Hussain (Migration)

[2021] AATA 3276

Hussain (Migration) [2021] AATA 3276 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Altaf Hussain

CASE NUMBER:  2108554

HOME AFFAIRS REFERENCE(S):          BCC2018/4138184

MEMBER:Kira Raif

DATE:24 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 24 August 2021 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – incorrect information provided as dependent to mother’s visa application – never married or in de facto relationship – later admission of being married with two children at the time – mother’s worry about safety due to poor security situation in home country – discretion to cancel visa – incorrect information provided knowingly and no steps taken to correct – visa unlikely to have been granted if correct information known – family, community and employment – deaths of wife’s parents due to COVID-19 – no steps taken to sponsor wife and children, or apply for protection visa – best interests of children include living with both parents in Australia – non-refoulement – Hazara Shia – country information – risk of harm – possibility of applying for protection or limited other visas – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 101, 107, 109(1)
Migration Regulations 1994 (Cth), rr 1.12, 2.41

CASE
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan, born in June 1979. He was granted the Partner visa in May 2014. In June 2021 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’s visa was cancelled on 28 June 2021.

3. The applicant appeared before the Tribunal on 24 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from two of the applicant’s friends. 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 affirmed.

   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.

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

6. 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.

7. 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?

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant’s father was granted a permanent visa in July 2012 and in December 2012 he sponsored the applicant’s mother Gul Shah for a Partner visa. The applicant and his sister were included as dependents. In support of the application the applicants submitted Form 47SP in which the following answers were given:

   a.in response to question 38, information was given about the applicant’s name and date of birth and it was stated that the applicant was never married or in a de facto relationship,

   b.at question 64 it was also stated that the applicant was never married or been in a de facto relationship.

10. The applicant also completed from 47A. In that form,

    a.the applicant gave his name and date of birth,

    b.in response to Question 16, the applicant stated that he had never married or been in a de facto relationship.

11. The applicant completed form 80. In that form, in response to Question 22 the applicant stated that he had never married or been in a de facto relationship.

12. The applicant presented a statutory declaration with the application, sworn on 22 April 2014. The applicant stated in that declaration that he was single, not married or in a de facto relationship, not engaged to be married and had not been in a married or de facto relationship before.

13. The applicant was granted the Partner visa, as a secondary applicant, on 2 May 2014. The primary decision record indicates that in June 2018 the applicant’s mother Ms Gul Shah applied for the Australian citizenship and during the assessment of that application she admitted that she provided incorrect information about the applicant’s marital status in the Partner visa application. Ms Shah signed a statutory declaration on 7 December 2019 in which she claims she was worried about her son’s safety in Pakistan and out of concern for her son, she declared her son as being unmarried. The primary decision record indicates that in relation to the citizenship application, the applicant provided two statutory declarations in which he concedes that when the application for the Partner visa was lodged, he was married to Ms Abida Hussain and had two children, born in July 2010 and March 2013 respectively.

14. Having regard to that information, the Tribunal finds that when the applicant made the application for the Partner visa, he was married. The Tribunal finds that the applicant gave incorrect answers on several application forms when he claimed he had never married or been in a de facto relationship. The Tribunal further finds that the applicant gave incorrect information in his statutory declaration sworn on 22 April 2014 in which he claimed he had never married or been in a de facto relationship and information in the declaration is taken to be an answer on the form. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds there was non-compliance with s. 101 of the Act in the way described in the Notice.

    Should the visa be cancelled?

15. 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).

16. 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

17. The correct information is that the applicant was married at the time he made the application for the Partner visa as a dependent child, and a member of the family unit of his mother.

    The content of the genuine document (if any)

18. 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

19. The applicant made the application as a member of the family unit of his mother. There is no suggestion that he met the primary criteria for visa grant.

20. A definition of the term ‘member of the family unit’ was contained in r. 1.12 and relevantly included dependent children other than a child who is engaged to be married or has a spouse or de facto partner. Thus, the fact that the applicant was married would have precluded him from being able to meet the definition of dependent child and there is no evidence that he had met the alternative criteria of the definition in r. 1.12. The applicant’s marriage, and the existence of two children, would have also been relevant to assessing whether he was dependent on his mother.

21. The Tribunal finds that the decision to grant the visa was based, in part but to a very significant extent, on incorrect information.

    The circumstances in which the non-compliance occurred

22. The applicant, and his mother, provided statements explaining that due to the poor security situation in Pakistan, he was desperate to leave the country and therefore incorrect information was provided about his marriage to enable him to be included in his mother’s application.

23. In his declaration dated 22 August 2021 the applicant outlines his immigration history and personal circumstances. The applicant states that he and his father had narrowly survived terrorist attacks while in Quetta and were constantly fearful for their lives. They were unable to work and were forced to sell the family business. The applicant states that his father spoke to a migration agent in Australia and was advised there were no options for a married child, which escalated his parents’ concerns. The applicant states that the risk to his life and his parents’ concerns about his safety compelled his family to record his marital status as unmarried, which they regret. The applicant states that he has suffered due to the separation from his wife and children. 

24. In oral evidence to the Tribunal, the applicant also confirmed that the situation in Pakistan was really unsafe. His father received immigration advice that he could not get the visa but because he was desperate to leave, he provided the incorrect answers in his application. The applicant expressed remorse for his conduct. The applicant also presented a statutory declaration from his mother, in his submission to the Tribunal of 24 August 2021, in which the same evidence is given.

25. The Tribunal acknowledges, and is prepared to accept, the applicant’s evidence that he was desperate to leave the country due to the unsafe situation in Pakistan. However, the Tribunal also notes the applicant’s evidence that he was aware he was not entitled to the visa and he falsified the answer on the forms in order to get the visa he knew he was not entitled to. In the Tribunal’s view, such matters weigh in favour of the cancellation.

    The present circumstances of the visa holder

26. In his evidence to the Tribunal the applicant states that the has sustained work injury, which resulted in three operations, and a disability affecting his hand, so he has not been able to resume work and is being supported by Work Cover. The applicant presented to the Tribunal his medical reports and the Tribunal accepts that evidence. The applicant states that he is struggling to repay the mortgage and fears that he would lose his house and it would shatter his dream of being reunited with his wife and children. The applicant presented evidence relating to his property ownership and mortgage repayments and the Tribunal accepts that evidence.

27. In his submission to the Tribunal the applicant refers to the hardship he experienced as a result of the separation with his wife and children. The applicant states that his parents in law died due to Covid (he presented death records), which had affected his wife and children and left them grieving. The applicant states that he is concerned about his wife and children as now they have nobody to care for. However, the applicant also told the Tribunal that he has not sponsored his wife and children since his arrival in Australia because ‘he was too embarrassed’ and he was hoping to get the Australian citizenship first before the sponsorship. Now that his wife’s parents passed away, he is concerned about their safety.

28. The applicant states that he has always considered Australia to be his home and he has been affected by the cancellation of his visa. The applicant refers to the significant ties he has formed since his arrival in Australia. The applicant refers to the presence of his family and friends in this country. The applicant states that he has been a law-abiding resident of Australia and has not engaged in criminal activities and contributed through the payment of taxes. Similar oral evidence was given by the applicant’s two friends.

29. The Tribunal accepts the entirety of the applicant’s evidence concerning his present circumstances and considers that it weighs strongly against the cancellation of the 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

30. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

32. The application for the Partner visa was made in December 2012 and close to nine years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period and that the applicant has settled in Australia in that period.

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

33. There are no known breaches of the law and the applicant states that he has been law-abiding.

    Any contribution made by the holder to the community

34. The applicant claims he has been a law-abiding citizen who has contributed through employment and the payment of taxes. The Tribunal accepts that evidence.

35. 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.

36. There are no persons who would be subject to the consequential cancellation.

    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

    There are no children in Australia who would be affected by the cancellation.

37. The applicant’s two children are in Pakistan. He presented to the Tribunal a number of photographs of his children. The applicant states that he was hoping to sponsor his children but the Tribunal is mindful that despite being a holder of a permanent visa for several years, the applicant has made no effort to sponsor his children. The applicant told the Tribunal that he believed he had to be an Australian citizen to be able to sponsor but the Tribunal does not accept that explanation, firstly because the applicant acknowledges that his father was not a citizen when sponsoring his mother (the applicant suggested his father was given a  concession due to his age but the Tribunal is not convinced the applicant genuinely believes that) and also because the applicant had every opportunity to seek professional advice in the years he has lived in Australia, if he had a genuine desire to sponsor his wife and children. The applicant told the Tribunal that he was too embarrassed and did not wish to lie further but in the Tribunal’s view, he could have been truthful when sponsoring his wife and children.

