Bibi (Migration)

[2021] AATA 4135

Bibi (Migration) [2021] AATA 4135 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Farzana Bibi

CASE NUMBER:  2012949

HOME AFFAIRS REFERENCE(S):          BCC2019/1336088

MEMBER:Kira Raif

DATE:10 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2021 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – family composition – consideration of discretion – incorrect information not relevant to any visa criteria – fraud perpetrated by family members – degree of hardship – non-refoulement obligations – Shia Hazara – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 107A, 109

Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Makasa [2021] HCA 1
WKMZ v MICMSMA [2021] FCAFC 55

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted the Resident Return Subclass 155 visa in March 2019. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that  she may not have complied with s. 101 of the Act. The applicant provided her response to the NOICC and the visa was cancelled in August 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

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

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

9. For the sake of completeness, the Tribunal has formed the view that the reasoning in MIBP v Makasa [2021] HCA 1 does not prevent the present cancellation because the two cancellation decisions here, while based on similar or identical grounds, relate to different visas.

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101.

11. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in September 2008 the applicant’s brother Agha Raza made an application for the Partner visa offshore, sponsored by his partner. He initially did not indicate that his family members were migrating with him but in December 2008 Mr Raza lodged a new Form 47SP stating that his mother, five siblings and two nieces were his dependents since the death of his father, and requesting for them to be included in the application. Mr Raza stated in his application that his father was deceased. He included the applicant, Farzana Bibi, identifying her as a sister.  

12. In an interview with an Immigration officer, Mr Raza stated that he ‘forgot’ to add his siblings to the initial application. He stated that the family members were his dependents since his father Syed Nadir had been killed in Afghanistan. In April 2009 Agha Raza attended an interview and also confirmed that he worked as a taxi driver to support his siblings and that they all lived together in Pakistan.

13. On 25 May 2011 Agha Reza was granted the Subclass 309 Partner visa and at the same time the applicant was granted the visa as the delegate was satisfied she was a member of the family unit of Mr Reza and met cl. 309.321. The applicant entered Australia in June 2011 and was granted the Subclass 100 Partner visa in January 2013 as a member of the family unit of her brother.

14. The primary decision record indicates that following the grant of the visas, the Department received information that the applicant’s father Syed Nadir was also known as Syed Nadir Shah and was living in Pakistan (and was not deceased). It became known that one of the applicant’s claimed sisters is not her sister but a sister in law. It therefore appeared that the applicant provided incorrect answers in her application for the Partner visa when claiming her father to be deceased (the applicant denied incorrect information was given and claimed that her father was deceased). The applicant’s Partner visa was cancelled under s. 109 in January 2018 and that decision was affirmed by the Tribunal in October 2018.

15. There is additional information that was before the previous Tribunal which dealt with the cancellation of the applicant’s Spouse visa (on the same grounds). That information indicates that

    a.In 2013, a protection visa applicant (X) provided information about his family composition which is consistent with the family composition of Agha Raza. X had claimed on numerous occasions that Agha’s family members were aunt and cousins but later admitted otherwise. X admitted that he had organised for Agha to falsely claim deceased relatives, including the father.

    b.Agha Raza and members of his family are citizens of Pakistan, they possess Pakistani travel documents, are involved in people smuggling, have provided false documentation, and have made multiple false declarations about their nationality and family composition. There have been undeclared family members. Certain family members since 2003 have been involved in running a people smuggling business which includes arranging false travel documents and arranging movement of people from Pakistan through south-east Asia to Australia. There is information that a member of the family has received over $40,000 on two occasions in 2013, inconsistent with the claim of being unemployed.

    c.Pakistani passport records for members of the family date back to 2007 but were also obtained in 2014, 2015 and February 2017. The Pakistani authorities consider family members to be Pakistani citizens. Facial imaging assessments confirm Pakistani identity.

    d.A member of the family lodged an application for a child visa in 2015 and in support, the relative provided a Taskera which was used to obtain an Afghanistan passport from the Afghani Consulate, turned out to be a bogus document. There have been other documents provided by family members such as birth and marriage certificates which were bogus. A driver’s licence of a family member was examined and found to be fraudulent. A claimed sister turned out to be a sister-in-law. The death certificate dated 13 April 2009 provided to support the claim that the sister’s husband was deceased turned out to be a bogus document. The claimed sister declined undergoing DNA testing.

    e.Family members are involved in people smuggling and are nationals of Pakistan. Various members of the family were born in Lahore, Pakistan. The Pakistan authorities had taken action in relation to the false claims of being nationals of Afghanistan. A family member admitted that he had organised for Agha to falsely claim deceased relatives, including the father, who was living in Pakistan. A family member has been untruthful with other Australian authorities.

    f.Matter number 1517543 before the Tribunal related to a refusal of a  child visa application lodged by a person claiming to be a family member but this was not disclosed on visa applications made by other family members. In July 2016, the Tribunal in that matter concluded that the Taskera provided by the member of the family who lodged the application for a child visa in 2015 and which was used to obtain an Afghanistan passport from the Afghani Consulate, was a bogus document. On 23 September 2014, the Tribunal referred the Tazkera to the  Ministry of Interior in Afghanistan to determine authenticity. The assessment determined that the document is not registered with the authorities and that it was fraudulent.

16. This information was put to the applicant pursuant to s. 359A of the Act. In the Tribunal’s view, that information is relevant because it indicates that the applicant and / or her family members engaged in deliberate fraud in their dealings with Immigration by making false claims and providing bogus documents. In her response to the Tribunal’s letter, the applicant notes that these issues have been addressed in various other cases relating to herself and other family members and the applicant refers to the evidence provided in the related cases. The applicant provided her father’s death certificate and notes that community elders confirmed his death. The applicant also refers to the family’s circumstances as Hazara Shia from Afghanistan.

17. The delegate concluded that Agha Reza provided incorrect answers on the application when claiming that his father Syed Nadir was deceased and that his mother Aqueelia Bibi was widowed. The delegate noted that the father, known in Pakistan as Syed Nadir Shah, was alive and isused with a Pakistani passport in December 2015. The delegate also found that that Mr Reza provided incorrect information to the delegate in his interviews on 5 April and 30 April 2009 when claiming that his father was killed in an bomb explosion in Afghanistan. The delegate found that since the father was alive, the applicant would not have met the definition of being a member of the family unit as she would have been dependent on the father and not on her brother Agha Raza for financial support.

18. In her response to the NOICC the applicant states that her father was killed in 2001 and was not alive and she submitted her father’s death certificate issued in September 2018 which states that Syed Nadir died in December 2001 due to ‘illness’. The applicant submitted her brother Agha Raza’s tazkera with what she claims was the father’s true name, stating that the name appearing on the Pakistani documents was not the name of the father and at the time the tazkera was obtained some years before the Partner application was made, there was no reason for them to falsify his name. The applicant notes that the two cancellations of her brothers’ visas were set aside by the Tribunal (although it appears this was done on discretionary basis and not because the Tribunal determined there was no ground for cancellation).

19. The applicant outlines other circumstances that led to the cancellation of her brother’s visas. This includes

    ·advice received by the Department that the applicant’s brother was also known by another name and that her two brothers faced court in Pakistan for people smuggling.

    ·Since the applicant’s arrival in Australia, the Department received advice that her father and two brothers are Pakistani citizens and holders of Pakistani national identity numbers which were recorded on the Pakistani national database, indicating they were born in Lahore, Pakistan, contrary to Mr Reza’s claim that that all family members were born in Ghazni, Afghanistan.

    ·Mr Reza stated in his application that Hameeda Bibi was his sister but it was subsequently confirmed that she was the sister in law, married to his undeclared brother.

20. The applicant submits that the latter is the only true statement while the rest of the information was ‘nonsense’. She states that none of the family members were born in Pakistan but were born in Shashpar, Ghazni. The applicant states that information about Hameeda Bibi was ‘a silly mistake’ but she would have met the visa requirements anyway. The applicant suggests that the allegation of people smuggling arise because of a family dispute which was mediated by the community in Australia and the community also confirmed the family were born in Ghazni. The applicant states, with respect to the father’s death, that it was witnessed by others and she refers to the Tribunal’s decision in her brother’s case. 

21. The applicant states that she was 14 years old when the application was made, while her brother was illiterate. As the oldest male in the family, he had the responsibility for the family and took up false Pakistani papers to support the family.

22. The applicant included with her response to the NOICC the father’s death certificate and her brother Agha Raza’s tazkera which shows the father’s name as Syed Nadir. The delegate concluded that the death certificate cannot be a genuine document as the Department received information from the Pakistani authorities that Syed Nadir Shah, the applicant’s father, was issued with a Pakistani passport in 2015 and was therefore alive. The delegate concluded that the applicant’s father was known under the name of Syed Nadir Shah in Pakistan and was alive, so the claim that he died in Afghanistan in 2001 was not true. The delegate referred to country information contained in the DFAT report issued in September 2017 which indicates there is high incidence of document fraud in Afghanistan and that genuine documents can be issued on the basis of false information. The delegate did not accept the father’s death certificate and tazkera were genuine documents. The delegate concluded that the applicant gave incorrect answers on the application form when claiming in the application form and in Mr Raza’s interviews that their father Syed Nadir was deceased and that their mother was a widow.

23. The Tribunal has also had regard to the applicant’s submission to the Tribunal of 5 August 2021 and accompanying documentation which includes identity evidence for various family members.

24. The applicant told the Tribunal in oral evidence that her father died in an explosion when she was about 6 years old and other relatives told the family about his death. They held the burial ceremony. The applicant states, in relation to bogus documents, that their provision was not their fault. They applied for the documents through the embassy in Canberra or overseas and paid the fees and were issued with the documents but they could not check whether or not the documents were genuine. The applicant states that she was young at the time and was not aware of the claims that were made.

25. A significant aspect for the delegate’s findings is a determination that the applicant’s father was alive. It is not completely clear from the information on the Department’s file on what basis that finding is made, other than the claimed ‘confession’ of a relative and other unidentified and unspecified information. The applicant denies that her father is alive and claims that another person may be using his identity. Given the level of document fraud in Pakistan, as outlined in several country reports, the Tribunal considers that this may be possible. Significantly, the applicant presented several statements from members of the community who knew the family in Afghanistan and claim to be aware of their circumstances. They confirm that the applicant’s father is deceased. Given the provision of bogus documents and incorrect information in the past, that evidence is not sufficient for the Tribunal to form a positive view that the father is deceased. However, it is not necessary to do so here, given that the ‘onus’ is on the decision-maker to determine that there are grounds for cancelling the visa and the Tribunal has formed the view that there is insufficient probative evidence to make a positive finding that the applicant’s father is alive. The Tribunal is not satisfied that this basis for cancellation has been made out.

26. The applicant concedes that when the application was made, it was claimed that Hameeda was a sibling when she was not a sibling but a sister in law. The Tribunal finds that when referring to Hameeda as a sibling on the application form, the applicant gave an answer that was incorrect. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer was given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

    Should the visa be cancelled?

27. 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).

28. 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. They are:

    The correct information

29. The correct information also is that  claimed sister was not in fact the applicant’s sister but her sister in law. In relation to the applicant’s father, as noted above, the Tribunal has formed the view that there is insufficient evidence to reach a state of satisfaction that the father is alive. The Tribunal is unable to determine what the correct information is with respect to the father.

    The content of the genuine document (if any)

30. A genuine document would not show that the applicant’s sister in law is her sister.

    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

31. The delegate found that the applicant’s father was alive and that she was therefore not dependent on her brother, who was the primary visa applicant, and not a member of his family unit. In the Tribunal’s respectful view, there is insufficient basis for that assumption. Even if the applicant’s father was alive when she made the application, that does not necessarily mean that the visa applicant could not be, and was not, dependent on her brother. It is entirely plausible that it was the brother who was the main breadwinner in the family and who provided financial support to the visa applicant, irrespective of their father’s circumstances.

1. The Tribunal has found that the applicant gave incorrect answer about her relationship with her sister in law, claiming her to be a sister. The applicant claims that her brother may have done that because of the compelling circumstances, given the situation in the country. Whatever the reasons for the provision of incorrect answers, that information does not appear to have been relevant to any visa criteria with respect to the applicant and the correct information is unlikely to have been affected the applicant’s eligibility for the visa.

   The circumstances in which the non-compliance occurred

2. The Tribunal has formed the view that the applicant’s family are not credible witnesses and had engaged in document fraud and were otherwise untruthful in their dealings with the Department. Importantly, they have been able to obtain various bogus documents including birth and marriage records and death record, as noted above. The Tribunal rejects the applicant’s claim that this was all done by the issuing authorities and the family had no involvement. The provision of bogus documents and incorrect information in the past casts doubt on the applicant’s claims that her father was deceased and the applicant concedes that the information about her relationship with the claimed sister was incorrect.

3. The Tribunal has formed the view, for these reasons, that the family members are not credible witnesses and willing to engage in fraud to achieve a positive migration outcome. However, the Tribunal is also mindful that these findings relate to several members of the applicant’s family and not necessarily to the applicant herself. Importantly, the applicant was 14 years of age when the Partner application was made and the Tribunal considers it unlikely that the applicant had any involvement in the preparation of documents or the completion of the paperwork. The fraud that appears to have been perpetrated by family members cannot be assumed (practically, if not legally) to have been perpetrated by the applicant and the adverse credibility findings which the Tribunal makes with respect to the applicant’s family members cannot extend to the applicant, in these particular circumstances. Thus, the Tribunal is not satisfied that the applicant was actively involved in the provision of incorrect answers or that she was aware of it.

   The present circumstances of the visa holder

4. The applicant states that she was undertaking a Diploma and a Bachelor of Policing at Western Sydney University and completed two units for which she received good marks. After receiving the NOICC, she was no longer able to study and has been affected by depression. The applicant states that she had also completed a course in dental nursing and has been working as a dental nurse. If her visa is reinstated, she will be able to resume the policing course.

5. The applicant told the Tribunal that she lives with her family, her mother and siblings but does not have much contact with them. 

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

6. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

7. There are no other known instances of non-compliance. 

   The time that has elapsed since the non-compliance

8. The application for the Partner visa was made in September 2008 and 13 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period of time.

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

9. There are no known breaches of the law.

   Any contribution made by the holder to the community.

10. The applicant told the Tribunal that she wants to contribute to the community and serve the community once she completes her degree. The applicant does not suggest that she has made any contribution to the community.

11. 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.

    Whether there would be consequential cancellations under s.140.

12. There are no persons who would be affected by the consequential cancellation of 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.

13. There are no children who would be affected by the cancellation of the visa.

14. The applicant told the Tribunal that while living in Pakistan, she had the Afghani documents and has no right to live in Pakistan. While the Tribunal acknowledges the allegation that the applicant and her family were nationals of Pakistan, there is no probative evidence before the Tribunal to support that information. The Tribunal has assessed the applicant against Afghanistan, for the purpose of this review.

15. The phrase 'non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

16. The applicant claims that she would be targeted in Afghanistan as a Hazara and a woman. The Tribunal has considered the available country information in relation to the situation in Afghanistan.

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

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

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

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

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

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

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

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

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

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

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

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

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

28. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Afghanistan, being a Shia Hazara and it is therefore not necessary to assess whether the applicant would also face a risk of harm due to being a woman.

29. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

30. The Tribunal is also mindful that  the applicant is eligible to make an application for a protection visa onshore. The applicant told the Tribunal that she had made an application but withdrew it once her RRV was granted and while the applicant concedes that she can make another application for the protection visa onshore, she claims that it may take some years before her application is determined. The Tribunal accepts that this maybe so but finds that  the applicant’s eligibility to seek a protection visa onshore means that her claims would be assessed before the applicant may be required to leave Australia. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

31. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The applicant’s claims are, essentially, that he would experience harm because of her Hazara ethnicity and her Shia religion and as a woman. The Tribunal has formed the view that the nature of his claims are such that these would give rise to protection obligations under the Refugee Convention or the complementary protection.

32. For the sake of completeness, the Tribunal notes that the country information in relation to Pakistan is similar and the various reports (set out in other Tribunal decisions) confirm that Hazaras in Pakistan may also experience a significant degree of harm. Thus, even if the applicant did have the Pakistani nationality (which she denies), the Tribunal’s findings would be same in relation to Pakistan.

33. The applicant’s mother and four siblings reside in Australia and she has two sisters in Pakistan. The Tribunal acknowledges that the applicant has extensive family ties to Australia and that the principles of family unity may require her presence in Australia.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

34. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas in Australia without the Minister’s intervention (including a protection visa) although there would be very limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some offshore visa applications. The cancellation of a permanent visa would result in the applicant losing the benefits that she may have been entitled to as a permanent resident of Australia.

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

35. The applicant told the Tribunal that since her visa was cancelled, she cannot get proper jobs because she requires a visa. The applicant refers to the time that has passed since her entry to Australia and states that if her visa is cancelled, she will not be able to achieve her goals. The applicant referred to the hardship in terms of employment opportunities and study opportunities, caused by the cancellation of her visa. The applicant notes that she is eligible to apply for a protection visa but it may take several years and in the meantime she would be unsettled and her life would be on hold. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant.

36. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant completed the application form in a way that an incorrect answer was given and she has not complied with s. 101, so there are grounds for cancelling her visa.

37. The Tribunal has formed the view that there is insufficient evidence to form a positive finding that the applicant’s father is alive and even if that was the case, the Tribunal is mindful that this would not necessarily negate the applicant’s eligibility for the visa, as the applicant may have still been dependent on her brother at the time of the visa application and visa grant. With respect to the incorrect answer about the applicant’s relationship with her sister, that would not have had any effect on visa grant and was largely irrelevant to the assessment of the applicant’s eligibility for the visa.

38. The Tribunal also places significant weight on the fact that the applicant was about 14 years of age when the application was made and would have had no involvement in the provision of incorrect answers and completing of the forms. While the applicant is legally responsible for the provision of incorrect answers even if the form was completed by another person, the Tribunal considers the circumstances in which the non-compliance occurred to be relevant and in this case, the Tribunal has formed the view that the applicant was not involvement, and may not have been aware, of the breach.

39. The Tribunal has formed the view that considerable hardship would be caused to the applicant if her visa is cancelled. The country information does refer to the persecution of Hazara in Afghanistan (and Pakistan, even if the applicant is a national of that country) and even though the applicant is eligible to seek a protection visa onshore, the Tribunal acknowledges her evidence that the process may take several years and in the meantime she would be unable to pursue her study or obtain suitable employment. This would also cause hardship to the applicant.

40. 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

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

   Kira Raif
   Senior Member