1912992 (Migration)

[2020] AATA 5476

1912992 (Migration) [2020] AATA 5476 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912992

MEMBER:Alison Murphy

DATE:22 December 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 22 December 2020 at 3:22pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – identity – integrity check for citizenship application – previous visa applications with different name, date of birth, family members and documents – birth name changed by family after childhood illness – incorrect information in protection visa application – told by people smugglers not to declare relative in Australia or previous applications – acknowledgement of incorrect information – country information about procedures for issuing documentation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 375A

CASE
Dhayakpa v MIBP (2015) 148 ALD 162

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 May 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 delegate cancelled the visa under s.116(1AA) of the Act on the basis that he was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   BACKGROUND

6. The applicant is a young male who claims to be an Afghan national of Hazara ethnicity. He arrived in Australia by boat [in] December 2011 and identified himself as [the applicant], a citizen of Afghanistan born [Date 1]. On the basis of information provided in his visa application, he was granted a Class XA Subclass 866 protection visa on 2 July 2012.

7. On 11 September 2017, the applicant lodged an application for Australian citizenship by conferral. The Department conducted a number of integrity checks, including an examination of facial images taken upon his arrival in Australia. The applicant’s facial images were matched with other identity details held in Departmental records, being that of [Alias 1] born [Date 2].

8. On 29 April 2019, a delegate of the Minister sent the applicant a Notification of Intention to Consider Cancellation under s.116 of the Act (the s.119 notice), advising him that the delegate was considering the cancellation of his protection visa on the ground that he was not satisfied as to the applicant’s identity.

9. In summary, the s.119 notice sets out the following:

   ·The applicant entered Australia by boat [in] December 2011 and identified himself as [the applicant], a citizen of Afghanistan aged [age] and born [Date 1] in [Village 1], [District 1], Maidan, Wardak province in Afghanistan;

   ·In response to a question asking him if he had been known by another name he answered ‘none’;

   ·He stated that he had not previously applied for refugee status or a protection visa from the Department and he had not previously made any other type of application to the Department;

   ·The applicant stated that he did not have any close relatives or members of his family unit in Australia. His parents were stated to be [Mr C] and [Ms C] and his siblings were stated to be [Sibling 1], [Sibling 2] and [Sibling 3], all Afghan citizens;

   ·On 11 September 2017, the applicant lodged an application for citizenship by conferral. He provided substantially the same information as that set out above in his application for Australian citizenship and added a child [Child 1] born [date] in Afghanistan to his family composition;

   ·He submitted an Afghan taskera document [number] issued by the Islamic Republic of Afghanistan, Ministry of Interior, Census Bureau Registration Section [in] 2017;

   ·In the process of conducting integrity checks, the Department’s Facial Image Comparison Unit matched the applicant to another identity, [Alias 1] born [Date 2], who was included in a Subclass 202 Global Special Humanitarian visa application (GSH visa application) lodged with the Department on 16 May 2005 as a dependant of his mother [Ms D]. The proposer of the visa was [Mr A], son of [Ms D] and brother of the applicant;

   ·Information provided in that visa application about [Alias 1]’s family composition was different to that provided in the visa application of [the applicant]. In particular [Alias 1]’s father was not named and his mother was stated to be [Ms D]. His siblings were named as [Sibling 4] (deceased), [Sibling 5], [Sibling 6], [Sibling 7] and [Sibling 8]. That visa application was refused on 17 May 2005;

   ·[Alias 1] was also included in a second GSH visa application lodged with the Department on 14 September 2005 as a dependant of his mother [Ms D] showing the same identity, family composition and proposer ([Mr A]) as the earlier application. The second visa application was refused on 21 March 2006;

   ·[Alias 1] was also included in a third GSH visa application lodged with the Department on 12 June 2006 as a dependant of his mother [Ms D] showing the same identity, family composition and proposer ([Mr A]) as the earlier two applications. The third visa application was refused on 25 August 2006;

   ·In support of each of the GSH visa applications lodged in 2005 and 2006, a taskera was submitted in the identity of [Alias 1] born [Date 2], document [number], issued by the Interior Ministry of Afghanistan in 2004.

