1837029 (Refugee) [2021] AATA 5026 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1837029
COUNTRY OF REFERENCE: Pakistan
MEMBER:James Lambie
DATE:30 November 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 30 November 2021 at 1:48pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Pakistan – incorrect information in the visa application – nationality – Pakistan citizenship – identity and age details – bogus documents – race – Hazara – false identity documents – Pakistan citizenship – false identity consistent with the information provided by the applicant’s brother – real chance of serious harm in Pakistan – non-refoulement obligations – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 46, 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, Schedule 2CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
MIAC v Khadgi (2010) 190 FCR 248
Saleem v MRT [2004] FCA 234
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Wan v MIMA (2001) 107 FCR 133
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with sections 101(a) and 101(b) of the Act in respect of answers he had provided in his protection visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 February 2021 to give evidence and present arguments. The hearing was, by consent, jointly held with his son and nephew’s cases, as his son’s visa was cancelled under s.140(2) of the Act on the basis of similar information, and his nephew’s visa was automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the applicant’s visa. The Tribunal also received oral evidence from the applicant’s son-in-law, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review…
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CaseChat Overview and Summary
The applicant sought judicial review of a decision by the Department of Home Affairs to cancel his Protection (subclass 866) visa. The dispute arose from the Department's finding that the applicant had failed to provide correct information regarding his identity and protection claims in his visa application, thereby contravening sections 101(a) and 101(b) of the *Migration Act 1958* (Cth). The applicant had initially been granted a protection visa based on claims of being an Afghan Hazara fleeing persecution in Afghanistan. However, subsequent investigations, including an identity assessment and the verification of a Pakistani Computerised National Identity Card (CNIC), led the Department to conclude that the applicant was in fact a Pakistani citizen named [the applicant's name], born in [DOB 1].
The primary legal issue before the court was whether the applicant had failed to comply with his obligations under the *Migration Act* by providing incorrect information or bogus documents in his protection visa application. Specifically, the court had to determine if the applicant's claims of being an Afghan national facing persecution were false, and if the evidence, particularly the Pakistani CNIC, sufficiently established his true identity and citizenship. The court also considered the applicant's stated motivation for providing false information, which he claimed was to protect his brother, and whether this circumstance was outside his control.
The court found that the evidence, including the applicant's Pakistani CNIC, strongly indicated that he was a Pakistani citizen and had been at the time of his protection visa application. This contradicted his claims of being an Afghan national fleeing persecution in Afghanistan. The court noted that the provision of non-genuine Afghan identity documents, such as taskeras and a marriage certificate, further suggested that his family were not Afghan citizens. The court also considered the applicant's explanation for providing false information, finding that his primary motivation was likely to gain a positive migration outcome for himself, rather than to protect his brother, who was already an Australian citizen. The court concluded that the circumstances described by the applicant were not outside his control and that the decision to grant the visa was based, at least partly, on incorrect information and bogus documents.
Consequently, the court affirmed the Department's decision to cancel the applicant's Protection visa under section 109 of the *Migration Act*. The court was not satisfied that there were any compelling reasons why the visa should not be cancelled, given the findings of non-compliance.
The primary legal issue before the court was whether the applicant had failed to comply with his obligations under the *Migration Act* by providing incorrect information or bogus documents in his protection visa application. Specifically, the court had to determine if the applicant's claims of being an Afghan national facing persecution were false, and if the evidence, particularly the Pakistani CNIC, sufficiently established his true identity and citizenship. The court also considered the applicant's stated motivation for providing false information, which he claimed was to protect his brother, and whether this circumstance was outside his control.
The court found that the evidence, including the applicant's Pakistani CNIC, strongly indicated that he was a Pakistani citizen and had been at the time of his protection visa application. This contradicted his claims of being an Afghan national fleeing persecution in Afghanistan. The court noted that the provision of non-genuine Afghan identity documents, such as taskeras and a marriage certificate, further suggested that his family were not Afghan citizens. The court also considered the applicant's explanation for providing false information, finding that his primary motivation was likely to gain a positive migration outcome for himself, rather than to protect his brother, who was already an Australian citizen. The court concluded that the circumstances described by the applicant were not outside his control and that the decision to grant the visa was based, at least partly, on incorrect information and bogus documents.
