Sanaee (Migration)

Sanaee (Migration) [2019] AATA 4506 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Mah Gul Sanaee
CASE NUMBER:  1726695
DIBP REFERENCE:  BCC2017/3366144
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 applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 09 August 2019 at 12:33pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – existence of near relative – consideration of discretion – secondary applicant in father’s Remaining Relative visa application – lack of involvement at time of application – best interest of Australian citizen child – non-refoulement obligations – Shiite Hazara – woman exposed to Western values – gender based violence – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 99, 100, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder’s father, Mr Bahram Ali Sanaee, gave incorrect information to the Migration Review Tribunal (MRT) at a hearing held on 7 May 2008. For this reason this decision needs to be read in conjunction with Decision: 1726685 relating Mr Bahram Ali Sanaee which sets out the circumstances in which the non-compliance occurred.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by her registered migration agent.
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
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.
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?
In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.
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.
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.
Pursuant to section 100, information is incorrect even though the person did not know that it was incorrect:
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.
Further section 99 provides:
Any information that a non-citizen 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.
The non-compliance identified and particularised in the s.107 notice was non-compliance in the following respects (s.101(b) of the Act):
The visa holder’s father, Bahram Ali Sanaee provided to an MRT hearing in May 2008 evidence to indicate that his brother Ghulam Sakhi, was deceased thereby enabling him to obtain a Remaining Relative visa subclass 115 to which he was not entitled.
At the time of the hearing held in May 2008, however, Ghulam Sakhi, was alive and living in Australia at residences found to be the same residence at which Bahram Ali Sanaee was living. The migration agent has submitted substantial submissions asserting that it was only after May 2010 that Bahram Ali Sanaee became aware that his brother Ghulam Sakhi was alive. For the reasons set out in decision 1726685 the Tribunal does not accept these submissions.
In terms of the visa holder herself, the Tribunal accepts that the MRT’s decision of 16 May 2008 confirms that the visa holder did not even provide evidence to the MRT at the hearing held on 7 May 2008.
While the visa holder’s awareness of the provision of incorrect information may be relevant to the considerations under r.2.41, it is not relevant to the Tribunal’s consideration of whether or not there was a breach. The Tribunal has found that Bahram Ali Sanaee did provide incorrect information to the Tribunal on 7 May 2008.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Migration Act by the applicant in the way described in the s.107 notice.
Background
The visa holder was born in October 1990, making her 29 years of age. It is claimed that she was born in Ghazni Province and that as many with a Shiite Hazara background did, she and her family fled to Quetta, Pakistan in 2006 to escape war and persecution by the Taliban.
As put to the visa holder under s.359A of the Migration Act, the Department had concerns that the visa holder had sponsored Mohammad Raza in an offshore spouse application and that there were concerns about identity and family composition. Nonetheless, this is a matter that was not subject of the NOICC and the Tribunal is confined to the incorrect information given by Bahram Ali Sanaee to the MRT hearing in May 2008 for the purposes of this review.
In respect of the issues before the Tribunal, it notes that the visa holder was 16 years of age when her father, Bahram Ali Sanaee, completed the application forms that were lodged in 2007. In terms of what the visa holder may have told the Department at the time of application, the Tribunal does not have evidence of what occurred at the time, and it is unlikely that the Tribunal will be able to determine the precise nature of the interaction between the visa holder specifically and the Department at such a lengthy time out from those events.
Further, 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”.
In these circumstances, it is difficult for the Tribunal to find adversely against the visa holder in terms of her intention to mislead or otherwise (although intention is irrelevant in the Tribunal’s considerations). For reasons explained below, the Tribunal also considers that someone with the visa holder’s profile at the time of application, and at the time of the breach, would not have had the ability to override what was essentially her father’s decision and intention to deceive the immigration officials.
Was there non-compliance as described in the s.107 notice?
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.
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.
Pursuant to section 100, information is incorrect even though the person did not know that it was incorrect:
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.
Further section 99 provides:
Any information that a non-citizen 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.
The non-compliance identified and particularised in the s.107 notice was non-compliance in the following respects (s.101(b) of the Act):
The visa holder’s father, Bahram Ali Sanaee provided to an MRT hearing in May 2008 evidence to indicate that his brother Ghulam Sakhi was deceased thereby enabling him to obtain a Remaining Relative visa subclass 115 to which he was not entitled.
