1913765 (Migration)

[2020] AATA 5257

1913765 (Migration) [2020] AATA 5257 (23 September 2020)

AppID: 1913765

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1913765

MEMBER:Alison Murphy

DATE:23 September 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 23 September 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 – facial images matched with other identity details – taskera not genuine – family member in Australia – applicant included in friend’s family documents – DNA test results – incorrect information in a previous protection visa application – true identity later confirmed – taskeras obtained from outside Afghanistan – decision under review set aside        

LEGISLATION

Migration Act 1958 (Cth), ss 109, 116, 119, 128, 134B, 140, 375A, 376, 425

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 30 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 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.

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

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

   BACKGROUND

5. The applicant is a young male who claims to be an Afghan national. He arrived in Australia by boat [in] April 2010 and advised that he wished to apply for a protection visa, identifying himself as [Applicant Name], a citizen of Afghanistan of Hazara ethnicity born [on DOB 1]. On the basis of information provided in his visa application, he was granted a Class XA Subclass 866 protection visa on 9 July 2012.

6. On 15 July 2016, 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 A] born [on DOB 2].

7. On 3 May 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.

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

   ·The applicant entered Australia by boat [in] April 2010 and identified himself as [Applicant Name], a citizen of Afghanistan of Hazara ethnicity born [on DOB 1] in [his home town in] Bamiyan, Afghanistan. He did not record that he had been known by any other name;

   ·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 and detailed his family composition as follows:

   Father [name] b. [DOB], Afghani, deceased

   Mother [name] b.[DOB], Afghani, deceased

   [Siblings with dates of birth]

   ·He submitted an Afghan taskera [Document Number 1] issued by the Islamic Republic of Afghanistan, Ministry of Interior, Census Bureau Registration Section in 2010;

   ·On 15 July 2016, 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, except that he did not include [one named brother]. He submitted the same taskera [Document Number 1] that he had provided with his protection visa application;

   ·In the process of conducting integrity checks, the Department’s Facial Image Comparison Unit matched the applicant to another identity, [Alias A] born [on DOB 2], who was included in a Subclass 202 Global Special Humanitarian visa application lodged with the Department on 1 September 2008;

   ·Information provided in that visa application about [Alias A’s] family composition was different to that provided in the visa application of [Applicant Name]. In particular [Alias A’s] father was stated to be [Mr A], who was resident in Australia at the time the applicant lodged his protection visa application and has been since 1999. A taskera [Document Number 2] and an Afghan passport were provided for [Alias A] who was interviewed as part of that visa application. The visa application was refused because it was determined in that interview that [Alias A] was in his [age range] and not under the age of 18 as claimed;

   ·The Afghanistan Central Civil Registration Authority (ACCRA) have advised the Department that the Afghan taskera [Document Number 1] which the applicant provided to the Department with his protection visa application and citizenship application does not correspond with records held by Afghanistan’s Population Registration Department and is not genuine.

9. 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, failed to disclose that he had a family member in Australia ([Mr A]) and failed to provide any credible identity documents. 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.

10. The applicant responded to the s.119 notice by way of an email to the delegate on 10 May 2019 and a letter received by mail on 20 May 2019 in essentially the same terms. He was not represented by a registered migration agent at that time. In his correspondence to the delegate he maintained his identity was as set out in his protection visa application, stating that [Mr A] was a friend of his father who had helped the family financially and emotionally following the death of the applicant’s parents. He stated that he was not a blood relative but when [Mr A] applied for a visa for his own family in 2008, he put the applicant’s name in that visa application in order to help the family out. He included the applicant because he was the eldest of his siblings so that he could live in a safe environment and support his family. The applicant did not disclose this when he was interviewed on Christmas Island because he thought that as the application was rejected it didn’t matter and he did not want to put [Mr A] under any pressure after he had been so generous to the applicant and his family.

11. The applicant stated the Afghan taskera he had provided to the Department in the name of [Applicant Name] was from the Afghan consulate in Quetta and he had no idea whether it was genuine or not. Such taskeras could easily be obtained if someone who knew you gave you a reference to say you were Afghani. He had lived all his life as a stateless person in Pakistan fearing for his life and his family if he became a victim of extremism and terrorism.

12. On 30 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 his own assessment of those matters.

13. 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 very significant amount of documentary evidence available to the Tribunal that was not available to the delegate. In particular, the Tribunal has been provided with DNA test results showing the applicant is not biologically related to [Mr A], as well as affidavit evidence of both the DNA donors and the DNA collector as to the identity checking process conducted as part of that DNA testing, and documentary evidence and identity documents from [Mr A] as to his relationship with the applicant.

14. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour pursuant to s.425(2)(a) of the Act. 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

15. 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 and s.376 of the Act. There are two certificates on the Departmental file dated 11 June 2019. Copies of each of the certificates were provided to the applicant with an invitation to provide comments as to their validity.

    Section 375A certificate dated 11 June 2019

16. The first certificate is made under s.375A and states that disclosure of folios 1 – 3 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. Those pages contain details of various enquiries and investigations conducted by the Department.

17. 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. In response to an invitation to comment on the validity of the certificate, the applicant’s representative advised that the folios referred to in the s.375A certificate had already been released to the applicant through a Freedom of Information (FOI) request. In such circumstances, I do not consider the s.375A certificate can be valid. However, as the applicant’s representative has advised that the certificated material has already been released to the applicant by the Department, it is not necessary for me to consider this matter further.

    Section 376 certificate dated 11 June 2019

18. The second certificate is made under s.376 and states that disclosure of folios 99 – 241 on the Department’s cancellation file would be contrary to the public interest because the provider of the information has not consented to its disclosure. Those pages contain documents submitted in the global special humanitarian visa application lodged with the Department in 2008 that is referred to in the s.119 notice.

19. 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. In submissions dated 3 July 2020, the applicant’s representative advised that the folios referred to in the s.376 certificate had been redacted from the applicant’s FOI request and the Tribunal should exercise its discretion to disclose the certificated documents.

20. 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

21. 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?

22. 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 he could not be satisfied as to the applicant’s identity.

23. The applicant acknowledges that he has in the past provided incorrect information to the Department. In particular, he concedes that he has previously applied for a visa under the name of [Alias A] born [on DOB 2] and that he gave incorrect information in that protection visa application about his name and date of birth, his family composition, his relatives in Australia and his visa history. He acknowledges providing a taskera in the name of [Alias A] to which the applicant’s photograph is attached.

24. However the applicant maintains that his true identity is as set out in his protection visa application, being that of [Applicant Name], a citizen of Afghanistan of Hazara ethnicity born on or about [DOB 1] (noting the applicant’s exact date of birth is not known to him). He states that he is not [Alias A], son of [Mr A] as stated in the 2008 global special humanitarian visa application, rather [Mr A] was a friend of his father who assisted the applicant and his siblings after the death of their parents.

25. In a written statement dated 13 August 2020, [Mr A] corroborates the applicant’s evidence. He states the applicant is not his son [Alias A], who along with his other son remains with his former wife in Afghanistan and does not wish to leave the country where his mother lives. He states he was a friend of the applicant’s father but is not a blood relative of the applicant. In 2008 he sponsored the applicant through a global special humanitarian visa using his son [Alias A’s] name, in order to help the applicant as it was not safe for Afghan Hazaras in Pakistan. He did not think the application would be successful because the applicant is not his son and he did not fully understand the serious consequences of providing this information to the Department.

26. There is some support in the material contained in the Departmental files for the applicant’s claims that he is not [Alias A], son of [Mr A]. The applicant was interviewed in respect of the global special humanitarian visa application on 15 December 2008 (as recorded in the Form 599 on the Departmental file). In that interview the applicant claimed to be [Alias A], born [on DOB 2], but the record of interview shows that two Departmental officers assessed the applicant to be older than his claimed age of [age], considering him to be in his [age range]. This is more consistent with the claimed age of [Applicant Name], born in [an earlier year]. Similarly the case assessment records that the applicant was considerably older than claimed in his application and this formed the basis for delegate’s assessment that there were not compelling reasons for the grant of the global special humanitarian visa, which was refused on 1 February 2009.

27. In any event, there is now compelling independent evidence that the applicant is not [Alias A], son of [Mr A], by way of DNA test results conducted by an Australian laboratory in June 2020. On the basis of the documentary evidence provided in submissions lodged with the Tribunal on 3 July 2020 and 14 August 2020, I am satisfied of the following matters:

    ·On 15 June 2020, the applicant [Applicant Name] provided a bodily sample and his photograph to [Ms B], phlebotomist in [Location 1]. [Ms B] has declared that she collected that sample in strict accordance with the procedures provided under the Family Law Regulations. [Ms B] identified [the applicant] by his Australian Driver’s Licence, retaining a certified copy of that document which is attached to her declaration. The sample was provided in a sealed package to [Laboratory 1], which has confirmed that both the outer and inner packages remained sealed on receipt;

    ·On 15 June 2020, [Mr A] provided a bodily sample and his photograph to [Ms C] of [Laboratory 1] in [Location 2]. [Ms C], who is a Justice of the Peace in [her state], identified [Mr A] by his Australian Driver’s Licence and his Australian Government Pensioner Concession card, retaining a certified copy of each of those documents which are attached to her affidavit. The sample was provided in a sealed package to [Laboratory 1], which has confirmed that both the outer and inner packages remained sealed on receipt;

    ·On 1 July 2020, [Ms D], laboratory director of [Laboratory 1] reported that parentage tests conducted on the bodily samples provided by [Mr A] and [the applicant] excluded [Mr A] as the father of [the applicant], with a probability of paternity of 0%.

28. In light of my findings above, I am satisfied that the applicant is not the son of [Mr A]. It follows I am satisfied he is not [Alias A].

29. It remains the case that the applicant has provided no verifiable identity documents to support his claimed identity of [Applicant Name]. An Afghan taskera in that name was provided to the Department with the applicant’s protection visa application in 2010, however when the Department sought to verify that document with the Afghan authorities in 2017 it was advised that the taskera did not correspond with its records and therefore was not issued by the Population Registration Department (PRD). That advice does not state in what way the taskera did not correspond with its records. The material before me does not suggest the Department has attempted to verify the taskera in the name of [Alias A] submitted with the 2008 global special humanitarian visa application.

30. 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].

    [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

31. The applicant states that he obtained the taskera through a friend in Quetta, Pakistan while he was in immigration detention in Australia. He states that he does not know whether it is genuine, but at the time a person needed two people in their home area from Afghanistan who knew that person and their father to provide references for a taskera. He told his friend in Pakistani to contact his father’s friend [Friend A] as a referee for his taskera, but he does not know who the second referee was. He did not know this taskera may not be genuine until advised by the Department. The applicant then used that taskera to obtain an Afghan birth certificate from the Afghan Consulate in Quetta, Pakistan in 2013 and he continues to believe that birth certificate is a genuine document.

1. There is a divergence in the country information as to whether a person could obtain a taskera from outside Afghanistan, including at the Afghan Consulate in Quetta, Pakistan at the time the taskera was issued in 2010. Canada’s Immigration and Refugee Board suggests there was no process by which a genuine taskera could be obtained outside of Afghanistan[3]. However the Ministry of Foreign Affairs of the Netherlands reported that it may be possible at some larger Afghan embassies with the help of two neighbours or family members locally in Afghanistan[4]. It is the experience of this Tribunal that many Afghan applicants obtained a taskera through the Afghan Consulate in Quetta, Pakistan around this time, notwithstanding information suggesting the Consulate was not authorised to issue such documents.

   [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,

2. I accept the taskera provided by the applicant was not issued by the PRD in Afghanistan as advised to the Department, noting this is consistent with the applicant’s own evidence that it was obtained by a friend from the Afghan Consulate in Quetta, Pakistan. As such, I accept the taskera is not a genuinely issued document. This does not necessarily mean the information it contains about the applicant’s identity is untrue or incorrect, rather Afghan citizens displaced by the conflict in that country are known to experience particular difficulties obtaining genuinely issued taskeras. This is because access is based on recognition by family members or community elders and this poses significant challenges for displaced Afghan citizens who are outside of Afghanistan and who cannot easily locate elders to confirm their identity[5].

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

3. It is not suggested that the applicant is linked to any identity other than that of [Applicant Name] or [Alias A]. For the reasons set out above, I am satisfied that the applicant is not [Alias A]. While the applicant has not produced any verified identity documents in the name of [Applicant Name], [Alias A] has confirmed the applicant’s claimed identity and the circumstances in which he came to be included in the 2008 global special humanitarian visa application as his son.

4. On the evidence before me, I am satisfied the applicant’s identity is [Applicant Name], born on or about [DOB 1].

   Does the ground for cancellation exist?

5. 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

6. For the reasons set out above, I have found the applicant is [Applicant Name], born on or about [DOB 1]. 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

7. 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