Resident Return Subclass 155 Cancelled by Department of Home Affairs But AAT Sets Aside the Decision Under Review
Background Facts of the Subclass 155 Resident Return Visa Holder
The delegate cancelled the applicant’s Subclass 155 (Five Year Resident Return) visa pursuant to s 109(1) Migration Act. The Applicant who claimed to be an Afghan national arrived in Australia by boat in April 2010. He was granted a Subclass 866 protection visa on 10 January 2013. On 20 August 2018 he was granted the first of two Subclass 155 resident return visas, with the second being granted on 22 May 2019. The delegate cancelled his resident return visa on 17 June 2019 on the basis that he had given incorrect information in his protection visa application.
Issues identified
Whether the ground for cancellation in s 109(1) is made out, and if so, whether the visa should be cancelled.
The Immigration Law
Section 109(1) 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. 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.
Arguing the Visa Cancellation Decision Made by the Department
The applicant is a young male who applied for a protection visa in April 2012. He identified himself as a [name redacted], a citizen of Afghanistan of Hazara ethnicity born in Afghanistan on [date redacted]. On this basis, he was granted a protection visa. However, subsequent data matching and biometric checking made the Department aware that he had been included in an application for an offshore special humanitarian visa application lodged in 2005 under a different name with different family composition.
The applicant does not dispute that he was included in the 2005 offshore humanitarian visa under the name of [name redacted]. He concedes that he provided incorrect information in the manner set out in the s.107 notice, being that he stated that he had not previously made any visa application to the Department and that he failed to include the name [name redacted] as a name by which he had previously been known. As such, there was non-compliance with s 101(b) by the applicant.
The applicant submitted that the offshore application was made when he was young and did not know how to read and write, so he was not aware of the application. Further, his name was changed after his falling ill as a child consistent with Afghan customs. He further submitted that he did not disclose his brother’s name in the protection visa application as he did not want to be linked to him.
Should the RRV Applicant Visa be Cancelled?
Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
The Tribunal considers that the delegate’s decision to grant the applicant the protection visa was not based on the incorrect information.
The circumstances in which the non-compliance occurred was because he was told by people smugglers that his application would be refused if the Australian authorities became aware that he had a brother in Australia or that he had been refused an offshore humanitarian visa.
The applicant has gainful employment and pays tax. He sends money to support his brother and sister in Pakistan. A medical certificate dated 1 May 2019 reports that he suffers from anxiety and PTSD.
There is no other known instance of noncompliance or breach of law since the non-compliance occurred. The applicant stated he had not even lost a point on his driver’s license.
He is well respected in the community as evidenced by a support letter from a member of the Hazara Australian Community Association. The Applicant is active in attending and supporting community events and activities. He also donated money to bushfire recovery efforts.
The Tribunal also has regard to PAM ‘General visa cancellation powers’, specifically Australian international non-refoulement obligations.
The Tribunal has found that the applicant is of Hazara ethnicity and Shia religion and if removed from Australia he will be returned to Afghanistan. He has no close family members remaining in Afghanistan as his parents are deceased and his siblings live in Australia and Pakistan. If returned to Afghanistan, he will return to his home area of Jaghuri district, Ghazni province.
Security conditions in Jaghuri, Ghazni province deteriorated significantly in 2018, evidenced by large scale Taliban attacks in the Hazara dominated western areas of Ghazni province, including Jaghuri and Malestan.
The continuing armed insurgency has limited the ability of Afghans to travel safely from one part of the country to another by road.
Criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard.
Since mid-2016, militants have conducted ongoing attacks against Shia targets who face a high risk of being targeted by Islamic State Khorasan Province and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals.
Insurgent and terrorist groups have openly targeted Afghans of all ethnicities working for, supporting, or associated with the government and/or the international community.
The applicant will have to travel on Afghanistan’s road network to return to Jaghuri and as a Hazara he is vulnerable to abduction or violence while travelling by road. The departmental delegate assessing the applicant’s protection claims accepted the applicant himself was abducted by the Taliban on the roads between Jaghuri and Ghazni in 2011.
There is a real chance the applicant will face serious harm if returned to his home, for the essential and significant reasons of his Hazara race, his Shia religion, and his imputed political opinion.
The applicant would not be able to access state protection in Ghazni province to international standards and relocation to Kabul is not reasonable in his circumstances as there remains a risk of being targeted.
The Tribunal accepts the applicant has a well-founded fear of persecution for the essential and significant reasons of his Hazara ethnicity, his Shia religion and his political opinion if he is returned to Afghanistan, now or in the reasonably foreseeable future per Articles 1A(2) of the Refugees Convention.
Having regard to all the relevant circumstances, the Tribunal concludes that the visa should not be cancelled.
The Tribunal’s Decision Not to Cancel the Applicant’s Subclass 155 RRV
Tentative conclusion: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 155 visa.
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