1910445 (Migration)

[2020] AATA 5948

1910445 (Migration) [2020] AATA 5948 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910445

MEMBER:Melissa McAdam

DATE:7 December 2020

PLACE OF DECISION:  Sydney

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 07 December 2020 at 10:22am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – different name in another visa application – applicant included in his uncle’s family unit – fear of return to Afghanistan – obtaining taskeras in Afghanistan – family financial dependence upon the applicant – DNA testing – contribution to the community – witness testimony consistent with identity documents – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 100-105, 107, 116, 119
Migration Regulations 1994, rr 2.12, 2.41

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 23 April 2019 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 applicant was represented in relation to the review by his registered migration agent.

3. The delegate cancelled the visa under s.116(1AA) on the basis that she could not be 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.

   Background

4. The applicant arrived in Australia by boat in June 2012.  He applied for a Protection visa under the name ‘[the applicant’s name]’ with date of birth [DOB 1].  A protection visa was granted to him in November 2012.  The applicant later applied for a subclass 155 Resident Return visa using the same name and date of birth.  A Subclass 155 visa was issued to him in August 2018.

   NOICC

5. On 16 November 2018 and 18 March 2019 the department issued a Notice of Intention to consider cancellation (‘NOICC’) of the applicant’s subclass 155 visa, on the basis he had provided a false identity in his Protection visa application and had previously used the identity ‘[Applicant Alias A]’, with date of birth [DOB 2].  In the NOICC the delegate outlined the following:

   On 2 September 2012, the applicant applied for a Protection (subclass 866 visa) in Australia.  In the application forms the applicant stated his name is “[the applicant’s name]” with date of birth [DOB 1], and that he has not been known by any other name. He stated he had not applied previously for refugee status or a Protection visa. He stated he had no ‘close relatives’ or personal contacts in Australia. 

   He did not provide any identity documents with his application.

   The applicant stated his father is “[Father name A]” aged [age] in 2012 and missing since 2010, and his mother is “[Mother name A]” aged [age] in 2012, living in Quetta, Pakistan.  He identified his four [siblings] as [names and ages] in 2012, all living in Quetta, Pakistan.

   He stated he is Shia Hazara, born in [Town 1], Qarabagh, Ghazni, Afghanistan.  He lived there until July 2010 when he went to Pakistan to live. He claimed to fear the Taleban in Afghanistan.

   Based on this information the Department found that the applicant was a person to whom Australia has protection obligations and that he met all other visa criteria and granted his Protection (subclass 866) visa on 19 November 2012.

   On 7 August 2018, the applicant applied for a Resident Return (Five Year) (class BB subclass 155) visa, providing the same bio data details consistent with his Protection visa application. The delegate was satisfied the visa holder met all criteria and granted the visa on 14 August 2018.

   Since the grant of the subclass 155 visa, a forensic facial comparison of photographs of the applicant and visa applicant, ‘[Applicant Alias A]’, with date of birth [DOB 2], revealed that the photographs represent the same person.

   [Applicant Alias A] was included in a Refugee and Offshore Humanitarian (subclass 202) visa application on 27 November 2009. The primary applicant was [Ms A] and her application included [Applicant Alias A] (DOB [DOB 2]) and siblings [six other names with dates of birth], as her dependent children.  The application was proposed by the husband of [Ms A], [Mr A] (‘the proposer’), an Australian citizen.

   [Ms A] stated in the application that she and her children (including [Applicant Alias A]) were born in Ghazni, Afghanistan and lived in [Town 1], Qarabagh, Ghazni until early 2009.  They were living in Pakistan since 2009 as illegal residents.  She stated all the listed children were her ‘biological children’.  Her husband, the sponsor, was living in Australia.

   She stated her husband’s siblings were “[Uncle A]” (deceased), “[Aunt B]” (living in Afghanistan), and “[Aunt C]” (living in Afghanistan).

   Her husband included a statutory declaration in the application stating that his son, [Applicant Alias A variant], was unable to get a Taskera from Afghanistan because [Town 1], Qarabagh, Ghazni is not a safe place, it is full of Taleban so going there is dangerous for Hazara people.

   The primary applicant gave her husband’s details as the natural parent of [Applicant Alias A].

   Following an interview with the primary applicant and [Applicant Alias A] in May 2010, the Department requested DNA testing for all applicants because the delegate had concerns as to [Applicant Alias A’s] identity and claims of being the biological child of the primary applicant and the proposer.

   In response the proposer submitted a statement dated 20 September 2010 advising that [Applicant Alias A] had gone missing since July 2010 in Quetta, Pakistan.

   On 7 March 2011, the Department refused [Applicant Alias A’s] application for a Refugee and Offshore Humanitarian (subclass 202) visa because the delegate was not satisfied that he was a member of the immediate family unit of the proposer.

   On 8 March 2011, the proposer advised the Department that [the applicant] is not his son but is his sister’s son and he has been supporting and living with [the applicant] because [the applicant]’s parents passed away many years ago.

   In his application for Australian citizenship in November 2016 the applicant provided a letter from the Embassy of Afghanistan in Canberra, dated [in] October 2016, as evidence of his identity.

   In the Partner (subclass 309/100) visa application in December 2014 by [Ms A], she listed her spouse ‘[Mr A]’ as the sponsor.  In May 2015, the sponsor informed a Department officer post that he previously included his brother, [Uncle A’s], children [Applicant Alias A] and [Cousin A], in the Refugee and Offshore Humanitarian (subclass 202) visa application, as they were being cared for by his spouse but they were not included in his spouse’s Partner visa application as they were in Iran.

   In June 2015, an officer conducted an interview with [Ms A] who stated that [Applicant Alias A] is her sister-in-law [Aunt B’s] son. [Ms A] further claimed that [the applicant] migrated to Australia about four years ago and he is in contact with her spouse, [Mr A].

   In 2009, [Mr A] applied for a Protection (subclass 866) visa and stated in his application that his brother [Father name A variant] was deceased, his sisters [Aunt B] and [Aunt C], were residing in Afghanistan, and his son, [Applicant Alias A], born in [year], resided in Pakistan.

   The applicant’s Response to the NOICC

6. The applicant provided written responses to the NOICC, through his Migration agent, in November 2018 and March 2019. The following are relevant extracts from his responses:

   He stated that his official name is [Applicant Alias A], with birth date [DOB 1], and he is an Afghan national. He is remorseful for the confusion surrounding his identity and for using an alias his Protection visa application.

   He left Afghanistan in 2009 and was smuggled to Pakistan with unknown people. He sometimes resided with his uncle’s wife [Ms A] and with his maternal uncle, [Uncle B], in Pakistan. Life was difficult as it was unsafe and he had no rights in Pakistan. He fled Pakistan with a fake passport, which contained his photograph but not his real name.

   Prior to travelling to Australia, he stayed in Indonesia for a few months where he met a Hazara man who advised him not to disclose his previous visa application to the Australian authorities. He decided to change his name because he feared returning to Afghanistan and due to his young age at the time, he was easily influenced by the man who appeared to be knowledgeable.

   He had a lapse in judgement and was psychologically vulnerable because he feared returning to Afghanistan. His father was missing, his uncle had been killed and he had been threatened by the Taleban in Afghanistan due to his Shia Hazara background and participation in the school [group].

   He used the alias [the applicant’s name] due to cultural reasons. He decided to use another first name ‘[name]’ and use his father’s unofficial surname of ‘[name]’ out of fear and because he was alone and his father was missing at the time.

   He was [age] years old when he arrived in Australia. When he advised the Department of his age, he was given a date of birth of [DOB 1], which he has used since his arrival in Australia. His uncle confirmed in his statutory declaration that he provided the incorrect birth date of [DOB 2] for the visa holder in the Refugee and Offshore Humanitarian (subclass 202) visa application by mistake.

   He provided identity cards from [Organisation 1] and [Organisation 2] in Quetta, Pakistan and letters from his uncle, aunt and friends as confirmation of his identity as [Applicant Alias A].

   The [Organisation 1] ID card shows his name as “[Applicant Alias A variant]” and his father’s name as “[Father name A]”. The card from the [Organisation 2] shows his name as “[Applicant Alias A variant]” and his father’s name as “[Father name A]”.  

   He submitted a letter from the Embassy of Afghanistan in Canberra dated [in] October 2016 in support of his Citizenship application. The Afghan Embassy in Canberra issued the letter after sighting his Australian visa and identity documents and a copy of his father’s taskera.

   He does not have a birth certificate or any government issued identity documents in his original name. He and his family were unable to obtain any government issued identity documents when they fled Afghanistan.  He could not and cannot obtain a taskera due to security reasons and as he is not physically present in Afghanistan.  He does not have any legal identity in Pakistan.

   The family members’ details and family composition in his Protection visa application are correct. His father is [Father name A], his mother is [Mother name A], his [siblings] are [four names]; and they are all residing in Pakistan.

   His uncle [Mr A] is not his father as claimed in the Refugee and Offshore Humanitarian (subclass 202) visa application. His uncle provided the incorrect address history, family composition and family members’ details on his behalf in the visa application.

   He was not in Iran on 17 May 2015 as claimed by his uncle but he was residing in Australia. His uncle falsely claimed that he was looked after by his uncle’s wife but he was actually living with his mother before he travelled to Australia.

   His uncle provided his own family’s address history in the Refugee and Offshore Humanitarian (subclass 202) visa application. His address/travel history declared in his Protection visa application is correct.

   His uncle’s wife, [Ms A] claimed that he is [Aunt B’s] son for unknown reasons. [Aunt B] is his aunt hence he is not her son. He has been in contact with his uncle [Mr A] since arriving in Australia.

   His parents advised him in 2009 that his uncle, [Mr A] had included him in the Refugee and Offshore Humanitarian (subclass 202) visa application because it was not safe in Afghanistan. During this time, he was residing in [Town 1] in Qarabagh District, Afghanistan where the Taleban fought with the Afghan army and often terrorised people in his village because they were Shi’ite Hazara, a minority group in Afghanistan.

   He was young at the time and was not fully aware of the information submitted in relation to the Refugee and Offshore Humanitarian (subclass 202) visa application. He only became aware of the information submitted to the Department by his uncle when he received the NOICC. As such, the inconsistencies provided by his aunt and uncle were not within his control.

   He was not missing in July 2010 and his parents were not deceased as claimed by his uncle on 8 March 2011. He does not know why his uncle made these claims. His uncle confirmed in his statutory declaration that his father [Father name A] is living in Quetta, Pakistan.

   He provided the following supporting documents:

   -Identity card from [Organisation 1] (Serial no. 67/04) for ‘[Applicant Alias A variant]’.

   -Identity card from [Organisation 1] (Serial no. 67/04) for ‘[Applicant Alias A variant]’.

   -Identity card from [Organisation 2] in Quetta, Pakistan issued on 11 June 2010 for ‘[Applicant Alias A variant]’.

   -Statutory declaration from his uncle [Mr A] dated 21 November 2018.

   -Statutory declaration from his aunt [Ms A] dated 21 November 2018.

   -Statutory declaration from his friend [named] dated 22 November 2018.

   -Photographs of his parents and sisters residing in Pakistan.

   -Several character references

   -Employment agreement from [Employer 1], dated 14 February 2018, and payslips from [Employer 1] for 19 January 2018 to 1 February 2018.

   -Certificates, academic transcripts and awards for education qualifications in Australia.

   -Confirmation of enrolment from [a named] University, dated 21 November 2018.

   -[Specified] Notices issued on 8 April 2016, 20 May 2016, 9 August 2016, 8 December 2016, 19 December 2016, 18 April 2017,26 May 2017, 11 September 2017, 19 October 2017, 26 April 2018, 5 June 2018, 24 September 2018 and 24 October 2018.

   -[Award] certificates from [his named] School and [organisation] issued 10 December 2015.

   -The applicant’s resume.

   -Bank account statement from [his bank] for 4 August 2018 to 3 November 2018.

   -Centrelink statement for Youth Allowance, dated [November] 2018.

   -High school graduation and school formal photographs.

   -Photographs with friends at social outings and [careers] events.

   -News articles regarding security in Afghanistan.

   Applicant’s claimed fears

7. Over the course of his application process and visa cancellation process the applicant has claimed the following in relation to his background and fears in Afghanistan and Pakistan:

   -He and his family are from [Town 1], Qarabagh in Afghanistan, a village that is close to Taleban controlled territory. He fears the Taleban in Afghanistan because he is Shia and Hazara.  He fears the Taleban in Afghanistan because as a school child he [participated in a group] with girl students.

   -His paternal uncles, [Uncle A] and [Mr A] were shopkeepers in [Town 1], Afghanistan and transported goods regularly between Ghazni and [Town 1]. [Uncle A] was killed by the Taleban on the road between [Town 1] and Ghazni in about 2008 because he was a Shiite Hazara. His uncle [Mr A] then fled to Australia.

   -His father disappeared in about 2010 while driving a truck.  He was captured by the Taleban on the way from Qarabagh. His truck and his partner were never found. The Taleban held his father captive for approximately three years because they accused him of transporting materials for western governments.

   -A few months after his father went missing there was a battle between the Taleban and government forces in which many people lost their lives. The Taleban used to visit his village, beat people and take their things. The applicant lived in constant fear for his safety and decided to go to Pakistan. His mother and sisters joined him in Quetta.

   -The applicant fled to Quetta in July 2010 and lived with his maternal uncle. His uncle brought his mother and sisters to Pakistan about one month later. At the time his father had been missing for three months. The applicant believes his father was kidnapped

   -His father was missing when the applicant arrived in Australia but he later discovered that his father had been released when he called his mother in Pakistan in early or mid-2013. The Taleban released his father after an acquaintance working for them negotiated and secured his release. Then his father fled Afghanistan to reside with his family in Pakistan.

   -The applicant fears returning to Afghanistan due to ongoing threats from the Taleban and as he may be targeted as a failed asylum seeker. Taleban operating in nearby villages threatened his village and employ spies in Hazara villages to obtain insider information. The Taleban and other extremist groups are likely to target returnees from Western countries as they are viewed as infidels.

   -He would not have a home in Afghanistan as his family and extended family reside in Quetta, Pakistan and Melbourne. His mother’s family no longer live in Jaghori, Afghanistan, they have been displaced and their current location is unknown. He cannot return to Jaghori due to occupation by the Taleban and recent escalation of violence.

   -Quetta is not a safe place for Shiite Hazaras as they are being targeted by extremist groups. The Pakistani police have been targeting undocumented Hazaras for deportation. He would be unable to return to or seek employment in Pakistan as he does not have legal identity, citizenship or residency rights in Pakistan.

   -He is only [age] years old and he has not returned to his home country since he fled Afghanistan. He has adopted the Western way of life, speaks fluent English and has established strong cultural, economic and social ties to Australia. He has been critical of Muslims in the presence of other Afghani people and friends. He fears someone would inform extremist groups such as the Taleban regarding his opinion.

   2009 Protection visa application by Applicant’s Uncle [Mr A]

8. [Mr A variant] provided the following information in his Protection visa application:

   -He is Shia and Hazara. He was born and lived in [Town 1], Qarabagh, Afghanistan. He was a farmer and a shopkeeper there.

   -The Taleban control the roads in his area and they hate Hazaras. About 8 or 9 months previously [the end of 2008 or beginning of 2009] his brother was travelling on the roads to get supplies for the shop and was shot and killed. He felt unsafe and decided his family and his brother’s family should go to Pakistan. They left Afghanistan in February 2009.

   -He lived in Pakistan for three months with his wife and children, and his dead brother’s wife and children. He is responsible for his dead brother’s wife and children. He departed Pakistan in May 2009.

   -His wife, [Ms A], is living in Pakistan. He had a brother, [Uncle A], who is deceased.  He has [siblings], [Aunt B] and [Aunt C], both living in Pakistan. He has [children].

9. He was granted a Protection visa in September 2009.

   2014 Partner visa application by Applicant’s aunt, [Ms A]

10. In her partner subclass 100 visa application, sponsored by her husband [Mr A], [Ms A variant] wrote that her husband, [Mr A], has three siblings, namely a brother [Uncle A] who is deceased, and two sisters, [Aunt B] and [Aunt C].

    Delegate’s Decision

1. The delegate found that the applicant had provided two different claimed identities with different names and dates of birth which were not supported by credible evidence. Therefore, his true identity was not known. The applicant had also provided conflicting information about his family composition, therefore, his family composition is unknown.

2. The delegate considered that the applicant provided contradictory and inconsistent information regarding his claimed identity and family composition, which leads the delegate to consider that the applicant’s genuine identity is unknown. The delegate was not satisfied as to the applicant’s identity.

