DARYAB (Migration)

[2019] AATA 4492

DARYAB (Migration) [2019] AATA 4492 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Najma Rahmani Daryab
Ms Ambareen Daryab

CASE NUMBER:  1715088

DIBP REFERENCE(S):  BCC2016/1536059 OSF2011/073600 OSF2011073600

MEMBER:Kira Raif

DATE:4 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 04 September 2019 at 8:14am

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – ground for cancellation – incorrect information in visa application – name – date of birth – place of birth – country of citizenship – consideration of discretion – grant of visa based on incorrect information – deliberate attempt to mislead the Department – non-refoulement obligations – significant hardship – strong family links in Australia – best interest of minor grandchildren – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107, 109, 111, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
BCR16 and Goundar v MIBP [2016] FCA 1203
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248

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 to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) claims to be a national of Afghanistan, born in June 1961. She was granted a Refugee and Humanitarian Class XB visa on 3 October 2013 with her daughter, the second named applicant. On 20 April 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided her response and the visas were cancelled on 10 July 2017. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant. Further, on 6 August 2019 the applicants’ representative informed the Tribunal that the second named applicant has relocated to New Zealand and has obtained a visa in New Zealand and that she wished to withdraw her application for review. The Tribunal finds that it has no jurisdiction in relation to the second named applicant.

4. The applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. 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.

9. 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.

   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 s.101 of the Act.

11. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

    a.The applicant made the application for the Class XB visa on 19 July 2011. She was proposed in that application by her son, who was a holder of an Australian permanent visa.

    b.The applicant completed the application Form 842. In that form:

    i.The applicant gave her name and place of birth as Kandahar, Afghanistan. She stated that her country of citizenship was Afghanistan.

    ii.The applicant included her daughter, stating that she was born in Kandahar, Afghanistan and was a citizen of Afghanistan.

    iii.The applicant stated that she had a fear of returning to Afghanistan, which she left illegally in January 1998.

    iv.The applicant stated that she feared harm from the Taliban and that the authorities in Afghanistan cannot protect her.

    v.The applicant signed a declaration stating that the information she had supplied on the form was complete, correct and up to date in every detail.

    c.The applicant included a statement with her application in which she claimed that she left Afghanistan in 1998 and went to Quetta, Pakistan. The applicant stated that Kandahar was unsafe, especially for the Hazaras, and the Taliban have a big role. The applicant stated that they cannot survive in Kandahar and will become a burden on others and they also have fear due to her son’s work. The applicant outlined the fear she had in returning to Afghanistan, including the fear of the Taliban and lack of safety for women.

    d.The applicant also completed Form 80. In that form:

    i.She gave her name and date of birth and place of birth as Kandahar City, Afghanistan.

    ii.The applicant stated that her country of current citizenship was Afghanistan and she acquired that citizenship from birth.

    e.The applicants’ were granted the visas on 3 October 2013 and arrived in Australia on 4 February 2014.

    f.The primary decision record indicates that the Department holds information regarding the applicant’s nationality and citizenship. It indicates that the applicant is a holder of a Pakistani National Identity Card (number provided) in the name of Najma Rahmati. Her place of birth is listed as Quetta, Pakistan and her date of birth is listed as 1 October 1955. The Pakistani National Identity Card lists the holder as the wife of Fazal Hussain.

12. The delegate noted that the applicant’s possession of the Pakistani National Identity Card does not support her claim that she is an Afghani citizen but suggests that she was a citizen of Pakistan when she lodged her visa application. The delegate refers to the country information which indicates that to be granted the Pakistani National Identity Card a Pakistan national must hold precursor documents such as a Pakistani birth certificate and that the birth certificate and National Identity Cards are only issued to Pakistani citizens. The delegate also refers to the Pakistani law which indicates that children of Pakistani nationals are considered to be Pakistani citizens.

13. In her written response to the NOICC the applicant provided a statutory declaration in which she admitted that she was born in Pakistan and had Pakistani identity but thought it was not relevant as her son had protection in Australia as an Afghani. The applicant states that her life in Pakistan was difficult and her son in Australia was the only one who could support her. Her son went to Afghanistan in 2009 to work and applied for the Afghani documents and he went to Australia in 2010. She was anxious to join her son in Australia and did not know there were problems with the forms for the sponsorship as she does not read and write well and was helped by family members.

