Sanaee (Migration)

[2019] AATA 4502

Sanaee (Migration) [2019] AATA 4502 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bahram Ali Sanaee
Mrs Gul Ziwar Sanaee
Mr Itaf Hussain Sanaee
Miss Anisa Sanaee

CASE NUMBER:  1726685

DIBP REFERENCE:  BCC2017/1114928

MEMBER:Rosa Gagliardi

DATE:9 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 115 (Remaining Relative) visa.

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

Statement made on 09 August 2019 at 11:47am

CATCHWORDS
MIGRATION – cancellation – Other Family (Migrant) (Class BO) visa – Subclass 115 (Remaining relative) – ground for cancellation – incorrect information in visa application – existence of near relative – death of brother – consideration of discretion – history of misleading conduct towards the Department – grant of visa based on incorrect information – present circumstances of visa holder – non-refoulement obligations – Shiite Hazara – time elapsed since non-compliance – contributing members of community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 107, 109, 140
Migration Regulations 1994 (Cth), rr 1.15, 2.41; Schedule 2, cl 115.211

CASES
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 115 (Remaining Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that there was evidence that the first named visa applicant had provided incorrect information in respect of his Subclass 115 visa to the Migration Review Tribunal (MRT) at a hearing held on 7 May 2008.  The delegate on consideration of the evidence before it (Regulation 2.41) was not satisfied that there were reasons why the visa ought not be cancelled.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were 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 applicants.

5. On advice from the migration agent, the applicants (visa holders) despite numerous invitations have declined to appear to give evidence at the Tribunal.  This is because the Tribunal put to the first named visa applicant (the applicant) complex adverse information which appeared to point to his extended family having been involved in a web of fraud to get into Australia.  There were also issues in relation to the identity of some of the family members, how they were related and whether the first named visa had Pakistani nationality.  The migration agent has submitted that until she has access from the Department of Home Affairs to historical files relating to the family under FOI, she will not be able to respond to the Tribunal’s invitation to hearing and invitation to respond to the Tribunal’s s.359A letter dated 15 March 2019, and nor would the applicant be in a position to attend a hearing at the Tribunal. 

6. As this matter has now been outstanding for a significant period the Tribunal considered that it should proceed to make a decision on the basis of the information before it.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

13. The decision to cancel the visas was based on a finding that the first named visa holder provided incorrect statements to the Migration Review Tribunal (MRT) reviewing the case at the time of hearing held on 7 May 2008 and on the basis of section 99 of the Act, the first named visa holder did not comply with subsection 101(b) of the Act.

14. Subsection 101(b) provides:

    A non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

15. Section 99 provides:

    Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 1000, paragraphs (101(b) and 102(b) and section 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

16. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Migration Act whereby the applicant (visa holder) was required to provide correct information to the MRT.  The Tribunal’s considerations are confined to non-compliance by the visa holder to the incorrect statements to the MRT hearing held on 7 May 2008, as detailed in the Department’s NOICC dated 18 May 2017.

    Background

17. On 21 February 2007, the visa holder applied for a subclass 115 Remaining Relative visa.  The Remaining Relative Visa is a permanent visa for people whose entire family is living permanently in Australia and they have no close relatives (as defined) outside Australia.  The applicant’s sponsor was Abdulla Sanaee, his brother.  In the application, the visa holder states that his parents, Ghulam Ali and Bakhtawar, were deceased.  Furthermore, he stated that he had only two siblings: Ghulam Sakhi (deceased) and his sponsoring brother, Abdullah Sanaee, living in Australia.  The visa holder declared to the MRT that his brother Ghulam Sakhi died in a car accident in 2003 in Wardika, Afghanistan. 

18. The visa holder’s subclass 115 Remaining Relative visa application was refused by the Department on 10 May 2007 because it was not satisfied that the visa holder’s brother, Ghulam Sakhi, was deceased.  It was concluded that the visa holder had at least one near relative living outside Australia and that he therefore failed to meet criterion 115.211 for the grant of the visa as he did not meet the definition of a remaining relative as set out in Regulation 1.15.

