1825729 (Migration)

1825729 (Migration) [2020] AATA 5583 (21 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1825729
MEMBER:Meena Sripathy
DATE:21 December 2020
PLACE OF DECISION: Sydney
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 21 December 2020 at 11:35am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – identity – different names, dates of birth, family members and documents – initial inconsistent explanations for differences, later reasonable and plausible explanations – false details used for visa application to another country, and for unauthorised maritime travel to Australia – consistent and credible evidence – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1AA)
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 dated 30 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to the applicant’s identity and, having considered the applicant’s response to the notice of intention to consider a cancellation, decided to cancel the visa. 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 on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] in person and [Mr B] by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari 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.
BACKGROUND AND EVIDENCE
The applicant is an Afghan male, of Hazara ethnicity and Shia Muslim religion. He arrived to Australia [in] April 2010 by boat at Christmas Island. He applied for a Refugee Status Assessment (RSA) which was initially refused. On review by an independent merits reviewer he was recommended to be recognised as a person to whom protection was owed and he subsequently lodged and was granted a protection visa on 9 November 2011.
Since his grant of a Protection visa, the applicant has travelled outside Australia on three occasions, from [April] to [August] 2014, from [May] to [July] 2015 and from 15 [July] to [September] 2017. He married [in] June 2014 in Quetta, Pakistan.
On 10 November 2015 the applicant applied for Australian Citizenship.
On 9 January 2018, the applicant sponsored his wife, [Ms C] and son, [Master C] for a Partner Combined (UF309/BC 100) visa.
On 26 February 2018, as part of the Citizenship application process, an Identity Assessment Report was completed, finding that his identity was not supported.
On 18 April 2018 the applicant was sent a Notice of Intention to Consider Cancellation under s116 of the Act (NOICC). The NOICC advised that the delegate was considering the cancellation of his Resident Return (subclass 155) visa under s116(1AA) on the basis that the delegate was not satisfied as to his identity.
In summary, the NOICC set out the following information indicating that the ground may exist:
·     In his request for RSA he claimed his name was [the applicant] born in Afghanistan on [Date 1]. He stated that his family left Afghanistan in 1998 because of issues his father had with the Taliban and has since resided in Pakistan, though his father since deceased. He stated that his Tazkira was taken form him when he was [age] years old. In response to questions about whether he was known by any other names, he answered “none”. He stated that he had no documentation as evidence of his identity, but that he had used a false passport by the name of [Alias 1 given name] (son of [Alias 1 father’s given name]) issued in Quetta by the Afghanistan authorities to travel to Australia which was taken by the smugglers who arranged the trip. He also stated that his Tazkira was previously taken by the Taliban in 2008.
·     During the processing of refugee request, the Department received information on 24 June 2010 confirmed by fingerprint analysis that he had previously applied for a visa to [Country 1] in Islamabad, Pakistan on 13 November 2008 using an Afghan passport in the name [Alias 2] (son of [Alias 2 father’s given name]) born [Date 2].
·     He did not declare this document or identity in his RSA Interview on 14 July 2010, until it was put to him for comment and in response he claimed it was a false passport and he used it to travel back from Pakistan to Afghanistan in 2008 and that he used a false name so the Taliban would not identify him because his father had previously been targeted. He later stated that a cousin of his arranged the passport for him because his life was in danger and he had no documentation to stay in Pakistan.
·     In his Protection visa application lodged on 1 November 2011 in the name of [the applicant], he declared [Alias 2] as another name he was known by, as well as [Alias 1 given name] son of [Alias 1 father’s given name], being the name used for the false passport on which he travelled to [Country 2].
·     In his Citizenship application made on 10 November 2015 he provided a Tazkira in the name of [the applicant] ([Date 3]) issued [in] 2009. At question 4 of Form 80, provided on 7 January 2016, he answered “no” to whether he had been known by any other name.
·     An Identity Assessment Report completed as part of the Citizenship application process on 26 February 2018 considered information provided throughout the applicant’s history with the Department and the identity officer noted that he had provided various names and dates of birth.
·     The applicant claimed at his Entry Interview on 2 May 2010 to have registered with the UNHCR in [Location] Pakistan in 2006 and in [Country 2] in 2010, and he provided a Proof of Registration card issued by NADRA Pakistan in the name of [the applicant’s given name] son of [Mr A given name], issued to Afghan nationals who lived in Pakistan prior to 2009. A check with UNHRC Pakistan was unable to verify this information.
·     Open source internet searches ([Social media]) under the applicant’s profile indicate various family contacts, including an older brother [Mr B alias] residing in [Country 1]. This person is not included in the applicant’s family composition listed in his Protection visa application, which had three brothers ([Mr D], [Mr E], [Mr F]) and a sister [Ms G]. Also revealed on [Mr B alias]’s [Social media] posts are various photographs taken in April and July 2014 that appear to show male members of the family and the applicant and [Mr B alias] in Pakistan.
The NOICC identified several inconsistencies relating to establishing the applicant’s true identity, including:
·The fingerprint matches with [Country 1] matched to a different name and date of birth, yet when this was put to the applicant he provided two different reasons for the use of the name [Alias 2]: that he used it to travel back to Afghanistan in 2009 and he was seeking a visa to [Country 1] because his life was in danger and had no documents to remain in Pakistan.
·Despite claiming to have no documents to remain in Pakistan he managed to gain employment there as [an Occupation 1].
·He provided three different dates of birth in the name of [the applicant].
·He made several different claims about when his Tazkira was taken (when he was [age] years of age, and in 2008) and yet he obtained a Tazkira dated 2009 which he provided with his Citizenship application. He stated upon arrival however that he did not have a Tazkira.
On the basis of the above the delegate was not satisfied the applicant had provided reliable documentary evidence to support his identity and a ground under s116(1AA) arises to cancel his visa. He was invited to respond and to provide information as to why the visa should not be cancelled.
The applicant provided a detailed response addressing the matters referred to in the NOICC and providing supporting documentation. He submitted that there is no ground to cancel his visa and requested reconsideration of the matter. The applicant’s response provides explanations and further clarification of the various dates of birth that appear in his various dealings with the Department. He provides the following information:
·He confirms that his correct year of birth is [Year 1], which he corrected at an early interview after consulting with his family from the records in the holy book. He does not know the day and month because this is not recorded. The year of birth is supported by his Tazkira and other documents provided.
·With regard to the matter of the Tazkiras he clarifies that his first one was confiscated by the Taliban in 2008 and denies that he ever claimed to have one taken from him at age [age]. He explained that after losing his Tazkira in 2008 he asked his cousin in Kabul to get him a new one but then lost touch with that cousin until after he had been in Australia for some time. When he reconnected with his cousin, after he was released form detention, he found out he had been able to obtain a new Tazkira for him and this is the one he provided to the Department with his citizenship application. He stated that it is permitted for a close relative to apply for a Tazkira on behalf of a relative in Afghanistan and confirms he did not apply for it himself. He states that the replacement one replicates the details in his original one and is genuine.
·Regarding the matter of the passport, the applicant reiterated that he has never applied for and obtained a genuine Afghan passport. The one in the name [Alias 2] (son of [Alias 2 father’s given name]) was prepared by his cousin in [Country 1] and he applied for the visa for him. He states [Mr B alias] is his cousin and not his brother. The second passport, in the name of [Alias 1 given name] son of [Alias 1 father’s given name] was one arranged by the people smuggler to travel to Australia. Both of these passports were for those specific purposes and used for short times only. They do not represent his identity because they are not in his true identity.
·He has always been known as [the applicant’s given name] and has never changed his name. All of his documents including his Tazkira, education certificates, marriage certificate, child’s Tazkira, birth certificate are in this name. He answered no to the questions in the forms about whether he had any passports because they were fake documents and not representing his true identity.
·He applied for the registration Card issued by NADRA Pakistan in the name of [the applicant’s given name] son of [Mr A given name], which was issued to Afghan nationals who lived in Pakistan prior to 2009. In Quetta this was known as a “refugee card” and that is why he answered yes to whether he had registered with UNHCR. He now realises that UNHCR registration is different and confirms he did not register with UNHCR in Pakistan and meant by his response the NADRA Registration Card.
·He confirmed he has travelled overseas three times since coming to Australia. The first two times he went to Pakistan and the third time to [Country 3] to see his wife. He married his wife in the first visit. Afterwards, due to the security situation in Quetta she moved to Herat, Afghanistan. She travelled to Pakistan to visit him the second time, but because of a bad experience they decided to meet in [Country 3] the third time.
·He provided further explanation about his education history and how he came to be able to [work] at the [Workplace] in Pakistan without a [qualification], as it is a private [workplace] and its [workers] are not registered.
·The applicant apologised for any apparent inconsistencies and insisted he had no intention to provide or give false information. He pointed out that the unintentional inconsistencies were known to the Department before he was granted the visas in 2011 and he has added nothing new since then that has been inconsistent. He has since been a law abiding resident for the past 8 years and an asset to the community. He is a refugee from one of the most persecuted religious and racial minorities in Afghanistan and fled the country to seek protection in Australia. The security situation has deteriorated considerably since then. If his visa is cancelled it will have a devastating impact on his life and the life of his family.
The delegate’s decision record lists the supporting documents provided by the applicant with his response.
The delegate considered the applicant’s response and relevant law and policy regarding the matter of cancellation of visa and concluded that the she was not satisfied that he had provided sufficient explanation for the Afghan passport in a different name and date of birth matching his fingerprint and photo and therefore was not satisfied as to his identity and the ground for cancelling the visa was made out. The delegate concluded that the grounds for cancelling the visa outweighed the reasons not to and decided to cancel the visa under s116(1AA) of the Act.
Before the Tribunal the applicant provided documents previously submitted to the Department in support of his response to the NOICC. In addition to these documents he provided the following further evidence:
·Statutory Declaration from the Applicant dated 30 November 2020
·Statutory Declaration from [Mr A] dated 27 November 2020
·Statement from [Mr B] 18 November 2020
·[Mr B] (brother) [Country 1] Drivers Licence
·[Mr D] (brother) [Country 4] residency temporary visa card
·[Ms H] (mother) Afghan passport
·[Mr F] (brother) Afghan passport
·[Ms G] (sister) Afghan passport
·[Mr E] (brother) Afghan passport
·[Mr A]’s documents, including Document for Travel to Australia and 2017 travel document
·Character Certificate and Confirmation of Employment from [Workplace]
In his Statutory Declaration dated 30 November 2020 the applicant provides the following further information:
·Regarding his 2009 Tazkira, he provides the name of his cousin who assisted him to obtain it, and the documents he provided to him to do so. He gave him his father’s Afghan national Identity document and year 12 Graduation Certificate. The Tazkira was issued [in] August 2009. The document indicates he was born in year [Islamic calendar year] which equates to [Gregorian calendar dates]. It is a genuine document. He has forwarded it to the Afghan Embassy in Canberra for verification and is waiting on the response. In any event his son’s National Identity Document has been verified which means that his must have been also.
·Further explanations about the inconsistencies regarding his age.
·Explanation of the origin of his [family name] - that it comes from his grandfather’s [given name]
·He married in Quetta [in] June 2014 but did not obtain a Afghan Marriage Certificata Booklet at that time. He attended the Afghan Embassy in 2017 and completed Power of Attorney to allow an Afghan Marriage Certificate to be issue without his presence. This was issued [in] November 2017 and he submitted this with his wife’s partner visa application. He also submitted documents relating to his son, [Master C] who was born on [Date 4].
·The applicant concedes that he provides inaccurate information about his family composition to the Australian authorities and he now wishes to correct this and set the record straight. His father, [Mr A], is not deceased. He travelled to Australia on a [Subclass] visa from [Country 2] in 2015. He lives with his father since 2019. He also failed to mention his older brother, [Mr B alias] who resides in [Country 1]. He went there around 2001. He is known as [Mr B] in [Country 1]. The applicant explains that the reason for these omissions and inaccurate information is that he wanted to be able to bring his younger siblings to Australia and believed the smugglers who told him that his chances to do that were less if his father and older sibling were alive. He sincerely apologises for the wrong information. He confirms the correct family composition and explains the different family names used by them. His younger brother [Mr D] travelled to [Country 4] and is living there.
·The applicant explained that he maintained the incorrect information to this point because he was ‘frozen in fear’ of losing his visa. He now wants to take this opportunity to correct the record on all matters relating to his background and identity.
·Regarding the alias [Alias 2], he explains that this matter was before the Department at the time of his protection visa application. His brother [Mr B] proposed that either he or one of the brothers join him in [Country 1]. The applicant was in high school at the time. Initially it was to be his brother [Mr E]. The applicant explained that while he had a passport from Quetta Consulate he didn’t have a Afghan Identity Document, and eventually it was decided that the applicant go in his place and that is how he came to have his fingerprints and photo attached to this application.
The Statutory Declarations of [Mr A] and Statement of [Mr B] confirm the applicant’s declarations regarding their family relationship and the context in which the incorrect information was provided. The applicant indicates both will be available at the hearing to given evidence.
Tribunal hearing 10 December 2020
At the hearing the applicant confirmed his address and that he is living with his father, [Mr A] and a friend. He works as [an Occupation 2]. In addition to his father, he has a maternal aunty and a maternal uncle in Australia. They live in Brisbane and have been been in Australia since before he arrived. Overseas, he has a brother, [Mr B], residing in [Country 1], and [Mr D] who resides in [Country 4] now. His mother and the rest of his siblings, being [Mr E], [Mr F] and [Ms G] reside in Herat, Afghanistan. The two younger boys are at school and his sister is studying at university. His father has only one wife and these are all his siblings. When asked about the significant age difference between himself and his next youngest brother, the applicant said that [Mr D] is in fact only about 5 years younger than him and the age recorded for him may not be accurate. There is about a 3 year age difference between himself and his older brother, 5 years between him and [Mr D], another 5 or so before his sister and the last three are close in age.
The Tribunal asked the applicant about the passport in the name of [Alias 2]. He said his brother in [Country 1] organised for this document. It was made in the name of his younger brother because it had to be for a person under the age of 18 years. The applicant presented himself for a visa with this document. The name on the document was chosen by [Mr B]. [Mr B] used [B] as his family name when he went to [Country 1] in the same way the applicant chose [the applicant’s surname]. They did not have surnames previously. The applicant explained that he used this document because his life was in danger and he needed to try to get out of the country. The Tribunal put to him that if the document was in the name of [Mr D], who according to the age given to him would have been around [age] years old then, how would be, whose year of birth was [Year 1] and would have been around [age] years then, have been able to pass off. He said they were just giving it a try and the intention was to correct the information at a later time. But in the end the visa was refused. He didn’t use his own name because he was over 18 years at that time. The reason he was chosen to present for the visa was because at that time he had finished high school and was unable to return to Afghanistan because of the situation there and was unable to continue to study in Pakistan without documentation. It was his attempt to get out. [Mr E] was the sibling who was under 18 years at this time so the passport was in his name. His brother [Mr B] made all the arrangements through a smuggler. He was given an address to go to apply for the visa in Karachi, it was not the embassy.[1] When asked if he ever used this document for any other purpose, he said he did not. When asked where the document is now, he said he does not know, he lost it.
[1] The Tribunal notes [Country 1] has a consulate office in Karachi [URL deleted]

The Tribunal asked if he travelled to Afghanistan from Pakistan. He said he did, after this visa was refused. He did not use this passport when he travelled there. The Tribunal noted that at his RSA interview when asked about this document he initially said he used it to travel to Afghanistan. He said at that time he had not realised it had been disclosed. The Tribunal noted that at his next interview at the IMR stage he gave a different explanation. The applicant said he wanted to explain more at this time but was not asked about it. He confirmed that [Mr E] has a current Afghan passport, which he provided to the Tribunal, and he never used this one. After the [Country 1] visa was refused it was never used again.
The Tribunal asked about the history of his Tazkira document. He said his first Tazkira was arranged by his father before completing school. When he finished high school, he returned to Afghanistan and this Tazkira was taken from him by the Taliban. He did not have a copy of it. He obtained the second Tazkira in 2009, arranged by a cousin of his called [Mr I] who lived in Kabul. He told this cousin about what happened to his document and the cousin said he would try and get him another one. The applicant gave him a copy of his father’s Tazkira and his school certificate. After that the applicant did not follow up with him and left to travel to Australia. When he returned to Pakistan in 2014 he saw his cousin who told him that he was able to get the Tazkira. The Tribunal put to the applicant that independent information it has looked at indicates at that point in time, it appears that ‘personal presence’ is required for the issuance of a Tazkira[2] which may lead the Tribunal to have some doubts about the veracity of his account of how he obtained this. In response the applicant said that may have been the case in Kabul and Ghazni but not in Jaghori because most of the people there are Hazara and to help students get their id documents they were more flexible about approving it. He said it was not the first time they issued him a Tazkira – his father was able to obtain it previously when he needed it to get his school certificate and he had his father’s tazkira. He pointed out that the school certificate together with his father’s tazkira was sufficient to establish is identity.
[2] Afghanistan: The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad >
The Tribunal asked the applicant when his family left Afghanistan to come to Pakistan. He said his parents and younger siblings came in 2007. He and his older brother had left much earlier, in 1998, for their education and peace. They were quite young at that time. They lived with relative’s of his father.
The Tribunal put to the applicant that he has given quite different evidence throughout his refugee processing and he had not previously mentioned the attempt to get a new Tazkira and inconsistently, said that his education certificates and tazkira was taken from him in 2008. The applicant reiterated that it is true his tazkira and school certificate were taken from him. Later he applied for a copy of his school certificate. He didn’t mention the 2009 tazkira in his RSA process because at that time he did not know his cousin was able to obtain it - he only found out about this later in 2014.
The applicant told the Tribunal bith he and his father have since applied for new Tazkiras through the Afghan Embassy in Canberra, but they have yet to receive it. He is not sure if it is a new Tazkira or a verification of his existing one. They did this for the purpose of applying for citizenship in Australia. His father’s tazkira was only a copy of the original one so he needed to apply for a new one. His 2009 tazkira is the original. The Tribunal sighted this document. It also sighted his education documents, copies of which were previously provided. The Tribunal asked if his father has any other id documents such as a military discharge certificate. He said he does not.
The Tribunal asked why he obtained the Afghan marriage certificate in 2017 given that he married in Quetta in 2014. He said he did not register the marriage in Pakistan. At that time he did not intend to lodge a partner visa application. He confirmed that the reason he arranged for the Afghan marriage certificate is to provide documentation of the marriage for his Partner visa application.
The Tribunal asked the applicant what id documents he has obtained since being in Australia. He has held Australian travel documents, a drivers licence, a [workplace] card (for [an] industry) and Medicare card. All of these documents refer to him as [the applicant] born in [Year 1]. He has never used any other name or date of birth.
The Tribunal took oral evidence from [Mr A]. He confirmed his name and that he has not been known by any other name. The applicant is his son. He confirmed his place of birth, and name of his father. The witness stated that he left Afghanistan around 2007. First by himself, and then after 1-2 months his wife and younger children followed. His two elder sons had a long time earlier than that for Pakistan. They left for education and for their safety.
The Tribunal asked the witness when he left Pakistan for Australia. He left around 2012, because of problems he had in Afghanistan. When asked if he named his family members in his application to come to Australia the witness said he does not remember if he did. He thinks he may have been told not to and to correct this after he comes here.
The Tribunal asked the witness about his tazkira and that of his son’s. He said he has a copy of his original one. It was taken from him when he had problems. He remembers that he applied for a tazkira In Afghanistan for his son. He needed it for his education . He was able to get it because he showed his own tazkira and has a representative from the area who can give evidence.
He confirmed that apart from his tazkira he has no other ID documents. He did not do military service in Afghanistan because they were in the countryside and it was not required. He confirmed that he applied for a new tazkira recently at the Embassy in Canberra. He travelled there to apply.
The applicant commented that his father has a very weak memory and this may affect his evidence. He struggles even to remember that they travelled to the Embassy together.
The Tribunal took oral evidence from [Mr B] buy telephone to [Country 1]. He confirmed his name and date of birth. He said he is only known by this name. He wanted ot use another name, [Mr B alias] but it was too stressful a process to change his name so he has not. He uses [Mr B alias] in his social media account, on [Social media]. The witness confirmed the applicant is his biological brother. He listed his other family members, including his parents and siblings. He confirmed that he left Afghanistan in 1998 with the applicant when they were both quite young. He went to [Country 1] in 2001.
When asked if he applied for any of his family members to join him, he said he sent an application for the applicant in 2008. He was trying to bring his siblings to safety. He provided various documents about his situation in [Country 1], showing where he lived and worked. He tried to make applications for his sister and two brothers. He sponsored the applicant in a different name, [Mr E] and tried to sponsor [Mr E] under the name of [Mr F]. He used his sister’s real name. He did this only because he was trying to bring them to safety. He is not proud of what he did. The witness confirmed that a friend arranged someone to provide a passport in the name of [Alias 2] for the applicant. Since these applications he has not applied for any others.
The applicant commented that his brother has confirmed that the sole intention of making the passport in that name was to try to get him to safety. It has never been used since and they have both apologised for it.
The applicant told the Tribunal at the conclusion of the hearing, if required he is prepared to undergo a DNA test to establish his relationship with his father and brother.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, this includes the ground set out in s.116(1AA). Upon review, if the Tribunal finds the ground is not made out, the decision to cancel the visa will be set aside. If satisfied that the ground for cancellation is made out, Tribunal must proceed to consider whether the visa should be cancelled, having regard to all relevant circumstances, which may include matters set out in departmental policy.
Does the ground for cancellation exist?
s.116(1AA) – Not satisfied as to identity
A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity. The term ‘identity’ is not defined in the Migration Act or Regulations or in any binding directions.
According to the Macquarie Dictionary the ordinary meaning of identity includes “the state or fact of remaining the same one, as under varying aspects or conditions”, “the condition of being oneself or itself, and not another”, “condition, character, or distinguishing features of person” and “official information about yourself, as passports, bank account details”.
The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 stated that s 116(1AA) may be used if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine; where the Minister is prevented from being satisfied as to a person’s true identity because there is contradictory or inconsistent information or documents relating to the person’s identity; and where the Minister is not satisfied as to the visa holder’s identity for any other reason.
According to the Departmental guidelines, decision-makers considering whether to exercise the discretion in s 116(1AA) of the Act should have regard to all relevant matters including the visa holder’s individual circumstances and the fact that some applicants will have legitimate difficulties in obtaining evidence of their identity.[3] Section 116(1AA) will not apply if the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed or in response to a notice under s 119, the visa holder satisfies the delegate as to their true identity. It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.[4]
[3] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.
[4] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.
Departmental policy defines the ‘three pillars of Identity’ for visa purposes as consisting of:
·documents - containing biographic information, such as name, date of birth;
·information - the life story of the applicant(s); and
·biometrics - evidence that links a person's biographic information to physical attributes, including facial images and fingerprints.[5]
[5] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity
In the present case the visa was cancelled on this ground (s116(1AA) on the basis of various alleged inconsistencies in information regarding the applicant’s identity that had come to light before the Department. Particulars of this information was put to the applicant in the NOICC and he responded to it in a response to the notice provided to the Department and in written and oral evidence to the Tribunal, detailed above. The Tribunal also had the opportunity to take evidence from the applicant’s father and brother who supported his identity as claimed.
The issue for the Tribunal on review, is whether it is satisfied as to the applicant’s true identity. Having regard to relevant law and policy guidance referred to above and all of the evidence now before it, the Tribunal has reached the conclusion that it is satisfied as to the applicant’s identity. It is satisfied that he is [the applicant], born in [Year 1] and the son of [Mr A], who is an Australian permanent resident.
The Tribunal has considered the concerns and information identified by the delegate in the NOICC. Firstly in relation to the passport in the name of [Alias 2], born [Date 2] to which the applicant’s fingerprints and photo were matched in the context of having made an application for a [Country 1] visa, the Tribunal accepts that the applicant made this visa application but accepts his explanation that he used a false passport, with a false name and date of birth. This information was provided to the Department at the time of processing his RSA in 2010 and put to him at that time. While he initially provided conflicting explanations for this document (saying first he used it to travel back to Afghanistan, and then at a subsequent IMR interview, that his cousin arranged the passport for him to apply to join him in [Country 1]) he has been consistent in stating that it was a false passport in a false name. The Tribunal notes that the only copy of this document available to this date is the scanned copy provided with the FCC check, from which verification cannot be conducted. Therefore, it is not possible to verify whether it is a genuine passport. The applicant asserts it is not. His evidence, which is not contradicted by any other information before the Tribunal, is that he never again used this document apart from that one application for a [Country 1] visa which was refused. [Mr B] confirmed to the Tribunal in his written and oral evidence that he is the applicant’s brother and it was he who arranged for the passport to be made in the name of [Alias 2], being the name of their younger brother who was under the age of 18 years at that time, with a view to helping the applicant make an application for a visa to [Country 1] to join him. Apart from this one document, for which a credible and plausible explanation has been given, there is no other evidence before the Tribunal that the applicant is [Alias 2] born on [Date 2] or has used this name or identity. On the evidence before it, the Tribunal is not satisfied the applicant is [Alias 2] despite his biometrics having been matched to this document.
Against this, the applicant has presented a number of documents to support his claimed identity as [the applicant], including a tazkira in this name, obtained in 2009 and an Afghan Proof of Registration document issued by NADRA which he presented to the Department with his RSA application. Both documents provide consistent information of his name, father’s name and year of birth. He has provided consistent and credible explanations for how he came to obtain each of these documents. The applicant’s full explanation for how he came to obtain the 2009 tazkira and the consistency of this explanation with his earlier protection claims was discussed in some detail during the hearing. While the Tribunal had some concerns about his failure to mention anything about his efforts to get a new tazkira during the processing of his protection application, and conflicting country information about whether it would have been possible for a tazkira to be obtained on behalf of a person at that time, it has considered the applicant’s arguments that the basic information in the document is consistent with his evidence of his family composition and place of origin, it is consistent with the details in his father’s tazkira which he presented to obtain it, and it has been referred to and referenced in the newly obtained birth certificate, tazkira and passport of his son, [Master C], provided to the Tribunal. The applicant also submitted that he has recently applied through the Afghan Embassy in Canberra for verification of his tazkira and is awaiting the outcome of this request. On balance, having considered all of the evidence before it, the Tribunal is satisfied that the NADRA document and 2009 Tazkira sufficiently evidence his identity as [the applicant], son of [Mr A given name], born in [Year 1].
The delegate’s decision records refers to various inconsistencies in the information provided to the Department of the applicant’s age, including references to specific dates of birth which is not consistent with the usual practice of Afghan nationals’ recording their birth details as they usually only refer to year of birth and age. The applicant has provided an explanation for this in his response to the NOICC which it considers to be reasonable and plausible and therefore does not share the delegate’s concerns about this issue. The Tribunal is also satisfied with the applicant’s explanation for the delegate’s concern about how he was able to obtain employment in Pakistan if he had no identity documentation. Specifically he has explained that he obtained employment at the same school he attended, which is a school for Afghan nationals, and having graduated from there itself, they were aware of his identity and qualifications. A supporting letter from the school was provided also.
Before the Tribunal the applicant has submitted a number of additional documents to support the identity of his close family members, including his wife, son, mother and siblings that supports his account of his life story and family history and in that way support his claimed identity.
He has also, for the first time before the Tribunal, corrected information previously provided incorrectly to the Department regarding his brother in [Country 1], [Mr B] (also known as [Mr B alias]) and father [Mr A]. While his admission of having provided incorrect information about his family composition previously is not condoned, the Tribunal accepts that his concessions now adequate address the remaining concerns identified by the delegate and in information before the Tribunal about his identity and true family composition.
For all of the above reasons and having considered all of the evidence, the Tribunal is satisfied as to the applicant’s identity. It finds that he is [the applicant], born in [Year 1], son of [Mr A given name], born in [Location], Jaghori, Ghazni Province, Afghanistan.
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. Therefore it is not necessary to consider the discretion to cancel the visa.
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.
Meena Sripathy
Member

[2020] AATA 5583

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Immigration

Administrative Law

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Judicial Review

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