1903956 (Refugee)

[2020] AATA 975

1903956 (Refugee) [2020] AATA 975 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903956

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Denis Dragovic

DATE:14 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 14 April 2020 at 2:20pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ground of cancellation – satisfaction as to visa holder’s identity – two comprehensive identities with detailed narratives and family structures – National Identity Proofing Guidelines – biometrics, documentation and biography – provision of a bogus document and incorrect information – powers of the Tribunal – power to request for Departmental investigation – power to summon a person to appear before the Tribunal – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 427
Migration Regulations 1994 (Cth), Schedule 2

Any 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) which states that ‘the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.’ The delegate’s decision to cancel the visa was based upon a view that the applicant had applied for two off-shore humanitarian visas and one on-shore protection visa using two different identities. The two identities had different names and dates of birth, different places of birth including where each had grown up, different family composition and different evidence as to whether the applicant had relatives in Australia. The delegate was unable to determine which of the identities was the applicant’s actual identity. As such the visa was cancelled under s.116(1AA). 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 applicant appeared before the Tribunal on 20 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant's partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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 Department has two identities both of which are purportedly of the applicant. The first is the identity of [Alias 1]. This is the identity the applicant gave upon arrival to Australia and continued to provide over the following years including at the Tribunal hearing. The alternate identity was identified through a forensic facial image comparison analysis that revealed the applicant had previously applied for an offshore Humanitarian (subclass 202) visa lodged on 21 September 2011, which was refused on 19 October 2011. The name used by this second identity is [Alias 2] (also variously [Alias 2 variation]). The same identity was used in an offshore humanitarian visa application from November 2005.

9. For the 2011 offshore humanitarian visa application in which [Alias 2] was included the Australian citizen sponsor was a [Ms B], [Alias 2]’s sister according to the application. She had arrived to Australia after having applied together with the applicant on the 2005 humanitarian offshore visa application. Despite integrity concerns which derailed the 2005 application of [Alias 2], [Ms B] was granted the XB-202 visa. In addition to his sister, [Ms B], [Alias 2] claimed in the application that he had two brothers, [Mr C] and [Mr D]. According to the application of [Alias 1] he has two brothers, [Mr E] and [Mr F], and one sister, [Ms G]. Regarding the parents, [Alias 2]’s are claimed to be deceased in the 2011 application while [Alias 1]’s remain alive until his father’s passing in 2019.

10. The difference between the two identities is not just in name and family composition. Whereas [Alias 1] is claimed to have been born in Pakistan in [Year 1] and lived there his whole life, [Alias 2] is claimed to have been born in Afghanistan in [Year 2] and lived there until 2003 before moving to Pakistan. Both have supporting documentation. [Alias 2] has a letter from the Consulate General of the Islamic Republic of Afghanistan in Quetta dated [in] December 2005 with his name and details whereas [Alias 1] has school certificates from [Education Institute 1] and [Education Institute 2], his parent’s taskera (a national identity document), and a letter from the Consulate General of the Islamic Republic of Afghanistan in Quetta dated December 2013 detailing his date and place of birth.

11. The identity of [Alias 1] was used to enter Australia by an unauthorised maritime arrival. The holder of the identity was granted a protection visa on 19 February 2012. He subsequently sponsored his father, mother and siblings for an XB-202 visa which was refused on 4 December 2014. This identity continues to be used by the applicant.

12. The identity of [Alias 2] has not been used with Australian authorities since the 2011 application.

13. The evidence available to the Tribunal prior to the hearing is of two comprehensive identities. The first of [Alias 2] spanning a period from 2005 to 2011 with detailed narratives and family structures including a letter from the Afghan consulate in Pakistan. The second, also comprehensive, showing a very different narrative.

14. The applicant was invited to attend a hearing scheduled for the 20 November 2019 to provide evidence and present arguments relating to the issue of his identity.

15. Prior to the hearing a submission was received dated 13 November 2019. The submission contained the following documentation:

    a.Statutory declaration by the applicant

    b.Statutory declaration by the applicant’s partner

    c.Birth Certificate from the Consulate General of Islamic Republic of Afghanistan dated December 2013 with the name [Alias 1] and place of birth Ghazni, Afghanistan.

    d.Form 842, application for an Offshore Humanitarian visa

    e.Birth certificate of [Alias 1] from the Afghan Embassy in Quetta

    f.Tazerka for the applicant’s parents

16. The applicant claimed in the statutory declaration that the first time he knew about the use of his photo in the 2005 and 2011 applications was when the Department moved to cancel his visa. He claimed that he had called his parents to ask about the circumstances surrounding the cancellation. He states at [16] in the statutory declaration:

    My parents told me they were just trying to help me and were trying to get me out of Quetta. The situation was very dangerous and they were desperate for me to be safe. My parents told me that they contacted [Ms B]’s family to bring me to Australia. She used to live in Quetta and she had a husband [in] Australia.