19. The visa holder’s sponsor then proceeded to apply for review of the delegate’s decision with the MRT.  At review stage the visa holder’s sponsor, his brother, gave evidence that his parents had had 3 sons in all: himself (Abdullah Sanaee), the visa holder and Ghulam Saki who it was claimed was deceased.  In its decision dated 16 May 2008, the MRT wrote, among other things:

    As Ghulam Saki and his wife were travelling they stopped and asked for food and water, which is traditional in Afghanistan…The village people discovered the bodies of Ghulam Saki and his wife the following morning and believed that they had been hit by a car whilst they were walking in the dark on the side of the road.

20. Further, the MRT decision record states:

    [The visa holder] also gave oral evidence to the Tribunal…[He] stated that Ghulam Saki and his wife died in the third month of 2003.  [He] found out about their deaths 15 days after they died.  [He] was living in Kabul at that time and received word from the neighbours of Ghulam Saki that they had died on their way to a pilgrimage in Wardika…By the time he had arrived in Wardika, the villagers had buried the bodies of Ghulam Saki and his wife due to improper refrigeration…

21. Based on this information, the MRT found that the applicant was the near relative of the sponsor because he had no other relatives (as defined) outside Australia.  As a result of the MRT decision, the visa holder was granted his subclass 115 visa on 15 April 2010 as were other members of his family. 

22. According to the Department’s investigations, however, a male person named Ghulam Sakhi who purported to be a citizen of Afghanistan, entered Australia for the first time on 7 January 2012.  He declared his father’s name as Ghulam Ali and his mother as Bakhtawar.  These names are the same as those of the visa holder’s parents and the names of the sponsoring brother, Abdullah Sanaee.  According to Departmental records, Ghulam Sakhi was residing at the same addresses in Australia as had the visa holder.  Examinations of Ghulam Sakhi’s facial features revealed that there were strong similarities between the visa holder’s facial features and those of Ghulam Sakhi. 

23. At the time of the MRT hearing initially held in this matter, the visa holder is claiming that he did not know that his brother Ghulam Sakhi was alive.  The visa holder is not contesting that he did give false information to the MRT, albeit unintentionally.

24. The Tribunal considers that the evidence pointing to the visa holder providing incorrect answers to gain a visa to which he would otherwise have not been entitled, is compelling and that the correct information is that:

    ·The visa holder’s brother Ghulam Sakhi was alive at the time of the hearing of the MRT and that his brother had not died in the third month of 2003 in Afghanistan as he claimed.

25. Given the evidence unsurfaced by the Department as a result of its investigations, the Tribunal finds that there was non-compliance by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

26. 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).

27. At the time of the MRT hearing on 7 May 2008 it was argued that the visa holder genuinely believed that Ghulam Sakhi was deceased because he had died in a car accident given he had been informed by villagers that this was the case.   When he found out that this was in fact not the case, the visa holder did not inform the Department that his brother was alive because he feared for his life and the lives of his family members if their visas were cancelled and they were returned to Afghanistan.  The Tribunal does not accept that the visa holder was unaware that his brother Ghulam Sakhi was alive at the time of the hearing with the MRT.  In view of other potential migration fraud in which the applicant was involved as set out in the Tribunal’s s.359A letter, the Tribunal does not accept that the visa holder is a witness of truth and finds that he has tried to explain away his claimed lack of knowledge about his brother Ghulam Sakhi being alive, in a deliberate attempt to mislead the immigration authorities.  While this matter was not subject of the s.107 notice, but which is relevant to the Tribunal’s considerations in terms of Australia’s non-refoulement obligations under.2.41, there are also serious concerns that the visa holder is a Pakistani national given the Department’s checks with the National Database and Registration Authority (NADRA) of Pakistan.

28. The Tribunal has taken into account the migration agent’s submissions which assert that the visa holder had never meant to mislead the Department about his brother Ghulam Sakhi being alive, and that therefore, the visa ought not be cancelled on this basis.  It has also been argued, with little evidence, that the visa holder’s wife had no siblings and her parents had died more than 20 years ago and that he and his wife have been taking care of Ghulam Sakhi’s two sons because they have no one else to take care of them. 

29. The Tribunal prefers to rely instead on the extensive investigations of the Department which point to the visa holder having been part of a long history of misleading conduct towards the immigration authorities overall, and finds that the visa holder gave incorrect information to the MRT on 7 May 2008 to achieve a migration outcome.

