decision under review set aside

LEGISLATION  
Migration Act 1958 (Cth), ss 5CB, 104, 107, 109, 375A
Migration Regulations 1994 (Cth), rr 1.03, 1.05A, 2.41

CASES
Goundar v MIBP [2016] FCA 1203
MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235

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 Immigration and Border Protection to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a 34-year-old Afghan man who migrated to Australia in 2008 on an XB202 Special Humanitarian (dependant) visa. The applicant had applied as a member of the immediate family of his mother, the primary visa applicant, as a dependent.

3. Subsequent evidence emerged that the applicant had a child born after the visa application was approved but before being immigration cleared in Australia. The existence of the child suggested to the delegate, according to the notice of cancellation, that the applicant may have been in a spousal relationship at the time. This, the delegate, emphasized would have led to questions over whether the applicant remained a ‘dependent child’ and in turn whether he would have been granted the visa had the information been available.

4. On this basis the delegate cancelled the visa. The issue in the present case is whether the ground for cancellation as particularised in the notice of intention to consider cancellation is made out, and if so, whether the visa should be cancelled.

5. The matter is before the Tribunal because of a Court order. A delegate had issued a certificate pursuant to s 375A of the Act. The documents that were the subject of the certificate included information which addressed material claims made by the applicant. The Court found that the previously constituted Tribunal had failed to give the applicant an opportunity to give evidence and present arguments in respect of the information.

6. The applicant appeared before the Tribunal on 12 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and father. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

10. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Did the notice comply with the requirements in s.107?

11. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

    Background

13. In the application submitted to the department for the offshore XB202 Special Humanitarian visa, which was completed on 26 December 2005 and approved on 26 June 2008, the applicant had claimed to be a dependent of the XB202 primary applicant, his mother, who had moved to Pakistan from Afghanistan in May 2004. At no stage during the application process did the applicant declare that he was the father of a child or in a relationship. Specifically, the box ‘Never married’ was ticked.

14. Subsequently, following the applicant’s arrival to Australia, information was provided to the Department through the process of two s.c.309 partner visa applications submitted by the applicant, as the sponsor, for a woman he claimed was his wife, Ms Sharifa, and a child born on the 11 November 2008. It is claimed that he married Ms Sharifa on the 8 April 2010 in Quetta, Pakistan. In the first partner application, dated April 2011, it was claimed that the child was Ms Sharifa’s but not his.

15. In subsequent correspondence and in the second application, dated July 2012, this evidence changed to acknowledge that the child was the applicant’s and of another woman, Ms Zubaida, who it was claimed had died during childbirth. DNA testing confirmed that the applicant is the biological father of the child.

16. The notice of intention to consider cancellation (NOICC) dated 22 August 2014 identified the particulars of possible non-compliance as being non-compliance as outlined in s.104(1) and (3) which reads:

    Changes in circumstances to be notified

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

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

17. Specifically, the NOICC identifies the grounds for cancellation as being:

    There may be grounds for cancellation of your subclass XB202 Special Humanitarian (dependant) visa under section 109 of the Migration Act 1958 (‘the Act’) because:

    You did not notify the Department of your relationship with Zubaida before your visa was granted on 26^th June 2008 nor before your initial arrival in Australia on 17^th February 2009, and

    You did not notify the Department of the birth of your child, Master Haidar Bakhsh born on 11^th November 2008, after your subclass 202 visa was granted and before you initially arrived in Australia on 17^th February 2009.

18. In an undated statement by the applicant submitted during the process of his second application for a partner visa he explained the circumstances pertaining to his learning of the birth of the child, in particular, as is outlined below, that he learned of the existence of his son only once he was living in Australia:

    Before I came to Australia, I had a relationship with Zubaida and we loved each other but her father didn't want our relationship and always disagreed. I was also scared to tell my family about her because I didn't know what will happen if I tell them and what they will say or react.

    Before coming to Australia, I didn't see her for many months, I didn't hear from her as well and I wanted to see her before I came to Australia, but I couldn't find where she was so I came to Australia without seeing her and I was very worried. I thought she might have killed herself or something might have happened to her or maybe her father had forced her to marry someone else

    I came to Australia on the 17th February 2009 and decided that once I'm settled I will go back, find her and marry her because we had a relationship and I knew that she couldn't marry anyone else because she had crossed the limits of her culture by having intimate relationships with me.

    In my culture, bad words spread like fire and that is how this news spread about Zubaida.

    My father received a call from Pakistan one day and his friend told him that there is news that I have a son in Pakistan who was born in November 2008. My father was very angry and said to his friend that he is lying.