38. In the Tribunal’s view, the applicant’s failure to sponsor his wife and children for several years despite him being a permanent resident of Australia, suggests that the applicant does not believe his wife and children are at risk in Pakistan. The applicant’s evidence to the Tribunal is that his wife and children rely on him financially and do not need to leave the local area to get work. The applicant submits that now that his parents in law have passed away, his wife has nobody to look after her but as she is an independent adult, the Tribunal does not consider this would have detrimental effect on the children.

39. The applicant states that his children want to live in Australia with their father and have a comfortable life in Australia. The Tribunal accepts that the applicant has the overall desire to bring his children to Australia (although the applicant seems to have greater interest in acquiring the Australian citizenship, presumably so as not to jeopardise his visa status by declaring he has children). Despite the applicant’s failure to do anything to sponsor his children to Australia for several years, the country information cited below does indicate that the situation in Pakistan may be unsafe for Hazaras and even if does not greatly affect the children now, it may do so in the future as they become older. The Tribunal also acknowledges that it may be in the best interests of the children to be cared for by both parents and the applicant is unlikely to return to, and reside in Pakistan. In such circumstances, the Tribunal accepts that it may be in the best interests of the children to live with the applicant in Australia and, in such circumstances, the cancellation of the applicant’s visa would not be in the best interests of the children. The Tribunal is mindful that it is a primary (albeit not determinative) consideration and has given it due weight.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

40. The applicant’s wife and two children reside in Pakistan. His parents and sister are in Australia. The Tribunal does not consider that the family unity obligations would be breached as a result of the cancellation.

41. 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.

42. The applicant states that as a Shia Hazara, he would be subjected to harm upon return to Pakistan. The applicant refers to past incidents, and surviving terrorist attacks, which caused him to be fearful for his life and he provided a media report concerning the situation in Pakistan to the Tribunal.

43. The Tribunal has had regard to the 2019 DFAT report on Pakistan, which relevantly states with respect to Hazaras living in Pakistan:

    The Hazara ethnic group, native to Hazarajat in central Afghanistan, is of Eurasian descent, rendering Hazaras visibly distinct from other ethnic groups in Pakistan. Estimates of the size of the Hazara population in Pakistan range from around 600,000 to under one million. Most Hazaras are Shi’a Muslim, predominantly of the Twelver Sect (athna asharia), although a small number are Sunni.

    Hazaras migrated to Pakistan from Afghanistan in the second half of the 20th century. Most Hazaras live in enclaves in Quetta due to the security situation in Balochistan. While DFAT is not able to provide detailed reporting on Balochistan based Hazaras who reside outside of Quetta, the overall security situation outside of Quetta is more severe than within Quetta (see Security Situation). Outside of Balochistan, smaller but significant populations reside in major urban centres such as Karachi. Hazaras in urban centres other than Quetta tend not to live in enclaves, to reduce the risk of ethnic profiling, discrimination and attack.

    Shi’a Hazaras have faced official and societal discrimination in Pakistan. Militant Sunni groups such as LeJ have targeted Hazaras in Pakistan for their sectarian affiliation.

    The Hazara community in Quetta lives in two main areas, Hazara town and Mariabad: Mariabad is located to the east of Quetta near the Pakistan air force base, and Hazara town to the west, near the cantonment and the Benazir hospital. The government provides some security to Hazara enclaves. The paramilitary Frontier Corps maintains checkpoints on roads leading to Hazara town in Quetta, and search people on entry and exit. Sources report Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps describe Hazaras as agents of Iran and untrustworthy. International media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.

    Government forces also provide security for Shi’a religious processions. Local sources attribute much of the improvement in the security situation for Hazaras, including in Hazara Town and Mariabad in Quetta, to measures taken by the community to protect itself, rather than an increase in support from security forces or a change in intent from militant groups. Local sources claim the Quetta police have released individuals accused of killing Hazara in the military cantonment in Quetta.

    Although improved security measures by the community and general improvements in the security situation in Pakistan have led to a steady decrease in successful attacks, a large number of official and non-government interlocutors report that Hazaras in Quetta continue to face significant risk of violence. Local media claim that security threats and government restrictions mean they are unable to report accurately on Hazara security in Balochistan.

    Following a spate of attacks against Hazaras and Christians in Quetta in the first quarter of 2018, the independent HRCP issued a statement highlighting ‘the alarming spike in violence that has shot through Quetta.’ The HRCP raised ‘extreme concern over the continuing violence in Quetta - much of which systematically targets members of religious minorities - and the lack of an effective and sustained response from the state.’

    An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shi’a in Quetta…

    Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.

    Historically, the government of Balochistan was the main employer of Hazaras in Quetta. Hazaras now decline jobs for fear of movement. Hazaras claim they are denied private employment opportunities on the basis that they cannot travel safely to work in the city. Hazara youth, like other young people in Pakistan, need to move for employment. Many Hazaras in Quetta provide services to their own community within their enclaves; others attempt to move to other cities across Pakistan to work.

    Hazara children born in Pakistan are entitled to Pakistani citizenship…

    While living in ethnically diverse locations such as Karachi affords increased security, Hazaras still experience societal discrimination and security threats. Some Hazara members of the military employ measures to reduce their profile, such as varying daily travel routes and times, changing vehicles and avoiding the use of military vehicles.

    DFAT is aware of reports that NADRA officials have refused to amend CNICs of Hazaras attempting to relocate within Pakistan, thus preventing them from applying for a passport, which must be obtained at the place of residence. Hazaras who have a high-level advocate can overcome such official barriers. NADRA refusal to change a CNIC address can also limit access to education, as school enrolment also requires local residence.

    DFAT assesses that Hazaras in Pakistan who remain inside Hazara enclaves in Quetta do not face societal discrimination. Outside the Hazara enclaves in Quetta, Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services. However, DFAT assesses such discrimination reflects individual prejudice rather than systematic and/or formal official discrimination.

    DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.

    Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence. Due to this risk, DFAT assesses undocumented Hazaras living in Balochistan are likely to experience difficulty travelling outside of Quetta-based enclaves to gain access to official documentation, or government health and education services.

    While DFAT assesses Hazaras do not typically require official documentation to access non- government, Hazara community-run health and education services located within Quetta-based enclaves, DFAT notes Hazaras describe these facilities as basic, and thus travel outside of the enclaves is required to access government-run primary health,  emergency care and education services.

1. Having regard to that information, the Tribunal accepts that there is a risk of harm that the applicant may experience in Pakistan, being a Hazara. However, 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.

2. The Tribunal is also mindful that the applicant is eligible to make an application for a protection visa onshore. The applicant’s evidence concerning his fear of returning to Pakistan, and the harm he claims he would experience due to his religion and ethnic group, would be assessed as part of that process and, if it is determined that Australia owes protection obligations to the applicant, the applicant may be granted an appropriate visa.

3. 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.

4. 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 his Hazara ethnicity and his Shia religion. 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.

   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

5. If the applicant’s visa is cancelled and if he 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 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 he may have been entitled to as a permanent resident of Australia. The Tribunal acknowledges that if he does not hold an Australian visa, the applicant would be unable to sponsor his family for the Australian visas.

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

6. The applicant presented to the Tribunal evidence of his communication with the Department and submits that he had voluntarily acknowledges the false information to the Department. The applicant claims that he is regretful for his actions and is embarrassed by his conduct. He told the Tribunal that he came forward and gave the correct information recently as his parents in law passed away. The Tribunal considers that expression of remorse problematic. The Tribunal is mindful that the breach occurred in late 2012, nearly nine years ago and the only time the applicant informed the Department of the incorrect answers was when his personal circumstances required it, not when the obligations to do so arose. The applicant has not made any contact with the Department to correct the information, upon his entry to Australia and for years of his residence in Australia. The applicant took no steps to rectify the problem until mid-2021 and it is not apparent that if the information was not before the Department through the citizenship application process, the applicant would have voluntarily made any admissions. The Tribunal finds that the admission of the incorrect answers and the expression of regret are opportunistic.

7. The applicant told the Tribunal that he was too embarrassed to come forward and tell the truth and he hoped the people of Australia would forgive him and he could get the Australian citizenship and sponsor his family. The Tribunal finds the applicant’s evidence unpersuasive. His evidence is that he could not approach the Department with the correct information before he was granted the Australian citizenship and only then he would be willing to provide the correct information in order to sponsor his family to come to Australia. The applicant’s evidence indicates that he failed to approach the Department not out of embarrassment but out of concern for his visa and his ability to remain in Australia and it was only once he was safe to remain in Australia following the grant of citizenship that the applicant was willing to be truthful with Immigration.

8. The Tribunal asked the applicant why he had not come forward with the correct information upon entering Australia and, if he was concerned about being returned to Pakistan, why  he had not sought a protection visa at that time. The applicant told the Tribunal that he did not know about protection visas. The Tribunal does not accept that evidence, as the applicant repeatedly told the Tribunal that ‘Australia is a kind country’ which offers protection to others and his written evidence to the Tribunal is that his father sought a protection visa in Australia some years earlier. The applicant could have questioned his father about the way in which he was allowed to remain in Australia. He could have easily sought advice from a migration professional or the Immigration Department and in the Tribunal’s view, he is very likely to have heard about protection visas from his own community and in his own language. In the Tribunal’s view, if the applicant had any interest in being truthful with Immigration and in correcting the incorrect answers, but was concerned about being returned to Pakistan, the applicant could have sought advice and the opportunity to seek the protection visa in Australia soon after he entered this country.

9. The applicant presented to the Tribunal a number of character references and the Tribunal accepts that those who provided these references believe the applicant to be a good person. Two of the applicant’s friends gave oral evidence to the Tribunal and spoke about the applicant feeling upset and depressed recently and as noted elsewhere, the Tribunal accepts that the cancellation of the visa may have had a detrimental effect on the applicant’s health and well-being.

10. The applicant told the Tribunal that if his visa is cancelled, it would affect his relationships in Australia. The applicant states that he may be depressed and unwilling to socialise with others. The applicant states that since his visa was cancelled, he has been reluctant to talk to other people and he saw a psychologist about his hand (but not in relation to other issues and the visa cancellation). The Tribunal accepts that the cancellation of the visa and the uncertainty about the future, even if the applicant was to seek another visa in Australia, may adversely affect the applicant’s mental health and his relationships with others. Generally, the Tribunal accepts that the cancellation of the visa is likely to cause hardship to the applicant.

11. The applicant told the Tribunal that if his visa is cancelled, he is concerned that he would lose his house. However, the applicant told the Tribunal that if his visa is cancelled, he does not intend to leave Australia and the Tribunal is mindful that the applicant will have the option of seeking another visa onshore, such as a protection visa. That is, the applicant’s circumstances may not be different to what they are now as he will be able to remain in Australia, at least in the immediate future, receive the Work Cover payments as he does now, and continue to repay the mortgage in the same way he has been doing since the cancellation of his visa

12. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had completed the application form in a way that incorrect answers were given or provided and that there are grounds for cancelling his visa.

    The Tribunal accepts that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal acknowledges that the applicant decided to provide the incorrect information because he and his family were fearful for the applicant’s safety in Pakistan. The Tribunal accepts that the applicant has been residing in Australia for a lengthy period of time, that he has strong family, community and employment ties in this country, has purchased a house and that he considers Australia his home. The Tribunal accepts that if the applicant’s visa is cancelled, and if he does not hold a permanent visa, he would be unable to sponsor his wife and children for the Australian visas and this may cause considerable hardship to the family. The Tribunal accepts that the applicant is settled in Australia and that he may experience harm if he was required to return to Pakistan. The Tribunal acknowledges the applicant has made a contribution to Australia. The Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicant for a number of reasons, including the effect on his mental health and the inability to sponsor his family to come to Australia. The Tribunal acknowledges the evidence of the applicant’s witnesses who spoke about the hardship caused by the cancellation of the visa. The Tribunal considers these are strong reasons why the visa should not be cancelled.

13. The Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached if the visa is cancelled. However, the Tribunal acknowledges that the best interests of the children may be adversely affected by the cancellation of the visa, primarily because the applicant will not be able to sponsor his family to come to Australia, unless he is granted another visa. The Tribunal acknowledges it is a primary consideration and has given it significant weight against the cancellation of the visa.

14. In the circumstances of this case, the Tribunal has decided to place greater weight on the fact that the decision to grant the visa was based on the incorrect information and, very importantly in the Tribunal’s view, that if the correct information was known, the applicant is unlikely to have met the requirements for the grant of the visa. This is because the applicant could not meet the definition of being a member of the family unit. The applicant’s own evidence is that his father was informed by a migration agent that there were no options for the applicant’s migration, which led to the family’s decision to deliberately provide incorrect answers to ensure the applicant would be granted the visa. That is, the applicant was well aware that he was obtaining the visa that he was not entitled to by the provision of the incorrect answers. The applicant’s present circumstances, including the length of his residence in Australia and his settlement in Australia, flow from the fact that applicant was able to obtain the visa he was not entitled to.

15. The Tribunal acknowledges and accepts the country information concerning the situation of Shia Hazara in Pakistan. However, the Tribunal places weight on the fact that the applicant is eligible to seek a protection visa onshore and that an assessment of his circumstances would be undertaken before the applicant is removed. In the Tribunal’s view, there is very little likelihood that the applicant would be removed from Australia. The Tribunal notes that  the Partner visa that the applicant holds was not granted because the applicant would face harm in Pakistan, it was granted on the basis of the applicant being a dependent child of his mother – a claim that  was not true. In the Tribunal’s view, if the applicant was to seek an Australian visa on the basis of being a Shia and a Hazara and facing harm in Pakistan, a protection visa would be more appropriate, which would necessitate a full assessment of such circumstances. Such assessment was not carried out in the applicant’s case.

16. The Tribunal acknowledges there are strong reasons why the visa should not be cancelled which, most significantly in the Tribunal’s view, relate to the best interests of the applicant’s children and the hardship that would be caused by the cancellation of the visa. The Tribunal has formed the view that such hardship would be ameliorated, to some degree, by the fact that the applicant is eligible to seek another visa in Australia which would allow an assessment of his circumstances and the situation in Pakistan, although the Tribunal acknowledges that there can be no certainty that the visa would be granted and even if it is, it may be some time before the applicant is granted a permanent visa and therefore a delay in his ability to sponsor his family to come to Australia. There are all reasons why the visa should not be cancelled.

17. However, in the circumstances of this case, the Tribunal has decided to place greater weight on other factors. In particular, the fact that the decision to grant the visa was based, in part, on incorrect information and, what is most significant in the Tribunal’s view, that the applicant would not have been entitled to the visa if the correct information was known. The Tribunal also places significant weight on the circumstances in which the non-compliance occurred. The applicant claims he had to the leave the country because the situation in Pakistan was unsafe. However, the applicant knew that he was not entitled to the visa. His evidence is that  his father received advice from a migration agent who informed him that he could not get the visa. Then the family, and the applicant, made a deliberate decision to falsify the information about the applicant’s marital status in order to get the visa to which the applicant knew he was not entitled to it. The Tribunal is not entirely convinced that the applicant’s conduct is justified by his claimed concern for his safety but even if the Tribunal were to accept that such concern was his main motivation, the Tribunal notes that upon entry to Australia, when the applicant was no longer concerned about his safety, he had made no effort to inform the Department of the incorrect information and to correct any errors. The applicant had the option of presenting truthful information and perhaps seeking a protection visa if he believed his life was at risk in Pakistan. He had not done so, preferring to remain in Australia as a holder of a visa to which he was not entitled, and to seek the Australian citizenship before coming forward with the truthful information.

18. The Tribunal has formed the view that the applicant’s expression of remorse is opportunistic, given his failure to engage with the Department since his arrival in Australia. The Tribunal has formed the view that the applicant has not been truthful with the Department, first by providing deliberately untrue information and later by omission or failing to correct the information.

19. Overall, the Tribunal has determined to give greater weight to the circumstances in which the non-compliance occurred (being a deliberate falsification of the applicant’s marital status), the fact that the decision to grant the visa was based on incorrect information and that the applicant may not have been able to meet the visa criteria if the correct information was known. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kira Raif
    Senior Member