14. In her written submission to the Tribunal the applicant refers to her correct name and the correct name of her daughter, stating that the different surname was the one adopted by her son after his arrival in Australia. The applicant states that inconsistencies about the age and date of marriage are explained by lack of any official recording, lack of education, limited reading and writing skills and cultural dependency on other children and others, as the correct dates are not known. The applicant states she had little idea of what was written in the forms as her son was in charge of the paperwork.

15. In oral evidence the applicant confirmed that she used a different name in the application and that her real name is Najma Rahmati and her date of birth was recorded in the Pakistani papers as 1 October 1955, although she is not sure if it is the correct date.

16. In oral evidence, the applicant told the Tribunal that her son, who was fearful for his safety, came to Australia. He did not know her date of birth. The Tribunal is of the view, however, that if the applicant’s son was filling in the forms and did not know the answers to the questions on the forms, he could have asked. The Tribunal is also mindful that it is not only the applicant’s date of birth that was incorrect. It is also her name, place of birth and country of citizenship. The fact that all of that information was incorrect suggests that the provision of incorrect answers was intentional. The applicant’s son, who gave oral evidence to the Tribunal, stated that he filled in certain details in his own application and had to be consistent in his mother’s application. The applicant admitted to having provided incorrect answers and apologised to the Tribunal for doing so.

17. The applicant states that she gave those answers because her mother was born in Afghanistan and her father was born in Pakistan and they had the Afghani tazkeras (national identity cards). While that may be the case, the questions on the forms were clearly about the applicant and not her parents. The questions were about the applicant’s place of birth and date of birth and her name, not those of her mother.

18. The applicant told the Tribunal that the forms were completed by her children and they did tell her what information was being written on the forms and she did not ask them to change the information because she was fearful in Pakistan and wanted to have a better life. However, her claim to the Tribunal is that she would have still been entitled to the visa if she claimed to be from Pakistan. If that was the case, there was no reason for the applicant to provide incorrect answers on the form. The applicant explained to the Tribunal that she thought she would have a better chance of obtaining the visa if she claimed to be from Afghanistan.

19. The Tribunal finds, having regard to the applicant’s own evidence, that she was a national of Pakistan at the time she made the application. The Tribunal acknowledges the applicant’s evidence that she did not complete the forms herself but was assisted by, and dependent upon, other family members. The Tribunal finds that evidence problematic because the applicant had signed a declaration confirming that the information given was correct and up to date and, in the Tribunal’s view, that implies that the applicant was familiar with the content of her forms. The applicant’s evidence to the Tribunal is that her children did tell her about the content of the form and she agreed with the information being submitted because she believed it would give her a better opportunity of obtaining the visa. The Tribunal also notes that the cancellation provisions are not limited to circumstances where the non-compliance was deliberate. Thus, s.100 provides that 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. Further, s.111 states that ss.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of the provision of incorrect answers.

20. The Tribunal finds that the applicant gave incorrect answers on the application forms 842 and 80 in relation to her name and date of birth and when she stated her place of birth as Kandahar, Afghanistan and her country of citizenship as Afghanistan. The Tribunal finds that the applicant gave incorrect answers when she made claims of being unable to return to Afghanistan. The Tribunal finds that the applicant filled in or completed the application form (including the statement that accompanied the application) in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s.101 of the Act and that there are grounds for cancelling her visa.

    Should the visa be cancelled?

21. 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).

22. 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 Migration Regulations 1994. Briefly, they are:

    The correct information

23. The correct information is that the applicant was known by a different name and date of birth. She is also a national of Pakistan by virtue of her birth in Pakistan and she was not born in Afghanistan. She did not flee Afghanistan illegally in 1998 but has always lived in Pakistan.

    The content of the genuine document (if any)

24. This is not relevant in the present case.

    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

25. Clause 202.222, applicable at the time the application was made, relevantly requires an applicant to establish that here are compelling reasons for giving consideration to granting the visa having regard to the degree of discrimination to which the applicant is subject in her home country and whether there is any suitable country available that can provide resettlement and protection from discrimination.

