1723716 (Migration)

[2019] AATA 6763

1723716 (Migration) [2019] AATA 6763 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723716

MEMBER:Antoinette Younes

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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 05 December 2019 at 3:39pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the visa holder’s identity – subsequent document identity verification – applicant volunteered information on discrepancies – consistent explanation of incorrect dates – cancellation did not relate to incorrect information – power to cancel the visa does not arise – Tribunal consideration of grounds other than relied on by the delegate – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994

CASES

Krummrey v MIAC (2005) 147 FCR 557
MIMIA v Ahmed (2005) 143 FCR 314
SZBEL v MIMIA (2006) 228 CLR 152            

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 dated 26 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass (155) (Five Year Resident Return) 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 the delegate was not satisfied of 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 28 August 2019 and 11 September 2019 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Hazaragi and English languages.

4. The applicant was represented in relation to the review by her 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.

   PROCEDURAL MATTERS

   Sections 375A Certificate

6. In the course of the hearing, the Tribunal discussed with the applicant that the Departmental file contains information referring to investigations undertaken by the Department. Those documents are the subject of a s.375A certificate, dated 10 October 2017.

7. Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purposes of conducting the review: s.375A(2)(b) of the Act.

8. The Tribunal advised the applicant that it considered the certificate to be valid. The Tribunal explained its reasons stating that the documents, amongst other things, are essentially internal working documents containing information that would reveal confidential Departmental investigative methods used to detect breaches of the law, as well as allowing the applicant to view details of other people without their knowledge which may result in the public losing confidence in the Department’s ability to keep the information about them secure and confidential. The Tribunal advised that if revealed, the information would likely prejudice the effectiveness of methods for assessing cancellations, and Australian Privacy Principles (APP6) set out in Schedule 1 of the Privacy Act 1988 as they contain personal information about other persons. 

9. The substance of that information has been discussed in the delegate’s decision record.

10. In accordance with s.359AA, the Tribunal raised potentially adverse information contained in the material subject to the certificate.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

12. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

13. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record dated 26 September 2017.

14. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record. The decision record indicates that:

    i)   The applicant arrived in Australia as an Illegal Maritime Arrival [in] February 2010 and identified herself as [applicant’s name], date of birth [specified]. She did not have any documentary evidence to support her identity.

    ii)     On 23 July 2010, the applicant lodged a Form 866 – application for a [permanent visa] which was granted on 28 July 2010. On 10 November 2016, the applicant applied for subclass 155 Resident Return Visa (RRV) which was granted on 16 November 2016.

    iii)   On 9 October 2015, the Department finalised an Identity Report (IR) regarding the applicant’s claimed identity. The IR concluded that the applicant’s identity when applying for a [permanent] visa and to the Department is not supported. The applicant had provided a Marriage Certificate purportedly issued [in] December 2012 [by the Afghan authorities in] Iran. The certificate includes the applicant’s fingerprint and signature.

    iv)   According to Departmental movement records, the applicant was in Australia [in] December 2012, suggesting that she could not have been in Iran at that time to imprint her mark on to the document. As the document could not have been created without her fingerprint, this suggested that the purported marriage certificate was fraudulently obtained.

    v)    Forensic analysis of the applicant’s fingerprints was conducted and the fingerprints on the marriage certificate do not match the fingerprint samples which the applicant provided to the Department at the time of her application for a [permanent] visa. The applicant’s claimed husband, [name][1] is also known to the Department by another name.

    [1] Also [a name spelling variant].

    vi)   On 8 September 2015, the applicant was interviewed by a Departmental officer who noted that the applicant did not have a thorough knowledge of her family composition.

    ·     The applicant initially stated that she had no grandchildren, then contradicted herself and stated that her daughter [named] has a [child].

    ·     The applicant only chose her surname of [name] when she travelled to Iran in 2006. However she also stated that her father who died 20 years previously had never left Afghanistan also had the surname. The applicant was asked why the family name of [name] was written on the marriage certificate when she did not have any family name in Afghanistan and she was claiming that she chose that family name for the Iranian authorities. She claimed that at the Afghan [authorities] they were told that a family name is needed. However she had claimed earlier in the interview that the name [name] was not recognised in Afghanistan and consequently it is unlikely that the document would be issued with a surname that was not recognised in that country.

    ·     The naming convention of the applicant and her children is not correct for the traditional Hazara families. Departmental research showed that Afghani Hazara families will only choose a family name if asked by a government when crossing the Pakistan or Iranian border. A family name would not be recognised in Afghanistan for Hazara women and therefore it is plausible that the applicant created that name for [migration] purposes within Iran however her marriage certificate would not have been issued in this name as it was issued by the Afghanistan government.

    ·     The applicant and her claimed brother [Brother A] both forgot to mention in their entry interviews their claimed [Brother B], only advising the Department at the time of their [permanent] visa applications.

    ·     The applicant and her [Brother A] have significantly different accounts about when their brother [Brother C] became paralysed. The applicant said it was three years previously, whereas [Brother A] said it was 15 to 16 years previously.

    ·     She was evasive during the interview in answering questions about her claimed sister’s daughter [Ms A]. The applicant’s step-daughter (also referred to as an adopted daughter), called [Ms A] and the applicant’s sister’s daughter also called [Ms A] have the same birth details and life stories which the identity report did not consider to be credible.

    ·     The applicant was not forthcoming about her claimed marriage to [her husband’s name] and did not describe in any meaningful detail the events of her wedding day. The applicant and her claimed husband [named] provided conflicting information about the date of the claimed marriage. This raised doubts about the marriage and family composition. The applicant stated that her entire family were born in [Village 1], Afghanistan.

    ·     Departmental officers located a [Village 1] both in Pakistan and Afghanistan but due to the applicant’s geographical description, it was considered more likely that she was referring to the [same name] district in Pakistan. Moreover, the applicant claimed in other interviews with the Department that she is from [District 1, with similar name], Afghanistan and had never mentioned [Village 1] as her actual village. The Department’s research revealed that [District 1] is made up of 28 villages all of which are Pashtun, difficult to accept in light of the claim that they are Hazaras.

    ·     The applicant was not able to remember her travel path to Australia and her account was considered implausible.  Her description of her place of birth was inaccurate. There is no village or town called [Village 1] in the area of Afghanistan where she claims it to be located.  The applicant was confused when shown photographs of claimed family members.

    vii)  The IR concluded that given the discrepancies in the applicant’s account of her family and travel history, the bogus and altered documentation, and her misleading answers provided in the course of the interview, her claimed identity is not supported.

    NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC/Notice)

15. On 13 January 2017, the Department sent to the applicant a NOITCC on the basis that there appeared to be circumstances that give rise to cancellation on the basis that the Minister is not satisfied about her identity (s.116(1AA)). The Notice highlighted a number of matters including the Marriage Certificate, issues that arose during an interview on 8 September 2015 with a Departmental officer including discrepancies in her account about family composition, travel history, and description of place of birth in Afghanistan. The delegate noted that 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] and I consider that the contradictory and conflicting information that you have provided strongly indicates that your genuine identity is not known by the department. Having considered the information you have presented to the Department, I am not satisfied as to your identity”.

16. In submissions dated 1 February 2017, the applicant’s representative provided a response setting out the applicant’s explanations.  The Tribunal has noted those explanations and the applicant continued claims to be [applicant’s name].

17. In the course of the hearing and in accordance with s.359AA, the Tribunal referred to potentially adverse information contained in the Departmental file, namely:

    (a)  The applicant had lodged three separate sponsorship applications for her claimed family residing in Iran. Two of those applications were refused and one was pending at the time of the delegate’s decision record. In one of those offshore applications, the applicant’s claimed adopted daughter ([Ms A]) was not included. In another application, both [Ms A] and another claimed daughter of the applicant ([named]) were not included in the application. This suggests that the applicant had misled the Department about her claimed immediate family members.

    (b)  The applicant claims that her husband [named] was deported from Iran to Afghanistan on three occasions. Although when he was missing, she claimed to have gone to Pakistan searching for him, suggesting that he was deported to Pakistan and that he is in fact a citizen of Pakistan rather than Afghanistan.

    (c)   A [social media] account was located for the applicant’s claimed son ([Son A]) stating that he was currently residing in [a region] in Australia. However, the Department held no record of him entering Australia under the identity provided by the applicant or her husband. The Department was unable to locate [Son A] in Departmental records under the name of [Son A]. There were other [social media] profiles of concern.

    (d)  The applicant claims to be of Hazara ethnicity and Shia Muslim religion who was born in Afghanistan. She claims to have been born in Helmand province and that she is a naturalised citizen of Afghanistan. It is written in her entry interview ([file number]) that she resided in Afghanistan until 2006 before travelling and residing in Iran with her family. It is also written in the entry interview and a visa application ([file number]) that the applicant’s husband was deported back to Afghanistan from Iran on three separate occasions. Although, she has claimed in supporting documents for that application that she travelled to Pakistani to look for her husband. This raises doubts about her Afghani nationality and could suggest that she is a citizen of Pakistan rather than Afghanistan.

    (e)  The applicant claimed she left Afghanistan and moved to Iran in 2006 and that from then until 2008, she resided illegally in [a named town in] Iran with her husband and children. She claimed that from 2008 until October/November 2009, when she departed to travel to Australia, she resided in [another city in Iran]. When she left, the oldest of her children would have been approximately [age] years old) The applicant claimed that her husband was deported from Iran two weeks prior to her departure in 2009 and that she had no contact with him as he was missing. This information was later contradicted in a visa application; in the applicant’s husband’s offshore visa application, there is a statement from the applicant in which she declares, amongst other things, that she knew that her husband was back in Iran with their children, contradicting her earlier claims. Moreover, it was considered difficult to understand why the husband was deported on multiple occasions yet other members of the family were allowed to stay in Iran.

    (f)    Subsequent to her arrival in Australia [in] February 2010, the applicant has since travelled offshore to Iran [in] April 2012 until [July] 2012. Both incoming and outgoing passenger cards show that the applicant travelled to [another country] on her way to Iran which is an unusual transit pathway.

    (g)  The applicant claims that she has never been educated and that she is illiterate. Departmental officers located her [social media] page showing comments and other statements written in Farsi raising serious doubts about her claim that she is illiterate. Moreover, the incoming passenger card for her travel in 2012 shows her usual occupation to be a student but her outgoing passenger card shows her occupation as housewife.  The applicant has claimed that she was self-employed as [an occupation 1] from 2007 to 2009. Her husband in the offshore visa application claimed that he was [an occupation 1] and that the applicant had helped him part-time.

    (h)  In relation to the applicant’s family composition, there are two persons by the name of [Ms A] with identical biographic details. Information available to the Department on its database indicates that those two people are the same person. There is information suggesting that a person by the name of [another name] is the same person as the applicant’s husband.

    (i)    In the husband’s partner visa application, he claimed that he and the applicant lived together married for [number] years before she left Iran in 2009. This means that they lived together since [year] when the applicant was nine years old.

    (j)    The Marriage Certificate purportedly issued [in] December 2012 [by the Afghan authorities in] Iran. This is at a time when the applicant was in Australia. At page 11 of the document, it is written that “On this [date] the parties (Bride and Bridegroom) with full Islamic law and legal knowledge came to the [Afghan authorities in Iran] and in the presence of witnesses possessing Islamic law and legal competence tested that the marriage contract was perfect and completely legal and according to the Islamic law. The witnesses also admitted responsibility for any statement contrary to the truth”. This suggests a number of things including that the applicant must have departed Australia using a different identity, or that the document contains false information in that the applicant was not present as claimed. The fingerprints of pages 34 and five have been forensically determined to be prints from the same person who is unknown to the Department and not the applicant’s fingerprints.

    (k)   Despite requests to provide photographs of all family members for the ongoing partner migrant visa application, the applicant did not provide this information. During a Departmental interview, the applicant could not provide all of the names of her family members easily.

18. Subsequent to the Departmental interview on 8 September 2015, the applicant’s representative provided submissions dated 21 September 2015.

19. In support, the applicant provided to the Department and to the Tribunal a number of documents.

    First hearing

20. The applicant gave evidence that she is [age] years old, born in [Village 1 variant], [Town 1], [District 1] in Afghanistan.  Her parents are deceased and she has [specified siblings].  One of her brothers is deceased and another is missing.  Another brother is in Australia and they came together to Australia in 2010.  In relation to schooling, the applicant stated that she never attended school in Afghanistan but in Australia, she has learnt to read and write basic English. 

21. She gave evidence that she got married when she was [age] years old but she could not recall the exact date.  Her husband is now [age] years old.  He was married previously and his first wife died during childbirth.  The applicant did not know when the wife died.  She stated that her husband has one child of that marriage, [Ms A] whose exact age the applicant could not recall but thought she is about [age range] years old.  She stated that [Ms A] is married and living in Iran with her family, including her [children].

22. The applicant gave evidence that she has [number] children, [names and dates of birth].  She stated that she, her husband and [her] children left Afghanistan in 2006 and went to Tehran, Iran.  She said they entered Iran illegally by car.  She left Iran in 2009 but she could not recall the actual month.  She left with [a named relative].  She stated that her husband’s friend informed her that her husband was taken by the Iranian authorities two weeks before she left Iran but she could not find him. She thought he was deported.  She decided to leave Iran.  She told her brother who was in Pakistan at the time that her husband had been taken by the authorities and he suggested seeking asylum and she agreed.  Her brother went to Pakistan about a month earlier because he could no longer live in Afghanistan, not to live but with the intention of coming to Australia to seek asylum.  She said that it was the third time that her husband was caught but she could not recall the dates.  She said he was working from home as [an occupation 1] and he was very careful when leaving the house.

1. The Tribunal indicated to the applicant that it was difficult to accept that she would have left her children who would have been [specified ages] years old in circumstances of her husband being missing.  She said the situation was hard so she made the decision.  She left them with [Ms A]. 

2. In relation to the marriage certificate, she apologised and said that the fingerprint is her husband’s.  She stated that he was told by staff [of the Afghan authorities] to do that and he did, otherwise he would not have been given the certificate.  She said she had never attempted to mislead or do anything to jeopardise seeing her children or lead to the cancellation of the visa.  She said her husband told her to tell the authorities that the fingerprints are his not hers but she forgot.  The Tribunal asked the applicant if she had attempted to correct the record and she stated that she did not have it in her mind but suddenly it hit her when she was contacted by the Department.

   Hearing on 11 September 2019

3. The Tribunal asked the applicant about her family composition. She confirmed that she has [number] children, [names and dates of birth]. The Tribunal asked the applicant about her husband’s daughter, [Ms A] and the applicant stated that [Ms A] is about [age] years old. The applicant indicated that she refers to [Ms A] in her name  and that she is her stepdaughter. The Tribunal asked the applicant about her siblings and she re-stated that she has [specified siblings] namely [Brother C], [Brother B], [Brother A] and [two others named].

4. In accordance with s.359AA, the Tribunal indicated to the applicant that during her entry interview conducted on 22 March 2010, she did not mention that she had a brother called [Brother B]. The applicant responded by stating that she did not mention her brother [Brother B] because she did not have information about him at that time. The Tribunal expressed concerns about the lack of mention of her brother [Brother B] and the applicant reiterated that she was not aware if he was dead or alive and she thought that he had probably fell into the hands of the Taliban.

5. The Tribunal asked the applicant about her brother [Brother C] and she stated that he died in 2013. In relation to him being paralysed, she stated that three years prior to her arrival in Australia, [Brother C] had an accident at the markets and was shot by the Taliban. She said he was taken to Kabul and was given the wrong injection which led to him being paralysed. The Tribunal pointed out that the delegate’s decision record provided to the Tribunal indicates that she and her [Brother A] have significantly different accounts about when their brother [Brother C] became paralysed; [Brother A] said it was 15 to 16 years previously but the applicant stated that this was a mistake and there might’ve been confusion.

6. The Tribunal referred to information contained in the Departmental file that during the Departmental entry interview conducted on 22 March 2010, the applicant gave information about her family composition which included [Ms A] who was described as a step-daughter, as well as another person by the same name who was referred to as the applicant’s sister. In accordance with s.359AA, the Tribunal indicated that information on the Departmental file indicates that the two persons referred to as [Ms A] have the same identical biographic details, the same number of children and they reside in the same location suggesting that they are the same person. The applicant stated that she wanted to be truthful with the Tribunal. She stated that they are the same person and that she had given wrong information about those two individuals. She stated that she wanted to tell the Tribunal the truth and confirmed that there is only one [Ms A] who is her sister whom she wanted to help. She stated that she did not think that making that claim would lead to the current position and that she would not be able to see her children. The applicant offered her sincere apologies for the provision of the incorrect information. She stated that she wants to tell the truth and that she could no longer handle the situation. She stated that she was extremely tired and confirmed that she does not have a step-daughter, that her husband has never been married previously or had a deceased wife.

7. The Tribunal asked the applicant when she was married and she stated she was married at the age of [age]. The Tribunal put information to her that in 2013 in the Partner visa application, it was claimed that they lived together as a married couple for [number] years before she left Iran in 2009 which would have made it the year [year] when she was nine years of age. She reiterated that she was married when she was [older] years old not nine.

8. The Tribunal asked the applicant about when her husband went missing. She stated that in Iran, he was captured on three occasions because he was undocumented. She stated that on the last occasion, he was captured approximately two weeks prior to her departure from Iran. She stated that she went to the place where she thought he had been detained but she was told that he was not there. She stated that she did not know where he was in Iran. The Tribunal asked her if she later discovered her husband’s whereabouts and she stated that she did not know.

9. In accordance with s.359AA, the Tribunal referred to information[2] contained in the Departmental file namely that in her husband’s offshore visa application containing her statement in support the application, she declared that:

   Unfortunately, throughout our stay in Iran my husband was deported to Afghanistan a number of times. In 2009 when my husband was deported for the third time and I did not know where he was, he did not get in touch with us. This is when I went to look for my husband – I searched detention centres in [the Iranian city] and couldn’t find him so I went to Pakistan to look for him. My brother lived in Pakistan and I went and stayed with him. While I was in Pakistan I called my children in Iran and at that stage my husband had made his way back to Iran and was with the children. While I was in Pakistan my brother told me that he intended to go to Australia with his family and that I should join them. I discussed it with my husband and we decided that I should come to Australia with my brother as we wanted a better life for our family.

   [2] Back of Folio nine of the Departmental file

10. The Tribunal indicated to the applicant that the above is inconsistent with her earlier claims about her husband’s whereabouts. The applicant stated that she did go to Pakistan but not to look for her husband but because her [Brother A] had called her and the situation was bad for the family. The applicant stated that she is illiterate and she could not check the correctness or otherwise of the information provided. She stated that she did not go to Pakistan to look for her husband. She stated that her husband was missing and that she just signed the statement and there must have been a mistake.

11. The applicant gave evidence that when she returned to Iran in 2012, her husband had already returned to Iran but she could not say exactly when he returned and that she thought it was 7 to 8 months after her arrival in Australia.

12. The Tribunal discussed with the applicant the Afghan naming conventions specifically that usually there are no surnames. The Tribunal asked the applicant about the surname [name] and she stated that in Afghanistan, she never used the surname but as her sister used that surname in Iran, she herself adopted that surname as well. She stated that she adopted that surname “orally”. She stated that when she came to Australia she used it. The Tribunal asked her why the marriage certificate, purportedly issued by the Afghani authorities, would have a surname that was not recognised or used in Afghanistan. She stated that she had obtained the certificate when she was in Australia. She said it was obtained by “word-of-mouth”.

13. The Tribunal discussed with the applicant her place of birth and she reiterated that she was born in Afghanistan not Pakistan.

14. In accordance with s.359AA, the Tribunal discussed with the applicant information contained in the Departmental file that passport scans for the family in Departmental file number [file number] appear to have been fraudulently altered by having the names amended. The passports were also issued in consequential order with the numbers [several sequential numbers] and on some of the copies the numbers appear to have been lasered. The Departmental officers conducted research indicating that the numbering method is perforation and not laser perforation. The Tribunal indicated that this suggests that the applicant’s family were attempting to travel to Australia under a false identity, suggesting that the applicant had misled in relation to the biographic details of her claimed immediate family members. The applicant stated that those were identity documents to enable family members to travel. She stated that they are only valid for one year. She stated that she was not present at the time when they were obtained and she thought that there were mistakes in relation to the names. She stated they were obtained from the [Afghan authorities]. She reiterated that she does not have an idea about those passports.

15. The applicant confirmed that she has had a private [social media] account but stated that she does not use it often.

16. In accordance with s.359AA, the Tribunal discussed with the applicant information contained in the Departmental file in relation to her [Son A’s] [social media] account suggesting that he was in Australia in [a named region]. The applicant became distressed and denied that she has any awareness of him being in Australia. The Tribunal showed the applicant information in the Departmental file[3] showing on his [social media] account comments “works at [a location in] Australia… Situated at [a named university]… Lives in [a city in] Australia… From Tehran, Iran…” The applicant essentially stated any comments could be made on [social media] but as far as she is concerned she does not know that he is in Australia.

    [3] Folio 4.

17. The Tribunal discussed with the applicant the various documents provided and advised that it would consider the weight that it would place on those documents. The Tribunal asked the applicant about the document provided titled “To Whom it May Concern” by the [authorities] of the Islamic Republic of Afghanistan [in Australia] dated [in] 2017 referring, amongst other things, to the applicant being a citizen of Afghanistan. She stated she obtained the document by going to the [Afghan authorities] in [Australia] and by providing them with documents issued by the Australian authorities. She stated that she did not have a Tazkera at that time but she has now obtained it. The Tribunal asked her how she obtained the Tazkera and she stated she obtained it through the Afghani [authorities] in [Australia] by completing a form which was sent to Afghanistan for verification. The Tribunal advised the applicant that document fraud is prevalent in Afghanistan and that the Tribunal has sent those documents for examination. The applicant stated that she cannot live in Afghanistan as it is impossible for a woman particularly Hazara. She stated that she knows that she had made a “bad decision” for which she apologises.

    DOCUMENT EXAMINATION

18. On 29 August 2019, the Tribunal sent to the Department documents for examination. The documents that were provided to the Tribunal by the applicant are Tazkira belonging to the applicant and a Tazkera related to [Brother A]. On 7 November 2019, the Tribunal received information from the verification outcome for the documents indicate that both documents are genuine.

19. The Tribunal observes that the applicant’s Tazkera is in the name of [applicant’s name] born in [Town 1], in the district of [District 1], in the province of Hemand. Those details are consistent with the applicant’s claims in relation to her identity.

20. In the course of the hearing, the applicant conceded that she provided incorrect information relating to a family member, namely, [Ms A]. The applicant stated that she wanted to be truthful with the Tribunal. She stated that they are the same person and that she had given wrong information about those two individuals.  She confirmed that there is only one [Ms A] who is her sister whom she wanted to help. She stated that she did not think that making that claim would lead to the current position and that she would not be able to see her children. The applicant offered her sincere apologies for the provision of the incorrect information.  She also conceded that the finger prints on the marriage certificate are not hers but her husband’s.

21. The Tribunal has noted the applicant’s apologies but is nevertheless highly critical of the applicant’s provision of the incorrect information in her dealings with the Australian authorities.

22. The applicant’s visa was cancelled under s.116(1AA), that is in relation to lack of satisfaction about her identity. She provided documents to the Tribunal which the Tribunal sent for document examination that revealed that the documents are genuine. Irrespective of the fact that the applicant has provided incorrect information in relation to her family composition, the outcome of document examination confirms her claims that she is who she says she is, that is she is [applicant’s name], a citizen of Afghanistan. The Tribunal gives significant weight to the outcome of document examination and in consideration of the evidence as a whole, the Tribunal finds that the applicant is [applicant’s name], a national of Afghanistan. Those findings mean that the Tribunal is satisfied of the applicant’s identity and for these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

23. The Tribunal has found, and the applicant has conceded that she has provided incorrect information about her family composition and that potentially the marriage certificate could be a bogus document. However the applicant’s visa was cancelled on the basis of s.116(1AA) relating to identity and not the provision of incorrect information or bogus document. Section 116(1AA) permits cancellation of a visa if the Minister is not satisfied as to the visa holder’s identity. The Explanatory Memorandum to the legislation inserting s.116(1AA) provides the following example: two or more documents or pieces of information about a person’s identity have been given by, on behalf of, or in relation to the visa holder and it is not possible to form a conclusion regarding which document or piece of information is genuine.[4] 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.[5] 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.  This is not been the case in this instance.

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

    [5] 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).

    Can the Tribunal consider cancellation on a different basis from the primary decision?

24. Although, the Tribunal is not limited to the particular issues that the delegate considered,[6] if a decision has been made to cancel a visa under s.116, it is not open to the Tribunal on review to consider whether the visa might have been cancelled under a different power, such as s.109. Conversely, if a visa has been cancelled under s.109, it would not be open to the Tribunal on review to consider whether it might have been cancelled under s.116.

    [6] SZBEL v MIMIA (2006) 228 CLR 152.

25. In MIMIA v Ahmed[7] the decision under review was a decision to cancel a visa for breach of condition 8202. The Full Federal Court found it unnecessary to discuss at what level of generality or specificity one analyses the delegate’s decision for the purpose of identifying the decision in the statutory context, the Tribunal had dealt with breach of condition 8202 as the delegate had.[8] However, in the course of its reasons the Court identified s.116(1)(b) as the source of the power that the Tribunal acceded to in that case.[9] This suggests that when reviewing a s.116 decision the Tribunal would be restricted to consideration of the particular ground or grounds relied on by the delegate. Krummrey v MIAC[10]  suggests that the Tribunal is not limited to the particular ground or grounds considered by the delegate, and/or those described in the notice. However, the Tribunal is of the view that there is a risk of legal error in any departure from the ground on which the visa was cancelled. 

    [7] MIMIA v Ahmed (2005) 143 FCR 314.

    [8] MIMIA v Ahmed (2005) 143 FCR 314 at [37].

    [9] MIMIA v Ahmed (2005) 143 FCR 314 at [35], [38]. The Court also observed that what was done under s.119, or what should have been done under s.119, may affect the assessment of the boundaries of the delegate’s decision by assisting an understanding as to the subject matter of the reviewable decision that the Tribunal is reviewing.

    [10] (2005) 147 FCR 557.

26. On balance, the Tribunal is satisfied that it is not open to the Tribunal on review to consider whether the visa could have been cancelled under a different power to s.116(1AA).

27. For the reasons given above, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise. The Tribunal therefore concludes that the visa should not be cancelled.

    DECISION

28. 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.

    Antoinette Younes

    
    Senior Member