1831204 (Migration)

1831204 (Migration) [2019] AATA 6899 (22 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1831204
MEMBER:Kira Raif
DATE:22 August 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 22 August 2019 at 9:46am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – applicant’s identity – DNA testing – inconclusive facial recognition examination – combination of various similarities too great to be mere coincidence – bogus document – tazkera – birth certificate – consideration of discretion – lengthy period since the non-compliance – well settled in the community – character references – non-refoulement obligations – possibility of lengthy or indefinite detention – grant of visa based on incorrect information – ongoing provision of incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 107A, 109, 361
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant claims to be a national of Afghanistan born in [month, year]. He entered Australia in June 2009 and was granted a permanent visa in September 2009. In May 2014 the applicant was granted the Resident Return Visa (RRV). On 28 June 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss.101 and 103 of the Act. The applicant’s parents were also issued with the NOICC. The applicant provided his response and his visa was cancelled on 23 October 2018. The applicant seeks review of the delegate’s decision. The visas held by the applicant’s parents have also been cancelled and are the subject of separate review applications before this Tribunal.
The Tribunal wrote to the applicant on 22 July 2019 inviting him to appear before the Tribunal and give evidence. The applicant replied to the Tribunal on 15 August 2019 providing written notice that the applicant wanted the Tribunal to obtain oral evidence from another person. The Tribunal is mindful that s.361 of the Act requires such notice to be provided within 7 days of being notified of the invitation to appear before the Tribunal. It is not apparent to the Tribunal why the applicant, or his representative, failed to comply with that provision. The applicant also provided a detailed written submission to the Tribunal on 15 August 2019. (It is summarised below.) As the hearing in this case was arranged for 19 August 2019, the Tribunal considers the late submission of claims and arguments to be less than helpful. No explanation is offered by the applicant’s representative for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by [Mr A] of [Law Firm 1].
The applicant appeared before the Tribunal on 19 August 2019 to give evidence and present arguments. At the applicant’s request, the Tribunal also received oral evidence from [Dr B]. 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 affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:
a.The applicant arrived in Australia [in] June 2009, claimed that he did not have a passport and made claims to the Customs officer. Essentially, the applicant states that he was born in Afghanistan in [Year 1], that he converted to Christianity and that his uncle [Mr C], who was a Mujahideen commander, threatened to kill him. The applicant stated that he had no relatives in Australia and did not have contact with anyone in Australia before travelling here. The applicant stated that a people smuggler helped him leave the country.
b.There was no record of the applicant’s entry to Australia using the stated name but it was believed he travelled using the passport of [Mr D], which was subsequently declared as being lost.
c.The applicant made the application for the protection visa in July 2009 and was granted that visa in September 2009. He applied for the Australian citizenship in October 2013 and also in May 2014 but these applications were refused. In October 2014 the applicant made another application for the Australian citizenship, which was approved but the approval was cancelled in July 2017.
d.The primary decision record sets out the information the applicant gave in his protection visa application. Essentially, the applicant made the following claims:
i.He provided his name and date of birth and stated that he had not previously made any other application. He stated he had no relatives in Australia. The applicant stated that he had not travelled outside of his country of residence.
ii.The applicant gave his addresses in Afghanistan where he lived from birth until June 2009.
iii.The applicant provided a statement setting out his claims in relation to Afghanistan. The applicant stated that he converted to Christianity. He stated that his uncle [Mr C] threatened to kill him but he was able to escape. A teacher arranged for a people smuggler to take him out of the country. The applicant claimed that his uncle would kill him if he returned to Afghanistan.
e.The applicant provided with his application his Afghan tazkera issued [in] 2008 and a copy of his birth certificate.
The primary decision record refers to the following information:
a.On 11 October 2006 a [Mr E] (born in [month, year]) applied for a Global Special Humanitarian visa. The application included [Mr E]’s son [Mr F]. That application included the Afghan tazkera for [Mr F], which contained the same photograph as the photograph on the applicant’s tazkera submitted in support of the protection visa application. In the Tribunal’s view, that offers strong evidence that the applicant was previously known as [Mr F] and was included in the application made by his father in 2006.
b.[Mr E] was proposed in his 2006 application by his son [Mr D]. This is the same person whose passport the visa applicant is thought to have used for entering Australia. The primary decision record contains the two photographs for [Mr D] and for the applicant showing a strong resemblance, with the delegate concluding that they are siblings. This also supports a finding that there is a familial relationship between the applicant and [Mr D], who was identified as the son of [Mr E] in the earlier application and supports the finding that the applicant was previously known as [Mr F].
c.When [Mr D] proposed the visa application for his father [Mr E] in 2006, he advised his residential address as [Address 1] and subsequently informed the Department he continued to live at that address. When contacting the Department on 30 October 2013 the applicant informed the Department that he lived at the same residential address. This would indicate [the applicant] and [Mr D] had been living at the same address at least between October 2013 and January 2018.
d.On his Incoming Passenger Card (IPC) [Mr D] listed in April 2012 his emergency contact person as [Ms G]. A [social media] search for that name showed an account for [Ms G] with photographs showing her with a person who appears to be [Mr D] with posts indicating they were a couple since 2012 and are married. There is also a photograph dated [in] 2014 showing her photograph which appears to be with [the applicant] with the caption ‘my handsome brother in law’ and another caption referring to the brother-in-law as [Mr F]. This supports the view that the applicant is the brother of [Mr D] and that his real name is [Mr F].
e.In March 2010 the applicant proposed his father for the Global Special Humanitarian visa. The application included the applicant’s claimed brother [Brother H Surname 1] and sister [Sister I Surname 1]. On 11 October 2006 [Mr D] proposed his father [Mr E] for the Global Special Humanitarian visa. Included in that application were his claimed brother [Brother H Surname 2] and sister [Sister I Surname 2]. That is, the applicant and [Mr D] declared two siblings with the same first names, which also supports a finding that the applicant and [Mr D] are brothers.
f.As part of the Global Special Humanitarian visa application made in October 2006, [Mr F] completed Form 80 in which he stated that he left Afghanistan with his family in December 2001 and has been living in [Country 1] since that time. He named his parents as [Mr E] and [Ms J] and referred to his brother [Mr D] living in Australia. If the applicant and [Mr F] are found to be the same person, this evidence contradicts entirely the claims made by the applicant in his protection visa when he referred to persecution in Afghanistan until his departure from that country to Australia.
g.In that application made in 2006, [Mr E] stated that his brothers [Brother K] and [Brother L] were deceased. This also contradicts the applicant’s claims made in the protection visa that he was persecuted by his two uncles [Uncle M] and [Uncle N] until his departure from Afghanistan.
h.In support of the 2006 application [Mr F] also provided a tazkera which identified his father as [Mr E] and gave his date of birth as [Year 2].
The primary decision record indicates that the applicant provided the tazkera with his application for the Australian citizenship, which was the same document submitted with the protection visa application. The Department referred the tazkera to the Afghan authorities for verification. The decision refers to country information indicating that the Ministry of the Interior is the sole identity registering authority in Afghanistan and issues tazkeras. There is no other government authority responsible for making determination on persons’ citizenship or identity. On 19 November 2015 the Department received advice from the Ministry of the Interior in Kabul that the applicant’s tazkera was not registered with the relevant Afghan authorities.
The delegate also found that the birth certificate – which is not commonly issued in Afghanistan – was a bogus document because it was based on the tazkera and reflects the identity information contained in the tazkera, which is a bogus document.
In his written response to the NOICC the applicant stated that when he left Afghanistan, he was [age] years old and did not know what documents were required and all travel arrangements were made by another person. He claims that the information about him using the passport of [Mr D] ‘could possibly be true’.
With respect to his tazkera, the applicant outlined the processes relevant to obtaining his tazkera and the birth certificate and stated that the two documents verified by the Department had an incorrect identification number and the document that was found to be unregistered did not have the correct identification number. The applicant states that his tazkera has been verified by the Afghan embassy in Canberra. With respect to the birth certificate, the applicant states that his father updated his tazkera in 2008 and it was issued by the Ministry of Interior Affairs. The applicant states that it cannot be categorically concluded that his birth certificate is a bogus document.
With respect to the similarities in the two photographs of [Mr F] and [the applicant], the applicant states that there was only one photographer in his city who insisted on the type of clothes and the pose for each customer, the photographer provided clothes and arranged the same hairstyle. The applicant rejects the claim about his ‘double identity’ but states that [Mr F] is from the same racial background and they probably used the same photographer and it is possible to observe similarities. The Tribunal does not accept that submission. The similarities in the two photographs – which are included in the applicant’s written response to the NOICC – are beyond similar clothes and apparently identical hairstyles. The two photographs show very significant similarities in facial features which cannot be explained, in the Tribunal’s view, by stating that they used the same photographer or were from the same racial background. In the Tribunal’s view, the similarities in the two photographs offer very strong evidence that the applicant previously used the identity of [Mr F] (which is supported by the fact that he was identified as [Mr F] on [social media]).
The applicant states that before 2010 he had not heard of [Mr D] and they first met at a place where he lived with another person and later shared accommodation. The applicant points to the differences in his image and that of [Mr D]. The Tribunal finds that submission unconvincing. It is believed that the applicant used [Mr D]’s passport to enter Australia. They gave the same address where they lived for a number of years. Their photographs show very significant similarities (and while the applicant points to differences in their appearances, these could be expected of siblings). [Mr D]’s partner identified the applicant as her brother-in-law on her [social media] page and referred to him as [Mr F], which was the name used in the earlier application. The personal information in [Mr D]’s nomination of his parents’ visa in 2006 was very similar in many respects to the information in the applicant’s nomination of his parents. While each of these issues separately may be explained as coincidence, the combination of these matters cannot in the Tribunal’s view, be said to be mere coincidence or misunderstanding as the applicant appears to suggest.
With respect to the [social media] records, the applicant states that [Mr D] helped him when things were quite bad for him and as a close friend, he is considered to be a brother. He believes his wife called him ‘brother in law’ based on their close friendship. Again, the Tribunal is of the view that this could be explicable in the absence of the other concerns but the combination of concerns set out above – including, significantly, the close physical resemblance between the applicant and [Mr D] and the use of a different name, [Mr F], which was used in the earlier application – suggests they are biological brothers rather than good friends. The applicant also states that [Mr D]’s brother [Mr F] died in 2013 and as a mark of inclusion, [Mr D] started to call him [Mr F], which is how he was referred on the [social media] page. Again, the Tribunal does not accept it to be a coincidence that the name given to the applicant by his claimed best friend was precisely the same name as the one the applicant is said to have used previously. In the Tribunal’s view, a much more plausible explanation is that the applicant was previously known as [Mr F] and is a sibling of [Mr D], as stated on [social media].
With respect to the names of his parents and [Mr D]’s relatives in the 2006 application, the applicant states that there were other sisters not identified by the delegate and that the names of [Mr D]’s parents were different and also the name of [Mr F] was missing. The applicant states that the names of the two families are purely coincidental as such names are popular among Afghanis, and they have different dates of births, surnames and mother’s name. The Tribunal accepts that the differences may indicate that the individuals are not the same, but they may also indicate, in the Tribunal’s view, a deliberate attempt to withhold information so as to avoid the Department making a link between the two applications. Thus, if the applicant made an effort to change the names of the main applicants, it is also plausible that other names and dates of births would be changed to avoid detection.
With respect to the name of the father on [Brother H]’s death certificate, the applicant states that it was dangerous to arrange the funeral at the time and [Mr D] asked his father to help with the burial ceremony. Those issuing the death certificate must have assumed that [Mr E] was [Brother H]’s father and the family never realised the error on the death certificate. The applicant notes that the death certificate refers to his brother as [Brother H Surname 1] and not [Brother H Surname 2], if he was [Mr E]’s son. The Tribunal does not accept that explanation. While the Tribunal accepts that if the death was true, the applicant and his family would have been distressed about it, the Tribunal does not accept that since the alleged death, they would not have realised the mistake on the death certificate, given the family’s capacity to prepare and present a complex visa application.
The applicant denies that his family had made another visa application sponsored by [Mr D] and denied the inconsistencies in the accounts in the two applications. The applicant denied that his two uncles were deceased. The applicant reiterated the claims made in his protection visa application. The applicant denied that [Mr D] was his brother, stating that he had not visited him in VIDC and had not offered him accommodation after his arrival in Australia and had not met his parents at the airport on their arrival. The Tribunal is mindful that there is little independent evidence to support these claims.

The applicant provided a written submission to the Tribunal on 15 August 2019. In his submission to the Tribunal, the applicant’s representative sets out the applicant’s immigration history, stating that he used a people smuggler to enter Australia and was unaware of the name he used. He declared his true identity after arriving in Australia and provided in support of his application various identity documents which had been accepted by the Department. Although his tazkera was later found to be fraudulent. The applicant states that after being released from VIDC, he rented several places, including a room at [Address 1] and a friend introduced him to [Mr D] and they became friends. [Mr D] told him he lost his passport and was questioned whether he knew the applicant and they realised that the people smuggler may have procured [Mr D]’s lost passport to enable the applicant’s travel to Australia.
The applicant outlined the claims made in his earlier application and the circumstances of his parents.
The applicant identified the issues arising for the Tribunal’s determination as follows:
a.whether the applicant’s tazkera was a bogus document, for the purpose of s.103 of the Act.
b.whether the applicant’s birth certificate was a bogus document, for the purpose of s.103 of the Act.
c.whether the applicant gave incorrect answers in relation to his identity and whether he is in fact [Mr F].
i.The appropriate weight to accord to the DNA testing report.
ii.The appropriate weight to accord to Australia’s non-refoulement obligations.
With respect to the tazkera, the applicant submits it is a genuine document. The applicant notes that there are two translations of the tazkera which contain some differences. The applicant notes that while the delegate found that the document could not be verified, an independent translation of the verification response shows that the document cannot be verified, rather than it is a fraudulent document. The applicant notes that the verifying authority may have misread the folio number, which affected the outcome. The applicant submits that the tazkera was issued in accordance with the procedures outlined in various country reports and there is insufficient evidence to state that it is a bogus document.
The applicant also notes that he had subsequently provided a new tazkera which was found to be genuine and he claims it was issued in accordance with the normal process. As the issuance of this document was not part of the NOICC, the Tribunal places no weight on any concerns that the delegate may have expressed with respect to that document.
With respect to the birth certificate, the applicant states that it is a genuine document. The applicant notes that birth certificates are not common, particularly in regional areas. The delegate found that the birth certificate was unreliable as evidence of the applicant’s identity and the applicant submits that there is no evidence to support a finding that the birth certificate was fraudulently made and it is not a bogus document.
With respect to his identity, the applicant claims that he is not [Mr F] and had never assumed the identity of such. He has no knowledge of the previous applications made in those names. The applicant refers to the DNA testing. He provided a DNA test report relating to himself and [Mr D], stating that the two are unlikely to be related as siblings or half siblings. The report also indicates that [Ms O] is excluded from being a mother of [Mr D] and [Mr P] is excluded from being a father of [Mr D], while they are both confirmed as parents of [the applicant].
With respect to the facial recognition examination, the applicant submits that the findings were inconclusive and cannot be relied on. The Tribunal accepts that due to the findings being inconclusive, these reports cannot be considered probative and the Tribunal has given these no weight.
With respect to [social media], the applicant argues that referring to him as a brother-in-law was not due to the existence of a legal relationship but to imply a social and economic bonding, in accordance with the cultural traditions.
With respect to the death certificate of [Brother H Surname 1], the applicant states that the certificate was issued at a hospital in September 2012 and at the time, due to the dangerous situation in the country, [Mr D] offered to contact his father to help with the burial ceremony and the issuing authority must have assumed [Mr E] was [Brother H Surname 1]’s father, which was a mistake. This was confirmed in [Mr D]’s statement made in September 2012 and the statement of [Dr B] who assisted the family at the time and confirmed the applicant’s distress at the death of his brother and over the parents’ safety. The applicant submits that the error in his brother’s death certificate cannot support a finding that his father is [Mr E].
In oral evidence, the applicant told the Tribunal that he has not been known by another name. He said the people smugglers may have used another person’s passport to get him to Australia and he had no idea that [Mr D]’s passport was used for him. After coming to Australia, he spent about three months in the immigration centre and was interviewed many times and he never rejected that another person’s passport was used but he does not know what was used. After he was released from detention, he met a friend [Mr Q] who then introduced [Mr D] to him in 2010. Later on they became friends and he moved in and lived with [Mr D]. After his parents came to Australia, [Mr D] had a spare room in his apartment and they decided to share accommodation until March 2019. The applicant said that he does not believe he looks like [Mr D] and they may look similar because of their similar background.
The applicant states that if they were brothers, he would have lived with [Mr D] straight away after being released from detention. Instead, he lived in public housing for some time which he claims was unsuitable and it was only after his parents came to Australia that he lived with [Mr D]. The Tribunal does not accept that the fact that the applicant lived in public housing rather than with [Mr D] can be considered as evidence that they are unrelated. Such decisions could have been made on the basis of financial or other considerations and not on the basis of the familial relationships.
The applicant states that the photos on the tazkera of himself in his own visa application and in the earlier visa application are not the same photographs. The applicant states that the tazkera is a genuine tazkera. Regarding [social media], he admits that [Mr D]’s wife called him her ‘brother in law’ because they were very close friends and in their culture, it is normal to call each other ‘brother’. With respect to the similarities in names, the applicant submits names of only some of the aunts, uncles and siblings match but not all names are matching and these are common names and would appear in any Afghan family. The Tribunal does not accept that argument. While the Tribunal acknowledges that there is not the precise correlation of every name, the Tribunal is also mindful that the similarities are significant. The first names of siblings and aunts and uncles do match, as well as the nature of the relationships. That is, while some of the names may be common in Afghani culture, in this case, not only do the names exist within the family but they were used by the same relatives. As noted above, the Tribunal considers it unlikely that this was a mere coincidence, particularly when combined with other concerns.
The applicant told the Tribunal that if he did want to fabricate evidence, he would have changed [Mr D]’s details as well. The Tribunal does not consider that the use of the same name in the two applications can be evidence of the applicant’s truthfulness.
With respect to his brother’s death certificate, the applicant told the Tribunal that his uncle was quite powerful and they believe his brother was poisoned by their uncle. His father was too scared to go and arrange the burial, so he asked the applicant to make arrangements and the applicant asked [Mr D] to help. As his father was in Kabul, [Mr D]’s father went to receive the body. The Tribunal accepts that there may be reasons why [Mr D]’s father was collecting the body but that does not explain why he was specified as the father on the death certificate. In particular, the Tribunal does not accept that the name of the collector would have been identified as the name of the father. The applicant states that the Afghan authorities are not professional and may not have put the correct name and he notes that his brother’s name is written as [Brother H Surname 1] and not [Brother H Surname 2]. The Tribunal accepts that there may be deficiencies in the official records. However, when combined with the other evidence, the Tribunal considers it problematic that the name of [Mr D]’s father appears as the name of the father for the applicant’s brother as this supports other evidence which identifies the applicant and [Mr D] as brothers.
The Tribunal has considered the evidence on which the primary decision was made and the explanations put forward by the applicant. As noted above, the Tribunal does not consider that the various similarities to which the delegate refers in the NOICC can be explained by mere coincidences. The Tribunal does not accept that it can be coincidental that the applicant is likely to have used [Mr D]’s passport to enter Australia, then became a close friend with that person and shared accommodation with him and that they then ‘fell out’ at the time when [Mr D] may have supported the applicant’s case by providing oral evidence to the Tribunal. (While the applicant told the Tribunal that [Mr D] was not available to give oral evidence to the Tribunal, the applicant’s representative explained that the friendship is no longer there.) The Tribunal gives weight to the similarities in the photographic evidence and does not accept that these were due to the fact that they are of the same background or used the same photographer. The Tribunal places weight on the fact that there is a close match between various personal names used in the two applications and not only that the names are commonly used in the Afghan culture but that similar names were used for ‘similar’ relatives. That is, the names of the children and the names of the siblings were similar, rather than the same names being used for different relatives. The Tribunal places weight on the fact that [Mr D]’s father was identified as the father of the applicant’s brother [Brother H] and the Tribunal does not accept that the family would not have noticed the incorrect information over the years. The Tribunal places weight on the [social media] record of [Mr D]’s wife when she not only refers to the applicant as her brother-in-law (which may be a sign of close friendship as the applicant claims) but also by the name of [Mr F]. Again, while the reference to the applicant being the brother-in-law may be a cultural form of endearment, the combination of this reference, as well as the use of the name [Mr F], offers strong evidence, in the Tribunal’s view, that the reference is to the same person who was previously included in the application of [Mr E] as his son [Mr F].
The applicant’s representative submits that the only reliance by the delegate that the information was incorrect was based on circumstantial evidence such as the tazkera and death certificate and the similarities of the two visa applications. The representative submits that the decision-maker can only be sure that the information given by the applicant was incorrect if there is ‘provable evidence’ that the applicant had another identity while in that case, there is no real strength in the evidence on which the delegate relied and no additional evidence of false identity has been found at the time of the citizenship application. The Tribunal accepts that the evidence set out above may be said to be circumstantial but the Tribunal considers the combination of such evidence to be persuasive and sufficient to enable the Tribunal to reach a positive satisfaction that incorrect answers were given.
The Tribunal also acknowledges that [Mr D] has provided a statutory declaration and the Tribunal has had regard to that evidence. However, he was not available to give oral evidence to the Tribunal and the Tribunal has not had the opportunity to test his evidence. The applicant explained to the Tribunal that he did not think about calling that witness, which the Tribunal considers odd, given his significance to the issues arising in this case. The explanation of the applicant’s representative was somewhat different as he states the applicant and [Mr D] are no longer close friends.
The applicant states that to prove the absence of his relationship with [Mr D], they had completed the DNA test and the test results exclude any relationship between them or between [Mr D] and his parents. The Tribunal does normally consider the DNA evidence to be persuasive and possibly determinative but the Tribunal must be satisfied in this case that the samples collected belonged to the relevant persons. This is particularly problematic where the applicant is seeking to exclude a relationship with another person – [Mr D] – rather than establish that a familial relationship between them exists. In such circumstances, any person other than [Mr D] giving a sample would achieve the desired outcome.
The Tribunal questioned the applicant about the process relating to sample collection. The applicant told the Tribunal that the lab asked them to attend his GP to take the samples. They approached a JP who confirmed the identity on the photographs and they then approached the GP who had also signed the identity document. The document indicates that the GP sighted [Mr D]’s driver licence (the applicant claims that [Mr D] used the same GP and was known to him) whereas the JP appears to have simply confirmed the signature. The Tribunal is mindful that the applicant’s evidence is that similarities in photographic evidence are insufficient because they are from the same background and may look similar for that reason and may have used the same clothes or similar hairstyles or the same photographer, etc. The applicant was able to use another person’s passport to enter Australia and he claims he was completely unrelated to the person whose passport he used, yet he was able to board the plane using that passport. Yet, the applicant claims that an unknown JP and a GP, because they are ‘professional’ and have experience in such matters, would be able to accurately determine a person’s identity by comparing photographic images with the visual confirmation of the person’s identity. The Tribunal does not accept that this is so. That is, the Tribunal cannot be completely satisfied that the person who gave the sample was in fact [Mr D], even if his driver licence or other form of identity was used. The Tribunal is mindful that in determining that there are grounds for cancellation, neither the delegate nor the Tribunal rely exclusively on the image similarities. For the Tribunal, it is the combination of a variety of evidence that offers a strong basis for its findings. Similarly, the Tribunal is not satisfied that the use of a driver licence by a person claiming to be [Mr D] would be sufficient to confirm that he was the person providing the samples, particularly as this was not done by an independent representative of the DNA laboratory but by the local doctor and a JP with no knowledge of the parties.
As the Tribunal cannot be completely satisfied that the person who gave the sample was in fact [Mr D], the Tribunal does not consider in such circumstances, the DNA results excluding the relationship between the applicant, his parents and [Mr D] to be conclusive. In the particular circumstances of this case, the Tribunal does not consider the DNA results to be probative evidence that there is no relationship between [Mr D], the applicant and his parents.
There is another issue of concern for the Tribunal. The applicant’s evidence to the Tribunal is that his parents had separated two years or more before coming to Australia and had never lived together since arriving in Australia. The applicant also told the Tribunal that his parents had not lived as husband and wife in Afghanistan before coming to Australia, that they had many problems and even though they lived in the same house, because they had no opportunity to live separately, they were not living together as a couple. However, the applicant’s evidence to the Tribunal is that neither he nor his parents mentioned that in their visa application and claimed they were still married when applying for the visa. When the Tribunal suggested that they provided untruthful evidence, the applicant changed his evidence and said that they were not divorced but continued to live as husband and wife, which contradicts the applicant’s earlier evidence that they were separated under one roof. The applicant’s representative submits that there is no concept of being ‘separated’ in the Afghan culture but their application forms were completed on the basis of Australian laws and not their own cultural expectations. If the applicant and his parents provided incorrect answers about their marital status, or failed to inform the Department about the separation when completing their application, that also shows, in the Tribunal’s view, that the applicant and his parents are not persons of credibility and brings into question the authenticity of their claims.
The Tribunal acknowledges the evidence of [Dr B] that she considers the applicant and the family to be truthful and honest and of good character. [Dr B] outlined the steps taken by the applicant to sponsor his parents and the support she provided to him. [Dr B] provided to the Tribunal copies of her communication with the Department. The Tribunal accepts [Dr B]’s evidence and accepts that she believes the applicant to be an honest person. The Tribunal accepts that [Dr B] believes the applicant’s parents to be traumatised. The Tribunal also acknowledges the number of character references which the applicant presented to the Tribunal and the Tribunal accepts those who provided references believe the applicant to be a good person.
Overall, the Tribunal has formed the view that the information contained in the NOICC and the primary decision record concerning the previous application made by [Mr E] to be credible and more persuasive than the evidence put forward by the applicant. The Tribunal has formed the view that the combination of the various similarities cannot be explained by coincidences and, in relation to the DNA test results, the Tribunal cannot be satisfied that the sample was taken from [Mr D]. Having regard to all the information before it, the Tribunal finds that the applicant was previously known by another name, as [Mr F], and that he was included in the application made by [Mr E] in 2006. The Tribunal finds that when making the application in July 2009, the applicant completed the application form in a way that incorrect answers were given in the following respects:
a.The applicant’s name and date of birth in response to Question 1 of Form 866.
b.By stating that he had not made any other type of application to the Department, in response to Question 3 of Form 866.
c.By stating that he had no close relatives in Australia in response to Question 10 of Form 866.
d.By providing his father’s name as [Mr P] in response to Question 11 of Form 866.
e.By stating that he has not travelled outside of his home country or country of residence before travelling to Australia, in response to Question 33 of Form 866.
f.By stating that he had lived in Mazar Sharif, Afghanistan from [month, year] until June 2009 in response to Question 35 of Form 866.
g.By stating the reasons he left Afghanistan, what would happen to him if he were to return to Afghanistan, who may harm him and why, in response to Questions 41 to 45 of Form 866.

The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s.101 of the Act.
The Tribunal is mindful that the delegate also relied on the applicant providing a bogus tazkera and a birth certificate with his application. The applicant claims that there was an error in translation, which led to the correct folios not being identified, and that the correct translation resulted in the documents being identified as genuine. Having found that the applicant did not comply with s.101 of the Act, it is not necessary to determine whether there was also non-compliance with s.103 of the Act. The Tribunal does not draw any adverse conclusions from this claimed non-compliance.
The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
The correct information
The Tribunal has formed the view that the applicant was the same person as [Mr F] and that he was previously included in a visa application made by his father. The claims made in that application were substantially different from the claims made by the applicant in his own protection visa application. The applicant denies that information and denies that he has previously been known by any other name and claims that he has not been included in any other application. Having found that the applicant was previously known as [Mr F], the Tribunal further finds that the correct information is that the applicant had not lived in Afghanistan until he travelled to Australia but that he and his family lived in [Country 1] since 2001 and until his arrival in Australia.
The content of the genuine document (if any)
The delegate found that the tazkera used by the applicant was a bogus document, as was the birth certificate issued on the basis of the tazkera. The applicant claims that the translation was incorrect and that is the reason the relevant book was not found and the report could not be located. When the proper translation was used, the document was verified as genuine. The applicant notes that the original report does not specify that the document was fraudulently obtained. As noted above, the Tribunal has not made a finding that a bogus document was submitted by the applicant and does not draw any adverse conclusions from this finding by the delegate.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
Clause 866.221, as it stood at the time the applicant made his visa application, provided for the Minister’s satisfaction that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
The applicant made claims, which are set out in the NOICC and the primary decision record, concerning Afghanistan as his country of nationality and his country of residence, and the claims related to the persecution he feared from his uncle [Mr C]. The Tribunal has formed the view that the applicant was known by another name and previously made the application using a different identity as a member of his father’s family unit. The information concerning the applicant’s country of residence provided in that application was substantially different to the information the applicant provided in his own protection visa application. Further, the applicant stated that his uncle [Mr C] was deceased.
The applicant states that because of his conversion in Afghanistan, his life was in danger. After coming to Australia, he was in touch with Sister Eileen and had been baptised. The applicant states that he would not be alive if he was in Afghanistan, particularly given his uncle’s status. The Tribunal notes that these claims are substantially different to those contained in the application made by [Mr E]. Such claims were central to assessing whether the applicant was a person to whom Australia has protection obligations.
