1838057 (Migration)

[2020] AATA 5129

1838057 (Migration) [2020] AATA 5129 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1838057

MEMBER:Sean Baker

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 1 September 2020 at 3:32pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in protection visa application – applicant’s identity – amended identity documents – inconsistent evidence about applicant’s father – applicant initially claimed his brother’s name – placeholder dates of birth – taskera estimates of age – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 116,140, 360
Migration Regulations 1994

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

1. This is an application for review of a decision dated 21 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The review was conducted during the COVID-19 pandemic. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

8. The delegate was not satisfied as to the applicant’s identity because of inconsistencies in the information provided by the applicant.

9. These were:

   ·That on the day he arrived in Australia as an unauthorised maritime arrival, he was interviewed by the Department and said that his name was [Brother’s name] and that he is [age] years old, and that he had a brother named [Applicant’s name variant] residing in Iran.

   ·When he arrived in Australia he had a copy of a Taskera (the original, he said, was in Quetta, Pakistan, with his wife).

   ·In the Unauthorised Arrival Interview on 20 February 2010, he stated that his name is [Applicant’s name variant] and that he is [older age] years old, he stated that [Brother’s name variant] is his brother residing in Iran.

   ·In relation to the visa holder’s Refugee Status Assessment (RSA) application he stated that his date of birth is 1 January [in Year 1]. In the form 866 of the visa holder’s Protection visa application, he stated that his date of birth is 31 December [in Year 1].

   ·In the visa holder’s RSA application and his Protection visa application he stated that he has a brother named [Brother’s name variant] who was born on 31 December [in Year 2].

   ·On 29 June 2011 the visa holder was granted a Protection visa in the name [applicant’s name], his date of birth was recorded as 31 December [Year 1].

   ·In December 2013 the visa holder applied to the Department to amend his date of birth on departmental records to [DOB 1]. He provided a Taskera, different to the copy he had provided in 2010. There was an English translation provided and according to this document the name recorded on the taskera is [applicant’s name], his date of birth is [DOB 1]. Whilst the English language document states that the date of birth recorded on the taskera is [DOB 1], there is no record of a date of birth on the taskera, only the year of birth is recorded on the taskera and it is written with a different pen in comparison to the rest of the document. It is stated on the taskera that [applicant’s name] is [age] years old.

   ·When the visa holder was interviewed in relation to this, he acknowledged that the date of birth is different between the original and the translation. He stated that he instructed his son to ensure his correct date of birth was included in the translation so the Department would amend his details. The visa holder then said “They have just made up [this date]. I do not know who did this.”

   ·The Department made inquiries with the Afghan Government, who stated that “the information on this tazkira does not correspond to PRD records [this tazkira] has not been issued by the PRD [Population Registration Directorate].”

   ·On 17 November 2017 another copy of a taskera was received by the Department, apparently in connection with the visa holder’s application for Australian citizenship. This document was attached to the Section 119 notice and marked “attachment 3”. The date of birth on this taskera appears to have been erased.

10. The Delegate’s decision goes on to state that the visa holder’s provision of inconsistent information about his name and date of birth and his provision of apparently non-genuine and fraudulently altered documents purporting to be taskeras and translations of taskeras to the Department raises strong doubts about his identity and whether he is a citizen of Afghanistan as he claims.

11. And further, the delegate decision states further doubts are raised as a result of information the visa holder provided to the Department about his father. When he was interviewed on 1 February 2010, the visa holder stated that his father died aged 115. The average life expectancy in Afghanistan is 60.7; the delegate considered it is unlikely that the visa holder’s father would have lived to nearly double the average life expectancy. The visa holder stated that his father went missing in 1998 while on a trip to obtain supplies for the family. The delegate considered it is highly unlikely that someone aged almost 110 would be physically capable of making such a trip.

12. The implausible information the visa holder has provided about his father caused the delegate to suspect that this information is fabricated and that the visa holder is concealing the correct information about his father because the correct information may indicate that he is a citizen of another country, possibly Pakistan.

13. The visa holder’s family have resided in Pakistan for many years. The [social media] profiles of his sons [Son A] and [Son B] contained photos of them with Pakistani flags and posts celebrating Pakistan Independence Day. These photos suggest a level of Pakistani nationalism which is inconsistent with the visa holder’s claims that his family are Afghan refugees residing illegally in Pakistan.

14. ‘Identity’ is not defined in the legislation. I have considered the Explanatory Memorandum for the Bill that introduced s.116(1AA) into the Act:

    16.      This amendment provides the Minister with a discretion to cancel a visa if, for example, two or more documents or pieces of information about a person’s identity have been given, furnished or provided by, on behalf of, or in relation to the applicant or visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine. Contradictory or inconsistent information or documents relating to a person’s identity will prevent the Minister from being satisfied as to a person’s true identity.  The Minister’s discretion to cancel a visa also applies where the Minister is not satisfed as to the visa holder’s identity for any other reason.

    17. The purpose of subsection 116(1AA) of the Migration Act is to make clear the Government’s position that a person must always provide correct information about their identity at any stage before, during or after the visa application process. If there is doubt about the person’s identity, the Minister has the discretion to cancel the person’s visa.[1]

    [1] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

15. This does not assist greatly, and nor does policy.

16. To the Department the applicant provided a submission and documents, and argued that the applicant had provided evidence as to his identity which should satisfy the delegate that he was who he claimed to be. Despite accepting many of the contentions in the submission the delegate proceeded to find they were not satisfied as to the applicant’s identity.

17. Before the Tribunal the applicant provided a submission and supporting documents, including:

    ·Statutory declaration of [the applicant], affirmed on 5 March 2020;

    ·Notice of cancellation of [the applicant’s wife’s] visa under s 140 of Migration Act 1958, dated 9 January 2019;

    ·Report of [a named doctor] in relation to [the applicant’s wife], dated 6 February 2020;

    ·Copy of form completed by [the applicant] at the Afghan Embassy in Canberra in January 2020, in order to seek verification of his Taskera in Kabul;

    ·Copy of international post receipt issued to [the applicant], when dispatching documents for verification in Kabul.

18. The gravamen of the submission is that “there is no logical or sensible basis for the Department’s decision in [the applicant’s] case made under s 116(1AA) of the Migration Act 1958 (the Act). The decision relied upon minor or inconsequential ‘inconsistencies’ in [the applicant’s] dealings with the Department, as well as entirely explicable defects in his national identity documents. Taken individually or even together, none of these matters was capable of casting doubt on [the applicant’s] identity, in a rational mind.”

19. The submission sets out the history of the applicant and his immediate family:

    [The applicant’s] statement of 31 August 2018, provided to the Department in this matter, presents a full account of his personal history. Briefly, [the applicant] is an Afghan national, born in Ghazni province in [the year of DOB 1]. He received no formal schooling and accordingly is illiterate in his native language, as well as in English. He was the father of [number] children, [number] of whom – [named] – are now deceased. The surviving [number] [all] remain in Quetta, where they live as undocumented refugees. In May 2017, the Department refused Partner visas to the children (as secondary applicants on their mother’s application) on the basis that the decision-maker could not be satisfied of their ‘dependency’ upon [the applicant]. However, around the same time, [the applicant’s] wife, [name], was granted a Partner (Subclass 100) visa. She travelled to Australia alone in 2017 and has not returned to Pakistan since that time. The couple live together in [a named town], where [the applicant] used to work as a farmhand, prior to the cancellation of his visa.

20. The submission relevantly sets out the applicant’s explanation of his identity documents:

    [The applicant’s] original, paper Taskera was issued to him during his youth and produced long after his birth. His age was recorded based on estimation, as was and continues to be the norm in Afghan civil registration;

    [The applicant’s] second Taskera was obtained from the Afghan Embassy in Quetta, in accordance with the standard process adopted by Hazara exiles residing in Pakistan at the time. It was not until he received subsequent migration advice in Australia that he came to learn that the Embassy was not authorised to issue such documents; and

    [The applicant’s] most recent Taskera was obtained from Kabul in 2017, at the same time as the Taskeras of his wife and children. Again, his age was recorded based on an estimate. His wife’s Taskera references the serial numbers which appear on his document ([book page and registration numbers]). On the basis of that document, his wife was issued with a machine-readable passport which enabled her travel to Australia.

    …

    Consistent with country information before the delegate, [the applicant] explained the discrepancy between the year of birth recorded in his original Taskera issued in [year] (‘[age] years old in [Persian year]’) and his latest Taskera issued in 2018 through official channels in Kabul (’[age] years old in [Persian year]’). According to the first date, [the applicant’s] year of birth would be [the year of DOB 1]; according to the second, it would be [later birth year]. In the absence of any formal record of his birth, [the applicant] explained that both dates were mere estimates made by the officers issuing the Taskeras, based on his appearance. Despite the country information clearly before him, the delegate placed adverse weight on the ‘inconsistency’ between the two Taskeras..

21. The submission goes on to argue that weight should be placed on the most recent taskera, issued in 2017 from Kabul.

22. The applicant sent this taskera to be verified by the Civil Registration Authority in Kabul. Due to the pandemic, there were restrictions on the return of the physical document, but I have been provided with a scanned colour copy of this verified document, stating his age as [age] years old of [Persian year] equal to [year] born on [the later birth year].

23. In assessing this case I have looked at the concerns raised by the delegate in relation to the applicant’s identity. Many of these appear without any logical foundation. Interestingly, in the delegate’s discussion they appear to acknowledge many of the points made below, and so it is unclear to me why they continued to rely on these matters.

24. Firstly, that on the day he arrived he gave his name as [Brother’s name] and that he is [age] years old, and that he had a brother named [Applicant’s name variant] residing in Iran. As the delegate would be aware, arrival interviews, conducted as this one was on the day of arrival after a difficult journey, are unreliable for a variety of reasons including the health of the arriving person and the fact that many people are being processed in a short period of time. The delegate would also be aware that there are many instances where a person’s information is incorrectly transcribed by Department officials, or incorrectly interpreted by interpreters, all trying to do their best in difficult and trying circumstances. In this case, the applicant has not ever used this name again, consistently giving his identity as [Applicant’s name variant]. Further, he arrived with an identity document in this name. Even if one starts from a starting point that the applicant was acting in bad faith (a dangerous assumption which leads to many errors), there is no conceivable reason why he would provide a name that differed from the identity documents he provided and therefore could be easily disproven. I find that the most logical and coherent explanation is that the applicant gave the name of his brother as his own name either through his error, or, equally as likely, through the error of the interpreter or Department officer, and that this error has absolutely no bearing on the question before me of the applicant’s true identity.

25. I note that the applicant gave dates of birth of 1 January [Year 1] and 31 December [Year 1] in interviews and forms provided to the Department. I note that historically no consistent approach has been taken by the Department to providing ‘placeholder’ day and month of birth for those people who do not have or are not aware of their exact birth dates and that the Department will often provide both 1/1/xxxx and 31/12/xxxx for the same person in Department records. The applicant was granted a visa with the date of birth recorded as 31 December [Year 1]. It is unclear why this date was preferred by the Department rather than 1/1/[Year 1].

26. The applicant attempted to change his date of birth in December 2013. This was on the basis of the English translation of the taskera from the Quetta Afghan consulate, and as per the country information below I note that it is entirely consistent with country information that an English translation of a taskera contains a space for a date of birth despite this not being included in the original of the taskera. I note also that there are some concerns, as expressed by the delegate, with taskeras issued by the Quetta Afghan consulate. Given this information, it appears to me that this attempt by the applicant to change his details on the basis of his taskera was likely to be the action of a person with little understanding of official documents who was simply trying to have his documentation align and provided this document in good faith. I note the delegate accepted that there wre concerns that the taskeras issued by this consulate were not properly issued, but I find that this does not demonstrate the applicant has provided this document in bad faith.

