Syed (Migration)

[2019] AATA 4593

Syed (Migration) [2019] AATA 4593 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mustafa Syed

CASE NUMBER:  1904870

DIBP REFERENCE(S):  BCC2016/3065457

MEMBER:Kira Raif

DATE:3 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 03 September 2019 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – ground for cancellation – incorrect information in visa application – limited to grounds specified in the NOICC – personal details and circumstance of applicant’s father – question mark against father’s date of birth – identity not withheld – authenticity of applicant’s father’s death certificate – evidence of third parties concerning death of applicant’s father – onus of establishing the facts giving rise to cancellation – credibility of third parties – plausible explanation – consideration of discretion – well settled in Australia for length period of time – significant degree of hardship – involvement in completion of visa application form – relevance to visa grant decision – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Mian v MILGEA (1992) 28 ALD 165
Zhao v MIMA [2000] FCA 1235

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 applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant claims to be a national of Afghanistan, born in July 1993. He was granted the Class BC Partner visa on 30 January 2013. On 25 August 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 1 March 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

   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.

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

   a.On 6 September 2008 the applicant’s brother, Agha Raza made an application for a partner visa. The application did not include any family members. On 23 December 2008 Agha Raza lodged a new application for a partner visa and included eight family members to be included as his dependents.

   b.On Form 47SP Mr Raza provided details of the applicant’s family members, including his mother, five siblings and two nieces.

   c.Mr Raza provided the following information in response to Question 37 of the application Form 47SP, Mr Raza stated that his father, Syed Nadir was deceased.

   d.In a telephone conversation with the delegate on 5 April 2009 Mr Raza confirmed that his family members, including the applicant, were dependents who were migrating with him. Mr Raza confirmed that his father died in a bomb explosion in Afghanistan.

   e.On 25 May 2011 the applicant and other dependents were granted partner visas on the basis of meeting cl.309.321 and r.1.12, as members of the family unit of the primary visa applicant. The applicant entered Australia on 15 June 2011.

   f.On 19 July 2011 the applicant submitted Form 80 for the purpose of his application for the Subclass 100 visa. In response to question 19 of the Form 80, the applicant referred to his father, left his given name and family name as blank, put ‘?’ as the date of birth. The applicant was granted the Subclass 100 visa on 30 January 2013.

   g.Since the grant of the visas, the Department had undertaken an investigation and found that the applicant’s father Syed Nadir was not deceased at the time of the application and that he continued to reside in Pakistan. The authorities in Pakistan confirmed to the Department that the applicant’s father was alive and was issued with the passport by the authorities in Pakistan in 2015.

10. There is other information on the Departmental file which was the subject of the Tribunal’s letter to the applicant under s.359A of the Act. This information is set out below.

    a.On 5 February 2014 the Department of Immigration received information from an organisation in Australia alleging that the applicant was also known as Syed Hajji Raza Nadir and that his brothers Syed Zulfiqar Shah Kazimi and Syed Yousuf Yaqubi had faced court in Quetta, Pakistan in 2011 on charges of people smuggling.

    b.Since the applicant’s arrival in Australia, the Department received evidence that his two brothers, Syed Zulfiqar Kazimi and Syed Youssef Yaqubi and his father are Pakistani citizens. His brothers hold Pakistani passports containing Pakistani national identity numbers which corresponded to those held in the Pakistani national database. These documents record the holders as having been born in Lahore, Pakistan.

    c.The applicant claimed that he and his dependent family members were all born in Shashpar, Ghazni province, Afghanistan. The Department holds a biodata page of a Pakistani passport belonging to Syed Zulfiqar Kazimi, which states that he was born in Quetta.

    d.When making the application, the applicant referred to his mother as Aqueelia Bibi, his brothers Syed Hussain Murtaza Syed, Syed Mustafa and his sisters Farzana Bibi, Shehanaz Bibi and Hameeda Bibi. The Department subsequently confirmed that Hameeda Bibi was the applicant’s sister-in-law, married to his undeclared brother Syed Zulfiqar Kazimi.

    e.In his own Australia visa application made in or prior to 2010, Syed Zulfiqar Kazimi stated that

    i.His father Syed Nadir was alive and living in Pakistan and that his mother Aqueela Bibi recently returned to Pakistan to be with her husband.

    ii.Bibi Hameeda was his wife and not cousin as was previously claimed.

    iii.He had two children and not four as he previously claimed. He added more children to his family composition list in order to bring his cousins to Australia.

    iv.That the applicant was his brother and not cousin, as he claimed. 

    f.The Department investigations showed that the birth certificates for Kazimi’s children were bogus documents because they incorrectly stated their father as Syed Jahangir. Kazimi confirmed that Syed Jahangir was a deceased cousin who had never married.

    g.Hameeda Bibi’s marriage certificate showing her marriage to Syed Jahangir was a bogus document because she was never married to Syed Jahangir.

    h.Kazimi provided an Afghan driver’s licence to the Department as evidence of his identity. This was assessed by the DIBP Document Examiner to be a fraudulent document.

    i.The Department received two Pakistani passports for Kazimi. The two passports had different numbers, one was issued by the embassy of Pakistan in Kuwait on 28 April 2002 in the name of Syed Zulfiqar with the ID number 544000564198-1. The second passport, with a different number, was issued on 15 January 2007 in the name of Zulfiqar Shah Syed. It has the same ID number.

    j.The Department received advice from Islamabad that Syed Yousuf Yaqubi was arrested by local authorities in July 2011 for false identity claims. He was identified as a citizen of Pakistan (rather than Afghanistan as he claimed in his Australian visa application) on the basis of his ID card. Syed Zulfiqar Shah (aka Kazimi) was also identified as a citizen of Pakistan.

    k.Kazimi informed the Department that he lived in Afghanistan until 2007 when he moved to Pakistan. This is not consistent with the fact that he is recorded to have had a Pakistani ID number since 2002 and to have acquired Pakistani passports in 2004 and 2007.

    l.In March 2011 the Department received an allegation from an identified source that Kazimi is not from Afghanistan, that he has a people smuggling business in Malaysia and that his father had a Pakistani ID card and was a citizen of Pakistan. Information indicates that Syed Nadir Shah, Sayed Hajji Raza, Syed Mustafa and Syed Murtaza had been charged with people smuggling offences.

11. In the Tribunal’s view, that information is relevant as it shows that the applicant and his family members had provided false or  misleading information in their past dealings with the Department. Significantly, the information also indicates that the family has ready access to bogus documents (such as birth records and marriage certificate). The Tribunal is mindful that in response to the NOICC the applicant provided his father’s death certificate and statements from community members. The Tribunal sought to verify the death certificate through the overseas post but was informed on 23 August 2019 that such verification could not be done. Given the provision, and the availability of bogus documents in the past, the Tribunal has formed the view that such documents are unreliable and should be given no weight.  

12. The delegate found that the applicant failed to comply with s.101(a) by not providing the given name, the family name and the date of birth of his father in response to Question 19 of Form 80. The delegate also found that the applicant did not comply with s.101(b) by providing incorrect information in response to Question 37 of Form 47SP by referring to his father Syed Nadir as being deceased. The delegate acknowledged that the applicant did not complete the form himself but found, by reference to s.99 of the Act, that he was taken to have given that information. The delegate noted that if the correct information was known, the applicant may not have been assessed as being a member of the family unit of the primary visa applicant.

13. In his submission to the delegate of 8 September 2017 the applicant stated that his father had died in a bomb blast on 1 December 2001 and the applicant presented a statement from his mother who outlined the difficulties of raising the family on her own. The applicant states that the family had a funeral ceremony for their father and fled the country shortly after for their safety. The applicant states that his father is Nadir Syed and not Syed Nadir Shah.

14. In his submission to the delegate of 12 February 2019 the applicant stated that he had not lived in Afghanistan since 2001 and that it is unsafe for him to return. The applicant refers to the large amount of false or misleading information which has come to the Department and which is outside of his knowledge. The applicant states that some of the allegations result from a land dispute between the applicant’s family and descendants of an uncle. That land dispute caused the applicant’s father and oldest brother to remain in Afghanistan in order to sell the land and his father was killed. The applicant accepted that documents were submitted by his family which ‘turned out not to be authentic’. The applicant notes that some were obtained in good faith from the Afghan Consulate in Quetta. The applicant states that other allegations – including the family’s involvement in people smuggling – were not true. The applicant states that the family believed his father was killed and they had recently obtained a new death certificate in Kabul. They do not know who the person is who claims to have a similar name to his father and they suspect that person used the same broker. The applicant states that two members of the family dealt with the Pakistani authorities to obtain identity documents to enable them to work but they had no contact with the Pakistani authorities since coming to Australia and any reference relating to them dealing with Pakistani passports is false. The applicant states that any facial imaging assessment confirming Pakistani identity ‘cannot be taken seriously’.

15. The applicant submits that there is ‘strong evidence’ that the family’s claims are truthful. The applicant presented to the delegate a letter from the President of the Afghani Fajar Association who confirmed the death of Syed Nadir. He also presented statements from other members of the Australian Hazara community who originated from the same district as the applicant’s family who also confirm the death of the applicant’s father.

16. The applicant submits that the information provided by Pakistani authorities as to an unknown person in Pakistan who claims to be, or who is claimed to be the applicant’s father is false and should be given no weight. The applicant states that the family has been recognised by the local Hazara community and that should be definitive. The applicant states that he has been a model resident in Australia since his arrival, has supported his family and paid taxes. The cancellation of his visa and loss of employment would be ‘catastrophic’ for his family.

17. In his submission to the Tribunal of 8 July 2019 the applicant agrees that Hameeda is his sister-in-law and not his sister. The applicant states that Hameeda and her daughters were living with him at the time of the application and were dependent on him and met the visa requirements as dependent family members.

18. The applicant repeated the information set out in his earlier submissions to the delegate, stating that his father was killed around December 2001 and that it is not accepted that the person living in Pakistan is his father. The applicant states that his brother Kazimi married Hameeda and obtained false documents showing him to be a Pakistani citizen before traveling to Australia in 2010. The other brother Agha also obtained false Pakistani documents to be able to work in Pakistan but not other family members as there was no need for that. The applicant denied the allegations that Kazimi visited Dubai and also that Hameeda did not marry Syed Jahangir.

19. The applicant states that the family are not aware of the court case in Quetta in 2011. He states that none of his family members had been to Lahore or were Pakistani citizens. The applicant states that his family members were born in Shashpar and the list of members of the family unit was correct with the exception of Hameeda.  The applicant states that Kazimi has no memory and does not have an Afghan licence and it would be ‘unsound’ to base his own visa decision on the basis of his brother’s licence. The applicant states that the use of different numbers on the passports may indicate that the brokers re-used some of the documents for other purposes. The applicant states that his brother Kazimi never lived in Malaysia and the family was not involved in people smuggling.

20. The applicant provided country information concerning identity, stating that he holds a tazkera and its validity has not been questioned. The applicant also refers to the statement from community leaders about the family’s background.  The applicant states that any facial imaging assessment is unreliable and that they speak Afghan Hazaragi rather than Quetta or Pakistani Hazaragi. The applicant notes that his brother Agha obtained the Afghani tazkera in 2008 and there was no reason for him to obtain a false one. The applicant also states that his mother travelled to Pakistan from Australia to visit her daughters using the Afghani passport and at no time was she informed that her husband was alive and well in Pakistan. The fact that she was issued a visa suggests that she is not considered to be Pakistani (the Tribunal notes the applicant’s earlier evidence that it was only his brothers who obtained the false Pakistani identity and not other family members, so there would appear to be no reason for the mother to be accepted as a Pakistani national).

21. With respect to the criminal matters, the applicant refers to the family dispute. The applicant states that the $40,000 paid to the family was for valuable carpets and not the result of people smuggling.

22. The applicant admits that he provided false or misleading information in relation to his sister Hameeda and failing to include his three siblings but he denies the other allegations. The applicant submits that there are grounds for not cancelling the visa. The applicant included with his submission to the Tribunal a number of documents, including passport and tazkera copies for family members.

23. The applicant provided a further submission to the Tribunal on 1 August 2019. The applicant states that he and his family were involved in an inheritance dispute over farming land in Afghanistan and large sums of money were spent by family members to discredit the applicant and his family to gain control of the land. The leaders of the Sydney Afghan community intervened but the damage was already done. The applicant states that he and his family are victims of such dispute. The applicant presented a number of documents concerning land disputes in Afghanistan. The applicant states that there is strong evidence that he and his family were born in Shashpar, Ghazni, Afghanistan.

24. The applicant notes that he has not been given access to all the documents and cannot provide an effective response. The Tribunal has formed the view that it has given the applicant sufficient particulars of information that may be a reason or part of the reason for affirming the decision under review and while there may be other information to which the applicant alludes in his submissions, the Tribunal does not intend to rely on such information that has not been presented to the applicant and considers it of no relevance.

1. The NOICC identifies the breach as the applicant’s failure to state the personal details of his father on Form 80, contrary to s.101(1) of the Act, and the incorrect answer given, in relation to the father’s death, contrary to s.101(2) of the Act. The Tribunal is mindful that other matters set out above, may indicate that the applicant had given incorrect answers in his application in other respects, in particular, the family composition (his relationship with his sister-in-law and failure to mention some of his siblings). However, while these may be relevant to the assessment of the applicant’s overall credibility or show other instances of non-compliance, these matters were not specified in the NOICC and cannot form the basis of the cancellation. The Tribunal acknowledges that the delegate may choose to issue a further NOICC in relation to these matters in the future.

2. One of the issues identified in the NOICC is the applicant’s claim that his father is deceased. The delegate refers to the information received indicating that a person with his father’s personal details has been issued with identity documents or a passport. The applicant claims that the passport in Pakistan was arranged by someone else and that such person may have used his father’s identity to provide false identity documents to others. The applicant provided a number of statements from community representatives who refer to the father’s death and he also produced his father’s death records. As noted above, the Tribunal has sought verification of the two death certificates with the overseas authorities but was unable to verify these documents.

3. The Tribunal acknowledges the applicant’s explanations about the use of false identity documents and how these could have been arranged for another person rather than his father. However, the Tribunal has found that the applicant or his family had access to bogus documents in the past relating to marital status and family composition of siblings. There is evidence that the applicant’s family was able to obtain, and produce to the Department, bogus birth certificates to support their claimed relationships. The applicant’s own evidence is that document fraud is common in Pakistan and that bogus documents can be easily obtained. Having regard to that evidence, the Tribunal does not accept the applicant’s evidence as to why a person with his father’s details had been issued with identity documents when the applicant claims his father is deceased.

4. Nevertheless, the Tribunal acknowledges the evidence of third parties concerning the death of the applicant’s father. There are statements from members of the community who not only confirm the applicant’s identity as an Afghani national, but also refer to the death of his father. There is nothing before the Tribunal to indicate that those who provided statements are not witnesses of credit or that their evidence is unreliable.

5. The onus of establishing the facts that give rise to the cancellation rests with the decision-maker (Mian v MILGEA (1992) 28 ALD 165 at 169). Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA [2000] FCA 1235, the Court stated:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

6. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109.

7. The NOICC refers to evidence that a person with the personal details of the applicant’s father has been issued with a passport or identity documents. The applicant offered an explanation for that and produced documents from third parties as to why this may have happened. While the Tribunal does not consider the applicant himself to be a credible witness, the Tribunal cannot draw any adverse credibility findings in relation to third parties. It is at least plausible that those responsible for the provision of fraudulent identity documents in Pakistan may use other people’s identities when preparing such documents. Without more information and without the possibility of verifying his father’s death certificates presented by the applicant, it is not possible, in the Tribunal’s view, to reach a positive state of satisfaction that incorrect answers were given. Neither can the Tribunal reach that view on the basis of its finding that the applicant is not a credible witness. As noted above, while the applicant concedes that some of the answers on the forms were not correct, these were not specified in the NOICC. Overall, the Tribunal has formed the view that there is insufficient evidence to form the view that the applicant gave an incorrect answer concerning his father’s death.

8. The only other ground specified in the NOICC which formed the basis of the cancellation was the fact that the applicant failed to give his father’s name and surname on the application form. He put a question mark against his father’s date of birth and provided his nationality. The Tribunal is mindful that the applicant did provide details of his father in various documents that were submitted with the application. It cannot be said that he sought to withhold information about his identity and, indeed, the father’s claimed death was the one of the bases for the cancellation. In the Tribunal’s view, it cannot be said that the applicant did not complete the form in a way that not all questions on it were answered in circumstances where information about the father was provided on parts of the form and in additional documents that accompanied the application form. In the Tribunal’s view, that is not sufficient to substantiate a finding that the applicant did not comply with s.101(1) of the Act.

9. Having considered all the circumstances, the Tribunal is not satisfied that the applicant completed his form in a way that incorrect answers were given or that he completed the form in a way that not all questions were answered, insofar as these bases were identified in the NOICC. It may be that the applicant gave incorrect answers in relation to other matters, however, these are not the grounds for cancellation set out in the NOICC.

10. For these reasons, the Tribunal finds that there was  non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

11. Even if the Tribunal is wrong in its findings, and if it were established that the ground for cancellation exists, for the reasons that follow, the Tribunal would exercise discretion in favour of the applicant. 

    Should the visa be cancelled?

12. 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).

13. 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

14. The applicant stated that his father had been killed a long time ago and he claims that is the correct information. 

    The content of the genuine document (if any)

15. The applicant submits that the death certificate relating to his father is a genuine document and there is no evidence to suggest otherwise. However, as noted above, the applicant and his family appear to have provided incorrect answers and bogus documents in their past dealings with Immigration and the Tribunal has formed the view that firstly, the applicant is not a person of credibility, and, secondly, that bogus documents are available to the applicant and his family. However, that in itself is not sufficient to positively establish that the information about the father’s death was incorrect. It is unfortunate that the Tribunal has been unable to verify the death certificates presented by the applicant.

    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

16. The applicant made the application as a member of the family unit of his brother, who was the primary applicant. The applicant would have been required to meet r. 1.12 and the definition of the ‘member of the family unit’ and, as part of that process, his dependence on the brother. The presence of the applicant’s father may have been relevant to the assessment of whether the applicant was a dependant relative of his brother but it is not necessarily apparent that it was determinative of such an assessment. That is, the applicant could have been a member of the family unit of another person whether or not his father was alive.

    The circumstances in which the non-compliance occurred

17. The applicant claims that he was very young when the form was completed and he lacked education and the forms were completed by somebody else and he did not know what was required.

    The present circumstances of the visa holder

18. The applicant states in his submission to the delegate that he entered Australia in 2011 and has been working as a truck driver. He has made Australia his home and built a career and established strong ties to the Australian community. The applicant provided to the delegate evidence of his employment.

19. The applicant states that he had purchased a house in NSW and he provided to the delegate evidence of the purchase. The applicant states that his family live in his property and the purchase was only made possible through pooling of finances by each family member, as well as the applicant’s income. The Tribunal is prepared to accept that evidence.

20. The applicant refers to the importance of family in Afghani culture and he states that he and each member of his family have adopted Australian culture and he has been working to contribute to the basic needs of the family. The applicant states that in their culture, men are usually the breadwinners for the family and he is one of the major contributors to the family’s finances. The applicant states that his mother requires daily assistance with domestic chores and medical visits as her health is poor. The applicant states that he contributes to his mother’s medical expenses and if his visa is cancelled, the family will suffer financial hardship. The applicant presented little documentary evidence about the income and expenses of other family members and there is little probative evidence to support the applicant’s claim that his family would suffer financial hardship if his visa is cancelled. The applicant’s oral evidence to the Tribunal is that his mother and siblings have had their visas cancelled and only one of his sisters remains a permanent resident. In such circumstances, the Tribunal is not satisfied that the applicant’s presence in Australia to support his family is needed.

21. The applicant told the Tribunal that he has been working since arriving in Australia and he referred to his employment and claims to have been paying his taxes.

22. The applicant told the Tribunal that he has a girlfriend who is an Australian citizen, but they are not yet married and he has not yet proposed to her. There is very little documentary evidence about the relationship before the Tribunal.

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

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

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

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

    The time that has elapsed since the non-compliance

25. The application was made in 2008 and over ten years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

26. There are no known breaches of the law. The applicant claims in his response to the NOICC that he never committed any offences in Australia and has abided by all visa conditions.

    Any contribution made by the holder to the community

27. The applicant states that he is a contributor to the Australian workforce and economy through his tax contribution. The Tribunal accepts that the applicant has been employed and pays taxes.

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

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

29. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future applications made offshore. The applicant may also lose some of the entitlements he may have acquired as a permanent resident if he is no longer a holder of a permanent visa.  The applicant claims he has nothing to go back to in Afghanistan. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant. 

    Whether there would be consequential cancellations under s.140

30. There are no persons whose visas may be cancelled under s.140 of the Act.

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

31. The applicant told the Tribunal there are no children who would be affected by the cancellation. Most of the applicant’s immediate family are in Australia but he confirmed in oral evidence to the Tribunal that most of his family members do not hold permanent visas. The Tribunal does not consider that the principles of family unity necessarily require the applicant’s presence in Australia.

32. In his submission to the delegate the applicant refer to the unsafe situation in Afghanistan. He states that if his visa is cancelled, the applicant would face the same danger people now experience in Afghanistan and there is a possibility he would face the same fate as his father. In oral evidence, the applicant also talked about the dangers of living in Afghanistan, referring to the unsafe situation. The applicant states that he cannot live in Pakistan. The applicant referred to the land dispute in Afghanistan. The applicant provided to the Tribunal a number of country reports and he refers to the situation in Afghanistan and Pakistan, stating that it would be unsafe for him to return to either of these countries. The applicant provided further evidence concerning Australia’s non-refoulement obligations in his submission of 30 August 2019. The Tribunal acknowledges the applicant’s claim that he fears harm in Afghanistan.   

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

33. The applicant states in his submission to the delegate that he has been employed as a truck driver and such employment requires attention, patience and skill. Should his visa be cancelled, the business would lose an invaluable member of their staff. The Tribunal is prepared to accept – although there is little documentary evidence for it – that the applicant is considered to be an invaluable member of staff. The Tribunal also acknowledges that if the visa is cancelled and if the applicant is required to leave Australia, he may leave the company. However, there is no convincing evidence before the Tribunal to show that this would have a detrimental effect on the business. There is no information about the number of employees or other truck drivers that the business has, and whether arrangements have been made, or can be made, to train other staff and what arrangements are in place in case the applicant decides to leave this employer in the future. On the limited evidence before it, the Tribunal is not satisfied that the cancellation of the applicant’s visa would have a negative impact on the business.

34. The applicant submits that he works and supports his family and the cancellation of his visa, which may lead to loss of employment, would be ‘catastrophic’ for his family. The Tribunal accepts that the applicant has provided financial support to his family, although the Tribunal is also mindful that the majority of his family are no longer holders of permanent visas.

35. The Tribunal has found that the applicant had not breached s.101 but if there was a breach, the Tribunal would place greater weight on the fact that the applicant has been living in Australia for a lengthy period of time, is well settled in Australia and the significant degree of hardship that may be caused to him if he was returned to Afghanistan, having regard to the presented country reports and the fact that the applicant has not resided in Afghanistan for several years. The Tribunal would also place considerable weight on the fact that the applicant was a minor when the forms were completed and he had little involvement with the forms. It also appears that the incorrect answers, if such were given, would not have been significant to the decision to grant the visa as the assessment was in relation to the applicant being a member of the family unit and not his family composition. It would have been entirely possible for the applicant to meet the criteria for visa grant whether or not his father was alive. The Tribunal is of the view that in the particular circumstances of this case, the degree of hardship that would be caused by the cancellation and the circumstances in which the non-compliance occurred (which suggests very little, if any, involvement by the applicant) outweighs other considerations. Thus, the Tribunal would exercise its discretion not to cancel the visa.

    Conclusion

36. The Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

1. However, even if the Tribunal were to find that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, having regard to all the relevant circumstances, as discussed above, the Tribunal would conclude that the visa should not be cancelled.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

   Kira Raif
   Senior Member