1719725 (Refugee)

[2019] AATA 3433

1719725 (Refugee) [2019] AATA 3433 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719725

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Alison Murphy

DATE:28 February 2019

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.

CATCHWORDS
REFUGEE – protection visa – Afghanistan – cancellation of protection visa – delegate not satisfied as to applicant’s identity – inconsistent information about age, marital status and family composition – social media user name – decision set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 437, 438

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 22 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa 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. The applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [name], his wife’s brother [name], his wife’s sister [name] and a family friend, [name].

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

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

   BACKGROUND

6. The applicant is a male who claims to be from Afghanistan. He arrived in Australia by boat [in] October 2010.  He participated in a biodata interview on the same day during which he identified himself as a citizen of Afghanistan of Hazara ethnicity from [location], [name] district, Parvan province in Afghanistan born in [year 1]. He also stated he had [three siblings] and was married with [number] children. At an entry interview on 29 October 2010 and at various times after that, he gave different information about his age, marital status and family composition.

7. The applicant applied for a protection visa and his application was initially refused by a delegate of the Minister. Upon review, an independent reviewer recommended that the applicant be recognised as a refugee and on 18 October 2011 the applicant was granted a protection visa. On 19 October 2015 the applicant applied for Australian citizenship which was later refused.

8. On 19 April 2016 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him there appeared to be grounds for cancelling his protection visa as he was not satisfied as to the applicant’s identity.  The NOICC invited the applicant to comment on the ground and to give reasons why the visa should not be cancelled. 

9. The particulars of the ground for cancellation were set out as follows (in summary).

   Information provided on arrival in Australia: October 2010

10. The NOICC noted that the applicant arrived in Australia [in] October 2010 and identified himself as [name], born in [location], [name] District, Parvan Province Afghanistan in [year 1]. He stated he had registered with the UNHCR in Jakarta in September 2010, however his registration papers had been washed away.  He claimed to have registered with the UNHCR as [name] born in [year 1].

    At that time the applicant provided the following information about his family:

    Grandfather: [name]
    Father: [name]. Killed by the Taliban at age [age]
    Mother: [name]. Passed away
    [sibling 1]: [name] aged [age]. Missing
    [sibling 2]: [name] aged [age]. In Afghanistan with maternal uncle
    [sibling 3]: [name] aged [age 3]. In [Country 1]
    Wife: [name] born [year]. Married in [year][child 1]: [name] born [year]
    [child 2]: [name] born [year]

    [child]: [name] born [year]

    Information provided during entry interview: 29 October 2010

11. The NOICC set out that during an entry interview on [another date in] October 2010, the applicant claimed he did not know his date of birth but that he was [age] years old. He stated he had only one sibling, named [name], aged [age] and missing, and that his mother was killed by Taliban at the age of [age] or [age]. He confirmed that he provided incorrect information on arrival when he claimed he had a wife and children and several siblings.

    Information provided during the RSA interview: 28 January 2011

12. The NOICC set out that during a refugee assessment interview on 28 January 2011 the applicant stated that his date of birth was [date 1, year 2], his parents died when he was very young and his uncle had told him that he was [age] years old.

    Information provided on the protection visa application form: 28 January 2011

13. The NOICC set out that in his application for a protection visa on 28 January 2011, the applicant claimed his date of birth was [date 2, year 2]. In that application he provided the following information regarding his family:

    Mother: [name], [age] years old, date of birth and birthplace unknown, deceased
    Father: [name], [age] years old, date of birth and birthplace unknown, deceased
    [sibling]: [name], [age] years old, born in Parwan Afghanistan, missing

    Information contained on statutory declaration submitted to Department: 4 October 2011

14. The NOICC set out that that the applicant stated in a statutory declaration made 4 October 2011 that he was born in Afghanistan in [year 3].

    Information provided on Australian citizenship application: 19 October 2015

15. The NOICC set out that that the applicant provided the following information in his Australian citizenship application dated 19 October 2015:

    ­Parent details

    Family name: [name]
               Given Name: [name]
               Sex: male
               DOB: [year]
               Place of birth: responded with a semicolon
               Town/city: [location]
               State/province: Parwan
               Country of birth: Afghanistan

    ­Parent details

    Family name: [name]
               Given Name: [name]
               Sex: female
               DOB: [year]
               Place of birth: responded with a semicolon
               Town/city: [location]
               State/province: Parwan
               Country of birth: Afghanistan

    ­He answered no to the questions regarding whether his parents had been known by any other names and if his parents had ever held citizenship of any country.

    ­He did not answer the question concerning whether his parents held permanent residence in any country.

    ­He declared all information supplied to be true.

    Information from social media

16. The NOICC set out that the applicant appeared to have a social media account in the name of [same given and middle name,  different surname].

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

    Response to the NOICC

18. On 5 June 2017 the applicant submitted a large number of documents by way of response to the NOICC, including a statutory declaration, a letter of [official] [Mr A] of the Embassy of the Islamic Republic of Afghanistan in Canberra, evidence of the applicant’s travel to Canberra to obtain that letter, a marriage certificate, photographs, medical evidence in respect of the applicant’s son, baptismal remembrances and fifteen letters of support from members of the Australian community. On 16 June 2017 the applicant’s representative submitted legal submissions as to why the applicant’s visa should not be cancelled.

19. In these statements and submissions the applicant acknowledged providing incorrect information about his age and family details during his first interview after his arrival in Australia but argued he had corrected that information shortly afterwards and the correct information had been accepted by the Department. He maintained that the identity in which he had been granted the visa was his true identity.

20. On 22 August 2017, the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the NOICC and stated he was satisfied there were grounds for cancellation under s.116(1AA). In particular he noted the applicant’s admission he had intentionally provided the department with incorrect information relating to his family members and noted he had been unable to provide reliable documentation about his identity and family members. He considered the applicant’s social media account could reflect an alias or the true name of the applicant and these matters caused him to consider the applicant’s identity is not clear and the ground for cancellation was met.

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

22. On 22 August 2017 the applicant was notified that his protection visa was cancelled.

    LEGISLATIVE FRAMEWORK

23. The applicant was granted a class XA subclass 866 protection visa on 18 October 2011. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

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

24. 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.

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

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

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

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

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

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

27. An application for review of the delegate’s decision was lodged with this Tribunal on 28 August 2017 by the applicant’s migration agent.

28. Under s.418(3) of the Act, the Secretary is required to provide to the Tribunal each document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

29. The Tribunal was provided with the departmental file relating to the cancellation which included the NOICC, submissions and documents provided to the delegate in response to the NOICC and the decision of the delegate. Files relating to the applicant’s protection visa application were also provided to the Tribunal.

30. Section 438 applies to decisions under Part 7 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal may have regard to that document or information and may disclose any matter in the document or information to the applicant if it considers it appropriate to do so.  However the operation of s.438 is dependent upon the existence of a valid certificate by the Minister or his delegate.

31. In this case the cancellation file included documents subject to a non-disclosure certificate pursuant to s.438(1)(a) of the Act dated 1 September 2017. That certificate states the disclosure of this information would be contrary to the public interest because the document or information sets out a deliberative process (internal document). The document covered by the non-disclosure certificate is an Identity Assessment conducted by the department.

32. At the hearing on 20 February 2019, the applicant was provided with a copy of the certificate and invited to make comments on its validity. The applicant’s representative made oral submissions to the effect that it appeared the certificate was not valid on its face because the deliberative process referred to in s.437(b) relates to the deliberations of cabinet or a cabinet committee which are not relevant to this case.

33. It is certainly the case that the contents of the Identity Assessment subject to the non-disclosure certificate do not appear to relate to the deliberations of cabinet or a cabinet committee. However s.438(1)(a) applies to a document in circumstances where the Minister has certified that the disclosure of the document or information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding other than a reason set out in s.437(a) or s.437(b).  

34. The issue in this case then is whether a deliberative process (internal documents) could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding. The test is one of public interest immunity which, generally speaking, operates to restrict the production or dissemination of otherwise relevant evidence in legal proceedings where its disclosure would be against the public interest.

35. Determining whether public interest immunity applies is a balancing exercise between the principles that:

    ·no harm should be done to the nation or to the public service by the disclosure of the material; and

    ·the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done[4].

    [4] Sankey v Whitlam (1978) 142 CLR 1 (Gibbs A.C.J., Stephen, Mason, Jacobs and Aickin JJ, 9 November 1978) at 39.

36. Where these two principles conflict, it is necessary to consider which of the two competing principles should prevail.[5]

    [5] Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.

37. There are no exhaustive definitions or lists in considering harm which may be done to the nation or the public service or whether the administration of justice would be frustrated by certain documents or information being withheld.

38. Relevantly to this case, the Evidence Act 1995 (Cth) provides that a document relates to matters of state if adducing it in evidence would, among other things:

    ·prejudice the prevention, investigation or prosecution of an offence;

    ·prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law;

    ·disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State;

    ·prejudice the proper functioning of the government of the Commonwealth or a State[6].

    [6] Evidence Act 1995 (Cth), s.130(4).