    When I came home that day my father asked me if I knew Zubaida and what was our relationship. I said to him that we liked each other and didn't say at what levels our relationship had gone.

    Then my father screamed at me and said that I have son from her and asked me if it's a lie or truth and I knew that it can't be a lie and it is a fact. My father told me that Zubaida died during child birth and her family is looking after our son (Haider) and only looked after him for a couple of months.

    After that my father and I decided that Sharifa (she is a cousin of my mother) will be able to look after Haider and when we spoke to Sharifa, she agreed with open heart to look after him. She agreed because she had a troubled life as well.

    Sharifa was previously married and her husband died in a car accident and from that relationship she didn't have a child and she wanted a distraction in her life and also someone who she can care for.

    Because Sharifa was like a mother to Haider and we started talking to each other on the phone a lot because of Haider, we started liking each other and decided to marry each other.

    We got married on the 8th April 2010 in Quetta, Pakistan.

    Sharifa and I had known each other for many years-since childhood as we were close family members.

19. This document was available to the Tribunal through the Department’s cancellation file. At the Tribunal hearing the applicant provided a different narration, acknowledging that he knew of the pregnancy before he left Pakistan and claimed that the statement he had submitted, reproduced in the above paragraph, in which he had claimed that he did not know of his son’s birth until he arrived to Australia, was incorrect. Finding which claim is correct is relevant to this case.

20. As such it is important to first understand how the applicant met Zubaida and the environment within which he was living while in Pakistan. The applicant lived in a room together with his family in a house with 4 or 5 bedrooms filled with other refugee families. Each family occupied one room but used shared facilities. The applicant’s family did not know Zubaida’s family before they found themselves living in the same house. The applicant’s family first moved into the house in 2007 or 2008. He said that the relationship developed as he got to know Zubaida. He said that it was around the beginning of 2008 that he expressed affection to her and at around the same time they started to have a secret relationship that involved sexual intercourse. They would spend time together only when members of both families were out of the house.  

21. The applicant explained that he found out about the pregnancy when Zubaida was about 6 or 7 months pregnant which was approximately August or September 2008. He claimed that he had not known that she was pregnant before that point. I queried this claim, but he explained that they were living separately and that not long after their sexual relationship started, she was no longer willing to continue to have sexual relations with him.

22. The applicant claimed that he wanted to marry her. He claimed that he told his mother about the pregnancy and his intention to marry her and together they approached the father of Zubaida. He said that the father did not want Zubaida to marry him and said that it was not a part of their culture to have sexual relations before marriage. He said that the father threatened him, he claimed that Zubaida’s father wanted to kill him, he was angry at the applicant and his family. The applicant claimed that not long after they had approached Zubaida’s family for approval to be married they moved out of their then home for fear of the threats that were being made and the knowledge of the pregnancy and negative reactions by the landlord and others in the house.

23. I questioned his claim that no action had been taken against him or Zubaida by the family despite the applicant telling the Tribunal that their culture dictates that the woman is stoned, and the male is killed. He suggested that because Zubaida’s family were refugees living in a foreign country without knowing other community members they could not follow through with their cultural customs.

24. I put to the applicant the discrepancy in his claims, namely on the one hand, he had claimed in a written statement that he had not known about the pregnancy until he had arrived to Australia and at the hearing he had claimed that he had known about it prior to arriving to Australia. He responded that the narration described in the written statement was incorrect and that it was compiled independently by his prior migration agent drawing on previous documentation and from what the applicant had told him but that it was not accurate. The applicant claimed that he had provided oral evidence at the previous Tribunal hearing (differently constituted) which aligns with what he said at this hearing and not with the written statement. This was confirmed in a review of the audio from that hearing.

25. I questioned the documentary evidence provided by the applicant of Zubaida’s death. A certificate had been provided from the graveyard where Zubaida was buried but there was no paperwork from the hospital where she had died. The applicant said that illegal refugees in Pakistan have no value and that thousands die every day. He said that he had asked for documents at the hospital, but they said that they didn’t provide them.

26. The applicant explained how he obtained the burial certificate. He said that the graveyard is privately owned by a Hazara and so they provide certificates. He explained that he asked a friend to approach her father to get the certificate for him. He claimed that he provided a substantial amount of money to him to obtain the certificate. I questioned why the father who wanted to have the applicant killed would help him by obtaining the certificate. The applicant claimed that the father needed the money. I asked why he had spent money trying to obtain a burial certificate while he was still in Pakistan. He inferred that it was for sentimental reasons for his son so that when he grows up and shows interest in his mother he would have some knowledge of her. 

27. The non-compliance identified in the NOICC was that the applicant had failed to notify the Department of the relationship and secondly of the birth of his son. To consider this there is a need to arrive at a finding of fact, namely, the nature of the applicant’s relationship, if it was at all a relationship, during the period following the grant of the visa and prior to being immigration cleared.

28. I first turn my mind to consider the plausibility of pre-marital sex in Pakistan and in particular, whether the applicant could have impregnated a woman that he was not married to. This is because the delegate particularised the existence of a publicly known and legitimate relationship upon the basis of there being a child. Specifically, the delegate wrote in the NOICC, somewhat bizarrely:

    It is extremely unlikely that you and the mother would have had a clandestine relationship because of the very strict moral code of the community from which they have come and when she became pregnant this would have raised further concerns. For this reason, I believe you had been in a spouse relationship with the mother.

29. It is true that in Afghanistan there is a very strict moral code with the consequences of pre-marital sex for woman being severe:

    it is still customary in some areas of the country for in-laws to check for blood stains the morning after a wedding as proof of the bride's virginity.

    Even being accused of having sex outside marriage can have dire consequences. Disgraced families have been known to demand that their "damaged" daughter-in-law be exchanged for her sister. Nonvirgins can be imprisoned in Afghanistan for adultery. And there are horrific tales of abuse, or worse.

    "In some cases, a bride's ears and nose are cut off," says the Afghan woman. "They are forced into dirty clothes and taken back to her parent’s home. Their heads are shaved. The bride's family is told that she is not a virgin. Other times, a bride is simply killed and her body is returned to her parents."[1]

    [1] Virginity Or Death For Afghan Brides, Radio Free Europe, 6 December 2015,  >

    But it comes as no surprise that in researching this question there is no society on Earth whose moral norms translate into exacting practice. Despite pre-marital sex being illegal[2] and a breach of Sharia law (zina) in Pakistan, there is considerable anecdotal and quantitative evidence that indicates that it occurs and more so, at a relatively high rate.

    A boy aged 16-17 may feel a sense of embarrassment if he has not had sex by that age. Whereas a woman who is not allowed to think this way may still be a target for a sexual relationship… Saima, a Lahore student, says: “There are many young Pakistani people engaging in relationships and have sex too. But without keeping it as a major secret, those doing it would never survive in a country like Pakistan. Many girls who are in all women colleges are known to ‘experiment’ amongst themselves too. Labelling it as a bit of ‘masti’ or ‘fun’. Peer pressure, elite classes, curiosity and those who know they just can, especially men, are the most common doing it.”[3]

    [2] Pakistani Penal Code (Act XLV of 1860) under section 496-B, pre-marital sex is punishable by imprisonment of up to five years.

    [3] ‘How ‘Normalised’ is Sex before Marriage in Pakistan’, Desiblits, >

    I acknowledge that this information and other sources suggest pre-marital sex is more common among elites and that the applicant and his then sexual partner are not a part of the elite.[4]

    [4] Sex Before Marriage: A Real Pakistani Woman’s Experience’ Desiblitz, >

    But the evidence of pre-marital sex appears to cross class boundaries. An academic research paper looked at the question by surveying 2,400 Pakistani men. It found that approximately 30% reported having non-marital sex in their lifetime and for about 15% it occurred in the last twelve months.[5] I was unable to find research on rates of pre-marital sex in Afghanistan but due to the cultural similarities, particularly for the poor and considering that they were living in Pakistan, I find that the two would not differ substantially and are suitable proxies for the circumstances in which the applicant and his then sexual partner found themselves in.

    [5] Mir et. al. ‘Exploring urban male non-marital sexual behaviours in Pakistan’ in Reproductive Health, 2013, Volume 10, Issue 22.

1. It is apparent from this information that while the legal code and religious law strongly punishes pre-marital sex, it does occur. It occurs for both men and women. As such I find that country information suggests that it is plausible that the applicant and Zubaida did have pre-marital sex without being in some sort of marriage or customary relationship.

2. I now turn to the credibility of the applicant and his claims. In considering these issues collectively, on a balance of probabilities, the applicant’s claims of events occurring are concerning. I question whether the hospital where Zubaida died would not provide any paperwork or that the applicant chose to spend money on obtaining a burial certificate for sentimental reasons. But the test is not a balance of probabilities. The correct approach in a cancellation decision, where the impact could be a severe degradation of the quality of life if not death of the applicant taking into consideration the circumstances he would be returning to, requires a higher threshold to be met. The courts require decision makers to reach a real state of satisfaction on consideration of the available material.[6]

   [6] Zhao v MIMA [2000] FCA 1235 at [25] and [32].

