1730367 (Migration)

[2019] AATA 6610

1730367 (Migration) [2019] AATA 6610 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730367

MEMBER:Alison Murphy

DATE:28 November 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 (155) (Five Year Resident Return) visa.

Statement made on 28 November 2019 at 9:44am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the visa holder’s identity – document identity checks – applicant volunteered information on discrepancy – consistent explanation of incorrect dates – multiple international movements – access to education – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 107, 116, 352, 375A, 499
Migration Regulations 1994 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
MZAFZ v MIBP [2016] FCA 1081
Shi v Migration Agents Registration Authority [2008] HCA 31
Tarrant v Australian Securities and Investments Commission [2013] AATA 926

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 27 November 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 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 was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

5. The applicant is a male in his [age range], although contrary information about his exact age is the primary reason this matter is before the Tribunal. He arrived in Australia by boat [in] January 2010 with his wife and eldest [child] (now aged [age]) after being recognised as refugees by the UNHCR in Indonesia in August 2009. He lodged an application for a protection visa and on the basis of the information he provided, he was granted a class XA subclass 866 protection visa on 30 March 2010. He was later granted a Subclass (155) (Five Year Resident Return) visa and it is the cancellation of that visa which is the subject of this review.

6. After arriving in Australia, the applicant and his wife had [further] children (now aged [ages]), both Australian citizens. The applicant subsequently made an application for Australian citizenship. During the processing of this application, questions arose as to his identity and the genuineness of documents produced to the Department of Immigration and Border Protection (the department). His wife and eldest [child] acquired Australian citizenship [in] August 2014.

7. On 30 June 2017 a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the department intended to cancel his visa on the ground that the delegate was not satisfied as to his identity. 

8. The NOICC set out that [in] May 2014, the applicant lodged an application for Australian citizenship and was subsequently interviewed by the department’s Identity Unit. On 22 March 2016, an identity assessor concluded that the applicant’s identity was not supported.

9. The s.107 notice set out that points of particular concern included conflicting information  provided by the applicant about:

   ·his date of birth;

   ·his time in Iran and his exits from that country;

   ·his education history in Iran;

   ·his employment in Iran.

10. 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.

11. On 14 July 2017 the applicant responded to the s.107 notice via his representative. In that response he provided further information about each of the matters set out in the s.107 notice and maintained that his claimed identity was correct.

12. On 27 November 2017, the delegate decided to cancel the visa. In the decision record the delegate noted the matters set out in the s.107 notice and stated that the applicant had been unable to provide any reliable identity information or documentation to the Department since his arrival [in] January 2010. The delegate concluded the applicant’s correct identity was not known and the ground for cancellation of the visa under s.116(1AA) was established.

13. 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 s.107 notice 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.

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

14. An application for review of the delegate’s decision was lodged with this Tribunal on 3 December 2017.

15. On 15 November 2019 the applicant provided extensive written submissions and documents relevant to the issue of his identity.

16. The applicant appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

    Non-disclosure certificate

17. Under s.352(4) 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.

18. The Tribunal was provided with the departmental file relating to the cancellation of the applicant’s visa which included the s.107 notice, 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 and citizenship application were also provided to the Tribunal. The cancellation file included internal working documents of the department which were subject to a non-disclosure certificate pursuant to s.375A of the Act dated 6 December 2017. The certificate stated that the disclosure of any information contained in the folios subject to that certificate would be contrary to the public interest because it ‘contains the document is a deliberative process (internal working) document (sic)’.

19. Section 375A applies to decisions under part 5 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 must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.  However the operation of s.375A is dependent upon the existence of a valid certificate by the Minister or his delegate.

20. 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. It stated that 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.[1]

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

21. 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.

22. Much of the information subject to the certificate has already been disclosed to the applicant in the s.107 notice and the delegate’s decision. To the extent that other information contained in that document is relevant to the review application I have discussed it with him at the hearing.

    LEGISLATIVE FRAMEWORK

23. The applicant was granted a class XA subclass 866 protection visa on 30 March 2010 and a Subclass (155) (Five Year Resident Return) visa on 17 February 2017. 

24. 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

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

26. 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. 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.

27. Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[2] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.

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

28. If satisfied that the ground for cancellation under s.116 is made out, the decision maker has the discretion 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 Migration Regulations 1994 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[3]. It is also a well established principle that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary[4].

    [3] 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.

    [4] 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]

29. I address below each of the matters considered by the delegate to be of particular concern to the applicant’s claimed identity. Cumulatively these matters caused the delegate to suspect the applicant was an Iranian national, not an Afghan national as claimed.

30. Having heard the applicant’s evidence and considered the extensive amount of original documentation and submissions supplied by him, I consider the applicant to be a generally reliable witness as to his identity and I accept his identity as claimed.

    The applicant’s evidence as to his date of birth

31. The s.107 notice sets out (in summary) that:

    ·at the time of his arrival in Australia, the applicant provided his year of birth as [Year 1]

    ·in an entry interview conducted [in] January 2010, he advised his correct year of birth was approximately [five years earlier than Year 1, in Year 2], but his father registered it as [Year 1] on his Afghan taskera so that he could avoid military service;

    ·the applicant provided an Afghan taskera issued in 2008 which indicated he was born in roughly [the period between Year 2 and Year 1];

    ·at his citizenship appointment [in] June 2014, the applicant advised he wished to change his date of birth to [Year 2] and provided an original taskera booklet to substantiate this request, showing the year of his birth to be [Year 2]. He stated his father obtained this taskera when the applicant was about [age] years old;

    ·the identity assessor considered that taskeras are notoriously unreliable documents and that as this one was issued during the Taliban rule, it was not considered valid. The assessor considered it contradicted the applicant’s statement that his father had registered his birth year as [Year 1] and was provided late in the immigration process;

    ·during the identity interview the applicant had claimed that the date of birth provided at the time of arrival was not correct, and his father had registered him as younger than his actual age in order to avoid his conscription into the Afghan army. He claimed to hold a ‘registration document’ obtained when he was about [age] years old which he had not previously mentioned and did not mention the 2008 taskera he had provided to the department at the entry interview;

    ·for these reasons, and given only a photocopy of the second taskera had been provided, the identity assessor had serious concerns about the genuineness of both taskeras and was unwilling to give them any weight in the assessment of the applicant’s identity.

32. The applicant claims he has been issued three Afghan taskeras by the Afghan authorities. The first was issued in about 1993 during the presidency of President Rabbani. The second was issued sometime between 1995 and 1997 during the period when the Taliban controlled large parts of Afghanistan and declared the Islamic Emirate of Afghanistan ([Identity Number 1]). The last was issued in 2008 by the Islamic Republic of Afghanistan ([Identity Number 2]) and is a re-issue of the 1993 taskera. Copies of the two most recent taskeras and their English language translations are contained on the department and Tribunal files and the originals were produced at hearing. The only significant inconsistency in those documents is that taskera [Identity Number 2] states the applicant’s year or birth to be [Year 1], while the Taliban issued taskera [Identity Number 1] states it to be [Year 2]. The book and page number of the register in which the applicant’s birth is recorded is the same across both documents.

33. For the following reasons, I do not consider the inconsistencies in the applicant’s recorded date of birth indicate that the taskeras he has provided to the department are not genuine or that he is not an Afghan citizen.

34. Firstly, [in] July 2018 the Afghan Consul [named] of the Afghan Embassy in Canberra certified that the applicant’s 2008 taskera [Identity Number 2] is a verified and genuinely issued document and that the applicant is a citizen of Afghanistan. As document fraud is a major issue in Afghanistan and genuine documents can be issued based on false information, this is not a whole answer to the question of whether the applicant is entitled to be issued the document as an Afghan citizen[5]. However in conjunction with the matters below, the Afghan Consul’s verification of the taskera causes me to consider that the document is genuine and that the applicant is an Afghan citizen.

    [5] DFAT Country Information Report 27 June 2019 at 5.54

35. Secondly, it is important to note that the applicant has at all times drawn the department’s attention to the discrepancy between his claimed year of birth ([Year 2]) and his year of birth according to the taskera [Identity Number 1] which he produced to the department when he arrived in Australia in 2010:

    ·The written record of the entry interview [in] January 2010 records that the applicant stated that he was approximately [age] years old. He states that his father wrote on his taskera that he was born in [Year 1] so that he could delay his military service but he was actually born [five years earlier, in Year 2] and would like his birth year to be recorded as [Year 2];

    ·His protection visa application also records his year of birth as [Year 2], although that date is crossed out and replaced with a hand written notation stating ‘[Year 1]’. The delegate records in the RSA decision record that at an RSA interview [in] February 2010, the applicant stated he was born in [Year 3, which is one year later than Year 2] but his year of birth was registered as [Year 1] to avoid military service. I note that the solar hejri calendar is the official calendar of Afghanistan and that translating dates between that calendar and the Gregorian calendar commonly causes confusion and discrepancies in the year, as the solar hejri calendar year starts at the spring equinox (usually 21 or 22 March each year) rather than 1 January[6];

    ·The s.107 notice records that at his citizenship interview appointment held [in] June 2014, the applicant again asked that his year of birth be changed to [Year 2] and the applicant produced a taskera issued to him in 2008 which supported this ([Identity Number 2]);

    ·I note the statement in the s.107 notice to the effect that at the time of his arrival in Australia, the applicant provided his year of birth as [Year 1]. I am unable to locate any record on the department file that supports this statement. The earliest recorded information by the applicant that is contained on the departmental file is the record of entry interview dated [in] January 2010, two days after the applicant’s arrival.

    [6] Afghanistan Online n.d., Important holidays/occasions/festivities celebrated in Afghanistan at < Constitution of Afghanistan (2004), Article 18, Afghanistan Independent Human Rights Commission < >

36. Thirdly, the applicant has provided a consistent and coherent explanation of the circumstances which resulted in the two taskeras provided to the department showing different dates of birth:

    ·The applicant has explained that his father first took the family from Herat, Afghanistan to Mashad, Iran in 1982 when the applicant was about [age] years old and Afghanistan was under communist rule. Country information indicates that the Soviet war in Afghanistan lasted until 1989 and led 2.9 million Afghans to flee to Iran, where they were welcomed as mohajerin, being ‘citizens of a promised homeland where they would not face political or religious discrimination’[7]. The family registered with Iran’s Bureau for Aliens and Foreign Immigrant Affairs (BAFIA) and were issued with ‘blue cards’. Independent sources confirm that from 1979–92, most Afghans entering Iran were issued with ‘blue cards’ which indicated their status as mohajerin or involuntary migrants. Blue card holders were granted indefinite permission to stay in Iran legally[8]. Until 1995 blue card holders had access to subsidised health care and food and free primary and secondary education[9].

    [7] Morajev, Masuma Cross Cultural Adaptation Among Young Afghans Returning from Iran to Afghanistan University of Ottawa Fall-Winter 2013-14 at at 16 to 17

    [8] Afghanistan Research and Evaluation Unit 2008, Second-generation Afghans in Iran: Integration, Identity and Return, April, pp.5-6 < align="left">[9] Van Engeland-Nourai, A. 2008, ‘Repatriation of Afghan and Iraqi Refugees from Iran: When Home is No Longer Home’, International Journal on Multicultural Societies (IJMS) Vol. 10, No. 2, ‘The Conditions of Modern Return Migrants’, pp.149-50  UNESCO website < applicant has consistently stated that his family returned voluntarily to Afghanistan in 1993 after the collapse of the communist regime in Afghanistan.  This is consistent with country information indicating that after Afghanistan’s communist regime was defeated in 1989, 1.4 million Afghans voluntarily returned from Iran to Afghanistan. By 1993-1994, the Iranian government had come to see Afghan refugees as a social and economic burden rather than a coreligionist responsibility and was actively encouraging their repatriation[10].

    ·The applicant’s evidence is that upon indicating their intention to voluntarily return to Afghanistan, the family were issued Volunteer Repatriation Cards from BAFIA and holes were punched in their blue cards on their departure, indicating these cards were no longer valid. The family provided with some money, wheat and other goods by UN personnel as part of their return package. After the Taliban gained control of Herat in 1995 and the family were preparing to again leave Afghanistan, they destroyed the punched blue cards because his father feared the Taliban led government would cause problems for them if they knew they had been living in Iran as refugees. At hearing the applicant produced his sister’s original blue card, which was not destroyed as she married while the family was still resident in Iran and did not return with them to Afghanistan. A copy of that document has been placed on the Tribunal file.

    ·A taskera was obtained by the applicant’s father at some time after the family’s return in 1993. That document contained the same serial number as the 2008 taskera ([Identity Number 2]) and the 2008 taskera is a re-issue of the 1993 taskera. When obtaining the 1993 taskera, the applicant’s father stated the applicant was born in [Year 1] for fear that the applicant (who was then about [age] years old) would be conscripted into military service. His father did this because in the 1980s, the Afghan government recruited boys as young as 15 to fight against the mujahadeen. Country information confirms that the Soviet-backed Afghan government recruited child soldiers between the age of 10 and 15 years to act as soldiers and spies for the military in the 1980s. Following the Soviet withdrawal in 1989, Afghanistan’s conflict escalated into a civil war involving large numbers of children[11].

    ·After returning to Herat, the applicant was enrolled in grade [number] at [a named] School in Herat, having completed [an earlier grade] at [another named] Primary School in Iran in 1989/90. A record of the applicant’s enrolment in [the Iranian] School in 1989/90 academic year confirms he was enrolled in [the specified grade] at that time. The applicant states those records were obtained by his wife on her return to Iran in 2017. The department’s movement records confirm she was outside of Australia at that time, and copies of her Australian travel document including an Iranian visa confirm she returned to Iran during that period. Those education records record that the applicant was a citizen of Afghanistan and record the identity number of his father [named] and I accept the education documents to be genuine. The school records support the applicant’s claim to have been born in [the earlier year, Year 2] because if he had been born in [the later year, Year 1], he would have been much too young to have been enrolled in [the specified grade] in 1989/90.

    ·The Taliban took control of Herat in 1995 and the applicant’s father again began making plans to leave Afghanistan with his family. When he tried to obtain a passport for the applicant, the Taliban authorities would not issue the applicant a passport until he got a new taskera because they did not recognise the 1993 taskera which was issued by the Republic of Afghanistan under the presidency of President Rabbani. As the applicant was visibly older than [the age] recorded on the earlier taskera, the passport officers refused to issue the new passport recording his date of birth as [the later year, Year 1] and instead recorded his date of birth as [the earlier year, Year 2] as advised by his father.  I have viewed the original of this document, and a copy and English language translation has been submitted to the department and the Tribunal (taskera [Identity Number 1]).

    ·The applicant’s father took his family back to Iran in or about 1997, where they remained until about 2002 when the family returned to Afghanistan. Country information indicates that following the removal of the Taliban regime in 2001, a new hope for peace and security emerged among many Afghans who had been living outside of Afghanistan, resulting in the largest return of refugees in the recorded history of that country. Although Afghan repatriation had been part of Iran’s foreign policy for many years, it had until that time been implemented fairly leniently because the Iranian government needed the cheap Afghan labor force. However President Ahmadinejad later announced that no Afghan refugees would be living in Iran by 2004, creating a hostile environment for Afghan refugees[12]. The UNHCR commenced a repatriation program in 2002, reporting that Afghanistan witnessed one of its largest ever repatriation movements in that year alone, with more than 1.8 million refugees returning voluntarily to Afghanistan to re-establish their lives, including 300,000 from Iran[13].

    ·The applicant’s old Afghan passport expired and in about 2008 the applicant applied for another passport. To make that application he had to show the 1993 taskera issued by the Republic of Afghanistan under President Rabbani’s regime because the passport officials would not accept the taskera issued under the Taliban’s now-defunct regime in 1997 (taskera [Identity Number 1]). For this reason the passport was issued showing the date of birth on his 1993 taskera. He was told by the issuing officer in Herat that only the authorities in Kabul could change his date of birth.

    ·In [year] his eldest [child] [named] was born and in about 2008 the applicant and his wife again decided to leave Afghanistan. In [2008] the applicant applied for a taskera for his [child] and at the same time the applicant approached the taskera issuing office in Herat, showing both his 1993 and 1997 taskeras and explaining the reasons his father had incorrectly recorded his year of birth in the 1993 taskera. Although the applicant asked the issuing authority to change his date of birth to [the earlier year, Year 2], they refused to do so telling him it required changing the records in the central registry in Kabul. He was told that he would have to travel to Kabul to change his date of birth in that register, which would eventually be communicated to the registry in Herat which would then alter its register. He had no choice but to accept [the later year, Year 1] as his date of birth in order to renew his taskera in Herat and that document is numbered [Identity Number 2] and was issued [in] 2008.

    ·DFAT reports that the National Statistics and Information Authority (NSIA) in Kabul is the authority responsible for issuing taskeras. It reports that NSIA field officers manually record the details of births in two registers simultaneously. When the registers become full, both are sent to NSIA headquarters in Kabul where they are checked against each other before being logged. One register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul[14]. I consider the applicant’s account of his difficulties amending the date of birth shown in his taskera in Herat are consistent with the country information about how taskeras are issued and logged.

    ·The applicant has also submitted copies of the taskeras and English language translations issued to his parents, wife, sibling and eldest [child]. The originals were viewed by me at hearing. The details in those documents are consistent with the applicant’s statements about his family’s composition and nationality. He has explained that before leaving Afghanistan he scanned the family’s renewed taskeras and saved them on a USB, but destroyed the Taliban issued documents because he feared that if Afghan officials saw them it would cause difficulties for them.

    [10] Morajev, Masuma Cross Cultural Adaptation Among Young Afghans Returning from Iran to Afghanistan University of Ottawa Fall-Winter 2013-14 at at 18

    [11] Tallon, E A Special Report on Child Soldiers in Afghanistan 20 June 2019 at < Morajev, Masuma Cross Cultural Adaptation Among Young Afghans Returning from Iran to Afghanistan University of Ottawa Fall-Winter 2013-14 at at 16-20

    [13] UNHCR UNHCR Returnee Monitoring Report Afghanistan Repatriation January 2002 to March 2003 at

    [14] DFAT Country Information Report 27 June 2019 at 5.46-5.48

1. For the above reasons, I accept the applicant’s account of his movements between Afghanistan and Iran. I consider he has been open with the department about the inconsistencies in the documentation as to his date of birth and his evidence is materially consistent with available country information about the movement of Afghan refugees into and out of Iran between 1989 and 2002. I also give significant weight to the Afghan Consul’s certification that the applicant’s 2008 taskera [Identity Number 2] is a verified and genuinely issued document and that the applicant is a citizen of Afghanistan.

   The applicant’s evidence as to his time in Iran and his exits from that country

2. The s.107 notice sets out that the applicant claimed to have spent the majority of his life living in Iran, but was unable to provide any definitive information or documentation regarding his status in that country. The applicant had advised that his second arrival in Iran was illegal and he did not enter a refugee camp, but stayed at a relative’s house before renting his own house. He claimed that he did not apply for refugee status because he would have been deported if he had done so and his wife and her family had lived in Iran as documented refugees for many years, which contradicted his statement that he would have been deported if he had applied for refugee status.

3. The s.107 notice sets out that the applicant claimed that he did not have any interactions with the Iranian authorities during the period he lived in Iran and the Iranian authorities had no reason to suspect him as he did not look or sound Afghan. He stated that he did not require documentation when re-entering Afghanistan because he could be identified as Afghani from his face, accent and demeanour.

4. The s.107 notice sets out that the applicant stated he never approached the Iranian government to obtain temporary registration documentation due to his fear of being deported and was allowed to freely cross the border by completing a form and providing two photos. The s.107 notice sets out that the identity assessor considered this indicated the applicant had an established profile and immigration history with the Iranian authorities which would have been cross-referenced on his return to Iran. The identity assessor considered that this, together with the applicant’s claims to have attended a government school in Iran, made the applicant’s claims to be an undocumented refugee in Iran implausible.

5. For the reasons set out in detail above, I consider the applicant’s evidence as to his entry and residence into Iran to be highly consistent with available country information. I accept the family were registered as refugees and issued with blue cards during their first period of residence between 1982 and 1993. Those blue cards were cancelled when they voluntarily departed Iran and returned to Afghanistan in 1993. By the time of their second entry in about 1997, attitudes towards Afghan refugees in Iran had hardened and blue cards were no longer available to them. The applicant and his family had obtained Afghan passports and taskeras from the Taliban led government upon their return which they used to enter Iran and were not granted any official status during their second period of residence. After the family’s second return to Afghanistan in 2002, the applicant returned to Iran to meet and later marry his wife on a genuinely issued Afghan passport. Nothing about the applicant’s movements between Afghanistan and Iran causes me to consider that he is not an Afghan national as claimed.

   The applicant’s evidence as to his education history in Iran

6. The s.107 notice sets out that the applicant stated at his entry interview that he attended the [named] School in Mashad, Iran for [number] years. He stated this was a government school and he was not required to provide any documentation to enrol in or attend that school. The s.107 notice sets out that the identity assessor noted country information suggesting that in order to attend school, children must provide a shenesnameh (Iranian birth certificate) or alternative proof of residence for non-citizens. The notice stated that as Iran is a highly documented and regulated society the concept of children being able to attend school without identification is implausible.

7. However the written notes of the entry interview record that the applicant stated that he resided in Iran legally between 1981 and 1993 as the holder of an identity card, which was handed in when the family departed Iran the first time. The materials before me do not indicate he was asked any further questions about that nature of that identity card during the RSA process.

8. In material submitted to the Tribunal, the applicant states that the identity card was a BAFIA issued ‘blue card’, issued to Afghan nationals living as refugees in Iran. As noted above, country information confirms that a blue card is a residence permit given to Afghans in Iran between 1972 and 1992, which gives indefinite permission to stay in Iran legally. Until 1995 blue card holders had access to subsidised health care and food and free primary and secondary education[15].

   [15] Van Engeland-Nourai, A. 2008, ‘Repatriation of Afghan and Iraqi Refugees from Iran: When Home is No Longer Home’, International Journal on Multicultural Societies (IJMS) Vol. 10, No. 2, ‘The Conditions of Modern Return Migrants’, pp.149-50  UNESCO website <>

   Independent sources confirm that by the time the family returned to Iran in 1997 following the rise of the Taliban, tolerance for Afghan refugees had dropped dramatically and they were regarded as illegal aliens and threatened with mass deportations. The old BAFIA issued blue cards had been replaced with more restrictive green cards, which were in the process of being systematically removed from Afghan refugees and replaced with one-way permits for return to Afghanistan, leaving many previously registered Afghan refugees joining the ranks of undocumented refugees[16].

   [16] US Committee for Refugees 1994, World Refugee Survey 1994 – Iran; US Committee for Refugees 1994, World Refugee Survey 1995 – Iran; US Committee for Refugees and Immigrants 1998, World Refugee Survey 1998 - Iran, 1 January < US Committee for Refugees and Immigrants, 1999, World Refugee Survey 1999 - Iran , 1 January  <

9. I consider the applicant’s evidence to be materially consistent with country information about the situation for Afghan refugees resident in Iran at the time. I am satisfied that as the holder of a blue card during his first period of residence in Iran, the applicant had access to primary and secondary education in Iran. I am satisfied that his evidence about his education is consistent with his claim to be a documented Afghan refugee in Iran.

   The applicant’s evidence as to his employment in Iran

10. The s.107 notice sets out that the applicant stated at his entry interview in 2010 that he worked as [an Occupation 1] for his cousin’s business between 1988 and 1993, but when questioned about this at his identity interview in 2014 he stated that he worked for other Afghanis that his father knew and later stated that his cousin co-owned the business with an Iranian citizen. The s.107 notice sets out that the identity assessor considered this was an intentional omission as the applicant knew that business ownership in Iran was restricted to Iranian citizens and an attempt by the applicant to avoid being linked to an Iranian citizen.

11. The written notes of the entry interview record that the applicant stated that between 1988 and 1993, the applicant worked as [an Occupation 1] in Iran at a business owned by his cousin. In his RSA application, he states that he worked as [an Occupation 1] shop assistant but doesn’t recall the name of his employer. The materials before the Tribunal don’t suggest the applicant was asked to provide any further details of his employment in Iran during the RSA process.

12. In pre-hearing submissions and at hearing the applicant stated that his [cousin] was an experienced [Occupation 1] from Afghanistan who needed to work in Iran. As the holders of blue cards, their work rights were restricted and they were not allowed to own businesses in Iran. As a result his cousin entered into an arrangement with an Iranian citizen in which the Iranian citizen was the legal owner of the business, while his cousin did the work and paid a portion of the profits to the owner. Country information confirms that holders of blue cards were barred from owning their own businesses and their employment was limited to low-wage, manual labour[17]. In such circumstances I accept the applicant’s evidence as to that arrangement.

    [17] Van Engeland-Nourai, A. 2008, ‘Repatriation of Afghan and Iraqi Refugees from Iran: When Home is No Longer Home’, International Journal on Multicultural Societies (IJMS) Vol. 10, No. 2

    Other matters

13. [In] April 2014 the applicant changed his name from [his previous name] to [his current name, by removing his First Name] at the Registry of Births, Deaths and Marriages. The applicant gave evidence he did so because [the First Name removed had a negative connotation] in Dari and Persian.

14. Departmental movement records show the applicant has departed Australia on three occasions since arriving in 2010. At hearing he told me that on each trip he travelled to see his parents in [another country], both of whom have since died. His Australian travel documents confirm this to be the case, showing entry and exit stamps for [that country] on each occasion.

    CONCLUSIONS AS TO IDENTITY

15. Having considered each of the matters raised in the s.107 notice, I am satisfied the applicant’s identity is as claimed. I accept he is an Afghan national born in [Year 2] who lived as a documented refugee in Iran between about 1982 and 1993 and then as an undocumented refugee in that country between approximately 1997 and 2002. I accept that the identity documents he has presented to the department and the Tribunal are genuine, notwithstanding the discrepancies about his date of birth. For the reasons given above, I find his identity is [current name] (formerly known as [previous name]), Afghan national, born  [on date].

16. 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 and the decision under review must be set aside.

    DECISION

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

    Alison Murphy
    Member