   Information to the Tribunal

   Pre-Hearing Submission

3. On 14 September 2020 the applicant’s agent provided a written submission to the Tribunal, outlining the following:

   Taskera
   27. Independent country information supports the plausibility of the applicant’s claims that he did not hold a taskera or birth certificate when he left Afghanistan in early 2010. Taskeras are not issued automatically but upon application only. (Landinfo, Report: Afghanistan: Tazkera, passports and other ID documents, para.2, ,22 May2019). Norwegian’s Country of Origin Information Centre’s 2019 report Afghanistan:

   Tazkera, passports and other ID documents“ state “It is up to the individual Afghan
   whether they want to apply for a tazkera or not”. In 2015, it was estimated by a “well-informed international organisation” that approximately 60% of the population are in possession of a tazkera. Moreover, “far more people in the cities have a tazkera than those in the countryside”.

   28. With respect to the documents required in support of the application for a taskera, the report states that the majority of the population do not hold a Birth Certificate.

   29. This applicant resided in the countryside in the small village of [Town 1], Qarabagh, Ghazni. He left Afghanistan aged approximately [age]. Based on country information, it is not only plausible, it is extremely likely that the applicant did not hold either a taskera or birth certificate when he left Afghanistan as claimed. We submit that you can be satisfied that the applicant did not hold Afghan identity documentation upon leaving Afghanistan in early 2010.

   30. At the time the applicant applied for citizenship in 2016, Afghan law required applicants to be in Afghanistan to apply for a taskera. For this reason, the Afghan Embassy only issued the applicant with a letter dated [in] October 2016. However, since the delegate’s decision, Afghan laws have changed to allow Afghan nationals to apply in absentia for a taskera. The applicant duly applied for a taskera and instructs that he followed the process as per the Afghan  Embassy’s website.

   31. The applicant now provides the AAT with a copy of his own taskera as well as his father’s taskera, which he submitted with his application for in absentia. His father’s taskera is the same taskera which the applicant submitted to the Afghan Embassy in 2016 to obtain the letter dated [in] October 2016 in support of his Australian Citizenship application.

   32. Relevantly to this applicant’s father’s taskera, the Landinfo report states:

   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.

   33. We note that the applicant estimated his father’s year of birth as [year] ([age] in 2012) in his SC866 visa application and ([DOB]) in his 2016 Citizenship application. It is can be inferred that the applicant completed the citizenship application without reference to his father’s taskera even though he had it in his possession and provided it to the Afghan Embassy in Canberra to obtain a letter in support of his identity. This lack of awareness of birth years and dates as described in the Landinfo report above is indicative of the lack of importance placed on birth dates by Afghan nationals, reinforced by a lack of official documentation.

   34. We further note that the applicant estimated his eldest [sibling]’s age as [age] in 2012 (year of birth [year]) and in his citizenship application, he gave her date of birth as [another DOB]. [Sister A’s] Pakistani issued Afghan Citizen Card records her date of birth as [an earlier date]. We submit that these discrepancies exemplify the fact that, given either the lack of, or alternatively, the unreliability of official Afghan government documentation regarding age, estimates naturally vary considerably.  It is our submission that, in these circumstances, no adverse inference can be drawn from these estimates as it relates to identity.

   35. Country information clearly supports that the reckoning of age can differ across regions and is, at best, an estimate only. It is submitted that, based as it is on physical characteristics and short interview, the Director of PRD’s claim that specialists work with a margin of error of six months, should be treated with an appropriate degree of scepticism.

   36. We note that the report states other details in a taskera may well be incorrect:

   Generally, the document’s date of issue is of no importance for the Afghan authorities’ evaluation of its validity. It is for the holder to decide whether the information in the tazkera should be updated if it is no longer correct, for example, in the case of a change in marital status. The tazkera is updated or renewed when applying for a new tazkera.

   37. In light of the above, we submit that no negative inference as to identity be drawn from the discrepancy between the applicant’s estimate of his father’s age as [age] in 2012 and the recorded age of [age] in his taskera.

   Student cards
   38. With respect to the Student cards issued in Afghanistan and Pakistan respectively, we submit that you can attach more weight than was accorded by the delegate to these identity documents for the reasons that:

   a.the applicant is clearly recognisable in the photos;

   b. the photos are similar to passport photos and as such, are clearly taken for the purpose of being affixed to an official document such as the student card;

   c. in the absence of government issued documentation, it is likely that the photos were legitimately taken for the purposes of the student cards;

   d. the photos show the applicant as a primary school aged child in Afghanistan and a teenager in Pakistan which accords with his account of his movements;

   e. the cards record the same name as was recorded in [Mr A] family’s SC202 visa application in 2009;

   f. the cards record the applicant’s father’s name as [Father name A];

   g. the student cards support the fact that the applicant has studied English from a young age which goes towards explaining the applicant’s current fluency in the English language.

   39. For these reasons, we submit that the three (3) Student cards can be accepted as genuine and corroborative of the applicant’s account of his true name, [Applicant Alias A].

   UNHCR and Pakistani Registration
   40. The delegate found that the Afghan refugees could register with the UNHCR and be issued with ‘PoR’ cards by the Pakistani government identifying them as refugees. Upon enquiries by the applicant to his family, the applicant’s sister, [Sister A], has provided a Pakistani government issued identity card entitled ‘’Afghan citizen card’. The applicant instructs that his sister told him that her husband’s brother arranged it. With respect to his parents’ lack of Pakistani or UNHCR documentation, the applicant instructs that they are illiterate and old and for these reasons, they have not sought to register themselves or their daughters.

   41. The applicant has now provided his taskera, his father’s taskera and his sister’s Pakistani government issued refugee card. We submit that the above documents, together with the student cards and the evidence provided by the applicant’s aunt and uncle, amount to sufficient evidence for you to be satisfied of the applicant’s identity.

   42. In the event that you are not satisfied as to the applicant’s identity, we submit that, for the reasons set out below, the visa ought not be cancelled.

   Whether to Cancel
   43. PAMS General visa Cancellation powers (s.109, s116, s128 , s134B and s.140) refers to ten (10) matters which must be taken into account when considering whether or not to cancel a visa pursuant to s.116. An additional matter must be taken into account when considering cancelling a permanent visa, as in this case, taking it to eleven (11) matters for consideration.

   44. With respect to the weighting of each matter, policy states:

   The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder.

   45. We submit that a complete consideration of the eleven (11) circumstances, clearly lead to a conclusion that the applicant’s visa should not be cancelled. Each of the prescribed circumstances in policy is examined in further detail below.

   The purpose of the visa holder’s travel to and stay in Australia (No.1)
   46. The applicant arrived as an unauthorised maritime arrival [in] June 2012 and was granted a Protection SC866 on 19 November 2012. The applicant was thus found to be owed protection obligations based on his ethnicity (Hazara) and religion (Shia). It is our submission that there can be no more compelling need to stay in Australia and this fact should be given significant weight in favour of not cancelling the visa.

   The extent of compliance with visa conditions (No.2)
   47. The delegate found that no visa conditions are attached to the Resident Return Visa SC155 and therefore, this consideration does not apply in the present case.

   The degree of hardship that may be caused to the visa holder and any family members (No.3)
   48. Policy states delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

   49. The applicant is the only son of his parents. Culturally, he is responsible for maintaining his aging parents financially. In the applicant’s case, he is also responsible for supporting his [specified family members].

   50. Money transfer records show the applicant transferring, on average AUD1,000 every one or two months to his father, [Father name A]. As undocumented Afghan refugees living unlawfully in Quetta, Pakistan, his parents and [siblings] are completely dependent financially upon the applicant for their survival. The applicant’s father does not work and culturally, his wife and sisters are not able to work, rendering them completely financially dependent upon the applicant. Should the applicant’s visa be cancelled, the applicant’s family will be destitute.

   51. The delegate found that Afghan nationals may apply for a visa at Pakistani consulates or embassies abroad and therefore, the applicant “may have an option of reuniting with his family and seeking employment in Pakistan.” Implicit in this finding is an acknowledgement that the applicant is an Hazara Shia Afghan national to whom it has been determined Australia owes protection and as such, cannot return to Afghanistan. We submit that, in the absence of information as to the applicant’s eligibility for a Pakistani work visa, this option is purely hypothetical and, we submit, it is not open to the Tribunal to rely upon it.

   52. As a person who has been found to meet Article 1A of the Refugees Convention, the applicant cannot be returned to Afghanistan, nor does he have a right to enter and reside in Pakistan. As the sole breadwinner in the family, his parents and [family members] face catastrophic impoverishment should the applicant’s visa be cancelled.

   The circumstances in which the ground for cancellation arose (No.4)
   53. Please refer to our submissions dated 23 November 2018 outline the extenuating circumstances at paragraphs 11-14.

   The visa holder’s past and present behaviour towards the department (No.5)
   54. The delegate accepted that ‘there is no evidence that the visa holder has been anything other than cooperative during his previous dealings with the Department and he has engaged with the cancellation consideration process.’ The delegate accorded ‘a little weight’ in the applicant’s favour in regards to this factor.

   55. We are instructed that the applicant is willing to undergo DNA testing with his uncle, [Mr A] and his father, [Father name A] to prove, firstly, that his uncle and father are brothers and secondly, that he is the son of [Father name A] and the nephew of [Mr A]. In so doing, the applicant exhibits his willingness to evidence his identity with DNA tests and satisfy the DHA beyond all doubt as to his identity.

   56. In the event that you are not satisfied as to the applicant’s identity based on the evidence before you, we request that these proceedings be adjourned for the purpose of obtaining DNA testing.

   Whether there are persons in Australia whose visas would, or may, be cancelled under s140 (No.6).
   57. There are no persons in Australia whose visas would be automatically affected by a cancelation and accordingly, this matter is not relevant to the present case.

   Whether there are mandatory legal consequences to a cancellation decision (No.7)
   58. The applicant faces mandatory legal consequences as a result of the visa cancellation. Those consequences are so severe and out of proportion with the non-compliance that the preferable decision is to not cancel the visa.

   59. The applicant will be subject to a ‘bar’ from applying for the majority of visas classes pursuant to ss 48 and 48A of the Act, unless the Minister determines that s 48 does not apply (per s 48B of the Act).

   60. Further, the reality of the applicant’s circumstances are such that he is not in a position to apply for any of the substantive visas that are prescribed in reg 2.12 of the Regulations. Further, he will not be entitled to apply for any of the Bridging Visas listed in that regulation, aside from possibly Bridging Visa R, only where the Minister invited him to do so.

   61. While the applicant is currently the holder of a Bridging Visa E, that visa only permits him to remain in Australia while his application for review is underway. In the event that the cancelation is not overturned, his Bridging Visa E will cease after 35 days and without further intervention, the applicant will be an unlawful noncitizen who will be subject to detention and removal under ss. 189 and 198 of the Act respectively.

   62. The possibility of any visa which requires Ministerial action is merely a matter of speculation. In our submission, the mandatory and inevitable legal (statutory) consequence of the cancellation of the visa is that the applicant will be an unlawful non-citizen and subject to immigration detention, pursuant to ss 196 and 198 of the Act.

   63. As non-refoulment obligations may be owed, pursuant a possible finding of the ITOA, by extension the mandatory and inevitable legal (statutory) consequence of the cancellation of the visa is that the applicant may face indefinite detention in Australia. We submit that the applicant is entitled to have his application determined on the hypothesis that he will be indefinitely detained, or with reference to our submission above, we submit that no decision should be made until an ITOA assessment is obtained.

   64. It is our submission that subjecting the applicant to indefinite detention is an extremely significant and extremely adverse consequence of the cancellation of his visa.

   65. Therefore, for this particular applicant, such consequences are greatly out of proportion with, and far outweigh, the nature of the (alleged) non-compliance. As such, given the serious nature of the legal consequences of a cancellation, being indefinite detention, we submit that very significant weight should be given in the applicant’s favour, that is, to not cancel the visa.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation (No.8)
   66. Non-refoulement obligations are dealt with below.

   67. The delegate found correctly that the applicant has no children and therefore, the Convention on the Rights of the Child is not applicable.

   Whether the cancellation would lead to removal in breach of Australia’s nonrefoulement
   obligations (No.9)
   68. Whilst maintaining that the applicant’s identity was unclear and not supported, the delegate acknowledged the applicant’s “claims regarding the ongoing violence, socio-political unrest, instability and threats against Shiite Hazaras in Afghanistan.” As stated at para. 51 above, there appears to be an acceptance that the applicant is an Afghan national. As far as the writer is aware, an International Treaties Obligations Assessment (ITOA) has not been completed in relation to the applicant.

   70. With respect to Afghanistan, it is highly likely that the ITOA assessment will find that the applicant is owed non-refoulment obligations with respect to Afghanistan given his Hazara ethnicity and his Shia faith.

   71. This should be given significant weight. We note that such assessments are not binding on the Tribunal, however there are many Tribunal cases in which the reasoning and findings of the ITOA are considered comprehensive and persuasive.

   72. Further, the Department of Home Affairs would complete an ITOA assessment before
   attempting to remove the applicant from Australia. Were it found that non-refoulment obligations are owed to the applicant, the Department would not be able to remove the
   applicant and the applicant would be subject to indefinite detention (see below for further submissions on this point).

   73. As such, given the importance of the assessment, we submit that no Tribunal decision should be made until an ITOA is completed. The ITOA outcome could have a big impact on the applicant’s future circumstances and is very relevant in the Tribunal’s consideration of whether or not to cancel the visa.

   74. Were the ITOA to find that Australia owes non-refoulement obligations, we submit that
   a very significant degree of weight should be placed on this consideration in favour of not cancelling the visa. This approach would be consistent with previous Tribunal cases. In that case the Tribunal member stated:

   However, noting that he cannot be removed from Australia consistently with
   Australia’s non-refoulment obligations and that he will not be able to make
   any valid application for any visa without the Minister personally intervening.
   I have given significant weight to these factors as reasons that support not
   cancelling the visa

   75. In 1420619 [2015] RRTA 1159 it was found that the incorrect information given formed the basis for the grant of the visa and was considered to be a significant breach. Nevertheless, the Tribunal found that the fact that the review applicant was owed a non-refoulment obligation as the factor of greatest significance and should be given greatest weight.

   Any other relevant matters (No.10)
   76. When considering cancellation pursuant to s.107, a delegate must consider the ten factors prescribed in reg. 2.41. Whilst not factors which are prescribed in relation to s.116 cancellations, we nevertheless submit that factors prescribed in reg.2.41 are relevant to this cancelation. This is because, firstly, they are relevant and secondly, the delegate could just as well have cancelled the applicant’s visa pursuant to s.107.

   77. Some of the factors prescribed in reg.2.41 are also required to be taken into account when considering cancellation pursuant to s.116 (for example, circumstances in which the non-compliance occurred, the visa holder’s present circumstances, the visa holder’s subsequent behaviour in regards to their obligations to provide correct information pursuant to ss 100-105 of the Act). These factors have been addressed above. The remaining reg.2.41 factors are addressed below.

   Correct information
   78. The applicant’s correct name and date of birth is [Applicant Alias A], DOB [DOB 1]. His father is [Father name A] (birth [year]) and his mother is [Mother name A]. He has [specified family members]. His family reside in Quetta, Pakistan. He is Hazara Shia who left Afghanistan in early 2010, travelled to Pakistan and subsequently to Australia in 2012. He was included in his uncle’s family’s Humanitarian SC202 visa.

   Content of genuine document
   79. The delegate did not find that the applicant had submitted a fraudulent document. Rather, his identity could not be established due to inconsistent information. These inconsistencies largely arose as a result of information given about him by his aunt and uncle, not by the applicant himself. An explanation is found in the Statutory Declarations dated 21 November 2018 of the applicant and his aunt and uncle. The explanation is plausible and the parts of the explanation that relate to taskeras are supported by independent country information.

   80. We submit that the fact that the applicant has never submitted a bogus or fraudulent document should be weighed in the applicant’s favour.

   Whether the decision to grant the via was based wholly or partly, on incorrect information or a bogus document
   81. The applicant was granted a Protection SC866 visa based on his claims as a Hazara Shia from Afghanistan. The reasons for grant in 2012 remain the same and are as valid today as they were in 2012. We submit that the decision to grant the visa was based on correct information, save for the name and date of birth of the applicant. We submit that this should weigh heavily in favour of not cancelling the applicant’s visa.

   Any other instances known to the delegate of non -compliance
   82. There is no evidence of other instances of non-compliance. As such, the noncompliance by the applicant is limited to that specified in the Notice of Cancellation. We submit this ought to be given weight in favour of not cancelling the applicant’s visa.

   Any breaches of law since the non -compliance and the seriousness of those breaches
   83. The applicant has been a law abiding resident in Australia since his arrival in 2012, as evidenced by his AFP Certificate and traffic record. He has no criminal antecedents or traffic offenses.

   84. We submit that the applicant has demonstrated his respect and observance of Australian laws over a lengthy period of time and this ought to weigh in favour of not cancelling his visa.

   The time elapsed since the non-compliance
   85. The applicant has resided in Australia for eight (8) years. Australia’s settlement services priorities English proficiency, education and training and employment. In all areas, the applicant has excelled and on any reckoning of time, this is a substantial period. The applicant is well and truly integrated into Australian society, as discussed below. We submit that this ought to weigh in favour of not cancelling the applicant’s visa.

   Any contribution to the community made by the visa holder
   86. Although this factor can be distinguished from the s.116 factor ‘whether the visa holder has formed strong family, business or other ties in Australia’ because ‘contribution’ is different and distinct from ‘ties’, we address both factors under the next subheading as, in this applicant’s case, they are inextricably linked.

   Whether the visa holder has formed strong family, business or other ties in Australia (No.11)
   87. The applicant has extensive, strong family ties and has formed exceptionally strong, community and employment ties in Australia.

   Family
   88. The applicant has [specified relatives] living in Australia, including his paternal uncle, [Mr A], his aunt, [Ms A], and their [children]. At least seven (7) relatives are Australian Citizens and at least five (5) are permanent residents. The applicant lives with his uncle [Mr A’s] family when visiting Melbourne and stays in contact with them by telephone.

   Community ties
   89. The applicant has availed himself of every opportunity to educate himself and advance his position in Australia. In doing so, he has actively participated in his school community, as evidenced by his eleven (11) Certificate of Merits issued variously for his ‘excellent application’, ‘excellent effort and participation’, ‘enthusiasm and commitment’, ‘excellent effort and progress’ ‘consistent effort’ and ‘positive attitude’ in the years 2013 and 2015. He was awarded three (3) Young Achiever Awards for ‘outstanding commitment to learning and a positive attitude to school’ and ‘excellent attendance’.

   90. In addition to his school’s recognition of his contribution, the applicant was also awarded [an award] by an independent organisation [for] his “significant and meritorious service to society by his efforts in promoting Peace and Understanding” at his school in 2015.

   91. We also draw your attention to teacher [name deleted] letter dated 22 November 2018 in which she states that the applicant was “a diligent and intelligent student who maintained the highest standards in every aspect of his school life” and that he:

   ‘made a positive and constructive contribution to extra-curricular activities, becoming a valued member of the school through his active involvement in various leadership programs and events. He always demonstrated a willingness to assist and participated enthusiastically in school initiatives such as multicultural Day, Anza Day and awards presentation ceremonies. He also helped with various charities and fundraisers’

   92. It must be borne in mind that the applicant first arrived in Australia in 2012 so these certificates evidence his participation and contribution to his school community almost from the time he arrived in Australia. Not only do they evidence the duration of his contribution, they also evidence the high standard and consistency of his contribution.

   93. During his HSC year, the applicant engaged [Career Agency 1]. Upon completion of the HCS, the applicant commenced a [degree] at [a named] University which he completed in 2018. With the support of [Career Agency 1], he interned over his 2017/2018 university break at [Employer 1]. [The] Deputy CEO of [Career Agency 1], states in her letter dated 21 November 2018 that ‘[the applicant] received very positive feedback during his internship and was offered graduate employment to commence in 2019’.
   94. [Career Agency 1] photos program show a young man who, by virtue of his participation in the program, has contributed to the [Career Agency 1] program directly. The fact that [Career Agency 1’s] General Manager has provided a recent letter of support is indicative of his ties with that organisation and its participants.

   95. On 24 February 2018 the applicant was awarded a university graduation and academic accomplishment award by [Organisation 3], a non-profit organisation which aims to create a professional and educated Afghan community in Australia. [Organisation 3’s] President, [named], states:

   His dedication and commitment to become an active member of community was evident from his later engagements with various events which were organised by APA such as the Annual General Meetings. In recent years, [the applicant] has brought incredible skills and insights to our team, [Organisation 3]. [Organisation 3] consists of a group of mainly young university and graduate students that aims to inspire the emerging Hazara community in Australia through recognising educational achievements of HSC and newly graduate students. [The applicant] is one of these young achievers who have shown outstanding achievements despite many challenges.   [He] demonstrated exemplary skills in teamwork and leadership by volunteering to [deleted].

   Considering the incredible commitment and leadership shown by [the applicant], [Organisation 3] extended a warm invitation to [him] to officially join our executive group as [specified role] in 2019. This year, [the applicant] not only assisted with planning and organising the event, but he also participated as one of the keynote speakers for this year’s Annual Awards Night, where he shed some light on his precarious journey of seeking refuge in Australia to successfully overcoming educational and financial challenges. In these years, [the applicant] has been a source of inspiration for newly arrived refugees and migrants and a valuable member of our team.

   96. The applicant has attracted high praise from numerous sources over a sustained period of time for his contribution to his school, community and employment. He is an award winning member of his community organisation [Organisation 3] and has been appointed as [a specified role], a volunteer position, to help his Hazara Shia community.

   Employment
   97. The applicant has been employed full time with [Employer 1] as a [Graduate position] since 11 February 2019. It can be inferred from the [Career Agency 1] letter dated 21 November 2018 stating that “[the applicant] received very positive feedback during his internship and was offered graduate employment” that his employer continues to be impressed with the applicant. The applicant is thus a fully employed, tax paying member of the Australian workforce.

   98. We submit that there is abundant evidence, not just of the applicant’s strong family, community and employment ties, but also of his exceptional contribution to Australian society for reasons set out by community and organisational leaders. The applicant has demonstrated his unique value to Australian society over eight (8) years. We submit that these factors should be given significant weight in favour of not cancelling the applicant’s visa.

   Conclusion
   99. We submit that the considerations in favour of the applicant to not cancel the visa as set out above, greatly and significantly outweigh the reasons for cancelling the visa.

   100. In our submission to cancel the applicant’s visa in the circumstances as set out above is neither correct nor preferable. In particular, the fact that the applicant could be detained indefinitely should be given significant weight. We submit that indefinite detention is a consequence so severe that it outweighs the noncompliance by some margin.

   101. The fact that the applicant may be owed non-refoulment obligations and faces indefinite detention, when considered with the other circumstances, in our 18 submission strongly point to the conclusion that the reasons for not cancelling the visa far outweigh any reason for cancelling the visa.

   102. Should you not be satisfied, on the evidence provided, as to the identity of the applicant, we respectfully request that the matter be adjourned to allow the applicant, his uncle and his father to undertake DNA testing. DNA testing of these 3 individuals would provide conclusive evidence of the applicant’s identity, as it establishes firstly, the sibling relationship between [Mr A] and [Father name A variant] and secondly, the applicant’s parentage. We note that this would have been undertaken prior to the hearing but for the COVID-19 pandemic.

1. The agent attached the following document copies to the submission:

   -Taskera in the name [the applicant’s name], issued [in] 2019, with an English translation.

   -Screenshot of the Afghan Embassy website with instructions on applications for Taskeras in absentia.

   -Pakistani government issued Afghan refugee card for ‘[Sister A]’, the applicant’s eldest sister.

   -Taskera for the applicant’s father’s, [Father name A].

   -Statutory Declaration by the applicant dated 13 September 2020.

   -[Tertiary qualification] dated 29 April 2019.

   -Letters of support

   -Photographs of the applicant involved in various activities.

   -The applicant’s update Resume.

   -The applicant’s Payslips

   -Money transfer records from the applicant to [Father name A], between October 2018 and– August 2020

   -The applicant’s NSW Traffic Record.

   -[Employer 1] letter of service dated 10 September 2020

   -ATO Notice of Assessment for FY2018/2019

   -Australian Citizenship Certificates for the applicant’s uncle and cousins.

2. The applicant’s Statutory Declaration states the following:

   I have taken all steps in my power to obtain documents to prove my identity as an Hazara Shia Afghan national born [Town 1], Qarabagh, Ghazni, Afghanistan in [year].

   Shortly after my Resident Return SC155 visa was cancelled on 23 April 2019 because I had not supplied sufficient documentation to satisfy the DFAT of my identity, I attended the Afghan Embassy in person to apply for a taskera in absentia. I had not been able to obtain a taskera when I applied for Australian Citizenship in 2016 because the Afghan law at that time required that I be in Afghanistan to apply in person for a taskera. The Embassy did, however, issue a letter dated [in] October 2016, on the basis of my father's taskera.

   In 2019, I followed the steps published on the Embassy's website to apply for my taskera in absentia. I attended in person and completed an application form and paid a fee. I supplied my father's taskera as required. The Embassy kept a copy of my application and gave a copy to me. I sent this copy to the person I nominated in the application as my agent in Kabul who would attend the relevant Ministry in person with my taskera application.  My agent subsequently sent me an original taskera, registration [number] issued [in] 2019.

   When I applied for my taskera In 2019, I completed the application in the name of [the applicant’s name] rather than [Applicant Alias A variant]. I did this because I do not have birth certificate or any other government issued documents from Afghanistan. In Afghanistan, names are not consistent and one could have any name before obtaining a taskera. When I applied for taskera in Afghan embassy in Canberra, I needed to provide them a few documents such as my drivers license, visa or travel documents issued by Australian authorities along with my father's taskera. 

   My fathers taskera was issued in Afghanistan in 2004 It records that my father was approximately [age] years old in [year] and had 8 people in his family. I believe that the reason it records 8 and not 7 people is that my parents had a son between my two eldest [sisters].

   In Afghanistan, birth certificates are not issued and culturally, dates of birth are not important. When I completed my application for Protection SC866 visa in 2012, I did not have my fathers taskera with me and I estimated my parents and siblings' years of birth to the best of my ability. There is a discrepancy of 5 years between the year of birth I gave for my father in my SC866 application and his taskera. I estimated my father to be [age] years of age but his taskera records his approximate age as [age] in 2012.

   After I received the invitation to my hearing, I telephoned my parents to ask them if they could obtain any identity documentation from either the UNHCR or the Pakistan government. I have been calling my parents at least once every day and sometimes multiple times a day since the beginning of September.

   My parents are uneducated and illiterate. My mother arrived in Pakistan in 2010 without my father. As a woman, she did not take any steps to register herself with either UNHCR or the Pakistani authorities. My father arrived in Pakistan in 2013. He told me that he had not taken any steps to register with UNHCR or the Pakistani authorities whilst living in Pakistan. He told me the reason why he did not take steps to register is because culturally, documents are not highly important at least not for my parents and older generations as one does not obtain taskera or any other documents until they need to. Obtaining a document is an absolutely very hard, lengthy and bureaucratic process and even harder for people like my parents. My parents are not the only people living without documents in Pakistan. Like my parents, there are a lot of people who are and have been living in Pakistan in such situation with no documents for years.

   My father tells me that he has spoken to many people and went to the Afghan Consulate in Quetta after I asked him to obtain identity documentation. He said that it takes a long time to get UNHCR registration. He also mentioned that people have told him that the UNHCR office is currently closed and no one knows when it will be open again.

   When I began asking for Identity documentation from my family in Pakistan, my eldest sister [Sister A] told my father that she had obtained a Pakistani government issued Afghan Refugee Card. She told my parents that her husband's brother had helped her to obtain the card. To get the card, she went with her husband's brother to a place not far from Hazara Town that she does not know the name of in late 2017. She said we went there and they took my photo at the back of a van and my husband's brother helped me with the rest. After almost 3 or 4 months my husband's brother gave me this card. She sent me a copy of the card which I have provided.

   My father told me that it is impossible to obtain identity documentation right now. He said he has spoken to a lot of people about the possibility of obtaining documents but he has heard that authorities do not issue documents all the time. Apparently issuing documents for refugees from Pakistan authorities or even UNHCR registration is conducted in the form of a project within certain period of time every couple of years. Despite it being done every couple of years, the documents are not issued on the spot. The authorities do the registration first and documents are issued months later.

   My father is willing to undergo DNA testing to prove the fact that I am his son and [Mr A]is his brother. I understand that my father will need to travel to Islamabad or Karachi which is difficult because the roads in Baluchistan are unsafe for Hazara Shias. It will also be difficult due to COVID-19 restrictions. However, if it is possible to obtain a DNA test at the present time, I will make the necessary arrangements as I wish to prove my identity conclusively.

   My uncle [Mr A] is willing to undergo a DNA test to prove that l am his nephew. He lives in Melbourne and can attend an accredited DNA testing facility there as soon as the COVID-19 restrictions are eased.

   Tribunal Hearing

3. The applicant appeared before the Tribunal on 22 September 2020 and 20 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Father name A] and [Mr A].

4. The following is a summary of the information provided by the applicant at the hearing on 22 September 2020:

   a.The name “[Applicant Alias A]” was given to him at birth.  That was his full name. His father’s name is “[Father name A]”.  His mother’s name is “[Mother name A]”.  It is not common for families to have a surname but his father was known by the last name ‘[name]’.

   b.His full name is “[Applicant Alias A variant]”.  His official name is not “[Applicant Alias A]”.

   c.In Afghanistan a person can use any name before getting a Taskera.  In Australia he became ‘[the applicant’s name]’ and this has been his identity for the past eight years. So he decided to obtain an Afghan Taskera in the name “[the applicant’s name]”.  He chose the name [the applicant’s name] and has lived with this name for eight years now, so it has become the name he wishes to be known by.

   d.He has two paternal uncles. The elder, [Uncle A], has passed away.  The younger, [Mr A], lives in Melbourne.

   e.[Uncle A] was married to [name] who is living in Pakistan.  She has [named children including Cousin A].  His eldest son is from [Uncle A’s] first wife who passed away.  He is in [a named country].  [Some of these children] are in Pakistan.  [Cousin B] and [Cousin A] are in Australia.  [Cousin B] came to Australia with her husband and [Cousin A].  They use the [same family surname].

   f.The applicant has two maternal uncles, [Uncle C], the elder and [Uncle B], the younger.  [Uncle C’s] wife is [name] and their children are [named]. They live in Afghanistan in Jaghori in Ghazni.  [Uncle B’s] wife is [name]. She is the applicant’s cousin.  Their children are [named]. They live in Pakistan.

   g.The eight people mentioned on his father’s Taskera are the applicant’s father and mother and his [named siblings], and himself. It may also include another son who died before the applicant was born. He does not know why this son would be included in the Taskera issued in 2004, well after his death. These things happen in Afghanistan.

   h.The applicant has not yet arranged DNA testing for himself and his father. His father will have to travel to Karachi for this and it is very costly.

   i.His [Aunt B’s] husband is [named]. He is in Quetta.  His [Aunt C variant’s] husband is [name]. They are in Melbourne.

   j.The applicant does not know why his uncle [Mr A] did not mention having a brother [Father name A].  The applicant has not asked him about this.  The applicant has asked him many questions and in his culture it is not that common to ask questions of elders.  The applicant has asked him many things that could be considered shameful.

   k.The applicant does not have any photographs of himself with his family.

   l.The applicant does not know why his uncle [Mr A] said that the applicant’s parents are deceased.  He told the applicant that he was trying to help the applicant.  The applicant does not know how this was helpful.

   m.His aunt [Ms A] denied saying that the applicant is [Aunt B’s] son.

   n.The applicant agreed to the Tribunal telephoning his father, [Father name A], in Pakistan and provided his father’s phone number.  The applicant agreed to arranging DNA testing for himself, his father and his uncle.  The applicant agreed to try to provide photographs of himself with his family.

5. The following is a summary of the information provided by Mr [Father name A], by telephone, at the hearing on 20 October 2020:

   a.His full name is [Father name A full].  He was born [Father name A] and started using [extra family name] about 20 years ago.  In Afghanistan during the Muhjahideen there were different groups.  In his area there were two [people with the same family name]. His grandfather [also had that name].  So he changed his name and chose ‘[the new family name]’.

   b.In Pakistan he goes by the name ‘[Father name A, without the new family name]’.  It is not very common to use surnames in Pakistan. They live there as refugees so do not have proper documents.

   c.His father was [Grandfather A] and his mother [Grandmother A].  They had [specified children] including him.  His sisters’ names are [names]. His two brothers are [Uncle A] and [Mr A]. [Uncle A] was the oldest and [Mr A] is the youngest.

   d.His wife’s name is [Mother name A].  They have [number] children, [named, including the applicant].  ‘[The applicant’s first name]’ is not the name he gave his son. In Afghanistan he was named [Applicant Alias A variant], but when he travelled to Australia he changed his name. 

   e.[Father name A] left Afghanistan about seven years ago.  It was unsafe and he feared the Taleban. The Taleban harmed them in their area.  He lived in [Town 1] in Qarabagh.  He lived there for most of his life.  His father lived there and they had some land and business there.  His brothers had a grocery shop and he had a truck in partnership with another person. They used the truck to carry goods, for example wood from their area to Ghazni, and would bring back food items and bricks.

   f.His oldest brother was tortured by the Taleban and died as a result, in approximately 2008, about 12 years ago.  His brother’s family went to Pakistan and he ([Father name A]) stayed in [Town 1]. 

   g.The Taleban stopped his truck and accused him and his partner of carrying goods for school or NGOs. The Taleban used the excuse to harass him and his partner. The Taleban continued to harass him for almost three years.  They harassed him by confiscating his truck and they were not willing to return it.  He went to the Taleban multiple times to request his truck but they did not return it. The Taleban had different commanders who he would have to talk to. They harassed others too and took their vehicles.

   h.He did not go to Pakistan with his wife and daughters because he was in Taleban custody.  The Taleban accused him of transporting goods.  He thinks this was in 2009.

   i.The Tribunal put to him that he had previously stated the Taleban‘s harassment of him amounted to the Taleban taking his truck and not returning it to him.  He responded that was correct.  The Taleban took his truck.  He would go and ask for it to be returned and that was when he and his partner were arrested.

   j.The Taleban took his truck when his partner was driving it. He was not there himself.  The Taleban let his partner go. Later they both went to ask for the truck and the Taleban arrested him and his partner.

   k.They went to see the Taleban in the vicinity of Qarabagh, towards [District 1]. A person familiar with the area was helping him to negotiate with the Taleban but the person was not able to help get their truck back.

   l.The Taleban accused him and his partner of carrying illegal goods and imprisoned them in the [District 1], in a village next to the mountain.

   m.He and his partner did not do any work while captured but sometimes they worked as labourers for mud houses.  Eventually a person he knew previously came and was close to the Taleban. By this person’s mediation he and his partner were released.

   n.He found out his family were in Pakistan and travelled there. 

   o.He last saw his son in Pakistan when his son visited about three years ago.

   p.His son went to school up to [grade] in Afghanistan.  The school was in the [Town 1] area, in [a named village].

   q.His brother [Uncle A] had [specified children].  The sons are [named, including Cousin A]. The daughters are [named, including Cousin B]. His sister [Aunt B] has [children]. His sister, [Aunt C variant] has two [daughters].

   r.He does not have any Pakistan identity documents.

   s.He has an Afghan Taskera.  He was quite young when his family applied for his Taskera. In the old days it was in the form of a book. In [year] he had to go into compulsory military service.  After his return his Taskera book was lost.  He then went to the Office of Population Registry in Ghazni, in [year], and obtained the Taskera which he still has.  He has it with him in Pakistan.

   t.He also has an Afghan military discharge card.  His brother-in-law, [Uncle C], has it in Afghanistan. [Uncle C] lives in Jaghori.  He is [Father name A’s] wife’s brother.  He thinks [Uncle C] will be able to send him his discharge card and also his UN Voter Registration card.

   u.He will send copies of these three documents to his son to submit to the Tribunal.

6. The following is a summary of the information provided by [Mr A], by telephone, at the hearing on 20 October 2020:

   a.His full name is [Mr A].  This was his name in Afghanistan as it is in Australia.  His parents names are [Grandfather A] and [Grandmother A].  They had [specified children].  The oldest son was [Uncle A], then [Father name A], and then himself. The [others included Aunt B] and [Aunt C variant].  All of them are alive except [Uncle A] who died in around 2007 or 2008.  He was killed by the Taleban.

   b.He thinks he went to Pakistan in 2009.

   c.He thinks he was about [age range] years old when he left Afghanistan.  The elders told him he was born in [year].

   d.[Uncle A’s] children are [named including Cousin A].

   e.[Father name A’s] children are [named, including Applicant Alias A variant].

   f.[Aunt B’s] children are [named].

   g.[Aunt C variant’s] children are [named].

   h.He does not remember stating that [Applicant Alias A variant’s] parents passed away many years ago.  He does not recall stating that [Applicant Alias A] was his brother [Uncle A’s], child.  He does not remember stating that his brother [Father name A] was deceased.

   i.[Applicant Alias A variant] was living with his maternal uncle’s son [Uncle B], and other times he would live with [Mr A] and his family.  This was when [Applicant Alias A variant’s] parents were still in Afghanistan.

   j.He thinks [Applicant Alias A variant’s] parents came to Pakistan in 2012 or 2013.  He thinks they came together with their [other children].

   k.[Uncle A] and he worked in a shop in the market in Afghanistan.  The shop sold [specified] products.  [Uncle A] went to Ghazni to bring back some goods. On the way back he was taken by the Taleban and killed.

   l.[Father name A] helped their father on the land and other times he would help at the shop. [Father name A] had a truck and was arrested by the Taleban and then released.  He carried goods and the Taleban would demand money. Eventually the truck was taken from him.  He was travelling between Ghazni and his truck was taken and he was arrested. He was released 2.5 years later.  [Mr A] was not in Afghanistan at that time. He had left because of the insecurity.  He went to Pakistan with his children and [Uncle A’s] family.

   m.He has an Afghan Taskera. He did not serve in the army so he does not have a military discharge card.  He will submit a copy of his Taskera to the Tribunal.

   n.He has a lot of contact with [Applicant Alias A variant] in Australia. [Applicant Alias A variant] has changed his name to [the applicant’s name].

   Post-Hearing Submission

7. On 30 October 2020 the applicant submitted the following written material:

   -[Mr A’s] Afghan Taskera (with English translation).

   -[Father name A’s] Afghan Taskera.

   -[Father name A’s] 2003-4 Afghan voter ID (with English translation).

   -[Mother name A’s] 2003-4 Afghan voter ID (with English translation).

   -[Father name A’s] 1981 Afghan Military Discharge (with English translation).

   -Two photographs of the applicant “with family in Pakistan”.

   -AFP National Police Certificate for the applicant.

   -ATO Notice of Assessment for year ended 30 June 2020 for the applicant.

   -Two photographs of three people described as the applicant’s parents and a sister in Quetta. The photographs are a little grainy and distant.

   -An Afghan Taskera No [number] for “[Father name A]”, from village “[Town 1]” in “Qarabagh” “Ghazni”, with father “[Grandfather A variant]” and grandfather “[Grandfather B]”, issued [in] 2004, bearing a photograph of a man.  The photograph is a little dark but bears some resemblance to the man described as the applicant’s father in the above two photographs.  The registration page details are recorded as “[page details]”.

   -An Afghan Taskera No [number] for “[Mr A]”, from village “[Town 1]” in “Qarabagh” “Ghazni”, with father “[Grandfather A variant]” and grandfather “[Grandfather B]”, issued [in] 2004, bearing a photograph of a man which looks highly similar to other photographs of [Mr A].  His registration page details are recorded as “[page details]”.

   -An Afghan 2003-4 Afghan voter ID in the name “[Father name A]”, age “[specified]”, with father “[Grandfather A variant]” from “[Town 1]”, “Qarabagh”, “Ghazni” bearing a photograph of a man who could readily be a younger version of the person who appears in the Taskera of the same names and family photographs from Quetta.

   -An Afghan 2003-4 Afghan voter ID in the name “[Mother name A]”, age “[specified]” with father “[specified]” from “[a named town]”, “Qarabagh”, “Ghazni” bearing a photograph of a woman with her head mostly covered by a head scarf.

   -An Afghan Military Discharge for “[Father name A]”, with father “[Grandfather A variant]”, discharged in March 1981. It bears a photograph of a young soldier who bears some resemblance to the applicant.

   Two photographs of the applicant standing closely with people described as his father, sibling and aunts in Pakistan. The man listed as his father bears close resemblance to the photographs in the ID documents of ‘[Father name A]’.

1. On 27 November 2020 the Tribunal received ‘paternity test results’ from the Genetics Department of [Agency 1], regarding the applicant and [Father name A].  According to the attached report, testing was carried out by [Agency 1] in October and November 2020, in [a named town], NSW. The report contains identification photographs of both the applicant and [Father name A].  The photographs correspond to other available photographs of the applicant and [Father name A].  The report sets out the following conclusions:

   … the results of the parentage testing procedures carried out on the bodily samples of the donors specified above show that [Father name A] is NOT EXCLUDED from identification as the biological father of [the applicant’s name].

   … the probability that [Father name A] is the genetic father of [the applicant] has been calculated as follows:

   [Father name A] is 14731243 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the general population. This equates to a Relative Chance of Paternity of 99.999993%.

   … [a] conservative probability that paternity is proved is greater than 99.999993%.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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?

   s.116(1AA) – Not satisfied as to identity

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

4. There is no definition of “identity” provided in the Migration Act 1958 or the Migration Regulations 1994. The meaning of “identity” in relation to s 116(1AA) has also not been considered by any Court.

5. The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 states that s 116(1AA) may be used if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the 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. The Minister will be prevented from being satisfied as to a person’s true identity if there is contradictory or inconsistent information or documents relating to the person’s identity.[1]

   [1] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, page 24.

6. According to the Department’s guidelines, decision-makers considering whether to exercise the discretion in s 116(1AA) of the Act should have regard to all relevant matters including the visa holder’s individual circumstances and the fact that some applicants will have legitimate difficulties in obtaining evidence of their identity. Section 116(1AA) will not apply if the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed or in response to a notice under s 119, the visa holder satisfies the delegate as to their true identity. It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.[2]  The policy stipulates that to be satisfied as to a stated identity, Department officers must have concluded that it is more likely than not that the visa applicant is who they say they are, that is, the officer has reached a 'level of confidence' in the visa applicant's stated identity.[3]  The Departmental policy defines the “Three Pillars of Identity” for­ visa purposes as consisting of:

   -Documents, containing biographic information (such as name and date of birth);

   -Information, the life story of the applicant(s); and

   -Biometrics, evidence that links a person’s biographic information to physical attributes (including facial images and fingerprints).[4]

   [2] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.

   [3] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Assessing the identity of visa applicants – IDENTITY ASSESSMENT & THE VISA DECISION PROCESS – Officers must be satisfied as to a stated identity.

   [4] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity.

7. The delegate was not satisfied as to the applicant’s identity because she considered that the applicant provided contradictory and inconsistent information regarding his claimed identity and family composition.  She found that the applicant’s two claimed identities were not supported by credible evidence.

8. The applicant claims that both his identities are genuine.  He claims he was born in [year] with the identity ‘[Applicant Alias A variant]’ and later adopted the identity of ‘[the applicant’s name]’ which he now uses.

9. As to his family composition the applicant has provided the following information over the course of his applications in Australia:

   His father is [Father name A], his mother is [Mother name A], and he has [specified family members], namely [names].

10. The applicant claims that in 2012 his aunt, [Ms A], and uncle, [Mr A], included his correct name, but his incorrect year of birth and family composition, in order to try to obtain a dependent visa for him in their sponsored humanitarian application.  In the application he was described as a son of the primary applicant and her sponsor.  [Mr A] eventually confirmed that the applicant was not his son, but the son of [Mr A’s] brother [Father name A] and his wife [Mother name A].

11. The applicant has been able to obtain confirmation, through the Afghan Embassy in Canberra, that he is the son of [Father name A]. The registration details for [Father name A], in the written confirmation, match those of the Taskera belonging to [Father name A].

12. The applicant has also submitted the identity cards from organisations in Pakistan, bearing photographs of himself as a child, in support of his claimed identity [Applicant Alias A variant].  He submitted a Statutory Declaration from an Australian citizen claiming to have known the applicant since the applicant was a child, having lived in the same village, [Town 1], as the applicant.

13. The applicant has submitted numerous documents in support of his claimed adopted identity [the applicant’s name], which include personal references, official documents, employment records, bank records, and education records.  He also included records of money transfers from himself in the name ‘[the applicant’s name]’ to “[Father name A]” in Pakistan.

14. The applicant submitted family photographs and Afghan identity documents for his claimed mother, father and uncle.  The Tribunal notes that in one of the photographs, the woman described as the applicant’s mother bears a striking resemblance to the applicant.  In the two photographs of the applicant standing closely with people described as his father, sibling and aunts in Pakistan, the man listed as his father bears close resemblance to the photographs in the ID documents of ‘[Father name A]’.  The Taskeras for [Father name A] and [Mr A] also include matching details for their parents and village. The registration folios have matching volumes and pages. The Taskeras also both contain photographs which bear satisfactory resemblance to more recent photographs of [Father name A] and [Mr A].  The Afghan Voter Registration Cards for [Father name A] and [Mother name A] contain details consistent with the information from [Father name A] and the applicant. The voter card for [Father name A] bears a photograph of a man who could readily be a younger version of the person who appears in the Taskera with the same name and family photographs from Quetta.  The Afghan Military Discharge for “[Father name A]” provides the name of his father “[Grandfather A variant]” and bears a photograph of a young soldier who shows some resemblance to the applicant.

15. The Tribunal notes that the instructions provided by the Afghan Consulate for a person to obtain a Taskera from outside Afghanistan provide no direct mechanism for a person to verify his or her name or date of birth.  The documentary requirement is simply to provide a paternal relative’s Taskera. The only other identity verification is by way of an interview held at the embassy. The Tribunal therefore accepts that the applicant can have a Taskera issued in a name of his choice, as long as he can satisfy the Embassy that he has the claimed relationship with the paternal relative identified in the supporting Taskera submitted.

16. There is nothing about the submitted photographs and Afghan Identity documents to suggest that they are not genuine. The Tribunal considers these materials to be compelling evidence as to the applicant’s, and his parents’, identities.

17. The Tribunal accepts the results of the paternity testing conducted by [Agency 1] that there is close to 100% probability that [Father name A] is the biological father of the applicant.

18. In the Tribunal’s view, the applicant has provided cogent and persuasive evidence that his original identity is [Applicant Alias A variant], a Shia Hazara born in [Town 1], Qarabagh in Ghazni province, Afghanistan in about [year], to parents [Father name A] and [Mother name A]. This was his identity while he lived in both Afghanistan and Pakistan.  The early documents and evidence from witnesses are largely consistent that he was known as [Applicant Alias A variant] in Afghanistan and Pakistan. The Tribunal is therefore satisfied that the applicant’s identity up until his arrival in Australia was [Applicant Alias A], son of [Father name A] and [Mother name A], a Shia Hazara from the village [Town 1] in Qarabagh district of Ghazni province in Afghanistan.

19. The Tribunal accepts that after arriving in Australia the applicant adopted a different name but substantially retained the details of his place of birth and family composition.  The Tribunal notes that the applicant’s initial motivation for changing his name was to conceal from the Australian authorities that he had been included, perhaps fraudulently, in a previous visa application.  The Tribunal does not consider this in anyway an appropriate motivation.  However, regardless of his motivation, the Tribunal needs to consider whether or not it can form a state of satisfaction as to the applicant’s current identity.  

20. The Tribunal accepts that over the years the applicant has persisted in his assumption of his invented name, ‘[the applicant’s name]’, so that he now considers this to be his name.  He has become known by this name to friends, acquaintances and authorities in Australia.  He has presented this name to the Afghan authorities and obtained official identity documents in this name.  The Afghan authorities are seemingly satisfied as to his Afghan identity in this name, on the basis that he is the son of his father whose details appear in their official records.  The Tribunal accepts that regardless of his initial motivation, the applicant genuinely wants to be known now in Australia as [the applicant’s name].  His now public acknowledgement he was formerly [Applicant Alias A variant] indicates he does not have an accompanying intent to deceive or commit fraud.

21. The Tribunal therefore is satisfied that the full identity of the applicant is [the applicant’s name], formerly [Applicant Alias A variant], son of [Father name A] and [Mother name A], a Shia Hazara and national of Afghanistan, born in the village of [Town 1] in the Ghazni province.

22. Having regard to the information and findings above the Tribunal is satisfied as to the applicant’s identity in the circumstances.

23. As the Tribunal is satisfied as to the applicant’s identity, 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

24. 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.

    Melissa McAdam
    Member