Consequently, the court affirmed the Department's decision to cancel the applicant's Protection visa under section 109 of the *Migration Act*. The court was not satisfied that there were any compelling reasons why the visa should not be cancelled, given the findings of non-compliance.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
On 15 August 2018, the delegate issued a notice under s.107 of the Act advising that he considers that the applicant did not comply with sections 101(a) and (b) of the Act, that is, the Notice of Intention to Consider Cancellation under s.109 of the Act (NOICC). The non-compliance was identified and particularised in the s.107 notice in the following respects: Evidence of non-compliance:[In] March 2010, you arrived at Christmas Island with your nephew, [Nephew A], as an undocumented irregular maritime arrival (IMA). On 04 April 2010, the Department conducted an entry interview with you at Christmas Island. You made claims you were a Hazara from Afghanistan who was living in Pakistan illegally and did not have effective protection in a safe third country.The Department initiated a Refugee Status Assessment (RSA) in order to consider your protection claims. On 17 June 2010, the RSA delegate was not satisfied that you were someone to whom Australia owes protection.As a result of the RSA negative assessment, on 08 July 2010, you lodged a request for an Independent Merits Review (IMR). On 21 September 2010 the IMR delegate recommended that you were someone to whom Australia owes protection obligations.Following the IMR positive assessment, on 11 March 2013, you lodged a Protection (subclass 866) visa application which included your nephew [Nephew A] as a dependant applicant. Your Protection visa was granted on 25 March 2013.Evidence held by the Department: On 11 March 2013 you lodged a Form 866 - Application for a Protection (Class XA) visa where you provided the following information, as well as an accompanying statement of your protection claims dated 09 June 2010.Question 1 of Part C of Form 866, which stated: 'What is your full name?' you answered: '[Alias A]'.Question 4 of Part C of Form 866, which stated: 'What other names have you been known by?' you left the space blank.Question 19 of Part C of Form 866, which stated: 'Your citizenship at birth' you answered: 'Afghanistan'.Question 20 of Part C of Form 866, which stated: 'Your current citizenship (if different at birth)' you answered: 'Afghanistan'.Question 21 of Part C of Form 866, which stated: 'Do you hold any other citizenship or are you a national of any other country? ' You answered: 'No'.Question 41 of Part C of Form 866, which stated: 'I am seeking protection in Australia so that I do not have to return to (Give name of country of countries) ' you answered: 'Afghanistan'.Question 42 of Part C of Form 866, which stated: ' Why did you leave that country?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:Around 1993 I had a dispute with my family.My grandfather had 2 wives and we all lived close by.Before the Taliban came into power there were 7 political groups within my village. The second wife (not my grandmother) her children belonged to these political groups. The political groups were called Sepah, Naser, Shara ltefq, Nehezad and Harakat lslami.These uncles wanted us to leave the village or for us to join the political groups. If we did not join then we were threatened by them to give our animal stock and land to them.These uncles were armed and threatened to kill us if we did not do what they asked. I had 2 uncles from my grandfather's first wife and my mother.Around end of 1997 the eldest uncle was tied up to a tree and was beaten to death by my grandfather's second wife's children who were involved in one of these political groups.The youngest uncle was fortunately living in Iran at this time so he escaped persecution.Around 2 to 3 months later one night we fled the village to Pakistan. We waited 2 to 3 months because we needed to bury my uncle and deal with the mourning.Around 10 to 15 days I left my family in Pakistan and went by myself to Iran. I Went to Iran to try to find work.After 3 years later my brother [Brother A] left Pakistan to migrate to Australia. He wanted to sponsor my family to migrate to Australia but was told that he could not do this.In around February 2008 my brother in law ([Nephew A’s] father) died of cancer and I had to care for my sister and her [children].The current situation in Pakistan was increasingly getting difficult as the Pakistan authorities keep threatening me and my life was in danger.I worked as [an occupation 1] in a shop in Pakistan and before I fled Pakistan the 2 shop owners nearby were killed because they were Hazaras.Around March 2009 I spoke to a smuggler who was a customer my shop. I asked him if he could assist my family and I to flee Pakistan. I gave him US$14,000 to help us.I organised my family to flee Pakistan and I stayed back to be the provider for my sister's family.Around August 2009 my family were in Jakarta and were found by the Indonesian Authorities who then organised to deport them back to Afghanistan. My [Brother A] who lives in Australia flew to Jakarta to assist with the deportation.I immediately organised a smuggler (driver) to assist my family to cross the border and come back to Pakistan where I was living.As soon as my family were deported and came back to Pakistan I decided to flee with my nephew as it was becoming too dangerous for him and I to stay in Pakistan.I witness so many deaths and injuries in Pakistan of Hazaras. I took the injured to the hospital and assisted anyway I could.I witness a shop owner close to me was killed by a Taliban in broad daylight in front of his customers because he is a Hazara.I took my nephew [Nephew A variant], as he was the oldest male in the family.The areas surrounding my village in Afghanistan are controlled by the Taliban. We have heard incidences of young people being killed and kidnapped by the Taliban therefore it is not safe for my young family to live in Afghanistan.My nephew [Nephew A variant’s] uncles are also involved in these political groups and are active in Afghanistan. These uncles are prepared to kill [my nephew] and any other family members should we return to Afghanistan.Question 43 of Part C of Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:I fear going back because of these political groups that are still active in Afghanistan. My uncles are still in their political groups and if I am found they will kill me. [Nephew A’s] uncles are also in high positions within these political groups and will kill him, his family and also mine.Question 44 of Part C of Form 866, which stated: 'Who do you think may harm/mistreat you if you go back?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:These political groups are all linked together, my uncles know me and if they find out that I am back in Afghanistan they will kill me before they ask any questions. This also applied to [Nephew A] and his family.Question 45 of Part C of Form 866, which stated: 'Why do you think this will happen to you if you go back?' you answered: 'Please refer to my statutory declaration'. In the statement of your protection claims dated 09 June 2010 you stated:I fear going back because of these political groups that are still active in Afghanistan. My uncles are still in their political groups and if I am found they will kill me.We cannot relocate anywhere in Afghanistan, especially in Jaghori. Even though Jaghori has a high population of Hazaras there are still Pushtuns there who kill Hazaras.Question 46 of Part C of Form 866, which stated: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered: 'Please refer to my statutory declaration '. In the statement of your protection claims dated 09 June 2010 you stated:The government cannot protect themselves how can they protect the people in Afghanistan? Recently in [name] which is a village close to ours was attacked by Taliban. There were more than 100 people killed and thousands left homeless. The Afghan government is not strong and there is no future for Afghans as it is not safe.On 3 August 2010, as part of your Protection visa application interview, you provided a copy of your Afghan birth document, known as a taskera, along with an English translation. You also provided a copy of your nephew ' s taskera with translation. The issue date of your taskera is [in] July 2010, approximately four months after you arrived in Australia. Country information for the time period in which this taskera was issued states that taskeras were only issued locally inside Afghanistan and that it can only be issued to the applicant.[In] September 2016, you lodged an application for Australian citizenship. You were interviewed by an officer of the Department's Complex Identity Advice section on 31 August 2017 for the purpose of an identity assessment. When it was put to you in the identity interview that your taskera could not have been genuinely issued to you in Afghanistan, you stated you had contacted a friend while he had been in immigration detention and asked for his brother to arrange taskeras for you and your nephew. You advised that you did not know exactly how or where the taskera had been obtained. As you confirmed that the taskera had not been issued to you directly in Afghanistan, it is likely that it is non-genuine.As part of the identity assessment you also provided a copy of your marriage certificate as evidence of the relationship between you and your claimed wife, [named]. Integrity checks requested by the Complex Identity Advice section were undertaken by the Department' s Islamabad office in relation to this document with the result being that the marriage certificate was not issued by the Afghan Consulate in Quetta and is not a genuine document.I note that [number] of your children, [named] arrived in Australia [in] October 2010, as dependent applicants on [Sister-in-law A’s] [Partner] visa. This visa was sponsored by your brother [Brother A], who is the husband of [Sister-in-law A]. At the time, your children had claimed that their parents (you and your wife) were no longer alive and that they were dependent on [Sister-in-law A], who was their older sister. On 5 June 2013, you contacted the Department to discuss the custody of the [number] children who travelled as dependent applicants on [Sister-in-law A’s] Partner visa. You claimed that the dependent applicants were your children and you were concerned about guardianship since your brother sponsored them. As noted above, the children had claimed to be orphaned and travelled to Australia as dependent applicants of [Sister-in-law A]. DNA testing confirmed that you are the biological father of [these children]. The children were withdrawn from the Partner visa application after it was confirmed that they were not orphaned and were not the dependents of [Sister-in-law A].On 27 October 2017, you lodged a Partner visa application for your wife and [number] youngest children. As a part of this application, you provided copies of Afghan passports and taskeras for them. The documents list the birthplace of your children as Bamiyan in Afghanistan. In your application for a Protection visa you advised that only one of your children was born in Afghanistan and that the rest were born in Pakistan.As part of your Protection visa application you stated that you were an Afghan refugee living in Quetta, Pakistan before you travelled to Australia. You claimed that you lived in Querta for a period of approximately 10 years, and during this period you did not register in Pakistan as an Afghan refugee or have any other official identity documents. At your identity interview on 31 August 2017, you maintained your claims of being an undocumented Afghan refugee in Quetta and stated that you had never needed a Proof of Residence (POR) card or any other identity documents. Country information indicates that Afghan refugees living in Pakistan would be unable to access a range of important government services nor be able to own property without a POR card2, and yet during another identity interview, the Department became aware that you owned the house in Quetta that your family were living in.The Department obtained a copy of your Pakistani Computerised National Identity Card (CNIC), [number] in the name [the applicant’s name], son of [Father A], date of birth [DOB 1]. I note that in your Entry Interview conducted on 04 April 2010 with the Department following your arrival in Australia you stated that you father' s name was [Father A variant]. This information is consistent with the father's name on the CNIC. This CNIC was verified with the Pakistani National Database and Registration Authority (NADRA) who confirmed that the holder is a Pakistani citizen.On 19 July 2018 the identity assessment concluded that your claimed identity was not supported and that your true identity is [the applicant’s name], date of birth [DOB 1], and you are a citizen of Pakistan.Consideration of evidenceYour Protection visa was granted on the basis you satisfied the Minister that you engaged Australia's protection obligations under the Refugees Convention. You claimed you could not return to Afghanistan due to the threat of persecution from Pashtuns and the Afghan Taliban and because of your imputed political opinion. You claimed you were living illegally in Pakistan with no right to reside there and could not obtain effective protection in any safe third country. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.I consider that your provision of non-genuine Afghan identity documents in regard to you and your family members, including non-genuine taskeras and marriage certificate, suggest that none of your family are Afghan citizens . I consider the DNA testing outcomes of your [number] eldest children who came to Australia as orphan relatives indicates that you and members of your extended family are prepared to provide incorrect information in order to obtain positive migration outcomes. I consider this raises serious concerns regarding the credibility of your claims in relation to you being an undocumented Afghan.Significantly, I consider your Pakistani CNIC, [number] in the name [the applicant’s name], date of birth [DOB 1] is evidence of your genuine identity and Pakistani citizenship.On the material presently before me, I consider you have not complied with sections 101(a) and 101(b) of the Migration Act in relation to answers provided in your statement of claims declaration dated 09 June 2010 and to the following answers you provided in your Protection