At the time of the hearing, however, Ghulam Sakhi, was alive and living in Australia at residences found to be the same residence at which Bahram Ali Sanaee was living. The migration agent has submitted substantial submissions asserting that it was only after May 2010 that he became aware that his brother Ghulam Sakhi was alive. For the reasons set out in decision 1726685 the Tribunal does not accept these submissions.
In terms of the visa holder herself, the Tribunal accepts that the MRT’s decision of 16 May 2008 confirms that the visa holder did not even provide evidence to the MRT at the hearing held on 7 May 2001.
While the visa holder’s awareness of the provision of incorrect information may be relevant to the considerations under r.2.41, it is not relevant to the Tribunal’s consideration of whether or not there was a breach. The Tribunal has found that Bahram Ali Sanaee did provide incorrect information to the Tribunal on 7 May 2008.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Migration Act by the applicant in the way described in the s.107 notice.
Background
The visa holder was born in October 1991 and is now 27 years of age. It is claimed that as many of Shia Hazara background did, she and her family fled to Quetta, Pakistan in 2006 to escape war and persecution by the Taliban. The visa applicant is an ethnic Hazara of the Shia Muslim faith. It is claimed that she is married to Mohammad Reza an Afghan national who lives in Pakistan and that they have a daughter, Hania Sanaee, who is five years old and is an Australian citizen.
As put to the visa holder under s.359A of the Migration Act, the Department had concerns that the visa holder had applied to sponsor her putative husband, Mohammad Raza, in an offshore spouse application (subclass 309) on 30 January 2013. The application was refused due to concerns regarding identity and family composition. Nonetheless, this is a matter that was not subject of the NOICC and the Tribunal is confined to the incorrect information given by Bahram Ali Sanaee to the MRT hearing in May 2008 for the purposes of this review.
In respect of the issues before the Tribunal, it notes that the visa holder was 16 years of age when her father, Bahram Ali Sanaee, completed the application forms that were lodged in 2007.
In terms of what the visa holder may have told the Department, the Tribunal does not have evidence of what occurred at the time and it is unlikely that the Tribunal will be able to determine the precise nature of the interaction between the visa holder and the Department at such a lengthy time out from those events. Further, 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”.
In these circumstances, it is difficult for the Tribunal to find adversely against the visa holder in terms of her intention to mislead or otherwise (although intention is irrelevant in the Tribunal’s considerations). For reasons explained below, the Tribunal also considers that someone with the visa holder’s profile at the time of application, and at the time of the breach, would not have had the ability to override what was essentially her father’s decision and intention to deceive the immigration officials.
Should the visa be cancelled?
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).
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.
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
The correct information that should have been provided to the MRT on 7 May 2008 was that Bahram Ali Sanaee’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 holder’s father, stated in his application.
The migration agent has also argued that the actual breach was in fact a failure on the part of Bahram Ali Sanaee to notify the Department of the incorrect information once he learned that it was incorrect. As the Tribunal does not accept that Bahram Ali Sanaee 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 Tribunal places significant weight, however, on the fact that the visa holder was only 16 years of age at the time of the provision of the incorrect information and actually played no part in its provision. Indeed, as a young woman from Afghanistan the Tribunal accepts that she would have had little autonomy in respects of many aspects of her life, let alone making decisions and strategizing a migration outcome to Australia.
The content of the genuine document (if any)
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
The Tribunal finds on the basis of Mr Bahram Ali Sanaee’s marred credibility (as set out in Decision: 1726685 that the grant of the visa was based wholly on incorrect information provided at an MRT hearing held on 7 May 2008.
It would be unreasonable, however, to visit Bahram Ali Sanaee’s breach on the visa holder who was only 16 years of age at the time her father was making preparations to file a Remaining Relative visa and the Tribunal places significant weight on her lack of involvement in the provision of false information at the time of application and at the time of the hearing.
The circumstances in which the non-compliance occurred
Bahram Ali Sanaee’s conduct in denying the existence of his brother Ghulam Sakhi was an attempt by him to achieve a migration outcome. The incorrect information provided to the MRT in May 2008 occurred in the context of Bahram Ali Sanaee 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.
It appears from the Departmental decision that the visa holder submitted in response to the s.107 notice that friends and relatives advised her and her family to not admit to their knowledge of Ghulam Sakhi being alive. The Tribunal considers that it is highly likely that the visa holder was well aware that her uncle was alive as it does not seem plausible that her father and her uncle would not have met in Quetta on a frequent basis as part of the Hazara community. Nonetheless, the Tribunal has no evidence before it that the visa holder gave any incorrect information as evidence to the MRT on 7 May 2018. The Tribunal’s inquiry is confined to the matters in the s.107 notice.
Notwithstanding her awareness, the Tribunal finds it difficult to imagine that the visa holder would have had any agency in determining the fate of her family and that she would have followed as a matter of course her father’s instructions in terms of information to withhold from the Tribunal.