3. I can not reach a real state of satisfaction that the applicant’s claims are untrue. As such I accept that the applicant was in a relationship of the type he described at the hearing and that the mother of his child passed away during pregnancy. I accept that the applicant only found out about Zubaida’s pregnancy when she was in her final trimester and this occurred while the applicant was still in Pakistan.

   Considerations of whether there are grounds for cancellation

4. It is relevant to engage with the delegate’s reasoning for cancelling the visa in an effort to clarify the issue at hand. The delegate explains in the notice of cancellation:

   The information held by the Department therefore indicates that Mr BAKHSH failed to notify the Department of his relationship with Zubaida and of the birth of his son, Haidar BAKHSH before his initial arrival in Australia on 17th February 2009. His relationship with Zubaida and the birth of his son were material changes in his circumstances which Mr BAKHSH should have notified to DIBP as per his signed Declaration at question 83 on page 26 of his mother's DIBP Form M842 Application for an Offshore Humanitarian visa. These changes were material changes in his circumstances because they meant that he was no longer dependent child of his mother.

   As a delegate of the Minister for Immigration and Border Protection, I therefore consider that Mr Bakhsh did not comply with section 104(1) and 104(3) of the Act because he did not notify DIBP of his relationship with Zubaida nor of the birth of his son (Haidar Bakhsh born on 11 November 2008) before he initially arrived in Australia on 17 February 2009.

5. As per the underlined passage in the above paragraph, the delegate focused their attention on ‘question’ 83 on page 26 of the mother’s application form which was signed by the applicant and reads:

   I undertake to inform the Australian Government of any material changes to my personal circumstances while my application is being considered, or before I am immigration cleared. (Note: your visa may be cancelled and you could be removed if you do not advise of changes in circumstances).

6. The problem is that the visa was cancelled via s.104 which reads: ‘If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances...’ The key in this section of the Act is that the change is to an answer to a question on the application form or an answer under the section. Instead of focusing on a question on the application form, the delegate focused on the undertaking on page 26 and its reference to ‘material changes’.

7. Importantly, an undertaking is not a question. Section 104 does not refer to undertakings. Although the form itself explicitly refers to a risk of cancellation of a visa this power does not arise simply because words were written on a form. The power to cancel a visa arises from the Migration Act and in this case, based upon the notice of intention to consider cancelation provided to the applicant under section 109. And in any case, the materiality of the non-compliance is considered at the second stage of the process of considering whether to cancel a visa.

8. The relevant question that the delegate should have asked is whether the applicant’s circumstances ‘change so that an answer to a question…is incorrect’ as was correctly detailed in the NOICC.

9. The actual questions that are relevant to the issues particularised on the NOICC are two-fold, firstly, those relating to the applicant’s relationship status and secondly relating to whether he had a child. Regarding his relationship status, the relevant questions include question 3 of form 842 which asks the marital status of the son of the primary applicant. In this case the applicant wrote ‘N’. There is a legend at the bottom of the form which provides codes for this question. The options are:

   N = Never married

   M = Married

   E = Engaged to be married

   S = Separated

   F = In a de facto or common law marriage

   D = Divorced

   W = Widowed

10. Question 8 of form 842 asks the same question but in a different manner, ‘Have any people included in this application previously been married or in a de facto/common law or customary marriage’. The application had the ‘no’ box ticked.

11. Question 7 of form 80 asks, ‘What is your current marital status?’ The options are never married, married, engaged to be married, widowed, divorced, temporarily separated, ‘permanently and legally separated’ and living in a de facto marriage. The box with ‘no’ was ticked. This remains to be true under the evidence accepted by this Tribunal.

12. Based upon the scope of these questions and the answers given by the applicant I find that the applicant did not provide incorrect information. The applicant explained at the hearing the details of his relationship which I accepted. In summary, they are of a man who was consorting with a woman in secret with the hope that he would be able to marry her. Hope, though, in the cultural context of Pakistan and Afghanistan is not enough to form a relationship. The approval of the girl’s father is required to establish it as a formal relationship or some form of official or customary process and, in this case, approval from the father was denied and there was no process. The applicant did not then elope and establish an illicit relationship but rather moved to a new house away from the girl. The sexual intimacy of the relationship had already ended months before.

13. Had the applicant sought to notify the Department of his changed circumstances, which it is agreed he had not, and had he sought to identify a question on the form that would be incorrect such that he could correct it, he would not have been able to identify one. He was certainly not married nor engaged to be married. He wasn’t separated as the state of his relationship had not changed. It is not that at some stage he was in a relationship, but circumstances required him to separate. He wasn’t in a de facto relationship as could be defined in the context of his cultural setting as no such thing exists in Pakistan nor would his circumstances have met the definition of a de facto relationship in the Migration Act under s.5CB(2). Although they were living in proximity of each other for some months, they were not living ‘together’. The applicant is not divorced. Had the applicant been married at some prior stage he would be widowed as the woman he was in a relationship had died, but he was never in a married or de facto relationship. As a result, the applicant had initially marked question 3 with an ‘N’ and that answer remained correct despite having a short-lived sexual relationship with a woman that led to the birth of a child. This reasoning applies equally to answers to question 8 on Form 842 and question 7 on form 80.

14. As for the issue of having a child. Question 9 of form 842 asks, ‘Do any people included in this application have children from a previous marriage/relationship including customary marriage?’ The answer in this case is not in dispute. The applicant did have a child and the child was born between the date of the application being made and before being immigration cleared. The applicant knew of this at the time. As such the applicant should have notified the Department of the changed circumstances but did not.

15. As such I am satisfied that there was non-compliance with s.104(1) by the applicant in the way described in the notice given under s.107 of the Act.

    Should the visa be cancelled?

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

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    The correct information

19. The correct information as noted above is that the applicant has a child whose biological mother has died and is currently cared for in Afghanistan by a relative who subsequently became the applicant’s wife.

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

20. As to whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information I note that regardless of whether the applicant had a child he would still be ‘dependent’ upon the primary applicant of the XB202 visa. Under the heading ‘Particulars of the possible non-compliance’ the NOICC outlines the law regarding member of the immediate family as including dependent child and the definition of a dependent child as being defined in r.1.03. The key statement of the NOICC copied in this decision at [47] begins by referring back to this definition of a dependent child and states, ‘DIBP would have cancelled your subclass 202 secondary visa because DIBP would no longer have considered you to be a dependent child of your mother.’ This is not correct.

21. Regulation 1.03 defines ‘dependent child’ as:

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)  has not turned 18; or

    (b)  has turned 18 and:

    (i)  is dependent on that person;

    Dependent in the case of a class XB visa has the meaning given in r.1.05A, namely, ‘A person (the first person) is dependent on another person for the purposes of an application…if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.’

22. The applicant was found to be dependent upon his mother within the meaning of r.1.05A. That the applicant had a child whose mother had died, but all other aspects of his life remained the same does not change the finding that the applicant was dependent upon his mother prior to being immigration cleared.

23. As such I find that the decision was not granted wholly or partly on the incorrect information. For this reason, I give substantial weight against cancelling the visa.

    The circumstances in which the non-compliance occurred

24. The applicant described the circumstances in which the non-compliance occurred, namely as described above, that he did not update the Department of the birth of his son. He said that he was under a lot of stress and pressure when Zubaida died. When I asked him how it was that he did not consider adding his newly born son to his application he said that he didn’t know that it was possible to include him. He said that he didn’t consider asking if it was possible.

25. I asked the visa applicant’s mother who was the primary applicant on the visa whether she thought about going to the Australian Embassy in Islamabad where they had submitted their XB202 application to ask if they could bring Haider. She said that she couldn’t go herself and that she had not asked her son to go to the Embassy to ask. She said that they didn’t know that they needed to ask or could go there.

26. I note that the applicant did not speak English in 2009 and as such could not read or research information about the immigration process. Nevertheless, the applicant and his mother had the ability to navigate the process for applying for an off-shore XB202 visa albeit with the assistance of the applicant’s father in Australia. Considering that they had such a level of understanding and access to assistance I do not accept that they did not know how to find out whether the applicant could bring his son with them. Instead, I find that the applicant and the family intentionally chose not to raise the matter with the government for fear of having the applicant’s visa revoked. For this reason, I give substantial weight in favour of cancelling the applicant’s visa.  

    The present circumstances of the visa holder

27. The applicant purchased a restaurant together with two other business partners at the age of 24.  He was forced to sell the business when his visa was cancelled. During the time that he owned the restaurant he paid taxes and earned a living. He used that money to support his parents in Australia as well as his wife and child in Pakistan. Was the applicant to be deprived of this income and returned to Afghanistan the applicant would be unable to continue to provide this support. While this will have an impact on his family members there is no reason to believe that he would be unable to find employment and support his wife and child either in Afghanistan or was he to choose to return to Pakistan. The applicant’s father is an Australian citizen and the remainder of the family have permanent visas which come with work rights and access to social services. As the Australian family have support mechanisms and the Pakistan based family can be supported by the applicant from Afghanistan or Pakistan, I give this little weight against cancelling the applicant’s visa.

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

28. The applicant provided to the Department incorrect information which intended to cover up the circumstances surrounding his learning of Zudabia having a child. He claimed in an undated written statement:

    2. Before coming to Australia, I didn't see her for many months, I didn't hear from her as well and I wanted to see her before I came to Australia, but I couldn't find where she was so I came to Australia without seeing her and I was very worried. I thought she might have killed herself or something might have happened to her or maybe her father had forced her to marry someone else

    3. I came to Australia on the 17th February 2009 and decided that once I'm settled I will go back, find her and marry her because we had a relationship and I knew that she couldn't marry anyone else because she had crossed the limits of her culture by having intimate relationships with me

    4. In my culture, bad words spread like fire and that is how this news spread about Zubaida

    5. My father received a call from Pakistan one day and his friend told him that there is news that I have a son in Pakistan who was born in November 2008. My father was very angry and said his friend that he is lying

    6. When I came home that day my father asked me if I knew Zubaida and what was our relationship. I said to him that we liked each other and didn't say at what levels our relationship had gone

    7. Then my father screamed at me and said that I have son from her and asked me if it's a lie or truth and I knew that it can't be a lie and it is a fact. My father told me that Zubaida died during child birth and her family is looking after our son (Haider) and only looked after him for a couple of months

    8. After that my father and I decided that Sharifa (she is a cousin of my mother) will be able to look after Haider

29. I put to him that there were a number of differences between what the applicant had said at the hearing and what was written. He said that the statement was incorrect. He said that a lawyer had written the statement based upon a narration of his circumstances the applicant had given to the lawyer for a previous application. The previous application the applicant was referring to is the second spousal visa application. A copy of the same statement was found in the Departmental file for that application.

30. I note that at the earlier differently constituted Tribunal hearing the applicant confirmed that he had known of his child’s birth prior to his departure for Australia. I also note that the applicant’s mother provided evidence in support of the claim that the applicant had known of the birth of the child prior to his arrival to Australia. The weight of evidence provided over the various stages of the process is in favour of the applicant knowing of the child’s birth prior to being immigration cleared. In addition, acknowledging that he knew of the birth prior to arrival is contrary to his interests and as such there would be little reason to lie. For this reason, I find that the applicant had provided incorrect information to the Department when he submitted the above quoted statement. As such the applicant has breached his obligations under Subdivision C of Division 3 of Part 2 of the Act. I give this some weight towards cancelling the applicant’s visa.

    The time that has elapsed since the non-compliance

31. The applicant arrived in Australia in 2009 at 21 years of age. He is now 33 years old. He has spent a considerable period of his life and what can be described as his entire adult life, in Australia. The cultural distance between Australia and Afghanistan is substantial. Resuming a life in Afghanistan would require the applicant to dispense with Western norms that he has adopted through his life in this country. For this reason, I give some weight against cancelling the applicant’s visa.

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

32. The Tribunal does not have evidence before it of any breaches of the law. As this is a minimum expectation, I place limited weight against cancelling the applicant’s visa.

    Any contribution made by the holder to the community

1. The applicant has contributed to the Australian community by way of being an active member in the Hazara diaspora as a member of the Hazara Australian Community Association of Victoria for 7 years. He also claimed that he contributes to his community by supporting an elderly pensioner neighbour who submitted a statement describing the efforts the applicant has taking on her behalf including taking her prescription to the pharmacy and buying the necessary medication on her behalf. For these reasons I give some weight against the cancellation of the applicant’s visa based upon the contributions the applicant has made to the community.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

2. The applicant is an Afghan Hazara. The applicant’s father was granted a protection visa and the applicant’s mother and remainder of the family were granted off-shore humanitarian visas.

3. The applicant is an Afghan citizen who was residing in Pakistan since 2004. He left Afghanistan when he was 17 years old and has not lived there since. As such the risks the applicant faces if he were to return to Afghanistan are amplified by his unfamiliarity with the country. This unfamiliarity would manifest itself in an inability to find work within the norms of society[7] and developing coping mechanisms and knowledge of how to minimise exposure to danger. Nor has the applicant immediate family members in Afghanistan to guide and support him.

   [7] Evidence provided by Prof. Maley in the applicant’s submissions to the Tribunal

4. The applicant would be entering a world that is precarious for the Hazara. The New York Times describes the background to the situation of the Hazara as being an ethnic group that ‘make up roughly 10 to 20 percent of Afghanistan's estimated 35 million people, are predominately Shiite Muslim and have been persecuted since Afghanistan's Pashtun emir targeted them for mass killings and forced removals in the late 19th century. Some were enslaved and sold.’[8] Since then there have been attacks on Hazara mosques, a wrestling club, protests and new year celebrations among others. The New York Times reported that following the decision by the United States to withdraw from Afghanistan there is a widespread fear by Hazara of the return of anti-Shia militia including the Taliban and Islamic State of Khorasan Province who have targeted the Hazara in the past.

   [8] 'Risking Death, Hazara Students Pursue Education at Bombed Academies', David Zucchino and Fahim Abed, New York Times, The, 20 March 2021, 20210322075609

5. Most recently, in March 2021 this animosity against the Hazara was re-lived when gun men targeted Shia Hazara labourers in Jalalabad killing seven.[9]

   [9] 'Afghanistan: Targeted Killings of Civilians Escalate', Human Rights Watch, 16 March 2021, 20210317072832

6. The United Nations stated in its 2020 Protection of Civilians report:

   Of serious concern is that more than 80 per cent of civilian casualties attributed to ISIL-KP were caused by attacks deliberately targeting civilians. This includes civilians at educational facilities, the Shi’a Muslim religious minority population, most of whom also belong to the Hazara ethnic group, and the Sikh religious minority population.[10]

   [10] 'Afghanistan: Protection of Civilians Report 2020', United Nations Assistance Mission in Afghanistan (UNAMA), 23 February 2021, 20210224071217

7. The Department of Foreign Affairs and Trade report dated 27 June 2019, which does not take into consideration recent developments including the US and NATO withdrawal of troops and the breakdown of peace negotiations with the Taliban, states with regards to the Hazara:

   The security situation in the Hazarajat, particularly Bamiyan province, has been considerably better than in most other parts of Afghanistan in recent years. There are a number of factors behind this: the Hazara comprise the vast majority of the population in most districts in these provinces, which means there are fewer opportunities for ethnic tension; and because the Hazara are visually distinct, non-Hazara have found it difficult to infiltrate these areas without detection. The mountainous terrain of the Hazarajat also offers a form of natural protection, with few routes for outsiders to traverse these provinces.

8. But the applicant has not lived in Afghanistan before. He would face challenges establishing himself economically and socially in Bamiyan. He would need to find a way to safely get there.

9. Was he to seek opportunities in Kabul instead, the applicant would face other challenges. DFAT notes how ‘most Afghans perceive Hazara to be active supporters of the government, which employs large numbers of Hazara (albeit at junior levels).[11] DFAT then goes on to state that as a result the Hazara face a ‘high risk of violence’ particularly from the Taliban.[12] Similarly, for being Shia DFAT assesses that the Hazara face a ‘high risk of being targeted by ISKP and other militant groups’.[13]

   [11] [3.14]

   [12] [3.16] and [3.46]

   [13] [3.16] and [3.35]

10. In addition, the applicant’s representative submitted relevant country information:

    ·Return of Hazaras to Afghanistan by Professor Maley, “On the Return of Hazaras to Afghanistan” dated 4 March 2020

    ·Afghanistan Analysts Network’s article, “Taleban Attacks on Khas Uruzgan, Jaghori and Malestan (II): Anew and violent push into Hazara areas” dated 29 November 2018;

    ·ABC News article, “Officials: Roadside bomb attack in Afghanistan kills 14” dated 25 November 2020;

    ·Reuters article, “Suicide bombing at Kabul education centre kills 24, students among the victims” dated 25 October 2020;

    ·Reuters article, “Islamic State claims responsibility for attack on Pakistan's Shi'ite Hazara minority that kills 11” dated 4 January 2021

11. Of particular importance is the report on the return of Hazaras to Afghanistan by Prof William Maley, a world leading expert on Hazaras. The report is dated 4 March 2020 and is written in a generic manner not specific to the circumstances of the applicant but nevertheless, provides an important expert opinion. The professor emphasizes that the situation is extremely fluid and that any assessment made on recent or current information may not prove accurate in the near future. He notes that a 2019 study found Afghanistan to be the least peaceful country in the world. Reflecting on the evidence as a whole he concludes that, ‘When security in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In particular, there is a long history of persecution of and discrimination against members of the Hazara Shiite minority in Afghanistan.’ In addition, Prof. Maley notes:

    From late October 2018, Taliban forces undertook coordinated attacks against Hazaras in Khas Uruzgan, Malestan and Jaghori. Many Hazara asylum seekers in western countries originate from these districts. The districts are, however, of no military significance, and the attacks make more sense as a symbolic strike designed to highlight the inability of the Afghan state effectively to protect members of a vulnerable ethnic and sectarian minority, and as punishment for the relatively tolerant and liberal lifestyle of these communities, far removed from the puritanical extremism of the Taliban.

12. Professor Maley concludes, ‘any “country information” suggesting that Hazara Shia are not at risk of persecution for reasons recognised by the 1951 Convention, or at real risk of harm if they seek to travel to places outside Kabul where their families may be located, is outdated and irrelevant…The signing of the agreement, and the withdrawal of US and allied forces for which it provides, is likely to lead to a heightened risk of instability in Afghanistan, which would add to the risks that Hazaras face.’

13. In assessing the circumstances of whether the applicant’s return to Afghanistan would breach Australia’s non-refoulment obligations I note that the general situation facing Hazara is severely challenging. Based upon a 2019 report by DFAT Bamiyan province provides a relatively safe place for Hazara. Problematically, with the withdrawal of international forces, set for September 2021, the ability of the Hazara to continue to provide stability in Bamiyan is questionable. The Taliban have in the past targeted Bamiyan. The UN Protection of Civilians report shows that the Hazara continue to be a target of anti-Shia and anti-government groups. Were these groups to attempt to extend their control of the country, which is currently balanced with the Taliban controlling 19% of districts and the government 33% and the remainder contested, then there is little reason to suspect that the Hazara in Bamiyan will be exempted. As such the relative safety of Bamiyan described in 2019 reports can no longer be assumed to be the case.

14. Alternatively, the applicant may try to live in Kabul, but this situation is equally problematic. Even in the 2019 report by DFAT the situation the Hazara are facing is described as equal in risk to those of Shia in general and those associated with the government, which in both cases amounts to a ‘high risk’.

15. The applicant’s wife, Sharifa, and his son, Haider, are claimed to have returned to Afghanistan in 2011. But due to the security situation they returned to Pakistan. I accept this claim as fact and incorporate it in assessing the nature of the circumstances into which the applicant would be returning to. While the situation would be different for a female than a male, I nevertheless give it some weight.

16. The applicant’s absence from Afghanistan since his childhood exacerbates the challenges he will face in navigating the risks of living in Afghanistan and for that reason exposes him to a greater level of risk than other Hazara. I find that the applicant faces danger from those who seek to harm Hazara, Shia and those associated with the government. I have not considered whether the level of risk rises to such an extent as it meets Australia’s protection obligations, as this is not the test.[14] The statutory protection regime is just one of several international obligations Australia has ratified. The question is whether Australia has obligations under these international agreements that would or may be breached as a result of the visa cancellation. Considering the anticipated deterioration of the security situation in Afghanistan and the already precarious situation for Hazara I find that was his visa to be cancelled there are international obligations including those pertaining to personal security (Article 9 ICCPR), protection against cruel, inhuman or degrading treatment (Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and liberty to movement (Article 12 ICCPR) that would be breached.  For this reason, I give considerable weight against cancelling the visa.

    [14] In Goundar v MIBP [2016] FCA 1203, the Court held that the Minister erred by treating non-protection visa harm as irrelevant to the discretion to cancel under s 501CA(4). The Minister did not consider the applicant’s claims of harm because the applicant could make an application for a protection visa, and in doing so erred by proceeding on the basis that the circumstances the subject of the applicant’s claims could, in their entirety, be met by the availability of a protection visa application: at [53].

17. In weighting up all of the discretionary considerations I note that the applicant has not only failed to provide updated information to the Australia government when his son Haider was born but I found that he and his family intentionally withheld the information. Subsequently, the applicant persisted with the lie by claiming to have only learned of the changed information after he had arrived to Australia. This he admitted was incorrect. That the applicant withheld information and then lied weighs heavily in favour of cancelling his visa. Was the applicant from any other country in the world and of a different ethnicity this would outweigh the reasons not to cancel the visa. But the applicant is a Hazara from Afghanistan, the country ranked the least peaceful in the world and one in which there are groups that specifically target people of the applicant’s ethnicity. It is a country that has avoided outright war only because of the presence of international troops that are now destined to leave. There are considerable reasons to believe that the withdrawal of troops will lead to civil war.

18. The applicant is of a minority ethnic group, he is identifiable as such, he only spent his childhood in Afghanistan before moving to Pakistan where he lived before coming to Australia. Without the experience of living in a particular cultural setting and knowledge of how to navigate the dangers the applicant would be particularly vulnerable. In addition to the severe risks the applicant faces was he to return to Afghanistan, I note that the information the applicant withheld from the Department ultimately would not have been a reason for the Department to refuse him a visa. In other words, had he provided the correct information he should have still received the visa. I also note that the applicant has embraced his life in Australia, starting a business and engaging with the community. When considered as a whole I find that the reasons not to cancel the visa outweigh the reasons to cancel.

19. As such, although the Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 202 (Global Special Humanitarian) visa.

    Denis Dragovic
    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.

    104Changes in circumstances to be notified

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

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

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

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

    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.