27. The delegate considers that the fact the applicant gave an implausible date of birth for his father is an identity concern. I note that this was at the entry interview and would have been subject to the same difficulties and potential concerns with this information as above. But even if the applicant did say this, why would the applicant have given such information? In what way can this information reasonably, credibly, be considered an attempt to conceal his own or his father’s suspected Pakistan nationality? I consider it is overwhelmingly likely that this was an error by a tired person, or a translation error by a tired interpreter, or a transcription error by a tired Department officer. I place absolutely no weight on this information in relation to the question before me of the applicant’s true identity.  

28. The delegate then concludes by noting that the visa holder’s family have resided in Pakistan for many years. The [social media] profiles of his sons [Son A] and [Son B] contained photos of them with Pakistani flags and posts celebrating Pakistan Independence Day. These photos suggest a level of Pakistani nationalism which is inconsistent with the visa holder’s claims that his family are Afghan refugees residing illegally in Pakistan. No authoritative evidence has been put forward that such actions, or rather, the delegate’s interpretation of “…a level of Pakistani nationalism which is inconsistent with the visa holder’s claims that his family are Afghan refugees residing illegally in Pakistan.” Nor has the delegate engaged with the explanations put forward by the applicant that his children did so in an effort to fit into the society in which they have lived, nor with the more general research that people are not always truthful in their social media manifestations. I place no weight on this information in relation to the question before me of the applicant’s true identity. 

29. Therefore, the information before me is the provision of a number of taskeras, with differing dates of issue and containing consistent information about the applicant except his age/date of birth.

30. In assessing the evidence before me I have had regard to the country information about the issuing of taskeras.

31. The most recent DFAT report states:

    National Identity Cards (Taskira/ Tazkira)

    The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.

    In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. The card contains printed data in English, Dari, and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry. The card is valid for either five or ten years and there is no lower age limit to issuance. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution.

    Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.[2]

    [2] DFAT Country Information Report Afghanistan (27 June 2019)

1. I have had regard to authoritative and recent sources which provide more detail on the provision of ages in taskera:

   Relevant sources give partly conflicting information on how information regarding age is given in the tazkera. According to TLO the document states the year of birth (TLO 2013, p.6). A diplomat source consulted by Landinfo, thinks that the tazkera give an estimated age on the date of issue (diplomat source, e-mail March 2017). The Norwegian ID Centre confirms that they share the opinion that the tazkera gives an approximate age at the time when the tazkera was issued (e-mail March 2017).

   On the basis of this information, the majority of tazkeras seem to give an estimated age at the time of issue. Landinfo find reasons to believe that there can be variations between the many districts on how they practice the giving of age.

   The tazkera does not normally give information on date of birth. One exception is for children who have a birth certificate, in such cases both the date of birth and year are given in the tazkera (diplomat source, e-mail March 2017). If a tazkera applicant does not have information on year of birth, the age is determined by “specialists” within the PRD. The determination of age is estimated on the basis of physical characteristics, eyes, facial features and wrinkles, combined with a short interview. The director of PRD (meeting, September 2015) claimed that the specialists operate with a margin of error of six months.

   Many Afghans have either little awareness of their own date of birth or are unsure of exactly when they were born, and it is also relatively simple for Afghans to manipulate information on date of birth.[3]

   [3] Report Afghanistan: Tazkera, passports and other ID documents, LANDINFO – 22 May 2019.

2. Further:

   The A4 paper version of the tazkera has been issued since 2001. According to the Swiss Refugee Council, every clerk has its own style, when it comes to fill the tazkera by hand. In the original version printed in Pashto, there is no room for surnames, as these are traditionally not used in Afghanistan, and there is no information regarding the mother of the applicant either.

   Tazkera do not contain information about the date of birth or the place of birth. Instead, tazkeras normally contain the year its owner was born or an estimate of the person´s age at the moment the document was issued. According to the Immigration and Refugee Board of Canada, the place of birth is not indicated either on the document. The “place of birth” field on tazkera refers to the birth place of the applicant´s father, who also will have applied for the document on behalf of the applicant. It can also refer to the place where the family comes from. Although surnames and dates of birth do not appear in the original version of the document, they are found on English translations of the document. In these cases, surnames are the product of individual choices and it is normal for siblings to choose different surnames.[4]

   [4] Afghanistan: National Identity Card (Tazkera)’, Danish National ID Centre, 16 May 2019, pp. 5-6,

3. According to an Immigration and Refugee Board research response:

   [T]he applicant's date of birth can be a guesstimate, at times expressing only the year and not the month, at times stating the month and year of birth according to the Persian solar calendar. Most common is a statement saying the applicant was a certain age in a certain year. The calendar used is Islamic and begins in [year] AD. Thus, adding [number] years and 3 months to the month and year of birth will be the equivalent of the applicant's birthday under our Gregorian solar calendar. (ibid.)

   The US Department of State corroborates the High Commission official's statement that an individual's year of birth on a Tazkira may be approximate for older individuals (US n.d.).[5]

   [5] ‘Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features’ [AFG103812.E], 16 September 2011, Immigration and Refugee Board of Canada, AFG103812.E

4. The above information is entirely consistent with country information that was before the delegate. The above information leads me to make certain findings about taskeras and their ability to provide satisfactory evidence of identity. The Taskera is the principal identity document for Afghanistan where Birth certificates or other forms of identity are extremely rare, but the form of the taskera has changed over time. The information above must also be read in the context of the history of Afghanistan, and the effect different administrations have had on record keeping. The country information above is in agreement that the completeness and format of information in taskeras varies by issuing office and issuing officer. Centralisation of records is a more recent phenomenon, and the move towards an e-taskera which would provide greater assurance and consistency is still some way off. Of most import is the information that taskeras contain estimates of age, expressed as an expression of age at a certain time, and are based not on any record or centralised information but on the estimate or guesstimate of the issuing office or officer. It is also worth noting that Afghans, generally, do not have a good sense of their birthdate.

5. The satisfaction of identity must, necessarily, be by reference to the available evidence of identity for the applicant’s home country. In this case, the country information makes clear that this evidence is the taskera, there being no other consistent or available document to establish identity, and the country information also makes clear that the process of creating a taskera has changed over time, does not rely on centralised records, and can contain incomplete information. In relation to the question of age and birthdate, the taskera, and Afghan society, appear to place less weight on this as a determinant of identity than we in Australia do. The expression of this information by reference to an age of the person at a certain date is imprecise. But even more imprecise is that this is not on the basis of cross checking another document such as a birth certificate, but by estimation, based on self-report (and bearing in mind most Afghans do not know their birthdate) and estimation of physical characteristics. 

6. Given this, I find that the applicant, on the information presented in the Department decision, has acted in good faith, attempting to provide an answer to the question of what his birthdate is by reference to the evidence he has had available. In doing so, he has presented inconsistent information, but this has been a factor of the evidence he has held which has the limitations expressed above.

7. On the basis of the information before me I consider there is no basis for concerns about his identity, which I find he has presented as consistently as he has been able to given the limitations of the evidence available to him. I find that the applicant is [applicant’s name] an Afghan national, born in Ghazni province. Given that the country information tends to indicate document issuing is becoming more reliable, and I accept that the most recent taskera has been through a process of verification, I accept the information on the face of that document that the applicant was “[age] years old of [Persian year] equal to [year] born on [later birth year].” However, I note as above that this is no more than an estimate of the applicant’s age, and not determinative of his date of birth.

8. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity. This must be based on real, compelling and significant concerns given it leads to such potentially serious consequences as it has here. I have found above that there are real, understandable reasons for the variation in age on the taskeras, and that the other concerns expressed in the decision are without substance. Further, I find that the applicant has attempted, as well as he is able in the circumstances, in good faith, to provide the information required to establish his identity. It is no fault of his, I consider, that the evidence available has been deficient in this one respect. Given the country information, this deficiency is entirely understandable.

9. Having regard to the information above and my findings, I find that I am satisfied as to the applicant’s identity in the circumstances.

10. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Sean Baker
    Member

    
    
    

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