10. The s.119 notice states that as a consequence of the matters set out above, the Department formed the view that the applicant had given inconsistent information about his identity and family composition, that he had provided two Afghan taskeras under two different identities and failed to disclose that he had a family member in Australia ([Mr A]). This caused the delegate to form the view that he could not be satisfied as to the applicant’s identity and that the visa should be cancelled. The s.119 notice invited the applicant to comment on the information contained in the notice.

11. The applicant responded to the s.119 notice on 13 May 2019. In his response he acknowledged that he and [Mr A] are brothers and that the applicant was included in the Global Special Humanitarian visa applications sponsored by his brother [Mr A]. The applicant states he was not involved in the process of completing the visa applications and was unaware that he had been included under the name [Alias 1].

12. The applicant stated that his correct name is [the applicant] and his correct date of birth is [Date 1]. He was only included in the earlier visa applications under the name [Alias 1] because that was his name for the first six months of his life. When he became very unwell at six months of age, his parents decided to change his name in accordance with Afghan cultural practices, because they believed his name was too heavy for him. From the age of six months, he was named [Given Name 1]. He did not declare the earlier visa applications in his protection visa application because he was told by the people smugglers that his application would automatically be rejected if the department found out that he had a brother in Australia or that he had been refused a visa previously. Accurately recording and remembering dates is not as important in Afghan culture as it is in Western culture and many Afghans do not know their exact date of birth and can only provide an approximate age.

13. On 21 May 2019 a delegate of the Minister decided to cancel the applicant’s visa, considering the applicant had not provided any reliable evidence confirming his identity and that the ground for cancellation was made out. In the exercise of his discretion to cancel the visa, the delegate considered the discretionary factors contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but concluded the visa should be cancelled. In considering Australia’s international obligations as required by PAM3, the delegate noted that an International Treaties Obligations Assessment would be completed to assess whether the applicant would be at risk of harm in Afghanistan and therefore the delegate did not consider that a decision to cancel the visa would necessarily cause the applicant to be returned to his country of origin in breach of Australia’s non-refoulement obligations.

14. The applicant sought a review of the decision to cancel the visa from this Tribunal. He was represented by a registered migration agent during the review proceeding and there is a significant amount of documentary and oral evidence available to the Tribunal that was not available to the delegate. In particular, the Tribunal has been provided with a Verification of Identity document issued by the Afghan Embassy in Canberra and a taskera issued by the Afghanistan Central Civil Registration Authority (ACCRA) as well as oral and documentary evidence from the applicant’s brother [Mr A] and friend [Mr B].

15. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    Non-disclosure certificate

16. The Tribunal has before it the Departmental files relating to the grant and cancellation of the applicant’s protection visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.375A of the Act by issuing a certificate dated 11 June 2019.

17. The certificate states that disclosure of folios 4 – 9 and 51 - 52 of the Department’s cancellation file would be contrary to the public interest because it may disclose ‘lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods (internal working document)’. Those pages contain details of various enquiries and investigations conducted by the Department in respect of the applicant’s identity.

18. Where a certificate is issued under s.375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. The applicant was advised of the existence of the certificate on 9 December 2020 in response to his request for access to the written material before the Tribunal and the certificated material has not been provided or otherwise disclosed to the applicant.

19. The certificate appears to be valid on its face. I note that the substance of the adverse material relevant to the delegate’s decision to cancel the visa is contained elsewhere in the departmental file and has already been disclosed to the applicant in the s.116 notice and the delegate’s decision, as well as in documents released to the applicant pursuant to the s.362A request made to the Tribunal. This includes the three GSHV applications sponsored by the applicant’s brother [Mr A] in which the applicant was named as [Alias 1], the family composition of [Alias 1] and the results of the facial image comparison linking the applicant to the identity of [Alias 1].

