1816518 (Migration)

1816518 (Migration) [2020] AATA 6148 (19 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1816518
MEMBER:Sean Baker
DATE:19 June 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 (155) (Five Year Resident Return) visa.

Statement made on 19 June 2020 at 1:27pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – subclass 155 (Five Year Resident Return) visa – incorrect information in application – identity – applicant was not at any time a national or citizen of Pakistan – applicant held non-genuine Pakistan NIC – credible witness – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46A, 101, 107, 107A, 109
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar v MIMA [1999] FCA 156
MIEA v Wu Shan Liang (1996) 185 CLR 259
SCAN v MIMIA [2002] FMCA 129
Zhao v Minister for Immigration [2000] FCA 1235
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect answers on his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
It is helpful to provide a brief outline of events. The applicant arrived in Australia in December 2009 as in irregular maritime arrival. He took part in an entry interview with a Department officer, made a request to the Department for a Refugee Status Assessment (RSA) and on 9 April 2010 the RSA by the Department found the applicant was a person to whom Australia owed protection obligations, and he was invited to apply for a Protection Visa (PV). The Minister decided to exercise his discretion under section 46A of the Act to enable him to lodge a valid Protection visa application. On this same day the applicant lodged an application for a PV class XA subclass 866 which was granted by a delegate of the Minister on 20 April 2010.
The applicant sought to sponsor his wife and four children to Australia in 2013. In 2014 he lodged an application for Australian Citizenship. As part of that process he was interviewed by an identity officer of the Department in July 2015. He was granted a further permanent visa, a Resident Return visa in February 2016. His citizenship application was refused in March 2017 and the Notice of Intention to Consider Cancellation (NOICC) of his Resident Return visa was sent to him on 27 September 2017. After considering his response, the applicant’s visa was cancelled. He then appealed to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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?
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(b) in the following respects:
In question 1 and 4 of his protection application, Part C of form 866 (his application), he provided his name as [Name 1] also known as ‘[Name 2, a variation of Name 1]’, when the delegate was not satisfied this was his correct name, and the delegate was satisfied the applicant had been formally registered and known by other names including [Name 3], [Name 4], and [Name 5].
At question 19 and 21 of his application the applicant answered he was an Afghan national and did not hold any other citizenship nor was he a national of any other country, where the delegate was satisfied the applicant had not provided genuine evidence to support this claim (to be an Afghan national) and that for at least the 10 years prior to travelling to Australia, he held a Pakistani NIC in the name of [Name 6] and has been formally registered as a Pakistani citizen.
At question 36 of his application he said that he had not had any formal education but had done on the job training, [Occupation 1] and [Occupation 2]. The delegate found this was incorrect because in his [social media] page in the name [Name 5] he states he went to [School 1] in Jaghori and in the NOICC response he did not dispute this point.
At questions 41 to 46, the applicant claimed he could not return to Afghanistan because he fears if he returns to Afghanistan he will be tortured, harmed or killed by the Taliban because of his ethnicity, religion, financial status, imputed political opinion and having escaped his village after the Taliban demanded money from him and threatened his life.
The delegate found these answers incorrect because the delegate found the applicant was a Pakistani citizen so has the right to reside in Pakistan and does not have to return to Afghanistan, that the applicant had not provided genuine evidence to support his claimed identity of [Name 2] or that he is an Afghan citizen, which cast doubt on his claims to have been living in Afghanistan and targeted by the Taliban.
In coming to these conclusions, the delegate considered:
- Biodata Interview on [date] December 2009
- Form 866, Part C
- Entry Interview on [date] January 2010
- RSA statement lodged 20 February 2010
- His wife’s Partner visa application
- Citizenship application lodged on 22 April 2014
The delegate also noted that s.107A of the Act allowed that incorrect answers given in an earlier visa process can provide a ground to cancel a later visa.
The alleged correct information was put to the applicant in the NOICC, as is broadly outlined below:
§The applicant never held an Afghan Taskera
§The applicant’s father's Afghan identity documents do not support the applicant’s claim to be an Afghan citizen
§The Afghan Taskeras of the applicant’s wife and children, meant to confirm they are Afghan citizens, are not genuine.
§The applicant’s Marriage Certificate and wife/children's Afghan passports, meant to confirm Afghan citizenship, are not genuine.
Further the delegate put to the applicant:
§ That he had held a genuine Pakistani National Identity Card and was formally known in Pakistan under a different identity.
§ The applicant’s eldest son voted in the 2013 Pakistani General Elections, indicating he is a Pakistani citizen.
§ The applicant’s sister is a Pakistani citizen because of her education background and employment history
§ The applicant’s children received medical vaccinations and schooling in Pakistan, indicating they are Pakistani citizens.
The applicant’s representative responded to the NOICC.
The applicant’s representative cited country information and provided the below explanations:
§ The applicant obtained a fraudulent national identity document in Pakistan from an agent who replaced the photo of [Name 6]'s with the applicant’s, so he was able to support and provide for his family whilst they resided in Pakistan. This also allowed him access to health insurance, vaccinate his children.
§ The applicant's wife and children obtained what they thought were genuine identity documents, including a marriage certificate, passports and Taskera's, from the Consulate General of the Islamic Republic of Afghanistan in Quetta, Pakistan. Later they discovered these were fraudulent.
§ In spite of the above the applicant has now obtained a Taskera from the Afghan embassy in Australia and his wife and children have been able to acquire Taskeras attested by Ministries of Interior, Justice and Foreign Affairs and Computerized Afghan Passports. These were also provided in support of their partner visa application.
§ The applicant still uses the above fraudulent name socially, as he resided in Pakistan for 10 years under that name/identity. The name has been attributed to him for an extended period of time.
§ The applicant’s sister referred to her ‘brother [Name 7]’ on a [social media] post however, [Name 7] is not another name for the applicant but rather a term of affection i.e. 'dear brother'.
§ The applicant admits to using a false passport when he exited Pakistan. He only had this passport for a short period of time and he cannot remember these detail of the document
§ The applicant did not re-enter Pakistan using Pakistani documents. He entered as a foreigner as evidenced by a Foreigner Registration Office—Form B attached.
§ The applicant’s sons [social media] page in the name ‘[name]’ had a picture posted of him participating in the 2013 Pakistani General Elections, however a later post on his [social media] page, dated [in] May 2013, clarifies that the photo was posted by a hacker.
§ The applicant’s sister's education as indicated on [social media] is inaccurate. It should not be taken as evidence that she is a Pakistani national, because only nationals can attend this institution, because she did not in fact study here.
§ The applicant’s sister works [at] a [workplace] that do not require their employees to hold a Pakistani ID, and she [does specified job]. Her employment is not evidence of her being a Pakistani national.
§ The applicant children were enrolled in a Pakistani school, however according to the human rights programs which are provided to Afghan refugee students. In support of this he provided a [School 2] document.
The submission also included discretionary factors for consideration.
To the Tribunal the applicant provided a copy of his Taskera issued in 2017 with an English translation attested by the Afghan embassy in Canberra, and copies of his three Australian Titre de Voyage (TDV) with evidence of three Pakistan visas and entry and exit stamps from Pakistan.
After the hearing the representative provided a submission with supporting documents.
At the hearing I had the opportunity of speaking with the applicant. His evidence was sometimes contradictory, but I did not consider that this was from a lack of credibility – rather, it was his genuine attempt as a reasonably unsophisticated person to grapple with the difficulties presented with limited knowledge of the issues presented by the delegate and me.
The applicant told me he had been born [in] Jaghori. He said he had left [there] in approximately 1998 or 1999, when he was approximately [age] years old. He said he had left Pakistan to come to Australia in 2009 so he had lived in Pakistan for nearly 10 years. He said he had lived in Quetta and was a [Occupation 2], had tried to work in Iran whilst his family remained in Quetta, had then deported from Iran and then he and his family had moved to Karachi. He said he had lived in [an area], where there were many Hazara.
He confirmed he had married his wife in Afghanistan before they had travelled to Pakistan. I asked about his children and he told me that his son, [Mr A], had attempted to travel [overseas] three or four years ago and had drowned en route. He said his other children remained with his wife in Karachi.
I asked the applicant about his taskera. He said that he was not sure if his family obtained one for him or not, he could not remember, but he had gone to the embassy in Canberra and they had issued him with one. This had involved making an application at the Canberra Embassy. This had been sent off to Afghanistan and they got a new taskera from Jaghori and sent it to him. He noted it had also been certified at the embassy in Canberra. He explained that his wife and children had been issued with taskera in Quetta but they became aware these were false taskera. They had then had genuine taskera issued. They had gotten these from Jaghori in 2015. At the same time he had had his taskera issued from Kabul, but this had had an error on it, his age. He said that because of this error, his taskera had been re-issued in 2017 with the correct age, and this was why the taskera referred to 2015 as well as 2017.
He noted that in addition he had his father’s taskera, which he had also provided to the Department.
He explained that he had had a non-genuine Pakistan NIC so that he could make a living in Pakistan and support his family. I asked if he could provide this NIC for verification. He said it had been a long time and he was not sure if he could find it. He said that on that card it was not his thumb stamp.
I noted that I might take the view that the NIC was genuine because the applicant had been able to get medical treatment for himself and family and education for his children.
He said that his evidence of having gotten Pakistan visas, and the entry and exit stamps from Pakistan for his three visits from Australia to Pakistan showed he was not a Pakistani citizen, and when he was there he had had to give his fingerprints to the Pakistan police each week. He said if he had been a Pakistan citizen they would have found this out and punished him for declaring falsely to be an Afghan citizen. I noted that I was not convinced that this process was focused on, or would be able, to determine if he was a Pakistan citizen, it was more likely to be focused on any criminal behaviour of visitors during their time in Pakistan.
I discussed with him his employment letters from the two Pakistan companies. I explained I was concerned that he said he had not been known as [Name 1] there but as [Name 3], the name on the claimed false NIC, and that the letters referred to him as [Name 1] was a concern. He said that he asked them to put his name as [Name 1] as he wanted to go back and use that certificate for the future. He said that in Pakistan everything is possible with money.
I discussed with the applicant the information on his son, [Mr A]’s, [social media] page that indicated he had voted in the Pakistan election in 2013. The applicant noted that his son had not been old enough to vote at that time. He said that as a child [Mr A] had used [social media] with all his friends and other people had used the account, it was not his photo. He said similarly his half-sister [does specified job] and had not gone to university even though she had said this on [social media].
The applicant said that his children had been able to get vaccinated and attend school in Pakistan only because he had paid for these things, and they had never asked for his identity documents at the clinic. He said that [School 2] is a private school. He said now the school has finished his children are just at home as they cannot go on to college or find jobs.
He offered to give his fingerprints to be matched by NADRA to find out if he is a Pakistan citizen. He said a lot of Afghan citizens live in Pakistan. He said his wife did not have an NIC and she had to pay wherever she went. His children did not have NICs and this was why they had not gone to college.
Findings
It is not in dispute that the applicant is a Hazara and Shia. At all stages the applicant has maintained a consistent story of his ethnicity and religion, his birth, youth in Afghanistan and fleeing to Pakistan/working in Iran and then residing in Pakistan. At all stages, officers have been satisfied with the information he has provided in relation to these details. The applicant has consistently stated that he was born in Afghanistan and is an Afghan citizen who holds no other citizenship. He has consistently claimed that he and his family fled Afghanistan around 1998 or 1999. He provided detailed information about his birthplace and surrounding areas of Afghanistan to the RSA assessor and the identity officer. I note the cancellation delegate also found that the applicant attended school in Jaghori, Afghanistan.
The applicant’s claims in relation to his life and his moving himself and his family to Pakistan from Afghanistan is consistent with country information:
Historically, Hazara migrated to Pakistan from central Afghanistan. Some Hazara families’ origins in Quetta can be traced back to the late 19th century, though the majority of the community immigrated in two waves – the first during the Soviet occupation of Afghanistan from 1979 onwards, and the second in 1996, when the Taliban regime in Afghanistan began to target the Hazara. Existing local networks enabled the Afghan Hazara to avoid staying in refugee camps and to integrate better into Pakistani society.[1]
[1] EASO Country of Origin Information Report — Pakistan. Country Overview, 101.
At the hearing I found the applicant to be credible. He presented his evidence in a straightforward and unadorned manner, consistent with his earlier claims. He did not overstate his case and limited himself to information of which he was directly aware, and his evidence was entirely consistent with that provided to the Department and to that he appears to have given to the UNHCR.
The concern of the cancellation delegate focuses on information that tends to indicate the applicant acquired Pakistan citizenship without detailing how the officer believes the applicant acquired that citizenship.
The applicant has provided primary identity documents of Afghanistan, the Taskeras of himself, his father and his wife and children. It is not in dispute that the versions provided in 2010 of his wife and children’s Taskeras were fraudulently issued in Quetta, Pakistan. As did the delegate, this causes me to have very serious doubts about the authenticity of the later provided documents, the documents of the applicant’s wife and children dated 2015, and the applicant’s Taskera dated 2017.
The cancellation delegate placed no weight on the applicant’s 2017 Taskera because of inconsistencies between the volume, page and register numbers of this document compared with the quoted volume, page and register numbers of their husband and father’s Taskera quoted in his wife and children’s Taskeras.
I have concerns with this process of reasoning. Firstly, I am unclear why the delegate decided that the applicant’s Taskera could therefore not be relied on – whilst it is logical to have concerns given disparities in the information between the documents, this could indicate, as the delegate noted, that either the applicant’s, or his wife and children’s documents, had incorrect information on them – and in fact, given the admission that the earlier 2010 issued Taskeras of his wife and children were not genuine, it would appear more reasonable to assume that their 2015 issued documents may be more likely to be non-genuine than the applicant’s. There is also the possibility that this may be an error in transcription of the Afghan officials, when one takes into account the somewhat convoluted process involved for Afghan officials to issue Taskeras,[2] and the evidence on the 2017 Taskera that it has had to be re-issued because, the applicant said, there was an error with his age. In fact, the Taskera of the applicant I have been provided with, and the English translation, provide a range of features which should give assurance to the Department that the document may in fact be genuine. The document appears in the accepted format and has a number of security features including a stamp and seal of the Afghan Ministry of Foreign Affairs, and the attestation of the Afghan Embassy of Canberra. The stamp and seal of the Afghan Ministry of Foreign Affairs is particularly relevant because the Department of Foreign Affairs and Trade notes:
The Ministry of Foreign Affairs (MFA) has a section responsible for verifying civil documents with issuing authorities to prevent any manipulation of official records. This attestation assists Afghan missions and foreign governments in accepting the authenticity of the document. Whilst MFA attestation provides an extra level of integrity to the documentation, international agencies report that there have been cases of documents with MFA attestation subsequently being independently verified as non-genuine.[3]
[2] See DFAT Country Information Report Afghanistan, 27 June 2019, 5.44 – 5.48.
[3] DFAT Country Information Report Afghanistan, 27 June 2019, 5.55.

Whilst this indicates that there may still be the potential for this to be non-genuine, it appears less likely.
The Taskera is consistent with the applicant’s claims that he is a national of Afghanistan, born in Jaghori, and has described the area, in detail. He has consistently stated that his family left Afghanistan for Pakistan when he was around [age] years old, in 1998 or 1999, which is consistent with information that many Hazaras fled Afghanistan around this time.
There is further information which provides a contextual basis to consider that this may be a genuine document and may not support the conclusion that the applicant is not a national fo Afghanistan and is a national of Pakistan.
Country information states that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara resident at this time to be recognised as Pakistan nationals and granted citizenship.[4] DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services.[5]
[4] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.
[5] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14
The most recent DFAT Report states that Hazara children born in Pakistan are entitled to Pakistan citizenship, but that Hazara arrivals from Afghanistan typically do not have citizenship, instead being able to access immigration cards which provide some rights including access to drivers’ licences.[6] The DFAT report goes on to note that many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a Taskera or UNHCR registration documents.[7]
[6] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.
[7] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.
The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man.[8] Relevant to this consideration, Section 4 provides that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan), Section 5 provides that a person is a citizen if his parent was a citizen of Pakistan (Noting exceptions for those born outside the territory or in the service of a government), Section 9 allows a person granted a certificate of naturalization under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalization or allowing the government to register any person as a citizen.[9]
[8] The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >
The Naturalization Act allows a person to be granted a certificate of naturalization if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistan citizens to be naturalized, has resided in Pakistan for the twelve months before the application and for a period of years prior to that time, is of good character, had adequate knowledge of a language gazetted by the Government, and intends to reside in Pakistan.[10]
[10] The Pakistan Naturalization Act 1926, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >
The country information demonstrates however that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan after 1962.
According to an article in Foreign Policy:
Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[11]
[11] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,
The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. In this report, the author notes that ‘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.’[12] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and Aliens. [13]
[12] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5 Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5-6 >
Afghan refugees have also been found not to have rights under the Constitution of Pakistan. In the case of Abdul Majeed and another vs. The S.H.O. Police Station Naulakha, Lahore, PLD 1989 Lahore 223, the petitioner, an Afghan refugee, sought to argue that the position of Afghan refugees was analogous to that of those who had come to Pakistan as refugees in 1947 on partition and those from the Kashmir disputed territories. The court dismissed the application holding that Afghan refugees are categorically distinguished from these Constitutionally recognised groups:
It emphasized that statutory exceptions were carved out in the citizenship laws of Pakistan for these groups. Quite the contrary, Afghan refugees were granted refugee cards and under the terms of the Geneva Accords, their stay in the territory of Pakistan is allowed for a temporary period in which foreign troops have occupied Afghanistan. For this reason, the court held, the law enforcement agencies are justified to restrict the movement of foreigner refugees in the country.[14]
[14] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 >
This judicial view was confirmed as recently as 2018 by the Islamabad High Court which cited with approval the decision of the Peshawar High Court in Sanai. The Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud), stated as had the court in Sanai that all persons born in Pakistan except Afghan refugees were entitled to citizenship, but went on to (incorrectly) assert that Pakistan was a signatory to the Refugees Convention and therefore that Afghan refugees were the responsibility of the UNHCR and that Pakistan laws including the Citizenship Act, Naturalization Act and the Constitution did not apply to them. The situation is further complicated by the potential for unregistered Afghan people resident in Pakistan to be considered illegal immigrants under the Foreigners Act 1946.
The situation for unregistered Afghans in Pakistan appears even more parlous than for those registered.[15] The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the act as any person who is not a citizen of Pakistan.[16] Whilst registered Afghan refugees have a ‘special status’, excluding them from citizenship as above, unregistered Afghans in Pakistan are considered by the government to be aliens and illegal immigrants who may claim only alien registration, work permits and non-refoulement under customary international law.[17]
[15] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, Sections 14, 2 of the Foreigners Act 1946.
[17] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
In September 2018 Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private members bill would have extended this to Afghans living in Pakistan for 20 years or more and who had been registered. The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country and that the provinces of Sindh, Khyber Pakhtunkhwa, and Balochistan held serious reservations against the statement made by the Prime Minister.[18] This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[19]
[18] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,
[19] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
A further complication is that the Citizenship Rules 1952 provide for the issuing of a certificate of citizenship by provincial governments for those who acquire citizenship by birth or descent, but it is not common for such documents to be issued, so NADRA is the de facto, but not legislative, authority for recognition.[20] For those who acquire citizenship by naturalization or marriage, the Directorate General of Immigration and Passports (DGIP), Ministry of Interior (MoI), is responsible for determining eligibility for such citizenship acquisition.[21]
[20] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
[21] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
The country information above establishes that there is no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship, regardless of their status as registered refugees or unregistered (and therefore considered illegal immigrants by the Pakistan government). Administratively, judicially and legislatively the Pakistan authorities have manifested an intent to exclude Afghans from citizenship and other rights under the Constitution. This appears to be longstanding policy and to have been confirmed by the refusal of the National Assembly to pass laws allowing for the granting of citizenship to Afghan refugees as recently as August last year. When read together, the decisions of the Pakistan High Courts set out above demonstrate that Afghans, whether registered refugees or unregistered, are distinguished from other groups in Pakistan and have been specifically excluded by these Court decisions from accessing citizenship through birth, but also, given the reasoning in Mahmud, through naturalization or any of the other processes envisaged under Pakistan law for becoming a citizen. These decisions establish that Afghans in Pakistan have no method by which they can be recognised as citizens. The recent actions of the National Assembly demonstrate legislative support for this approach.
I note that the DFAT report indicates that Hazaras born in Afghanistan can gain citizenship, but I can find no support for this brief assertion in any other primary sourced country information.[22] Given the weight of information before me tends to indicate that this is not the case, I place little weight on this statement in the DFAT report.
[22] I note the UK Home Office report, Country Policy and Information Note - Pakistan: Hazaras, Version 2.0, November 2019 but this report draws entirely and exclusively from the DFAT report.
I accept that the applicant was born in Afghanistan, given that he has consistently claimed this, his claims of when he departed match country information, and he has given detailed evidence about the area he claimed to have been born and lived in. Further, even if all of the concerns raised by the cancellation delegate are significant (and for the reasons below I do not think they are), these concerns do not establish that the applicant was born in Pakistan to Pakistan citizen parents.
When weighed together, the country information above, and the applicant’s 2017 issued Taskera provide substantial weight to his claims to have been born in, and to be a citizen of Afghanistan exclusively. I accept on the information before me, as the delegate appeared to have done (given the finding the applicant was schooled there), that the applicant was born in Afghanistan, and did not arrive in Pakistan until approximately 1998 - 1999, and therefore the applicant could not have taken advantage of the 1962 recognition. On the basis of the country information I have considered above, I find that there is no process by which the applicant could have acquired Pakistan citizenship, neither by naturalization nor any other process set out in the Pakistan Citizenship Act nor any other legislation. Following the caselaw above, the applicant’s stay in Pakistan was governed by the Foreigners Act and according to the ruling in Sanai, the Citizenship Act does not apply to him as an Afghan citizen.
The delegate noted that the applicant had used his Pakistan NIC, which the applicant claimed was non-genuine, to support his and his family’s lives in Pakistan, and that this supported a conclusion that the NIC was genuine and evidence the applicant was a citizen of Pakistan.
However, the country information indicates that the situation regarding NICs is not clear cut. Corruption is endemic in Pakistan, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[23] CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.[24] NADRA can verify fraudulent documents although:
… detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. 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.[25]
[23] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.
[24] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.
[25] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.
The CODE report notes that:
Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was inadequate, some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[26]
[26] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
A report in the Express Tribune, dated 3 September 2018, noted that, according to the chairman of NADRA, some Afghan nationals obtained CNICs by pretending to be related to Pakistani nationals. The chairman stated that the cards had been blocked. The report also added that some Pakistani Pashtuns pretended to be Afghan refugees and received relief funds, but then returned to Pakistan.[27]
[27] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, >
In a research response to the Canadian Immigration and Refugee Board, it is noted that:
Obstacles to what should be tasks the average Pakistani citizen might take for granted – such as having passports and national identity cards issued – remain a key problem for the Shia Hazara community. Government authorities ask them to prove that they are indeed "Pakistanis" and that they have not "emigrated" from Afghanistan. The community believes this is indicative of systemic discrimination. (HRCP 2019, 8-9)[28]
[28] Pakistan: Situation and treatment of Shia [Shi'a, Shi'i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020) Research Directorate, Immigration and Refugee Board of Canada
This country information demonstrates several facts. ‘Genuine’ CNICs obtained with fraudulent feeder documents are still possible, and at the time when the applicant obtained his CNIC, would have been possible. The country information also indicates that NADRA can verify documents, but that detection may be difficult. Lastly, the country information establishes that the holding of bogus, or fraudulently obtained genuine CNICs by Afghan refugees is a recognised concern of NADRA and legislators with ongoing verification and blocking of CNICs issued to Afghans. The response to the Canadian Board indicates not only the discrimination present in the approach of the authorities to Afghans and specifically Hazara, but also the distinction between Hazaras who can establish their forebears were present in Pakistan on or prior to 1962 and those who can not.

The applicant has always maintained that the CNIC issued to him were not genuine. He has not relied on this (or any other form of Pakistan documentation) when travelling to Pakistan from Australia, instead going through the process of gaining a visa and having his Australian TDV stamped in 2011 and subsequent visits. These actions, my assessment that he is credible and the consistency of his claims with the above country information lead me to accept the applicant’s claim that he obtained his CNIC by the payment of money to an intermediary. Indeed, given the information and my findings in the section above, this becomes the only plausible conclusion - Afghan citizens are not able to acquire citizenship if they have arrived in Pakistan after 1962, as did the applicant.
I have also considered the other concerns raised by the cancellation delegate and the identity officer. As above, I have found the 2017 Taskera, which the identity officer did not have the benefit of considering, to be strong evidence for the applicant’s claims being true. Whilst I accept that the applicant’s father’s Taskera does not include details of the applicant, they do not usually, and the fact that the applicant was able to produce what appears to be a genuine Taskera in the same names that he claimed his father and grandfather possessed consistently since his arrival in Australia, appears to me to mean this document should also be given significant weight that the applicant’s claims are true.
Without further checking, I place no weight on the Taskeras, either those issued in 2010 or those issued in 2015, of the applicant’s wife and children, whilst noting that the 2015 documents may be genuine but with errors. I place no weight on the applicant’s Marriage Certificate but I also note that it would be highly unusual given when they were married if the applicant and his wife had had such a certificate at the time of marriage.[29] It is unnecessary to consider the passports of the wife and children and whether these are valid. I do not accept however that any of this information is invalid, or establishes to the requisite level required to cancel the visa that the applicant is not a national of Afghanistan as he claimed in his application.
[29] See DFAT Country Information Report Afghanistan, 27 June 2019, 5.50 – 5.52.
Above, I have explained why the claim of the applicant that he held a non-genuine Pakistan NIC is not only plausible but, given he arrived after 1962, the only likely explanation. I have had regard to the letters from his employers but I am inclined to accept his explanation that these letters, issued as they were for purposes in Australia, contained his Australian name. I do not find it implausible that long term employers (as opposed to officials or government agencies) would be willing to do this or would have difficulties identifying the applicant.
I have had regard to the [social media] post of the applicant’s son, and that of the applicant’s half-sister. This information carries very little probative value. It is not clear to me that the person is [Mr A], or his finger. The delegate has not explained how he could have voted given the applicant has consistently claimed he would have been under 18 at the relevant time. The applicant’s half-sister may or may not be a Pakistan citizen, but again this has little probative value to the question. It may be that she acquired citizenship through marriage, possible for an Afghan national woman. It may be she acquired it through the non-blood parent shared with the applicant. It may be, as the applicant states, that she is not a Pakistan citizen and was misleading in her statements on social media – not the first person to have done so.
As noted above, there are high rates of corruption in Pakistan, and it is evident in the country information that vaccination and schooling can be acquired through payment even where valid NICs are not produced. I give this no weight.
Given this, the information before me, and that was before the cancellation delegate, is insufficient to establish that the applicant is a national of Pakistan. It appears to me that it may be an error going to jurisdiction to cancel the applicant’s visa on the basis of this information alone, without going further and ascertaining whether, in the accepted circumstances of the applicant, he would be entitled to Pakistan nationality.
I have found that there is no basis for an Afghan citizen in the applicant’s position to legitimately obtain Pakistan citizenship. I find therefore that the suspicions to the contrary is not a sufficient basis to conclude that the applicant is a national of Pakistan, particularly when considered against the country information I have set out above.
On the basis of my findings above, I find that the applicant is and was at the time of his visa application named [Name 1], is a national of Afghanistan only, born [in] Jaghori, Afghanistan, and that he was not at any time a national nor held citizenship of Pakistan, but I accept that he held the false identity of [Name 6] whilst residing there. I note that the applicant may use ‘[Name 4] ‘ and ‘[Name 5]’ on social media, but there is no evidence that he did so at the time of his RSA and protection applications. Therefore, I find that I am not satisfied the applicant provided incorrect information at questions 1, 4, 19 and 21 of his application.
I am not satisfied that the statement on his social media account of ‘[Name 5]’ that he went to [School 1] in Jaghori is true and I am not satisfied on the evidence before me that his answer to question 36 of his application is incorrect.
The delegate also found that the applicant may have provided incorrect information when he claimed to fear return to Afghanistan at the time of his application for a Refugee visa, which the delegate considered was incorrect because the delegate had found the applicant had the right to legally reside in Pakistan as a Pakistani citizen. For the reasons above, I have found that he was not at any time a national or citizen of Pakistan, and therefore I find the applicant did not provide incorrect information in his answers at questions 41 to 46.
To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. This must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[30] It has been stated that the principles in Briginshaw v Briginshaw[31] have no direct application in the context of administrative decision making.[32] However, where, as here, the administrative action is the cancellation of a permanent visa, it is, I think, appropriate that:
‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’[33]
[30] Zhao v Minister for Immigration [2000] FCA 1235 at [25] and [32].
[31] (1938) 60 CLR 336.
[32] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.
[33] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].
Here, I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent protection visa to consider these factors when weighing whether the proof obtained is sufficient to ground the power. In this case, it is not.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
Conclusions
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
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.
Sean Baker
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.

[2020] AATA 6148

19 June 2020

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