1818318 (Refugee)

[2019] AATA 6383

1818318 (Refugee) [2019] AATA 6383 (15 November 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818318

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Denis Dragovic

DATE OF DECISION:  15 November 2019

DATE CORRIGENDUM

SIGNED:27 November 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘The Tribunal affirms the decision to cancel the applicant’s Sub class 866 (Protection) visa’ at paragraph 37 should be replaced with ‘The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa’.

Denis Dragovic
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818318

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Denis Dragovic

DATE:15 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 November 2019 at 9:08am

CATCHWORDS

REFUGEE – protection visa – Afghanistan – identity – contradictory evidence provided – doubts over applicant’s earlier years – earlier claim of mother and brother kidnapped – error in taskera – sufficient documentary evidence provided – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 116, 119

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 dated 14 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that she was not satisfied of the applicant’s identity because of purported inconsistencies in the applicant’s narration of his family details, education, documentation, travel history and social media.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 25 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA) which reads:

   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

8. Sections (2) and (3) refer to prescribed grounds of cancellation which do not apply to the applicant.

9. The exercise of the cancellation power under s.116 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.119 of the Act, providing particulars of the grounds for cancellation. Where a notice is issued that does not comply with the requirements in s.119, the power to cancel the visa does not arise.

10. In the present matter, the Tribunal is satisfied that the notice issued under s.119 complied with the statutory requirements.

    Does the ground for cancellation exist?

11. The Minister’s delegate correctly noted the applicant’s migration history. I will provide a brief summary. The applicant arrived to Australia on a boat known as ‘[name deleted]’ as an illegal maritime arrival to Christmas Island and upon arrival made a claim for protection. In doing so he declared himself to be [name deleted], born in [Location 1], [Location 2] which is in Jaghori district, Ghazni province, Afghanistan. He claimed to have been born on [date] making him [age] years and [number] months old when he arrived to Australia. During his interaction with the Australian government the applicant stated that he was a Shia Muslim of Hazari ethnicity.

12. Through the course of several interactions with the Department including an Entry Interview (2010), Refugee Status Assessment (2010), Independent Merits Review (2011), Partner visa application (2013) for his wife and current identity assessment (2018) apparently contradictory information emerged.

13. The delegate engaged with several inconsistencies which are not relevant to the applicant’s identity. For example, the delegate focused on the applicant’s inconsistent and apparently implausible birth dates of his siblings and mother. While these issues may raise questions of credibility they do not go directly to the applicant’s identity. It is not in dispute that the applicant has six sisters whose names were provided and remained consistent throughout the numerous stages of engagement with the Australian government. The names of his father and mother are not in dispute.

14. Similarly, the purported inconsistency in representing the location of his siblings at various times may lead to questions of credibility but not directly to identity.

15. The delegate also drew a conclusion related to the applicant’s family where none could reasonably have been drawn. In the notice of the intention to consider cancellation (NOICC) there is a reference to a 19 February 2011 submission by the applicant that claims the his mother and brother were missing, presumed kidnapped. The same NOICC went on to state that in the February 2013 partner visa application the mother and brother were not declared ‘missing’ and as such there was an inconsistency. The applicant did not address this particular issue in his response to the NOICC. The delegate then went on to reach the conclusion that this was an issue of concern.

16. In considering this, it is timely to be reminded of what the level of satisfaction the decision maker is required to reach when considering cancellation. In Zhao v MIMA, 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 cause 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]

17. A real state of satisfaction cannot be reached on the basis of a question that remains unanswered and the logical explanation being favourable to the applicant. In this case is the logical answer is that they were kidnapped and then released and as such only missing temporarily. Unless there is evidence to suggest otherwise the simple omission of an explanation should not be used as contributing to grounds for cancellation.

18. As this review is a de novo review I begin by considering what is meant by the concept of identity. The National Identity Proofing Guidelines of the Department of Home Affairs notes that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[2] The Department’s policy advice manual explains:

    The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.

    While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[3]

    [2] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1

19. Documentation includes all documentary evidence relating to an applicant's identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their story. Biometrics includes personal identifiers such as facial image and fingerprints.[4]  

    [4] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2

    Considerations

20. I now turn my mind to consider the applicant’s case. Due to the understandable lack of biodata I place greater weight on biography and documentation.

    Biography

21. At the hearing the applicant was invited to describe his early years. He told the Tribunal that he had six sisters and one brother. He named them all in order of birth spontaneously. The applicant’s recitation of his family structure at the hearing is the same as it was first given to the Department and has been at each instance provided over the past 9 years.

22. The applicant claimed that he was born in [Location 1], [Location 2], which is in Jaghori district. I asked about the geography near his place of birth. At the hearing he wrote on a piece of paper a detailed list of villages which one has to pass through from the provincial capital, Ghazni, to arrive to his village. The applicant’s description of the towns that he would pass through (Tribunal file f.84) reflects a list of minor villages in the area as found on Google Maps. But when mapped the list does not reveal any logical pathway from Ghazni to his home village. This could be because he never actually lived there but foresaw my question and memorised the names of half a dozen minor villages. Alternatively, it could be because the applicant’s memory had faltered. I preference the latter considering the applicant’s circumstances of having departed nearly a decade ago and being under considerable stress since the cancellation of his visa. As such I give this some weight.

23. The applicant described a river that passed through a nearby town which the local boys would fish at. The maps of his region show rivers in the area. This sort of spontaneous narration adds weight to his claims. The applicant also provided photographs including one of a snow capped mountain and another of snowfields. Topography maps of the region show nearby mountains and Joghori is a place in which snow falls during winter.

24. He described his duties as a young child involved working with his mother on their farm growing wheat. A report on agriculture in Ghazni shows that wheat is the predominant grain grown in Johori district.[5]

    [5] Report prepared by Afghan Ministry of Agriculture, Irrigation and Livestock, ‘Accelerating Sustainable Agriculture Program: Ghazni Province Agricultural Profile, 2008’, USAID Afghanistan, 2008 >

    The applicant described his attendance at school and the process of accessing a taskera. Both of these narrations were provided spontaneously and in a manner consistent with prior information he had provided.

25. The applicant was asked about the location of his mother and specifically whether she was living in Afghanistan or Pakistan which would go to his place of birth and where he grew up. Related to this was evidence of regular phone calls being made to Pakistan and not Afghanistan.

26. The applicant said that his mother visited Pakistan in 2012 when the applicant had returned and married his wife. The dates of his travel departing Australia are recorded as  [September] 2012 and returning [October] 2012. A week after he returned to Australia [in] October he claims that his mother returned to Afghanistan. He claims that his mother did not travel to Pakistan again until 2017 (medical evidence submitted suggests it was 2016) at the behest of doctors in Kabul. He claimed that his mother had symptoms which aligned with a [medical condition]. The applicant claims that the doctors in Kabul told her mother that they could not provide the treatment she needed but she could acquire it in India or Pakistan and so she travelled there. I accept this explanation as fact.

27. The delegate’s decision notes a three month period of phone records which were submitted in support of the applicant’s partner visa application for his wife. The delegate’s decision notes that the phone records ([10]/2012-[1]/2013) show only one phone call to Afghanistan and all others to Pakistan. Considering that his mother had returned to Afghanistan by this stage and the only claimed relative living in Pakistan was a paternal aunt this is rightly a concern. When this was put to the applicant at the hearing he responded that his phone plan provided discounted rates for calls to Pakistan and as his wife and her family were there he regularly called Pakistan on that phone. In a pre-hearing submission it was noted that his friends also lived in Pakistan. The applicant said at the hearing that he used a phone card to call Afghanistan. The Tribunal was unable to find evidence of the plans available to the applicant in 2013 but find it to be a plausible explanation.

    Documentation

28. The applicant provided a taskera from 2009 to the Department. This taskera, as discussed further below formed part of the reason for the delegate’s cancellation of the visa.

29. Subsequent to the cancellation, the applicant provided several new documents to the Tribunal unavailable to the Minister’s delegate including:

    ·New taskera (no: [number deleted]) obtained through the Afghan Embassy in Canberra issued [in] 2018 and its translation;

    ·Verification letter from the Afghan Embassy in Canberra for taskera (no: [number deleted]);

    ·Mother’s Taskera (no. [number deleted]) issued [in] 2012. This taskera references the husband’s record correctly.

    ·Father’s taskera (no. [number deleted]) signed [in] 2018

    ·Afghan passport (no: [number deleted]) issued on [in] 1993;

    ·Two Pakistani Visitor visas

    ·Pakistani marriage certificate

    ·Statutory declarations from [a person], an Australian citizen who was born in the same village as the applicant and confirms that he has known the applicant since childhood and [another person] who was born in a neighbouring village but states that he has known the applicant since childhood.

30. The applicant’s original taskera first provided to the Department at his entry interview raised some concerns. The taskera appeared to have been tampered with and described him as being married with three children. I give some weight to the appearance of tampering. In response to the incorrect information of him being married, the applicant explained that when he applied for the taskera in 2009 the application form was difficult to understand and he made mistakes completing it. He said that it was obviously a mistake as the taskera notes that he was [age] years old at the time.

31. I asked about how his age came to be recorded in the taskera as he claimed not to know when he was born. He described the process as appearing before the officer and being asked how old one is, the applicant saying [age] years old and the officer looking at him, responding by saying that he looked more like [age] and recording the age as [age] at a certain time of the year. This aligns with information from the DFAT Country Report on Afghanistan which notes that district population registration officers complete taskeras manually.[6] He claims that he was told by his father that he was born during the wheat harvest, which the applicant claims to be in June or July each year. As noted earlier this is supported by a USAID published report.

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report, 27 June 2019 at [5.48]

32. Subsequent to the Departmental decision to cancel his visa the applicant applied to the Afghan Embassy in Canberra and provided to the Tribunal two relevant documents—a new taskera and a verification document. That the new taskera was obtained through the Afghan Embassy in Canberra is significant along with the verification letter.

33. Other new documentary evidence he provided included a copy of his father’s taskera which was presented to the Tribunal in the form of a photograph of the original folded and faded document set against a carpet background. I give this considerable weight for the reason that it would be hard to forge an aged and weathered document in that way. The mother’s taskera aligns with country information in its form and content and as such I give it some weight. The applicant’s Afghan passport is a product of the taskera and as such I give it little weight. The two Pakistani visitor visas are important as they indicate that the applicant had to obtain a visa to enter into Pakistan. If he was a Pakistani citizen, as surmised by the delegate, then this would not be necessary. The applicant also provided a copy of his marriage certificate in two different formats. In one format the Pakistani identity card number, known as a Computerized National Identity Card (CNIC), is blank whereas his wife’s is completed. This suggests that the applicant doesn’t have a CNIC and therefore is not a citizen. In the other the marriage certificate lists the applicant as Afghan. I give both of these some weight.

    Conclusion

34. I now turn to the question of the applicant’s identity. Acknowledging that identity is a combination of elements that goes beyond a government issued document or a name but to the heart of who a person is or as the National Identity Proofing Guidelines states, ‘allow(s) a person to be uniquely distinguished from others within a specific context.’ For the applicant, as with others, in the cultural context of Afghanistan this would include being known by the parental lineage, language group and fellow villagers as well as official documentation. It is not in dispute that the applicant’s parents are who he claimed them to be and that he is a part of a family he has consistently claimed to be a part of. There were doubts over the location of his early years but these have been dispelled by the applicant’s ability to detail the small towns surrounding his village, photographs of his childhood which included background landscapes aligning with the topography of his birth area, documentation from an Afghan hospital for his mother’s treatment and the requirement for him to obtain a Pakistani visitor visa each time he travelled to Pakistan. The government documentation that he provided including taskeras for his mother and father along with his own, obtained via the Afghan Embassy in Canberra, add further weight to his claimed identity. Considered holistically, the applicant’s biographical and documentary evidence is robust and any doubts that are raised have been responded to with logical reasoning.

35. I note that the visa was cancelled under s.116(1AA) and as such the grounds for cancellation are that the Tribunal must be satisfied with the visa holder’s identity. It is not relevant to consider other material which the delegate engaged with including whether the applicant deliberately and knowingly provided inconsistent personal information. What matters with a cancellation under this section of the Act is whether I am satisfied in knowing who the applicant is. In this instance I am. As such for these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 866 (Protection) visa.

   Denis Dragovic
   Senior Member