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. In this case, the inconsistent and contradictory information about the applicant’s identity led the delegate to conclude that he could not be satisfied as to the applicant’s identity. The delegate noted the applicant had produced two taskeras in two different identities and been included in three earlier visa applications under a different identity than that set out in his protection visa application.

22. The applicant acknowledges that he has in the past provided incorrect information to the Department. In particular, he agrees that he was previously included in three applications for GSH for a visa under the name of [Alias 1] born [Date 2] and that he gave incorrect information in that protection visa application about his family composition and failed to disclose he had a brother in Australia. He acknowledges that a taskera in the name of [Alias 1] bearing his photograph was submitted to the Department in support of the GSV applications and states that taskera is not genuine. He submitted a further taskera in the name of [the applicant] to the Department in support of his citizenship application and acknowledges that document contains incorrect information about his father and grandfather.  

23. However the applicant maintains that his true identity is as set out in his protection visa application, being that of [the applicant], a citizen of Afghanistan born on or about [Date 1] in [Village 1], [District 1], Maidan Wardak province in Afghanistan.

24. At hearing the applicant gave evidence that his parents changed his name from [Alias 1] to [Given Name 1] after he became ill at age 6 months, saying this was an Afghan cultural practice which was believed to give the child the best chance of recovery. Since then he has been known by two names, [Alias 1] and [Given Name 1]. When he arrived in Australia he identified himself as ‘[Given Name 1]’ and adopted his great-grandfather’s name ‘[Name 2]’ as his surname. In Afghanistan his family didn’t have a surname but he was required to choose one when he arrived in Australia. His brother had adopted their father’s name [Name 3] as his surname on his arrival in Australia some years earlier.

25. The applicant gave evidence that the persons identified as his family members in the protection visa application were not people who are known to him, rather he provided incorrect information about his family to avoid being linked to his brother [Mr A] and the earlier visa applications. He stated that he did so on the advice of the people smugglers and others in the detention centre who told him his protection visa would be refused and he would be returned to Afghanistan if the department found out that he had a brother in Australia or that he had previously been refused visas to enter Australia.

26. The applicant’s brother [Mr A] gave evidence that he arrived in Australia in 2003 and made several GSH visa applications in an attempt to get his mother and siblings to Australia. He gave evidence that he identified his brother by his birth name [Alias 1] in the visa applications because it was his birth name. He attributed the surname [Name 3] to all his family members in those visa applications, although in Afghanistan the family did not use a surname. He took the name [Name 3] for his surname as it was the first name of his father and grandfather, but his brother had taken the name [Given Name 1] from their great-grandfather [Mr E].

27. [Mr B] gave evidence that he arrived in Australia from Afghanistan in November 2010 as the holder of a spouse visa. He has known the applicant all his life, as he grew up in a village in [District 1] of Maidan Wardak province about ten minutes’ walk from the applicant’s village. He was able to correctly name the applicant’s parents and siblings, all of whom he said were known to him in Afghanistan. He said he had always known the applicant as [Given Name 1].

    Can the Tribunal be satisfied as to the applicant’s identity?

28. At issue in this case is the applicant’s correct identity. The Department’s Migration Policy Guidelines describe identity as follows:

    68.3 What is an identity?

    An ’identity’ is a subset of the client. It is the characteristics by which the client is recognised or known to be a particular person (that is, biographical information and physical information).

    In most, but by no means all, cases, the visa applicant’s identity will be their real identity. The stated identity may be supported by identity information, such as personal identifiers and identity documents. The stated identity may be assessed by undertaking internal and external checks to verify and/or authenticate the identity information presented and by evaluating the credibility and/or intentions of the client.

    The officer will then decide whether or not they are satisfied that the client's stated identity is their real identity.

29. The Guidelines go on to state that in determining a person’s identity, the totality of the available information supplied by the visa applicant and available from other sources must be considered. Being satisfied as to a stated identity means that the decision maker has concluded that it is more likely than not that the visa applicant is who they say they are.

30. The Guidelines make clear that in many cases, it will not be possible for a visa applicant’s stated identity to be fully established, even after comprehensive and rigorous assessment. The Guidelines also recognise that a visa applicant whose stated identity is not fully established might still receive the same outcome as they would have received if their identity had been established beyond doubt. An example given in the Guidelines is that a decision maker might decide that an applicant for a protection visa has a well-founded fear of persecution as the officer is satisfied that the applicant is a member of a group to whom Australia has a protection obligation under the Refugees Convention, despite the fact that the officer has little substantive information with which to reach a decision about the visa applicant's real identity.

31. The Refugee and Humanitarian Policy Guidelines provides further details on the process for assessing identity in the context of protection visa applicants:

    3.10.1. Three pillars of identity

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

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

    3.10.2. Biometrics, documentation and biography

    The biometrics pillar includes personal identifiers such as facial image and fingerprints, data matching and other checks such as Migration 5 checks.

    For guidance on the requirements for biometrics and considering that information, refer to:

    section 3.5 - Requiring personal identifiers

    section 3.49 - Migration 5 match information.

    Officers may also request advice about biometrics and other identity-related matters, including the request for additional checks, from the Biometric Resolution Centre.

    The documentation pillar includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. This is the only pillar for which there is a legislative basis due to s91W and s91WA of the Act. Sections 91W and 91WA of the Act are integrity measures because they encourage an applicant to comply and assist with authenticating their identity, nationality or citizenship. Each provision establishes grounds to prevent the grant of a PV to an applicant if certain elements of the respective tests are met. For guidelines on the use of these provisions, refer to section 3.11.5 – S91W and 91WA.

    The biography pillar is the life story and travel history of the applicant. An applicant should usually be able to provide spontaneous and detailed explanations of where they lived, why and how they travelled, along with other relevant elements of their story.

1. It is in this context that I consider the issue of the applicant’s identity.

2. In considering the biometrics pillar, I note the facial imaging report links the applicant to the identity of [Alias 1] and the applicant concedes he was included in the earlier GSH visa applications under that name. The applicant also concedes that he is the brother of [Mr A], who was the sponsor in those earlier visa applications. The applicant acknowledges that his correct family composition is as set out by [Mr A] in those visa applications, save for some minor discrepancies as to the spelling of names and the dates of birth of those family members. The applicant concedes that he gave incorrect information about his family composition in his protection visa application.

3. In considering the biography pillar, I note the applicant has consistently presented himself to the Department as a young Afghan male of Hazara ethnicity, born in Afghanistan and resident for a time in Pakistan. The applicant’s biographical information is corroborated by the evidence of the witnesses [Mr A] and [Mr B], both of whom knew the applicant in Afghanistan. While the applicant’s name is in doubt, all of the material before me supports the applicant’s claims to be a young Afghan male of Hazara ethnicity from Maidan Wardak province in Afghanistan. The applicant has participated in the Departmental and Tribunal interviews with the assistance of an interpreter in the Hazaragi language. The applicant and each of his witnesses have named the applicant’s family members as those included in the GSH visa applications and I am satisfied that represents his correct family composition (which has since expanded to include his wife and child). That family composition includes his father [Mr F], grandfather [Mr G], great-grandfather [Mr E] and great great-grandfather [Mr H].

4. I do not consider the discrepancy in the dates of birth of [the applicant] and [Alias 1] to be of particular significance in this case. Australia’s Department of Foreign Affairs and Trade (DFAT) reports that the Afghan authorities did not historically issue birth certificates (which remain uncommon) and the reporting of birth dates in Afghanistan is unreliable, with any reported dates likely to be approximate[1]. Both dates of birth put the applicant over the age of 18 on his arrival in Australia and he obtained no advantage from presenting himself as younger than the age of [Alias 1]. I consider the differences in the dates of birth most likely arise from the fact that the applicant’s exact date of birth is unknown and has merely been estimated by the applicant and his family.

   [1] DFAT Country Information Report: Afghanistan 27 June 2019 at 5.49

5. In considering the documentation pillar, I note the applicant has presented identity documents under two different names – [Alias 1] and [the applicant]. The applicant maintains that his correct legal name is [the applicant], born [Date 1]. He states that some members of his family continue to call him by his birth name of [Alias 1] which was changed after he became ill at age six months. The evidence of his brother [Mr A] and friend [Mr B] tends to corroborate the applicant’s evidence, although it remains unclear to me why [Mr A] used the applicant’s birth name to apply for the GSH visas rather than his legal name. Copies of the taskeras for each of the applicant’s siblings have been produced to the Tribunal and they corroborate the evidence as to his family composition and the names of his father and grandfather.

6. There is judicial authority for the proposition that documentation is not a pre-requisite to establishing identity:

   Neither the Act nor the common law requires that identity can only be established by the production of documents appropriate to an established or undisturbed society. The decision in Confidential is not an authority that documentation is a requisite for the Minister to be satisfied as to identity…Confidential merely stands for the proposition that where an applicant has failed to avail himself of opportunities to secure evidence of identity which might reasonably be expected to exist and which he has been advised to secure, the application ought to be rejected[2].

   [2]Dhayakpa and Minister for Immigration and Border Protection (2015) 148 ALD 162.

7. In this case there are a number of Afghan taskeras before the Tribunal. Taskeras are the primary identification document in Afghanistan. They are usually issued at the provincial level by the local provincial Population Registration Department and are not subject to a centralised system or computerised recording for registration and oversight.[3]

   [3]UNHCR May 2005 Frequently Asked Questions: A Circular for Afghan Refugees from the United Nations High Commissioner for Refugees (UNHCR) National Identification Cards (Tazkeras) CIS9BE2467847, p.2; Immigration and Refugee Board of Canada 2011, Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features, September at

8. Afghan citizens displaced by the conflict in that country experience particular difficulties obtaining taskeras:

   • Taskera access is based on recognition by family members or community elders and this poses significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity;
   • Children and young people are at particular risk of lacking civil and identification documents, particularly when displaced.[4]

   [4] Norwegian Refugee Council 2016 Access to Tazkera and other civil documentation in Afghanistan, 8 November, CIS38A80123743

9. Other than stamped seals, taskeras do not contain any security features and are completed by hand by issuing officers, making them vulnerable to fraud. Afghanistan’s Ministry of Foreign Affairs (MFA) assists Afghan missions and foreign governments in verifying civil documents to prevent manipulation of official records, but international agencies report that there have been instances of documents with MFA attestation subsequently being independently verified as non-genuine[5]. Nothing in the material before me suggests that the Department has undertaken any verification processes with the MFA in relation to any of the taskeras submitted to the Department or the Tribunal.

   [5]DFAT Country Information Report: Afghanistan 27 June 2019 at 5.46-5.48; 5.54-5.55

10. In relation to the taskera in the name of [Alias 1] submitted with the GSH visa applications, the applicant and [Mr A] gave evidence this document was not a genuine document. The taskera purports to have been issued by the Afghan Consulate in Peshawar for [Alias 1] born [Date 2] son of [Mr F], although the applicant and his brother state it was produced by an agent. That document does not include a number of details that DFAT states should be included in paper based taskeras, including the applicant’s religion, occupation, marital status and military service details[6]. In these circumstances I find it is not a genuine document.

    [6] DFAT Country Information Report: Afghanistan 27 June 2019 at 5.46 – 5.48

11. In relation to the first taskera in the name of [the applicant] which purports to have been issued in 2017, the applicant states it is also a non-genuine document as it contains false information about the name of his father and grandfather. The applicant gave evidence that as he did not have a taskera required for his citizenship application, one was made for him by an agent in Kabul. Given it contains incorrect information about the applicant’s father and grandfather, I find it is not a genuine document.

12. The applicant has produced to the Tribunal a further taskera in the name of [the applicant] dated [in] 2019 and issued to him after he travelled to Canberra and attended an interview at the Afghan Embassy. He says that this document should be assessed as genuine and accepted as evidence of his identity.

13. The applicant gave evidence he took with him to that interview his brother [Sibling 2]’s taskera, a copy of which has also been provided to the Tribunal along with taskeras of the applicant’s other siblings. After the interview he was issued with a Verification of Identity document by the Afghan Embassy which states among other things that the document certifies his identity as a citizen of Afghanistan. The absentee taskera was issued by the Afghanistan Central Civil Registration Authority after verification of the applicant’s family tree with records in Kabul.

14. The process of obtaining an Afghan taskera via the Afghan Embassy in Australia is relatively recent. Prior to that, it was generally reported that there was no process by which a genuine taskera could be obtained by an Afghan national who was outside of Afghanistan[7]. That information is not free from doubt however as other reports suggested that it may be possible at some larger Afghan embassies with the help of two neighbours or family members locally in Afghanistan[8].

    [7] Immigration and Refugee Board of Canada 2011, AFG103918.E The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December,

    [8] Ministry of Foreign Affairs of the Netherlands 2016, Algemeen Ambtsbericht Afghanistan, November, pp. 53, 54,

15. The process for obtaining an absentee taskera from the Afghan Embassy in Canberra is set out on the Embassy’s website. In summary an applicant must book an appointment with the Embassy and attend that appointment with the taskera of a paternal relative and undergo an interview. After the interview, a document package will be prepared by the Embassy including a letter addressed to the Afghanistan Central Civil Registration Authority (ACCRA). The applicant is required to send that document package to their representative or relative in Afghanistan for processing and follow up. If the applicant is deemed to be entitled to a taskera by ACCRA, the applicant’s representative can collect it from ACCRA in Afghanistan.

16. I accept the taskera submitted to the Tribunal in the name of [the applicant] was obtained by the process set out on the Embassy’s website. I consider that while the absence of security features on taskeras means it is not possible to reach a complete state of satisfaction about the genuineness of that document, it is the best available documentary evidence of the applicant’s identity and the difficulties facing Afghans seeking to produce such documentation are well known.

17. Country information confirms that most Afghans do not have a last name but may choose one if in contact with other cultures. Last names are selected by individuals which may result in people within the same family having different last names[9]. I accept that both the [Name 2] and [Name 3] names are associated with the applicant’s family in Afghanistan, even though, like most Afghans, the family lacks an official last name. I accept that in the absence of an official last name, the applicant has chosen to be known in Australia by his great-grandfather’s (and great great-grandfather’s) name ‘[Name 2]’ with the common suffix ‘i’, while his brother has chosen to be known by their father and grandfather’s name ‘[Name 3]’ with the common suffix ‘i’. The fact that those names have been in effect chosen by the applicant and his brother on their arrival to Australia does not make them false, even if the applicant’s wish that he not be identified as the brother of [Mr A] factored into that decision.

    [9] Megerdoomian, Karine The Structure of Afghan Names November 2009

18. It is not suggested that the applicant is linked to any identity other than those of [Alias 1] and [the applicant]. Having considered the available evidence as to the three pillars of identity, I consider it more likely than not that the applicant’s correct identity is [the applicant] as stated by the applicant and his witnesses and as set out in the taskera issued through the Afghan Embassy. The particular characteristics of his identity include that he is of Afghan nationality and Hazara ethnicity. I find the applicant’s identity is [the applicant], born on or about born [Date 1], noting that date of birth to be merely an approximation.

    Does the ground for cancellation exist?

19. Departmental guidelines indicate that this ground 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. The Departmental guidelines stated that the ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[10] It logically follows that the ground will not be applicable where a non-citizen has obtained a visa in his confirmed identity, but has previously made an application using a false identity as is the case in this review.

    [10] Visa Cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) - s.116(1AA) – Not satisfied as to identity

20. For the reasons set out above, I have found the applicant is [the applicant], born on or about [Date 1], an Afghan national of Hazara ethnicity. As I am satisfied as to the applicant’s identity, the ground for cancellation in s.116(1AA) does not exist and the power to cancel the applicant’s visa does not arise.

    DECISION

21. 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.

    Alison Murphy
    Member