The present circumstances of the visa holder
The Tribunal places significant weight on the fact that the visa holder is a mother to an Australian citizen child and that she has lived in Australia for over the last eight years and is well-integrated into the community.
Policy in this cohort of cases 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.

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.
In ordinary circumstances the Tribunal does not accept that the visa holder could not live independently from her parents, siblings, cousins and nieces. The information before the Tribunal, however, indicates that the circumstances that the visa holder as a Shia Hazara woman would be returning to, along with a young child, require serious consideration in terms of the consequences and possible harm they might encounter due to their ethnicity.
Non-refoulement obligations
The visa holder claims to be an Afghani national but there is some doubt about whether the visa holder does not in fact have the ability to enter and reside in a third country. Information held by the Department advises that according to records of the Pakistan National Database and Registration Authority (NADRA), the visa holder’s purported uncles Ghulam Sakhi and Ghulam Reza hold valid Pakistan Computerised National Identity Cards (CNICs) and are therefore citizens of Pakistan. Both Ghulam Sakhi and Ghulam Reza claim that their CNICs were acquired fraudulently, but as the records of the NADRA show their CNICs to be valid, the Tribunal does not accept that these cards were acquired fraudulently.
The Tribunal therefore assesses the risks the visa holder might encounter if her visa were cancelled and she were returned to the country the Tribunal finds she has the right to enter and reside: 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.
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.
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;
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.
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.
Other areas in which extremists operate and have been known to target Shiite Hazaras is in Lahore, Peshawar and Sehwan.
The Tribunal also considers that extra emphasis should be placed on the fact that the visa holder not only has a profile in Pakistan as a Shiite Hazara but that she is also a woman who has had exposure to Western values.
Country information provided by the migration agent and sourced from the DFAT Country Information Report, Pakistan, 20 February 2019, states that women and girls in Pakistan are subject to rights based violations such as, but not limited to, gender based violence including (so called) honour killings and acid attacks, cruel, inhumane and degrading treatment by traditional justice systems called jirgas…forced marriage, kidnapping and bonded labour. DFAT also assesses that women and girls in Pakistan face a high risk of societal discrimination and violence particularly domestic violence, because of their sex. Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.
The Tribunal considers that it would be in the best interest of the visa holder’s child to remain with her mother wherever she may reside. Remaining in Australia with other relatives does not appear a reasonable option given that the Tribunal has sighted evidence that the visa holder’s child suffers from separation anxiety due to her family’s circumstances.
The Tribunal has considered the country information which indicates that the visa holder and her child would essentially be returning to a situation where the visa holder would not be able to provide materially for her child given the limitations on the freedom of movement and ability of Hazaras in Quetta, in particular, to live a life free of fear from possible threats. The threats are amplified because of the visa holder’s vulnerability as a woman with a young child, coupled with her Shiite Hazara background.
The Tribunal has placed significant weight on the future of the visa holder’s child in Pakistan where educational opportunities would be limited and there is also the prospect of serious limitations on the medical services that the visa holder would be able to access for her and her child in Pakistan.
In terms of whether the visa holder and her 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
The visa holder has not admitted to any wrong doing in terms of providing the MRT with incorrect information regarding the claimed death of her uncle Ghulam Sakhi. The Tribunal accepts that as a 16 year old female the visa holder was not in a position to influence the provision of correct information to the Department, given her father, Bahram Ali Sanaee, would have taken control of the migration process for their family.
Any other instances of non-compliance by the visa holder known to the Minister
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 about the identity of the person she claims is her spouse.
Time that has elapsed since the non-compliance
The non-compliance occurred some ten years ago now by the visa holder’s father. The visa holder and her extended 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 female Hazara, Shiite Muslim returning to Pakistan with a child, represents a real risk and that they would suffer serious hardship as a result of the cancellation of the visa of the visa holder.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of Australia’s laws in terms of criminal laws or generally other than the non-compliance by her father. The Tribunal does not have definitive evidence before it regarding possible non-compliance in terms of sponsoring a partner to Australia; a matter that will be assessed thoroughly by the Department.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of Australia’s laws in terms of its criminal laws or generally.
Conclusion
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 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.
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.
Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
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.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
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.

[2019] AATA 4506

9 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies