1506033 (Refugee)

1506033 (Refugee) [2016] AATA 3608 (14 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506033
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:George Haddad
DATE:14 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 14 March 2016 at 11:16am

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 cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Migration Act . The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 September 2015 and on 16 December 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearings.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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.
Background
The applicant applied for a protection visa in August 2009. His wife also applied as a dependent member of the applicant’s family. The applicant and his wife provided written statements setting out their claims for protection. They claimed to be nationals of Afghanistan and of [Religion 1] religion. They provided a detailed account of how they fled Afghanistan with the assistance of people smugglers. They travelled by air through [Country 1] and arrived in Australia in July 2009. Among other things, they claimed that on arriving in [City 1], they were met near the door of the airplane by a man named “[Mr A]” who called the applicant’s name. The applicant thought the man was “some sort of official” as he had a badge on his neck cord and a walkie talkie. He noted that the man had documents in his hands but was not sure if he had their passports. [Mr A] then escorted them through immigration clearance. In support of the protection visa application the applicant provided identity documents and English translation which indicated Afghani identity and [Religion 1] religion.
On [date] April 2010, a delegate of the Minister granted the applicant, and his wife, protection visas. She accepted the claims by the Applicant as an Afghani national and[Religion 1], in part on the basis of the identity documents. What the delegate did not accept, although the decision did not turn on it, was the applicant’s account of how he entered Australia at [City 1] airport – met and escorted through security and customs by a man named [Mr A]. She said that in her opinion, the applicant “was obscuring the facts and does not want the method of travel to be known to [the department]”. This observation made by the delegate at the time of granting the protection visa becomes of relevance to the subsequent decision by a different delegate to cancel the visa.
The applicant and his wife had two children in Australia now [ages]. The children are Australian citizens and have been issued Australian passports. The older child travelled on his passport with his parents on a trip to [Country 2] in October 2011.
The applicant made an application for Australian citizenship in August 2013. Subsequently the Department conducted interviews with him and put to him information obtained by the Department from various sources including its own records, the [Country 2] Electoral Commission and the [Country 3] Border Agency that relate to his identity. They put to the applicant that the information indicates that he and his wife applied and were granted visitor visas to Australia on valid [Country 2] passports and entered Australia on those visas in July 2009. They put to the applicant that the Department had verified with authorities in [Country 2] all documents including passports that were given with the visitor visa applications to be genuine.
The delegate issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s protection visa under s.109 of the Act. After considering the applicant’s response to the particulars of the alleged non-compliance, the delegate cancelled the applicant’s protection visa on [date] April 2015.
The applicant applied for review of the delegate’s decision and provided a copy of the primary decision record and made further submissions.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in the following respects:
·The applicant made an application for a protection visa on [date] August 2009 providing his name as [Person 1] born [date] in which he included his wife as [Person 2], a member of his family and authorised a registered migration agent to act on his behalf. He answered questions contained in the protection visa application forms known as “866B” and “866C” and declared that ‘the information I have supplied on or with the form is complete, correct and up-to-date in every detail. I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled;
·In answers to several questions on the forms he stated that:
§he has not previously made any other application to the Department of Immigration;
§He is not known by any other name;
§That he is an Afghani citizen;
§He does not hold any other citizenship;
§The countries of former habitual residence or transit before arriving in Australia are Afghanistan and [Country 1];
§Travel document used to enter Australia, any other passport and current travel document details: Unknown and No;
§He has not ever applied for refugee status in any country other than Australia;
§He does not have a right to enter or reside, whether temporarily or permanently, in any country or countries other than his country of nationality;
§He had not lived in any other country apart from transiting [Country 1] on his way to Australia
The s.107 notice continues that:
The department has received information in relation to your identity. Specifically, the department has information that you are [Person 3], born [date] and you entered Australia on [date] July 2009 as the holder of a Visitor TR 676 visa granted by the [Country 2] post on [date] May 2009 in [Country 2] passport number [number]. Your wife, [Person 2], entered Australia in the name [Person 4] as the holder of Visitor TR 676 visa granted by [Country 2] Post in her [Country 2] passport [number]. The department considers you and your wife are [Country 2] nationals. Both [Country 2] passports have been confirmed as genuine by the [Country 2] authorities.
The various documents submitted in support of the Visitor TR 676 visa application have been checked by the [Country 2] authorities and all are verified as genuine. Departmental records show that there has not been a departure recorded for [Person 3] and [Person 4] therefore they are onshore and overstayed the visa stay period.
The department conducted checks with the overseas post in [Country 2] and it was found that you and your wife are listed on the current electoral roll for 2014. The information according to the [Country 2] electoral roll states that [Person 3], born [date], at address [address] is listed as currently enrolled to vote in [Country 2] and the photo attached to the electoral card matches that of [Person 1].
The photo attached to the electoral card for [Person 4] born [date] at address [address] matches that of [Person 2].
The department has confirmed with the [Country 3] authorities that you applied for asylum in [Country 3] on [date] August 1999 having claimed to be [Person 1], born on [date] from Afghanistan. The application was refused on [date] July 2006. You were then granted Discretionary Leave to Remain until [date] July 2015. You used the same name and date of birth to claim Protection in Australia.
A comparison of facial images taken from the Visitor TR 676 application and the Protection visa application photos has been completed. The department’s Facial Image comparison Unit provided a report dated [in] February 2014 stating that the images of [Person 3] and [Person 1] indicate they are the same person. The same result was found for the comparison conducted of photos of [Person 4] and [Person 2].
The s.107 notice also refers to the applicant having lodged an application for Australian citizenship on [date] August 2013 and in that application he continued to provide incorrect information regarding his identity and nationality. The applicant was at that time aware of the Department’s concerns relating to those matters but applied for citizenship using the name [Person 1].
The Department conducted two interviews with the applicant on [date] January 2014 to verify his identity. In those interviews the applicant continued to claim that he is [Person 1] an Afghani national. He is not [Person 3]; he is not an [Country 2] national and has never been granted a Visitor TR 676 visa to enter Australia.
The s.107 notice invited the applicant to give reasons why he thinks he has or has not complied with s.101(b) of the Act and why his visa should not be cancelled.
The applicant responded through his representative stating that his clients say:
·The protection visa application lodged on [date] August 2009 by [Person 1] (and his wife) was correct in every particular and the information given in form 866C was correct;
·They reiterated that they are [Person 1] born on [date] in [location] Afghanistan and [Person 2] born [date];
·They deny they are [Person 3] and [Person 4] or that they arrived in Australia as alleged in the primary decision record. They deny the photographic evidence;
·They deny the applicant applied for asylum in [Country 3];
·They state that they provided correct information to enable the department in their protection application and the citizenship application.
·[The applicant] and his family have been permanent resident holders for some time; have been law abiding and have applied for Australian citizenship. Any cancellation would greatly affect the statics (sic) and prospect of their children.
By letter dated [in] December 2014, the department informed the applicant and his wife that it had commenced an International Treaties Obligation Assessment (ITOA) in order to assess whether the circumstances of their case engage Australia’s non-refoulement obligations and provided:
As you know, you were previously found to be persons in respect of whom Australia has non-refoulement obligations on the basis that you were members of a religious minority ([Religion 1]) in your claimed country of nationality, Afghanistan. However, as you were advised in the Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958, which was sent to you on [date] May 2014, the department now considers that you are [Country 2] nationals. Accordingly the department is now re-assessing your claims with reference to your actual country of nationality, [Country 2].
The letter refers to country information attached to the letter about [Religion 1] in [Country 2] which the department considered in the course of re-assessing the claims for protection against [Country 2]. It concluded that on the basis of the country information Australia does not have non-refoulement obligations to the applicant and his wife as [Religion 1 members] in [Country 2]. The letter invited comment.
By letter dated [in] January 2015, the applicant and his wife replied through their representative stating that his clients state:
They are not citizens of [Country 2] and therefore cannot comment on the information regarding [Religion 1 members] in [Country 2].
Our clients speak HINDU at home which is a mixture of [languages]. This is a common language spoken by [Religion 1 members] (sic) in Afghanistan not elsewhere.
[The applicant] also speaks DARI and Pashto. The department may believe that he is [Person 3] but this is not correct. They came to Australia on passports provided by people smugglers. Those passports were not their passports. Our clients did not have possession of the passports other than to hand them to passport officials at the arrival point. The passport was then taken by the people smugglers.
We submit that our clients are nationals of Afghanistan and cannot be returned to a third country [Country 2].
On [date] April 2015, the delegate considered the information and the applicant’s (and his wife’s) responses and cancelled the applicant’s visa. The applicant wife’s visa was consequentially cancelled by operation of s.140 of the Act and is not a reviewable decision by the Tribunal.
The review
The applicant applied for review on [date] May 2015, appointed the same registered migration agent that represented him in relation to the cancellation decision by the Minister’s delegate and provided a copy of the primary decision record.
By letter dated 17 August 2015 the applicant was invited to attend a hearing scheduled on 9 September 2015 to give evidence and present arguments relating to the issues arising in the review.
Pre-hearing submissions
The Tribunal received a written submission from the applicant’s representative dated [in] September 2015 which may be summarised as follows::
[The applicant] was born in Afghanistan on [date]. He is of the [Religion 1] . His wife [Person 2] was also from Afghanistan. Both husband and wife speak [dialect], which is the language of the [Religion 1 members] in Afghanistan.
The both deny that they are [Country 2] nationals, they deny that they are [Person 3] and [Person 4]
They paid people smugglers to bring them to Australia. The smugglers supplied the passports and arrival cards but the applicant and his wife do not know the name that they had entered under. The people smugglers took the passports once the applicant and his wife entered Australia.
They have never been to [Country 3] and have never applied for asylum there.
The applicant has received his Afghan passport from a [Religion 1 place of worship] in Afghanistan. Attached is a copy of the photo page of the passport. The original will be provided at the hearing.
They have applied under freedom of information for their files with the Department but have not been provided with the files.
The information supplied by [the applicant] in his refugee application was true and correct.
Attached to the submission was:
·copy of the personal information page of a passport showing a photo of the applicant with date of birth [date] naming the holder of the passport as [Person 1] s/o of [name]. The date of issue is shown as [date] 2009 and place of issue as “Passport Office”. The signature of the holder appears as “[Person 1]”.
The Tribunal hearing
During the hearing, the applicant submitted:
·An original Republic of Afghanistan Passport bearing the number: [number]. The personal data page is as described in the copy previously provided to the Tribunal.
·A document described as [name] delivery receipt of the passport with a time stamp:12:58:44PM and date: 2015-05-[date] which shows:
From: [Place of worship] [
[Name]
[Location]
Kabul Afghanistan
Kabul
Kabul Tel#: [Number]
Afghanistan
TO: [the applicant]
[Name 1]
[Address]
Phone # [Number]Australia
Description: Passport
Account No: [Number] Origin: KBL
Sender’s Reference: [Number]
[City 1] Airway Bill: [Number]
·An untranslated driver licence the front bearing in French: “Permis de Conduire”; and an associated card;
·One A4 size document, untranslated with a photo of the applicant which he described as ID document or “Taskera”
·Another A4 document similar as above but with a photo of the applicant’s wife;
·Two small photo albums containing photographs.
·Birth Certificate issued in [Australia] dated [in] relating to [name] born [date] indicating the parents are [the applicant, Person 1] and [Person 2]
·Birth Certificate issued in [Australia] dated [in] September 2013 relating to [name] born [date] to the same parents as immediately above.
(Copies of the documents (not the photo albums) are at folios 23 and 25 of the Tribunal file).
The applicant argued that the ground for cancellation does not exist as:
He is [Person 1].
He was born on [date], an Afghani national. He had told the Department that his parents told him that they do not know the month and date of birth, only the year [number]. The [Agency 1] asked if they could enter his date of birth as [date] and he said yes.
He is not the [Country 2] national described by the delegate in the primary decision.
He has not applied for a visitor visa to enter Australia.
He has not previously made an application for protection in [Country 3].
I discussed with the applicant the answers he had provided in the protection visa application to questions 3,4,21,23,25,30,31,32,56 and 60 in form 866C. I also referred to the primary decision record in turn referring to the comment by the delegate of the Minister that had granted the protection visa where she had not accepted the applicant’s account of the way in which he arrived in Australia and concluded that he was obscuring facts about the method of his arrival.
I referred to the Department’s enquiries made with the Electoral Commission in [Country 2] which resulted in finding that the applicant and his wife continued to appear on the current electoral roll. I referred to the [Country 2] passports said to belong to the applicant and his wife and the supplementary documents provided with the visitor visa applications; the enquiry the Department made with the [Country 3] authorities identifying an asylum application made in 1999 and refused in 2006 in the same name and date of birth as in his protection visa application; the results of comparisons by the facial comparison unit of the Department concluding the photos of him and his wife provided with the protection visa application matched those on file with the visitor visa applications.

The applicant reiterated that he is [Person 1], the Afghani national and rejected all of the above material as not relating to him.
As I discussed the prescribed matters in r.2.41 and invited the applicant to comment or respond, I indicated that on the weight of the evidence I discussed relating to his identity as likely to be the [Country 2] national described, I may form the view that he is not the Afghani national he claims to be and that he is the [Country 2] national described in the evidence provided by the Department and set out in detail in the primary decision record. I further indicated that I may form the view that the decision to grant him the visa was not made on the basis of correct information; and, if I were to conclude that he is the [Country 2] national and not the Afghani national, had the correct information been provided the visa was granted partly or wholly on the basis of incorrect information.
In response to my comments, the applicant’s representative stated that the applicant has been in Australia for more than 5 years and that the delegate that granted the visa had accepted that the doubt about the applicant’s travel details to Australia did not impact on the assessment of the protection claims; the delegate was satisfied and accepted the claims for protection presented at the time of application regarding the applicant’s fear of returning to Afghanistan.
The applicant presented two small photo albums and referred to them as where he lived in Afghanistan, the [place of worship] in[City 2]; one photo shows him with another person; one is of the front entrance to the [place of worship] with a sign above the entrance which the applicant said identifies the [place of worship] and added that it is in [City 2] although the sign did not show the place name. There were photos of street scenes where the applicant travelled en route to the[place of worship]; photos of his uncle in the reading or prayer room; one of tourists and another of children at the [place of worship] to study.
The applicant continued in response to prescribed matters in r.2.41 that he has consistently claimed to be the Afghani national, including in his application for Australian citizenship. He said that his current circumstances include [number] Australian citizen children born in [years].
In relation to his ‘subsequent behaviour’ I indicated that if I conclude that he is not the Afghani national he claims to be, I would find that he continued to give incorrect information to the Tribunal.
I recognised that there is no evidence before me of other alleged non-compliance. I will consider the time that has elapsed since the alleged non-compliance if I so conclude and find; I will consider favourably the absence of any evidence of breaches of the law.
I relation to the applicant’s contribution to the community, the applicant stated that since 2011 he has worked as a [occupation] in an [facility] near [suburb]. He has lived in a rented property and paid rent since 2009 and contributes to the Australian economy generally. He and his wife are involved in volunteer work for the [Religion 1] community; they help with cooking and other duties. The [Religion 1] community plans to start a new school teaching [language] classes; he wants to be involved on the board to realise the project.
In additional comments, the applicant stated that his [child] attends [name] School in [suburb] and [another] child attends ‘[name]’ child care centre 2 days a week. His wife was hit in Afghanistan and as a result experiences memory loss and [an] impairment and cannot travel well. He is a [medical condition]. They have no family in Australia. In Afghanistan his father was badly beaten; his [brother] was killed in front of him; his sister was kidnapped; he does not know of the whereabouts of his family members; he has spoken with the [place of worship] and asked their help to search for his family. They have sent him a letter stating that they have made enquiries, but were unable to find them anywhere. The letter is being translated to provide to the Tribunal. He and his wife have gone through a lot of hardship.
Post hearing submissions
Under the cover of a letter dated [in] September 2015, the representative provided a copy of a letter dated [in]-04-2015 and its translation into English. The letter in the original language includes a header in English “ [place of worship] [name], [location], Kabul, Afghanistan”. The translation is dated [in]/09/2015 and the body of its content is as follows:
[Person 1]
You have called several times to enquire the whereabouts of your parents and brother. As per our investigations and findings, your father [name], mother [name] and [name] are not in Afghanistan. Rest you can find their whereabouts yourself. We have provided the findings of our investigation to you.
As I had some concerns about the identity of the applicant being not the Afghani national he has claimed to be, I sent the passport, Taskeras and driver licence to the Department’s Document Examination Unit (DEU). The Tribunal received a report concluding that:
·the taskeras are “counterfeit”
·The passport is “counterfeit and there is an alteration to the date on page 11”
·“There is inconclusive evidence to determine whether or not the driving licence and associated card is genuine”
On [date] November 2015, the Tribunal received a copy of a letter the Department sent directly to the applicant headed ‘Notice of seizure of bogus documents’ advising him that the two Taskeras and Afghanistan passport he had provided to the Tribunal and were the subject of examination by the DEU had been seized pursuant to a provision of the Act.
By letter dated [in] November the Tribunal forwarded to the applicant’s representative a copy of the notice of seizure of bogus document letter from the Department sent to the applicant.
Further hearing
Following consideration of the report from the DEU, I invited the applicant to attend a further hearing on 16 December 2015. The applicant and his wife attended. The representative attended the hearing a short time after commencement.
I indicated to the applicant that I invited him to the further hearing in order to put the information arising from the report of the DEU formally under s.424AA of the Act and to provide an opportunity to give evidence and present arguments relating to any issues that might arise. I asked him if he would prefer to wait until his representative arrived, he said he wished to proceed without waiting for his representative.
I explained the requirement of s.424AA and proceeded to put the particulars of the information, namely the report from the DEU that the ‘Taskeras’ and the Afghanistan passport were found to be counterfeit and the driver licence resulted in an inconclusive finding. I told the applicant why the information I put to him is relevant to the review and he indicated that he understood.
I invited the applicant to adjourn the review before considering making comments or giving a response to the information. He said he does not need an adjournment and elected to proceed to comment (his representative arrived during the exchange about the information; I explained to her that I had put information to the applicant under s.424AA of the Act, the applicant later took an adjournment to confer with his agent).
In summary the applicant responded:
I am [Person 1] from Afghanistan
My wife is from Afghanistan
I have no idea about the documents given, referring to the Taskeras and passport
I asked if he wished to comment on how the passport came to be.
He said his family arranged the passport and gave it directly to the people smugglers before he and his wife left Afghanistan.
He contacted people at the [place of woship] in the past year to find the documents. People in the [place of worship] know who the people smugglers were and they would have contacted them and in this way obtained the passport.
He rejected that the passport and Taskeras are counterfeit.
He added that he knows people from Afghanistan origin who are now settled in Australia who would provide statements supporting his claim that he is a Afghanistan national. He concluded by saying that as a [Religion 1 member] he strongly believes in the holy spirit. He would rather die than lie after swearing on the holy book.
I also noted that the copy of the passport indicates his birthday to be [date]. In the context of the counterfeit finding not much turns on the date of birth, but I did note that given the passport is purported to have been issued to him in 2009, the specific date of birth shown contradicts all evidence he gave regarding how he arrived at the date of birth he provided to the [Agency 1] and to the Department.
The applicant replied that his family told him he was born in [year]. [Agency 1] asked him (to use[date]) and he said yes.
I invited the representative to make an oral submission. She requested 14 days extension of time to obtain statements of support from Afghan nationals in Australia. Time was granted until 7 January 2016. On 12 January 2016 a request for a further extension of 14 days was made by the representative, it was granted.
On 2 February 2016, the Tribunal received a further submission from the applicant’s representative attaching two statutory declarations from 2 individuals residing in [Australia].
Each deponent declares that he was born in[City 2], Afghanistan and came to Australia in 1997 and was granted refugee status. Each of them declares that he knew the applicant and his family in Afghanistan and knew that his father had a [shop]. Each says that the [Religion 1] community in [City 2] was small and members of the community knew each other. Each states that he saw the applicant again in 2009 at the [place of worship] in [suburb] or [suburb] [place of worship] and has seen him regularly since 2009.
On 9 February 2016, the tribunal received a further submission from the applicant’s representative referring to translated documents attached to the submission. Attached were two documents in English with the translator’s certificate declared at the bottom of each.
The first document is dated [in] January 2016 and is headed Embassy of the Islamic Republic of Afghanistan, [city] Australia. It states the “Subject” as “Request for birth certificate confirmation. It is marked ‘Urgent” and addressed to: “The respected Chief of Consulate Affairs”. It refers to “Attachments: 2 pages”. It states as follows:
[The applicant Person 1], son of [name], as asylum seeker residing in [City 1], Ausralia, by providing a copy of the birth certificates for himself and his wife, has requested for the confirmation of their afghan identity.
Respectfully, the copy of their birth certificates are attached. Please inform the embassy about their authenticity for subsequent actions.
With respect
[Name]
In charge of the embassy
[Address] Australia
[other contact details]
The second attachment is headed “[Details deleted] [name][City 2], Afghanistan ([Religion 1 place of worship); and provides as follows:
Date: 547 v.5 [Date]-12-2015
[The applicant, Person 1] son of [name] is resident of[City 2], Afghanistan but now from some time [the applicant, Person 1] and his wife [Person 2] have moved overseas. [The applicant, Person 1]’s father [name] and mother [name] and [sibling] [name] are missing since long time and we are informing you about this and also that for a long time his family lived in [place of worship].
Property member of [name], [City 2], Afghanistan [Name] verifires that this family used to live here.
Mobile: [redacted]
Signed
[Official] of the [[Place of worship]]
FINDINGS
For the reasons set out below, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.
Sections 98, 99 and 100 prescribe ‘completion of visa application’, ‘Information is answer’ and ‘Incorrect answers’ (see attachment) and are relevant to my consideration of whether or not a breach of s.101 has occurred and therefore whether there was non-compliance no-compliance.
The applicant has consistently maintained that he did not give incorrect answers to the questions as set out in the s.107 notice. He maintained his rejection of any non-compliance throughout the consideration of this matter with the Department, his citizenship application with the Department and with the Tribunal.
The central issue is the information and answers he gave in relation to his identity. He maintained that he is [Person 1], born [date], a [Religion 1 member] and a national of Afghanistan. He rejected the Department’s allegation that he is an [Country 2] national, entered Australia with a visitor visa on a valid [Country 2] passport supported by the original application forms for visitor visas by the applicant and his wife accompanied by photographs of the applicant and his wife with their respective applications. He rejected the information obtained from the [Country 2] Electoral Commission including the personal electoral card bearing an image of the person alleged to be the [Country 2] [Person 3] born [date] with a matching address as [Person 3] provided in the visitor visa application. He rejected the information the delegate obtained from the [Country 3] Border Agency that [Person 1] born [date] had applied for protection in [Country 3] in 1999 and was refused in 2006. He rejected the facial images comparison report concluding that images of him and his wife provided with the protection visa application in Australia were the same as those of the images relating to the [Country 2] identities ascribed to the applicant and his wife by the delegate.
I have considered the applicant’s response to the s.107 notice and his consistent rejection of the delegate’s finding based on the evidence the delegate put to the applicant which questioned his claim of being an Afghani national.
I have considered the delegate’s decision record provided to the Tribunal by the applicant and the evidence relied upon for the decision to cancel the visa. Specifically the visitor visa applications and evidence of entry by the [Country 2] identities ascribed to the applicant and his wife and that the two [Country 2] identities have not departed Australia. I have noted the significance of the observation by the original delegate that granted the protection visa quoted in the cancellation decision – that she did not accept the account given by the applicant of the method of entry to Australia and that in her opinion, the applicant was “obscuring the facts and he does not want the method of travel to be known to [the department]”. This observation by that delegate, notwithstanding she granted the protection visa, has different significance adding further weight to the consideration of evidence now before the Tribunal adding weight to the evidence that he and his wife entered Australia on visitor visas issued to them on valid [Country 2] passports. I have also considered the information from the [Country 2] Electoral Commission bearing the image of the applicant and the facial comparison report. I have considered the report from the [Country 3] Border Agency in response to the enquiry made by the Department confirming an application from a person with the same name and date of birth he provided with his protection visa application in 2009 in Australia. I have placed significantly more weight on the evidence the delegate has put to the applicant than his claim to be an Afghani national is now inconsistent with the evidence to hand.
Evidence given to the Tribunal
In his dealings with the Tribunal the applicant provided:
Letters from the [Religion 1 place of worship] in Afghanistan
Letters referred to above purported to be from the [Religion 1 place of worship] in[City 2], Afghanistan to support his claim of being an Afghani national. I have considered these letters, but I have placed little weight on them as I consider the evidence on which the Minister’s delegate has relied to outweigh the claims in these letters. I do not accept that the content of these letters outweigh the evidence that the applicant is not an Afghani national.
Statutory declarations from two residents in Australia
I have considered the two statutory declarations which the applicant submitted after the Tribunal hearings declaring their knowledge of the applicant to be an Afghani national. I have placed little weight on them as they do not outweigh the weight I have placed on the evidence provided by the Minister’s delegate which disputes the applicant’s claim to be an Afghani national.
The letter dated [in] January 2016 and Headed “Embassy of Islamic Republic of Afghanistan”
As noted, the copy provided to the Tribunal is the English translation. The submission did not provide attachments “2 pages” as the translation provides. It does not add much if anything to the evidence before the Tribunal. The letter is somewhat confusing in that it appears to be from the Embassy, directed to “Chief of Consulate Affairs”, presumably of the embassy and is signed by a person “In charge of the Embassy”. For these reasons I have not placed much weight on its significance against the evidence relied on by the Minister’s delegate.
Copy of Republic of Afghanistan Passport
The applicant gave to the Tribunal a copy of a passport bearing his personal details as he provided in the protection visa application which purported to be issued by the government of Afghanistan. He submitted this to further support his claim that he is a national of Afghanistan and to sway me away from the concerns I had expressed to him about his identity not being that of the Afghani national but the [Country 2] national. He stated that he obtained the passport recently through the [Religion 1 place of worship] in Afghanistan as they knew the people smugglers and were able to contact them and retrieve the applicant’s passport. I have had regard to the report from the Document Examination Unit of the Department which concluded that the passport is counterfeit. I have also considered the applicant’s rejection of the DEU’s conclusions that it is counterfeit I have also considered the [name] envelope submitted to the Tribunal indicating that a passport was sent from Afghanistan. I understood and accepted this to refer to the passport he provided to the Tribunal. However I do not accept that the delivery from Afghanistan is confirmation of its authenticity. As I had significant concerns about the applicant’s identity for the different reasons I discussed with him; and having considered the passport he has given to allay my concerns and have me accept that he is the Afghani national he claims to be, I do not accept the passport as evidence to support the applicant’s claim to be an Afghani national.
Copies of Afghanistan issued ‘Taskeras’, or identity documents, relating to the applicant and his wife.
As with the passport, the DEU concluded that these two documents were counterfeit. The applicant stated at the Tribunal hearing that he had provided copies of the same to the Department along with translations. He argued that they were not found to be counterfeit at that time and he rejected the DEU’s report. I have confirmed that copies of the same documents were provided to the Department with the protection visa applications along with certified translations; and are held on the Department’s file. That they were not then examined to verify their authenticity does not alter the conclusions by the DEU now before the Tribunal that they are counterfeit. I do not accept the applicant’s implied reasoning that because they were not examined at the time of assessing his claims for protection renders them to be acceptable as genuine I have had regard to the DEU’s conclusions and the applicant’s rejection of them. Again, because of the significant concerns I had about the applicant’s identity for the various reasons I discussed with him, I do not accept the Taskeras relating to the applicant and his wife to confirm Afghani identities.
The Afghani driver licence and associated card

I have noted the DEU’s conclusions as ‘inconclusive’ in relation to the authenticity of the driver licence and the associated card the applicant provided to the Tribunal also to support his claim of an Afghani national identity. Weighed against the conclusions I have made above, I do not consider the inconclusive finding to outweigh the conclusions in respect of the other three documents. I do not accept the driver licence and the associated card to support the claim that the applicant is an Afghani national.
I have also considered the applicant’s oral evidence to me at two hearings. I have considered the photographs he submitted as evidence of his presence in Afghanistan; one photograph shows the applicant inside a room which he claimed to be a room inside the [Religion 1 place of worship] in[City 2]. I do not accept that the photographs signify or prove that he is an Afghani national.
I have also considered the written submissions by the applicant’s representative which restate the applicant’s claims to be an Afghani national and any arguments put in support of these submissions. Having regard to the other evidence from the delegate and the DEU reports I do not accept the assertions or arguments that the applicant is an Afghani national.
Having considered the evidence and claims individually and cumulatively, I am satisfied that the applicant did give incorrect answers in his application for a protection visa to the questions contained in the s.107 notice and therefore did not comply with s.101(b).
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). I have indicated above that I have considered the applicant’s responses to the s.107 notice. The applicant consistently asserted that he is an Afghani national and rejected all allegation and evidence put to him from a number of sources that he is an [Country 2] national. Having considered the applicant’s responses and the evidence put to him I do not accept his consistent assertion that he is a Afghani national.
The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
I have considered the above factors as well as other relevant matters in the present case.
r. 2041(a) the correct information
I find that the correct information of the applicant’s personal details is that information describing the [Country 2] national [Person 3]. That his citizenship is [Country 2] and he used a Valid [Country 2] passport to enter Australia. I find the correct information is that he did apply for protection in another country, [Country 3] and therefore resided in [Country 3] temporarily.
r.2.41(b) the content of the genuine document (if any)
I am satisfied that the content of the [Country 2] passports relating to the applicant and his wife is correct and genuine as verified by the Department with the relevant [Country 2] authorities and represents the identites of the applicant and his wife.
r.2.41(c) 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
I find that the decision to grant the applicant the protection visa was to a large part if not wholly on the basis of the incorrect information he gave to the questions set out in the s.107 notice.
r.2.41(d) the circumstances in which the non-compliance occurred
I have considered the circumstances in which the non-compliance occurred. Having accepted the evidence that the applicant and his wife entered Australia on valid [Country 2] passports in July 2009, I find that the circumstances were that the applicant soon after arriving in 2009 assumed a false identity as an Afghani national and fabricated a set of claims and as a [Religion 1 member] that would face persecution in Afghanistan. He provided incorrect answers to several questions in the protection visa application forms which were key to assessing his claims for protection and therefore did not comply with s.101(b).
r.2.41(e) the present circumstances of the visa holder
The applicant continues to live in [City 1] and works as a [occupation] in [facility] at [location]. He states that he has worked in this position since 2011, he is [medical condition]. His wife is a home maker and has[an impairment]. He has two children that were born in Australia. The first was born in [year]; is over [age] and attends school at [name] in [suburb]. The [other] was born in [year]; is aged around [age] and attends childcare 2 days a week. Both of his children are Australian citizens. He provided copies of their Australian passports. The applicant does not have any other family in Australia.
r.2.41(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
I have considered the subsequent behaviour of the applicant obligations under Subdivision C of Division 3 of Part 2 of the Act. This includes his behaviour before the Tribunal.
The applicant provided to the Tribunal identity documents including a passport purported to have been issued to him in 2009 by the Afghanistan issuing authority as well as identity documents relating to him and his wife. These three documents were reported to be counterfeit by the Department’s Document Examination Unit. Having considered his rebuttal of the conclusion that the documents are counterfeit, I accepted the DEU’s conclusions that the documents are counterfeit. He also maintained at all times to the Tribunal that his answers to all the questions in the s.107 notice were correct. I do not accept his continued assertion that he is an Afghani national or his rejection of the DEU’s report concluding the documents are counterfeit.
r.2.41(g) any other instances of non-compliance by the visa holder known to the Minister
None that has been brought to the Tribunal’s attention other than reference to the applicant in his application for citizenship maintaining the information relating to the incorrect answers he gave in his protection visa application to be correct; and the same claims to the Tribunal.
r.2.41(h) the time that has elapsed since the non-compliance
The applicant applied for the protection visa in August 2009, a period of six and a half years has passed.
r.2.41(j) any breaches of the law since the non-compliance and the seriousness of those breaches.
None before the Tribunal.
r.2.41(k) any contribution made by the holder to the community
The applicant stated at the hearing that he contributes ten per cent of his income to people in need. He supports the [charity]. He “adopted” a girl in [country] through [charity] and he intends to make further charitable contributions to the [Agency 1] and to [name].
Other considerations
In addition to the above prescribed factors, I have had regard to case law which held that the above is not to be taken as an exhaustive list of circumstances which might properly be considered relevant in considering the exercise of discretion. The Procedural Advice Manual 3 also requires delegates to consider other factors such as whether the visa would have been granted if the correct information was provided; Australia’s international obligations in relation to non-refoulment and whether the cancellation of the visa would lead to the consequential cancellation of other visa holders under s.140 of the Act; whether the cancellation would lead to the applicant’s indefinite detention.
The applicant wife has had her visa cancelled by operation of s.140 of the Act. I have considered whether this cancellation outweighs the decision to cancel the applicant’s visa. I find that it does not. I am also satisfied that as a result of the consequential cancellation of the applicant wife’s visa, and as the ITOA has concluded, Australia does not have any international non-refoulment obligations as I am satisfied that she also holds a valid and genuine [Country 2] passport and is an [Country 2] citizen.
I have considered whether the protection visa would have been granted if the correct information had been given. The applicant has not made any protection claims against [Country 2] as he consistently maintained that he is not an [Country 2] national. There is no evidence or submissions that the applicant would have been granted a protection visa against [Country 2].
In relation to Australia’s international obligations, I note that the Department has conducted an International Treaties Obligations Assessment (ITOA) for the applicant and his wife with the [Country 2] identities and citizenship ascribed to them. The Department invited the applicant to comment on country information relating to the assessment with reference to [Country 2], the applicant’s actual country of reference and nationality. The applicant replied that he is not an [Country 2] national and therefore did not comment on country information put to him during the ITOA assessment. The Department advised the applicant of the ITOA by letter dated [in] January 2015. I have had regard to the ITOA and that the applicant has not made any protection claims against [Country 2]; further there is no evidence before me to indicate that as [Country 2] national, which I have found the applicant and his wife to be, and[Religion 1 member], that Australia would have any non-refoulment obligations. I am satisfied that Australia does not have any obligation under the relevant treaties in respect of the applicant and his wife as [Country 2] nationals.
The applicant’s two children
I have considered the applicant’s two children under the Convention on the Rights of the Child (CROC). In any administrative action the rights of the child is a primary consideration. Under the International Covenant on Civil and Political Rights (ICCPR), one of the primary considerations relates to the family unit, that it is to be protected and therefore I have considered the children being separated from their parents. I have also considered whether the children’s rights as Australian citizens outweigh the reasons to cancel the applicant’s visa.
Under [Country 2]’s Citizenship Act of 1955 the children, being minors, are entitled to [Country 2] citizenship by registration with the Ministry of Home Affairs as both their parents are [Country 2] citizens. I have considered whether the children have formed strong cultural ties with Australia and whether adjusting to a different culture by accompanying their parents to [Country 2] may be unreasonable. The children are aged [ages] and I do not consider that their ties to Australia to be so strong as to make unreasonable accompanying their parents to [Country 2]. Their best interests having regard to the CROC and ICCPR, are to be with their parents and not to be separated from their parents.
In relation to the children’s rights as Australian citizens, I have evaluated all the evidence discussed above through this consideration and whether it outweighs the reason to cancel the visa for the non-compliance discussed above. I find that the severity of the non-compliance is such that it outweighs the consideration of the children’s Australian citizenship. I am satisfied that the applicant has knowingly provided false and misleading information deceiving the Minister to grant him the protection visa. That the children were born in Australia subsequently and issued Australian citizenship is wholly due to the deceitful conduct by the applicant in misleading the Minister. I consider cancelling the visa to outweigh the children’s rights as Australian citizens because it is important to maintain the efficacy of the protection visa program Australia offers to genuine asylum seekers.
I have considered whether the applicant will be held in detention or indefinite detention. The applicant, unless the Minister allows, may not be able to apply for any other type of visa while in Australia. He may be placed in detention if he does not accept to return to his country of [Country 2]. He may be placed in indefinite detention if he persists in not departing Australia. As he and his wife hold valid [Country 2] passports and can travel to [Country 2] any detention would be of his own volition. In any event, it is not a factor that outweighs the reason to cancel the visa.
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 shouldbe cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.
George Haddad
Senior Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)      purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2016] AATA 3608

14 March 2016

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice