1417964 (Refugee)

1417964 (Refugee) [2015] AATA 3959 (16 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417964
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Glen Cranwell
DATE:16 December 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 December 2015 at 1:11pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] October 2014.
The applicant appeared before the Tribunal on 10 November 2015 and 16 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto/Pushtu and English languages. The second hearing was necessitated as the applicant had difficulty understanding the interpreter during the first hearing.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This material includes:
·application for protection visa;
·statutory declaration of the applicant dated [in] December 2012;
·written submissions of the representative dated [in] November 2013;
·copy of applicant’s national identity card;
·copies of the applicant’s birth certificate, educational qualification and character documents;
·newspaper articles and photographs relating to the applicant’s [relative], [name];
·record of applicant’s entry interview;
·applicant’s interview with the delegate dated [in] October 2013;
·Document Examination Report relating to the applicant’s passport and national identity card;
·applicant’s statement dated [in] September 2014 (with attachments);
·applicant’s statement dated [in] November 2015 (with attachments);
·pre-hearing written submissions of the representative dated [in] November 2015;
·photocopy of the applicant’s passport;
·threat letter from Tahrik-e-Taliban;
·First Incident Report;
·newspaper articles relating to Shias.
Relevant to this decision, the applicant provided the Department with a supplementary statement dated [in] September 2014 in response to the natural justice letter from the Department dated [earlier in] September 2014:
I make this statement in response to the Invitation to provide further information under section 56 of the Migration Act 1958; and Invitation to comment on relevant information under section 57 of the Migration Act 1958. I continue to rely on the information I provided in my Statutory Declaration dated [date] December 2012.
Item 1: Passport
At my interview on the [date] October 2013 I gave my Pakistani Passport to the case officer. I believed then and continue to believe that the passport I provided was a genuine passport. I attended in person at the passport office in Kohart. It was a difficult journey to get to Kohart but I made the trip because you have to make an application for a passport in person because you have to provide fingerprints and a photograph. I provided my address on the application and the passport was sent to me by post.
My departure from Pakistan was organised with the help of my [relative], [name]. I left money with [relative] and he paid the agent when I got to [Country 1]. The only contact I had with the agent that organised my travel was by telephone. I gave my passport to my cousin and he gave my passport to the agent. The passport was given back to me at the airport. It was arranged by telephone that I was to meet a man at the airport and gave me back my passport I am not sure who he was and I have had no further contact with him. I understood that the agent needed my passport to apply for a visa to [Country 2] for me. The agent had my passport for about 3 months. When the passport was given back to me I recall that checked the [Country 2] visa and the page with my photo and details. My passport did not look different other than the new visa and I did not suspect that passport had been altered in any way.
I did not knowingly provide the Department of Immigration with a "fraudulently altered document". I believe my passport is genuine because I applied for it myself. I do not know if the [Country 2] visa is genuine. I do not know if the agent who arranged by travel altered my passport in some way.
…
Residence in other countries
I have only lived in Pakistan and Australia. On my way to Australia I did travel through [Country 3, Country 2 and Country 1]. I was only in [Country 3] for 2 hours waiting in Transit. I was in [Country 2] for one night. I believe the agent that organised my travel organised a visa for [Country 2]. From [Country 2] I travelled by boat to [Country 1]. In my application at question 46 of form 80 the dates of when I lived in [Country 1] are incorrect. I arrived in [Country 1] in June 2012 and was there for approximately 6 weeks. I did not have a visa for [Country 1]. I do not have the right to enter or reside in any of the countries I travelled through.
...
Entry Interview
I am told that in my entry interview it is recorded that I said that I applied for a student visa but it was rejected, this is incorrect. I did not apply for a student visa I just enquired about a student visa. I did say that I was interested to come to Australia to study and that I hoped my family could come here but I also said that the main reason I came was because in Pakistan they are killing Shia Muslims and Pastuns. For some reason the notes of my entry interview does not record that I said Shia Muslims. When I was asked what will happen to me if I go back to Pakistan I said there was no guarantee of security, there are bomb blast at any time and there are problems on the roads and the Taliban will kill me.
Original documents
In regards to other original documents. A long time ago my [relative] sent me my Pakistani drivers license but I have unfortunately lost it. The post system in –[area of Pakistan] is very unreliable and if my original documents were to be posted they could be lost. I do not know anyone in Islamabad or Lahore who could send me my original documents. I have provided copies of my National Identification card. I cannot think of any more important documents I can provide.
…
The applicant provided another statement to the Tribunal dated [in] November 2015:
I am making this Statement in support of my application for a protection visa. I am making this Statement to give some new information and to respond to the decision of the Department of Immigration.
I continue to rely on my Statutory Declaration of [date] December 2012 and my Statement of [date] September 2014.
…
My passport and prior travel
I am informed that my passport has been determined by the Department of Immigration to have been 'fraudulently altered.'
I was surprised and confused by this assessment. I believe that my passport was genuine. The Department of Immigration did not inform me why it was decided that my passport had been altered.
I have asked the Department of Immigration for my passport back, so that I can look at it closely to find out what is wrong with it. But I'm told that the Department of Immigration will keep it because it has been assessed to have been 'fraudulently altered.' However, I have since looked at a colour copy I have of my passport.
In about early June 2012 I travelled to [Country 2] by plane using my passport. I can see from the colour copy of my passport that there is a stamp from [date] June 2012. As I have previously mentioned, I was deported by the [Country 2] authorities. At that time I recall my passport being stamped, which may have been on [date] June 2012. As I said in my interview with the Department of Immigration, I'm not sure why I was deported. There were a lot of other people from Pakistan and Afghanistan on the same plane and we were all deported. We arrived in [Country 2] on one day and we were deported on the next day.
Some weeks later I travelled again to [Country 2] by plane using my passport. There are two date stamps in my passport around this time — one on [date] June 2012 and one on [date] June 2012. I believe that when I left Pakistan my passport was stamped, which may have been on [date] June 2012. When I arrived in [Country 2] my passport was also stamped, which may have been on [date] June 2012.
There are two other date stamps in my passport — one on [date] April 2012 and one on [date] July 2012. I believe that these may relate to my [Country 2] visa, which expired after 3 months.
I continue to rely on my Statement of [date] September 2014 regarding how I obtained both my passport and my [Country 2] visa.
At the hearing, the Tribunal asked the applicant how he obtained his passport. The applicant stated that he attended in person at the passport office in Kohart. The passport was then sent to him by post.
The Tribunal asked the applicant how he obtained his [Country 2] visa. The applicant stated that he gave his passport to his [relative], who passed it on to an agent. He did not deal directly with the agent. The agent arranged the visa. After 3 months, the agent gave the passport to the applicant’s [relative] who passed it on to the applicant.
The Tribunal asked the applicant whether he signed any forms, such as an application form for a visa to visit [Country 2]. The applicant stated that he did not. He did not do anything else.
The Tribunal asked the applicant whether he was expecting to be issued with a legitimate [Country 2] visa. The applicant stated that he believed the visa was genuine. When you go to the airport, the immigration officials check your documentation.
The Tribunal asked the applicant how he expected to obtain a legitimate [Country 2] visa without signing any forms. The applicant stated that he did not understand the process. He dealt with an agent. He does not know how the agent did it, whether he had to sign forms or not.
The Tribunal put to the applicant, using the procedure in s.424AA of the Act, the following information from the Department’s Document Examination Report:
·unnumbered page 1 and page 2, along with corresponding pages 35 and 36, of the applicant’s passport were printed on an inkjet printer and were missing security features;
·pages 9 and 10, along with pages 27 and 28, of the applicant’s passport were perforated with the number “[number A]”, whereas the remaining pages of the passport were perforated with the number “[number B]”.
This information was relevant to the review as it suggested that the applicant’s passport was bogus, in that it was altered by a person who does not have authority to do so. Section 91WA of the Act provides that the Tribunal must refuse to grant a protection visa if the applicant provides a bogus document as evidence of his identity and, amongst other things, does not have a reasonable explanation for providing the bogus document. The Tribunal invited the applicant to comment, and advised that he was entitled to request further time to comment if he wished.
The applicant stated that he had told the Tribunal that he applied for his passport in person, and received it by post. He provided the passport to his agent to obtain a visa. He then went to [Country 2], and was deported. After he was deported, he sent the passport again to his agent. He paid money to the agent. When his passport was returned, he saw the visa but didn’t check the passport.
The applicant went on to state that when he got to [Country 2], he showed his passport to the immigration officials. They stamped his passport. He put his passport in his luggage, and left the airport. After that, he provided the passport to the Department as evidence to demonstrate that he was a Pakistani national. The passport got damaged slightly by water during the boat trip. He knows the passport is genuine, as he applied for it himself. If the agent did anything, he does not know about it.
The Tribunal put to the applicant that if he did not sign an application form for a [Country 2] visa, he must have suspected that he was not going to be provided with a genuine visa and that it was likely that his passport would be altered. The applicant stated that the visa was obtained through his agent. He paid money, and that’s how he got it.
The Tribunal asked the applicant whether he had any other comments on the passport issue. The applicant stated that he had nothing else to say about the passport. The Tribunal can show the personal information page to the Pakistani Embassy to prove it is a genuine document. He also provided an identification card to the Department.
The Tribunal proceeded to discuss the issue of relocation in detail with the applicant. However, it is not necessary to reproduce that discussion in these reasons.
The Tribunal gave the applicant an opportunity to lodge post-hearing submissions, which were received [in] December 2015. These submissions address the passport issue, reiterating the applicant’s claims that he believed the [Country 2] visa to be genuine and that he had no intention to mislead or deceive the Department. It was also submitted that the applicant was fleeing persecution, and false papers are sometimes necessary to leave a country safely.
Assessment
The Tribunal has considered whether the applicant’s application for a protection visa is required to be refused under s.91WA of the Act on the basis that he provided a bogus document to the Department.
Did the applicant provide a bogus document as evidence of his identity?
The first question to be determined in this regard is whether any documents provided or caused to be provided by the applicant are ‘bogus documents’ within the meaning of that term in s.5(1) of the Act.
The applicant gave evidence to the Tribunal that he provided his passport to the Department as evidence to demonstrate that he is a Pakistani national.
The Tribunal has examined the copy of the passport provided by the applicant. Consistent with the document examiner’s observations, it is apparent to the Tribunal that pages 9 and 10, along with pages 27 and 28, were perforated with the number “[number A]”, whereas the remaining pages of the passport were perforated with the number “[number B]”.
Further, the Tribunal accepts the document examiner’s conclusions that unnumbered page 1 and page 2, along with corresponding pages 35 and 36, were printed on an inkjet printer and were missing security features. Appendix A to the document examiner’s report shows the missing security features.
The Tribunal accepts that the applicant’s passport was legitimately issued by the Pakistani authorities. However, the applicant (through his [relative]) gave his passport to an agent on 2 occasions for the purposes of obtaining a [Country 2] visa. The Tribunal considers that this is the most likely point in the sequence of events for the passport to be altered, and the Tribunal finds that the passport was altered by the applicant’s agent.
The Tribunal finds that the passport provided to the Department by the applicant was altered by a person who did not have authority to do so as contemplated by paragraph (b) of the definition of ‘bogus document’ and that such a document is a ‘bogus document’ for the purposes of that definition in s.5(1) of the Act.
Has the applicant provided documentary evidence of his identity, nationality or citizenship?
The second question to be determined in this case is whether the applicant has provided documentary evidence of his identity, nationality or citizenship.
The applicant provided the Department with his Pakistan national identity card. The document examiner found that this was a legitimately issued document with no evidence of tampering.
Having regard to the documentary evidence provided by the applicant in relation to his Pakistani citizenship, the Tribunal finds that the applicant has provided documentary evidence of his identity, nationality or citizenship for the purposes of s.91WA(2)(b)(i) of the Act.
Does the applicant have a reasonable explanation for providing the bogus document?
The third and final question to be determined in relation to the application of s.91WA to this case is whether the applicant has a reasonable explanation for providing or causing to provide the bogus document.
The applicant’s explanation was that he was not aware of any alterations to the passport. The applicant account is that he provided the passport to the agent for the purposes of obtaining a [Country 2] visa. The applicant did not sign an application for a [Country 2] visa. The applicant’s was deported from [Country 2], and he returned the passport to the agent before attempting to travel to [Country 2] a second time.

The Tribunal does not accept the applicant’s explanation that he did not know how to obtain a [Country 2] visa and left it to the agent. The applicant was not lacking in sophistication in the oral evidence he provided at the hearing, and the Tribunal notes that he had previously gone through the process of applying for his passport in person. While it acknowledges that applying for a passport and applying for a visa are different processes, the Tribunal finds it implausible that the applicant would not have understood that it would necessary for him at the very least to sign an application form in order to obtain a [Country 2] visa.
In the absence of having signed an application for a [Country 2] visa, the Tribunal considers that the applicant could have no expectation of the visa being regularly issued. It appears to the Tribunal that there are two possible ways in which the “visa” could have been obtained:
(a)it was legitimately issued on the basis of an application form completed by the agent without reference to the applicant, including falsification of the applicant’s signature; or
(b)it was a bogus (or fraudulent) visa.
Given that option (a) would not require alteration of the applicant’s passport by the agent, the Tribunal considers that option (b) is the most likely explanation of what took place in this case.
Further, having attempted to travel to [Country 2] and been deported, the Tribunal considers that the most likely explanation is that the applicant returned the passport for the agent to for further alterations with a view to making a second attempt to enter [Country 2]. The Tribunal considers that the most likely explanation is that pages 1, 2, 9 and/or 10 contained references to the deportation of the applicant and/or to a “visa” not accepted by the [Country 2] authorities, and that the agent removed the original of these pages in order to improve the applicant’s chances of entering [Country 2] on his second attempt.
The Tribunal finds that the applicant engaged the agent to obtain documentation which would enable him to enter [Country 2]. Given the circumstances outlined above, and in particular his lack of participation in the visa application process, the applicant must have known that the visa would not be regularly issued. Even if the applicant was not explicitly aware of the alterations made to his passport, he must nevertheless have been aware that the agent would have had to alter his passport to facilitate the inclusion of this irregular visa. The Tribunal therefore does not accept that the alterations were an “innocent, unintended or accidental matter”.[1] Accordingly, the Tribunal finds the explanation given by the applicant at the hearing to be unreasonable.
[1] Trevidi v Minister for Immigration and Border Protection (2014) 141 ALD 252 at [32], cited in the applicant’s post-hearing submissions.
The applicant did not at the hearing claim that he obtained a false [Country 2] visa to leave Pakistan to escape persecution, although it was raised as a possibility in the post-hearing submissions (albeit inconsistent with the applicant’s claims not to have been aware of the alterations). However, even if this were the reason, there is nothing to suggest that the applicant had first applied to the [Country 2] authorities for a legitimate visa and had been denied such a visa. Nor was it claimed that the process of applying for a legitimate visa was would have been overly lengthy, with the Tribunal noting that the process embarked on by the applicant with his agent took approximately 3 months in any event. The Tribunal considers that it would have been reasonable for him to attempt to obtain a visa through the regular channels before resorting to fraud. His failure to do so is unreasonable.
The Tribunal finds that the applicant does not have a reasonable explanation for providing a bogus document.
By way of summary, The Tribunal is satisfied that the applicant has presented a bogus Pakistani passport as evidence of his Pakistani nationality or citizenship. The Tribunal is also satisfied that he has provided evidence of his Pakistani nationality and citizenship. However, the Tribunal is not satisfied that the applicant has a reasonable explanation for providing a bogus document to the Department. Accordingly, consistent with s.91WA of the Act, the Tribunal must affirm the decision to refuse to grant the applicant a protection visa.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that s.91WA(1) of the Act applies to the applicant and that, accordingly, grant of a protection visa is precluded by s.91WA of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Glen Cranwell
Member

ANNEXURE A
Extracts from Migration Act 1958
5 (1) Interpretation
…
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
...
91WA Providing bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b)    the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.
(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b)    either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

[2015] AATA 3959

16 December 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice