1906686 (Migration)

[2020] AATA 4785

1906686 (Migration) [2020] AATA 4785 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1906686

MEMBER:Sean Baker

DATE:7 August 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 7 August 2020 at 4:45pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – applicant’s identity – country of citizenship – Afghan citizen by birth – Afghanistan Taskera – avenues to Pakistan citizenship – not present in Pakistan prior to 1962 – national identity card (NIC) record and Pakistani passport – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 5(1), 101, 107, 109
Migration Regulations 1994

CASES

Briginshaw v Briginshaw (1938) 60 CLR 336

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. [The applicant] claims to be a national of Afghanistan. He was granted a protection visa in July 2011. In his protection application he claimed he and his family had fled Afghanistan and had lived in Pakistan. He claimed to be a citizen of Afghanistan and no other country.  

2. 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).

3. The delegate cancelled the visa on the basis that the delegate concluded the applicant had provided incorrect answers in his protection 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.

4. The applicant appeared before the Tribunal on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, [Mr A], also known as [Alias 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 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

   Certificate

6. A certificate was placed over the investigation of the complex identity section investigation of the relationship between the applicant and his father and mother. I explained to the applicant at hearing that I was minded to view this certificate as invalid because it did not correctly identify a public interest reason in enough detail or specificity to make the certificate valid. In any event, it was only necessary, given the below, to discuss the information contained in general terms.

   Applicable law

7. 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.

8. 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. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

10. 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 s.101(b) in the ways described below.

11. The Department decision, a copy of which the applicant provided to the Tribunal, sets out information the applicant provided in his protection application about his name and date of birth, the composition of his family, his citizenship and his claims to fear harm on return to Afghanistan.

12. The decisions record goes on to note that ‘on 29 July 2015, the visa holder lodged an application for Australian citizenship. On 21 August 2018, an officer of the Department’s Identity Biometrics Division completed an assessment of the visa holder’s identity. As a result of this identity assessment, on 27 August 2018, the officer concluded that the visa holder’s claimed identity of [the applicant] (DOB: [date]) was not supported and that the visa holder’s true identity is [Alias 1] and the visa holder is citizen of Pakistan.’

13. The decision record notes evidence from the applicant’s wife’s partner visa application which included a marriage certificate (I note that the marriage certificate lists the applicant’s name as [the applicant], son of [Alias A] (No CNICs are listed for either man) – Df.33), photographs of the wedding, and phone call summaries. Information from the visitor visa application of [Mr A], the applicant’s father, and [Ms A], the applicant’s mother in which they both declared they were Pakistan citizens and provided copies of Pakistan passports, financial transactions, and forensic facial comparisons.

14. On the basis of this information, it was noted in the decision, ‘the officer of the Department’s Identity Biometrics Division concluded that the visa holder was the son of [Mr A] (DOB: [date]) and that the visa holder and [Mr A] have declared family compositions that are consistent. The officer also concluded that as the visa holder’s presumed father was born in Pakistan, it is likely that the visa holder would have been born there too. Section 4 of the Pakistan Citizenship Act 1951 (II of 1951) provides Pakistani citizenship to anyone born in Pakistan after 1951, unless the child of a foreign diplomat or a member of an occupying power. It is likely that the visa holder was born in Pakistan and thus a citizen under this law. If the visa holder was not born in Pakistan, he would still be a Pakistani citizen by descent from the time of his birth under s 5 of the same Act.’ (footnote excluded)

15. The decision goes on to state:

    The visa holder’s Protection visa was granted on the basis he satisfied the Minister that he engaged Australia’s protection obligations under the Refugees Convention. The visa holder claimed he could not return to Afghanistan due to the threat of persecution from the Afghan Taliban and because of his differing religious views. The visa holder claimed he was 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 the visa holder is a person to whom Australia has protection obligations.

    I consider it reasonable to conclude that the motivation behind the visa holder’s claim of being an Afghan national was to strengthen his claims for protection in Australia. It appears that these claims are incorrect as it appears that the visa holder’s true identity is [Alias 1] born to Pakistani parents, and that he is a citizen of Pakistan.

    On the material presently before me, I consider the visa holder has not complied with Section 101(b) of the Migration Act in relation to answers provided in his statement of claims declaration dated 12 June 2010 and to the following answers the visa holder provided in his Protection visa application form lodged on 5 July 2011:

    -    Question 1 of Part C of Form 866 asked: ‘What is your full name?’ The visa holder answered: ‘[the applicant].’ I consider this answer to be incorrect as the Department has established the visa holder’s relationship with [Mr A] indicating that the visa holder is known as [Alias 1].

    -    Question 19 of Part C of Form 866 asked: ‘Your citizenship at birth’, the visa holder answered: ‘Afghani’. I consider this answer to be incorrect as the Department has established the relationship between the visa holder and his parents who have submitted documentation that confirms they were Pakistani citizens at the time of the visa holder’s birth indicating that the visa holder is a Pakistani citizen and was so at the time of his Protection visa application.

    -    Question 20 of Part C of Form 866 asked: ‘Your current citizenship (if different to at birth)’ The visa holder answered ‘N/A’. I consider this answer to be incorrect as the Department has established the visa holder is the son of [Mr A] (DOB: [date]) and [Ms A] (DOB: [date]) who are Pakistani citizens. The evidence available to the Department strongly suggests that the visa holder is a Pakistani citizen since birth, which is different to that declared at question 19 where the visa holder answered that he was a citizen of Afghanistan.

    -    Question 21 of Part C of Form 866, asked: 'Do you hold any other citizenship or are you a national of any other country?' The visa holder ticked the box denoting 'No'. I consider this answer to be incorrect as the Department, having established that the visa holder’s parents are [Mr A] (DOB: [date]) and [Ms A] (DOB: [date]), has also established that his parents are Pakistani citizens by birth. As such, the evidence available to the Department strongly suggests that the visa holder is a Pakistani citizen and was so at the time of his Protection visa application.

    -    Question 41 of Part C of Form 866, asked: ‘I am seeking protection in Australia so that I do not have to return to go back to (Give name of country of countries).’ The visa holder answered: ‘Afghanistan’. I consider this answer to be incorrect because evidence available to the Department strongly suggests that the visa holder is a Pakistani citizen and was so at the time of his Protection visa application, meaning that the visa holder’s claims against Afghanistan were incorrect.

    -    Question 42 of Part C of Form 866, asked: ‘Why did you leave that country?’ The visa holder answered: ‘See statement attached to RSA application’. In the statement the visa holder declared that his family fled Afghanistan because the visa holder was persecuted by the Afghan Taliban for being an ethnic Hazara and for being involved with the Wahdat party. I consider this answer to be incorrect because the evidence available to the Department, in particular the establishment of the visa holder’s parents being Pakistani citizens strongly suggests that the visa holder is a Pakistani citizen, and was so at the time of his Protection visa application. As a Pakistani citizen the visa holder would have the same rights as other Pakistani citizens, with the right to reside there, meaning the visa holder’s claims against Afghanistan are incorrect and he did not hold the claimed adverse profile for that country as claimed in his Protection visa application.

    -    Question 43 of Part C of Form 866, asked: 'What do you fear will happen to you if you go back to that country?' The visa holder answered: 'See statement attached to RSA application'. In the visa holder’s statement he declared that if he were to return to Afghanistan he risks being killed by the Taliban due to his Hazara ethnicity and Shia Muslim faith. I consider this answer to be incorrect as the visa holder’s claims were based on being from a persecuted cohort in Afghanistan, when evidence available to the Department indicates the visa holder is actually a Pakistani citizen and was so at the time of his Protection visa application.

    -    Question 44 of Part C of Form 866, stated: 'Who do you think may harm/mistreat you if you go back?' The visa holder answered: 'See statement attached to RSA application'. In the visa holder’s statement he declared that he risks being killed by the Taliban. I consider this answer to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates the visa holder is actually a Pakistani citizen and was so at the time of his Protection visa application.

    -    Question 45 of Part C of Form 866, stated: “Why do you think this will happen to you if you go back?” The visa holder answered: ‘See statement attached to RSA application’. In the visa holder’s statement he declared that he would be killed by the Taliban. I consider this to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates the visa holder is actually a Pakistani citizen and was so at the time of his Protection visa application.

    -    Question 46 of Part C of Form 866, asked: ‘Do you think the authorities of that country can and will protect you if you go back? If not, why not?’ The visa holder answered: ‘See statement attached to RSA application’. In the visa holder’s statement he declared that there is no protection for Hazaras and Shi’as. I consider this answer to be incorrect as the visa holder’s claims were based on being from Afghanistan, when evidence available to the Department indicates he is actually a Pakistani citizen and was so at the time of his Protection visa application.

    I consider the visa holder has not complied with Section 101(b) of the Migration Act in relation to the answers given in his Protection visa application. I consider these answers are incorrect because the evidence available to me indicates the visa holder is a Pakistani citizen and was so at the time of his Protection visa application; and as such the visa holder would have had access to a range of opportunities, government services, benefits and protections available to all Pakistani citizens. I consider the visa holder’s claims in regard to Afghanistan are incorrect. As the incorrect information provided was material to this determination, it appears the visa holder may not have engaged Australia’s protection obligations. As such, his visa may be cancelled under section 109 of the Migration Act.

16. Prior to the hearing the applicant provided copies of his taskera, issued [in] 2014, and that of his father, valid [from date], country information on the situation for Hazara in Afghanistan and the general security situation, and on the issuing of taskera, passports and other ID documents, the Pakistan Citizenship Act, and a statement from the applicant’s work supervisor in Australia and a longtime friend of the applicant’s family.

17. I had the benefit of speaking with the applicant and his father, which the delegate did not do. The applicant discussed his early life in [Town 1], Jaghori. He said that he had lived there for 14 years, and after that when the situation got bad and the Taliban were there, his father brought the whole family to Pakistan. They had settled in Hazara town in Quetta. He described his family in Pakistan and said that one of his [siblings] lived in [Country 1], another in [Country 2] and his younger [sibling] lived in [Country 3]. He said his mother and father were here. He said that [one sibling] had died in Australia and was survived by [their] child, and that he, his mother and father were looking after the child.

18. The applicant admitted that his father had obtained Pakistan documents for the whole family, but that these were non-genuine and had been obtained with money. He said that because his father was born in Afghanistan, they could not get genuine identity documents in Pakistan. The applicant said that his father had told him that when he was young he obtained Pakistan identity documents so he could move between the countries, and then he had acquired documents for the rest of the family.

19. I spoke with the applicant’s father, [Mr A], also known as [Alias A]. He explained that he and his wife had been granted visitor visas. These had expired and he had applied for another one and the response to that was pending.

20. He explained that he had paid for his Pakistan documents and those of his entire family. They were not genuine, and he confirmed that neither he nor other members of his family were citizens of Pakistan. He explained in detail how he had acquired the documents through a contact.

21. I showed the applicant and his father the NADRA FRC (Df. 64) which identified the applicant as [Alias 1] and his father as [Mr A]. I noted that this document may indicate to me that the applicant, and his father, and their family, were citizens of Pakistan, because this document indicated that they were recognised by the competent Pakistan authority, NADRA, as holding national identity card (NIC) numbers which are only held by Pakistan citizens.

22. [Mr A] explained that these NICs had been made in Pakistan when he had come and gone from Pakistan for his [business]. I asked if he and is wife had also travelled here on Pakistan passports and he agreed they had. [Mr A] then produced his taskera, which he allowed the Tribunal to retain. He said this demonstrated he was an Afghan citizen. I noted that the agreed information demonstrated that he and his son had resided in Pakistan, appeared on the NADRA database, and travelled on Pakistan passports. This might strongly suggest that they are Pakistan citizens. [Mr A] said that it was not safe for Hazara in Pakistan.

23. [Mr A] explained that the reason the document was enclosed in a plastic bag bearing a boat arrival number and a date on [an] Immigration Processing sticker was because he himself had travelled to Australia in 2000. He had been granted a temporary protection visa but had had to leave the country to care for his family in Pakistan. He provided to the Tribunal his Australian titre de voyage with his visa label attached showing [Alias A variant] nationality Afghan and DOB [date] was granted a subclass 785 protection visa on 26 June 2000, and that this visa had ceased [in 2003] when he departed Australia.

24. I asked why [Mr A] had not declared that he had a son in Australia. He responded that because he had made the request to travel here as a Pakistani and his son’s case was under consideration as an Afghan, he could not say so.

25. I spoke to the applicant and asked about his taskera. He said that he had obtained this from the Ghazni provincial office. He said his father and brother travelled to Afghanistan and they were not heard from. The applicant then travelled there himself to find them and at that time he obtained his taskera. I noted that his movement records indicated he had departed Australia and returned around this time. His father then got this translated through his acquaintances. The translation was produced, he thought, in 2018.

26. I asked why there appeared to be two documents. The applicant said there are not versions of taskera, the original was different and when it was obtained in 2018, it was sent for verification to the Ministry of Foreign Affairs, and was properly and correctly translated, but without his photo, they were unable to verify.

27. I discussed with the applicant the information in the most recent DFAT country assessment Afghanistan (27 June 2019), which discussed the prevalence of fraud. The applicant’s father responded that you could see his son’s taskera was genuine because it cited his taskera volume, page number and all that.

    Consideration

28. I have before me more information than the delegate did. But I have also, below, taken a different view of information that was before the delegate and the identity officer. The country information which the Department has operated on in this case is demonstrably flawed and incorrect. Some assumptions made are also incorrect. I have set these out below.

1. At the hearing I found the applicant, and his father, to be credible. They presented as truthful, telling their view of events as they understood them. They did not overstate their case. Their evidence was consistent with the claims the applicant has consistently made since he arrived in Australia.

2. The delegate of the Minister who cancelled the visa appears to have accepted the applicant was a Hazara Shia, that the applicant’s father was an Afghan citizen and that the applicant may have also been an Afghan citizen by birth. Great weight appears to have been given by the identity officer and then to the delegate in what, for the reasons below, I consider is a misunderstanding of the operation of Pakistan laws, along with a focus on the applicant’s father, and this has then informed the assumption that the CNIC numbers and other less reliable information confirms the applicant as a national of Pakistan. I note that as Pakistan does not allow dual nationality with Afghanistan,[1] he could not have held both citizenships at the same time.

   [1] s. 14 of the Pakistan Citizenship Act, 1951 [Pakistan], 13 April 1951, available at: ‘The Pakistan Citizenship Act, 1951 (as amended to 2000)’, Government of Pakistan, 15 August 2016, CIS38A80123108

3. The applicant has provided primary identity documents of Afghanistan, the Taskeras of himself and his father. He has consistently stated that he was born in Jaghori, Afghanistan. His father has provided to me what appears to be an original taskera. This document shows all the signs of having been issued when he claims it was, in approximately [year]. The fact this was presented to me with [an Immigration Processing] sticker and a boat ID, and that he was granted a temporary protection visa and his TDV acknowledges his nationality as Afghan indicates to me that a decision maker in 2000 recognised him as Afghan, and that this same taskera he presented to me was part of that process.

4. The evidence of the applicant’s father, the presentation of his taskera, and his and the applicant’s evidence of their births in Afghanistan, their ability to discuss the area and situation in Afghanistan and the statement of the applicant’s family friend all strongly indicate that they were both born in Afghanistan.

5. Against this information is the information contained in the delegate’s decision record that the applicant’s father and mother were born in Pakistan and were Pakistan citizens on the basis of their NIC records and Pakistan passports, both of which are issued to Pakistan citizens. Further, the NADRA FRC appears to record the applicant, [Alias 1], as the son of his father and the holder of an NIC.

   Are the NIC records and passports of the applicant’s father and mother ‘genuine’ and do they demonstrate the applicant’s citizenship of Pakistan?

6. I have before me the copy of the NADRA FRC (Df. 64) which identifies the applicant, his father and mother. Recorded against each is an NIC number, which appears to indicate that they were recognised by the competent Pakistan authority, NADRA, as holding national identity card (NIC) numbers which are only held by Pakistan citizens. I have also had regard to the fact that the applicant’s father and mother were issued with, and travelled to Australia on, Pakistan passports.

7. However, the country information indicates that the situation is not as clear as this evidence suggests.

8. Corruption is endemic in Pakistan, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[2] CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.[3] NADRA can verify fraudulent documents although:

   … detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.[4]

   [2] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.

   [3] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.

   [4] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.

9. A report by CODE Pakistan notes that:

   Initially, the Government of Pakistan did not maintain a proper record and database of refugees entering and leaving Pakistan. Since Pakistan’s national registration system was newly established at the time of the arrival of the refugees, and the mechanism for enquiry and verification of nationality was inadequate, some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA. Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees. On April 17, 2018, Mrs. Nusrat Sahar Abbasi, a member of the Sindh Assembly stated on the floor of the house that about 500,000 foreigners, including Afghan refugees, had fraudulently obtained Pakistan’s CNICs and had registered themselves as voters.[5]

   [5] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

   A report in the Express Tribune, dated 3 September 2018, noted that, according to the chairman of NADRA, some Afghan nationals obtained CNICs by pretending to be related to Pakistani nationals. The chairman stated that the cards had been blocked. The report also added that some Pakistani Pashtuns pretended to be Afghan refugees and received relief funds, but then returned to Pakistan.[6]

   [6] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, >

   In a research response to the Canadian Immigration and Refugee Board, it is noted that:

   Obstacles to what should be tasks the average Pakistani citizen might take for granted – such as having passports and national identity cards issued – remain a key problem for the Shia Hazara community. Government authorities ask them to prove that they are indeed "Pakistanis" and that they have not "emigrated" from Afghanistan. The community believes this is indicative of systemic discrimination. (HRCP 2019, 8-9)[7]

   This country information demonstrates several facts. ‘Genuine’ CNICs obtained with fraudulent feeder documents are still possible. The country information also indicates that NADRA records may not indicate the person or persons have a genuine right to hold the documents. Lastly, the country information establishes that the issuance of bogus, or fraudulently obtained genuine NICs to Afghan refugees is a recognised concern of NADRA and legislators with ongoing verification and blocking of NICs issued to Afghans. The response to the Canadian board indicates not only the discrimination present in the approach of the authorities to Afghans and specifically Hazara, but also the distinction between Hazaras who can establish their forebears were present in Pakistan on or prior to 1962 and those who cannot. [8]

   [7] Pakistan: Situation and treatment of Shia [Shi'a, Shi'i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020) Research Directorate, Immigration and Refugee Board of Canada

   [8]  see: ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p. 145, St Martin’s Press, New York, in: ‘Pakistan: Shias Muslims’, 20 November 2015, COISS, p. 27, CRF909496121

10. The applicant has always maintained that he lived in Pakistan on fraudulent documents, and that those issued to his father and mother are not genuine.

11. The delegate and the identity officer have not considered the prevalence of fraudulent documents in Pakistan in their assessment. Nor have they considered the significance of the claim by the applicant and his father that they were born in Afghanistan – indeed, this does not appear to have concerned the officers because they were labouring under the misapprehension that Afghan Hazaras can acquire citizenship of Pakistan. This has not been possible since at least 1963, as I will set out below.

12. The information on which it has been concluded the applicant is a national of Pakistan is not direct evidence of his Pakistan citizenship. There is country information, available to the Department, that Pakistan documentation including CNICs and Passports can be obtained fraudulently, and that many Hazara have been accused of doing just that.  It appears to me that it may be an error going to jurisdiction to cancel the applicant’s visa on the basis of this information alone, without going further and ascertaining whether, in the accepted circumstances of the applicant, he would be entitled to Pakistan nationality. 

13. I have found that he obtained the CNIC fraudulently. I have found that there is no basis for an Afghan citizen in the applicant’s position to legitimately obtain Pakistan citizenship. I find that the information from NADRA that the applicant and his wife hold genuine CNICs, is not a sufficient basis to conclude that the applicant is a national of Pakistan, particularly when considered against the country information I have set out above.

    Has the applicant gained Pakistan citizenship?

14. The Hazara are easily distinguishable by their Eurasian features. They have lived historically in central Afghanistan. They are overwhelmingly Shia. They have been discriminated against and targeted for harm by the Soviet backed regime and then the Taliban. This led many Hazara to seek refuge in Pakistan:

    Some Hazara families’ origins in Quetta can be traced back to the late 19th century, though the majority of the community immigrated in two waves – the first during the Soviet occupation of Afghanistan from 1979 onwards, and the second in 1996, when the Taliban regime in Afghanistan began to target the Hazara. Existing local networks enabled the Afghan Hazara to avoid staying in refugee camps and to integrate better into Pakistani society.[9]

    [9] EASO, Pakistan Country Overview, August 2015, >

    Country information details that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara resident at this time to be recognised as Pakistan nationals and granted citizenship.[10] DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani National Identity Cards required to access government and other services[11]. 

    [10] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan,  26 March 2014, 3.14;

    [11] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan,  26 March 2014, 3.14

15. The most recent DFAT Report states that Hazara children born in Pakistan are entitled to Pakistan citizenship, but that Hazara arrivals from Afghanistan typically do not have citizenship, instead being able to access immigration cards which provide some rights including access to drivers’ licences.[12] The DFAT report goes on to note that many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a Taskera or UNHCR registration documents.[13]

    [12] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.

    [13] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.

16. The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man.[14] Relevant to this consideration, Section 4 provides that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan), Section 5 provides that a person is a citizen if his parent was a citizen of Pakistan (Noting exceptions for those born outside the territory or in the service of a government), Section 9 allows a person granted a certificate of naturalization under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalization or allowing the government to register any person as a citizen.[15]

    [14] The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, The Pakistan Citizenship Act 1951, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

    The Naturalization Act allows a person to be granted a certificate of naturalization if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistan citizens to be naturalized, has resided in Pakistan for the twelve months before the application and for a period of years prior to that time, is of good character, had adequate knowledge of a language gazetted by the Government, and intends to reside in Pakistan.[16]

    [16] The Pakistan Naturalization Act 1926, accessed at Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior, Immigration, >

    The country information demonstrates however that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan prior to 1962.

17. According to an article in Foreign Policy:

    Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[17]

    [17] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,

18. The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalise in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[18] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistan national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and Aliens. [19]

    [18] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5 Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 5-6 >

    Afghan refugees have also been found not to have rights under the Constitution of Pakistan. In the case of Abdul Majeed and another vs. The S.H.O. Police Station Naulakha, Lahore, PLD 1989 Lahore 223, the petitioner, an Afghan refugee, sought to argue that the position of Afghan refugees was analogous to that of those who had come to Pakistan as refugees in 1947 on partition and those from the Kashmir disputed territories. The court dismissed the application holding that Afghan refugees are categorically distinguished from these Constitutionally recognised groups:

    It emphasized that statutory exceptions were carved out in the citizenship laws of Pakistan for these groups. Quite the contrary, Afghan refugees were granted refugee cards and under the terms of the Geneva Accords, their stay in the territory of Pakistan is allowed for a temporary period in which foreign troops have occupied Afghanistan. For this reason, the court held, the law enforcement agencies are justified to restrict the movement of foreigner refugees in the country.[20]

    [20] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 >

    This judicial view was confirmed as recently as 2018 by the Islamabad High Court which cited with approval the decision of the Peshawar High Court in Sanai. The Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud), stated as had the court in Sanai that all persons born in Pakistan except Afghan refugees were entitled to citizenship, but went on to (incorrectly) assert that Pakistan was a signatory to the Refugees Convention and therefore that Afghan refugees were the responsibility of the UNHCR and that Pakistan laws including the Citizenship Act, Naturalization Act and the Constitution did not apply to them. The situation is further complicated by the potential for unregistered Afghan people resident in Pakistan to be considered illegal immigrants under the Foreigners Act 1946.

19. The situation for unregistered Afghans in Pakistan appears even more parlous than for those who are registered.[21] The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the act as any person who is not a citizen of Pakistan.[22] Whilst registered Afghan refugees have a ‘special status’, excluding them from citizenship as above, unregistered Afghans in Pakistan are considered by the government to be aliens and illegal immigrants who may claim only alien registration, work permits and non-refoulement under customary international law.[23]

    [21] Nazir, F., Report On Citizenship Law : Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December 2016, 6 Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, Sections 14, 2 of the Foreigners Act 1946.

    [23] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, type="1">

20. In September 2018 Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private members bill would have extended this to Afghans living in Pakistan for 20 years or greater and had been registered. The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country and that the provinces of Sindh, Khyber Pakhtunkhwa, and Balochistan held serious reservations against the statement made by the Prime Minister.[24] This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[25]

    [24] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,

    [25] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

    A further complication is that the Citizenship Rules 1952 provide for the issuing of a certificate of citizenship by provincial governments for those who acquire citizenship by birth or descent, but it is not common for such documents to be issued, so NADRA is the de facto, but not legislative, authority for recognition.[26] For those who acquire citizenship by naturalization or marriage, the Directorate General of Immigration and Passports (DGIP), Ministry of Interior (MoI), is responsible for determining eligibility for such citizenship acquisition.[27]

    [26] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.

    [27] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives 59/16.

21. The country information above establishes that there is no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship, regardless of their status as registered refugees or unregistered (and therefore considered illegal immigrants by the Pakistan government). Administratively, judicially and legislatively the Pakistan authorities have manifested an intent to exclude Afghans from citizenship and other rights under the Constitution. This appears to be longstanding policy and to have been confirmed by the refusal of the National Assembly to pass laws allowing for the granting of citizenship to Afghan refugees as recently as August last year. When read together, the decisions of the Pakistan High Courts set out above demonstrate that Afghans, whether registered refugees or unregistered, are distinguished from other groups in Pakistan and have been specifically excluded by these Court decisions from accessing citizenship through birth, but also, given the reasoning in Mahmud, through naturalization or any of the other processes envisaged under Pakistan law for becoming a citizen. These decisions establish that Afghans in Pakistan have no method by which they can be recognised as citizens. The recent actions of the National Assembly demonstrate legislative support for this approach.

22. I note that the DFAT report indicates that Hazaras born in Afghanistan can gain citizenship, but I can find no support for this brief assertion in any other country information.[28] Given the weight of information before me tends to indicate that this is not the case, I place little weight on this statement in the DFAT report.

    [28] I note the UK Home Office report, Country Policy and Information Note - Pakistan: Hazaras, Version 2.0, November 2019 but this report draws entirely and exclusively from the DFAT report.

23. On the information above, my assessment that the applicant and his father are credible and the consistency of these claims with the above country information, I accept the applicant’s claims that his father was born in Afghanistan around [year] and sometime in the 1970s (by which time citizenship was not legitimately available to Afghan nationals on the above information), obtained bogus NICs for himself and his family, which he also used to obtain his and his wife’s Pakistan passports.

24. I note on the above country information that the only basis to conclude that the applicant is genuinely a Pakistan national would be to find that his father arrived in Pakistan or was born there prior to 1962. There is no information or basis on which to conclude that this is what happened.

25. I find that the applicant was born in Afghanistan, as was his father. Therefore, the applicant cannot take advantage of the 1962 recognition of Hazara. On the basis of the country information I have considered above, I also find that there is no process by which the applicant could have acquired Pakistan citizenship, neither by naturalization nor any other process set out in the Pakistan Citizenship Act nor any other legislation. Following the caselaw above, the applicant’s stay in Pakistan was governed by the Foreigners Act and according to the ruling in Sanai, the Citizenship Act does not apply to him as an Afghan citizen.

26. On the basis of my findings above, I find that the applicant is and was at the time of his visa application a national of Afghanistan only, born in Jaguri, and that he was not at any time a national nor held citizenship of Pakistan. Therefore, I find that the applicant did not provide incorrect information in his response to questions 19, 20 and 21 of Part C of Form 866.

27. I note that the identity officer concluded that the applicant’s name was likely to be or known as [Alias 1]. However, country information demonstrates that most Afghans do not have a last name, but may choose or be given one, and that this name may be a family name, a father’s name, a grandfather or ancestors name, tribes, tribal location or to honour a famous person and that “Even though in certain instances the name may include the father's name, this is not necessarily the case.”[29] An example given is that of ‘Dr. Abdul Zahir (a former Afghan parliament head) and Dr. Abdul Kayeum (a former second deputy prime minister), who were actually brothers.’[30] On this information and the fact that this appears based on conjecture rather than evidence, I find that the applicant did not provide incorrect information in his response to question 1 of Part C of Form 866.

[29] Megerdoomian, K., “The Structure of Afghan Names”, Semantics Scholar, November 2009, Megerdoomian, K., “The Structure of Afghan Names”, Semantics Scholar, November 2009, p. 4.

28. The delegate also found that the applicant provided incorrect information when he claimed to fear return to Afghanistan at the time of his application for a Refugee visa, and in detailing this fear, which the delegate considered was incorrect because the delegate had found the applicant had the right to legally reside in Pakistan as a Pakistani citizen. For the reasons above, I have found that he was not at any time a national or citizen of Pakistan, and therefore I find the applicant did not provide incorrect information in questions 41, 42, 42, 44, 45 or 46.

29. To cancel a person’s visa under s.109, the decision maker must be satisfied that the ground exists. This must be a real state of satisfaction after considering all information available, not just because a decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[31] It has been stated that the principles in Briginshaw v Briginshaw[32] have no direct application in the context of administrative decision making.[33] However, where, as here, the administrative action is the cancellation of a permanent protection visa, it is, I think, appropriate that:

    ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’[34]

    [31] Zhao v Minister for Immigration [2000] FCA 1235 at [25] and [32].

    [32] (1938) 60 CLR 336.

    [33] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10], and the cases discussed.

    [34] Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [362].

30. Here, I consider it incumbent on a decision maker contemplating the cancellation of a person’s permanent visa to consider these factors when weighing whether the proof obtained is sufficient to ground the power. In this case, it is not.

31. Sufficient information, in my view, would be positive and persuasive evidence that the applicant’s parents or grandparents had been born or entered Pakistan lawfully prior to 1951 or, at the latest, 1962. Given the country information set out here

    Further concerns

32. Although not necessary to consider in detail in this case, I note that the situation continues to be dangerous for Hazara in both Afghanistan and Pakistan.[35]

    [35] See DFAT Country Information Report Afghanistan, 27 June 2019; ‘'What you won’t learn from the NYT op-ed by the Taliban’s deputy leader', Long War Journal, The, 20 February 2020, 20200224121819; ‘Reintegration of Ex-Combatants: Lessons from the U.S. Experience in Afghanistan’, 19 September 2019, Special Inspector General for Afghanistan Reconstruction, 20191101102841; DFAT, Country Information Report Pakistan, 20 February 2019, EASO, Pakistan Security Situation Report, October 2019,

33. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

34. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

35. 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

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.