1711459 (Refugee)

[2017] AATA 2893

1711459 (Refugee) [2017] AATA 2893 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711459

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Shahyar Roushan

DATE:6 November 2017

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 November 2017 at 12:10pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Afghanistan – Irregular Maritime Arrival – Ethnicity – Hazara – Bogus or fraudulent identity documents

LEGISLATION
Migration Act 1958, ss 116(1AA), 140(1), 348, 499

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

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 dated [in] May 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that he 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 purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant (the applicant). The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

   Background, Claims and Evidence

4. The applicant arrived in Australia [in] Feb 2010 as an Illegal Maritime Arrival (IMA). He identified himself as [the applicant’s name], born [in date], and did not present any documentary evidence to substantiate his identity. He was granted a protection visa on the basis that he is a Hazara from Afghanistan.

5. The applicant applied for citizenship [in] July 2014. In support of that application, the applicant produced a titre de voyage travel document, produced by the Australian Passport Office, and a NSW driver license. These documents were issued to the applicant on the basis of the identity he had provided to the Department upon his arrival to Australia. The applicant also submitted to the Department an Afghan driver license, issued in 2006.

6. [In] December 2015, the department finalised an Identity Integrity Assessment regarding the applicant’s identity. The Assessment concluded that the identity which the applicant had used when applying for his protection visa was not supported.

   The NOICC

7. [In] January 2017, the applicant was issued with a Notification of Intention to Consider Cancellation under s.116 (NOICC).

8. The NOICC referred to the Identity Integrity Assessment and stated:

   A delegate may cancel a visa under 116(1AA) if they are not satisfied as to the holder's identity, such as in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is not known. Points of particular concern to the Identity Officer included:

   ·You have submitted to the department an Afghan driving licence which was issued in 2006 and has been deemed by the department’s Document Examination unit to be bogus. This licence is of concern as during the Protection visa application process you asserted that you did not have any identity documents from Afghanistan or Iran; however in 2014 you presented this licence to the department in support of your citizenship application. The fact that you have presented a bogus identity document which was issued several years before you came to Australia has been called into question.

   ·According to your claimed sister [Ms A], you only chose the surname of [applicant’s surname] when he travelled to Iran in 2006; however you have also stated that your father who died 20 years previously and had never left Afghanistan also had this surname. Furthermore, you declared that you fled to Iran in May 2007, so given that you had yet to adopt this name, it is not credible that you were issued with an Afghani licence in the name of [applicant’s surname] when you purportedly had yet to even deal with the Iranian authorities who insisted that you have a surname.

   ·You claimed to have raised a total of $[amount] to bring yourself and your family to Australia by selling land in Afghanistan. This story is not consistent with your assertion that you remained outside of your province of birth for 3 years before coming to Australia. You were unable to provide details of who kept the land, where the land was, or how much you sold it for.

   ·That you and your claimed sister [Ms A] both forgot to mention your claimed [brother] [Mr A] in your entry interviews, only advising the department at the time of your Protection visa application.

   ·That you and your claimed sister [Ms A] have significantly differing accounts about when your brother [Mr B] became paralysed. You said it was 15-16 years previously, whereas [Ms A] said it was 3 years previously.

   ·That your claimed sister [Ms A] only chose your surname of [applicant’s surname] when she travelled to Iran in 2006, however you have also stated that your father who died 20 years previously and had never left Afghanistan also had this surname. Given that Hazaras traditionally do not have surnames, why you happened to choose this surname has been called into question.

   The Identity Assessor has concluded that given the discrepancies in your account of your family and travel history, bogus and altered documentation, and misleading answers provided by you at interview, your identity is not supported.

   There is no other documentation before me which satisfactorily evidences the identity of [applicant’s name]. Having considered the information you have presented to the department, I am not satisfied as to your identity.

9. 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 the applicant’s identity. The applicant was invited to comment in writing to the NOICC.

   The Applicant’s Response

10. [In] February 2017, the applicant, through his representative, responded to the NOICC. In relation to the Afghan driver license, it was stated that when he came to Australia and applied for protection, he had no identity documents to provide in support of his application and identity. At the time they were a family of four and the applicant was ‘the head of the family’. He was ‘desperate’ to find work to support his family. However, whenever he found a job, the first question was whether or not he had a driving license. He asked ‘some Afghan nationals’ how he could obtain a license and he was advised by one person that if he obtained an Afghan driving license, he would be able to drive for up to 6 months if he passed ‘the test’ he would be given an Australian license. It was stated that the applicant is remorseful and regrets doing ‘something completely out of my character’.

11. It was submitted that this was ‘a onetime incident’ and since then the applicant has worked hard to be a productive member of the community. He and his family have been living ‘a stable and law abiding lifestyle’. They have successfully integrated and have strong ties to the community.

12. In relation to the applicant’s surname, the submission referred to and quoted from a November 2009 paper by Karine Megerdoomian, titled The Structure of Afghan Names. It was submitted that the applicant used surname [name] when he travelled to Iran. His father may have used the surname some 22 years ago, however, it is not customary to have and to use surnames in Afghanistan. Therefore, they never used that surname in Afghanistan. However, they adopted the surname when they arrived in Iran.

13. In relation to the sale of the land, it was submitted that when the applicant travelled to Iran in 2007, he heard a lot about Australia and he wanted a peaceful and secure life for his children. He contacted his brother, [Mr B], and I told him about his intentions and asked him for financial help. [Mr B] was able to collect the money by selling one of their father's lands. The applicant did not ask his brother about the price of the land and ‘just received the money’. Shortly after, [Mr B] was attacked by the Taliban and passed away in 2013. The applicant did not know how the land was sold, which land was sold and for what price.

14. In relation to the inconsistencies between the applicant’s evidence and that of his sister regarding their brother, [Mr A], the response questioned whether mentioning a brother's name on protection visa application would it have any adverse impact on the application. The applicant had no intention of hiding his sibling’s name and had mentioned his name in the declaration and the forms dated [in] April 2010. [Mr A’s] death dates back to 26 years ago and as the applicant was not asked to mention missing family members at his entry interview. However, this information as subsequently provided in connection with his application for a protection visa.

15. With regard to inconsistencies between the applicant’s evidence and that of his sister regarding their brother, [Mr B], it was submitted that, in the absence of access to the audio recordings of the various interviews, it would be difficult to comment on the applicant’s responses. The representative also cited a psychological report in relation to the applicant’s sister, [Ms A]. The report stated in part that [Ms A’s] ‘psychological condition, particularly her anxiety, and her very sheltered upbringing can explain the inconsistency between her statements and her brother's statements during interviews. Due to her anxiety, [Ms A] experiences significant lapses in concentration and memory and experiences many distressing physical sensations in moments of high stress’.

16. The submission went on to argue that the delegate should exercise his discretion not to cancel the visa. It was submitted that non-refoulement obligations arise in respect of the applicant and that there is a real chance that the applicant and his family will be persecuted in Afghanistan.

17. The following documents were provided to the Department under the cover of the submission:

    ·Psychological [Report] , dated [in] February 2017

    ·Copy of the paper by Karine Megerdoomian on Afghan names

    ·DFAT travel advice in relation to Afghanistan

    ·Copy of map detailing ‘Hazara Genocide in Afghanistan’ (source not identified)

    ·Amnesty International Report 2015/2016 in relation to Afghanistan

    ·Letter of support by [an association]

    ·Letter of support by [an Institution]

    ·Employment references from [a workplace]

    ·Letter of support from [an organization in Australia]

    ·Copies of educational qualifications obtained by the applicant and his wife in Australia

    The Delegate’s Decision

18. [In] May 2017, the delegate decided to cancel the visa. In the decision record the delegate noted the applicant had provided inconsistent and contradictory information regarding his claimed identity. The delegate stated:

    [The applicant] can obtain first-tier identity documents from the Afghan government and that his status as a refugee claimant from Afghanistan should not present an insurmountable impediment to obtain the requested documentation… The fact that the visa holder and his family have been unable to provide the Department with any identity documentation raises significant concerns about their claimed identities.      

19. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. After referring to the relevant factors, he concluded that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

    Application for Review

20. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

21. On 11 October 2017, the applicant’s representative provided a submission, addressing the matters set out in the NOICC and the delegate’s decision, as well as the factors that the Tribunal should take into account if it were to proceed to consider whether the visa should be cancelled.  

22. Under the cover of the submission, the applicant’s representative also provided the following documents:

    ·Copies and certified translations of identification documents in relation to the applicant, his son [and] his [daughter]. All three documents have been issued by the [relevant government department in], Islamic Republic of Afghanistan.  

    ·Copies of three separate letters issued the Embassy of the Islamic Republic of Afghanistan in [Australia], confirming that the applicant, his son [and] his daughter [are] citizens of Afghanistan. All three letters have been signed [and] bear the relevant official stamp.

23. The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The Certificate

24. The Department’s file relating to the cancellation of the applicant’s protection [visa] contained a non-disclosure certificate issued under s.438 of the Act in respect of folios 5 to 21 of the same file. The certificate stated that the disclosure of the information contained in the folios would be contrary to the public interest, because the release of the information ‘would impact the effective operation of the Department (i.e. integrity or operational measures undertaken by the Department).’ The document and the information contained in folios 5 to 21 of the Department’s file consist of Identity Integrity Assessment Forms relating to the applicant

25. The Tribunal formed the view that the reason identified in the certificate provided sufficient basis for public interest immunity and that the certificate was valid. The Tribunal explained to the applicant at the hearing that it considered the certificate to be valid. The Tribunal, however, decided to exercise its discretion and disclose to the applicant the particulars of the information contained in the Identity Integrity Assessment relating to him. The Tribunal explained to the applicant that the information covered by the certificate raised several concerns in relation to his identity. Some of these concerns were detailed in the NOICC. Other concerns raised in the Identity Integrity Assessment were in relation to his residency details, travel history, education/employment, family and social connections and his use of social media. In relation to the latter, it was noted that the applicant’s ‘entire profile’ on Facebook is written in the Iranian Farsi as opposed to Dari or Hazaragi.

26. The Tribunal has addressed the concerns raised by the delegate in the NOICC in the context of its reasons below. In relation to the other concerns raised in the Identity Integrity Assessment, as it was put to the applicant at the hearing, the Tribunal did not consider any of these concerns to be relevant to, or supportive of, his case. Indeed, having carefully considered this information, the Tribunal formed the view that these concerns were either based on erroneous cultural assumptions or insufficient facts.

27. As the Tribunal decided to exercise its discretion and disclose material subject to a valid s.438 certificate to the applicant, pursuant to s.438(4), it must give a direction under s.440 of the Act restricting publication or disclosure of that material.  The Tribunal, therefore, directs under s.440 of the Act that, in so far as this decision refers to the information contained in folios 5 to 21 of the Departmental file, it must not be published or otherwise disclosed except as required by law.

    The Relevant law

28. 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).

29. 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.[1]   

    [1] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill, p.24, at [16].

30. 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.[2] 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.

    [2] 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).

31. 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. 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’.

    Does the ground for cancellation exist?

32. As noted above, on 11 October 2017, the applicant submitted to the Tribunal copies and certified translations of identification documents in relation to himself, his older son and his daughter. All three documents have been issued by the [relevant government department in the] Islamic Republic of Afghanistan. The identification document clearly states that the applicant is an Afghan national and that he was born [in] Baghlan District of Helmand Province. The applicant also submitted copies of three separate letters issued by the Embassy of the Islamic Republic of Afghanistan in [Australia], confirming that he, his older son and his daughter are citizens of Afghanistan.

33. The applicant stated at the hearing that he had obtained his identity document or Tazkira by contacting his nephews ([Mr B’s] sons) in Afghanistan, who had assisted him in pursuing the matter on his behalf in Kabul. According to a response from the Afghan Embassy in Australia, dated [in] July 2017, once the Embassy receives confirmation from Kabul in relation to an applicant’s identity, ‘the Embassy contacts the applicant and issues a letter confirming his/her Afghan Nationality by the Embassy’. The response also noted that the process of obtaining a Tazkira is a lengthy process and may take months. The Embassy’s advice to applicants was to nominate a representative in Kabul to accelerate this process.[3] 

    [3][Source deleted].

1. The Tribunal sighted the original documents at the hearing. All documents exhibit the official stamps and security features from the appropriate Afghan authorities that one would reasonably expect such documents to display. The Tribunal had no reason to doubt the authenticity of the documents. The Tribunal is of the view that these documents present satisfactory, persuasive and strong evidence of the applicant’s identity.

2. The applicant has acknowledged that he had obtained a fraudulent Afghan driving license, issued in his own name, which he had submitted to the Department in 2014. The Tribunal has considered the explanations put forward by the applicant in his response to the NOICC. He essentially repeated the same explanations at the hearing. Whilst the Tribunal appreciates that he was trying to secure employment in order to support his family, provision of bogus or fraudulent documents is unacceptable. The applicant, no doubt, is now aware of the serious consequences that such actions can carry, as the cancellation of his protection visa was, in part, a result of having submitted the driving license to the Department. In any event, the driving license does not detract from the strong and convincing evidence the applicant has subsequently presented to establish his identity.

3. Similarly, the Tribunal is not persuaded that the concerns raised by the delegate in his decision record, including the applicant’s evidence in relation to how he had funded his travel to Australia; the applicant’s evidence in relation to his brothers, [Mr A] and [Mr B]; and the inconsistencies in the evidence given by the applicant and his sister, [Ms A], outweigh the recent documentary evidence submitted by the applicant in relation to his identity.

4. For the above reasons, the Tribunal is of the view that there is strong and persuasive evidence of the applicant’s Afghan nationality, namely the identity document and the letter of confirmation of Afghan citizenship provided by the applicant to the Tribunal. The Tribunal is satisfied that the documents are genuine and compelling evidence of the applicant’s Afghan nationality.

5. For the reasons set out above, the Tribunal is satisfied the applicant’s identity is as claimed and he is an Afghan national. The Tribunal, therefore, is not satisfied the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

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

7. The Tribunal has no jurisdiction with respect to the other applicants.

   Shahyar Roushan
   Senior Member