1702934 (Refugee)

[2018] AATA 2085

1702934 (Refugee) [2018] AATA 2085 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702934

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Alison Murphy

DATE:4 June 2018

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 04 June 2018 at 9:56am

CATCHWORDS
Refugee – Cancellation – Protection visa – Afghanistan – Incorrect information – Ethnicity – Hazara – Social group – Fear of harm by extremists – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109

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 to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached section 101 of the Act by providing incorrect answers about his country of citizenship in his visa application, incorrectly stating he was an Afghan citizen instead of a Pakistani citizen. 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. The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was not represented during the review.

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

   LEGISLATIVE FRAMEWORK

6. The applicant was granted a Class XA Subclass 866 protection visa on 2 July 2012. 

7. 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 Immigration (the Department) of any incorrect information of which they become aware and of any relevant changes in circumstances. Relevant to this case, these include the ground set out in s.101(b) which requires a non-citizen to complete a visa application in such a way that no incorrect answers are given or provided.

8. 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.

9. In the current case, the s.107 notice was issued on 30 November 2016 and provided particulars of the possible non-compliance as follows:

   ·In response to question 19 of form 866C, which asks ‘your citizenship at birth’ you stated ‘Afghan’;

   ·In response to question 20 of form 866C, which asks ‘your current citizenship (if different to at birth)’ you did not provide an answer;

   ·In response to question 21 of form 866C, which asks ‘Do you hold any other citizenship or are you a national of any other country’ you stated ‘No’;

   ·In response to question 32 of form 866C, which asks ‘Details of countries of former habitual residence or transit or transit before arrival to Australia’ you stated ‘See attached’.  In the subsequent attachment you have listed the following in part:

Country	Date of departure	Status	If status was other give details
Pakistan	2010	R (refugee)	Living illegally

·In response to question 42 of form 866C, which asks ‘why did you leave that country?’ you stated ‘Please refer to my statement’.  In the statement which you submitted as a part of your visa application and signed on 15 January 2011 you stated (in part):

In Pakistan my family’s lives are in danger.  There are groups such as Sepai Sahaba, Lashkiar Jan Gawi and the Taliban targeted us.  One day I was at the marketplace with a group of Hazaras in Quetta and on the way out of the shops we were ambushed by a group shooting at us.  Three of the group I was with were killed.  They were in the back of the car and I was in the front and I was not injured.  We tried to get help at the hospital and with the police but the police are targeted as well so we could not get help.

1. The s.107 notice went on to state that:

   ·the applicant’s protection visa application was assessed on the basis the applicant was a national or Afghanistan and no other country and had no legal right to enter or reside in Pakistan or any other third country and on that basis he was found to engage Australia’s protection obligations;

   ·on 27 March 2013 the applicant lodged a sponsorship form, seeking to have his wife and children join him in Australia. In support of this application he provided a National Database and Registration Authority (NADRA) Certificate issued by the Government of Pakistan [in] January 2005 which identified the applicant as the head of the family and contained his Computerised National Identification Card (CNIC) number;

   ·the Department conducted routine checks with the relevant authorities and confirmed that only Pakistani citizens were issued with a CNIC and that the applicant (identified by the name of his father [name]) was a citizen of Pakistan; 

   ·the applicant had returned to Pakistan on three occasions since being granted a protection visa.  He first departed Australia three months after the grant of his subclass 866 protection visa on 19 October 2012 and returned on 13 February 2013.  He departed Australia for the second time on 26 May 2014 and returned on 22 September 2014.  He departed Australia again on 6 September 2016 and returned on 10 November 2016.  On each occasion he indicated on his outgoing and incoming passenger card that he visited Pakistan.

2. The s.107 notice went on to state that based on this information, it was considered the applicant had not complied with s.101(b) of the Act and his protection visa was liable for cancellation under s.109 of the Act. The applicant was invited to comment in writing on the s.107 notice.

3. The applicant’s response to the s.107 notice is contained in a statutory declaration dated 19 December 2016. He states in summary:

   ·He was born in [Jaghori], Ghazni, Afghanistan and his family moved from Afghanistan to Pakistan when he was around [age] years old because of the persecution Hazaras faced from Pashtuns.  His family settled in Quetta, Pakistan where a lot of other Afghan refugees also settled around that time.  He married in 1995 and his first child was born in [year]; 

   ·When his daughter [was] about [age] years old, they wanted to enrol her in school but she was not accepted as the applicant did not have Pakistani identity documents.  The school required both parents to show Pakistani identity documents in order to enrol their child in a public school;

   ·The applicant started looking for ways to obtain a Pakistani identity document.  He found someone with access to the Pakistani authorities who dealt with the issue of Pakistani identity documents.  The applicant paid him money and he arranged the applicant’s Pakistani identity card;

   ·The applicant believes it is not a genuine document because he paid money to obtain it.  He does not have Pakistani citizenship or any genuine document from Pakistan.  He cannot return to Pakistan because he faces persecution there.  Since the document was not genuine, he did not provide it to the department earlier;

   ·His family is living in Pakistan under constant threat from different terrorist groups due to their religion and ethnicity.  They have been waiting to reunite with the applicant in Australia since 2013 and will suffer hardship if the applicant’s visa is cancelled.

4. On 13 February 2017 the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the s.107 notice and assessed the applicant did not comply with s.101(b) of the Act. The decision records the delegate considered the applicant’s response to the s.107 notice but did not consider it credible. The delegate found the applicant was a Pakistani citizen but had incorrectly stated he was an Afghan citizen in his visa application.

5. 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.

6. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

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

7. 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.

8. The issue before the Tribunal on review 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.

9. The s.107 notice identifies two separate issues about which the applicant is stated to have provided incorrect answers in his protection visa application. The first relates to his country of nationality and the second to whether he feared persecution in Pakistan.

   Did the applicant provide incorrect information about his citizenship or nationality?

10. The applicant clearly states in his visa application that he is an Afghan citizen who holds no other nationality or citizenship and has no right to enter or reside in Pakistan, where he formerly lived as a refugee.

11. However the NADRA Certificate issued by the Government of Pakistan [in] January 2005 identifying the applicant as the head of the family and showing his Computerised National Identification Card (CNIC) number would seem to indicate that information may not be correct, given that only Pakistani citizens are eligible to be issued with a CNIC[1].  Further the applicant’s return trips to Pakistan in 2012/13, 2014 and 2016 may suggest a right to enter and reside in that country.

12. The applicant does not deny he has been issued a CNIC in Pakistan, but claims it is not a genuine document as it was falsely issued to him after he paid a bribe of [amount] rupees for an identity card and a B form, which recorded his family registration details.  He gave evidence he used his CNIC to apply for a passport before leaving Pakistan.

13. It is not in dispute that the applicant is of Hazara ethnicity.  He speaks Hazaragi and shares the distinctive physical characteristics of Hazaras.  The Department of Foreign Affairs and Trade (DFAT) reports that ethnic Hazaras have lived in Afghanistan for centuries, and Hazaras resident in Pakistan have migrated from Afghanistan over the last century[2].

14. At issue in this case is whether the applicant is a citizen of Afghanistan or Pakistan and, depending on the answer to that question, whether he provided incorrect information in his protection visa application. 

    The applicant’s citizenship at birth

15. The applicant has consistently stated he was born in Afghanistan in [year] to Afghan national parents and left that country for Pakistan together with his family when he was about [age] (about 1981). This is consistent with DFAT’s advice that a large wave of Afghan nationals migrated to Pakistan during the Soviet occupation of Afghanistan from 1979[3]. 

16. I note the applicant was interviewed on four separate occasions before his protection visa was granted in 2012 (being a biodata interview on Christmas Island on 5 November 2010, an entry interview conducted on Christmas Island on 13 November 2010, a refugee status assessment interview conducted by telephone on 15 January 2011 and an interview conducted by an independent merits review officer conducted at some time prior to her decision dated 6 February 2012).  Written records or audio recordings of each of those interviews are before the Tribunal, with the exception of the interview conducted by the independent merits review officer.  However the applicant’s statements at that interview are summarised in the decision record dated 6 February 2012.

17. Each time he was interviewed the applicant stated that he was born in the Jaghori district of Ghazni province in Afghanistan and he left that province with his family when he was aged about [age]. He has also consistently stated in his interviews and other documents provided in support of his visa application that his parents and siblings were born in Afghanistan (with the exception of his younger brother who was born in Pakistan) and his father remained living in Quetta, Pakistan, while his mother died in that city three years prior to the applicant’s arrival in Australia.  The independent merits review officer accepted the applicant’s account of his family’s departure from Afghanistan in about 1981 and their arrival in Pakistan as refugees.

18. I note the applicant has not at any stage provided an Afghan tazkera to the Department. Tazkeras 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[4].

19. Independent sources report that Afghan citizens displaced by the conflict in that country experience particular difficulties obtaining tazkeras:

    • Tazkera 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;
    • Children and young people are at particular risk of lacking civil and identification documents, particularly when displaced[5].

20. The applicant states he was not issued a tazkera while living in Afghanistan.  I consider this to be consistent with the above information, noting he left Afghanistan as a child and displaced children are reported to be at particular risk of lacking identification documents. Therefore I consider that his failure to provide a tazkera does not on its own indicate he was not born in Afghanistan as claimed.

21. On the basis of the applicant’s consistent statements and the country information before me, I accept he was born in Afghanistan to Afghan parents in or about [year] and the family moved to Pakistan in 1981 as part of a large wave of Afghan nationals migrating to Pakistan during the Soviet occupation of Afghanistan. That being the case, I accept he was an Afghan citizen at birth pursuant to that country’s citizenship laws and will continue to be so unless he has since lost or renounced that citizenship[6].

    Has the applicant since obtained Pakistani citizenship?

22. DFAT reports the Hazara ethnic group has lived in Pakistan for centuries and those who are Pakistani citizens can access formal identification such as CNICs.  According to DFAT the Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan[7].

23. However, DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services[8].  As the applicant and his family did not arrive in Pakistan until 1981, I am not satisfied they would have been able to obtain citizenship by way of the Pakistani government’s recognition of Hazaras as ‘local’ in 1962.

24. Pakistan’s Citizenship Act 1951 provides that an individual may also obtain Pakistani citizenship by birth, descent, migration or naturalisation.  For the reasons set out above I have found the applicant was born in Afghanistan and therefore I am satisfied that he is not a Pakistani citizen by birth.  I have considered whether the applicant may have later obtained Pakistani citizenship by marriage, migration or naturalisation.

    Citizenship by marriage

25. Information provided in respect of the applicant’s wife in both his protection visa application and later sponsorship form has consistently stated she was born in Quetta, Pakistan in [year] and is a Pakistani national.  At hearing the applicant gave evidence his wife obtained her Pakistani citizenship from her father, who had left Afghanistan a long time before the applicant’s family and served with the British Army.

26. Pakistan’s Citizenship Act 1951 does not provide citizenship for men married to Pakistani women.[9] Reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[10]  On the basis of that information, I am satisfied the applicant is not entitled to Pakistani citizenship by reason of his marriage.

27. At hearing I discussed with the applicant the citizenship of his children, given they were born in Pakistan to a Pakistani citizen mother.  The applicant gave evidence his children were not recognised as Pakistani citizens.

28. Independent sources indicate that while children born in Pakistan with one Pakistani parent should be eligible for citizenship under the Citizenship Act 1951 by birth and descent, in practice they are not recognised as citizens. In August 2016 Pakistan’s Interior Minister told parliament that Afghan children born in Pakistan do not qualify for citizenship, even those born to a Pakistani mother and an Afghan father[11]. An August 2016 article in The Nation states:

    The minister went on to clarify that the children of Afghan refugees were Afghans and not entitled to the privilege, even if their mothers were Pakistani citizens. Interestingly, under the Pakistan Citizenship 1951 Act, as originally in force, any person born in Pakistan after commencement is a citizen of Pakistan. This birthright citizenship has not been extended to the Afghan refugees at any point in history due to political and security reasons. According to a clause of the 1951 Act citizenship may also be concurred by descent if one parent has the Pakistani Citizenship. But the parent referred to in this clause is the father and not the mother, and thus even though the mothers of the children of the Afghan refugees may be Pakistani, she forfeits the right to demand a citizenship for her child when she marries a non-Pakistani[12].

29. Other sources confirm that children born to Afghan refugees in Pakistan are denied citizenship:

    No statutory provision of law expressly deals with status of citizenship of refuges and especially, Afghan refugees in Pakistan. With regards to citizenship by birth the case of Afghan Refugees is of special importance, as the status of citizenship is not extended to them even if a child of a refugee is born in Pakistan[13].

30. In light of the above information I am satisfied that neither the applicant nor his children have obtained Pakistani citizenship through their relationship with the applicant’s wife.

    Citizenship by migration

31. Section 6 of Pakistan’s Citizenship Act 1951 provides that the Federal Government may register as a citizen of Pakistan by migration any person, who after the commencement of that Act and before 1 January 1952, migrated to the territories of Pakistan from any territory in the Indo-Pakistan sub-continent, with the intention of residing permanently in the territories of Pakistan.  As the applicant and his family arrived in Pakistan after 1 January 1952, I am satisfied the applicant is not entitled to citizenship under this section of the Citizenship Act 1951.

    Citizenship by naturalisation

1. Section 9 of Pakistan’s Citizenship Act 1951 provides that the Federal Government may register as a citizen of Pakistan by naturalisation any person who has been granted a certificate of naturalisation under the Naturalisation Act 1926.  Independent sources indicate that despite the fact that many Afghan refugees living in Pakistan may technically be eligible for citizenship by naturalisation under the provisions of that Act, Pakistan’s Ministry of Interior has a long-standing policy of denying the benefit of naturalisation to Afghan applicants[14].

2. This is the case even where it appears to be available to them at law:

   After Soviet invasion in Afghanistan in 1979, around five million Afghan Nationals fled the country and took refuge in neighbouring countries. Pakistan alone housed around three million refugees (Noorani 1988, Shahi 1988).

   . . . One of the four agreements was the Bilateral Agreement between Republic of Afghanistan and Islamic Republic of Pakistan on Voluntary Return of Refugees. Under the terms of the agreement, the Afghan refugees were to be repatriated peacefully to their home country, however, due to continued instability in Afghanistan up to now, very few refugees have returned. Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels[15].

3. Similarly a 2012 report by the Community Appraisal and Motivation Programme (CAMP) states that:

   it is imperative to note that the State policy towards [registered Afghan citizens in Pakistan]…entails temporary protection, so the provisions of the PCA 1951 do not apply to them[16].

4. In the case of a child of an Afghan child who was born and raised in Pakistan but then denied the issuance of a national identity card when he reached the age of 18, Pakistan’s High Court found that the children of Afghan refugees cannot claim citizenship by birth as their parents have a recognised refugee status and are deemed foreigners and aliens under the law.  The High Court held that the long stay of a foreigner would not automatically convert him to be a citizen of that country unless he acquires the nationality by process of law[17].

5. In view of the country information cited above, I consider it unlikely the applicant, as an Afghan refugee who arrived in Pakistan as a child to an Afghan refugee father in 1981, could have become eligible for Pakistani citizenship through any lawful means.

   The issuing of fraudulent identity documents in Pakistan

6. As set out above, the applicant claims he was issued Pakistani identity documents after he paid a bribe of [amount] rupees for a national identity card and a B form, which recorded his family registration details.  He gave evidence he used his national identity card to apply for a passport before leaving Pakistan in 2012.

7. DFAT reports that document fraud is endemic in Pakistan, and while CNICs contain a number of security features which have reduced the incidence of document fraud, genuine documents are sometimes issued on the basis of false information[18]. 

8. There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani national identity cards required to access government and other services [19]. According to DFAT, 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, including Afghans who had been added to household registration lists without authorisation[20]. Pakistani authorities have put in place measures to combat the fraudulent issue of documents and can cancel or block CNICs suspected to be fraudulent [21].

9. Tens of thousands of fraudulently issued CNICs have reportedly been blocked by NADRA, with the former Interior Minister Rehman Malik reported to have stated that he had ordered NADRA to block as many as 85,000 CNICs in Balochistan alone during his tenure between 2008 and 2013.  NADRA’s deputy assistance director Qamar Nadeem was found guilty of issuing CNICs and birth certificates to foreigners in September 2015 and another assistant director, Shahid Yousaf, was arrested in Peshawar in 2017 for issuing CNICs to Afghan nationals.  NADRA has reportedly sacked 200 officials for issuing CNICs to foreign nationals and is collaborating closely with the Pakistani authorities in relation to the arrest, investigation and prosecution of those suspected of registering foreigners[22]. 

10. In view of the country information cited above, together with my finding that it is unlikely the applicant could have become eligible for Pakistani citizenship through any lawful means, I accept the applicant’s evidence that he obtained his apparently genuine CNIC and associated identity documents by fraudulent means. I am satisfied the applicant was not entitled to be issued that Pakistani CNIC and passport because he is not a Pakistani citizen.  Rather, I find the applicant is a citizen of Afghanistan only.

11. It follows that I do not accept the applicant provided incorrect information about his Afghan citizenship in his protection visa application.

    Did the applicant provide incorrect information about his fear of returning to Pakistan?

12. It is also suggested the applicant provided incorrect information in his protection visa application, when he claimed he left Pakistan because the lives of he and his family were in danger. The NOICC sets out:

    ·In response to question 32 of form 866C, which asks ‘Details of countries of former habitual residence or transit or transit before arrival to Australia’ you stated ‘See attached’.  In the subsequent attachment you have listed the following in part:

Country	Date of departure	Status	If status was other give details
Pakistan	2010	R (refugee)	Living illegally

·In response to question 42 of form 866C, which asks ‘why did you leave that country?’ you stated ‘Please refer to my statement’.  In the statement which you submitted as a part of your visa application and signed on 15 January 2011 you stated (in part):

In Pakistan my family’s lives are in danger.  There are groups such as Sepai Sahaba, Lashkiar Jan Gewi and the Taliban targeted us.  One day I was at the marketplace with a group of Hazaras in Quetta and on the way out of the shops we were ambushed by a group shooting at us.  Three of the group I was with were killed.  They were in the back of the car and I was in the front and I was not injured.  We tried to get help at the hospital and with the police but the police are targeted as well so we could not get help.

1. The s.107 notice recorded that the applicant had returned to Pakistan on three occasions since being granted a protection visa, between 19 October 2012 and 13 February 2013, then again between 26 May 2014 and 22 September 2014 and finally between 6 September 2016 and 10 November 2016. On each occasion he indicated on his outgoing and incoming passenger card that he visited Pakistan.

2. At hearing the applicant agreed he had returned to Pakistan on each of those occasions, but denied this indicated he did not fear harm in Pakistan as stated in his visa application.  The applicant gave evidence that the first time he returned to Pakistan in 2012 was shortly after he was released from detention where he had spent 17 months.  There was a suicide attack in the area of Quetta in which his family lived, and when he spoke to his children they told him they couldn’t sleep and begged him to come back.  While he was there, a second blast occurred in which over a hundred Hazaras were killed. The second time he returned in 2014 was when his father passed away and the third time was to assist his wife who had [medical conditions].

3. He gave evidence that on each occasion he travelled to Pakistan using his Australian travel documents, which he undertook to provide to the Tribunal after the hearing.  In later discussions with a Tribunal officer, he advised he had mailed the original documents to the Tribunal immediately after the hearing but they failed to arrive.  He subsequently provided the Tribunal with photographs of the front pages of two Australian Titre de Voyages issued by the Australian government in 2012 and 2016 as well as a letter from the Department indicating he was issued a further Convention travel document on 2 April 2014.  I am unable to determine from the extracts of the Australian Titre de Voyages provided whether the applicant used these documents to enter Pakistan.

4. In December 2013 DFAT reported that Balochistan experienced frequent attacks by militants and separatists, mainly against the Hazara community, as well as a high level of generalised violence[23]. DFAT reports there were frequent attacks against the Hazara community in Quetta and Balochistan during this time:

   There have been frequent attacks against the Hazara community in Balochistan. Most attacks on Shias in Balochistan have been against the Hazara community (see the December 2013 DFAT Thematic Report – Pakistan – Shias in Pakistan). For example, on 17 February 2013, at least 86 people, mostly Hazaras, were killed when a bomb exploded in a vegetable market in Quetta. A series of bombings in January 2013 targeted Hazaras in Quetta and claimed more than 90 lives. Responsibility for both these attacks was claimed by the anti-Shia LeJ[24].

5. Given the applicant was a member of an ethnic and religious minority under sustained attack from extremists in Quetta, Balochistan, I accept he feared for the lives of himself and his family while living in Pakistan. I note that the state of Pakistan is not the perpetrator of the harm feared by the applicant and he has not claimed to fear harm from the Pakistani authorities. While his desire to support his family appears to have at times outweighed his fear of harm in that country, I do not consider his returns to visit his family in Pakistan indicate he did not fear harm in that country.  It follows that I do not accept the applicant provided incorrect information about his fear of harm in Pakistan in his protection visa application. 

   Conclusion on non-compliance

6. For the above reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

7. 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

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   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.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)    considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)    having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

   
   

[1] 'The National Database and Registration Authority Ordinance 2000', Government of Pakistan, amendments to 10 June 2016, CIS38A80124335, s. 10; 'National Identity Card (NIC)', National Database and Registration Authority (NADRA), Government of Pakistan, n.d., CIS38A80124324

[2] DFAT 2014, DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March at 2.19.

[3] DFAT 2014 DFAT Thematic Report Hazaras in Afghanistan and Pakistan, 26 March at 2.19.

[4]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

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

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

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

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

[9] 'Citizenship Act 1951', Government of Pakistan, CIS38A80123108

[10] See e.g. 'Pakistan: Renewed Threats to Afghan Refugees', Human Rights Watch, 1 July 2016, CX6A26A6E16077; 'Afghan Refugee Repatriation Threatens to Tear Marriages’, Khan, A., News Lens Pakistan, 16 August 2016, CX6A26A6E16076; 'Fractured Relations', Dawn, 31 January 2017, CXC9040661323

[11] ‘Afghan refugees’ children can’t get CNICs: Nisar’, Dawn, 11 August 2016, CX6A26A6E16096; ‘Afghan refugee repatriation threatens to tear marriages apart’, News Lens, 16 August 2016, CX6A26A6E16076; ‘Which way home?’, Geo TV (News), 17 January 2017, CXC90406620554.

[12] ‘No Leave To Remain’, The Nation (Pakistan), 12 October 2016, CX6A26A6E20492

[13] EUDO Citizenship Laboratory Report on Citizenship Law: Pakistan December 2016 available at

[14] Gilani, U, ‘Afghan ‘Refugees’, The International News, 27 October 2016, available at

[15] EUDO Citizenship Laboratory Report on Citizenship Law: Pakistan December 2016 available at

[16] Accessing Justice for Registered Afghan Citizens Living in Pakistan: A Guide to Pakistani Institutions, Laws and Procedures, Community Appraisal and Motivation Programme (CAMP), 2012, p.69, CIS961F9402857

[17] Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18.

[18] DFAT 2017 DFAT Country Information Report” Pakistan 1 September at p.42.

 'Senate body admonishes NADRA for issuing thousands of fake CNICs', The Express Tribune, 8 May 2017, CXC9040667033; 'The discriminated Pashtun', The News on Sunday, 5 March 2017, CXC9040669342

[20] DFAT 2017, DFAT Country Information Report Pakistan, 1 September at 3.10.

[21] Ibid, p.42.

[22] ‘House of cards - Why NADRA's system is far from being flawless’, Herald (Pakistan), 19 April 2017, CXC90406619198.

[23] DFAT, DFAT Thematic Report: Shias in Pakistan, 18 December 2013, p.15.

[24] DFAT, DFAT Thematic Report: Hazaras in Afghanistan and Pakistan, 26 March 2014, p.13-14.