Tahira (Migration)

[2022] AATA 1148

Tahira  (Migration) [2022] AATA 1148 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Tahira

REPRESENTATIVE:  Ms Jill Vidler

CASE NUMBER:  2118734

HOME AFFAIRS REFERENCE(S):          BCC2018/1370711

MEMBER:Kira Raif

DATE:7 April 2022

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 07 April 2022 at 8:45am

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – incorrect or incomplete information given in visa application – identity, citizenship, family composition and residence and previous humanitarian visa application – contradictory information given in family members’ visa applications – non-compliance not conceded and original information maintained – discretion to cancel visa – visa would probably have been granted in any case – physical and mental health – family and community ties – children Australian citizens – best interests of children – cancellation of husband’s visa set aside – children’s probable separation from one parent – non-refoulement – country information – Hazara Shia – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Pakistan, born in November 1984. She was granted the Partner (Migrant) visa in April 2016. In January 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she did not comply with s 101 of the Act. The applicant provided her response to the NOICC and the visa was cancelled in December 2021. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. 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. Extracts of the Act relevant to this case are attached to this decision.

6. 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.

   The primary decision

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant’s partner is Mr Zahir Azimi, who arrived in Australia in March 2010 as an Illegal Maritime Arrival and was granted a permanent visa in July 2011. The applicant made an application for a Partner visa in March 2013, sponsored by Mr Azimi. When completing the application form, the applicant provided the following answers:

   a.The applicant was asked at Question 4 whether she or any other person included in the application had ever been refused an entry permit or an Australian visa. The applicant stated ‘no’,

   b.the applicant gave her date of birth and place of birth (Quetta, Pakistan) and details of her parents and siblings,

   c.the applicant gave personal details of her partner and his family composition,

   d.the applicant signed a declaration stating that the information in the application was complete, correct and up-to-date in every detail.

8. The applicant was granted the provisional Partner visa in September 2013 and a permanent Partner visa in April 2016.

9. The primary decision record indicates that following the visa grant, the Department received further information. In particular, the primary decision record indicates that in December 2007 an application was made for a Global Special Humanitarian (GSH) visa by the applicant’s claimed mother, Alia Begum Ali and the applicant was included in that application under the name of Tahera Begum Ali, born in Afghanistan and an Afghani citizen. The application was proposed by the applicant’s brother Ali Murad. The delegate notes the similarities in the stated family composition in the two applications. The application was refused in December 2007.

10. In March 2016 the applicant’s sister Sadia applied for a Medical Treatment visa to assist the applicant. In an interview with the Department officer Sadia stated she had four brothers and it appears that one of them is Ali Murad, the proposer in the 2007 GSH application.

11. The primary decision record indicates that when Sadia was interviewed, she claimed that her brother Rehmat was Pakistani but ‘pretended to be Afghani’. It is noted that Rehmat arrived in Australia in 2010 under a different identity and claimed to be an Afghan citizen but was determined to be a citizen of Pakistan. Rehmat provided a declaration on Form 888 in support of the applicant’s application, stating that he attended her wedding ceremony in Pakistan.

12. The primary decision record indicates that the applicant has a Facebook account with the profile name of Tahira Zahir and photographs on that account show her brothers Rehmat and Ali, as well as the spouse Zahir Azimi, at their wedding in Pakistan.

13. The primary decision record indicates that in May 2016 an officer of the Department contacted the phone numbers listed on Zahir Azimi’s phone. One was to Mr Zahir Azimi’s mother, who stated that he had travelled to Australia using a Pakistani passport. Another call was to Mr Azimi’s sister, who confirmed that he was born in Quetta, Pakistan.

14. The Departmental records show that the applicant’s Facebook record was linked to that of Muhammad Qadir Changazi, who had previously made an application for a GSH visa and listed the same family composition as Zahir Azimi. Muhammad Qadir provided his Pakistani passport, ID card and birth certificate issued in Pakistan. He had indicated that his parents held Pakistani ID cards, which are only issued to Pakistani citizens. He claimed that the applicant was his cousin.

15. The delegate concluded that the applicant was known as Tahira, born in Pakistan and that she provided:

    a.incorrect identity information in the GSH application claiming to be an Afghani citizen in order to obtain the visa,

    b.an incorrect answer about her husband’s nationality. The delegate noted that the applicant’s spouse was granted his visa on the basis of being an Afghan Hazara but concluded that Mr Azimi was a national of Pakistan and not Afghanistan,

    c.incorrect information about her family composition. It is noted that the applicant’s two brothers Rehmat and Ali Murad were resident in Australia at the time the application was submitted.

16. With respect to the non-compliance with s 101(a), the delegate found that the applicant:

    a.gave an incorrect answer to Question 14 of the form whether she had been known by any other name. The applicant did not respond to that question but Departmental records show that she had also been known as Tahera Begum Ali (with a different date of birth) and a national of Afghanistan,

    b.gave an incorrect answer to Question 38 about other names her partner had been known by. The Departmental records show that he was known as Muhammad Zahir.

17. With respect to non-compliance with s 101(b) of the Act, the delegate found that the applicant gave incorrect answers:

    a.to Question 4 when asked if she had been refused a visa to Australia. The applicant stated ‘no’ while the Departmental records show that she had previously been refused a GSH visa in December 2007,

    b.to Question 29. When asked about her siblings, the applicant stated that her brother Rehmat was living in Pakistan while the Departmental records show that he was living in Australia,

    c.to Questions 41 and 42 when claiming her husband was born in Ghazni, Afghanistan and was a national of Afghanistan. The delegate concluded that Mr Azimi was born in Pakistan and was a national of Pakistan,

    d.to Question 51 when claiming her mother-in-law Fatema Azimi was deceased. Departmental records show that an officer of the Department contacted Fatema in May 2016 and Mr Azimi’s phone records show he had regular contact with his mother in 2012–2013,

    e.to Question 86 which contained a declaration that the information on the forms was complete and correct.

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

18. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act. The nature of the alleged non-compliance is set out above.

19. In her response to the NOICC the applicant questioned the value of the evidence on which the delegate relied to reach the above conclusions. The applicant confirms that she had not previously applied for the GSH visa, that her brothers live in Pakistan, that her husband is a citizen of Afghanistan and not Pakistan and that his mother is deceased. The applicant states that despite the similarities in the family composition, she was not included in the GSH application proposed by Ali Murad in December 2007. The applicant states that it is common for individuals in Pakistan to be given the same names. The applicant reiterated that her siblings resided overseas.

20. The Tribunal finds that evidence unpersuasive. It is possible, in the Tribunal’s view, to have some similarities in the names and entirely possible that unrelated individuals would share the same name. However, in this case, there are several family members who shared the same name between the Partner application and the GSH application and in the Tribunal’s view, it is highly unlikely that the similarities in all the names were a mere coincidence.

21. The Tribunal also notes the evidence (as set out in the primary decision record) of the applicant’s sister Sadia who referred to her two brothers living in Australia. In her response to the NOICC the applicant states that her sister Sadia informed her that she had never received a call from the Department and had not provided information about her brothers. The Tribunal is of the view, however, that Departmental records are generally reliable and more reliable than the applicant’s own evidence. There is no reason to consider the particular evidence about information provided by Sadia to be inaccurate or unreliable. Notably, there is considerable benefit to the applicant and Sadia in denying that information as it undermines the applicant’s claims but not apparent benefit in the Departmental officers falsifying the information about their contact with Sadia.

22. The applicant also claims that Ali Sikandar and Ali Murad are not her brothers but are friends of her husband’s and states that their attendance at the wedding does not mean they are relatives. While the Tribunal accepts that this is the case, the evidence of their relationship (such as information in the various applications concerning the applicant’s family composition, as well as evidence of her sister) is not limited to their attendance at the wedding. It is the combination of all that evidence that offers a strong possibility that they are the applicant’s brothers.

23. The applicant states that she believes her husband to be an Afghan citizen as she has known him to be an Afghan citizen from 2008 when they first met and she requests the delegate to make further inquiries. The applicant notes that the husband had been issued with a tazkera and passport, proving him to be an Afghan citizen. The applicant states that her husband was unable to provide evidence of his Afghan citizenship as there are no birth records or other official records available and his date of birth is approximate.

24. The primary decision record indicates that Mr Azimi claimed he was not able to get any identity documents or, somewhat contradictory, to have lost the Afghan identity documents. The delegate notes that in August 2017 Mr Azimi attended an identity interview in relation to his citizenship application and made no mention that he was able to get the official Afghan identity documents. His cousin stated that he had made a genuine effort to obtain Mr Azimi’s identity documents but he had difficulty doing so in Afghanistan. The delegate was thus concerned about the authenticity of Mr Azimi’s Afghan identity documents, issued only a few months after his identity interview when Mr Azimi claimed he had been unable to obtain identity documents for a long time and also because Mr Azimi claimed he was born at home and no official record of his birth was issued, so that it would have been difficult to verify his identity at birth. The delegate thus dismissed the identity documents as evidence of Mr Azimi’s nationality. The delegate also noted that Mr Azimi’s brother Qadir provided evidence confirming his Pakistani citizenship and Qadir’s Pakistani passport and ID card verify his Pakistani citizenship. The delegate noted that those documents contained security features which are said to have reduced the incidence of document fraud. The delegate concluded that Qadir gained Pakistani citizenship at birth, under the Pakistani Nationality law, and Qadir’s birth certificate shows that he was born in Pakistan and that his parents hold Pakistani ID cards. The delegate found that if Qadir’s parents are Pakistani nationals, then Mr Azimi would be a national of Pakistan.

25. It is noted that the applicant claimed in her response to the NOICC that her husband Mr Azimi did not take part in the 2005 Pakistani census as he was afraid of being deported, however Mr Azimi claimed in his identity interview that he was not aware of that census.

26. The applicant states in her response to the NOICC that it is ‘impossible’ that her husband’s mother is alive. (The delegate notes that death records were provided with an earlier Orphan Relative application but were found to be unreliable.) That does not offer a satisfactory explanation for the evidence in the primary decision record that her phone number was found in Mr Azimi’s phone showing regular contact and that when a call was placed to her, she had identified Mr Azimi as her son. In the Tribunal’s view, that is strong evidence that she is alive and, therefore, that the applicant gave an incorrect answer on the application form when claiming her to be deceased.

27. The applicant states that she did not know why Muhammad Qadir Changazi listed her as a cousin and she claims he is her husband’s brother. The delegate notes that Mr Azimi’s sister Masooma referred to Mr Azimi as Muhammad Zahir (name at birth) on her Facebook page and also in her interview with an Immigration officer. The applicant suggested in her response to the NOICC that Masooma was too scared of calls from authorities but the Tribunal, like the delegate, finds that explanation unpersuasive, as the Tribunal is of the view that the persons conducting the call would have introduced themselves as being from an Australian Immigration authority (and not a Pakistani authority) and the delegate notes that the interview was conducted in relation to Mr Azimi’s citizenship application. Ms Masooma Azimi expressly stated that the applicant’s husband was known as Muhammad Zahir at birth.

28. In her declaration to the Tribunal dated 4 April 2022 the applicant states that she was born in Pakistan and is a citizen of Pakistan and an ethnic Hazara. The applicant denies that she was included in the GSH visa application and notes that the similarities in the family composition are not the same. She states that in Pakistan it is common to use the same names and it was not her brother who acted as a proposer in that application. She also states that the information in her Partner application was correct. The applicant outlines her family composition. The applicant again states that Sadia never received a call from the Department and denies that she stated what is recorded in the decision and maybe another person in the same household answered the phone. The applicant states that Ali Sikandar and Ali Murad are her husband’s friends and not her brothers. The applicant refers to her husband’s family composition, his identity and nationality. These issues formed the basis for the cancellation of the husband’s visa and are addressed in detail in the Tribunal’s decision relating to the applicant’s husband. The Tribunal adopts those findings here, and they need not be repeated.

29. As for the applicant’s evidence concerning her inclusion in the GSH visa, as noted above, the Tribunal does not accept the applicant’s explanations. The Tribunal does not accept it as a mere coincidence that a substantial number of the applicant’s relatives had been identified as being the same in the two applications and the Tribunal also places weight on the evidence of Sadia. The Tribunal does not accept, for the reasons stated above, that the evidence is incorrectly recorded or that another person spoke to the Immigration officers. The primary decision record also indicates that Sadia identified Ali Murad as a brother in her Visitor visa application, where there would have been no likelihood of another person answering the questions. In the Tribunal’s view, the combination of these matters does suggest that the applicant was previously included in the application made by her mother as a dependent applicant. That is, the applicant had previously made an application for a visa and was refused a visa.

30. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided when claiming that she had not been refused a visa previously. For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

31. 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).

32. 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 reg 2.41 of the Regulations. Briefly, they are:

    The correct information

33. The Tribunal has formed the view that the applicant did previously apply for another visa and was refused a visa and that is the correct information. For the reasons set out in the husband’s decision, the Tribunal cannot be positively satisfied that the applicant’s husband is a national of Pakistan and that he was born in Pakistan.

    The content of the genuine document (if any)

1. This is not relevant in the present case.

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

2. The applicant states that the decision to grant her the visa was not based on her husband’s nationality, or her brothers’ country of residence or her mother-in-law’s status. However, these factors are relevant to the applicant’s identity while her previous migration application may have been relevant to her character. Thus, these matters were relevant to Item 5001 and s 501 and therefore the decision to grant the visa was based, in part, on incorrect information. Nevertheless, the Tribunal also acknowledges that if the correct information was known, it is highly unlikely that the decision-maker would have reached a different conclusion with respect to the applicant’s Partner visa. Her husband’s country of birth or country of nationality, as well as her family composition were entirely irrelevant to that assessment.

   The circumstances in which the non-compliance occurred

3. The applicant denies that there was any non-compliance however, for the reasons set out above, the Tribunal has formed the view that the applicant gave incorrect answers in relation to her previous visa application. It is also likely, in the Tribunal’s view, that the applicant gave incorrect answers about her family composition as the Tribunal prefers the evidence of her sister Sadia. The Tribunal is of the view that the applicant would be well aware of her family composition and, in all likelihood, aware of her previous visa application. The Tribunal is thus of the view that the applicant had deliberately provided incorrect answers in her application.

   The present circumstances of the visa holder

4. The applicant refers to the presence of her partner in Australia and they have two children, born in 2018 and 2020, who are Australian citizens. The applicant provided to the Tribunal evidence relating to the births of her children.

5. The applicant refers to her settlement in Australia. In her declaration she states that she completed a language course at TAFE and later a Diploma of Early Childhood Education. The applicant refers to her past employment and involvement with community organisations.

6. The applicant refers to her health issues and states that if her visa is cancelled, her mental state and physical health may deteriorate to the extent that she may be unable to provide care to her children. The applicant refers to her husband suffering from depression. While the Tribunal accepts the medical evidence regarding the applicant’s health, there is no probative evidence to support her assertion that her health may deteriorate by the cancellation of the visa to the extent that she could not care for her children. The Tribunal does not accept that assertion.

7. The applicant refers to the medical condition and past procedures and states that she takes regular medication and she may not have access to free health and medical care (there is no probative evidence to support that claim). The applicant states that the cancellation of the visas has had an adverse effect on her family and children.

8. The applicant states that they could not enrol one of the children into kindergarten because they cannot afford to pay the full fees. The applicant refers to the financial hardship the family has experienced following the cancellation of the visa. She states that she has no support in Pakistan as her mother had recently died and her sister is in Australia and her husband is not a national of Pakistan and the children are citizens of Australia. The applicant refers to her connections in Australia and involvement in the local community. The Tribunal generally accepts the applicant’s evidence.

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

9. Nothing adverse is known about the applicant’s obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

11. The application was made in March 2013. Approximately nine years have 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

12. There are no known breaches of the law.

    Any contribution made by the holder to the community

13. The applicant refers to her voluntary activities for community organisations. The applicant also refers to her husband’s contribution to the community. The Tribunal accepts that evidence.

14. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

15. There are no persons whose visas would be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

16. The applicant has two children who are Australian citizens. Due to their young age, they are unable to live independently and will live wherever their parents live. If the applicant’s visa is cancelled, there is a possibility that the applicant may have to leave Australia. If she does so with her children, the children would be separated from their father (whose Australian visa has been reinstated and who may wish to remain in Australia). If the children remain in Australia with their father, they would be separated from their mother.

17. The Tribunal is of the view that it is in the best interests of the children to remain with their parents. While the Tribunal would generally consider that young children are capable of settling in any country, the circumstances in this case are different because if the children are to travel with their mother, they would travel to Pakistan (the applicant being a national of Pakistan). Country information concerning the situation of Hazaras in Pakistan is set out below and the Tribunal does not consider it would be safe for the children to live in Pakistan.

18. In these circumstances, the Tribunal is of the view that the cancellation of the visa would be contrary to the best interests of the children. It is a primary consideration.

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

19. The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments, or any obligations accorded by customary international law that are of a similar kind.

20. The applicant states that she is a Shia Hazara. The Tribunal has had regard to the 2019 DFAT report on Pakistan, which relevantly states with respect to Hazaras living in Pakistan:

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

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

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

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

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

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

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

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

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

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

    Hazara children born in Pakistan are entitled to Pakistani citizenship…

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

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

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

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

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

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

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

22. The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55 at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed. The Tribunal is also mindful that the applicant is eligible to make an application for a Protection visa onshore and her claims would be assessed as part of that process.

23. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

24. With respect to the principles of family unity, the Tribunal notes that the applicant’s spouse and two minor children, as well as extended family members, are in Australia. The Tribunal considers that the cancellation of the visa may be contrary to the principles of family unity.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

25. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and may be detained or removed from Australia. There is no suggestion of the applicant being detained for an indefinite period. The applicant is able to apply for certain visas onshore without Ministerial intervention but is subject to the limitations imposed by s 48. The applicant may seek other visas offshore in the future but may be subject to an exclusion period. If the visa is cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia. The Tribunal acknowledges these consequences are serious and may cause some hardship to the applicant.

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

26. Some of these factors are addressed above.

27. The applicant provided with her response to the NOICC evidence of her past study and a number of letters in support. The Tribunal acknowledges and accepts that evidence. The Tribunal accepts that the applicant completed study in Australia and that she is well regarded in the community. In her submission to the Tribunal the applicant refers to settlement in Australia and the ties she has formed. The Tribunal accepts that evidence. The Tribunal also accepts the applicant’s evidence about her health condition and accepts that the cancellation of the visa has had an adverse effect on her and her husband’s mental health.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant completed the application form in a way that incorrect answers were given or provided and that there are grounds for cancelling her visa. The Tribunal places some weight on the fact that the provision of incorrect answers would have been deliberate and that the applicant continues to provide incorrect information in her dealings with the Department (in response to the NOICC) and the Tribunal. These factors weigh in favour of the cancellation.

29. However, in the circumstances of this case, the Tribunal has decided to place greater weight on other considerations. Most importantly, the Tribunal has formed the view that it is in the best interests of the children that the visa not be cancelled because the cancellation of the visa may lead to the separation of the children from one of their parents or relocation of the entire family to a country where they may not be safe. The country information concerning the situation of Hazaras in Pakistan is also significant because the family (or the applicant) may be at risk of harm if the cancellation of the visa was to lead to the applicant’s return to Pakistan.

30. The Tribunal also places weight on the fact that the applicant is settled in Australia and has been living here for a number of years. The Tribunal acknowledges that the applicant has strong family, community and social ties in this country, the family have bought a house and the applicant’s husband was employed. These ties may be lost if the visa is cancelled. The Tribunal also accepts that the cancellation may lead to significant financial hardship for the applicant and her family.

1. The Tribunal considers it significant that the applicant was granted the visa on the basis of her relationship to her partner and the nature of that relationship has not been questioned. While the other matters that were raised in the NOICC and formed the basis of the cancellation were relevant to aspects of the application such as character and identity (for example, her previous visa application in a different name or her family composition), other matters appear to be entirely irrelevant to the Partner visa application (such as the sponsor’s place of birth, his nationality or his mother’s whereabouts). There is a real likelihood, in the Tribunal’s view, that the applicant would have been granted the visa even if the correct information was known and that weighs strongly against the cancellation.

2. Having regard to all the circumstances, the Tribunal has formed the view that factors that weigh against the cancellation outweigh those that weigh in favour of the cancellation.

3. 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

4. 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