1711569 (Migration)

[2020] AATA 4423

1711569 (Migration) [2020] AATA 4423 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1711569

MEMBER:Alison Murphy

DATE:27 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 27 March 2020 at 9:04am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – nationality and country of citizenship – identity – genuinely issued but still bogus Pakistani passport – validity of Pakistan citizenship and residence – decision under review set aside        

LEGISLATION
Migration Act 1958, ss 5(1), 101, 107, 107A, 109
Migration Regulations 1994

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Afghanistan, arrived in Australia by boat [in] December 2009. On 21 July 2010 he was granted a subclass 866 protection visa and on 15 December 2015 he was granted a subclass 155 resident return visa.

3. On 29 May 2017 the delegate cancelled the resident return visa on the basis that she considered the applicant had given incorrect information in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B] who appeared in person at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   THE REVIEW PROCEEDING

   Non-disclosure certificate

7. The Tribunal has before it the applicant’s departmental file relating to the cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.376 of the Act.

8. On 27 June 2017 a delegate of the Minister issued a certificate under s.375A of the Act. On 20 December 2019 the delegate revoked that certificate and issued a new certificate dated 20 December 2019.

9. The certificate dated 20 December 2019 states that disclosure of folios 6 – 9 and 109 – 115 of the Act would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods. The certificate also states that the restricted information was provided ‘in confidence’ and the provider of the information has not consented to the disclosure of the information.

10. Where a certificate is issued under s.375A, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person under s.376.

11. I am satisfied the certificate dated 20 December 2019 is valid on its face. The documents covered by the certificates evidence communications between the [Country 1] authorities and the Department and internal departmental documents relating to a Pakistani passport linked to the applicant in a visa application, the substance of which is disclosed in the s.107 notice and the delegate’s decision.

12. The applicant does not dispute that he has in the past been issued a Pakistani passport, although he states this occurred with the assistance of a people smuggler and that he is not lawfully entitled to that passport.

13. Given the substance of the information covered by the certificate has been disclosed to the applicant and the existence of the passport is not disputed by the applicant, the Tribunal has not provided the applicant with copies of the certificated material.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

15. 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.

    The s.107 notice

16. In this case the s.107 notice was sent to the applicant on 3 February 2017. It alleges that the applicant gave incorrect information in his protection visa application in the following respects:

    ·As to his name, given as [the applicant];

    ·As to whether he was known by any other name than [the applicant];

    ·As to his date and place of birth, given as [DOB1] at [Town 1], [Jaghori district];

    ·As to his citizenship, given as Afghanistan;

    ·As to whether he held any other citizenship, to which he stated no.

17. The s.107 notice sets out that before being granted a protection visa, he was interviewed by an officer of the Department on 18 January 2010 for the purposes of assessing his protection visa application. The Department had information indicating he had used a Pakistani passport to apply for a visa to [Country 1] which was refused on 16 October 2008. The details of the passport indicated that the applicant’s name was [Alias A], born [DOB2] in Quetta, Pakistan. At interview the applicant stated he had never been issued a genuine passport and that he was provided with a fraudulent Pakistani passport by a smuggler to facilitate his trip overseas.

18. The s.107 notice sets out that he was granted a protection visa on 21 July 2010 on the basis of his claims that he was from Afghanistan, did not have citizenship of any country other than Afghanistan and his statement at interview that he had never been issued a genuine passport and was provided with a fraudulent passport by a smuggler. These claims were fundamental to the determination that he was a person to whom Australia owed protection.

19. The s.107 notice sets out that the Department later received evidence that the Pakistani passport the applicant used to apply for a visa to [Country 1] is a genuine document. The notice sets out that this indicates the applicant is a citizen of Pakistan and enjoys the rights and protection of a Pakistani citizen. The notice suggests that the applicant’s claim he was a citizen of Afghanistan only was contrived in order to secure permanent resident status and it appeared the applicant had given incorrect information in support of his protection visa application.

20. The s.107 notice sets out that it was considered the applicant had provided incorrect answers in his protection visa application to questions 1 (his name), 3 (whether he is known by any other names), 6 (his date of birth), 8 (his place of birth), 14 (his citizenship at birth), 15 (his current citizenship) and 16 (whether he holds any other citizenship).

21. The s.107 notice sets out that this information appeared to be incorrect because his identity is [Alias A] born [DOB2] in Quetta, Pakistan, Pakistani citizen. The notice also states that s.107A provided that if the applicant had not complied with s.101 in relation to his protection visa application, then his resident return visa may be cancelled. The notice invites the applicant to comment on whether there had been non-compliance in the manner identified in the s.107 notice and if so, whether his visa should be cancelled.

22. No issues as to the validity of the notice have been raised with the Tribunal. 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.

    The applicant’s response to the s.107 notice

23. The applicant responded to the s.107 notice on 27 February 2017. In his response he maintains that he is a citizen of Afghanistan and not Pakistan. He states the people smuggler may have obtained a genuinely issued passport from the Pakistani authorities after the applicant provided a passport photograph. He maintains his correct identity is [the applicant] born [DOB1] in [Town 1], Jaghori district, Ghazni province, Afghanistan and that he has no right to enter and reside in any other country.

24. The applicant’s response also cited country information indicating that corruption and document fraud are rife in Pakistan and that false National Identity Cards can be easily obtained from corrupt NADRA officials in order to obtain genuine Pakistani passports:

    In an article published by IFEX, a global network of NGOs . . . Nighat Dad, a lawyer based in Pakistan with experience in criminal, civil and corporate law . . . indicates that despite the security features of CNICs, ‘identity fraud is still a massive issue’ in Pakistan . . .[t]he process can involve finding a Pakistani family willing to sell their own identity for a hefty amount in exchange for registering aliens as family members and providing the necessary documentation for registering [them] as siblings. Alternatively it can also involve using already available identity cards from banks, universities and government offices where people provide copies of their CNICs as part of documentation . . . The last step in the fraud is to educate the applicant about his ‘parents’ and ‘siblings’ so he can identify them when interviewed by NADRA officials.

    To do that . . .  there are certain people who will sell the entire files of information regarding families at a reasonable price. Once you have your ID card, you can apply for a passport to travel onwards. . .

    On 22 September 2012, the Express Tribune reported that NADRA had initiated a national crackdown against holders of fake CNICs . . .The initiative came after the FIA arrested 24 NADRA and Immigration and Passports officials in July 2012 for issuing fake CNICa in Lahore. Sources report that on 19 February 2013, the FIA arrested four NADRA employees accused of providing fake CNICs to Afghan refugees . . . The arrested NADRA officials had been providing those cards since 2009 for a ‘huge amount’ of money . . . Dawn further reports that in connection with the dismissal of 74 employees, an investigation identified a ‘group of agents’ who were bribing NADRA employees to process fake ID cards. On 6 May 2014, sources reported that the NADRA dismissed 20 employees after it found that they were engaged in illegal processing of CNICs.[1]

    [1]Canada: Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents, including non-identity documents such as academic qualification documents, travel documents, First Information Requests (FIRs), land ownership titles and newspaper articles, and identity documents including identity cards and birth certificates; methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents(2012-December 2014), 14 January 2015, PAK105021.E, available at: >

    The applicant provided the Department with his taskera attested by Afghanistan’s Ministry for Interior Affairs Department as well as copies of taskeras and passports for his wife and children and advised the originals were being forwarded to Australia and he would make them available for examination.

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

25. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b).

26. In assessing whether there has been non-compliance in the way set out in the s.107 notice, it is relevant to note that the applicant has at all times since his arrival in Australia stated he left Pakistan on a false Pakistani passport arranged by a people smuggler.

27. At his entry interview conducted [at location] [in] December 2009, the applicant stated that he left Pakistan illegally by bypassing immigration at Karachi airport with the assistance of a people smuggler he met in Quetta who had a passport made for him and made arrangements for each step of his journey to Australia in exchange for $US[amount]. In response to a question as to whether that passport was genuine, the applicant is recorded as stating he didn’t know and that it had his photo and a couple of stamps and visas in it already. He is recorded as stating that he thinks it belonged to someone else and was given to him with a photo change.

28. In his protection visa application, the applicant stated he was born in [Town 1], [Jaghori district], passport number unknown, which was with the smuggler. He stated that he left Afghanistan illegally at the end of 2008, that he didn’t travel through any checkpoint between Afghanistan and Pakistan and that he had to pay a smuggler for a false passport. In his RSA interview, he claimed he left Afghanistan at the end of 2008, crossing the border at Spin Boldak and entering Pakistan where he resided in Quetta before arriving in Australia in December 2009.

29. It is apparent from both the RSA decision dated 18 February 2010 and the IMR decision dated 18 June 2010 that the Department was aware that a Pakistani passport apparently issued to the applicant had been used to make an application for a visa to [Country 1]. It is also clear that this was known to the department before the applicant was granted a protection visa. A copy of the biodata pages of that passport are contained on the protection visa application file and the circumstances in which that passport was issued and the [Country 1] visa application made were discussed with the applicant at both the RSA interview and the IMR interview.

30. At those interviews and at the Tribunal hearing, the applicant stated he had first tried to depart Pakistan soon after his arrival in that country, paying a people smuggler to arrange his passage to Europe. After making payment, he was unable to make further contact with the people smuggler, eventually giving up and paying another people smuggler to arrange his travel to Australia some time later. At the Tribunal hearing the applicant also stated he did not know whether he had been scammed by the people smuggler or whether the people smuggler had ben caught or otherwise disappeared. He stated he was not aware that the people smuggler had been successful in obtaining a passport for him and he has never been in possession of that passport.

31. The RSA delegate expressed doubts about the applicant’s credibility, noting inconsistencies in the timing of his claims to have departed Afghanistan for Pakistan before travelling on to Australia compared to the date of issue of the Pakistani passport. She did not accept him to be an Afghan national, finding that the Pakistani passport presented to the [Country 1] authorities was genuine and he was a national of that country and not Afghanistan.

32. The IMR assessor reached a different view on the applicant’s credibility. She records that she put to the applicant at interview that he was known to the [Country 1] authorities as a Pakistani national who had applied for a visa to [Country 1] using a Pakistani passport in 2008. She records that the applicant agreed that it was his photo on the Pakistani passport but said the passport was falsely obtained by a smuggler in Pakistan on his first bid to leave that country and he had never used that passport.

33. The IMR assessor records that given the concerns expressed by the RSA delegate about the applicant’s credibility, she conducted a detailed hearing with the applicant. She recorded that he was able to answer all her questions and expand on any point in a detailed manner and she found him to be a thoughtful and intelligent man and concluded he was a witness of truth. Her decision record indicates she talked to him at length about his life and experiences in Afghanistan, including the geography of the region. She noted he struggled with exact dates but was consistent with the sequences of events and considered his difficulty with dates was likely to be a product of an isolated life in a small village of Afghanistan where dates and calendars did not carry the significance they do here. The IMR assessor accepted that the applicant was a national of Afghanistan and no other country and that the Pakistani passport carrying his photo and submitted in conjunction with the [Country 1] visa application was false.

34. The new information that has led to the cancellation of the applicant’s visa relates to information from the Pakistani authorities received in 2015 to the effect that the Pakistani passport was verified as genuine as to date of issue ([specified dates]), the name of the passport holder [Alias A] and his father [named], the CNIC number and date of birth [DOB2]. In 2017 departmental officers visited the passport office in Islamabad and confirmed the passport photo in their system was the same as that in the passport.

35. In my view, nothing in the new information is inconsistent with the applicant’s earlier evidence as to the circumstances in which he acquired the Pakistani passport except the date of issue makes clear that the applicant was in Pakistan earlier than he originally stated. The fact that departmental officers were able to confirm the Islamabad passport authority held the applicant’s photo in their database indicates the passport was not photo substituted after it was issued in January 2007. Given the applicant’s evidence he provided his own photo to a people smuggler in Pakistan for this purpose, I am satisfied he was in Pakistan trying to arrange passage to Europe in January 2007.

36. This is earlier than the late 2008 timeframe for his arrival in Pakistan originally suggested by the applicant. He later told the IMR that he didn’t know when he arrived but he accepted it must have been earlier than that. At hearing he gave evidence that he didn’t know the date or even the year he arrived in Quetta but he thought he may have been in Quetta for two or two and a half years. I consider this discrepancy can be explained by the applicant’s clear difficulty in attaching dates to a series of traumatic events.

37. I accept the Pakistani passport referred to in the [Country 1] information has been verified as genuine by the Pakistani authorities and contains a photo of the applicant. However it will still be a ‘bogus document’ as defined in the Act if it was obtained because of a false or misleading statement or if it purports to have been, but was not, issued to the applicant. The applicant argues that it was obtained by a people smuggler under false pretences and that he is not eligible to be issued a Pakistani passport because he is not a Pakistani national. For the following reasons I accept that to be true.

38. Firstly, the applicant has provided a very significant amount of identity documentation indicating he and his family are Afghan citizens, including Afghan taskeras and passports for himself and his family, an Afghan marriage certificate and his father’s original taskera. These documents were first produced to the Department in the context of the applicant’s partner visa application in 2015, prior to the applicant being notified of the department’s intention to consider cancelling his visa.

1. 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.[2] The absence of security features on taskeras means it is not possible to reach a complete state of satisfaction about the genuineness of the documents, however the documents that have been provided to the Department are consistent with the details provided by the applicant in his protection visa application and other documents provided in support of his partner visa application, including his father’s original taskera and the education records of his children.

   [2]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

2. The applicant gave evidence that he was first issued a taskera in 2003 in Ghazni province, which was provided to the Department who rejected it because it didn’t contain an attestation they said should be on it. On his return trip to Pakistan, he went to the Afghan Embassy in Quetta with his own taskera and his father’s taskera. The Embassy sent his information off to the Ministry of the Interior in Kabul who issued the taskera. He then took his new taskera and his father’s taskera to the Afghan Embassy in Canberra, who issued a letter confirming his identity and Afghan citizenship [in] March 2017. At hearing the applicant showed me his father’s original family identity booklet. I accept the applicant’s evidence as to the manner in which he obtained the documents he has provided to the Department.

3. Secondly, the applicant has given consistent detailed information about his life in Afghanistan over a number of interviews conducted over more than a decade. As noted by the IMR, he has spoken in detail about the area of Afghanistan    in which he lived and his experiences in that country. While there have been discrepancies in the dates he has provided, the sequencing has been consistent. I agree with the assessment of the IMR that the applicant is a generally credible witness.

4. Thirdly, a significant number of Australian and overseas witnesses have given sworn evidence to the Department and the Tribunal as to the applicant’s stated identity and status as an Afghan national:

   ·[Witness A] and [Witness B] both attended the Tribunal hearing and gave sworn evidence as to their knowledge of the applicant. [Witness B] gave evidence he had attended school with the applicant in [Town 1], Jaghori, Ghazni, Afghanistan. He later met the applicant through the Afghan mosque community in Australia and was aware his family are now in Pakistan. [Witness A] gave evidence that he was from a different village in the same area of Jaghori district as the applicant. He told the Tribunal he was much older than the applicant and recalled being told at the time of the applicant’s birth that the [applicant’s] family had given birth to a son. He was able to name the applicant’s father, his father’s brother and his father’s brother’s children. [Witness A] migrated to Australia in 1999 and also spoke to the applicant by telephone in 2008 when the applicant was in Pakistan;

   ·Other Australian citizens and foreign nationals have given sworn documentary evidence to the Tribunal. In a statutory declaration made 17 March 2020, [Mr A] states he is an Afghan national (and now Australian citizen) from [Town 1], Ghazni and a childhood friend of the applicant’s father, [named]. He states he has known the applicant since he was born and the applicant grew up before his eyes in [Town 1]. The applicant visits him annually in Sydney and they are family friends as well as distant relatives;

   ·[Mr B] states in a statutory declaration made 17 March 2020 that he is an Afghan national from the same Shia community and tribe as the applicant, that he was born in [Town 1] and grew up with the applicant’s father. He states he watched the applicant grow up in [Town 1] where he worked as a teacher when he was an adult. Each of those people attest the applicant is an Afghan national;

   ·[Mr C] affirms in an affidavit that he was born in [Town 1], Ghazni, that the applicant’s father is also from the same town as his family and that the two families have been friends since he was young. He states he knows the applicant to be a genuine Afghan national who was born in Afghanistan and did not qualify to become a Pakistani citizen in the same way the rest of them were not able to. He states the applicant visits him in Sydney as they are family friends and also spent time together in detention in Australia;

   ·The applicant’s father and wife in Quetta, Pakistan have also provided the Tribunal with sworn statements to the effect that the family are Afghan nationals from [Town 1] who left Afghanistan for Pakistan in far of the Taliban. They state they are living in Pakistan as illegal immigrants;

   ·Similar statutory declarations were provided by members of the Australian Afghan community in the context of his partner visa application.

5. Fourthly, there is no other evidence that would suggest the applicant is a Pakistani national or has another identity. The departmental file records that upon his return to Australia from Pakistan in October 2016, the applicant’s bag was searched for evidence of another identity and none was located. It records the applicant was travelling on an Australian travel document. Copies of the relevant pages of the Australian travel document have been provided to the Tribunal and show the applicant obtained a visa (and visa extensions) to enter Pakistan on each of his returns in 2012 and 2016. It is notable also that the passport holder’s details of father on the Pakistani passport used for the [Country 1] visa application are not the same as those of the applicant’s father.

6. Fifthly, available country information does not indicate that Afghans arriving in Pakistan in the 1990s or 2000s are entitled to Pakistan citizenship. In a thematic report about Hazaras in Afghanistan and Pakistan published in 2014, 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.[3]

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

7. 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.[4] As the applicant did not arrive in Pakistan until sometime around 2006 or 2007, I do not consider he would have been able to obtain citizenship by way of the Pakistani government’s recognition of Hazaras as ‘local’ in 1962.

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

8. 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.

9. All the evidence before me indicates his wife is an Afghan national, including her identity documents submitted in support of the partner visa application. Even if she were a Pakistani national, Pakistan’s Citizenship Act 1951 does not provide citizenship for men married to Pakistani women.[5] Reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[6]

   [5] ‘Citizenship Act 1951’, Government of Pakistan, CIS38A80123108

   [6] 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

10. 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 arrived in Pakistan after 1 January 1952, I am satisfied he is not entitled to citizenship under this section of the Citizenship Act 1951.

11. 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.[7]

    [7] Gilani, U, ‘Afghan ‘Refugees’, The International News, 27 October 2016, available at EUDO Citizenship Laboratory Report on Citizenship Law: Pakistan December 2016 available at

12. 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.[8]

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

13. 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.[9]

    [9] 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

14. 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.[10]

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

15. In view of the country information cited above, I consider it unlikely the applicant could have become eligible for Pakistani citizenship through any lawful means.

16. Finally, I consider it plausible the applicant was able to obtain a genuinely issued Pakistani passport in the manner he claims. 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.[11] 

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

17. In making this assessment I note the country information referred to in paragraph 23 above as well as numerous other reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani national identity cards required to access government and other services.[12] 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.[13] Pakistani authorities have put in place measures to combat the fraudulent issue of documents and can cancel or block CNICs suspected to be fraudulent. [14] 

    [12]

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

    [14] Ibid, p.42

18. 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 assistant 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.[15] 

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

19. Taken cumulatively, the above matters cause me to find the applicant is an Afghan national who obtained a genuinely issued but still bogus Pakistani passport in the manner he has described. I do not accept the identity details shown on that passport constitute the applicant’s true identity, nor do I accept he has ever been known by that identity. Rather I accept his true identity is that given in his protection visa application and attested to by the witnesses and identity documents described above.

20. Therefore I find that the applicant did not provide incorrect information in his protection visa application in response to questions 1 (his name), 3 (whether he is known by any other names), 6 (his date of birth), 8 (his place of birth), 14 (his citizenship at birth), 15 (his current citizenship) and 16 (whether he holds any other citizenship). It follows that the ground for cancellation is not made out.

21. Conclusion on non-compliance

22. For these 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

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) 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.

    
    

DFAT 2010 Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta 30 July CX246851; ‘Ethnic bias seen in blocked CNICs’, The Express Tribune, 27 March 2017, CXC9040669341; ‘100,000 Pakistanis lose nationality for being suspect aliens’, Dawn, 29 May 2015, CXBD6A0DE7355;
‘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