26. The applicant claimed that she would be persecuted by the Taliban in Afghanistan and she was assessed against Afghanistan as her ‘home country’. The applicant did not disclose her Pakistani nationality and was not assessed against Pakistan.

27. In her submission to the delegate in response to the NOICC the applicant states that she would also face discrimination in Pakistan for the same reasons she made claims in relation to Afghanistan and that she has nothing to go back to. In her submission to the Tribunal the applicant states that the decision to grant her the visa would have likely been the same as she would be subjected to persecution in Pakistan as an elderly woman without a partner or an elder son present.  However, these are not the claims she made in her application. Her claims related to Afghanistan as the applicant claimed to be a national of that country only. If it was known to the delegate that the applicant was a national of Pakistan, had a right to reside in Pakistan, always lived in that country and she had access to whatever privileges may have been afforded to Pakistani nationals, these considerations would have been relevant to the decision whether the applicant met the requirements for the grant of the visa.

28. The Tribunal is also of the view that the applicant’s identity is a significant consideration to any assessment about the eligibility for the visa. It is relevant to the assessment of character for the purpose of PIC 4001 and s.501. In her application the applicant gave an incorrect name, date of birth and place of birth. These factors were relevant to establishing the applicant’s identity.

29. The Tribunal finds that the decision to grant the visa was based, at least in part, on incorrect information. The Tribunal finds that the incorrect information was quite significant, if not central, to the decision to grant the visa. That weighs heavily in favour of the cancellation.

    The circumstances in which the non-compliance occurred

30. The applicant states in her submission in response to the NOICC that her son in Australia was the only child who could support her. She states that she was anxious to join her son and did not know that there would be any problems with the form or the sponsorship. The applicant states that she had limited knowledge of the process and that she obtained help from others in completing the application forms. The applicant explained that a different name appeared on the form because that was the name adopted by the son and the different date of birth was recorded on the form because it was guessed by a family member as she does not know her date of birth. She specified Afghanistan as the place of birth because this is where her mother was born. Regarding the citizenship, the applicant states that she believed she has an Afghan nationality because her mother was born in Afghanistan and she did not believe having Pakistani documents cancelled her right to claim Afghan citizenship. Again, the question on the form related to the actual nationality or country of citizenship and not countries the applicant felt they were entitled to claim citizenship in.

31. In her evidence to the Tribunal the applicant refers to her lack of education and understanding of the process and reliance on others, stating that she was under the direction of her son who was sponsoring her.

32. The Tribunal finds the applicant’s claims unconvincing. Even if the applicant was not aware of her date of birth the applicant admits that the date of birth she gave on the application was not the date of birth recorded on her Pakistani identity documents. That is the applicant made up an entirely different date of birth that was not related to any of the documents she held and the Tribunal does not accept that she did so because she was unaware of her date of birth.

33. Neither does the Tribunal accept that the applicant was unaware of her place of birth or her nationality. It may be that the applicant’s mother was born in Afghanistan but the question on the form was in relation to the applicant herself and not her parents. The applicant was well aware that she was not born in Afghanistan and her evidence to the Tribunal is that she never lived outside of Pakistan. There was no reason for the applicant to refer to her place of birth as Afghanistan and to claim that she fled Afghanistan in 1998. Whether or not the applicant believed she had the Afghani nationality, or was entitled to it, she was also aware that she was a national of Pakistan and the applicant failed to disclose that information in the application. The Tribunal finds that stating incorrect place of birth, together with the incorrect nationality, was a deliberate attempt to mislead the Department and to falsely claim the country of nationality as Afghanistan rather than Pakistan.

1. The applicant claims that she did not understand the forms and believed the signature to be part of the bureaucratic process to get to Australia and live in safety. The Tribunal does not accept the applicant’s claim that she did not understand the form, firstly because she claims she received assistance with completing the paperwork and also because the applicant was able to give detailed, and what she claims to be, accurate information about her son’s activities prior to his arrival in Australia. The applicant was also able to provide a coherent story in relation to the persecution she claims to have suffered in Afghanistan. Thus, it appears that the applicant had fully understood what was asked of her in the forms but chose to provide incorrect information that she believed would improve her chances of obtaining the visa.

2. The applicant’s oral evidence to the Tribunal was somewhat different. In oral evidence, the applicant explained to the Tribunal that she was worried about not getting the visa and thought she would have a better chance of gaining the visa if she claimed to be from Afghanistan. The applicant also told the Tribunal that she knew what information was being given by her children and she did not ask for that information to be corrected. In her submission of 3 September 2019 the applicant also confirmed that she should ‘follow the lead’ of her sponsoring son, who was accepted as a national of Afghanistan. That is, the applicant was well aware that the answers she provided in her application were incorrect but she believed these better suited her visa application. The Tribunal has formed the view that the breach was intentional and that the information was deliberately fabricated because the applicant believed it would assist her with the visa process.

   The present circumstances of the visa holder

3. The applicant stated in her submission to the delegate that she lives with her son and daughter and grandchild and feels secure for the first time in her life. The applicant states that she is close to her daughter-in-law and her granddaughter and the family is worried about what would happen if the visa is cancelled, as the consequences of returning to Pakistan or Afghanistan would be serious. The Tribunal is mindful that the applicant’s daughter has now established residence in New Zealand. The applicant also informed the Tribunal that her son’s visa has been cancelled.

4. The applicant states that she suffers from medical problems and emotional programs and is visiting a psychologist in Sydney. A medical certificate from I-Care Medical Centre dated 16 May 2017 refers to the applicant suffering from anxiety and depression and her ongoing treatment. The applicant refers to her health problems and states that she takes medication for stress and anxiety. She attended a psychologist for 10 sessions in 2017 but cannot obtain the more detailed report. In oral evidence, the applicant stated that because of the cancellation of the visa, she became depressed. She developed back pain and received injections. The Tribunal accepts the evidence in the medical reports.

5. The applicant told the Tribunal that because her visa has been cancelled, she has been very upset and worried about the future.

6. The applicant states in her statutory declaration in response to the NOICC that before coming to Australia they sold the house in Quetta and she has no place to live there. No documentary evidence of the sale has been presented and the applicant’s evidence to the Tribunal is that they were renting a house and did not sell the house before coming to Australia. In her post-hearing submission the applicant states that they lived in a house owned by another family member and that house was sold and is no longer available. The applicant claims that none of her children would be there to look after her and none of her children live in Quetta. The applicant told the Tribunal that she has no house and no money and cannot live with her children while in Australia and she has been given public housing and financial support. The applicant claims that her children cannot support her because they have their own commitments and she cannot support herself without the government pension.

7. In her submission to the Tribunal dated 3 August 2019 the applicant states that since arriving in Australia she has lived with her son and daughter. Her other daughter who lives in Pakistan cannot support her and her other children live in other countries. In April 2019 the applicant was allocated a public housing unit where she lives close to her daughter and she gets daily help from her children and neighbours. She feels safe but also depressed and anxious about having to return to Pakistan.

8. The applicant told the Tribunal that she has a close relationship with her Australian daughter and her three children and she spends time with her grandchildren. She also has a granddaughter in Tasmania and she spends time with that granddaughter. Her daughter’s children are between 13 and 1. The Tribunal accepts that the applicant has close family connections in Australia, although the Tribunal is also mindful that the applicant has children living in other countries. The applicant’s evidence to the Tribunal is that she speaks with her daughter in Pakistan weekly and she regularly speaks to her sons in Afghanistan and the US. The Tribunal accepts that the applicant has close relationships with her children and grandchildren in Australia.

9. In her written submission to the Tribunal of 3 September 2019 the applicant states that her Australian daughter Ms Fazal depends on her with many daily tasks and she refers to the close relationship between the applicant and her grandchildren. Ms Fazal’s declaration outlines the nature of such relationships. The Tribunal accepts that evidence.

10. The applicant states that while she may be eligible to apply for a protection visa in Australia, the delays, financial hardship and stress associated with such an application would impact negatively on her and her family. The Tribunal does not accept that evidence as the costs associated with a protection visa need not be significant and if there are any delays, the applicant may be eligible to be granted a Bridging visa to allow her to remain in Australia.

11. The applicant refers to her poor mental and physical health and the health care she receives in Australia. She states in her submission of 3 September 2019 that it is unclear whether she would receive a similar standard of care in Quetta and how her health care needs would be paid for. This claim is addressed elsewhere in this decision and, essentially, the Tribunal has formed the view that the applicant has not established that adequate health care would not be available to her in Pakistan and also that she would be unable to access support for such care, or other needs, from her children.

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

12. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the above provisions. The applicant states in her submission to the Tribunal that she did not correct the incorrect information because she was unaware of the seriousness of non-compliance.

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

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

    The time that has elapsed since the non-compliance

14. The application for the visa was made in October 2013 and close to six years have passed since the non-compliance. The Tribunal acknowledges that it is a lengthy period.

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

15. There are no known breaches of the law.

    Any contribution made by the holder to the community

16. The applicant stated in her response to the NOICC that she lives with her son who is very involved with the Afghani community while she provides help in the house with the grandchildren, enabling her son to be involved in the community. The Tribunal does not consider that the son’s involvement in the community can be considered as the applicant’s contribution to the community but the Tribunal is prepared to accept that the applicant provides help in the household, including the care and support for her grandchildren. The applicant also referred to her English study in Australia.

17. The applicant also refers to her involvement in the Hazara Women’s Community Association although there is little evidence of that before the Tribunal. The applicant states that she attends a job seeker program as a means of learning English and socialises outside of the Afghan community. The Tribunal is prepared to accept that the applicant has made some contribution 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.

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

19. If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted other visas, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements she may have acquired as an Australian permanent resident.

    Whether there would be consequential cancellations under s.140

20. The applicant’s daughter entered Australia as a dependent member of the family unit and her visa would be subject to a cancellation under s.140. The applicant’s evidence to the Tribunal indicates that the daughter has been granted a permanent visa in New Zealand and she is no longer part of this review.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

21. The applicant claims to have a close relationship with her grandchildren, who are all minor. Some of her grandchildren live in Australia and others live in other countries. The Tribunal has considered the post-hearing submission from the applicant’s daughter about the applicant’s relationship with her children. The Tribunal accepts that the applicant has a close relationship with her family in Australia and also with her minor grandchildren and that such a relationship may not be as close if the applicant is required to leave Australia as a result of her visa being cancelled. The applicant said that her grandchildren would be worried and concerned if her visa is cancelled. The applicant states that her grandchildren are very close to her and would cry if she is not here. The children overseas are not as close to her as the grandchildren in Australia. The Tribunal accepts that there is a close relationship with the grandchildren and that it may be preferable for the children to maintain that relationship. However, the Tribunal is also mindful that the grandchildren are in the care of their parents and the applicant has not satisfied the Tribunal that such care is inadequate. Nevertheless, the Tribunal is prepared to accept that it may be in the best interests of the minor grandchildren to maintain the close relationship with the applicant. The Tribunal is prepared to accept, for the purpose of this application, that the best interests of the children would be to maintain the close connection with their grandmother.

22. In relation to the principles of the family unity, the Tribunal notes that the applicant’s two children live in Australia, although the visa of her son has also been cancelled. The applicant has four children living in other countries. Thus, the applicant has greater family links outside of Australia compared to her family links in Australia.

23. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

24. ‘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 mentioned above, or any obligations accorded by customary international law that are of a similar kind.

25. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).

26. The applicant’s representative submits that despite the Pakistani nationality, the applicant would experience harm in Pakistan due to her Hazara ethnicity and being a single woman without support and she claims she has a well-founded fear of persecution within the meaning of s.5J(1), the real chance of persecution. The applicant refers to the persecution of Shia groups and claims she would be affected as a Shia and a Hazara. It is stated that the applicant has only lived in Quetta and it would be unreasonable for an elderly woman to relocate to another city without any means of support and this would not happen. While her son in Australia is willing and able to care of her, other children cannot. The applicant states that it would not be safe for her and her daughter to return to Pakistan or Afghanistan and they would not receive protection in Pakistan. The applicant relies on a number of country reports concerning the situation in Pakistan and Afghanistan.

27. The Tribunal is prepared to accept, for the purpose of this review only, that it would be difficult for the applicant to live on her own in Pakistan without much family support. The Tribunal accepts that the situation in Pakistan may be unsafe and that the applicant would be recognised as a Hazara and a single woman. Although the Tribunal is mindful that the applicant is eligible to seek a protection visa in the future, for the purpose of this review, the Tribunal accepts that Australia may owe protection obligations towards the applicant and that Australia’s international obligations may be engaged in relation to the applicant.

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

28. The applicant claims in her submissions to the delegate that her and her daughter’s return to Pakistan or Afghanistan is neither safe, reasonable, nor practical and the likelihood of them receiving protection in Pakistan is strong despite the provision of incorrect information. The applicant refers to her poor mental state when the application was made and claims that she may have been subject to incorrect advice by the person helping with the forms. The applicant states that her removal from Australia would be in breach of Australia’s international obligations. The applicant refers to having a close connection to the family in Australia. These matters have been addressed above.

29. The applicant referred to her poor health and said that if she had to return to Pakistan, she would not have the money to see doctors as doctors and medicine are expensive there. Even if that is the case, the Tribunal is not satisfied that the applicant cannot receive support from her six children. The Tribunal accepts that her children have other commitments, including rent and educational and living expenses, however, the applicant has not satisfied the Tribunal that the children cannot contribute to the care and support of the applicant.

30. The applicant told the Tribunal that if her visa is not cancelled, she will be able to travel to see her children. The Tribunal accepts that a consequence of the applicant not having an Australian permanent visa may be that the applicant has more limited opportunities to travel.

31. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with s.101 of the Act and that there are grounds for cancelling her visa.

32. The Tribunal finds that there are strong reasons for the visa not to be cancelled. The Tribunal has formed the view that the cancellation of the visa could cause significant hardship to the applicant. Unless the applicant is granted another visa in Australia, the applicant may be required to leave the country, return to Pakistan and be separated from her family in Australia. She would have limited opportunities to see her family and to travel to Australia and elsewhere to visit her family. The Tribunal accepts that the applicant has now settled in Australia and considers Australia as her home and the Tribunal also accepts that many of the benefits and opportunities the applicant has acquired in Australia – including public housing, healthcare and financial support from the government – may not be available to her, or not available to the same extent, in Pakistan. The Tribunal places significant weight upon the fact that the applicant has strong family links in Australia and the Tribunal has formed the view that it is in the best interests of the applicant’s minor grandchildren that the applicant remain in Australia. The Tribunal has also formed the view that Australia’s protection obligations may be engaged in this case. The Tribunal acknowledges that a long time has passed since the non-compliance, that there are no other known instances of non-compliance or breaches of the law.

33. Contrary to the applicant’s claims, the Tribunal does not consider that the breach was unintentional. The Tribunal acknowledges the evidence about the applicant’s poor health, although the applicant has not satisfied the Tribunal that she would be unable to receive adequate medical help or family support in Pakistan. Nevertheless, the Tribunal finds that there are strong reasons why the visa should not be cancelled.

34. Against these considerations, the Tribunal has formed the view that the applicant had deliberately provided incorrect answers on the application form in order to improve her chances of obtaining the visa. The Tribunal has formed the view that she was fully aware that the information she gave was incorrect but chose to give such information because she wanted to travel to Australia. The breach was deliberate and intentional and done with the purpose of achieving a favourable migration outcome. The Tribunal also considers the breach to have been significant, because the applicant’s identity and country of nationality were central to the assessment of her eligibility for the visa. The Tribunal does not accept the applicant’s claim that she would have been granted the visa anyway, even if she declared Pakistan as her country of nationality. That is not the claim she had made and not the country she was assessed in relation to. The Tribunal has formed the view that the circumstances in which the non-compliance occurred and the significance of the incorrect answers to the decision to grant the visa outweigh other considerations.

1. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

2. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 202 (Global Special Humanitarian) visa.

3. The Tribunal has no jurisdiction with respect to the other applicant.

   Kira Raif
   Senior Member