    …

    Since finding out about the 2005 Humanitarian visa application, I think my parents asked [Ms B]’s family to include me in this application to get me out of Pakistan because of this event [Ashura bombing].

17. I note that bizarrely the applicant in his statutory declaration continued to claim that he was born in Quetta, Pakistan, despite providing in the same submission a letter from the Consulate General of Afghanistan in Quetta dated 5 December 2013 which lists his place of birth as Ghazni, a city and province in Afghanistan. This contrary information in the applicant’s own evidence adds further confusion to the issue at hand.

18. Due to the questions arising from the applicant’s identity the Tribunal requested that the applicant arrange for [Ms B] to also appear at the hearing to present evidence. In email correspondence dated 15 November 2019 the representative wrote that the applicant is not in contact with [Ms B]. The email stated, ‘I confirm that [Ms B] is not [Alias 1]’s sister. [Alias 1] is the son of the late [Mr I] and only has one sister, [Ms G] who is currently in Quetta, Pakistan.’ The email concludes that the applicant does not know where she is residing, believing it to be in Melbourne, and that he does not have a contact number for her.

19. At the hearing held on the 20 November 2019 the applicant confirmed that his name was [Alias 1]. I asked the applicant to provide a narrative of his youth as this is the main differentiation between the two identities with [Alias 2] having been raised in Afghanistan and [Alias 1] in Pakistan. He said that he was born on [date] in Quetta, Pakistan. He claimed that he learned English in an English language centre and worked in a [shop] part-time. He added that he came to Australia illegally by a boat. His narration was short and limited. I returned his attention to his childhood and asked about his first memory. He said that his first memory was when he was with his father in 2004 during the commemoration of Ashura when a bomb exploded. He said that he feared for his life and he just laid on the ground until the shooting stopped and they were able to escape. He recalled another bomb blast in 2011.

20. I explained that I wanted to know the details of his life. I asked about his childhood friends. He named [Mr J], an Afghan he knew in Pakistan who, according to the applicant, subsequently moved to Adelaide. He claimed that [Mr J] used to live in the same street as him in Quetta. I asked how they would play to which he responded that they played cricket together on a small ground about a ten-minute walk from his house. I asked how he would get to the cricket ground where he played with his friend [Mr J] and specifically whether he would pass any places of interest. He said that he’d pass a few shops and a mosque. He claimed that he was about [age] years of age when they would play together. He said that he didn’t know him from a younger age. He claimed that there were two or three other kids he would play with. He claimed that two were killed during the Ashura bombing.

21. The applicant said that he would also play cricket with his brother, [Mr F], who is a year older than the applicant. He claimed that his other brother, [Mr E], was about [age] or [age] years of age at the time of the hearing. The applicant claimed that he also has a sister who is a year younger than him. He said that she doesn’t work, she goes to the English language centre to learn English and she stays at home in Quetta doing house chores. He claimed that all of his siblings were in Pakistan.

22. Throughout the hearing the applicant’s rendition of his youth while in Pakistan was stilted, he provided a bare minimum of information. The information he did provide appeared rote learned and delivered as a recitation. It was focused on events after he was [age] years old which aligned with both identity narrative’s time in Pakistan ([Alias 2] was claimed to have travelled to Pakistan at the age of [age] years).

23. The applicant’s partner gave evidence at the hearing. She stated that she had known the applicant since June 2015 and had always known him as [Alias 1].

24. The hearing did not lead me to be satisfied of the applicant’s identity.

25. As such, at the hearing I requested three post-hearing submissions, a log of calls on [Social Media App] as he had claimed to have communicated with his family using this social media app; a statutory declaration from his childhood friend who now resides in Adelaide, [Mr J]; and a picture of the gravestone of the applicant’s father as this would add weight to the applicant’s claims of being [Alias 1] as opposed to [Alias 2].

26. In a letter dated 20 December 2019 from the representative it was conveyed that the applicant’s [social media app] logs were on his old phone which was broken and therefore inaccessible. The applicant provided a statutory declaration explaining that [Mr J] did not want to engage with the applicant’s case and therefore could not provide evidence in support of his claims. The applicant was able to provide a photo of the gravestone which had an inscription with the translation:

    [Mr I]

    son of the late [Mr K]

    Aged [age]

    date of death [in] September 2019

27. I note that the headstone reflects the information in the form of his father’s taskera provided by the applicant at an earlier stage of the application process. The taskera lists the applicant’s father’s father as [Mr K]. As such I give this some weight in support of the applicant’s claims of his identity being [Alias 1].

28. Additional evidence was provided but with limited value. Photographs claiming to be of the applicant’s family do not help in determining the identity of those in the photographs. Letters from Australian employers claiming to only have known the applicant as [Alias 1] contribute little in way of evidence as they only confirm that the applicant has maintained a single identity throughout his stay in Australia. On the other hand, funds transfers to the applicant’s mother [in] Pakistan lends some weight in support of the applicant’s claimed identity of [Alias 1] for the reason that in the 2011 application of [Alias 2] the claim was made that his mother [had] passed away.

29. A further submission dated 20 January 2020 was received from the representative. This submission included a statutory declaration from the applicant rescinding the applicant’s claims of childhood friendship with [Mr J]. The applicant wrote that he never met [Mr J] in Pakistan. He wrote that he said his name at the hearing because he thought that it would help him. He explained his behaviour as arising from the pressure that he is under.

30. On 27 November 2019 the Tribunal wrote to the Department of Home Affairs requesting assistance to investigate the address of [Ms B] under s.427(1)(d). The information was provided by the Department.

31. A letter was sent to [Ms B] at the address provided by the Department on 29 January 2020 requesting a statutory declaration be completed ‘attesting to your relationship with [Alias 2], who was included in an offshore application for a visa with you in 2005, and whom you sponsored for a visa in 2011’.

32. [Ms B] responded through a handwritten note dated 1 February as follows:

    I hereby declare that I have no relationship with [Alias 2]. We used to rent in the same house, where [Alias 2]’s family lived. He was in the application with me because his parent requested to include him in the application due to the bad situation. I haven’t been in contact with him since 2005.

33. A second letter was sent to [Ms B] requesting again a completed statutory declaration duly witnessed by a person authorised to witness statutory declarations. In addition this request included a follow up to the handwritten note’s information by asking ‘Please include in your statutory declaration an explanation of how you came to sponsor [Alias 2] on a 2011 humanitarian visa application if you have not been in touch with him since 2005.’

34. In response to the correspondence sent to [Ms B] an email was received on the 23 February 2020 explaining that [Ms B] would be unable to sign a statutory declaration due to ‘stress, anxiety and heaps of appointments of kids etc.’

35. In response on the 3 March 2020 the Tribunal sent a letter to [Ms B] advising that the Tribunal has powers under s.427(3) of the Migration Act to summons a person to appear before the Tribunal and that the Tribunal was again requesting a statutory declaration attesting to the relationship with [Alias 2].

36. A statutory declaration was received by the Tribunal dated 10 March 2020 from [Ms B]. The statutory declaration included the following:

    [Alias 2] is my brother-in-law. I had included him in an offshore application for a visa in 2005 and 2011.

37. On 19 March 2020 the Tribunal sent a letter under s.359A of the Act to the applicant. The letter contained the statutory declaration of [Ms B]. The letter explained that the information is relevant to the review because [Ms B]’s statutory declaration contradicts the answers provided by the applicant under oath at the hearing and in several statutory declarations before and after the hearing about his relationship with [Ms B]. In response a further statutory declaration was received from the applicant dated 1 April 2020. In this declaration the applicant states that [Mr N] is his older brother and [Ms B] is his sister-in-law. It states:

    In [Ms B]’s statutory declaration, she says she knows [Alias 2] and that he is her brother in law. She is referring to me. I do not know why she referred to me by that name although I understand she was asked how she knows ‘[Alias 2]’ and so she would have responded in that way because that was the name used in the visa application for me. [Ms B] has always called me [Alias 1] and never [Alias 2].

    The applicant expressed remorse for having acted in the way he had.

38. The question to be answered in considering this review is whether there are grounds for cancellation. The cancellation was made under s.116(1AA) which states, ‘Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.’

39. The National Identity Proofing Guidelines of the Department of Home Affairs notes that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[1] The Department’s policy advice manual explains:

    The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.

    While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[2]

    [1] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1

40. Documentation includes all documentary evidence relating to an applicant's identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their story. Biometrics includes personal identifiers such as facial image and fingerprints.[3]  

    [3] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2

1. From the evidence available to me I am satisfied that the applicant’s identity, when considering the evidence as a whole, is [Alias 1]. I am satisfied that he was born in Afghanistan as noted in the Consul General’s letter and that he moved to Pakistan at a young age. I am satisfied of his family structure including his mother who he continues to provide financial support to, a father who passed away in 2019 and three siblings including a brother who lives in Australia named [Mr N] who is married to [Ms B].

2. While I am satisfied with the applicant’s identity, I am concerned about the applicant’s willingness to continue to sign statutory declarations and swear under oath while providing incorrect evidence. The applicant has repeatedly provided incorrect information.

3. While I am not satisfied that the ground for cancellation in s.116(1AA) exists and it follows that the power to cancel the applicant’s visa does not arise, the Department may choose to consider cancellation under s.109 for the reason of the provision of a bogus document and incorrect information.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Denis Dragovic
   Senior Member