39. In MZAFZ v MIBP the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[7]

    [7] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

40. I consider the same analysis must be applied to the certificate in this case. The reason ‘deliberative process (internal documents)’ could form part of the basis for a claim, but not the basis of the claim itself. It does not identify the harm that could be done to an agency by their disclosure.  The certificate does not specify a public interest reason with sufficient detail to identify the claimed harm to the nation or public service that would be lead to by its release and for these reasons I conclude it is invalid.

41. Even where a certificate is invalid, the Tribunal remains subject to obligations arising under the Privacy Act 1988 (Cth) which regulate the way the Tribunal handles and discloses personal information. In this case the Identity Assessment contains ‘sensitive information’ and ‘personal information’ (as those terms are defined in the Privacy Act) about a number of third parties. Their relationship to the applicant (and relevance to these proceedings) is merely speculative. The Tribunal did not collect that information and I am not satisfied that the individuals concerned have consented to its disclosure. Nor am I satisfied that disclosure of the information is required or authorised by any secondary purpose set out in the Australian Privacy Principles contained in the Privacy Act. For these reasons I have not provided the Identity Assessment to the applicant, nor provided him with any information about the other persons named in that document. To the extent that the information contained in that document concerns the applicant personally, and is adverse to his case, I discussed it with him at the hearing.

    CONSIDERATION – DOES THE GROUND FOR CANCELLATION EXIST?

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

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

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

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

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

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

5. In this case the delegate considered the applicant has given various statements about his date of birth and family composition which are inconsistent with each other, as a result of which he was unable to be satisfied as to the applicant’s identity. The delegate considered the applicant had not provided any reliable identity documents and stated he did not accept the letter from an official in the Embassy to be definitive proof the applicant is a citizen of Afghanistan. The delegate did not accept the applicant’s lack of identity documents was beyond the applicant’s control, considering the applicant had transited through [three countries] on the way to Australia for which he would have required identity documentation. The delegate considered the applicant’s social media account may indicate the use of a very common surname [name], which includes persons from [Country 2].

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

   The applicant’s evidence as to his identity

7. It is not in dispute that the applicant is of Hazara ethnicity and he has participated in this process using the services of a Hazaragi interpreter. At issue in this case is whether the applicant’s claimed identity as a (now) [age] year old Afghan national from Parwan province is his correct identity. The applicant’s identity is in doubt because at various times he has given different information about his age, his family composition and details of his family members.

8. Immediately upon arrival to Australia [in] October 2010, the applicant stated that he was born in [year 1] and gave details of his family composition including his parents, [three siblings] and his wife and three children. He stated his father was killed by the Taliban at age [age] and his mother had passed away.

9. However at his entry interview just over two weeks later, he stated he did not know his date of birth but believed he was [age] years old. He stated he had only one sibling,  aged 15 who was missing in Afghanistan, and confirmed the contrary information he had given on [in] October 2010 was incorrect. He stated his mother was killed by the Taliban at the age of [age] or [age]. He said he had previously given incorrect information about his age and family composition because he was advised to do so by the people smugglers.

10. He was next interviewed on 28 January 2011, during which he stated his uncle told him he was [age] years old and his date of birth was [date 1, year 2]. He stated his parents had died when he was very young. In his protection visa application lodged on the same date, he stated his date of birth was [date 2, year 2] and gave details of his parents and one brother.  He stated he didn’t know his parents’ dates of birth, but his mother had died at age [age] and his father had died at age [age].

11. In a statutory declaration dated 4 October 2011 he stated he was born in Afghanistan in [year 3]. In his citizenship application on 19 October 2015, he stated his father was born in [year] and his mother in [year].

12. In a statutory declaration dated 5 June 2017 and lodged in response to the NOICC, the applicant stated he was born at home and due to the remoteness of his birthplace, no official records were kept of his birth or identity. He maintained his protection claims and identity were correct and confirmed that he provided incorrect information when he said he was born in [year 1], had three siblings, a wife and three children born between [year] and [year]. He stated that he gave incorrect information on the advice of others and attributes his decision to his young age and notes that he corrected the information soon after.

13. The applicant states he does not recall saying that he was born in [month 1, year 2] at the RSA interview and states the [date 2, year 2] was assigned either by a migration agent or the Department. He states that the Department asked him to sign the statutory declaration that he was born in [year 3] because the year [2] did not correlate with him turning [age] in 2011. He says it’s true that he doesn’t know where his parents were born and that the ages provided to the Department were always estimates. His Facebook name is his nickname [another surname] based on the ‘[name] Valley’ where he grew up. He has obtained a letter from the Afghan Embassy in Canberra for proof of identity.

14. At hearing the applicant maintained that the identity in which he was granted the visa was his true identity, that he had only one sibling and had never married or had children before his arrival in Australia. He stated he gave incorrect information about his age and family composition immediately upon his arrival because he was told by the people smugglers that he would be more likely to be accepted into Australia if he presented himself as someone who was married with a big family who spoke English and smoked cigarettes and drank alcohol. He said he presented himself as older because it wasn’t possible for someone his real age to be married with children. He stated that in any case he did not know his real age or date of birth and had only ever estimated his birth date and those of his parents.

    Consideration of the applicant’s identity

15. The delegate was concerned that prior to being granted the visa, the applicant did not produce any identity documentation in support of his claimed Afghan nationality. The applicant has consistently stated he was never issued with a birth certificate, tazkera or genuine Afghan passport prior to arriving in Australia, rather he claims to have departed Afghanistan using a fake passport and taskera supplied by the people smuggler. He claims that no official records were kept of his birth or identity due to the remoteness of his birthplace and this was also the case for his family members.  He states that because there are no records of births, people do not know their age and they guess their dates of birth all the time.

16. DFAT confirms that births are not always registered in Afghanistan, that birth certificates were not historically issued and still remain far from common. DFAT states the high number of home births makes the process of registering births challenging, the reporting of birth dates is unreliable and reported dates are likely to be approximate[8]. I consider the DFAT report gives substantial support to the applicant’s claims.

    [8] DFAT 2018 DFAT Country Information Report Afghanistan 18 September 2017 at 5.25

17. 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[9]. It is widely accepted that Afghan citizens displaced by the conflict in that country experience particular difficulties obtaining taskeras. This is because taskera access is based on recognition by family members or community elders which poses significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity.  Further, children and young people are at particular risk of lacking civil and identification documents, particularly when displaced[10].

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

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

18. The applicant claims he was not issued a taskera while living in Afghanistan. I consider that to be consistent with the above information, noting he was displaced from Parwan province to Mazar-e-Sharif as a young child following the death of his parents and displaced children are reported to be at particular risk of lacking identification documents.

19. The applicant states that after receiving the NOICC in May 2017, he went to the Afghan Embassy in Canberra to get proof of his identity. He spoke with a staff member at the Embassy and was interviewed and asked questions about his place and date of birth. After a five hour process, he was told that based on the way he spoke and his dialect, they accepted he was an Afghan national and he was issued with a letter stating he is an Afghan national.  A letter dated 30 May 2017 from [Mr A], [official] was submitted to the department. It states that the Embassy of the Islamic Republic of Afghanistan confirms the applicant is a citizen of Afghanistan, born on [date 2, year 3].

20. Country information before the Tribunal indicates that the Embassy of Islamic Republic of Afghanistan in Canberra offers assistance to Afghan nationals in Australia who seek verification of their Afghan identity. [11]

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

21. In light of the consistent evidence of the applicant and the Afghan Embassy I accept that the applicant attended the Afghan Embassy in May 2017 and underwent a process for obtaining an Afghan identity document. While it is apparent from the applicant’s own evidence that the Embassy’s letter is based on the information reported by the applicant (rather than any process of independent verification with the Afghan authorities), I accept that the document produced to the Tribunal is a genuine document issued by the Afghan Embassy and reflects their view of the applicant’s Afghan citizenship.

22. I accept the applicant’s evidence that he has never known the exact date of birth of himself or his family members and has only ever provided the department with estimates of their ages. I consider that the inconsistencies in his statements as to whether he was born in [year 3] or [year 2] to be readily understood given DFAT’s confirmation that births are not always registered in Afghanistan, birth certificates were not historically issued and remain uncommon and the reporting of birth dates is unreliable with any reported dates are likely to be approximate[12]. Similarly I accept the information given by the applicant about his parents’ dates of birth and age at death was never more than an estimate of the timing of events that occurred many years ago.  None of these matters cause me to have concerns about his identity.

    [12] DFAT 2018 DFAT Country Information Report Afghanistan 18 September 2017 at 5.25

23. I am more concerned about the applicant’s initial statements to immigration officials upon arrival that he was born in [Year 1], that he was married with children and that he had three siblings in Afghanistan. Since that first interview, he has maintained that he was born in about [year 3] or [year 2] (date unknown), he has never married or had children and he has only one sibling. The applicant’s explanation for this is that he was told by the people smugglers that he would be more likely to be accepted into Australia if he presented himself as someone who was married with a big family who spoke English and smoked and drank alcohol. I have difficulty understanding why such advice would be given or accepted, however I am conscious that the applicant came alone to Australia as a young man, in difficult circumstances.

24. In any case, a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA, the Full Federal Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[13]

    [13] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

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

26. For the following reasons I am unable to reach a real state of satisfaction that the applicant’s identity is other than as he claims:

    ·I consider there to be strong evidence of the applicant’s Afghan nationality. He has consistently stated he was born in [location], [name] district, Parvan province and was displaced to Mazar-e-Sharif as a young child after the death of his parents.  He speaks Hazaragi and has participated in the review process using a Hazaragi interpreter. He has been assessed by a delegate of the Minister and an independent merits review officer as being a Hazara from Afghanistan and there is no evidence to the contrary;

    ·While I have found the applicant gave incorrect information about his date of birth and family composition immediately upon his arrival to Australia in 2010, I am mindful he corrected that information at the next opportunity, less than three weeks later. Since that time he has always stated that he does not know his exact age or date of birth, but believes he was about [age] or [age] during the visa application process. As is common for people in that position, he was assigned a number of nominal dates of birth for the purpose of the visa assessment and grant. Some of these dates of birth were provided by his representatives and others by departmental officials. I am satisfied those dates were never anything other than an estimate;

    ·The department accepted his claimed identity and he was granted the protection visa under that identity on 18 October 2011. He has been issued multiple Australian identity documents under his claimed identity and since being granted the visa he has married an Australian citizen with whom he has three Australian citizen children. Up until 2016 when the Department commenced the visa cancellation process, there was no indication that the Department had any ongoing concerns about his identity;

    ·There has been no new information since the grant of the visa that might cast doubt on his claimed identity, other than his further estimate of his parents’ dates of birth and death in his citizenship application in 2015. The applicant’s wife [name] gave evidence that she completed his citizenship application and merely estimated his parents’ dates of birth and death by working backwards from information given to her by the applicant. She gave evidence that there were no records of these dates but they had to complete all parts of the form before they could move onto the next screen. I accept her evidence in that regard, considering it to be entirely consistent with the online citizenship application lodged and with the country information about the lack of reliable identity documents in Afghanistan. For the reasons set out above, I consider the discrepancies about the dates of birth and death of the applicant’s parents to be readily explained;

    ·The applicant has provided a reasonable explanation for operating a facebook account under the name of [same given and middle name, different surname].  The applicant’s home village of [name] is located in the [name] Valley in Afghanistan and [that surname] means ‘of [that valley]’. Facebook does not require its users to use their legal names and many people choose to open accounts using other signifiers;

    ·There is no evidence of any kind that would suggest the applicant is a [Country 2] national or that he originates from any country other than Afghanistan. The applicant travelled to [Country 2] for one month in 2014 to visit a friend from his village in Afghanistan. He entered [Country 2] using his Australian Titre de Voyage which identifies him as an Afghan national and which contains a visa to enter [Country 2]. I consider the fact he obtained a visa to travel to [Country 2] to be persuasive evidence that he is not a national of that country;

    ·The applicant has been assessed by the [official] of the Afghan Embassy to be an Afghan national born [date 2, year 3]. I am mindful that document fraud is a major issue in Afghanistan, because the process for obtaining some documents is decentralised to the provincial level and the documentation itself does not generally contain robust security features. In particular DFAT reports that genuine documents can be issued on the basis of false information and there is a risk that genuine, but fraudulently obtained, taskiras can be used to obtain Afghan passports[14]. In such circumstances, I consider the assessment by the [official] of the Afghan Embassy is not in itself conclusive. However as I have noted above, this is not a case in which there is any contrary evidence as to the applicant’s nationality. There is no better evidence before the Tribunal as to the applicant’s identity as would suggest the [official’s] assessment is not substantially correct;

    ·I remain perplexed by the applicant’s initial evidence he was married with children and had three siblings, compared to his later evidence that he was unmarried and has only one sibling. However the applicant has been married for some years into a large and close family of Australian citizens, many of whom attended the Tribunal hearing. His wife, [her relatives] and long term family friend gave evidence that they had no doubts about his age or identity. They do not believe he is significantly older than he claims or that he has other family members remaining in Afghanistan. Each of them gave evidence as to his love and care for his family, his support for his wife and her family in difficult times and his close, hands on relationship with his three young children including one who suffers from severe autism. Many other documents and letters of support from friends, family members, schools and medical professionals attest to these matters. The applicant’s evidence is that he would never have abandoned a wife and children in Afghanistan had they existed, rather he would have sought to bring them to Australia after being granted his protection visa as would have been open to him at the time.  His obvious care for and commitment to his young family in Australia causes me to believe this.

    [14] DFAT 2018 DFAT Country Information Report Afghanistan 18 September 2017

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

   DECISION

2. 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