visa application lodged on 11 March 2013:Question 1 of Part C of Form 866, which stated: 'What is your full name?' you answered: '[Alias A] '. I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number], lists your genuine name as [the applicant’s name].Question 4 of Part C of Form 866, which stated: 'What other names have you been known by?' you left the space blank. I consider the omission of an answer is non-compliance with section 10l(a) because you did not answer that you are also known as [the applicant’s name].Question 20 of Part C of Form 866, which stated: 'Your current citizenship (if different at birth)' you answered: 'Afghanistan '. I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number] strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application, meaning that your claims against Afghanistan were incorrect.Question 21 of Part C of Form 866, which stated: 'Do you hold any other citizenship or are you a national of any other country?' You answered: 'No ' . I consider this answer to be incorrect because your Pakistani Computerised National Identity Card, [number] strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application, meaning that your claims against Afghanistan were incorrect.Question 41 of Part C of Form 866, which stated: 'I am seeking protection in Australia so that I do not have to return to (Give name of country of countries)' you answered: 'Afghanistan'. I consider this answer to be incorrect because the evidence available to the Department strongly suggests that you are a Pakistani citizen and were so at the time of your Protection visa application , meaning that your claims against Afghanistan were incorrect.Question 42 of Part C of Form 866, which stated: 'Why did you leave that country? ' you answered: 'Please refer to my statutory declaration '. In your statement you declared that you had to flee Afghanistan because you were persecuted by Pashtuns and the Afghan Taliban, and because of your imputed political opinion. I consider this answer to be incorrect because the evidence available to the Department strongly suggests that you are a Pakistani citizen, and were so at the time of your Protection visa application. As a Pakistani citizen you would have the same rights as other Pakistani citizens, with the right to reside there, meaning your claims against Afghanistan are incorrect and you did not hold the claimed adverse profile for that country as claimed in your Protection visa application.Question 43 of Part C of Form 866, which stated: 'What do you fear will happen to you if you go back to that country?' you answered: 'Please refer to my statutory declaration '. In your statement you declared that if you were to return to Afghanistan you would face a real chance of being killed by Pashtuns and the Taliban because of your Hazara ethnicity and imputed political opinion. I consider this answer to be incorrect as your claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.Question 44 of Part C of Form 866, which stated: 'Who do you think may harm/mistreat you if you go back?' you answered: 'Please refer to my statutory declaration'. In your statement you declared that you would be killed by Pashtuns and the Taliban. I consider this answer to be incorrect as your claims were based on being from Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.Question 45 of Part C of Form 866, which stated: 'Why do you think this will happen to you if you go back?' you answered: 'Please refer to my statutory declaration'. In your statement you declared that if you were to return to Afghanistan you would face a real chance of being killed by Pashtuns and the Taliban because of your Hazara ethnicity and imputed political opinion. I consider this answer to be incorrect as your claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.Question 46 of Part C of Form 866, which stated: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered: 'Please refer to my statutory declaration '. In your statement you declared that the Afghan Government cannot protect themselves let alone the general population. I consider this answer to be incorrect as your claims were based on being a citizen of Afghanistan, when evidence available to the Department indicates you are actually a Pakistani citizen and were so at the time of your Protection visa application.I consider you have not complied with sections 101(a) and 101(b) of the Migration Act in relation to the answers given in your Protection visa application. I consider these answers are incorrect because the evidence available to me indicates you are a Pakistani citizen and were so at the time of the Protection visa application; and as such you would have had access to a range of opportunities, government services, benefits and protections available to all Pakistani citizens. I consider your claims in regard to Afghanistan are incorrect.
Decision
Reasons for decision
The applicant submitted the following documents in response to the NOICC:(a)written submissions from his representative dated 7 September 2018; (b)a statutory declaration from the applicant, sworn on 7 September 2018; (c)local Certificate of the applicant; (d)assorted rental agreements and deeds as evidence of property dealings; and(e)country advice on Pakistan published by the Refugee Review Tribunal on 3 May 2011.Departmental decision to cancel the applicant’s visa under s.109 of the Act The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 10 December 2018. The delegate found that there was evidence of non-compliance by the applicant insofar as he had failed to give correct information regarding his identity and protection claims in Form 866C of his protection visa application. The delegate made the following findings:The visa holder has submitted that his motivation to provide incorrect answers in regard to his identity and nationality was in order to protect his brother, [named] but known to the Department as [Brother A], who had arrived several years earlier as an IMA and made incorrect claims regarding his nationality and reasons for seeking protection.I consider the visa holder's motivation for linking his identity to that of his brother was because he was aware that his brother had successfully claimed protection and subsequently Australian citizenship by claiming to be an Afghan, and that by identifying as part of the same family unit his claim to be from a persecuted cohort would at least in part be already validated.It stands to reason that the use of the [family] name and similar protection claims was due to his brother's earlier success when engaging Australia's protection obligations.I consider the visa holder's primary motivation to provide incorrect information was in order to gain a positive migration outcome for himself, rather than to protect his brother, who was already an Australian citizen.Having considered the visa holder's reasons for the non-compliance, I do not consider the circumstance he describes was one which was out of his control. The visa holder has acknowledged that non-compliance occurred and having considered his response, I am satisfied that ground for cancellation identified in Part B of this decision record exists.…The visa holder claimed that he could not return to Afghanistan due to the dangers he faced as an ethnic Hazara who could not count on the protection of the Afghan state; however the evidence available to the Department, including an acknowledgement from the visa holder which indicates that the visa holder is actually known as [the applicant’s name] and is a citizen of Pakistan undermines this claim. As a Pakistani citizen he is afforded the same rights and privileges as other Pakistani citizens, and as such his protection claims which were based on him not being able to return to Afghanistan are incorrect.I find that the visa holder has provided incorrect answers in regard to his identity and adverse profile; as well as in regard to his fear of retuming to Afghanistan due to his status at the time of the Protection (subclass 866) visa application.Having decided under section 108 of the Act that there was non-compliance in the way described in the notice issued under s 107 of the Act, I have considered all of the prescribed matters set out in regulation 2.41 of the Migration Regulation 1994, and I am not satisfied that there are any compelling reasons why the visa should not be cancelled.Evidence:
Ratio Decidendi
Legal Principle Established
In view of the submissions, and having had regard to the relevant country information, the Tribunal is satisfied that the documents now available in relation to the applicant’s identity are genuine.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 The applicant, in the submissions made on his behalf by his representatives, accept that the decision to grant him the protection visa were ‘affected’ by incorrect information. However, it was submitted that the decision to grant the visa was not based wholly on incorrect information. It was submitted that, had the correct information been provided, there is nothing to indicate that the application would have been refused. Thus, although it was acknowledged that false information was provided in support of the applications, the provision of the false information was not critical to the outcome. The applicant’s own evidence was to the effect that he considered his application more likely to succeed if he presented as coming from Afghanistan. Further, it cannot be ignored that bogus documents were provided along with the false information and that the applicant presented a lurid account of the violence meted out to members of his family that no longer forms part of his evidence. The Tribunal takes note that the granting of protection visas to Pakistanis of Hazara ethnicity since 2010 have needed to weigh the availability of state protection and the feasibility of internal relocation to a degree that does not apply to applicants from Afghanistan. Further, the applicant would not have been granted a visa at all if it had been known that he had given incorrect answers about his claims in his application for the visa. The Tribunal considers that the decision to grant the visa was based, at least partly, on incorrect information and bogus documents. However, the claims now made by the applicant are relevant to the issue of non-refoulement, considered below.The circumstances in which the non-compliance occurred As discussed at the hearing, the applicant claims the non-compliance occurred to ensure that the information he provided in his application was consistent with the information provided by his brother. It is further claimed that his decision to lie was to protect his brother from being returned to Pakistan where he may face the risk of serious harm. It was submitted on behalf of the applicant that he acknowledged that providing false information to the Department was wrong and that doing so was not outside of his control. It was submitted, however, that he was placed in a dilemma of either exposing his brother to serious harm or to proceed with the provision of false information. The Tribunal questioned the applicant about the logic of this submission. It was put to him that there was no reason for the Department to suspect a family link with his brother were he to provide his own true name and nationality. The Department was not aware of the brother’s true name and nationality. It was therefore put to the applicant that the use of the false name and nationality was a matter of convenience, motivated by the success with which his brother had used them.