1913180 (Migration) - [2021] AATA 1448

1913180 (Migration) [2021] AATA 1448 (5 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913180
MEMBER:Alison Murphy
DATE:5 February 2021
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 05 February 2021 at 11:24am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – satisfaction as to applicant’s identity – contradictory information in a previous global special humanitarian visa application – applicant unknowingly included in the previous application – credible identity documents – absentee taskera – Afghan passport – letters of identity – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 376
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

This is an application for review of a decision dated 22 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).
The delegate cancelled the visa under s.116(1AA) of the Act on the basis that she 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.
The applicant appeared before the Tribunal on 3 February 2021 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.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a young male who claims to be an Afghan national. He arrived in Australia by boat [in] December 2011 seeking protection, identifying himself as [applicant name], a citizen of Afghanistan of Hazara ethnicity born [Date 1]. On 10 May 2012 he applied for a protection visa and on the basis of information provided in his visa application and interviews, he was granted that visa on 15 May 2012. He was later granted the Subclass 155 (Five Year Resident Return) visa on 19 September 2018.
On 19 May 2016, the applicant lodged an application for Australian citizenship. The Department undertook forensic biometric checks, including an examination of facial images taken upon his arrival in Australia in 2011. The applicant’s photograph was matched with a photograph of an applicant for a global special humanitarian visa, being that of [Mr C] born [Date 2].
On 18 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 she was not satisfied as to the applicant’s identity.
In summary, the s.119 notice sets out the following:
·On 9 December 2011 the applicant completed and signed a biodata form, declaring he did not have any supporting documents to confirm his identity;
·On 1 February 2012 he participated in an entry interview, stating he thought he was born in Afghanistan but he was not certain. He stated the only identity document he possessed was a letter sent ‘by the leader of Hazaras’ stating he was known to them as a Hazara;
·On 10 May 2012 he lodged an application for a protection visa in which he stated that he was [applicant name] born [Date 1], that he had not previously applied for refugee status or made any other kind type of visa application and that he had no close relatives in Australia. He identified his parents and siblings in that visa application and did not record that he had been known by any other name. He set out his education history and stated he left Afghanistan [in] January 1995 because his family feared persecution as Hazaras of Shia Muslim faith and because of a land dispute with the Pashtuns. He stated his father [Mr D] travelled back to Afghanistan four years earlier and was missing presumed killed by the Taliban or Pashtuns;
·On 19 May 2016 the applicant made an application for Australian citizenship, providing the same family composition, name and date of birth as that in his protection visa application. He also stated he did not have and had never had any national identity documents or passport and had never been refused a visa to any country;
·Forensic biometric checking undertaken by the Department indicated the applicant had previously applied for a global special humanitarian visa under the name of [Mr C] born [Date 2]. The primary applicant was [Mr E] born [date] and the proposer was [Mr A] born [date] said to be [Mr C]’s brother. A copy of an Afghan passport in that identity was provided with the application stating he was the son of [Mr F] born in Ghazni. A different family composition was given and it was stated the applicant had left Afghanistan for Pakistan in 2009.
As a consequence of the matters set out above, the Department formed the view that the applicant had given inconsistent and contradictory information about his name, date of birth, visa history, education history and family composition. He had failed to disclose that he had a family member in Australia ([Mr A]). This caused the delegate to form the view that she 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.
The applicant responded to the s.119 notice by way of emailed submissions and documents to the delegate on 9 May 2019. In his correspondence to the delegate he maintained his identity was as set out in his protection visa application, stating that [Mr A] and his family were his neighbours in the closely-knit Hazara community in Quetta, Pakistan, but they are not biologically related. He states his family were unregistered refugees in Pakistan and that when he was [age] years old, [Mr A] included the applicant in a global humanitarian visa application using the identity of [Mr A]’s brother [Mr C]. They did so because [Mr C] was missing and they wished to help him have a better life and escape persecution, but they did not tell him about the visa application because they did not want to get his hopes up. To the best of his knowledge the details in the visa application are the correct details for [Mr C], including his date of birth, family composition and residential history. The applicant goes on to state that he applied for his protection visa using his correct name, date of birth, family composition, education history, travel history and residential history.
The applicant also submitted a statutory declaration from [Mr A] confirming that the applicant and his family were neighbours of [Mr A]’s family in Quetta, Pakistan. He states he has only ever known the applicant as [applicant name] and he included him as a secondary applicant in the global humanitarian visa application under the name of [Mr A]’s brother, [Mr C], to try and give him a better life. The family did not tell the applicant about this because they did not want to give him false hope and they planned to tell him only if the application was successful. As the application was refused, they felt there was no need to tell him, a matter they now regret.
On 22 May 2019 a delegate 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 make her own assessment of those matters.
The applicant sought a review of the decision to cancel the visa from this Tribunal. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
THE REVIEW PROCEEDING
Non-disclosure certificate
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.376 of the Act. A copy of the certificate was provided to the applicant.
The certificate is dated 31 May 2019 and states that disclosure of folios 1–4 and 66–67 on the Department’s cancellation file would be contrary to the public interest because they contain information in relation to the Department’s investigative methods, the disclosure of which may impact the Department’s effective operation in relation to integrity measures.
Where a certificate is issued under s.376, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. Broadly speaking, those folios contain details of forensic investigative processes undertaken by the Department including the comparison of the information provided in the global humanitarian visa application and the protection visa application as well as the facial image comparison referred to in the s.119 notice.
A copy of the certificate was provided to the applicant’s representative prior to the hearing. At hearing he indicated he had no submissions to make about the certificate’s validity. I am satisfied the certificate is valid on its face. I have decided not to exercise my discretion to disclose the documents because I am satisfied the gist of the information contained in them has already been particularised in the s.119 notice.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
In this case, the inconsistent and contradictory information about the applicant’s identity and the lack of credible identity documents led the delegate to conclude that she could not be satisfied as to the applicant’s identity. However there is a significant amount of new information before me that was not available to the delegate, as a result of which I have come to a different conclusion on that issue. Consistent with the applicant’s own evidence, both the witnesses appearing at the Tribunal gave evidence that they have known the applicant since a young age in Mariabad, Quetta, and that his identity, family composition and education history are as stated in his protection visa application. Their evidence is supported by a significant number of credible identity documents.
It is not in dispute that the applicant’s photograph was included in an application for a global humanitarian visa made under the name of [Mr C], sponsored by [Mr A]. Notwithstanding this the applicant maintains that his true identity is as set out in his protection visa application, being that of [applicant name] born [Date 1]. He states that the inclusion of his photograph in the global humanitarian visa application was a well‑intentioned attempt to give him a better life by trying to pass him off as a member of [Mr A’s] family so he could start a new life in Australia. [Mr A’s] family asked him to provide passport photographs which he did without knowing they would be used to apply for a passport. The global humanitarian visa application was refused and the applicant had never seen the passport in [Mr C]’s name until the delegate’s letter dated 18 April 2019.
[Mr A] gave corroborative sworn evidence that [Mr C] is his brother of approximately the same age as the applicant. He confirmed the applicant’s family and his own family were neighbours and close friends in Mariabad, Quetta, and was able to name the applicant’s parents and siblings. [Mr A] travelled to Australia in 2009 and was the proposer for the global humanitarian visa application in 2010, seeking to bring his family in Quetta to Australia. As his brother [Mr C] was missing after travelling to Iran to look for work, he included the applicant in the visa application using [Mr C]’s name and the applicant’s photos. He did so because he considered the applicant to be like a brother, he was aware his father was missing leaving the applicant responsible for the family in Quetta and he wanted to give him the opportunity to migrate to Australia to escape the harm Hazaras experienced in Pakistan and Afghanistan. The family composition set out in the global humanitarian visa application is [Mr A]’s own family, not the applicant’s family, and they remain in Quetta, Pakistan.
[Mr A] said that his family in Pakistan hadn’t heard from his brother [Mr C] for many years but they believed him to be in Iran or possibly even further east. He confirmed that he did not inform the applicant that he had included him in the visa application because he didn’t wish to raise false hopes and intended to tell him only if the visa application was successful. As the global humanitarian visa application was refused [Mr A] never advised the applicant he had been included, a matter he now regrets. [Mr A] gave evidence he was willing to undertake a DNA test to prove he was not biologically related to the applicant if requested to do so.
[Mr B] gave evidence that he had known the applicant since he was a young child when they both attended [School 1] in Quetta. They were classmates until [Mr A] travelled to Australia in 2009 aged 15. Consistently with [Mr A]’s evidence, the applicant has previously provided the Department with a letter confirming his identity and attendance at [School 1] from the principal. At hearing [Mr A] was able to name the applicant’s parents and siblings and the Tribunal was provided with a number of photographs of the applicant and [Mr A] in Quetta with their other classmates. [Mr A] gave evidence that he and the applicant now run a successful [business] together in [Suburb 1] and he has only ever known the applicant by the name of [applicant name].
The delegate was concerned that the applicant had not produced an Afghan taskera and also that he had managed to obtain an Afghan passport from the Afghan Embassy in Canberra without obtaining a taskera first. However the evidence of the applicant and his witnesses is now corroborated by a significant number of identity documents not available to the delegate.
Taskeras are the primary identification document in Afghanistan. They are usually issued at the provincial level by the local provincial PRD and are not subject to a centralised system or computerised recording for registration and oversight.[1] Australia’s Department of Foreign Affairs and Trade (DFAT) confirms that the Afghan authorities did not historically issue birth certificates (which remain uncommon) and the reporting of birth dates in Afghanistan is unreliable and any reported dates are likely to be approximate.[2] Canada’s Immigration and Refugee Board suggests there was no process by which a genuine taskera could be obtained outside of Afghanistan at the time the applicant arrived in Australia.[3] However the Ministry of Foreign Affairs of the Netherlands reported in 2016 that it may be possible at some larger Afghan embassies with the help of two neighbours or family members locally in Afghanistan.[4]
[1]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
[2] DFAT Country Information Report: Afghanistan at 5.49
[3] Immigration and Refugee Board of Canada 2011, AFG103918.E The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December,
[4] Ministry of Foreign Affairs of the Netherlands 2016, Algemeen Ambtsbericht Afghanistan, November, pp. 53, 54,
In response to the s.119 notice, the applicant stated he did not have a taskera and has never had one. He was unable to obtain a taskera before entering Australia because he did not know the details of his father’s taskera after his father’s disappearance in 2008. Instead the Afghan Embassy issued him a passport after conducting verification of identity interviews at that Embassy, confirming he was born in Afghanistan and his family is also from there.
After the interview he was issued with a letter confirming his identity as [applicant name] son of [Mr D] and born in Uruzgan, Afghanistan, on [Date 1]. Copies of the identity letter dated 4 May 2016 and the Afghan passport issued by the Afghan Embassy in Canberra [in] 2017 were provided to the Department and are contained on the Department’s file. The applicant’s representative advised that at that time there was no process for obtaining a taskera outside of Afghanistan, but the Embassy would issue a passport to applicants who were unable to produce a taskera after checking their details with the Afghan authorities. It was noted that the 2016 identity letter issued by the Embassy did not contain the applicant’s taskera details, because at that time he had not been issued with one. The Tribunal notes the Embassy’s website confirms that the Embassy issues passports and provides verification of identity letters, although since it became possible to obtain an absentee taskera the applicant is required to do that first.
More recently it has become possible for Afghan nationals to obtain an absentee taskera from the Afghan Embassy in Canberra. The applicant gave evidence that he hired an attorney in Kabul to go through public records and that attorney was able to find a copy of his grandfather’s taskera. Prior to that, the applicant was able to obtain a copy of his father’s taskera after his father returned to the family having spent many years in Afghanistan and Iran, but he was told by the Afghan Embassy that the copy was not clear enough thus necessitating the search of the records in Kabul. An untranslated copy of the applicant’s grandfather’s taskera was submitted to the Tribunal.
In order to obtain the absentee taskera, the applicant completed a taskera application form and booked an appointment at the Afghan Embassy in Canberra. He was interviewed, his identity documents and his grandfather’s taskera checked and the application form stamped and returned to the applicant who sent it to his attorney in Kabul who took it to the taskera office in that city. The taskera office in Kabul communicated with the Embassy in Canberra before issuing the taskera to the applicant’s attorney and the taskera was sent to the applicant from Afghanistan. Copies of the taskera application and the taskera have been provided to the Tribunal. I note the details of the translated taskera are consistent with the statements made by the applicant in his protection visa application as to his date and place of birth and the details of his father and grandfather.

The Embassy’s website confirms that the Embassy is able to initiate an application for an absentee taskera if provided with a taskera of a paternal relative, including a person’s grandfather. The website makes clear though that the Embassy itself does not issue the taskera, rather it is only part of the process to issue a taskera in absentia with the relevant documents sent to Afghanistan’s Central Civil Registration Authority (ACCRA) who issue the documents in Afghanistan which must be collected by the taskera applicant’s agent inside that country.[5] The Embassy’s website does not now set out the historical processes that were required to be followed before it became possible to obtain an absentee taskera from Australia but I accept the applicant’s evidence that he visited and was interviewed by the Embassy in Canberra before the issue of each of those documents.
[5] >
Finally, the applicant has produced a letter and English language translation from Afghanistan’s National Statistics and Information Authority, confirming the issue of an absentee taskera on 28 November 2020 to the applicant’s attorney, [Mr G]. That letter states that it is issued as evidence of services in absentia by ACCRA. I accept that document to be genuine and I consider it to be probative evidence of the genuineness of the absentee taskera and the verification processes undertaken by the Afghan authorities.
There is other documentation submitted to the Department and the Tribunal that tends to confirm the identity of the applicant. This includes a certificate for an academic achievement award from [education institute] for [specified] Courses issued 24 December 2010 showing his name as [applicant name] and his father as [Mr D]; a letter confirming his identity from the Chairman of [Political Party 1] in Quetta, Pakistan, dated [in] January 2012; a character reference and verification of identity letter from the local mullah at the applicant’s mosque in Mariabad, Quetta, dated [in] August 2017; a Pakistani police clearance certificate dated [in] September 2014 and a letter confirming his identity from the Chairman of [Political Party 1] based in Perth, Western Australia, dated [in] April 2019.
Finally, I note that the applicant has returned to Pakistan on several occasions since the grant of his visa using his Australian Titre de Voyage. A copy of his most recent Australian travel document has been provided to the Tribunal and it shows that he obtained a visa to enter Pakistan using that travel document in 2018. I consider this further evidence that the applicant does not hold another identity.
It is not suggested that the applicant is linked to any identity other than those of [applicant name] and [Mr C]. I accept the evidence of the applicant and his witnesses to be true and I am satisfied that the applicant is not [Mr C], rather he was included in the earlier global humanitarian visa application under that name because he was a close friend of the family. I accept that the applicant has been through the prescribed processes for the issue of his Afghan passport, letters of identity and taskera and that those documents are genuine.
On the evidence before me, I am satisfied the applicant’s identity is [applicant name] born [Date 1].
Conclusion on ground for cancellation
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.[6] 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.
[6] 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
For the reasons set out above, I have found the applicant is [applicant name] born [Date 1]. There is much material before me attesting to the applicant’s good character and contribution to the community since his arrival in Australia, as well as the significant difficulty and distress arising from the cancellation of his visa. However 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. It is therefore not necessary for me to go and consider the discretionary factors set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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.
Alison Murphy
Member