The Tribunal finds that the decision to grant the visa was based, at least partly, on incorrect information.
The circumstances in which the non-compliance occurred
The applicant denies that he had been known by another name or that he had applied for another visa. The applicant states that he had to leave the country because his life was in danger. Before coming to Australia, he did not know which country he would go to. The applicant claims that all the information he gave was correct. The Tribunal has formed the view that this evidence has not been truthful, that the applicant was known by another name and made another application providing different information.
The present circumstances of the visa holder
In his response to the NOICC the applicant outlined his present circumstances. The applicant states that since arriving in Australia in 2009, he attended high school and worked full time in a factory. In 2011 he started a [course] in [subject matter] and in 2013 he obtained a [specified qualification]. In 2014 he started his own business and later obtained his [professional] licence. He has been working as a subcontractor with different companies. He became a member of [a professional] Association. He has been working directly with customers and completed several projects. He has his own business which has one full-time employee and about 100 subcontractors and has completed several houses. The applicant referred to his company’s financial position and listed the projects he had worked on.
The applicant states that he paid a deposit for the land he purchased to build his own home and has a construction loan approved. The applicant told the Tribunal that he has not built his home because of the uncertainty with his visa status.
In his written submission to the Tribunal the applicant states that since his arrival in Australia in 2009, he has been active in pursuing his studies and he started his own business, gaining the trust of the community and the banks. The applicant outlined his past study and employment and referred to the various business projects he has been involved in. The Tribunal accepts that evidence. The applicant refers to purchasing land and building a home and the Tribunal accepts that evidence. The Tribunal also acknowledges that the applicant provided a number of character references and the Tribunal accepts that the applicant is well regarded in the community.
The applicant states that he married in December 2018. His evidence to the Tribunal is that they only had the agreement to marry but not the ceremony yet, which they plan to have in April 2020. They are not living together until that time and they had not discussed a future Partner application yet. The applicant told the Tribunal that he has not told his wife about the cancellation of his visa.
In oral evidence to the Tribunal the applicant stated if he was not an honest person, he would have done wrong things since coming to Australia but he has been a law-abiding citizen and has never committed a crime. The Tribunal does not accept the premise of that claim because the Tribunal does not accept that if the applicant was untruthful in his migration application, he would necessarily be in breach of other laws or commit crimes. The Tribunal is also mindful of the applicant’s evidence that he was found cheating on his citizenship application so it is not completely correct to state that he has never breached any laws and has been honest in all his dealings in Australia. The Tribunal does not consider that breach to be relevant but the Tribunal rejects the applicant’s evidence that he has been truthful in his application because he has been truthful in every other aspect of his life in Australia.
The applicant states that he has accepted the Australian way of life and he is more Australian than Afghani. He has completed his studies in Australia and has opened his company and works hard and honestly and employs a number of subcontractors and he has been honest in his interactions with others. He is known as an honest person by the community. The Tribunal accepts that evidence and acknowledges the various character references which he presented to the delegate and the Tribunal.
The applicant states that he and his parents have settled in Australia and his life and his parents’ lives had been affected by the cancellation. [Dr B] spoke about the applicant’s parents being saddened by what happened in the past and the uncertainty of the future. The Tribunal accepts that the family have settled in Australia and also accepts that [Dr B] formed the view that they were saddened by their past.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There are no known instances of non-compliance.
The time that has elapsed since the non-compliance
The applicant made the application for the protection visa around July 2009. Approximately ten years passed since the non-compliance. The Tribunal accepts that it is a lengthy period.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community
In his response to the NOICC the applicant states that through his business, he had employed or contracted many Australian citizens who are dependent on him for meeting their contracts. He is the sole director of the company and there are 13 families who would be seriously affected if [the] contracts are not completed. He employs about 100 individuals and their families as subcontractors who would suffer severely if he cannot continue with his company. The applicant also refers to payment of taxes through employment. The Tribunal accepts that the applicant has made some contribution to the community, although the Tribunal notes the applicant’s evidence that he has not been able to work since the cancellation of his visa and that he has sold the business to another person but would get it back if his visa is reinstated.
The applicant told the Tribunal that he is accepting of the community and of different cultures and religions and has formed friendships with people of different backgrounds and in different communities. His customers think highly of him and he has been good to his employees. The Tribunal accepts the applicant’s evidence.
The applicant told the Tribunal that when employing staff he checks the professional licence but not the visa status and he does not check if his employees have the right to work in Australia. It is impossible to state then that the applicant is compliant with the Australian laws because the applicant has not checked his compliance with the laws regarding immigration and employment of his staff and subcontractors.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. The applicant states that he cannot return to Afghanistan and if his visa is cancelled, he will be ‘in limbo’. There is very little to suggest that the applicant would be detained indefinitely and his own evidence to the Tribunal is that the applicant believes he would be eligible for a protection visa based on complementary protection grounds. The applicant also has a New Zealand citizen spouse and may have the opportunity to seek a Subclass 461 visa, although the Tribunal acknowledges that such an application may have to be made offshore due to the limitations in s. 48 of the Act. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. If the visa is cancelled, the applicant may lose some entitlements he may have had as a permanent resident of Australia.
Whether there would be consequential cancellations under s.140
The visas held by the applicant’s parents had been cancelled but under s.109 and not as a consequential cancellation under s.140 of the Act. There are no persons whose visas would be cancelled under s.140 of the Act.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The applicant states in his response to the NOICC that Afghanistan has not changed in recent years and he remains frightened about his safety, should he return. The applicant referred to a number of country reports. In his submission to the Tribunal the applicant states that if his visa is cancelled, he would become a member of a particular social group of returning asylum seekers and the applicant refers to the country information about the treatment of such asylum seekers. The applicant claims that his return to Afghanistan would cause significant harm and give rise to grounds for complementary protection and he and his parents would be eligible to apply for protection visas and this should be given weight in favour of the applicant.
In oral evidence, the applicant states that he cannot live in Afghanistan as a converted Christian. His uncle would kill him or anyone else would consider it an honour to kill him. His uncle has been an influential person but because of his family’s doings, his uncle lost that status and to get it back, he needs to kill them and the government cannot protect them.
While the Tribunal acknowledges that the applicant has been found to be a refugee, the Tribunal is mindful that these claims were based on information which the Tribunal now considers to have been incorrect. It cannot be definitively said that if the correct information was known, the applicant would have been granted the visa. Nevertheless, the Tribunal has given the applicant the benefit of the doubt and, for the purpose of this application only, the Tribunal accepts that Australia’s non-refoulement obligations may be engaged in relation to the applicant. The Tribunal is mindful of the applicant’s evidence that he may apply for a protection visa and if that is the case, a full assessment of such obligations would be done.
The applicant told the Tribunal that there are no children who would be affected by the cancellation.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The applicant told the Tribunal that taking his case to court would cost a lot of money and he cannot afford to do that now. He wants to continue to live in Australia and hopes his visa would be reinstated.
The applicant told the Tribunal that he and his parents cannot return to Afghanistan because they would be killed. They are not permanent residents and if they cannot go back to Afghanistan, their life would be in limbo and in an uncertain situation. The applicant states that there is ‘no point’ in cancelling the visa because they cannot return to Afghanistan and it would be a ‘waste of time’ to proceed with the cancellation because they cannot live in Afghanistan and would probably be entitled to protection on complementary protection grounds. The Tribunal acknowledges that if the applicant is found to have been owed protection obligations, he may be unable to return to Afghanistan and if he is not the holder of an Australian visa, the applicant may find himself in a positon where he cannot remain in the community in Australia and cannot be removed. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant and his family unless he applies for, and is granted, another visa. The Tribunal also accepts that if the visa is reinstated, the applicant would be able to return to his business and resume his normal life in Australia.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has given incorrect answers in his application contrary to s.101 of the Act and that there are grounds for cancelling his visa. The Tribunal has formed the view that there are strong reasons why the visa should not be cancelled. A lengthy period has passed since the breach and in that time the applicant has settled in the community, has been able to establish himself, completed his studies in Australia and operates a successful business. The length of time that has passed since the non-compliance does not favour the cancellation. The applicant is well regarded in the community. He is now married, although he does not yet live with his partner. He has strong connection and is believed by others to be of good character and he has contributed to the community in various ways. The Tribunal accepts that considerable hardship would be caused to the applicant and his family by the cancellation and the Tribunal places significant weight that Australia’s protection obligations may be engaged in this case. That is, unless the applicant is granted another visa (to which he believes he is entitled), there is a possibility of lengthy or indefinite detention if the applicant is found to be owed protection obligations. These are strong reasons why the visa should not be cancelled.
Against these considerations, the Tribunal has considered the circumstances in which the breach has occurred and its significance to the decision to grant the visa. The Tribunal has formed the view that the applicant was previously known by another name and made different claims in an earlier visa application. If those claims were true, it would follow that the claims made in his protection visa application were not true. In particular, in the earlier application the applicant claimed to have been living in [Country 1] and that his uncle [Mr C] was deceased while in the protection visa application the applicant claimed to have been living in, and persecuted in, Afghanistan by his uncle [Mr C]. The correct information was central to the decision to grant the visa and the assessment of the applicant’s claims. The Tribunal has also formed the view that the applicant continued to provide untruthful information to the Department and the Tribunal by denying any links with [Mr D] and denying that he was previously included in another application. The Tribunal has rejected these explanations and has formed the view that the continuous provision of incorrect information does not favour the setting aside of the cancellation.

Ultimately, the Tribunal finds that the nature and significance of the incorrect answers to the decision to grant the visa, the circumstances in which the ground for cancellation arose and the applicant’s ongoing provision of incorrect information, outweigh other considerations.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Kira Raif
Senior Member

[2019] AATA 6899

22 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction