1801316 (Refugee)

[2020] AATA 718

1801316 (Refugee) [2020] AATA 718 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801316

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Nicole Burns

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2020 at 1:53pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ground for cancellation – incorrect information in visa application – place of birth – nationality – Pakistani citizenship – date of birth – name – claimed fears of harm – Hazara Shia in Afghanistan – information in brother’s partner visa application – credible oral evidence – independent country information – ability for Afghan refugees to obtain Pakistani citizenship – Pakistan Citizenship Act – registering birth dates in Afghanistan – Afghan naming conventions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

CASES
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 27 November 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. She attended the 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 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 a Notice of Intention to Consider Cancellation (NOICC) dated 20 June 2017 and another notice dated 28 August 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 provided a statutory declaration in response to the first NOICC dated 4 July 2017 and his representative provided a written submission.  In response to the second NOICC the representative provided a further submission dated 11 September 2017 along with a statuary declaration from the applicant of the same date.

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. As noted, there are two NOICCs in this case.  In the second notice the delegate states that the first notice ‘contained similar particulars of the visa holder’s possible non-compliance with section 101, except the first notice did not contain the information in paragraphs 13, 14 and 15 and the first notice stated that the visa holder’s education in Pakistan was further evidence that he is a citizen of Pakistan’.  The Tribunal takes the second notice dated 28 August as the relevant notice, but has had regard to the responses to both notices in determining whether the grounds for cancellation have been made out.

12. 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 on 3 December 2010.

13. The notice recounts information the applicant provided in a written statement dated 6 July 2010 as part of his Refugee Status Assessment (RSA), and certain answers on the Protection visa application form (866C) which are alleged to be incorrect. 

14. Specifically, the notice refers to the fact that the applicant had declared that he was born in Afghanistan on [date], did not have any other citizenship or a right to live in Pakistan, and was seeking protection in Australia so that he does not have to go back to Afghanistan as a Hazara Shia.  In response to questions 42 to 46 on the protection visa 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 RSA statement of claims.  In that statement the applicant stated that he was [Given name 1] [Surname 1][(‘the applicant’)]; a Hazara Shia; feared to be at risk of harm if forced to return to Afghanistan because of his race and religion; feared persecution if returned to Afghanistan due to his religion and ethnicity; and did not have a right to live in Pakistan.

15. The NOICC records that the applicant’s protection visa was granted on 8 December 2010 on the basis of these claims: specifically as an Afghani citizen who feared persecution in that country for reasons of his Hazara ethnicity and Shia Muslim religion.

16. The notice then goes on to record the alleged non-compliance.  Specifically information the Department had received in respect of a person called [Mr A] (born on [date]) who was a Pakistani citizen and allegedly the applicant’s brother.  The notice records further that in [Mr A]’s partner visa application to Australia it stated that he had a brother named [Given name 1] [Surname 2] [(‘Mr B’)], born on [date] in Hazara Town, Quetta, Pakistan.  Additionally, the applicant had a [social media] profile in the name of [Alias 1 (which is a slight variation of Mr B)].  Based on this information, and country information that indicates that every person born in Pakistan after the commencement of the Pakistan Citizenship Act, 1951 shall be a citizen by birth, the delegate formed the view that the applicant was a Pakistani citizen called [Mr B], who was born in Pakistan on [date], not an Afghani citizen called [the applicant] born on [date] in Afghanistan as stated in his protection visa application.

17. As a result, the delegate concluded that the applicant had provided incorrect information in his protection visa application about his place of birth, nationality, date of birth, name and fears of harm as a Hazara Shia from Afghanistan.

    Response to the NOICC

18. The applicant’s responses to the notice were in the form of statutory declarations dated 4 July 2017 and 11 September 2017 accompanied by written submissions from his representative of the same dates. 

19. In these statutory declarations the applicant states that he did not provide incorrect information in the protection visa application as set out in the notice.  He stated, in summary, as follows:

    ·He was born in Afghanistan, in [Village 1], [District 1], Dai Kundi.

    ·When he was young he and his biological parents, grandparents and brother [Mr C] fled to Pakistan from Afghanistan.

    ·He was told by family members that his biological father acquired a Local Certificate and National Identity Card (NIC) through the Pakistani authorities.  He does not know how but thinks he paid for them.

    ·His brother [Mr A] was born in Pakistan and issued a Pakistani birth certificate.

    ·Whilst the applicant was still young his biological mother ([Ms D]) died.  His biological father ([Mr E]) remarried shortly after to a woman named [Ms F] and they had a child – [Ms G] – together.  However his biological father died before [Ms G] was born.  [Ms F], the applicant’s stepmother, remarried soon after to a man called [Mr G].  [Ms F] and [Mr G] had a son, [Mr H]. 

    ·The applicant’s stepparents – [Ms F] and [Mr G] – were both born in Afghanistan and did not hold Pakistani citizenship.

    ·The applicant was raised by [Ms F] and [Mr G], his stepparents, but he referred to them in official documents as his parents.

    ·When the applicant was young he did not need identity documents in Pakistan.  In his [age range] he applied for a Pakistani NIC relying on his biological father’s Local Certificate and NIC.  However these documents had been altered by the applicant’s stepfather ([Mr G]) to include the applicant’s biological father’s details as his own (he also paid money to an agent).  The applicant’s NIC application was refused because he could not provide a (Pakistani) birth certificate, had not applied at 18, and because of discrepancies between his date of birth (DOB) and his stepfather’s DOB as recorded in the Local Certificate: specifically that they were only [number] years apart.

    ·[Mr A]’s wife came to Australia on a humanitarian visa then sponsored [Mr A].  She completed his visa application based on documents [Mr A] had given her, including the family’s Pakistani Local Certificate.

    ·Regarding his surname, in Afghanistan the applicant was only referred to as ‘[Given name 1]’.  On various documents he sometimes used [Given name 1] then his father’s name. In Australia he gave [Given name 1] as his name and put [Surname 1] as his surname (as a Shia Muslim), which was subsequently recorded in all his official documents.  On [social media] he referred to ‘[Alias 1]’ because his son’s name is ‘[Surname 2]’, it [has certain characteristic], and common. 

    ·When completing his brother’s (Partner visa) application, his wife picked ‘[Surname 2]’ as his (and his other sibling’s) surname, because they did not have one.

    ·To enrol the applicant in school in Pakistan his stepfather used the Local Certificate (which initially belonged to the applicant’s biological father).

20. Supporting documents provided by the applicant to the Department in response to the s.107 notice included:

    ·A translated copy of the applicant’s family’s Local Certificate dated [in] 1989 issued by the Office of Deputy Commissioner, District Quetta.

    ·The applicant’s family tree.

    ·Copies of a selection of the applicant’s Pakistani school certificates.

21. On 10 January 2017 the delegate decided to cancel the applicant’s visa.  In the decision record the delegate noted the matters set out in the s.107 notice and assessed the applicant did not comply with s.101(b) of the Act.  The decision records that the delegate considered the applicant’s response to the s.107 notice but did not consider it credible.  The delegate found the applicant was a Pakistani citizen but had incorrectly stated he was an Afghan citizen in his visa application, among other matters.

22. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate recorded that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

23. On review the applicant provided a detailed statutory declaration dated 19 November 2019 in which he disputes the delegate’s findings that the cancellation grounds were made out, as does the representative in her written submission provided to the Tribunal.  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 (step) father’s ([Mr G], born in [year]) Computerised Pakistani National Identity Card (CNIC) issued [in] 2012.

    ·A translated copy of the applicant’s biological father’s ([Mr E]) and stepmother’s ([Ms F]) marriage certificate showing they married [in] January 1990 in Quetta, Pakistan.

    ·Additional school certificates relating to the applicant.

    ·[Mr C]’s school certificate.

    ·[Mr A]’s school and birth certificates.

    ·A translated copy of a ‘Notice of Express of Reasons under Article 18 NADRA Ordinance 2000’ dated [in] 2017 addressed to [Mr G] advising that he is not eligible to hold the identity card that he has obtained.

24. 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 his name, DOB, place of birth and nationality as stated at the protection visa application stage are correct.  He said it appears that the main concern the delegate had in his case relates to minor mistakes made in an application for a partner visa by [Mr A]’s wife, around five years ago.  At the time she had erroneously stated that the applicant was born in Quetta, Pakistan, his name was [Mr B], and his DOB was [date].  She did so because she was not fully aware of their complex family history and each sibling’s nationality status and place of birth, and made assumptions in this regard, based on some information provided by [Mr A].  Also based on other documents [Mr A] gave her including a copy of the applicant’s family’s Pakistan Local Certificate which listed the applicant (and others) as having been born in Quetta, which was not true (the certificate had been altered by the applicant’s stepfather after his biological father died).  As [Mr A] had been born in Quetta, his wife assumed the applicant had also been.  As to why she listed the applicant’s name as ‘[Mr B]’ in that application form, the applicant explained that was because at the time she had to provide a surname for her husband and he chose ‘[Surname 2]’ – she then copied the same surname for all of [Mr A]’s siblings in the form, even though none of them go by that surname, only having one name in Pakistan (and prior to that in Afghanistan) as is custom for Hazaras.

25. By way of context and background the applicant explained his family history, which is complex (as set out in earlier statutory declarations provided by the applicant to the Department and Tribunal, summarised in paragraph 19 of this decision record).  He said he was born in Afghanistan, and moved to Quetta, Pakistan when around [age] years of age due to insecurity in Afghanistan along with his mother ([Ms D]), father ([Mr E]) and older brother ([Mr C]: who was killed subsequently in Quetta sometime between 2007 and 2009).  In Pakistan his parents obtained Pakistani NIC and a Local Certificate, most likely by paying an agent which was common practice with Afghani Hazaras in Pakistan at the time.

26. In Pakistan the applicant said his parents had another son, [Mr A], who was issued a Pakistani birth certificate and was later able to obtain Pakistani citizenship (and a Pakistani NIC and passport). His mother died not long after and his father remarried a woman called [Ms F] who was also from Afghanistan residing in Pakistan.  The applicant’s father and [Ms F] had a daughter, [Ms G], who migrated to [Country 1] on a partner visa a number of years ago.  Not long after, the applicant’s father died – the result of a [workplace] accident – and [Ms F] re-married a man called [Mr G], who is also a Hazara from Afghanistan residing in Pakistan.  They had a son, [Mr H].  [Mr G] – the applicant’s stepfather – altered the applicant’s biological father’s NIC and Local Certificate to hold himself out as a Pakistani citizen in Pakistan: this included the children’s (including the applicant’s) names and years of birth.

27. The applicant told the Tribunal that [Mr A] was the only one of his siblings who obtained Pakistani citizenship (relying on his Pakistani birth certificate and their father’s fraudulently obtained NIC and Local Certificate).  He said it was easy at the time, before the system was fully computerised.  The applicant’s younger siblings – [Ms G] and [Mr H] – although born in Pakistan never tried to obtain NICs once the system became computerised, and they (and  their parents) were worried more questions would be asked, due to issues with the Local Certificate.  Also because their (step) father had received a couple of letters from the Pakistani authorities asking him to verify his NIC: he did not respond (and has been in Australia since around four years prior to the hearing). The last letter – which the applicant provided to the Tribunal – was sent in 2017 to the applicant’s stepmother’s house in Quetta which she has forwarded to the applicant.  (The applicant told the Tribunal his stepmother – [Ms F] - has been residing in [Country 2] for the last five months prior to the hearing).

28. The applicant’s efforts to obtain an NIC in Pakistan in his early [age range] were unsuccessful: he said largely because he was unable to provide a birth certificate, and due to inconsistent DOB in the family’s Local Certificate and his school certificates.  He said the reason his (step) parents changed his DOB in this way was to show a gap of at least a year between him and his siblings when enrolling him at school.  

29. The applicant said up until around 20 he did not really need his own ID in Pakistan: instead he relied on his family’s Local Certificate which was used to enrol him in school.  After school he studied [Discipline 1] courses: as the courses were private, he did not need to show ID.  He also worked as a [Occupation 1] in Quetta, which did not require ID. 

30. After the hearing the applicant’s brother, [Mr A], provided a statutory declaration to the Tribunal dated 3 December 2019 in which he reiterates the applicant’s evidence about their family’s complex background and composition, his wife’s mistakes (and reasons for them) when lodging a partner visa application, and other matters, discussed where relevant below. 

    Findings on non-compliance

31. The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, the applicant’s statutory declaration and oral evidence to the Tribunal, [Mr A]’s statutory declaration provided 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]

1. 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. 

2. As mentioned, the NOICC records that the applicant allegedly provided incorrect information about his:

   a.place of birth and citizenship

   b.DOB

   c.Name

   d.Claims/fears as a Hazara Shia in Afghanistan

3. The Tribunal has considered these matters separately, below.

   The applicant’s place of birth and citizenship

4. In this case the applicant claims to have been born in Afghanistan to Afghani parents, and was an Afghan refugee resident in Pakistan for many years prior to his protection visa application.  However the Department believes him to have been a Pakistani citizen of Afghan heritage.

5. At issue is whether the applicant is a citizen of Afghanistan or Pakistan and, depending on the answer to that question, whether he provided incorrect information in his protection visa application in that respect. 

6. The applicant has consistently claimed to have been born in Afghanistan, moved to Pakistan when around [age], and thereafter lived in Pakistan (until he came to Australia in early 2010). 

7. Before the Tribunal (and in response to the NOICC) he explained that his biological father (fraudulently) obtained a Pakistani NIC and a Local Certificate – like a domicile certificate for residents of Quetta – which listed the applicant and his siblings as family members, and was used to enrol the applicant in school. Otherwise, particularly when young, the applicant claims he did not need Pakistani identity documents.  When he tried to obtain them, in his early [age range], he was unsuccessful, in large part due to discrepancies that arose between his family’s Local Certificate and his school documents.  He acknowledged that he has a brother – [Mr A] – who is a Pakistani citizen and migrated to Australia on a Partner visa around five years ago.  He claims [Mr A] was able to acquire Pakistani citizenship because he was born there (among other reasons) but that he is the only one out of his siblings (including stepsiblings and halfsiblings) who has done so. 

8. The applicant has also claimed that when he was young his stepfather modified his biological father’s Local Certificate and NIC by placing his name, DOB and photograph on the documents and paid money to an agent. He states this was easy to do at the time because documents were handwritten and there was no central filing system. 

9. The Tribunal notes in this case the delegate did not accept the applicant’s account in this respect, including his evidence that his biological parents died, remarried, and his stepfather assumed (and altered) his father’s Pakistani identity documents.  This was due to a number of reasons including the fact the applicant referred to his stepparents – [Mr G] and [Ms F] – as his parents in his protection visa application as did [Mr A] in his partner visa application.  Also because it was stated in [Mr A]’s application that [Mr G], [Ms F] and the applicant were born in Pakistan, not Afghanistan.  As well, the delegate considered the family’s Local Certificate (issued by the Deputy Commissioner’s office, Quetta) and his (step) father’s NIC were genuine documents, not fraudulently obtained as claimed by the applicant.  The delegate considered the Local Certificate to be ‘credible evidence’ that [Mr G] is a citizen of Pakistan, and the applicant’s father.  He also gave weight to the fact that [Mr A]’s Pakistani birth certificate indicates that his father, [Mr G], holds a CNIC, and that [Mr G]’s grandfather and brother also allegedly hold CNICs. 

10. In his statutory declaration provided to the Tribunal the applicant argued that whether or not [Mr G] is a citizen of Pakistan is irrelevant to his case, given he is not his biological father.  Also, he believes the Local Certificate held by [Mr G] was fraudulently obtained because:

    a.[Mr C], [Mr A] and the applicant all have only a year of birth recorded (and not a date and month): if it was genuine it should have included their full DOBs.

    b.[Mr H], the youngest sibling, was listed fourth on the Local Certificate however he should have been listed fifth given he was born after [Ms G].

    c.[Mr H’s] DOB is illegible.

11. The applicant argues further that with a Local Certificate [Mr G] would have been in a position to obtain further identity documents, including a CNIC.  He noted that in 2017 [Mr G] was issued with a letter by the Ministry of Interior National Database and Registration Authority in Pakistan which stated that he was not eligible to hold the identity card he had obtained due to one of four reasons, including ‘the country’s security agencies have declared that you are a foreigner, non-national’. 

12. Given the high levels of corruption in Pakistan where it is possible to obtain genuine documents with false content by bribing government employees, the representative submits the applicant’s explanation about how his parents obtained (then altered) these Pakistani ID documents, including the Local Certificate, is plausible. 

13. As to why the applicant (and [Mr A]) failed to record their stepparents as such in their respective visa applications, the applicant explained that is because his biological parents died when they were still young, his stepparents raised them and they referred to them as their parents thereafter, including in official documents such as school documents.  As such, in his protection visa application he thought to include their names because it aligned with the names of his parents in all the relevant documents to be the correct response.  

14. Having regard to the totality of evidence before it, including the credible oral evidence of the applicant, and country information about relevant matters such as the prevalence of document fraud in Pakistan (discussed in more detail below) the Tribunal is satisfied that the applicant was born in Afghanistan and moved to Pakistan with his family when young where his father fraudulently attained Pakistani identity documents, which his stepfather subsequently altered and used.  The reasons for this conclusion include the following considerations.

15. Country information supports the contention that there is a strong incentive for Afghan nationals residing as refugees in Pakistan to obtain non-genuine Pakistani identity documents in order to avoid harassment from the Pakistani authorities and to obtain access to government-run services including health and education, those government-run services being reserved primarily for Pakistani nationals. In that regard, DFAT’s most recent report indicates Pakistan is host to approximately 1.4 million registered Afghan refugees and an estimated one million unregistered Afghan refugees. A third group of Hazaras are Pakistani nationals entitled to hold CNICs and other Pakistani identification documents.[2]

    [2] DFAT Country Information Report: Pakistan, 20 February 2019 at 3.49 – 3.58

16. 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. [3] According to DFAT, the National Database and Registration Authority (NADRA) is putting in place measures to combat the fraudulent issues of documents, and can cancel fraudulent CNICs.  DFAT reports that the incidence of document fraud in Pakistan has been reduced because CNICs, SNICs (Smart National Identity Cards) and passports contain a number of security features.[4]  However document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA.   They also state that fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents.[5]

    [3]

    [4] Ibid at 5.70

    [5] Ibid at 5.71

17. With respect to domicile certificates – the Local Certificate the applicant has provided in this case – DFAT states as follows:

    A domicile certificate is a document containing information about a person’s place and date of birth. These certificates are legally obtainable only by people resident in Pakistan, but are easy to obtain illegally. NADRA or the deputy commissioner of a district can issue domicile certificates. Between 2002 and 2009, local governments also issued domicile certificates.[6] [Tribunal emphasis]

    [6] DFAT Country Information Report: Pakistan, 20 February 2019 at 5.67

18. DFAT also states that NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.[7]  Also that fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.[8]

    [7] Ibid at 5.72

    [8] Ibid at 5.74

19. Corruption is also common, according to DFAT in their latest Pakistan country information report, although the authorities have made efforts to stem it, with DFAT concluding that government efforts have reduced the incidence of bribery and fraud, but not eliminated it.[9] in around 2017 NADRA 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.[10] 

    [9] Ibid at 5.76

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

    In view of the country information cited above, together with the Tribunal’s finding (below) that it is unlikely that the applicant could have become eligible for Pakistani citizenship through any lawful means, the Tribunal accepts his claims about his place of birth, family background and composition, and situation and status in Pakistan. It accepts his father obtained their family’s Local Certificate by fraudulent means, which was used to enrol him in school (as well as his father’s NIC).  The Tribunal accepts that after his father’s death his stepfather altered the NIC and Local Certificate, and used those identity documents as his own.  It also accepts that the applicant never obtained an NIC for himself, although he tried once in his early [age range].  The applicant’s oral evidence to the Tribunal about his background, life in Afghanistan (and Pakistan), and family composition and their experiences was spontaneous, detailed and consistent with his written response to the NOICC and corroborated by the written testimony of his brother, [Mr A].  In reaching this conclusion the Tribunal also notes and has given weight to the following considerations:

    a.The applicant returned to Pakistan in 2012/2013 on an Australian travel document (titre de voyage) containing a Pakistani visa, which the Tribunal cited at hearing. The Tribunal is satisfied he used this document to enter and exit Pakistan at the time, which would not make sense if he was a Pakistani citizen.

    b.On the Departmental file is a copy of the applicant’s identity assessment dated 27 February 2017.  It notes, among other things, that when [Mr A]’s father – [Mr G]’ (who purportedly arrived in Australia as an IMA [in] March 2013) – was questioned about his nationality he told the Departmental officer that he assumed his ex-wife’s husband’s Pakistani identity under the name of [Mr E] and that the applicant and [Mr A] were his stepsons.  This information is consistent with the applicant’s account about moving to Quetta, Pakistan from Afghanistan when young where his Afghani parents fraudulently obtained NIC and Local Certificate, subsequently altered by his stepfather ([Mr G]) after his father ([Mr E]) died.

    c.The applicant has provided to the Tribunal a translated letter from the Ministry of Interior National Database and Registration Authority in Pakistan which states that his stepfather was not eligible to hold the identity card he had obtained due to one of four reasons, including ‘the country’s security agencies have declared that you are a foreigner, non-national’.  This supports the applicant’s account in this regard, in particular that his stepfather altered his biological father’s NIC. 

    d.Having regard to the translated copy of the Local Certificate in question provided, it is clear there are some elements which raise questions about its authenticity, including the fact that [Mr H]’ DOB is illegible and the others’ full DOBs are not listed, except for [Ms G], as submitted.  The Tribunal notes DFAT’s advice as set out above that domicile certificates are easy to obtain illegally.

20. Having found the applicant was born in Afghanistan, and moved to Pakistan when young, the Tribunal has considered independent country information about the situation for Afghan refugees in Pakistan and their ability to obtain citizenship to determine whether it is likely that the applicant acquired Pakistani citizenship after his arrival in Pakistan from Afghanistan.    

21. The Tribunal accepts the applicant is a Hazara from Afghanistan who moved to Pakistan when he was [age], in around 1988 (or possibly earlier, depending on when he was born which is not clear as discussed further below).  In a thematic report about Hazaras in Afghanistan and Pakistan published in 2014, DFAT reports the Hazara ethnic group has lived in Pakistan for centuries and those who are Pakistani citizens can access formal identification such as CNICs.  According to DFAT the Pakistani government recognised the Hazara tribe as ‘local’ in 1962 and Hazaras resident in Pakistan at that time became citizens of Pakistan.[11]

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

22. However, DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani NICs required to access government and other services.[12]  As the applicant and his family did not arrive in Pakistan until around 1988 (depending on when he was born, as noted), the Tribunal is not satisfied they would have been able to obtain citizenship by way of the Pakistani government’s recognition of Hazaras as ‘local’ in 1962.

    [12] Ibid

23. The Pakistan Citizenship Act, 1951 provides that an individual may also obtain Pakistani citizenship by birth, descent, migration, marriage or naturalisation. For the reasons set out above the Tribunal has found the applicant was born in Afghanistan and therefore it is satisfied that he is not a Pakistani citizen by birth. The Tribunal has gone on to consider whether the applicant may have later obtained Pakistani citizenship by marriage, migration or naturalisation.

    Citizenship by migration

24. Section 6 of the Pakistan Citizenship Act, 1951 provides that the Federal Government may register as a citizen of Pakistan by migration any person, who after the commencement of that Act and before 1 January 1952, migrated to the territories of Pakistan from any territory in the Indo-Pakistan sub-continent, with the intention of residing permanently in the territories of Pakistan.  As the applicant arrived in Pakistan after 1 January 1952, the Tribunal is satisfied he is not entitled to citizenship under this section of the Pakistan Citizenship Act, 1951.

    Citizenship by naturalisation

25. Section 9 of the Pakistan 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.[13]

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

26. 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.[14]

    [14] EUDO Citizenship Laboratory Report on Citizenship Law: Pakistan December 2016,  

27. 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.[15]

    [15] 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

28. 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.[16]

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

29. The Tribunal also notes in the NOICC the delegate referred to article 4, the Pakistan Citizenship Act, 1951: every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth. However according to country information this does not extend to Afghan children born in Pakistan, or even born to one Pakistani parent. Independent sources indicate that while children born in Pakistan with one Pakistani parent should be eligible for citizenship under the Pakistan Citizenship Act, 1951 by birth and descent, in practice they are not recognised as citizens. In August 2016 Pakistan’s Interior Minister told parliament that Afghan children born in Pakistan do not qualify for citizenship, even those born to a Pakistani mother and an Afghan father[17]. An August 2016 article in The Nation states:

    The minister went on to clarify that the children of Afghan refugees were Afghans and not entitled to the privilege, even if their mothers were Pakistani citizens. Interestingly, under the Pakistan Citizenship 1951 Act, as originally in force, any person born in Pakistan after commencement is a citizen of Pakistan. This birthright citizenship has not been extended to the Afghan refugees at any point in history due to political and security reasons. According to a clause of the 1951 Act citizenship may also be concurred by descent if one parent has the Pakistani Citizenship. But the parent referred to in this clause is the father and not the mother, and thus even though the mothers of the children of the Afghan refugees may be Pakistani, she forfeits the right to demand a citizenship for her child when she marries a non-Pakistani.[18]

    [17] ‘Afghan refugees’ children can’t get CNICs: Nisar’, Dawn, 11 August 2016; ‘Afghan refugee repatriation threatens to tear marriages apart’, News Lens, 16 August 2016; ‘Which way home?’, Geo TV (News), 17 January 2017

    [18] ‘No Leave To Remain’, The Nation (Pakistan), 12 October 2016

1. Other sources confirm that children born to Afghan refugees in Pakistan are denied citizenship:

   No statutory provision of law expressly deals with status of citizenship of refuges and especially, Afghan refugees in Pakistan. With regards to citizenship by birth the case of Afghan Refugees is of special importance, as the status of citizenship is not extended to them even if a child of a refugee is born in Pakistan[19].

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

2. Given such country information, the Tribunal considers it unlikely the applicant, as an Afghan refugee who arrived in Pakistan as a child to Afghan refugee parents in around 1984–1988, could have become eligible for Pakistani citizenship through any lawful means. 

   Citizenship by marriage

3. At hearing the applicant said his wife comes from the same community as he does in Afghanistan, although they met and married in Quetta around 2003/04.  She did not have ID documents in Pakistan.  Prior to migrating to Australia (with their eldest son) in 2012 or 2013 she was able to obtain an Afghan taskira (identity document) and Afghan passport after travelling there with her father beforehand. 

4. As noted earlier, the Departmental file in this case contains a copy of the applicant’s identity assessment where some concerns about the applicant’s wife’s claimed citizenship are noted.  However the delegate fails to mention any such concerns in the NOICC (or the delegate’s decision record).  Furthermore, in the decision record to cancel the applicant’s wife’s visa dated 16 January 2018[20] ‘Afghanistan’ is recorded as her citizenship.  Although not entirely clear, even if the applicant’s wife is a Pakistani citizen, the Tribunal notes that the Pakistan Citizenship Act, 1951 does not provide citizenship for men married to Pakistani women.[21] Furthermore, reports of Afghan men who are married to Pakistani women being deported to Afghanistan are common.[22]  Given such information the Tribunal is satisfied that the applicant has not obtained Pakistani citizenship by reason of his marriage to his wife. 

   [20] AAT No.1802218 and Departmental file [number]

   [21] Pakistan Citizenship Act, 1951, Government of Pakistan

   [22] See e.g. ‘Pakistan: Renewed Threats to Afghan Refugees’, Human Rights Watch, 1 July 2016; ‘Afghan Refugee Repatriation Threatens to Tear Marriages’, Khan, A., News Lens Pakistan, 16 August 2016; ‘Fractured Relations’, Dawn, 31 January 2017,

5. The Tribunal notes the applicant has not provided an Afghan national identity card (taskira) to the Department and at hearing said he has not obtained one.  According to DFAT, taskiras – a one-page official identity certificate issued by the National Statistics and Information Authority (NSIA) – are the primary form of identification for Afghan citizens.[23]  The applicant has stated that he believes his (biological) parents were issued taskiras but he does not know where they are located, noting he was young when his parents died.  He was not issued a taskira whilst young in Afghanistan.  This is consistent with country information that indicates that Afghan citizens displaced by conflict in that country experience particular difficulties obtaining taskiras.[24] The Tribunal considers the applicant’s failure to provide a taskira does not of itself indicate he was not born in Afghanistan as claimed.

   [23] DFAT Country Information Report Afghanistan, 27 June 2019 at 5.46 – 5.48

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

6. The Tribunal notes in the first NOICC (and the decision record to cancel) the delegate notes the fact that the applicant spent 20 years in Pakistan and was educated in government schools supported the inference that he is ‘probably’ a citizen of Pakistan.  As noted earlier, the applicant claims he was able to enrol in school in Pakistan because of his father’s fraudulently obtained Local Certificate and NIC.  For reasons above the Tribunal accepts that was the case.

7. Given these considerations, and in view of the country information cited above including about the prevalence of fraud, 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 (biological) father obtained his apparently genuine NIC and Local Certificate by fraudulent means. The Tribunal is satisfied the applicant’s father was not entitled to be issued that Pakistani NIC and Local certificate because he is not a Pakistani citizen. The Tribunal accepts the applicant’s stepfather altered these documents as claimed and the applicant relied upon those documents to enrol in government schools (for example) when growing up in Pakistan.

8. The Tribunal accepts the applicant was born in Afghanistan and that he moved along with his family to Pakistan when he was around [age] years old.  The Tribunal accepts he was an Afghan citizen at birth pursuant to Afghanistan’s citizenship laws and will continue to be so unless he has since lost or renounced that citizenship.[25]

   [25] Articles 9, 10 and 11, Law on Citizenship of the Islamic Emirate of Afghanistan (Law on Citizenship)

9. Given this finding the Tribunal is not satisfied that the applicant provided incorrect information in his protection visa application (and statement of claims) about his place of birth and citizenship. 

   The applicant’s date of birth

10. The delegate also found the applicant provided incorrect information about his date of birth in his protection visa application being [Date 1 (in Year 1)], whereas they found he was born on [Date 1 (in Year 2)], based largely on the information provided in his brother’s - [Mr A]’s - Partner visa application. 

11. The applicant maintains that he did not provide an incorrect answer in his application form in relation to his DOB.   He does not know his exact DOB given there are no records of such in Afghanistan, but was told by family members that he was likely born in [Year 3] because he is three or four years older than [Mr A] and [Mr A]’s DOB is correctly recorded in his Pakistani birth certificate.  The family’s Pakistani Local Certificate lists the applicant’s year of birth as [Year 2] whilst in most of his school documents it is listed as [Year 1].  In his brother’s wife’s Partner visa application she lists his DOB as ‘[Date 1 (in Year 2)]’.  Such inconsistencies caused the delegate to doubt the applicant’s claimed DOB at the protection visa application stage.  Before the Tribunal the applicant has provided explanations for these discrepancies, as follows.

12. Specifically, in his November 2019 statutory declaration provided to the Tribunal the applicant submits, in summary, the following about his (and his family members’) DOB:

    ·Whilst he does not know his actual DOB, he believes he was born in or around [Year 3], given he was always told he was around [age] or [age] when he and his family left Afghanistan to Pakistan, and when [Mr A] was born. 

    ·His older brother [Mr C]’s DOB is listed on his Secondary school certificate (a copy of which was provided to the Tribunal) as [date] (which aligned with [Mr C]’s birth year in the family’s Local Certificate).  However the applicant believed this DOB was arbitrarily chosen by his stepfather.

    ·His younger brother [Mr A]’s – the first of his siblings to be born in Pakistan – DOB recorded in his official Pakistani birth certificate is [date] and taken to be correct.

    ·All of the applicant’s school related documents record his DOB as [Date 1 (in Year 1)] whilst his year of birth is recorded as [Year 2] in the Local Certificate.  He believes his stepfather chose the [Date 1 (in Year 1)] DOB because if his year of birth stayed at [Year 2] (as per the Local Certificate) it would make his birth very close to [Mr C]’s birth of [date].

    ·He thinks his stepfather would have worked back from [Mr A]’s DOB – taken to be correct – to pick a date not too close to [Mr C]’s or [Mr A]’s DOB. Therefore the applicant believes ‘[Date 1]’ was selected arbitrarily and ‘[Year 1]’ changed to be further away from [Mr A]’s DOB. 

    ·Given the impossibility of discovering his real DOB, the applicant used the only official DOB he had – [Date 1 (in Year 1)] – when completing his protection visa application. 

    ·He disagrees that his DOB is [Date 1 (in Year 2)] (as concluded by the delegate).

13. At hearing the applicant said although the Local Certificate records his birth year as [Year 2], when his stepparents enrolled him at school in Pakistan they did so using ([Date 1]) [Year 1] as his DOB to show at least a year between him and his siblings.  This is the DOB he provided at the protection visa application stage, in order to align with official records of his DOB: that is his school certificates.

14. The applicant said when [Mr A]’s wife completed the Partner visa application she took the year – [Year 2] – from the Local Certificate and ‘[Date 1]’ from the applicant’s school certificates to make his DOB.  [Mr A] confirmed that was the case in a statutory declaration provided to the Tribunal post hearing, dated 3 December 2019. In it [Mr A] said he does not know his brother’s actual DOB but knows he is a few years older than himself. 

15. DFAT confirms that authorities in Afghanistan do not historically issue birth certificates, which remain far from common. DFAT states the high number of home births makes the process of registering births challenging, the reporting of birth dates is unreliable and reported dates are likely to be approximate.[26] The Tribunal considers the DFAT report gives substantial support to the applicant’s evidence in this respect.  The Tribunal is of the view that the inconsistencies in the information about the applicant’s DOB can be explained by the fact he was unaware of his actual DOB – which is not uncommon as indicated in country information – and subsequently different dates (in years in particular) were given by his stepparents in Pakistan so as not to arouse suspicion that the applicant’s family’s Local Certificate had been altered.  This is plausible in such a context. 

    [26] DFAT Country Information Report Afghanistan, 27 June 2019 at 5.49

16. Accordingly the Tribunal is satisfied the applicant’s DOB – in so far as he is aware given the considerations set out above – is [Date 1 (in Year 1)]. For these reasons the Tribunal is not satisfied that the applicant provided incorrect information in his protection visa application and related documents with respect to his DOB.  The grounds for cancellation are not made out in this respect.

    The applicant’s name

17. The NOICC records that the applicant gave his name as ‘[Given name 1] [Surname 1]’ in answer to question 1 in the protection visa application and indicated that the other name he has been known as is ‘[Given name 1]’ in answer to question 4 of the form.  However the delegate considered these answers were incorrect because [Mr A], in his visa application, stated he had a brother named ‘[Mr B]’, and because the applicant has a [social media] profile in the name ‘[Alias 1]’: the delegate concluded therefore that the applicant is [Mr B].

18. In her submission provided in response to the NOICC the representative states that the applicant and [Mr A] are brothers but have different surnames because until they came to Australia (and had to apply for a visa) they did not have official surnames in Afghanistan or Pakistan.   Reference is made to country information that indicates that Afghans traditionally use only a first name, and generally do not use a surname.  She submits that in Pakistan the applicant was only known as [Given name 1] and in Quetta; on documents and forms he sometimes used that name followed by his father’s name, but it was still not regarded as his surname.

19. As noted earlier, in the NOICC response and at hearing the applicant said when he arrived on Christmas Island he was asked to provide a surname.   He gave [Given name 1] as his name and put [Surname 1] as his surname (which is a special name for Shias).  [Surname 1] is also a variation of his father’s name, in accordance with naming conventions.  On [social media] he referred to ‘[Alias 1]’ because his son’s name is ‘[Surname 2]’, it [has certain characteristics], and common.  However he is not known by this name in any other aspect of his life.  [Mr A]’s wife in completing the partner visa application chose ‘[Surname 2]’ as his surname along with his siblings, because a surname was required, possibly because of his stepfather’s name.

20. Country information – including that submitted by the representative in response to the notice – supports the applicant’s contention that Afghani citizens typically do not have a surname,[27] which explains why the applicant and [Mr A] have two different surnames, adopted at the time of their respective visa applications.  The applicant is only referred to as [Given name 1] (and/or [slight variation of Given name 1]) in his family’s Local Certificate and Pakistani school certificates provided.  Given these considerations the Tribunal finds the applicant’s explanations about why [Mr A]’s wife recorded his name as [Mr B] in the partner visa application plausible.  [Social media] names can be made up and/or constitute variations of names and therefore the Tribunal gives little weight to the fact the applicant referred to himself as [Alias 1] on [social media].

    [27] Karine Megerdoomian,’ The Structure of Afghan Names’, November 2009, and Joseph Goldstein, The New York Times, ‘For Afghans, Name and Birthdate Census Questions Are Not So Simple’, 10 December 2014,

21. Given these considerations the Tribunal is satisfied the applicant’s name is [Given name 1] [Surname 1] as indicated in his protection visa application, not [Mr B] as concluded by the delegate.  It is therefore not satisfied that the applicant provided incorrect information in his protection visa application and related documents with respect to his name.  The grounds for cancellation in this respect are not made out. 

    The applicant’s claimed fears as a Hazara Shia in Afghanistan

22. As the Tribunal accepts the applicant is a Hazara Shia from Afghanistan (and an Afghani citizen) it accepts his claims at the protection visa application stage to fear persecution on the basis of his ethnicity and religion in Afghanistan.  It is not satisfied he provided incorrect information about his fear of persecution in these respects in his protection visa application. 

    CONCLUSION

23. 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.

24. 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.

25. 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

26. 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.

    
    

DFAT 2010 Pakistan: Conditions for Asylum Caseloads: Hazaras in Quetta 30 July; ‘Ethnic bias seen in blocked CNICs’, The Express Tribune, 27 March 2017; ‘100,000 Pakistanis lose nationality for being suspect aliens’, Dawn, 29 May 2015;
‘Senate body admonishes NADRA for issuing thousands of fake CNICs’, The Express Tribune, 8 May 2017; ‘The discriminated Pashtun’, The News on Sunday, 5 March 2017