1700919 (Refugee)

[2017] AATA 1617

1700919 (Refugee) [2017] AATA 1617 (12 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700919

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Alison Murphy

DATE:12 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 12 September 2017 at 5:10pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Afghanistan – Conflicting information on identity documents – Family travel histories – Identity assessment – Afghan names – Nationality – Refugee documents

LEGISLATION
Migration Act 1958, ss 116, 352(4), 375A, 431, 440, 499
Migration Regulations 1994
Freedom of Information Act

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority [2008] HCA 31
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Tarrant v Australian Securities and Investments Commission [2013] AATA 926

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2017 to cancel the applicant’s Subclass 866 Protection (Class XA) visa under s.116(1AA) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that she was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

4. The applicant is [an age]-year-old male. He arrived in Australia by boat [in] May 2009 and lodged an application for a protection visa shortly afterwards. In that application he identified himself as a citizen of Afghanistan of Hazara ethnicity born in [year] [Village 1], Gharchbagh in Ghazni province in [year]. On the basis of information provided in his protection visa application, he was granted a class XA subclass 866 protection visa [in] September 2009. 

5. The applicant is married with [children], all of whom live in Quetta, Pakistan.  In November 2009, the applicant applied for a split family offshore humanitarian visa in respect of his wife and their children and [in] May 2010, the applicant’s wife was interviewed by a departmental officer in Islamabad, Pakistan.  [In] January 2014 that visa application was refused.  The decision record notes that the delegate accepted the claimed relationship between the applicant and his family and that they were Afghan Hazaras by ethnicity who had moved from Afghanistan to Pakistan.  However the decision record noted the applicant’s family had not been assessed as refugees by the UNHCR and proposed for resettlement and the Australian community does not have the capacity to offer resettlement to all persons seeking it.  While the delegate accepted there was no evidence of any other country being available to provide for their resettlement, she did not consider there to be compelling reasons to grant the applicant’s family an offshore humanitarian visa.

6. The applicant travelled to Quetta to see his family for three months in each of 2010 and 2013.  [In] April 2013 the applicant sponsored an application for a [partner] visa for his family.  On 19 December 2013 the Minister introduced ‘Direction Number 62 – Order for Considering and Disposing Of Family Stream Visa Applications’.  The effect of that direction is that family visa applications sponsored by any person who arrived in Australia by boat are to be given the lowest processing priority.  The applicant’s [partner] visa has not yet been finalised.

7. [In] April 2016 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection intended to cancel his visa on the ground that he was not satisfied as to his identity. 

8. The NOICC set out the protection claims made by the applicant in a protection visa application lodged [in] August 2009.  It stated that [in] April 2013, the applicant and his wife [applied] for a [partner] visa. During the processing of the partner visa application, concerns were raised as to the genuineness of identity documents provided and that application has not been finally determined.

9. The NOICC sets out that [in] February 2014 the applicant applied for Australian citizenship. His application was approved [in] November 2014 however due to the concerns raised during the processing of his partner visa application, his acquisition of citizenship was deferred and an identity assessment was requested. [In] September 2015 an identity officer from the Department of Immigration and Border Protection concluded that based on research and interview, the applicant’s identity was ‘not supported’.  The particulars contained in the identity officer’s report were set out as follows:

   Having carefully considered all the available information provided by the client and his wife, my assessment is that there is no reliable information and documentary evidence in support of their claimed Afghan nationality. Their ability to speak to the Hazaragi language is not sufficient to conclude that they are Afghan Hazaras who resided unlawfully in Iran and Pakistan.

   Although he has not been completely consistent with their (sic) travel history, I find it likely that the client and his family did reside in Iran. It is also likely that they were issued with documents such as Amayesh cards (Refugee cards), and with birth certificates for his children who were born in an Iranian hospital.

   Although during his entry interview he inadvertently disclosed that he stayed in Iran lawfully (Question 24, Page 29), and that he has frequently travelled to Iran, there is no evidence in support of the possibility that they had obtained permanent residence in Iran. I am, however, yet to be convinced that, during the [number] years he had resided in Iran, he had only been issued with a “Mothajeer Card”, and that he was deported to Afghanistan without being issued with any documentation of his deportation. The inconsistent histories provided by the client and his wife support an assertion that they may have been deported from Iran to Pakistan, which in turn supports the possibility that they are Pakistani nationals.

   The likelihood of their being Pakistani nationals is also supported by the fact that the client’s and his family’s names follow a Pakistani naming pattern.

   I have found no credible and reliable evidence in support of the client’s identity. So far he has only been able to produce fraudulent documentation for his family; this leads me to find that the client is not a witness of truth. Accordingly, I am not satisfied that he is [applicant’s name], an Afghan national who has resided unlawfully in Pakistan. As he is not a witness of truth, I disbelieve his claims that he has no documentation in support of his true identity and nationality. The fraudulently issued taskeras, birth certificates and Afghan passports fail to support his claims.

10. The NOICC went on to state that based on this information, there appeared to be grounds for cancelling the visa under s.116(1AA) on the basis that the delegate was not satisfied as to his identity. The applicant was invited to comment in writing to the NOICC.

11. [In] April 2016 the applicant’s representative contacted the delegate by email, seeking an extension of time in which to respond to the NOICC on the basis they had made a Freedom of Information application [in] December 2015 in respect of the applicant’s file which had not yet been processed.  That email stated they were unable to respond to the issues raised in the NOICC until they received those documents.

12. [In] May 2016 the applicant’s representative responded to the NOICC, stating that he was of Afghan origin. It was stated that the applicant has been an active member of the newly arrived communities in [Town 1] and has been receiving counselling for psychological distress. It was noted that he had been granted a permanent protection visa on the basis that Australia had protection obligations to him under the 1951 Convention Relating to the Status of Refugees and also the Convention Against Torture. It was submitted the applicant would face indefinite detention in Australia if his visa was cancelled and additional time was sought for further submissions in response to the NOICC.

13. [In] May 2016 they were granted an extra five days to respond to the NOICC. [In] August 2016 the applicant’s representative again contacted the delegate by email stating that the FOI requested had been split into two parts and they had received one part but not the other. [In] January 2017 the applicant’s representative wrote to the delegate stating that they had not provided further submissions because they were still awaiting additional documents requested under FOI.

14. On the same date, the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the NOICC and stated she was satisfied there were grounds for cancellation under s.116(1AA). In particular she noted a number of inconsistencies in the Afghan taskeras, birth certificates and Afghan passports provided by the applicant and found the documents were most likely fraudulent. She also set out a number of inconsistencies in the information provided by the applicant and his wife as to their personal histories which led her to conclude the ground was met.

15. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the documents submitted in response to the NOICC but stated that, having weighed all the relevant factors, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

    LEGISLATIVE FRAMEWORK

16. The applicant was granted a class XA subclass 866 protection visa [in] September 2009. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1AA) – Not satisfied as to identity

17. A visa may be cancelled under s.116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014, (at p.24) of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.

18. Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[1] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.

    [1] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 21/8/16).

19. If satisfied that the ground for cancellation under s 116 is made out, the decision maker has discretion whether to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Act and Regulations do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual - PAM3 ‘General visa cancellation powers’. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate[2]. It is also well established principle that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary[3].

    [2] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

    [3] Re Drake v Minister for Immigration and Ethnic Affairs( Re Drake No 2) (1979) 2 ALD 634 discussed in Tarrant v Australian Securities and Investments Commission [2013] AATA 926 at [19] to [21]

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

20. An application for review of the delegate’s decision was lodged with this Tribunal [in] January 2017 and [in] February 2017 a migration agent was appointed to represent the applicant in the review.

21. Under s 352(4) of the Act, the Secretary is required to provide to the Tribunal each document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

22. The Tribunal was provided with the departmental file relating to the cancellation which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. Files relating to the applicant’s protection visa application and his wife’s offshore humanitarian visa application were also provided to the Tribunal. The cancellation file included internal working documents of the department which were subject to a non-disclosure certificate pursuant to s.375A of the Act dated [in] February 2017.

23. Section 375A applies to decisions under part 5 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review. However the operation of s.375A is dependent upon the existence of a valid certificate by the Minister or his delegate.

24. In this case the Tribunal formed the view that the certificate dated [in] February 2017 was not valid because the decision under review was made under Part 7 of the Act and not Part 5 of the Act. On [two dates in] June 2017 the Tribunal wrote to the department inviting them to reconsider the section 375A certificate which the Tribunal considered may be invalid, however the Tribunal received no substantive response to its correspondence. The Tribunal finds the section 375A certificate dated [in] February 2011 is invalid because section 375A is not applicable to the decision under review.

25. [In] March 2017 the applicant’s representative sought access under the Freedom of Information Act (FOI Act) to all documents held by the Tribunal in relation to the review applicant. On the same date the Tribunal transferred that request in so far as it related to the departmental files to the department pursuant to section 16 of the FOI Act. On 13 June 2017 the applicant’s representative made a further FOI request to the Tribunal and further documents from the Tribunal file were provided to the applicant on that date.

26. The applicant was first invited to attend a hearing before the Tribunal to give evidence and present arguments in his case on 6 April 2017. On 31 March 2017 the applicant’s representative sought a postponement of this hearing, advising they had not yet received the departmental files pursuant to their freedom of information request. The matter was next listed for hearing on 4 April 2017, that hearing being further postponed as result of the member’s unavailability. The applicant attended a rescheduled hearing on 14 June 2017 and gave evidence in support of his claims. The Tribunal also heard evidence from [a named representative] of [a Town 1 organisation], and [two named witnesses].

27. At hearing on 14 June 2017 the applicant provided a document stated to be an Afghan taskera obtained from the Afghan embassy in Canberra and requested the Tribunal verify the authenticity of the document. [In] June 2017 the Tribunal requested the department’s Country of Origin Information Services Section (COISS) to ask a number of questions of the Afghan embassy in Canberra. The first four of those questions related to the general process of obtaining an Afghan taskera through the Embassy and the proposed fifth question asked the Embassy whether it had records of assisting the applicant to obtain a taskera in 2016 or 2017. [In] July 2017 COISS advised the Tribunal that while they had put the general questions framed by the Tribunal to the Afghan embassy in Canberra, their policies did not allow them to approach the Afghan embassy in Canberra with the applicant’s personal details. The response from the Afghan embassy in Canberra was provided to the Tribunal [later in] July 2017.

28. At the hearing on 14 June 2017 the applicant’s representative advised the Tribunal that their FOI request for the applicant’s offshore files had not yet been finalised by the Department but they were instructed by the applicant not to seek a further adjournment of hearing.  On 15 June 2017 the Tribunal provided the applicant with a copy of relevant documents from the files before the Tribunal, being part G of his wife’s offshore humanitarian visa application and the notes of record interview with his wife in Islamabad [in] May 2010.

29. The applicant’s representative provided written submissions to the Tribunal on 2 May 2017, 13 June 2017, at hearing on 14 June 2017 and on 23 August 2017.

    Order under s. 440

30. In a submission dated 13 June 2017 the applicant’s representative sought an order under s.440 of the Act restricting publication of any information relating to this matter. It was submitted it is in the public interest to do so given the recent media attention on AAT decisions and particularly protection visa cancellation decisions as well as the sensitive nature of the information and the potential for the decision to attract negative media attention and expose the applicant, his representatives and support witnesses to risk.

31. As discussed with the applicant and his representative at hearing, the fact that a matter may receive media attention does not of itself establish that it is in the public interest to restrict publication under s. 440. Indeed it may indicate quite the opposite. I noted at hearing that s.431 of the Act prevents the Tribunal from publishing any statement that may identify and applicant or his family who would be anonymised in any published decision. I indicated that I was not satisfied on the basis of submissions received that it was appropriate to make an order restricting publication of the decision and invited the applicant’s representative to make further submissions on the issue if they wished to pursue it. No further submissions were made to the Tribunal.

32. I am satisfied the Tribunal’s usual procedures for publication of decisions relating to a protection visa pursuant to s. 431 are sufficient protect the identity of the applicant and his family. I consider it appropriate to direct the witnesses not be identified in any published decision.

1. Therefore I direct under s. 440 of the Act that the names of the witnesses who gave evidence at hearing must not be published or otherwise disclosed except as required by law.

   CONSIDERATION – DOES THE GROUND FOR CANCELLATION EXIST?

2. The applicant’s visa was cancelled under s. 116(1AA) of the Act.

3. A visa may be cancelled under s. 116(1AA) of the Act if the Minister or his delegate is not satisfied as to the visa holder’s identity.

4. In this case the delegate considered the applicant has given two or more documents or pieces of information about his identity which are inconsistent with each other, as a result of which she was unable to form a conclusion regarding which document or piece of information is genuine. 

5. The Department’s Procedures Advice Manual (PAM3) sets out that when considering whether the ground set out in s.116(1AA) is established, delegates must have regard to the visa holders individual circumstances and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.

6. The Policy states that s.116(1AA) will not apply if:

   ·the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed; or

   ·in response to a notice under s.119, the visa holder satisfies the delegate as to their true identity.

7. The delegate’s record of decision dated [in] January 2017 indicates that in reaching this conclusion she gave weight to the identity assessment dated [in] September 2015 which concluded the applicant’s claimed identity was not supported.  She also considered the applicant and his wife had otherwise given inconsistent and contrary information. 

8. I address each of the matters considered by the delegate and the identity officer to be adverse to the applicant’s claims to be an Afghan national below.

   The applicant’s Hazara ethnicity

9. It is not in dispute that the applicant is of Hazara ethnicity or that he has spent time living in Afghanistan, Iran and Pakistan.  Rather at issue in this case is whether the applicant and his family are nationals of Afghanistan or Pakistan. 

10. DFAT reports that ethnic Hazaras have lived in Afghanistan for centuries and Hazaras resident in Pakistan have migrated from Afghanistan over the last century, the majority arriving in two waves - the first during the Soviet occupation of Afghanistan from 1979 and the next in 1996 following the Taliban takeover in Afghanistan[4]. The applicant has consistently stated he was born in Afghanistan in [year] to Afghan national parents and left that country for Iran in 1970 following the death of his father. The applicant’s wife has consistently stated she was born in Afghanistan in [year] and lived in that country until she married the applicant and moved to Iran in [year]. 

    [4] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 26 March at 2.19

11. If the applicant and his wife were in fact born in Afghanistan to Afghan parents, the applicant and his wife are Afghan citizens pursuant to that country’s citizenship laws.  Similarly their children will be deemed Afghan citizens, whether or not they were born in Afghanistan[5].

    [5] Article 9, 10 and 11 of the Law on Citizenship of the Islamic Emirate of Afghanistan (Law on Citizenship)

12. If the applicant and his wife have been Afghan citizens since birth, the only circumstances in which they would cease to be Afghan citizens are if they renounced their citizenship or were granted citizenship of another country[6].  There is no evidence to suggest the applicant and his wife have renounced their Afghan citizenship, rather the identity assessment and the delegate’s decision make clear the department suspect the family may have at some stage obtained Pakistani citizenship.

    Identity assessment dated [in] September 2015

    [6] Article 7 of the Law on Citizenship of the Islamic Emirate of Afghanistan provides that an Afghan citizen cannot accept dual nationality, although  DFAT reports there are known exceptions to this and Article 30 appears to be in contradiction to Article 7 (Department of Foreign Affairs and Trade 2011, Afghanistan Citizenship Law, 16 March CISNET Afghanistan CX260444).

13. The identity officer canvassed a number of issues in his report before concluding the applicant’s claimed identity was not supported.  I will discuss each of these matters in turn.

    Afghan versus Pakistani naming patterns

14. The identity officer considered the applicant’s name indicated he was from Pakistan and not Afghanistan.

15. The applicant’s name as recorded on the detention notice when he first arrived in Australia [in] May 2009 as [Name 1] (given name) [Name 2] (family name). In his biodata interview [in] May 2009 he identified himself as [applicant name].  At entry interview [in] May 2009 the applicant stated that [one of his names] was his grandfather’s name and he was also known by [another name].

16. The identity officer cited a Guide to Names and Naming Practices produced by the United Kingdom in March 2006 which states that Pakistani names present the following characteristics:

    a)there will be at least one personal name and often, but not always, a religious name;

    b)the religious name and personal name may appear in any order;

    c)there may be no family name[7].

    [7] United Kingdom 2006 A Guide to Names and Naming Practices March at p.48

17. It was noted that common religious names include Abdul, Allah/ Ullah, traditionally used in conjunction with other religious names or personal names, which should be pronounced together although they may be written separately.

18. The identity officer inferred that the applicant’s name ‘[combined name]’ follows a Pakistani naming practice, being a compound name comprising the personal name ‘[Name 2]’ and a religious name “[Name 1]”. He was also concerned the applicant’s name did not include his father’s name, [specified]. The identity officer concluded that it was therefore likely the applicant is from Pakistan and not Afghanistan. 

19. However it is apparent from the Guide cited by the applicant that the naming patterns for Afghan (Dari) names and Pakistani names is similar. The Guide states that Afghan Dari (as opposed to Afghan Pashtu) names consist of a personal name and in some cases a family name.  It notes there are traditionally no family names in Afghanistan but Afghans with Western connections usually adopt a family name[8].  Another report on the structure of Afghan names notes that person names often consist of a compound first name and lack a last name[9]. It indicates that male names in Afghanistan generally consist of two parts, being a common name or subordinate name (one common example given in the report being ‘–[Name 1]’) and the main name or proper name (in any order). It is noted that while the name may include the father’s name, this is not necessarily the case[10].

    [8] United Kingdom 2006 A Guide to Names and Naming Practices March at p.41

    [9] Megerdoomian K 2009 The Structure of Afghan Names November available at

    [10] Ibid

20. Given the applicant’s name [combined name] is a compound name consisting of two parts, one of which is the common Afghan name ‘–[Name 1]’, I consider it to be consistent with the available information about naming practices in Afghanistan. I do not consider the fact that the applicant’s name was recorded on the detention notice as [Name 1] (given name) [Name 2] (family name) to be a reliable indicator that the applicant identified ‘[Name 2]’ as being his family name, rather I consider it more likely that was the interviewer’s attempt to fit the information provided by the applicant into the fields provided on the form.  As noted above, the independent sources indicate the two names would usually be pronounced together although may be written separately. 

21. Nor do I consider the fact that the applicant has at times referred to himself as [Name 2]-[Name 1] and at other times as [Name 1]-[Name 2] to be significant given the independent sources indicate the common and personal components of the compound name can appear in any order. I consider the absence of the applicant’s father name and the applicant’s later adoption of his grandfather’s name ‘[name]’ to be consistent with the advice that while there are traditionally no family names in Afghanistan, Afghans often adopt a family name in a western context.  I consider this is likely to have occurred as the applicant responded to repeated questions as to his family name over a series of interviews. For these reasons I do not consider the applicant’s name to be inconsistent with his claimed Afghan identity.

    Inconsistent information given by the applicant and his wife

22. The identity officer considered that the applicant and his wife given inconsistent information about some key events in their lives. It was noted that the applicant had consistently stated he was born in            [Village 1], Qarabagh district of Ghazni province and married his wife in Kandahar, Afghanistan. It has been the applicant’s consistent evidence that for the short period of their marriage during which they lived in Afghanistan, the couple lived in Kandahar.

23. The identity officer was concerned that in her offshore humanitarian visa, the applicant’s wife stated she was born in Kandahar while during an interview in Islamabad [in] May 2010 she had contradicted herself, stating “[Village 1] is our place . . . We lived there”.

24. I have viewed the applicant’s wife’s offshore humanitarian visa application lodged [in] February 2013. I note she states that prior to her marriage she lived in Kandahar while her husband came from [Village 1], Qarabagh in Ghazni. This is consistent with the applicant’s own evidence at hearing. 

25. The only evidence to the contrary is contained in the hand written notes of the departmental officer in Islamabad when the applicant’s wife was interviewed [in] May 2010. It is important to note that those handwritten notes do not represent a transcript of that interview, rather they appear to be a brief summary in note form of matters discussed interspersed with the interviewer’s own thoughts on those matters. In particular the notes do not record the questions asked of the applicant and his wife or their full responses.

26. The relevant part of those notes appears in the notes relating to the interview of the applicant’s wife and states:

    [Village 1] is our place. (Lived there. Didn’t know where after. [Address]. Khandahar.

27. The notes immediately preceding and following the reference to [Village 1] are not on point and provide no context for the applicant’s wife’s reference to [Village 1]. I am not satisfied on the basis of this material that the applicant’s wife suggested she was born in [Village 1] as inferred by the identity officer, although those notes do seem to suggest she may have said the family lived there. 

28. However in the absence of any clear record of the questions asked or answers given by the applicant wife at that interview, I consider the applicant’s wife’s written claims in her offshore humanitarian visa application are a more reliable source of information about the family’s history and movements.

29. In that visa application she states that while custom provided that on marriage she would live in her husband’s home, her husband came from [Village 1], Qarabagh in Ghazni which was under control of the Taliban and they could not return there for fear they would be harmed. I consider this statement to be consistent with the applicant’s own evidence to the effect that he never returned to [Village 1] after leaving Afghanistan for the first time in 1970, aged about [age].  He returned to Afghanistan in [year] where he married his wife in Kandahar and lived for a short while before returning to Iran.  For these reasons I do not consider the record of the interview with the applicant’s wife in Islamabad in 2010 to be materially inconsistent with the applicant’s own evidence or claimed Afghan identity.

    Deportation from Iran in [year]

30. The applicant claims to have lived as a refugee in Iran from 1970 to [year], when the family was deported from Iran back to Afghanistan.  The identity officer stated in his assessment that the applicant had “inadvertently disclosed that he stayed in Iran lawfully (Question 24, Page 29)”.  The identity officer was also concerned about the applicant’s claim he lived in Iran for [number] years while only being issued a ‘mothajeer card’ and about a perceived inconsistency in the evidence of the applicant and his wife about their deportation from Iran back to Afghanistan in [year]. The identity officer also considered the applicant and his family would not have been deported from Iran back to Afghanistan without being provided with documentation evidencing that deportation.

31. While there has long been movement of Afghans across the border to Iran, the Iranian government initially opened its borders to large numbers of Afghans after the military invasion of Afghanistan by the Soviet Union when thousands fled Afghanistan for neighbouring Iran and Pakistan and these people were referred to as ‘mohajerin’ or ‘involuntary religious migrants’.  The next wave of Afghans entered Iran followed the war in Afghanistan in 1992 and were classified as refugees by the Iranian government under the 1951 Refugee Convention.  A third wave followed between 1994 and 2001 when Afghanistan came under Taliban rule.  It is reported that close to four million Afghan refugees entered Iran, with only a small group receiving residency permits while most remained in Iran illegally[11].

    [11] Shima Azizi, Seied Beniamin Hosseini and Dr. C. Basavaraju Basavaraju, 2017. “Existence gaps in effective protection of refugees in Iran – with an overview on Iran’s domestic laws and it’s international responsibilities”  International Journal of Current Research Vol. 9, Issue, 01, pp.45260-45271, January, 2017

32. I note that the applicant claims to have entered Iran in 1970, some years before the first wave of Afghan refugees entering that country in 1979.  Contrary to the identity officer’s statement that the applicant stated at interview he had been issued with a mohajerin card, the applicant told me at hearing he has never claimed to have been issued that card.  Rather he states at the interview the interpreter asked him what a mohajerin card was and he responded that it was a card that meant that the police should not arrest you or you could buy something.  The applicant stated he said at interview that he had never been issued such a card and if he had been, he would still be in Iran because he wouldn’t have been deported.

33. I accept the applicant’s evidence at interview may have been misinterpreted or misunderstood, noting that he entered Iran some nine years before the Iranian government started issuing mohajerin cards.  While this does not preclude him later being issued such a card, independent sources indicate most of the four million Afghan refugees in Iran remained there illegally.  Iran’s Bureau of Aliens and Foreign Immigrants’ Affairs (BAFIA) started issuing amayesh cards to refugees in 2003 allowing them to receive work permits, rationed food and supplies. Given the applicant and his family were no longer resident in Iran in 2003, it is clear that they can’t have been issued amayesh cards[12].  For these reasons I accept as credible the applicant’s evidence that he was never issued with an Iranian identity document or refugee registration card.

    [12] Ibid

34. The identity officer also expressed the view that the applicant would not have been deported from Afghanistan to Iran without being issued with any documentation evidencing that deportation. The applicant’s evidence is that he and his family were picked up by the Iranian authorities in [year] and taken by bus with other deportees to the border of Iran and Afghanistan near Herat.  At the border they were told to get off the bus and walk to Herat from the border.  From Herat the family travelled on the same day to Kandahar where they paid a people smuggler to take them across the border into Pakistan overnight and on to Quetta.

35. Independent sources indicate that in 1995 the Iranian government announced all Afghan refugees had to leave Iran. The first deportation program was reportedly launched in 1998-1999, targeting undocumented Afghans.  In 2001 Iran’s BAFIA commenced the first phase of its Aliens Identification Plan which sought to identify and register documented aliens in Iran[13]. 

    [13] Shima Azizi, Seied Beniamin Hosseini and Dr. C. Basavaraju Basavaraju, 2017. “Existence gaps in effective protection of refugees in Iran – with an overview on Iran’s domestic laws and it’s international responsibilities”  International Journal of Current Research Vol. 9, Issue, 01, pp.45260-45271, January, 2017 at 45263

36. Mass deportations of illegal or unregistered Afghans lacking proper documentation reportedly took place as early as 2000. The ICG reports that more than a million Afghans were deported from Iran between 2002 and 2007 and 400,000 in 2008[14]. Amnesty International reported in 2003 that as many as 25% of refugee returns from Iran to Afghanistan were forced, with some Afghan refugees being picked up for not having documents on their person and being escorted to the border by Iranian authorities.  It is reported that some Afghan women were deported for being ‘undocumented’ before being allowed to contact their husbands who would have had possession of their documents[15].

    [14]International Crisis Group 2009, Afghanistan: What Now For Refugees?, 31 August, p.14 Amnesty International 2003 Out of sight, Out of mind: the fate of the Afghan returnees 23 June

In such circumstances I consider it plausible that such deportations would take place without documentation being provided to those deported.  I consider the applicant’s evidence that he and his family were deported from Iran as undocumented aliens in [year] to be consistent with the country information.

In relation to the identity officer’s statement that the applicant inadvertently disclosed during his entry interview that he stayed in Iran lawfully, the handwritten notes of that interview indicate it took place with the assistance of a Dari interpreter.  Earlier in the interview the applicant states he travelled to Iran with his father’s friend [named] and a people smuggler.  In that part of the interview referred to by the identity officer, the relevant questions and answers are referred to as follows:

How did you stay in Iran? Lawfully

So you stayed in Iran lawfully? No.

I consider the extract of interview, read as a whole, indicates there was likely an initial misunderstanding by either the applicant or the interpreter that was immediately clarified by the interviewer.

The identity officer’s was also concerned about perceived inconsistencies in the evidence of the applicant and his wife about the family’s deportation from Iran.  In a statement made in support of his protection visa application [in] July 2009, the applicant stated he travelled to Iran in 1970 at [age] following the death of his father and remained living there unlawfully until [year] (apart from a brief period when he returned to Kandahar, Afghanistan to marry his wife in [year]). The applicant claims to have been deported back to Afghanistan together with his family in [year].

The identity officer was concerned that in a written statement dated [in] November 2009, the applicant’s wife stated:

Before we arrived in Pakistan, we were deported in Iran. Instead of going back to Afghanistan, we entered Pakistan. The reason was that the Taliban is still dangerous in our area.

The identity officer considered that the above statement by the applicant’s wife suggested the family had been deported from Iran to Pakistan rather than from Iran to Afghanistan, inferring they are likely to be Pakistani nationals.

1. I consider a fair reading of the applicant wife’s statement suggests the family were deported from Iran and instead of going back to Afghanistan, they entered Pakistan because the Taliban was still active in Afghanistan. That is consistent with the evidence of the applicant to the effect that the family were deported from Iran back to Herat on Afghanistan’s western border, from where they immediately travelled to Pakistan.  I do not consider the applicant’s wife’s written statement about the family’s deportation from Iran to be materially inconsistent with the applicant’s own evidence or claimed Afghan identity.

   The applicant’s identity documents

2. The identity officer was concerned that prior to being granted protection by Australia [in] September 2009, the applicant had never produced any identity documentation in support of his claimed Afghan nationality. Concerns were also expressed that the applicant’s wife claimed not to have an Afghan taskera despite living in Afghanistan until her marriage. The applicant has consistently stated he was never issued with a birth certificate, tazkera or genuine passport prior to arriving in Australia.

3. Taskeras are the primary identification document in Afghanistan. They are usually issued at the provincial level by the local provincial Population Registration Department and are not subject to a centralised system or computerised recording for registration and oversight[16]. There is an apparent lack of consistent governance and standardisation in the management of taskeras and taskera registers, although the processes and documents for obtaining a taskera are generally reported to be broadly consistent. The required information includes the father’s name, place and year of birth and attestation of identity is required before approval by the local authority and the issue of the taskera[17].

   [16]UNHCR May 2005 Frequently Asked Questions” A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras) CIS9BE2467847, p.2 Immigration and Refugee Board of Canada 2011 Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features September at

   [17] Norwegian Refugee Council 2016 Access to Tazkera and other civil documentation in Afghanistan, 8 November, CIS38A80123743, pp. 16-17. 

4. Afghan citizens displaced by the conflict in that country experience particular difficulties obtaining taskeras, which are described as having importance beyond all other identity documents:

   • Rates of possession of civil and identification documents differ drastically by type document. Taskeras are by far the most common document possessed, with 90% of Afghan males possessing a taskera compared to 38% of women;
   • Taskera access is based on recognition by family members or community elders and this poses significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity;
   • Gender is the key factor in terms of predicting possession of documentation, in particular taskeras.  Women are significantly less likely than men to possess them and face particular challenges in obtaining them;
   • Children and young people are at particular risk of lacking civil and identification documents, particularly when displaced[18].

   [18] Norwegian Refugee Council 2016 Access to Tazkera and other civil documentation in Afghanistan, 8 November, CIS38A80123743. 

5. The applicant and his wife both claim they were not issued a taskera while living in Afghanistan.  I consider their evidence to be consistent with the above information, noting the applicant left Afghanistan as a minor and both children/ young people and women are reported to be at particular risk of lacking identification documents, particularly when displaced.

6. The applicant claims that when concerns about his identity were first raised with him by the Department in late 2016, he travelled to the Afghan Embassy in Canberra where he enquired about obtaining a taskera from the embassy.  The applicant’s friend and witness, [named], attended the hearing and gave evidence that he accompanied the applicant to the Afghan Embassy in Canberra and was present when he was interviewed by staff there.

7. At hearing the applicant gave evidence that that when he attended the Afghan Embassy, he was given a taskera application form and a file number and asked to complete that form which he did with the assistance of [his witness] (as he himself is illiterate).  He gave evidence the embassy told him they would fax that form to the Interior Ministry in Afghanistan. He was told to post the original form with his photograph to his [relatives] in Afghanistan and he did so. The applicant’s evidence is that it took approximately one month for the form to reach his relative who lived in Kabul and that when his relative received it, he took the form to the Ministry of Interior.  He believes they crossed checked the number with the form faxed to them by the Afghan Embassy, stamped it and told his [relative] to take it to the Ministry of Foreign Affairs who then posted the original document to the applicant in Australia. 

8. The original document was produced to the Tribunal at hearing and comprises a single page titled “National ID card (Tazkira)”.  The document bears several untranslated wet stamps and a photo of the applicant.  The applicant also provided what appears to be an English language translation of that document which also bears a number of wet stamps. The English language translation contains the same serial number and identifies the applicant in a manner consistent with his own evidence. In particular it gives his name as [combined name], his father’s name as [name] and his grandfather’s name as [name] and identifies his place of birth as [Village 1].

9. Following the Tribunal hearing, the Tribunal requested the department’s Country of Origin Information Services Section (COISS) ask a number of questions of the Afghan embassy in Canberra. As noted above, while COISS put a number of questions to the Afghan Embassy at the Tribunal’s request, it advised the Tribunal that its policies prevented it from approaching the Afghan embassy in Canberra with the applicant’s personal details. For that reason COISS declined to ask the Embassy whether they had any records of assisting the applicant to obtain a taskera in 2016 or 2017 as originally anticipated by the Tribunal.

10. The response from the Afghan embassy in Canberra was dated [in] July 2017 and provided to the Tribunal [later in] July 2017.  The COISS response identifies the questions asked and answers received as follows[19]:

    [19] Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia

    QUESTIONS: [[date]/07/2017]

    A. Confirmation that the Afghan Embassy assists Afghan nationals in Australia to obtain Tazkiras from Afghanistan?
    B. Advise on the formal process for obtaining a Tazkira for applicant in Australia?
    C. A breakdown of the verification process undertaken by the Afghan Government as to the veracity of the application submitted by the applicant?
    D. Advise on when a Tazkira is issued via this process, is an English language translation of the document provided to the applicant?

    RESPONSE: [[date]/07/2017]

    The following response was received from the Afghan Embassy in Canberra.

    1.    The Embassy of Islamic Republic of Afghanistan in Canberra is the only entity in Australia to assist all the Afghan nationals in Australia who requires verification for their Afghan identity.

    2.    The applicant must visit the Embassy (Monday and Friday only) for a formal interview and fill up the application form. After the interview, the Embassy collects all the required documents (details are available in Embassy website) from the applicant and send them to Ministry of Foreign Affairs and Ministry of interior of Afghanistan to verify his/her Afghan nationality. After receiving confirmation from Kabul, the Embassy contacts the applicant and issue a letter confirming his/her Afghan Nationality by the Embassy.

    3.    The Embassy of Islamic Republic of Afghanistan do not issue Tazkira (Afghan National Identity), however after receiving confirmation of the applicant’s Identity from Kabul, the Embassy issues a letter (in English) confirming his Afghan Nationality.

    4.    This is a lengthy process and may take months. We advice to nominate a representative by the applicant in Kabul to accelerate this process. 

11. Although the response from the Afghan Embassy does not address all parts of the questions posed by the Tribunal, it does confirm that the Embassy can assist Afghan nationals in Australia to verify their Afghan identity and that the process for this involves visiting the Embassy for an interview and completing the required documents.  It also confirms that the Embassy communicates with the Ministry of Foreign Affairs and Ministry of Interior of Afghanistan and that applicants are advised to nominate a representative in Kabul to accelerate a lengthy process. It suggests the document issued at the end of that process is not a tazkera but a letter in English confirming a person’s Afghan nationality.

12. The applicant’s representative also provided email correspondence with the Afghan Embassy dated [in] August 2017 in which they sought to confirm that the applicant and his friend attended the Afghan Embassy in Canberra and undertook the process to obtain the taskera. On the same date the Afghan Embassy emailed the applicant’s representative confirming that the process described as having been undertaken by the applicant was the correct procedure for obtaining a taskera.

13. Following the hearing the applicant’s representative provided an extract from the Afghan Embassy’s website and an accredited translation of that website.  Consistently with the applicant’s own evidence as to how he obtained his tazkera (or letter confirming his Afghan nationality), the website states that a person seeking a taskera must attend the Embassy, complete and sign the tazkera form and other relevant documents which will then be forwarded to the Ministry of Internal Affairs in Afghanistan for assessment and verification.

14. In light of the consistent evidence of the applicant, [his named witness] and the Afghan Embassy I accept that the applicant attended the Afghan Embassy in December 2016 and commenced a process for obtaining an Afghan identity document. While it appears that the document provided to the applicant as a result of this process may be more correctly described as a letter of confirmation of nationality than a taskera, I accept that the document produced to the Tribunal is a genuine document issued by the Afghan Embassy in conjunction with the Afghan Ministry of the Interior.

    Identity documents for the applicant’s wife and [child]

15. The identity officer considered that Afghan tazkeras, birth certificates and passports submitted by the applicant in relation to his wife’s offshore humanitarian visa application were fraudulent. The primary reason for this was the multiple errors in those documents about dates and places of birth of the applicant’s children as well is concerns about the appearance of the documents and the signatures of the Consul General in Quetta.

16. The applicant does not dispute that these documents are likely to be bogus and does not seek to rely on them in the assessment of his identity.  He claims that during the process of his wife’s offshore humanitarian visa he received a call from a departmental officer from the Australian Embassy who was processing his visa application. An interpreter on the line was interpreting what was being said by the departmental officer. He claims the departmental officer asked him to ensure that his family brought their identity documents with them to the interview and that he should try to obtain the documents in any way he could or his family’s visa would not be granted.

17. The applicant claims that knowing his family did not hold any formal identity documents, he began investigating ways in which he could obtain documents for them to take to their interview. He states he called a person he knew to his previous employment in Quetta who informed him that documents could be arranged through the Afghan Embassy in Quetta and that this friend assisted his wife to arrange the documents, paying either $[amount] or $[amount]. Those documents were then provided to the departmental officer at the interview in Islamabad.

18. At hearing the applicant told me his friend assisted his wife to obtain the documents from somebody at the Consul General in Quetta and they had believed them to be genuine, although he now accepts they may not be. 

19. I accept the documents are likely to be fraudulent.  As noted above, Afghan citizens displaced by conflict are widely reported to have difficulty obtaining genuine identity documents.  For the reasons set out above, I have accepted the applicant’s evidence that neither he or his wife were ever issued with taskeras while living in Afghanistan to be consistent with country information.  I have also accepted that the applicants lived as undocumented refugees in Iran before being deported from that country in [year].  The applicant and his wife claim to have lived as refugees in Pakistan from [year] until 2009.  For the reasons set out later in this decision, I accept that to be the case.  In these circumstances I accept the applicant’s explanation as to how he obtained these documents.

20. I note also that these documents are consistent with the applicant’s long-standing evidence as to his family’s identity and composition.  The applicant first outlined his family composition details in 2009 and nothing in the material before the Tribunal suggests these details have ever changed. 

21. Copies of the results of DNA testing conducted in September 2011 and contained on the department’s file concerning the offshore humanitarian visa confirm the applicant is the biological parent of each of the couple’s [children] who were tested.

    Other concerns raised in the delegate’s decision

22. As well as the matters set out in the identity assessment and discussed above, the delegate expressed other concerns about the applicant’s identity in the decision record. 

23. The delegate was concerned about a perceived discrepancy in the applicant’s various statements about his place of birth, stating in the decision record that in his entry interview he stated he was born in Khandahar, Afghanistan while in his protection visa application he stated he was born in [Village 1], Ghazni, Afghanistan. Having viewed the written record of the entry interview and having listened to the audio record of that interview I am satisfied the delegate erred in her belief the applicant stated he was born in Khandahar, Afghanistan.  Rather both the written and audio record of that interview records the applicant stated he was born in [Village 1], Ghazni, Afghanistan.

24. The delegate was concerned the applicant has not provided any evidence of being a registered refugee in Pakistan, noting that refugees in that country are issued with a Refugee Card or Proof of Registration card. 

25. DFAT reports that the Hazara ethnic group has lived in Pakistan for centuries and those who are Pakistani citizens can access formal identification such as computerised National Identity Cards (CNICs). More recent Hazara arrivals from Afghanistan do not have Pakistani citizenship, but tend to have access to formal documentation in the form of immigration cards.  DFAT reports that there are reports that some Pakistani Hazaras are having their CNIC’s cancelled, although it is not aware of any credible evidence to support these claims.  It notes that the National Database and Registration Authority (NADRA) is currently engaging in a campaign to target fraud in relation to CNICs and has identified several thousand fraudulent records in this process[20].

    [20] DFAT 2017 DFAT Country Information Report” Pakistan 1 September

100.   Prior to 2006 there appears to have been little progress in the registration of Afghan refugees living in Pakistan, with a short lived process in August 2001 that ceased after a month[21]. The UNHCR reports that between 2006 and 2007, 2.15 million Afghans resident in Pakistan were registered and provided with Proof of Registration cards which proved the holders had a legal right to remain in Pakistan[22].  The US Department of State Country Report on Human Rights Practices for 2012 reported that despite this, over one million Afghans in Pakistan remained undocumented or unregistered in 2012[23]. Given the applicant and his family arrived in Pakistan six years prior to the commencement of the registration process and approximately one third of the Afghan population in Pakistan remained unregistered as recently as 2012, I accept as plausible his evidence he never received a Pakistani refugee registration card. 

[21] Human Rights Watch 2002 Closed Door Policy: Afghan Refugees in Pakistan and Iran 27 February

[22] UNHCR 2007 Registration of Afghans in Pakistan 16 February

[23] US Department of State 2013, Country Reports on Human Rights Practices for 2012 – Pakistan, 19 April, Sec.2d ‘Protection of Refugees’

101.   DFAT reports that the Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan.  However more recent Hazara arrivals from Afghanistan are citizens of Afghanistan, not Pakistan, and as such are not able to legally acquire Pakistani National Identity Cards required to access government and other services[24].  DFAT reports that while this decision did not have an official cut-off point, Hazaras arriving in more recent times have found themselves unable to register legally for Pakistani National Identity Cards, although some Hazaras obtained them illegally[25].  As the applicant and his family did not arrive in Pakistan until [year], I accept they would not legally have been entitled to Pakistani citizenship or National Identity Cards.  For these reasons, I find the applicant and his family are not citizens of Pakistan.

[24] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan  26 March at 3.14

[25] DFAT 2010 Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta 30 July CX246851

102.   The delegate recorded that a case note by a departmental officer at the Dubai post indicated he suspected the applicant and his wife were Pakistani Hazaras and not Afghan Hazaras.  That appears to be based on the officer’s assessment that their accents and names sounded Pakistani rather than Afghani.  I have set out my findings in relation to the applicant’s name above.  I note that at the time of the interview, the applicant and his family had been living in Pakistan for a number of years which may explain their accents.  I give these matters little weight.

Conclusions

103.   For the reasons set out at length above, I consider that some of the matters considered adverse by the identity officer and the delegate constitute errors or misunderstandings while others have been satisfactorily explained by the applicant and his representative. In particular I have found that the applicant’s name is not inconsistent with his claimed Afghan identity and his wife’s statements at interview in Islamabad in 2010 are not materially inconsistent with the applicant’s own evidence or claimed Afghan identity.  I have found the applicant has consistently stated that he was born in [Village 1], Ghazni, Afghanistan and the delegate’s finding to the contrary was an error.  On the basis of information contained in independent sources, I have found the applicant’s evidence about his deportation from Iran in [year] and his lack of Iranian or Pakistani identity documents or refugee registration cards to be credible.

104. While I have found the identity documents submitted for the applicant’s wife and children in respect of their spouse application are likely to be fraudulent, I have accepted the applicant’s explanation as to how he obtained these documents. I note the Department’s Procedures Advice Manual (PAM3) sets out that when considering whether the ground set out in s.116(1AA) is established, delegates must have regard to the visa holders individual circumstances and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.

105.   I consider there to be very strong evidence of the applicant’s Afghan nationality.  In particular I give weight to the taskera/ letter of confirmation of Afghan identity issued to the applicant during the course of these proceedings.  I consider that while the absence of security features of this document means it is not possible to reach a complete state of satisfaction about the genuineness of the document, the difficulties of Afghans seeking to produce such documentation are well known.  I am satisfied in this case that the applicant and his representative have made every possible effort to verify the document with the Afghan Embassy in Canberra and all available information tends to confirm its genuineness. I accept it to be genuine and consider it compelling evidence of the applicant’s Afghan nationality.

106. For the reasons set out above I am satisfied the applicant’s identity is as claimed and he is an Afghan national. It follows I am not satisfied the ground for cancellation in s.116(1AA) exists. Therefore I must set aside the decision under review and substitute a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

DECISION

107.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Alison Murphy
Member