1818508 (Migration)

1818508 (Migration) [2020] AATA 1264 (24 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1818508
MEMBER:Sean Baker
DATE:24 April 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 200 (Refugee) visa.

Statement made on 24 April 2020 at 1:49pm
CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – incorrect information in his visa application – applicant claimed his Pakistan documents are not genuine – exclusion from Pakistan citizenship for Afghan nationals – fear of return to Afghanistan and Pakistan – Pakistani Computerised National Identity Cards and driver’s license – genuine identity documents obtained fraudulently – Pakistan identity documents not used in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, Schedule 2
CASES
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Briginshaw v Briginshaw (1938) 60 CLR 336
Kumar v MIMA [1999] FCA 156
MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282
NBKE v Minister for Immigration [2007] FCA 126
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

[The applicant] is a Hazara and a Shia. He was born in Afghanistan in Jaghori, Afghanistan, but left when he was only [age] years old due to the conflict there. He and his family settled in Quetta, Pakistan, and lived in one of the Hazara enclaves there. After several violent incidents he fled to [Country 1], where he was recognised as a refugee of Afghan nationality by the UNHCR. On this basis he was granted an offshore humanitarian Subclass 200 (Refugee) visa in 2014 and travelled to Australia.
The Department told the applicant they intended to cancel his visa in April 2018. He responded, and the delegate of the Minister considered this response but decided to cancel the visa. The delegate cancelled the visa under s.109(1) of the Migration Act 1958 (the Act) on the basis that the applicant provided incorrect information in his visa application.
The Department had information from the Pakistan authorities which the Department considers establishes to the requisite level of satisfaction that the applicant is a citizen of Pakistan, and that he therefore provided incorrect information when making his application. The applicant maintains that he is a citizen of Afghanistan and no other country and that, as he has consistently claimed, his Pakistan documents are not genuine.
The question before me is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. The legislative scheme applicable to this decision is set out in the attachment.
In resolving this issue, I have had regard to the information on which the Department relied, the evidence of the applicant, and the most recent and comprehensive country information I have available.
After considering all the information before me I have come to the view that the applicant is not a national of Pakistan and has not provided incorrect information, the reasons for which I have set out below.
On this basis I have concluded that the applicant did not provide incorrect information and therefore that there was no non-compliance as described in the s.107 notice. This leads me to conclude that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Was there non-compliance as described in the s.107 notice?
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. In the present matter, I am 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.
The issue before me 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 in the following respects.
In this case the particulars of the information provided in the s.107 notice are that the applicant is a national of Pakistan, which he did not state in his application for an offshore humanitarian, subclass 200 visa application, and that he incorrectly stated he had a fear of harm on return to Afghanistan, as he has a right as a Pakistan national of entering and residing in that country. In relation to this second point, despite the delegate noting that the applicant had also claimed to have been targeted for harm in Pakistan, the delegate did not consider this
In that application the applicant was asked his name, details of his birth and his citizenship. He stated that he was born in Afghanistan and was a citizen of Afghanistan.
As part of that application, he provided what was claimed to be fake Pakistani Computerised National Identity Cards (CNICs) for himself and his wife as well as a Pakistan drivers licence. He claimed in his application that the CNICs were obtained so that his children could be enrolled in school in Pakistan.
The Department stated in the notice that both CNIC numbers had been verified by the Pakistan National Database and Registration Authority (NADRA) which had verified the CNIC numbers belonging to the applicant and his wife as genuine.[1] The notice went on to cite country information that indicates that CNICs are held by Pakistani citizens and cannot be held by non-citizens, and to information that to obtain a CNIC a person is required to provide the CNIC number of a blood relative, their own birth certificate, school certificate or citizenship certificate.
[1] NADRA, under the provisions of the NADRA Ordinance, 2000, operate a centralized database of citizens with the family tree of each person documented. They issue Computerized National Identity Cards (CNICs) to citizens after the provision of key identification documents. NADRA is not mandated to carry out determination of Pakistani nationality but is the only government agency running such a comprehensive and centralized database of citizens – Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
The Department, in the s.107 notice concluded that this information indicated that the applicant appeared to be a Pakistani citizen and was so at the time he lodged his offshore visa application. The Department concluded the applicant had not complied with s.101(b) because he appeared to be a Pakistani citizen at the time of lodging his application and did not declare this in his application.
The Department went on to state that it appeared to be incorrect that the applicant feared return to Afghanistan as he was a citizen of Pakistan with a right to reside in Pakistan.
The applicant’s representative responded with a detailed submission that argued the s.107 notice was invalid because it had not particularised the incorrect information, because the applicant could be a citizen of both Afghanistan and Pakistan, and that the applicant had not ever been aware of the reasons for his visa grant and had provided all truthful information to the Department. The submission goes on to state that he is not and has never been a lawful citizen of Pakistan, obtaining Pakistani documents for himself and his children via an agent and unaware of whether they were legitimate, or the authorities would find out about the documents being bogus. He had provided truthful information at all stages. It was also submitted that he had legitimate fears of harm if he returned to Pakistan, having detailed in his offshore application incidents which led to him departing Pakistan. It was further submitted that the visa should not be cancelled as the applicant had been persecuted in Afghanistan and Pakistan, if removed he would be exposed to risk in both countries, he has settled in Australia, developed good skills in his job, has lodged his tax return, and there was an element of unfairness as he had provided all his documents at the time of lodging his offshore application.
At hearing the applicant said that he had been born in Jaghori, Afghanistan. At the age of [age] he and his family fled to Afghanistan and lived in Quetta. His wife and children remain in Quetta. He fled Quetta after some incidents and went to [Country 1] where he was recognised as a refugee by UNHCR in 2013. Then he completed the forms to come to Australia. He believes that UNHCR gave his documents to the Australian government. He had explained that his Pakistan documents were not genuine to the UNHCR officer who had told him not to worry about it as it was fake.
The applicant explained that he believed he was a national of Afghanistan and no other country. He said that on the three occasions he had travelled to Pakistan to see his family, he had used his Australian travel document and had been registered as a foreigner and had to report to the local Pakistan police station there weekly.
I asked how this information could be reconciled with the information from the Department that Pakistan authorities had indicated that the CNICs were genuine, which may indicate that they were citizens of Pakistan. The applicant said that he could not explain it but that he was sure he was not a genuine Pakistan citizen. They had acquired these things with money. He said that he believed that Pakistan did not grant citizenship to Afghan nationals.
At the hearing I found the applicant to be highly credible. He presented his evidence in a straightforward and unadorned manner, 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 biographical details the applicant has given have been tested and accepted by the UNHCR decision maker, and the delegate of the Minster who granted the subclass 200 visa. His evidence at the hearing was entirely consistent. 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 1990. He provided detailed information about his birthplace and surrounding areas of Afghanistan to the UNHCR decision maker. He provided to the Department translated Afghan Taskeras for himself, his wife and his father.
The delegate of the Minister who cancelled the visa accepted the applicant was a Hazara Shia, that the applicant’s father was an Afghan citizen and the applicant may have also been an Afghan citizen by birth, but that his residing in Pakistan for over 20 years and the existence of a genuine Pakistani CNIC is strong evidence the visa holder is a Pakistani citizen and is recognised by the Pakistani authorities as a Pakistani citizen. As Pakistan does not allow dual nationality with Afghanistan, he could not have held both citizenships at the same time.
Before me the applicant provided a confirmation of refugee status from UNHCR [in Country 1] dated [in] July 2019 which puts his place of birth as [a village in] Jaghori, Afghanistan, records that he was recognised as a refugee by UNHCR in June 2013 and that he was resettled in 2014. He also provided a Pakistan travel permit dated January 2018 under the registration of foreigner’s rule.
The applicant has provided primary identity documents of Afghanistan, the Taskeras of himself, his father and his wife. He has consistently stated that he was born in Jaghori, Pakistan and has described the area, in detail, to the satisfaction of the UNHCR decision maker. He has consistently stated that his family left Afghanistan for Pakistan when he was [age], around 1990, which is consistent with information that many Hazaras fled Afghanistan around this time.
On the basis of the applicant and his family’s Taskeras, and his consistent statements, I accept that the applicant was born in Afghanistan around [year] to Afghan parents and that he and his family fled to Pakistan in or around 1990 and resided in Quetta. I accept on the basis of his Taskera and that of his father that the applicant was at the time of his birth a citizen of Afghanistan.
The issue to be determined therefore is whether the applicant since the time of his birth has gained Pakistan citizenship instead of, or in addition to, his Afghan citizenship.
Has the applicant gained Pakistan citizenship?
The Hazara are easily distinguishable by their Eurasian features. They have lived historically in central Afghanistan. They are overwhelmingly Shia. They have been discriminated against and targeted for harm by the Soviet backed regime and then the Taliban. This led many Hazara to seek refuge in Pakistan:
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.[2]
[2] EASO, Pakistan Country Overview, August 2015, >
Country information details 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.[3] 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[4].
[3] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.
[4] 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.[5] 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.[6]
[5] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.
[6] 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.[7] 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.[8]
[7] 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.[9]
[9] 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.[10]
[10] 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.’[11] 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. [12]
[11] 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 type="1">
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.[13]
[13] 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.[14] 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.[15] 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.[16]
[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 Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, Sections 14, 2 of the Foreigners Act 1946.
[16] 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 greater and 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.[17] 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.[18]
[17] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,
[18] 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.[19] 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.[20]
[19] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.
[20] 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 country information.[21] 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.
[21] 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.
As I have accepted, as did the delegate, that the applicant was born in Afghanistan to Afghan parents in or around [year], and did not arrive in Pakistan until 1990, the applicant cannot take advantage of the 1962 recognition. On the basis of the country information I have considered above, I also 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.
Is the applicant’s CNIC ‘genuine’ and does it demonstrate his citizenship of Pakistan
The fact remains that the applicant and his wife’s CNICs were found to be genuine by NADRA. Relevantly to this case, s.100 of the Act makes clear that an answer to a question is incorrect even if the person who gave that answer did not know that it was incorrect. The applicant would have provided incorrect information if the evidence establishes he is a citizen of Pakistan, even if it is accepted that he was not aware of this.
However, the country information indicates that the situation is not as clear as the response from NADRA may suggest.
Corruption is endemic in Pakistan, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[22] 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.[23] 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.[24]
[22] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.
[23] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.
[24] 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.[25]
[25] 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.[26]
[26] 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 note 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)[27]
[27] 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 and that of his wife, 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 issuance 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 have not.
The applicant has always maintained that the CNICs issued to him and his wife were not genuine. He has not relied on these as documentation other than for his children’s schooling and in Australia he did not use what he claims is his fraudulently acquired driver’s licence to gain a full Victorian licence, instead obtaining a learner permit first. These actions, my assessment that he is credible and the consistency of these claims with the above country information lead me to accept the applicant’s claim that he obtained these CNICs 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.
The applicant says that he does not know how then the CNICs were generated, whether they are fraudulent, or genuine documents fraudulently obtained. On the country information, if they are the latter, then the country information demonstrates that NADRA may have difficulty detecting them as such.
There is a distinct possibility that NADRA may engage in further investigation of the applicant and his wife’s CNICs in light of the query from Australian authorities. The country information indicates that this is a focus of NADRA and legislators. There is some risk I consider on the country information, that the applicant’s CNIC may be blocked.
But the fact remains that NADRA responded that the applicant’s CNIC is genuine. Read with s.100 of the Act, does this mean that the applicant, unbeknownst to him, was in fact a Pakistan citizen, and therefore answered these questions in his application for the visa incorrectly?
It does not.
I do not accept that the holding of a CNIC by itself, establishes that the applicant is a citizen and national of Pakistan and therefore that he provided incorrect information when he did not include this nationality in his application. I accept the submission of the applicant’s representative that the ratio in NBKE v Minister for Immigration [2007] FCA 126 (NBKE) has application to this case despite that case dealing as it did with a visa refusal. In NBKE, the applicant was assessed by the Tribunal against Indonesia as her country of nationality despite the Tribunal accepting her evidence that the Indonesian passport she held had been obtained by a people smuggler on the basis of a bogus marriage by her to an Indonesian national, and argued that she had not acquired Indonesian nationality, nor lost Chinese nationality, and hence the passport contained inaccurate information insofar as it stated that the appellant was an Indonesian. Siopsis J held that:
The failure of the Tribunal to address the appellant’s contention meant that the Tribunal did not consider whether this was an occasion when it should exercise its powers of inquiry under s 427(1)(d) of the Act to ascertain from the Indonesian authorities whether in the appellant’s circumstances, the appellant would be entitled to Indonesian nationality, and whether she would qualify for protection by the Indonesian state (Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16).[28]
[28] NBKE v Minister for Immigration [2007] FCA 126 at [20].
In the present case, the situation can be seen as analogous – the applicant maintained to the Department, indeed, has maintained since his claims were first examined, that he was a national of Afghanistan only, and that the CNICs he had provided were false and did not demonstrate Pakistan citizenship. The country information above establishes that Afghans who have arrived after 1962 cannot acquire Pakistan citizenship through any legitimate method. The country information establishes that fraudulent and genuinely issued fraudulently obtained CNICs are present in Pakistan.
Given this, the inquiry to NADRA, and the response, 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 he obtained the CNIC fraudulently. I have found that there is no basis for an Afghan citizen in the applicant’s position to legitimately obtain Pakistan citizenship. I find that the information from NADRA that the applicant and his wife hold genuine CNICs, 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 a national of Afghanistan only, born in Jaguri, Ghazni, and that he was not at any time a national nor held citizenship of Pakistan. Therefore, I find that the applicant did not provide incorrect information in his response to question 2 of Form 842.
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 those answers he claims to fear harm on return to his country of nationality, Afghanistan.
Although not necessary in this case, I note that the situation continues to be dangerous for Hazara in both Afghanistan and Pakistan.[29]
[29] See DFAT Country Information Report Afghanistan, 27 June 2019; ‘'What you won’t learn from the NYT op-ed by the Taliban’s deputy leader', Long War Journal, The, 20 February 2020, 20200224121819; ‘Reintegration of Ex-Combatants: Lessons from the U.S. Experience in Afghanistan’, 19 September 2019, Special Inspector General for Afghanistan Reconstruction, 20191101102841; DFAT, Country Information Report Pakistan, 20 February 2019, EASO, Pakistan Security Situation Report, October 2019, >
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 protection 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.
Conclusion
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.
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 200 (Refugee) 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 1264

24 April 2020

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