1729043 (Refugee)

[2019] AATA 2041

1729043 (Refugee) [2019] AATA 2041 (5 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729043

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Nicole Burns

DATE:5 April 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.

Statement made on 05 April 2019 at 4:28pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Afghanistan – incorrect information – non-compliance identified – adverse profile at the time of application – tribunal not satisfied there was non-compliance – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101,102,103,104,105, 107, 109, 116

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

SZEEM v MIMIA [2005] FMCA 27

Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that they concluded that the applicant had provided incorrect answers in his protection visa application (and accompanying written statement) in breach of s.101 of the Act. 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 21 March 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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.

8. On the Departmental file is a copy of the Notice of Intention to Consider Cancellation (NOICC) dated 21 July 2017 which advised the applicant that his visa may be cancelled under s.109 because of concerns that he did not comply with s.101(b) (visa applications to be correct) of the Act.  He was advised to respond in writing.  The applicant’s then representative provided a written submission dated 15 August 2017 and supporting documents to the Department in response.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

10. 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 (visa applications to be correct) and s.103 (bogus documents not to be given) as follows.

    Section 101(b) - visa applications to be correct

11. The non-compliance identified and particularised in the s.107 notice in relation to s.101(b) was that the applicant had provided incorrect information in relation to his Protection visa application, lodged in mid-2011.

12. The notice recounts information the applicant provided in a statement of claims submitted as part of the Protection Obligation Determination (POD) process dated 11 June 2011, and specific answers on the Protection visa application form (866C) which are alleged to be incorrect. 

13. Specifically, the notice refers to the fact that the applicant had declared that he was born in Afghanistan, had citizenship or was a national of Pakistan, and was seeking protection in Australia so that he does not have to go back to Afghanistan.  In response to questions 42 to 46 on the protection application form about why he left that country, what he fears may happen to him if he goes back, who may harm him and why and whether the authorities of that country will protect him, the applicant referred to his statement of claims.  In that statement the applicant sets out his experiences in Pakistan which led him to fear returning there.  The applicant’s protection visa was granted on 7 September 2011 on the basis of these claims, with the delegate finding the applicant was a national of Pakistan who faced a well-founded fear of persecution on return to Pakistan. 

14. The alleged non-compliance as set out in the notice related to evidence (that is outgoing and incoming passenger cards and stamps on the applicant’s Australian-issued Titre de Voyage travel document) that the applicant had returned to Pakistan on three separate occasions in the period from February 2012 to August 2016 for a total of 11 months without experiencing any harm.  As a result, the delegate formed the view that the applicant had provided incorrect information in his protection visa application that he had been targeted by anti-Shia elements (Lashkar-e-Jhangvi (LeJ) in particular) as a Hazara Shia, and because he had made a video following the death of his cousin promoting Hazara Shia rights, and feared serious harm from such elements on return to Pakistan.

15. In response to the notice the applicant’s then migration agent states that whilst the applicant acknowledges that he returned to Pakistan on three separate occasions since the grant of his protection visa, the information he provided in his protection visa application and written statement are correct.  It is submitted that the applicant returned to Pakistan in 2012 because his mother was unwell with [serious illness] (and shortly after the applicant returned to Australia she died) and his wife was unwell with [health] problems.  He returned in 2014 and 2016 because his daughter had [medical] problems, and in his last visit she had to undergo surgery in Karachi.  His wife and daughter were unable to travel outside Quetta without a male relative and they have no male relatives in Pakistan.  It is noted that in 2012 after he applied for and was issued an Australian Titre de Voyage the applicant was told by a Departmental officer that as his travel document states that he is an Afghan citizen, there would be no problem with him travelling to Pakistan.  It is further submitted that whilst in Pakistan in 2012 the applicant spent most of his time at the hospital in Quetta and although he took his daughter to Karachi in 2014 and 2016 for medical treatment, he also spent most of his time there at the hospital and kept a low profile, limiting his contact with people outside his immediate family.  The representative argued that the fact that he was unharmed during these periods does not mean that he did not face a well-founded fear of persecution at the time of the visa application, or would not if forced to live in Pakistan permanently in the future. As well, she submitted that because the applicant had not been in Pakistan for some time, the LeJ would no longer be vigilant or even know that he had returned, particularly given his low profile. 

16. Supporting documents provided by the applicant in response to the NOICC included:

    ·Medical documents in relation to the applicant’s daughter’s [medical] problems from [two health facilities] in Karachi.

    ·Medical documents pertaining to the applicant’s wife’s [health] problems.

    ·A report from the applicant’s treating psychologist in Australia dated [June] 2017.

    ·The applicant’s mother’s death certificate showing she died [in] 2012 in Quetta.

    ·Photographs of the applicant’s daughter in what appears to be a hospital in Pakistan.

17. The delegate formed the view that the applicant had provided incorrect information in his protection visa application because of his return to Pakistan three times in a total of 11 months without experiencing harm, despite claiming to fear persecution on return to Pakistan by the likes of the LeJ.  The delegate considered the reasons for his returns (to Pakistan) and other relevant factors, but was satisfied the grounds were made out and considered the reasons for cancellation outweighed those against not cancelling the visa.

18. On review the applicant’s representative has provided to the Tribunal a detailed written submission dated 14 March 2019 in which he disputes the delegate’s findings that the grounds were made out and also addresses the discretionary factors in the applicant’s case.  In addition to providing copies of documents already submitted to the Department in response to the NOICC, the representative provided the following documents:

    ·A translated copy of the applicant’s and his father’s Afghanistan identity cards (taskira).

    ·A letter from the applicant’s doctor in Australia indicating he has been diagnosed with [a medical condition].

    ·An (updated) letter from the applicant’s treating psychologist dated [March] 2019.

19. At hearing the Tribunal discussed the relevant contents of the NOICC with the applicant.  He disputed that there was non-compliance in the way particularised in the NOICC, arguing that although he returned to Pakistan in 2012, 2014 and 2016 it was for a temporary period each time, he did so because his family members were unwell and without a male companion to take them for medical treatment, and he kept a low profile whilst there.  He said he was worried about his safety when he returned, but was more concerned at the time about his family member’s wellbeing: that is his mother who required hospitalisation for [a serious illness] in 2012 (she died [later] that year) and his wife who also required hospitalisation for [health] problems that year.  He stayed only in Quetta during this trip.  The applicant said his visits to Pakistan in 2014 and 2016 were to accompany his [daughter] [detail deleted], for medical treatment in Karachi.  In 2016 she underwent an operation there.  He also kept a low profile during these visits where he stayed in his family home in Quetta and mainly at the hospital when in Karachi. 

20. The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, the applicant’s oral evidence to the Tribunal and other relevant evidence before it to assess whether the grounds for cancelling the visa is made out.  In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided.  It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.  However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).  In Zhao v MIMA (Zhao), the 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 because 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.[1]

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

21. While that case was concerned with cancellation under s.116, the Court’s comments are equally applicable to s.109 cancellation, as in this case. 

22. Dixon J’s comments in Briginshaw v Briginshaw[2] are also relevant, as follows:

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[3]

    [2] (1938) 60 CLR 336.

    [3] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

23. It is not in dispute that the applicant returned to Pakistan three times for a total of 11 months in the period from 2012 to 2016. Such actions do raise a question about his claimed fear of persecution in Pakistan – in particular his claims to have been directly targeted by the LeJ in the past, which he made in 2011.  However these returns, considered separately and cumulatively, do not, in the Tribunal’s view, necessarily mean his claims at the protection visa application stage to fear persecution there as a Hazara Shia who had an adverse profile (because of his links to his cousin who was murdered, and his subsequent production of a [video] are untrue.  It is plausible that the applicant could be in the country for temporary periods of time (the maximum being for around five months) and go unnoticed, particularly if he kept a low profile including not working and limiting his travel outside Quetta, and when in Karachi limiting his time to the hospital as submitted.  The Tribunal found the applicant a credible witness at hearing and combined with supporting medical documents that have been provided, it accepts his reasons for returning to Pakistan these three times, accepts they were compelling reasons – in particular his desire to accompany his young daughter to obtain necessary medical treatment given her serious [problems] – and accepts that he kept a low profile whilst there.  The Tribunal also accepts that circumstances can change, and the fact that the applicant was not harmed by non-state actors during his temporary visits to Pakistan does not necessarily mean he was not fearful of those actors at the time he made his protection visa application or that his claims of being threatened and surviving attacks by such actors in the past as set out in his visa application (and accompanying written statement) were untrue. 

24. As well, the Tribunal accepts that during his first visit back in 2012 the applicant was confined to the Quetta area, and according to country information Hazaras there tend to live in isolated communities, which reduces the risk of attacks by sectarian militants.[4] In 2014 and 2016 he divided his time between Quetta and Karachi where he mostly spent time at the hospital. 

    [4] DFAT Country Information Report, Pakistan, 20 February 2019 at 3.28.

25. For these reasons, the Tribunal is not satisfied that the applicant’s return to Pakistan on three occasions for periods ranging from three to five months in 2012, 2014 and in 2016 meant he did not hold a well-founded fear of persecution as a Hazara Shia who had an adverse profile at the time of his protection visa application.

26. Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it – that the grounds for cancellation are made out in this instance.

27. In summary the Tribunal agrees with the delegate that the applicant’s return to Pakistan three times from 2012 to 2016 at the very least raises a concern about his alleged fears of being persecuted there at the time of the visa application.  However, this does not, in the Tribunal’s view, constitute evidence to the requisite level as required by Zhao that he provided incorrect answers in his protection visa application (and related statement) about his feared persecution and allegations of past harm and threats to him and his family in Pakistan.  

28. For the reasons set out above the Tribunal finds that the grounds identified by the Minister’s delegate have not been established, such that it has reached a real state of satisfaction that incorrect information was provided. For these reasons, the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act.  It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Nationality

29. A question has arisen during the review about the applicant’s nationality.

30. In his written submission to the Tribunal the representative submits that the applicant is an Afghan citizen, not a Pakistani citizen and therefore the fact that he returned to Pakistan three times does not undermine his protection claims.  For the reasons that follow the Tribunal is satisfied that the applicant is a national of Afghanistan, not Pakistan (although he was able to obtain Pakistani identity documents).  Nonetheless, given the information contained in the applicant’s protection visa application (and statement of claims) primarily related to his protection claims with respect to Pakistan, the Tribunal does not agree with the submission that the ground for cancellation is not made out on this basis alone.  For reasons above the Tribunal has found the ground for cancelling the applicant’s visa on the basis of his returns to Pakistan was not made out.

31. With respect to the applicant’s nationality the Tribunal notes the following history before it:

    a.In his protection visa application form the applicant states that he was born in Afghanistan and when asked if he held any other citizenship or was a national of any other country he said ‘yes’ and identified Pakistan (at question 21 of Part C).  In his written statement of claims that accompanied the protection visa application the applicant states that he is a citizen of Afghanistan and ‘Pakistan’ and that he does not have a right to citizenship or a right to reside in any other country.  He states that he was born in Afghanistan, and fears returning to Afghanistan and Pakistan.  He then sets out the reasons he fled Pakistan.

    b.In the POD assessment record the delegate indicates that they were satisfied that the applicant was a Pakistani national because, although he declared to be Afghani in his entry interview, he submitted a copy of his Pakistani ID card and Pakistani school records; he told the interviewer that his father acquired Pakistani citizenship after their family went to Pakistan in 1990; his current national identity card (NIC) indicates that it bears the relevant security and information features consistent with a genuine document; the Pakistani Citizenship Act indicates that one would have to have renounced Afghani citizenship to satisfy the relevant provision in the Pakistani Citizenship Act; there was no evidence to indicate that the applicant has ever held an Afghan passport; and although he may hold unofficial citizenship, by virtue of his acquisition of Pakistani citizenship, the information does not indicate he currently holds Afghan citizenship. 

    c.The applicant’s Australian issued travel document (Titre de Voyage) lists his nationality as ‘Afghan’ (and place of birth as Ghazni (Afghanistan)).

    d.The applicant submitted to the Tribunal a translated copy of his Afghanistan taskira issued when he was [age] year old, and his father’s taskira and translated identity card for ‘[laborers’]. 

1. At the Tribunal hearing the applicant explained that he was born in Afghanistan to Afghani parents; that he and his family fled to Pakistan (Quetta) when he was young and have never returned; his father somehow obtained Pakistani identity documents for him and the rest of the family, which he used to enrol in school and obtain a Pakistani passport in around 2006 (as well as paying an ‘additional’ processing fee, which he claimed most Hazaras have to pay); he used that passport to depart Pakistan in 2011; and he still has his Pakistani NIC but is not sure if he will be able to use it again in Pakistan because he thinks it was fraudulently obtained (that is his father paid money for it).  He said that when he arrived in Australia he told the authorities that he was born in Afghanistan, grew up in Pakistan and showed them his Pakistani NIC.  In his statement of claims he sets out his experiences in Pakistan and fears about returning there, because that is where he grew up.

2. The applicant said recently he found out that his older [sibling] in Quetta had [possession] (following their father’s death in around 2002) his father’s Afghanistan taskira and when [they] sent him a copy he discovered his own taskira – issued when he was [age] year old in Afghanistan – was also attached.  Earlier he had contacted the Afghan consulate in Canberra to apply for a taskira based on his father’s taskira but cancelled the application upon discovering his own taskira issued decades ago. 

3. The applicant told the Tribunal that his wife is a Pakistani citizen, as are their children, who were issued Pakistani birth certificates.

4. Having regard to the totality of evidence before it, including the credible oral evidence of the applicant, and country information about related matters such as the prevalence of document fraud in Pakistan (discussed in more detail below) the Tribunal is satisfied that the applicant is from Afghanistan and that his father fraudulently attained Pakistani identity documents.  The reasons for this conclusion include the following considerations.

5. The applicant has consistently claimed to have been born in Afghanistan, moved to Pakistan when around [age], and grew up in Pakistan (until he came to Australia in 2011) ostensibly living as a Pakistani national because his father was able to obtain NICs for him and his family. He told the Tribunal he thinks his father may have paid a bribe for it however the Tribunal notes that according to the POD assessment record, he told the interviewer that his father acquired Pakistani citizenship after their family went to Pakistan in 1990.  Nonetheless, the Tribunal notes on the applicant’s protection visa application file[5] is a copy of a document titled ‘Annex 3 – Request for Protection Obligations Determination (POD) and Statement of Claims’. In it the applicant provides that his citizenship at birth is ‘Afghanistan/Pakistan’, and in response to the question about his current citizenship (at [age]) he states: ‘Pakistani obtained in 1996 through bribing a Government Official’. This indicates that the applicant himself may have provided different responses at various times to the question of his father obtaining Pakistani citizenship, and whether it was through lawful means, possibly because he himself was unsure as to how his father actually acquired Pakistani identity documents, when he was still young.

   [5] [Source deleted]

6. 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.[6]

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

7. 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.[7]

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

8. 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.[8]

   [8] 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

9. In the case 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.[9]

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

10. In view of the country information cited above, the Tribunal considers it unlikely the applicant, as an Afghan refugee who arrived in Pakistan as a child to an Afghan refugee father in around 1990, could have become eligible for Pakistani citizenship through any lawful means.

11. The Department of Foreign Affairs and Trade (DFAT) reports that the Hazara ethnic group has lived in Pakistan for centuries and those who are Pakistani citizens can access formal identification such as NICs.  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.[10]  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.[11] 

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

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

12. There are numerous reports indicating that Afghan nationals living as refugees in Pakistan illegally obtain false Pakistani national identity cards required to access government and other services.[12]  According to the 2017 DFAT report, the National Database and Registration Authority (NADRA) is engaging in a campaign to target fraud in relation to Computerised National Identity Cards (CNICs) and has identified several thousand fraudulent records in this process, including Afghans who had been added to household registration lists without authorisation.[13]

    [12] 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;

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

13. Tens of thousands of fraudulently issued CNICs have reportedly been blocked by NADRA, with the former Interior Minister Rehman Malik reported to have stated that he had ordered NADRA to block as many as 85,000 CNICs in Balochistan alone during his tenure between 2008 and 2013.  NADRA’s deputy assistance director Qamar Nadeem was found guilty of issuing CNICs and birth certificates to foreigners in September 2015 and another assistant director, Shahid Yousaf, was arrested in Peshawar in 2017 for issuing CNICs to Afghan nationals.  NADRA has reportedly sacked 200 officials for issuing CNICs to foreign nationals and is collaborating closely with the Pakistani authorities in relation to the arrest, investigation and prosecution of those suspected of registering foreigners.[14] 

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

14. DFAT reports that document fraud is widespread in Pakistan for forms of documentation not issued by a competent central authority such as NADRA.  They state that CNICs, Smart National Identity Cards (SNICs) and passports contain a number of security features which have reduced the incidence of document fraud. However, due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect.[15]  They also state that fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records and other documents are common.[16]

    [15] DFAT Country Information Report, Pakistan 20 February 2019 at 5.70 & 5.71

    [16] Ibid at 5.74

15. The applicant has provided translated copies of his and his father’s Afghanistan taskiras.  He explained that he did not mention that he had a taskira before because he has only recently found out that his [sibling] held it (and his father’s).  At hearing the applicant showed the Tribunal his application form to the relevant Afghan authorities to apply for a taskira (based on his father’s) which supports his explanation in this regard. 

16. The Tribunal notes in the cancellation decision record for this case the delegate states that the POD delegate stated that they had no evidence that the applicant had ever held Afghani citizenship and that they were satisfied that he did not have a legal right to enter and reside in Afghanistan. However, having regard to the POD decision record, it states that there was no evidence to indicate the applicant has ever held an Afghan passport, but that he may hold ‘unofficial citizenship’, however, by virtue of acquisition of Pakistani citizenship. The delegate stated that the information did not indicate that he currently held Afghan citizenship.

17. Given these considerations, and in view of the country information cited above, together with the Tribunal’s finding that it is unlikely the applicant could have become eligible for Pakistani citizenship through any lawful means, it accepts the applicant’s evidence that it is likely that his father obtained his apparently genuine NIC and associated identity documents by fraudulent means. The Tribunal is satisfied the applicant was not entitled to be issued that Pakistani NIC (and passport) because he is not a Pakistani citizen.  Rather, the Tribunal finds the applicant is a citizen of Afghanistan only.

18. Given this finding the Tribunal has considered if the applicant provided incorrect information in his protection visa application and statement of claims that he was a citizen of Pakistan.    

19. As mentioned earlier, the NOICC in this case indicates that in answer to question 21 about whether the applicant holds any other citizenship or is a national of any other country, the applicant replied ‘yes’ and identified ‘Pakistan’ as the country.  In the statement of claims (as also set out in the NOICC) the applicant states that he is a citizen of Afghanistan and ‘Pakistan’.   It has been submitted that the applicant told the truth to the Australian authorities at the time – that he was born in Afghanistan but grew up in Pakistan and held a Pakistani NIC – however, he said he was a Pakistani citizen at the time because he was unaware of the legal effect of this claim.  Nonetheless, it is argued, he provided correct information to the Department by presenting his Pakistani identity documents and his origin being of Afghan descent.  Furthermore, the use of quotation marks for ‘Pakistan’ demonstrates that he was unsure how to answer the question and that he was trying to convey that he was born in Afghanistan but had lived the majority of his life in Pakistan and was able to obtain Pakistani documents.  Before the Tribunal the applicant admits that he is not a Pakistani citizen.

20. Whilst the NOICC includes the applicant’s answer to question 21 in the application form (as set out above) about being a national or citizen of Pakistan, it fails to mention that this may have been incorrect.  Instead it sets out the ways the delegate considers that the applicant provided incorrect information in response to questions 41 to 46 about his protection claims with respect of Pakistan.  For this reason, in relation to the applicant’s nationality issue, the Tribunal is not satisfied that there was non-compliance in the way described in the notice, noting that the Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice.[17]

    [17] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

    CONCLUSION

21. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

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

    Nicole Burns
    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.

    
    

 '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