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

    ·     the correct information

    ·     the content of the genuine document (if any)

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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

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

    The correct information

32. The correct information that should have been provided to the MRT on 7 May 2008 was that the visa holder’s brother, Ghulam Sakhi was alive and living in Australia.  Ghulam Sakhi did not die in a road accident in a village in Afghanistan as the visa holder stated in his application. 

33. The migration agent has also argued that the actual breach was in fact a failure on the part of the visa holder to notify the Department of the incorrect information once he learned that it was in fact incorrect.  As the Tribunal does not accept that the visa holder coincidentally came to find out his brother was alive when he was at a bazaar in Quetta, and that he happened to bump into Ghulam Sakhi there in May 2010, the Tribunal does not accept this contention.

    The content of the genuine document (if any)

34. Not applicable in this 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

35. The Tribunal finds on the basis of the visa holder’s marred credibility that the grant of the visa was based wholly on incorrect information provided at an MRT hearing held on 7 May 2008.  The Tribunal places considerable negative weight on the fact that the visa holder gained a visa due to the incorrect information provided.

    The circumstances in which the non-compliance occurred

36. The visa holder’s conduct in denying the existence of his brother Ghulam Sakhi was an attempt by the visa holder to achieve a migration outcome.  The incorrect information provided to the MRT in May 2008 occurred in the context of the visa holder having also provided the Department in his application with incorrect information to meet the criteria for a subclass 115 visa.  Furthermore, it seems he had been involved in providing incorrect information to assist others gain a migration outcome. 

37. It is true that the Tribunal has not sighted the original file and the application by the visa holder for the subclass 115 visa, but it can be presumed that given the preparedness of the visa holder to provide incorrect information to the MRT, that he likewise provided incorrect information to the Department by stating that his only near relative was Abdullah Sanaee in Australia (however the provision of incorrect information to the Department was not a matter set out in the NOICC).

38. It is noted that the migration agent sought the primary decision file regarding the grant to the family of the Remaining Relative (subclass 115) visas [OSF2007/022276] under Freedom of Information.  The Department wrote back to the agent stating, among other things, “Unfortunately, the original application file was destroyed in a fire in Dubai.  We do not have the completed application form nor any of the supporting docs, statements, additional forms etc that were supplied with the application, nor do we have any assessment notes or interview transcripts”.  

39. The migration agent has written to the Tribunal as it is currently constituted arguing that it is “extraordinary and highly prejudicial to the review applicants that we are unable to access the primary application file and we request that if the Member has access to any of the documents from that file, that they be made available to us”.  For the record, the Tribunal does not have any documents from that file and any adverse information available to it has been put to the visa holder under s.359A. 

    The present circumstances of the visa holder

40. The Tribunal has taken into account that the visa holder is now 55 years of age.  Had the visa holder been living in an affluent society and had access to appropriate medical services, the Tribunal would consider 55 years of age to be relatively young.  Nonetheless, the Tribunal accepts that the first named visa holder was born in Afghanistan (even if he later became a Pakistani national) and that he would have experienced severe hardship in his day to day living.  His photographs depict someone who appears to be a good deal older than 55 years, having experienced war and extreme economic hardship in Afghanistan as a Shia Muslim of Hazara background, which the Tribunal accepts the visa holder is.

41. The Tribunal has not had any submissions about either the mental or physical well-being of the visa holder before it to determine whether the Tribunal ought to take into consideration any illness that would make the return of the visa holder to either Afghanistan or Pakistan difficult.  The Tribunal can assume that the visa holder, his spouse and his children will not receive the level of medical care he would receive in Australia in either Afghanistan or Pakistan.  The Tribunal places some weight on this matter in the visa holder’s favour as he continues to older age.

1. Further, the Tribunal has also taken into account that the visa holder is now at a stage in his life where it would be extremely difficult for him to undertake work in either Afghanistan or Pakistan and the Tribunal has concerns that were he to return to either of these countries, he would not be able to earn a living for him and his family to subsist.

2. It has been argued that the visa holder is the grandfather and brother to Australian citizens, and the father of three children, and relative of numerous family members who have lived in Australia as permanent residents for some eight years prior to their visas being cancelled.  The visa holder and his family have therefore settled into Australia over several generations.

3. Policy also requires a decision-maker to consider the following four matters:

   ·If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the bests interests of the children;

   ·Australia’s international obligations;

   ·PAM3: Compliance and Case Resolution – Case Resolution – Guiding principles – Treatment of children; and

   ·Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment.

4. The Tribunal is also required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether upon cancellation a person would become an unlawful non-citizen.

5. The Tribunal has taken into that as a result of the cancellation of the visa holder, other family members will have their visas cancelled by operation of law, even though they had no part in the provision of incorrect information.  Two of the visa holder’s granddaughters were born in Australia and have experienced no other life. 

6. The visa holder holder’s daughter Anisa works at a childcare centre and Iltaf, his son works as a security guard after completing high school.  If the visa holder’s visa were cancelled it would also mean that his wife and two children would also have their visas cancelled and would be required to adjust to an environment such as Afghanistan or Pakistan where Hazaras are at risk generally (see country information in this decision).  The Tribunal considers that the consequential cancellation of the visas of the visa holder’s wife and children would produce harsh results for them in circumstances where the Tribunal is not convinced that they participated in any attempt to provide incorrect information to either the Department or the MRT.

   Non-refoulement obligations

7. In the migration agent’s submission it is argued that the visa holder and his family continue to fear harm on return to Afghanistan.  Nonetheless, the Department has credible evidence from the Pakistan National Database and Registration Authority that the visa holder holds a genuine Pakistan Computerised National Identity Card (CNIC).  The visa holder therefore has a right to enter and live permanently in Pakistan. 

8. While the applicant has not filed a protection visa against either Afghanistan or Pakistan the Tribunal has regard to the treatment of Hazaras in Pakistan, particularly Quetta where Hazaras leaving Afghanistan live, regardless of whether or not they are Pakistani citizens.  The country information indicates that Hazaras in Pakistan generally have been targeted by extremists for practising their faith.

9. Hazaras in Pakistan are easily identifiable in terms of their features and whether they are citizens or not is of no consequence to extremists.[1]  Home grown terrorist groups view Shiites as apostates, such as the Sunni jihadist group Sipah-e-Sahaba Pakistan, which spawned a virulent offshoot known as Lashkar-e-Jangvi (LeJ).[2] The current government is publicly expressing support for the Hazara community and has offered to improve security, however, as expressed in an article:

   High walls around the neighbourhoods of Pakistan’s embattled Hazara community in Quetta are designed to protect them from extremist militants, but also serve as a constant reminder of the threat they face.

   Soldiers and security checkpoints greet visitors to Hazara town, one of two large guarded neighbourhoods in the capital of Baluchistan, where religious and sectarian groups often target the mostly Shia Hazaras with bombs and guns.

   Despite improved security in recent years, partly because most Hazaras have moved in the guarded enclaves, hardline militants keep up attacks….[3]

   [1]

   [2] ‘Pakistani Hazaras face a constant threat of targeted violence.  Many say the security response has been ghettoizing and ineffective’, Sabrina Toppa, Global Post, 31 May 2018, accessed on 30 July 2019.

   [3] “’Under siege’: Fear and defiance mark life for Pakistani’s Hazaras’”, accessed on 30 July 2019. 

10. Further:

    “We are living under siege for more than 1-1/2 decades due to sectarian attacks” said Sardar Sahil, a Hazara lawyer and rights activist. 

    “Though all those checkposts were established for our security, we feel we were ourselves cut off from other communities”.[4]

    [4] Ibid;

11. The year 2018 saw several attacks on Hazaras by way of isolated shootings in Pakistan with two persons of Hazara ethnicity being shot in Quetta in March.[5]  In April 2018 gunmen attacked a vehicle in Quetta, killing a member of the Shia Hazara community [6] and later that month a shopkeeper in the Shia Hazara community was shot and killed [7]. On 28 April two other shopkeepers in the Hazara community were shot and killed in Quetta.[8]  Attacks were not limited to these instances.

    [5] ‘Pakistan: A Shia Muslim martyred, other injured in terrorist attack in Quetta’, Pak Tribune, 10 march 2018, accessed on 30 July 2019.

    [6] ‘Hazara man shot dead in Quetta”, The Nation, accessed on 30 July 2019. 

    [7] ‘Hazara shopkeeper gunned down in Quetta’, DAWN.COM, AP, 18 April 2018.

    [8] ‘Two killed in sectarian attack in southwest Pakistan:police’, Gul Yousafzai, accessed on 30 July 2019.

12. More recently in April 2019 in an attack on Hazaras in Quetta 20 persons were killed and dozens more were injured as a suicide bomber disguised as a labourer exploded himself at a vegetable market.[9]

    [9] ‘20 Killed in Quetta attack on Hazaras, Agencies, 13 April 2019, accessed on 30 July 2019. 

13. Other areas in which extremists operate and have been known to target Shiite Hazaras is in Lahore, Peshawar and Sehwan.

14. Under these circumstances, the Tribunal accepts that the lives of the visa holder and his family would be considerably diminished were they to return to Pakistan, so much so that there is a real chance they may face serious harm due to the targeting of Hazaras in Pakistan over the years, and the limitations on their freedom of movement and ability to live a peaceful life.  The Tribunal places significant weight on the circumstances the visa holder and his family would face on return to Pakistan.

15. In terms of whether the visa holder and his family were to return to Afghanistan, the Tribunal has sighted the extensive country information submitted in the migration agent’s submission, however, the Tribunal has found that the visa holder has a right to enter and reside in Pakistan. 

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

16. The visa holder has not admitted to any wrong doing in terms of providing the MRT with incorrect information regarding the claimed death of his brother Abdullah Sanaee.  He continues to maintain that he never deliberately provided such incorrect information.  Given the stakes in terms of all the members of his family who would be affected by a cancellation, he has continued to perpetuate his claims that he never intended to provide the MRT with incorrect information – a contention the Tribunal has not accepted.

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

17. The Tribunal set out in its s.359A letter instances of where it appeared that the visa holder may have attempted to mislead the immigration authorities to enable other relatives and their spouses to gain residency in Australia. 

    Time that has elapsed since the non-compliance

18. The non-compliance occurred some ten years ago now.  The visa holder and his family have become a part of Australian society over several generations.  The delegate when deciding to cancel the visa conceded that ten years was indeed a lengthy period of time.  Of itself, the time a visa holder may have spent in Australia due to the provision of incorrect information may play no role in persuading a decision-maker that a visa ought not be cancelled.  The Tribunal considers, however, that the visa holder’s circumstances as a Hazara, Shiite Muslim returning to Pakistan represents a real risk to himself and his family; Anisa and Iltaf and two other daughters, two granddaughters and his nephew, none of whom were responsible for the provision of the incorrect information but would suffer serious hardship as a result of the cancellation of the visa of the visa holder. 

19. It is claimed, and the Tribunal accepts that the visa holder is also a respected member of the Shia Hazara community in Australia along with his family members.

20. In respect of the children subject of this review, Anisa and Iltaf, the Tribunal has given consideration to the fact that they both arrived in Australia as children and have developed positive lives in Australia through education and by contributing to several industries in Australia on a long-term basis. 

21. The Tribunal has had regard to the letter of support for the visa holder by Best Way Scrap Metal where the visa holder has worked, dated 11 February 2019, referring to the valuable contribution made by the visa holder to the business and the community at large. 

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

22. The Tribunal is not aware of any breaches of Australia’s laws in terms of criminal laws or generally other than the non-compliance.  The delegate also noted that there appeared not to have been any breaches of the law since the non-compliance.

    CONCLUSION

23. The Tribunal views seriously the breach that occurred on 7 May 2008 in respect of the visa holder gaining a subclass 115 visa when he clearly did not meet the requirements. 

24. The Tribunal has carefully weighed the adverse information against the evidence under r.2.41.  The Tribunal has found, however, that in view of members of the Hazara community having a long history of being displaced and subject of war, both in Afghanistan and then Pakistan, the Tribunal has decided that no good purpose would be served by uprooting contributing members of the community who have lived here for a significant period without otherwise coming to the adverse attention of the authorities, and returning them to a country (Pakistan) where they would essentially be required to live in segregation and under constant threat of attack by extremists; an action that would be in breach of Australia’s non-refoulement obligations. 

25. Accordingly, 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 not be cancelled.  Having said this it goes without saying that any future applications made by this family in future will come under greater scrutiny.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 115 (Remaining Relative) visa.

27. The Tribunal has no jurisdiction with respect to the other applicants.

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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

    
    

‘The Trouble with being Hazara in Pakistan’s Quetta city’ Syeda Sana Batool, Mariam Ahmed,
4 April 2019, accessed on 30 July 2019.