1915811 (Migration)

1915811 (Migration) [2021] AATA 1057 (18 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1915811

MEMBER:Melissa McAdam
DATE:18 February 2021
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 18 February 2021 at 10:13am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – previous application for refugee status – close relative in Australia – Forensic Facial Image Examination – Afghan naming practices – fear of persecution – included in another application without his knowledge – unlawfully obtained passport – identity documents – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth), ss 48A,116, 189, 198
Migration Regulations 1994 (Cth), Schedule 4, PIC 4013

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 17 June 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 applicant was represented in relation to the review by his registered migration agent.
The delegate cancelled the visa under s.116(1AA) 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.
Background
The applicant arrived in Australia by boat in December 2011. He applied for a Protection visa claiming to be a Shia Hazara and an Afghan national, born in [year], with the name [Applicant full name, including Family name 1].
He claimed he was born in [Village 1] in [Location 1], Ghazni Province, but left Afghanistan for Pakistan with his family when a very young child, after his [number] brothers went missing. He claimed his [brothers] were captured by Pashtun people. He claimed that in Pakistan life became increasingly dangerous for Shia Hazaras so the applicant’s father decided the applicant should leave Pakistan.
His Protection visa was granted on 15 May 2012. He later applied for a Resident Return visa which was granted on 21 September 2018.
NOICC
On 21 May 2019 the Department issued a Notice of Intention to Consider Cancellation of the applicant’s visa (NOICC) to the applicant. In the NOICC the delegate outlined the following:
[In] December 2011 you arrived on Christmas Island as an illegal maritime arrival (IMA). Upon
arrival you identified yourself as [Applicant full name] a Shia Muslim and Hazara from
Afghanistan.
On 8 May 2012 you lodged an application for a Protection visa. As part of this application you
completed Form 866B - Application for a Protection (Class XA) visa and Form 866C – Application for an applicant who wishes to submit their own claims to be a refugee.
At question 1 of Form 866B, it asked, “Give details of ALL persons included in this application (those claiming to be refugees and members of the same family unit)” you stated:
Family name [Family name 1]
At question 2 of Form 866B, it asked, “Has any person named in Question 1 previously applied for refugee status or a protection visa from the Department?” you stated “No”.
At question 3 of Form 866B, it asked, “Has any person named in Question 1 previously made any other type of application to the Department (including a Parent visa)?” you stated “No”.
At Question 10 of Form 866B, it asked, “Are there any members of the same family unit who are IN AUSTRALIA but are NOT included in this application?” you stated “No”.
At question 13 of Form 866B, it asked, “Do any of the persons included in this application and
named in Question 1 have close relative who are NOT in Australia at the time of application?” you stated “Yes” and “Please refer to attachment”. In the attachment you declared the following family composition:
Father- [Father A, with Family name 1], born [year], Afghan citizen, currently residing in Pakistan
Mother - [Mother A, with Family name 1], born [year], Afghan citizen, currently residing in Pakistan
[Specified family members named, with Family name 1, with years of birth, all being], Afghan citizen, currently missing
[…]
[One sibling named, with Family name 1, with year of birth, being] Afghan citizen, currently residing in Pakistan
At question 1 of Form 866C, it asked, “What is your full name?” you stated:
Family name [Family name 1]
Given names [Applicant short name]
At question 4 of Form 866C, it asked, “What other names have you been known by?” you did not provide an answer to this question.
At question 33 of Form 866C, it asked, “Details of countries of former habitual residence or transit before arrival in Australia?” you stated the following:
Date of entry Date of departure Country entered Status in country Reason for travel
1997 2011 Pakistan Unlawful noncitizen Escape persecution
…
At question 55 of Form 866C, it asked, “Do you have your travel document with you now?” you
stated “No” and “I have never applied for a genuine passport”.
At question 56 of Form 866C, it asked, “Is your travel document valid for return to your home
country?” you stated “No” and “I have never applied for a genuine passport”.
Based on the identity you presented together with your claims for protection and meeting all other requirements, you were granted a Protection visa on 15 May 2012.
Application for Australian citizenship
On 22 July 2016 you lodged an application for Australian citizenship by conferral. Your claimed
identity and claimed family composition listed below, were provided with this application:
Name and date of birth: [Applicant full name], born [DOB 1]
Alias names: Nil
Father: [Father A, with Family name 1], born [year]
Mother: [Mother A, with Family name 1], born [year]
To support your claimed identity, you submitted the following documents:
Identity document issued by Embassy of the Islamic Republic of Afghanistan-Canberra, dated [in] 2016. This document states the following:
“This is to certify that [Applicant full name] s/o [Father A, with Family name 1], currently residing at [address] Australia, was born in Ghazni - Afghanistan on [DOB 1].”
Titre De Voyage issued by Australia in the identity of [Applicant full name];
[Bank] card;
Medicare card;
New South Wales Provisional Driver Licence;
Utility bill.
As per requirements set out in the Australian Citizenship Act 2007, a number of checking
processes need to be undertaken as part of the citizenship assessment process.
Facial Image Comparison
The Department conducted Forensic Biometric checks which included a facial examination of the image taken upon your arrival as an IMA. Your image matched with two separate identities on departmental records, that of [Applicant name, with Family name 2], born [DOB 2] and [Applicant full name, with Family name 1], born [DOB 1].
On 10 May 2019 the two facial images in the identities of [Applicant name, with Family name 2] and [Applicant full name, with Family name 1] were referred to the Department’s Facial Comparison Unit for examination. On
16 May 2019 a Forensic Facial Image Examiner made the following finding:
“There are indications that the persons depicted in the images represent the same person.”
Therefore I consider that you are also known as [Applicant name, with Family name 2], born [DOB 2].
Application for a Global Special Humanitarian (subclass 202) visa
On 7 May 2010 you were included in an application for a Global Special Humanitarian visa as a
dependent of your claimed sister, [Sister A, with Family name 2]. In this application it was claimed that you had
resided in Pakistan since October 2009. Your facial image, identity, family composition and
proposer listed below were provided with this application.
Name and date of birth: [Applicant name, with Family name 2], born [DOB 2]
Citizenship: Afghanistan
Parents: Father: [Father A, with Family name 2], born [DOB] and deceased 15 April 2006;
Mother: [Mother A variant spelling, with Family name 2], born [DOB];
Sister: [Sister A variant spelling, with Family name 2], born [DOB]
Brother and proposer: [Brother A, with Family name 2], born [DOB];
[Details of other family members, all with Family name 2, one of whom is missing].
To support your claimed identity of [Applicant name, with Family name 2] the following identity documents were
provided with this application:
Copy of Afghan passport issued by the Consulate General of the Islamic Republic of
Afghanistan, Quetta [in] 2010. This passport contained your thumbprint and your date of birth [DOB 2];
Copy of death certificate for your father, [Father A, with Family name 2], issued by Ministry of Foreign
Affairs Islamic Republic of Afghanistan, general Consulate of Afghanistan - Quetta, dated
[in] 2010.
On 20 August 2010 this application was refused.
Based on the above information it appears you have provided inconsistent and contradictory
information throughout your dealings with the Department. You were included in an application for a Global Special Humanitarian visa in the identity of [Applicant name, with Family name 2], which is inconsistent with your claimed identity since arriving in Australia, [Applicant full name, with Family name 1].
At the time of your application for a Protection visa you claimed that you had never been issued
with any Afghan identity documents. In association with your previous application for a Global
Special Humanitarian visa a copy of an Afghan passport, containing a thumbprint was submitted in the identity of [Applicant name, with Family name 2], born [DOB 2].
In association with your application for Australian citizenship you submitted a document issued by Embassy of the Islamic Republic of Afghanistan-Canberra, certifying that [Applicant full name, with Family name 1] was born in Ghazni, Afghanistan on [DOB 1].
In your application for a Protection visa you claimed that you had resided in Pakistan between
1997 and 2011. In the application for a Global Special Humanitarian visa it was stated that you had resided in Pakistan since October 2009.
You failed to disclose that you have personal contacts in Australia (relatives, family members or
friends) as you were previously proposed in your application for a Global Special Humanitarian
visas by your claimed brother, [Brother A, with Family name 2], born [DOB].
In your application for Global Special Humanitarian visa under the claimed identity of [Applicant name, with Family name 2] in May 2010, you declared a family composition which included, father (deceased),
mother, [number] brothers and a sister. The family composition declared in your Protection visa
application included, father, mother and [number] brothers, [number] of whom you declared were currently missing.
Given the available information, I consider you have provided inconsistent and contradictory
information regarding your identity and family composition which leads me to consider your true
identity is not known.
Therefore, it appears that there is a ground under section 116(1 AA) of the Migration Act 1958 to consider cancelling your Resident Return (subclass 155) visa as I, a delegate of the Minister, am not satisfied as to your identity.
Response to NOICC
On 4 June 2019 the applicant’s Agent sent a written response to the delegate which included the following:
-A Statutory Declaration by the applicant.
-A written submission by the applicant’s Agent.
-A Form of Identity Verification by the Embassy of Afghanistan in Canberra, showing a photograph of the applicant, completed by the applicant in 2019.
-A letter from the Embassy of Afghanistan confirming that Mr. [Applicant full name], son of [Father A, with Family name 1], was born in Ghazni, Afghanistan on [DOB 1].
-The Afghan Taskera of the applicant’s father.
-An Education Certificate from [College 1], showing a photograph of the applicant as a young person and identifying him as ‘[Applicant short name]’, son of ‘[Father A short name]’.
-An Education Certificate from [College 2], in the name of ‘[Applicant short name]’, son of ‘[Father A short name]’.
-The applicant’s recent Employment Payslips in the name ‘[Applicant full name]’.
-The applicant’s Australian Tax return history in the name ‘[Applicant full name]’.
-A support letter from [an official] of [Organisation 1].
-A support letter from [an official] of [Organisation 2].
In the applicant’s Statutory Declaration he writes:
I was born in Ghazni, Afghanistan on [DOB 1]. I am Hazara Shia.
My family and I fled Afghanistan in 1997 when I was just [age] years of age and lived
unlawfully in Pakistan. Due to being in a time of war, we left everything behind in Afghanistan, including all documents.
I resided illegally in Pakistan until I commenced my voyage to Australia in 2011. The only documents I have from Pakistan are:
An education certificate issued 7 April 2011 from [College 1]: and
An education certificate issued 28 March 2011 from [College 2].
I provided both of the above education certificates to the Department whilst in detention.
The Global Special Humanitarian (subclass 202) visa (‘GSHV’) application
I admit that I was included in the GSHV application proposed by my [Brother A, with Family name 2] . At the time of the GSHV application I was [age] years of age. My family and I were living illegally in Pakistan at this time, however life in Pakistan was becoming increasingly dangerous. I am traumatised from the events I saw.
When my brother came to Australia he proposed my family and I in the GSHV application. My name and date of birth in the GSHV application is incorrect. I will explain this further below. My family composition in the GSHV application is correct. In the GSHV application, [Brother A] claimed that our father, [Father A], was deceased. This is incorrect. My father is alive and well and is living in Pakistan.
The Protection (subclass 866) visa application
I arrived in Australia [in] December 2011 at Christmas Island. After arriving in Australia, I made an application for a Protection visa.
The name and date of birth in this visa application is correct, however I did not have the surname '[Family name 1]' before coming to Australia. I did not have any surname in both Afghanistan and Pakistan. I had only ever been known as ‘[Applicant short name]’.
When I arrived in Australia I wanted to try and fit in with Western culture, so I chose a surname. The surname ‘[Family name 1]’ is derived from the word ‘[Word], which means [name meanings]. [This] is a common Muslim last name. Afghan naming conventions are not like Western naming conventions. Surnames are not common in Afghanistan and Pakistan and are very flexible.
My family composition in this application is incorrect. I admit that I did not tell the Department about the GSHV application or my [Brother A], who was living in Australia at the time I made the protection visa application. I am deeply sorry for this.
I did not tell the Department these details out of fear. While on the boat, the people smuggler told me not to say anything, as he said I would not get granted a visa.
Why my visa should not be cancelled
First of all I would like to say that I am deeply sorry for the incorrect information I provided to the Department. I did this out of fear for my life and in a desperate attempt to save it.
I have a stable job in Australia and a strong employment record. I have a superannuation account here and I pay my taxes.
I have approached the Afghanistan Embassy in Canberra to make an application for a Tazkira in absentee. Upon receipt of my Tazkira, I will provide to the Department to satisfy the Department of my identity.
If my visa is cancelled I will be returned to Afghanistan. I will be tortured, kidnapped or even killed if I am returned to my home country due to being Hazara and Shia. The security situation in Afghanistan has continued to worsen since I left.
In the Agent’s written submission she states the following:
Afghan naming practices are significantly different to those in Australia; names are a much more fluid concept and do not follow the strict naming principles which exist in Western
societies. For example, although surnames are often inherited from one’s father, the adoption
of surnames in Afghanistan are a recent concept owing to increased connectivity to the West.
Surnames are not mandatory as they are in Western cultures. People can choose their own
surnames based upon their father or grandfather’s name, tribal connections, geographic locations or characteristics which one identifies with. “It is not unusual for different surnames to exist within the same family - even siblings can choose to use different surnames locations or characteristics which one identifies with.”' It is not unusual for different surnames to exist within the same family - even siblings can choose to use different surnames. We submit that it is important for the Delegate to keep this cultural context in mind when considering [the applicant’s] explanation as to the claimed inconsistent information.
Name our client was known by before arriving in Australia - Our client’s birth name is ‘[Applicant short name]’; he was not given a surname at birth. Our client’s education certificates from [College 2] and [College 1] corroborate this. This is also consistent with current country information as outlined above.
We contend that the Delegate should not place great weight on the 2010 Afghan passport
issued by the Consulate General of the Islamic Republic of Afghanistan in Quetta, Pakistan.
This passport was obtained on our client’s behalf; our client was [age] years of age at that time.
The name recorded on the passport, ‘[Applicant name, with Family name 2]’, is not actually our client’s name. As
mentioned above, our client’s birth name is ‘[Applicant short name]’. It was only when our client arrived
in Australia that he chose the surname ‘[Family name 1]’. The reason as to why our client’s surname
was recorded as ‘[Family name 2]’ on the Afghan passport will also be explained below.
Why ‘[Family name 1]’? - Owing to his eagerness to fit in with Western culture, our client wished to give himself a surname when arriving in Australia. As such, when the detention officer asked our client to provide a surname, he provided the name ‘[Family name 1]’. [This] is a common Muslim surname and is derived from the word ‘[word] meaning [name meanings]. Our client chose this surname because he wanted to be known by this last name.
Why ‘[Family name 2]’? - The last name ‘[Family name 2]’ was declared by [Brother A] when he first arrived in Australia. Like our client, [Brother A] did not have a surname before arriving in Australia. The name ‘[Family name 2]’ is inspired by the [similarly named] tribe. As per the country information above, it is not unusual that [Brother A] chose this name for himself. Additionally, when filling out the GSH application, [Brother A] recorded all his family’s surnames as ‘[Family name 2]’ even though they too had never had surnames.
3.2 Family Composition
We submit that the family composition in the GSHV application is our client’s correct family
composition. He did not include his [Sister A], in his family composition for his Protection
visa as she was married at this time. In Afghan culture, once a woman is married, she is
considered to belong to her husband’s family.
3.3 Father’s Death
We acknowledge that in the GSHV application it was claimed that our client’s father, [Father A], was deceased. We also acknowledge that a death certificate was provided in support of
this application. We reiterate that at the time of this application our client was [age] years of age
and did not fill out this application himself. He was merely a dependent. Nevertheless, our
client advises that [Father A] is alive and is currently living in Pakistan. We have provided a
copy of [Father A’s] Taskera in attachment to this response.
We acknowledge that on this Taskera, [Father A’s] surname is recorded as ‘[Family name 1]’. Prior to
obtaining this Taskera, [Father A] also never had a surname. [Father A] adopted the surname
‘[Family name 1]’ just like our client.
Why [the applicant’s] visa should not be cancelled
If you are still not satisfied of [the applicant’s] identity then we note that none of the ‘prescribed
circumstances’ included in the Migration Regulations 1994 (Cth) exist, therefore you are not
obligated to cancel [his] visa if you are still not satisfied of his identity. We note we
have only covered the considerations which are relevant to [the applicant’s] matter. We also
highlight PAMS’s General Visa cancellation power (s 109, s 116, s 128, s 134B and s 140)
instructions states that ‘generally, matters must be weighed in favour of the visa holder, not
against the visa holder’.
The Purpose of the travel and stay in Australia
As outlined above and in [the applicant’s] Statement of Claims, [his] life was in immediate
danger due to being a Hazara Shia. He has personally experience terror induced by the Taliban
and other insurgent groups as well as by the Pakistani authorities. It was unsafe for [the applicant]
to remain in Pakistan or return to Afghanistan. [The applicant] only travelled to Australia to save his
life and this is the reason for his stay. In recent years it has become increasingly unsafe for Hazara Shias as the general insecurity environment rapidly deteriorates in Afghanistan. Please
see below for a more detailed account about the plight of Hazara Shias in Afghanistan. As
remaining in Australia is a significant determinate of [the applicant’s] wellbeing, survival and
livelihood, we submit this weighs in in favour of not cancelling his visa.
Compliance with visa conditions
[The applicant] has been compliant with all his visa conditions and we note that he has not travelled
to Afghanistan. This weighs in favour of not cancelling his visa.
The Degree of Hardship which may be caused to [the applicant] and his family
A decision to cancel [the applicant’s] visa will cause significant hardship to him as he will be forced
to return to Afghanistan. Firstly, [the applicant’s] life will be at risk, as a Hazara Shia he faces a
‘real chance’ of suffering persecution at the hands of the Taliban and other groups. Staying
safe and avoiding the targeted attacks by these groups will take a significant effort and will
impact on [the applicant’s] ability to live a fulfilling life.
Secondly, [the applicant] would be alone in Afghanistan, as his family lives in Pakistan. He has not
returned to Afghanistan since leaving when was extremely young, so he will struggle to know
the local customs and settle into the Afghan communities. This is worsened by [the applicant]
spending 7 years in Australia, where he has a job, a strong presence in the community, and a
well-established life. As [the applicant] has lived a great deal of his life in a Western country and
has immersed himself into the Western way of life, it will be difficult for him to assimilate in
Afghanistan.
Additionally, [the applicant’s] family members will face hardship if he was returned to Afghanistan.
They currently rely upon him for financial support, which he provides through his income as a
[occupation]. Without his income during the period where [the applicant] is returned to Afghanistan,
sets up his life and looks for work, his family will face significant hardship. We submit the high
degree of hardship [the applicant] and his family will face weighs in favour of not cancelling his visa.
[The applicant’s] Past and Present Behaviour towards the Department
Throughout his 7-8 years of personally interacting with the Department, [the applicant] has been
consistent, forthcoming and truthful in all of his dealings. Our client has complied with all demands and requirements. This is best illustrated by [the applicant’s] continuous effort to obtain
documentation in support of his identity.
We also note that the grounds on which the Department previously granted [the applicant’s]
Protection visa are based upon the correct information. The Department did not grant his visa on grounds [the applicant] made up. They are based upon his true lived experience. [The applicant’s]
[College 2] document issued prior to his arrival in Australia also supports the fact that
his identity has remained the same. This all weighs in favour of not cancelling [the applicant’s] visa.
Mandatory Legal Consequences to a Cancellation Decision
Cancelling [the applicant’s] visa will have significant legal consequences. He will become an
unlawful non-citizen and will be at risk of being detained under s 189 and deported, if he does
not voluntarily leave Australia, under s 198 of the Act. He will also be prohibited from applying
for some types of visas under s 48A(1B) which prevents [the applicant] from applying for another
protection visa whilst in the migration zone. Additionally, Public Interest Criteria 4013 will apply
which prevents [the applicant] from being granted a visa for three years following the cancellation.
These are grave legal consequences which are disproportionate to [the applicant’s] actions, given
that he did not know of his inclusion in the GSH application. Hence, this weighs in favour of
not cancelling his visa.
Breach of Australia’s International Obligations
As [the applicant] only has the right to reside in Afghanistan, the Delegate should consider the
security situation in Afghanistan which has significantly deteriorated in the last few years,
especially for Hazara Shias who are actively targeted by terrorist groups. This trend in rapid
deterioration in the security environment in Afghanistan, as the Afghan government’s control
decreases whilst the Taliban and other extremist groups rise in power, is likely to continue.
There is no evidence to the contrary.
The Department of Foreign Affairs and Trade’s DFAT Thematic Report: Hazaras in
Afghanistan notes there has been a rise in targeted attacks on Hazara Shias throughout
Afghanistan since the end of 2016. DFAT assessed that ‘the continuing armed conflict has
significantly affected the government’s ability to exercise effective control over large parts of
the country, particularly outside major urban centres.
…
Therefore, it is clear [the applicant] will face persecution due to his Hazara ethnicity and Shia
Muslim religion if retuned to Afghanistan. This quick summary of the widespread country
information detailing the insecurity, rise in violence and rise in targeted attacks against the
Hazara Shia population in Afghanistan demonstrates the significant risk to his life [the applicant] if
he is returned to Pakistan. Therefore, as returning [the applicant]to Afghanistan will breach
Australia’s non-refoulement obligations, this consideration weighs in favour of not cancelling
[the applicant’s] visa.
Any other relevant matters
Eagerness to Assimilate
[The applicant] has demonstrated a strong willingness to assimilate into Australian life. [The applicant]
enrolled himself in English classes, so he could subsist. This is also what helped [him] to
have an employment and be successful in it.
We submit these considerations demonstrate to the Delegate that [the applicant’s] visa should
not be cancelled. As [the applicant’s] life will be at risk if he returned to Afghanistan, we submit
cancelling his visa due to the actions of others made (without our client’s knowledge) in an
attempt to save his life, is a disproportionate response. He is a model resident who works
hard, invests into the Australian community and has cooperated with the Department.
Conclusion
We submit there is ample evidence for the Delegate to be satisfied of [the applicant’s] identity. [The applicant] has previously provided to the Department documentation that corroborates his identity.
[The applicant] has attended the Afghanistan Embassy to apply for an absentee Tazkira. Upon
receiving the Tazkira, we will be able to provide the Tazkira to the Department. Additionally,
where [the applicant] has been unable to supply such documentation, he has provided cogent and
consistent reasoning as to why. Further, [the applicant] was included in the GSH application
proposed by [Brother A] without his knowledge and consent and whilst he was a
minor. The inconsistency has arisen in circumstances beyond our client’s control. Ultimately,
[the applicant] correct identity is the identity he declared when he arrived in Australia. This is the
identity he used in both Afghanistan and Pakistan and is the only identity he has ever been
known by. When [he] has been directly involved with the Department, he has always
consistently presented his family composition, residential history, dates of birth, life story
etcetera. The cumulative effect of this evidence and [the applicant’s] supporting documents is
sufficient evidence to be satisfied for [his] identity. Therefore, the power to cancel his
visa under s 116(1AA) of the Act is not enlivened.
Delegate’s Decision

The delegate considered that the applicant had provided contradictory and inconsistent information over the course of his interactions with the Department and therefore he was not satisfied as to the applicant’s identity.
The delegate considered that the most reliable identity document submitted was the Afghan passport in the identity of [Applicant name, with Family name 2], born [DOB 2]. The delegate found that the applicant’s response as a whole did not satisfy him as to the applicant’s true identity. The delegate was not satisfied as to the applicant’s correct name and family composition. He did not find the applicant’s explanations in relation to the inconsistent and contradictory information to be plausible. The delegate noted that the applicant had not provided any credible documentation to support his identity that was issued prior to his arrival in Australia.
The delegate found that a ground existed under section 116(1 AA) of the Migration Act 1958 to cancel the applicant’s Resident Return visa, as he was not satisfied as to his identity.
After considering the available information, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. He therefore decided to cancel the applicant’s Resident Return (subclass 155) visa.
Information to the Tribunal
Pre-Hearing Submission
On 12 January 2021 the applicant submitted the following information to the Tribunal:
-A written submission from the applicant’s Agent.
-Another copy of the applicant’s 2019 Statutory Declaration.
-The applicant’s ‘Divorce Deed’, issued in Quetta in November 2020.
-The applicant’s Afghan Tazkira.
-A translation of the applicant’s Tazkira.
-The applicant’s application for a Tazkira.
-Three ATO Notices of Tax Assessment to the applicant.
-The applicant’s Afghan passport issued in [2019].
-The [College 2] education certificate to the applicant.
-The applicant’s grandfather’s Tarkhis (military discharge certificate).
-The applicant’s father’s Tazkira.
-The Tazkira for the applicant’s friend [named], named in the applicant’s recent Tazkira application, as his contact in Afghanistan.
-The Tazkira for the applicant’s [Uncle A].
-Wedding and post-wedding photographs of the applicant and his wife and family.
On 12 February 2021 the applicant submitted the following information to the Tribunal:
-A letter from the [Embassy] of the Islamic Republic of Afghanistan, date [in] 2021, which states that the applicant’s Afghan national ID (Tazkira) is a verified and genuinely issued document. It further states that the applicant is [Applicant full name, with Family name 1], a citizen of Afghanistan born in Ghazni Afghanistan in [year].
Tribunal Hearing
The applicant appeared before the Tribunal on 15 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [Brother A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The following is a summary of the information provided by the applicant at the hearing:
a.The applicant was born in [Village 1] in [Location 1] in the Jaghori district of Ghazni Province, Afghanistan.
b.His father’s tribal area was in [Village 2] in the Malestan district of Ghazni Province. The applicant does not know why his father left his tribal area. This was before the applicant’s birth.
c.The applicant left Afghanistan when he was only [age] years old. He did not live anywhere else in Afghanistan and has never visited there again.
d.He went to school in Pakistan until [grade] because no documents were required at the primary schools. After this, documents were required. His family did not have documents so he could not continue to attend school.
e.In Pakistan his family ran a shop in a nearby area called [Town 1]. This was not an Hazara area and it became too insecure to keep the shop after the 2010 attacks on Hazaras. After the family stopped operating their shop they did not have work. The applicant’s brother in Australia supported them.
f.One of the applicant’s brothers has remained in Pakistan. [Other family members] have gone to [Country 1]. Their situation is not good as they have become addicted to drugs there. The family do not have contact with them anymore.
g.The applicant’s [Brother B], who is in Pakistan was injured during one of the attacks on Hazaras in Quetta. This was at the end of Ramadan in September 2010. There was a suicide bombing and [Brother B] was injured by shrapnel. The Shia community helped him to get emergency treatment in a local hospital but he still has shrapnel in his legs. He suffers trauma from the attack, some of his friends were killed in it, and he does not work. The applicant’s father is old now so does not work. The applicant was also caught up in a 2010 attack in Quetta too and an attack during Ashura.
h.The applicant left Pakistan in November 2011 and came to Australia.
i.The applicant’s [Uncle A], lives in Karachi with his wife. He comes and goes between Quetta and Karachi. There is a small Hazara community in Karachi in a place called ‘[name]’. [Uncle A] does not have documents but uses bribery when challenged by the Pakistan authorities. The applicant’s father contacted [Uncle A] and asked him to provide a copy of his Taskera to send to the applicant. The family do not have much contact with [Uncle A] otherwise.
j.The applicant’s father has [specified siblings, named] [including Uncle A]. [Some] are in Pakistan. [One] is in [Australia] with [family]. [Another] is in [Country 2].
k.The applicant’s mother’s siblings are in Afghanistan and they have lost contact with them. The applicant has no family still living in [Village 1 variant]. His father’s tribe are still in [Village 2] but the applicant has no family there.
l.The applicant was born ‘[Applicant short name]’ but he wants to be known as [Applicant full name] since adopting the surname ‘[Family name 1]’. He knows he was born in the [specified] month of [year] because his father would refer to him as [name], for the [relevant] month zodiac sign.
m.He said in his Protection visa application that [a number] of his [family members] were missing because the family had lost contact with [them] in [Country 1] and his [brother] was in Australia.
The following is a summary of the information provided by [Brother A] at the hearing:
a.The applicant is his brother.
b.At birth he had the name [Brother A]. He adopted the surname ‘[Family name 2]’ when he arrived in Australia.
c.He was born in [Village 1] but his father’s tribe are in [Village 2]. He does not know when or why his father left [Village 2].
d.He left Afghanistan when he was [age range] years old. He does not remember much about Afghanistan. His father worked as a shepherd in Afghanistan. He remembers playing and getting beaten by his father. So he is not on good terms with his father. He remembers collecting firewood in Afghanistan.
e.In Pakistan his father worked daily in a [location] until his situation improved and he was able to get a shop in the bazaar in [Town 1]. They no longer have the shop because of the security situation. After this his father did occasional labouring work when someone needed labourers.
f.His [Brother B] lives at home with their parents in Pakistan. His [family members] are in [Country 1]. They have become drug addicts so there is no contact with them. People from his father’s tribe saw them in [Country 1] and told his father that they were addicted to opium and in a bad situation.
g.His father’s [siblings include Uncle A] and [another]. [Uncle A] is in Quetta and [the other] is in [Country 2]. His father’s [other family members] are [named including one] who is in Melbourne.
h.The Tribunal put to him that the applicant had stated that [Uncle A] lives in Karachi. The witness replied that this may be so, he does not have much contact with the family. He is not close to his relatives or his family overseas.
i.He left Pakistan in 2009.
j.He returned to Pakistan for the applicant’s wedding about three or more years ago. He is in one of the wedding photographs submitted to the Tribunal.
k.He became an Australian citizen in 2014.
l.When he came to Australia he tried to bring his family here. He changed information to try to bring the applicant to Australia. He apologises for this. He did not want his brother to risk his life on a boat.
Country Information
DFAT’s most recent ‘Country Information Report on Afghanistan’, dated 27 June 2019, contains the following:
The Hazara are one of Afghanistan’s fourteen recognised ethnic groups. Their name is Persian for ‘one thousand’, and relates to a legend that the Hazara descended from 1,000 troops that accompanied Genghis Khan during the Mongol conquest of Eurasia.The Hazaras tend to have distinct Asiatic features, which makes them visually distinguishable from other ethnic groups in Afghanistan. Hazaras living in rural Afghanistan tend to speak Hazaragi, a dialect of Persian that is mutually intelligible with Dari (Afghan Persian), one of Afghanistan’s two official languages and the most commonly used. Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian. Most Hazara are Shi’a.
Afghanistan’s Hazara population has long faced social, economic, and political discrimination, although the extent of this discrimination has varied over time. The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression.
The Hazara have made significant social, political and economic gains in Afghanistan since the fall of the Taliban in 2001, albeit from a low base. However, the continuing armed insurgency conducted by the Taliban and other groups has raised questions over the sustainability of Afghanistan’s progress. These questions have been exacerbated for Hazara since the emergence in mid-2016 of a campaign of religiously-motivated attacks against Shi’a by militant groups, including ISKP. While Afghans of all ethnicities feel uncertain about Afghanistan’s future, DFAT assesses that the Hazaras’ previous experience of life under the Taliban and earlier episodes of discrimination have caused many to feel particular concern about the long-term prospects for their community. This concern is an important factor contributing to the decision of many Hazaras to leave Afghanistan.
…
DOCUMENTATION - The National Statistics and Information Authority (NSIA) is the authority responsible for issuing taskiras (see National Identity Cards (Taskira/ Tazkira)). The NSIA was previously known as the Afghanistan Central Civil Registration Authority, and prior to that the Population Registration Directorate (PRD), which operated within the Afghan Ministry of Interior (MOI). Since its renaming in 2019, the NSIA has operated as a separate entity. NSIA Headquarters are located in Kabul, with other representative offices located in police headquarters and district-level police offices in provincial police departments throughout Afghanistan. NSIA headquarters is the central repository for all taskira records and currently holds almost 23 million individual entries, although records held prior to 1973 are not centralised.
NSIA field offices manually record the details of birth and deaths. Each location holds two registers, which are completed simultaneously when data is entered. When the registers become full (approximately 1,000 records), both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged. One register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.
National Identity Cards (Taskira/ Tazkira) - The taskira, a one-page official identity certificate issued by NSIA, is the primary form of identification for Afghan citizens. In addition to being required for employment, and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property, taskiras act as the primary document necessary to obtain other forms of identification. NSIA is responsible for issuing taskiras.
In May 2018, President Ghani announced the official launch of the electronic taskira (the e-taskira), becoming the first person to be issued with one. The new e-taskira cards contain a watermark security feature and microchip and comply with international standards for electronic identity documents. The e-taskira is a rectangular plastic card that includes the bearer’s photograph and signature. The card contains printed data in English, Dari, and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry. The card is valid for either five or ten years and there is no lower age limit to issuance. It is unclear how many Afghans are in possession of e-taskiras, or what the timeline is for distribution.
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.
Passports - The MOI’s Passport Directorate in Kabul is responsible for the issuance of passports, which are machine-readable. Requirements for adult passport applicants are a valid taskira and a number of passport photographs. The applicant’s fingerprints are digitally recorded and entered into a database. Provincial passport offices located throughout the country print and issue passports. Passports contain information on the bearer’s first name, surname (or father’s name), occupation, photograph, date and place of birth, date of issue, and expiry date. They do not contain information about the bearer’s religion or ethnicity. Passports have a five-year validity period. Diplomatic missions can issue passports to Afghans based abroad.
PREVALENCE OF FRAUD - Document fraud is a major issue in Afghanistan. Because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued based on false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras, given they are the primary document used to obtain other forms of identification. The issuance of the new e-taskira should help in mitigating this risk (see National Identity Cards (Taskira/ Tazkira), but there is likely to be a significant time lag between the introduction of the new taskira and its widespread implementation.
DFAT’s Country Information Report – Pakistan, published in February 2019, provides the following information:
The Afghan consulate in Peshawar can renew expired Afghan passports and issue NOCs for Afghans without documentation in order to facilitate permanent return to Afghanistan. The Afghan consulate in Quetta can only issue passports within Pakistan in emergencies, with all other applications referred to Kabul. Machine-readable passports are not issued in Pakistan. An Afghan can technically obtain a visa in Afghanistan to travel to Pakistan within 48 hours, although DFAT understands, at times, visas can be difficult to obtain.
…
Corruption is widespread and systemic. The private sector GAN Business Anti-Corruption portal claims the Pakistan government is unable to guarantee integrity in state bodies and prevent corruption, despite an adequate legal framework. Transparency International’s 2017 Corruption Perceptions Index ranked Pakistan 117th out of 180 countries ….
Bribery, is prevalent in law enforcement, procurement and provision of public services. The judiciary is not seen as reliably independent and has been accused of shielding corrupt political practices from prosecution.
… Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.
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?
s.116(1AA) – Not satisfied as to identity
A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.
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.
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.
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.

The delegate was not satisfied as to the applicant’s identity because he considered that the applicant provided contradictory and inconsistent information regarding his claimed identity and family composition.
The applicant claims that the identity he put forward in his Protection visa application is genuine. He claims he was born in [year] with the identity ‘[Applicant short name]’ and that his family did not use a surname. Due to advice that surnames are generally expected in Australia he adopted the surname ‘[Family name 1]’ upon his arrival in Australia and his name became [Applicant full name]. He therefore identifies as [Applicant full name], son of [Father A], born in [year].
The applicant and his [Brother A] have submitted that [Brother A] gave the applicant’s name as ‘[Applicant short name]’, with ‘[Family name 2]’ as the surname, when trying to sponsor the applicant for an Australian humanitarian visa in 2010. The applicant’s brother explains that, similar to the applicant, when he arrived in Australia he did not have a surname and chose to adopt the surname ‘[Family name 2]’. He then ascribed this surname to the rest of his family members when trying to sponsor them to Australia. As a matter of convenience to facilitate the paperwork for the application it is understandable. However it is regrettable the information was not provided with full disclosure about why and how the surname arose.
According to the information presented by the applicant and his brother, the family went further and unlawfully obtained, through bribery, an Afghan passport from the embassy in Quetta for the applicant which included the surname ‘[Family name 2]’. They also obtained a false Death Certificate for the father which included the surname ‘[Family name 2]’.
According to DFAT’s report on Pakistan the Afghan Consulate is unable to issue Afghan passports except in emergencies. There is no indication of an emergency being the basis for the issuance of the applicant’s passport. In view of the information from DFAT including the information that corruption and bribery are at a high level in Pakistan the Tribunal considers that the passport obtained for the applicant in the name [Applicant short name, with Family name 2] is either false or unlawfully obtained. The Tribunal therefore considers it unreliable in determining the applicant’s actual identity.
The applicant and his brother have confirmed that their father is alive and have submitted recent photographs of him. He was also available to give oral evidence to the Tribunal at the applicant’s hearing. The Tribunal accepts the applicant’s father is alive. The Tribunal therefore considers the Death Certificate presented for him is a fraudulent document. The Tribunal gives it no weight in determining the applicant’s actual identity.
The applicant has submitted a number of documents in support of his claimed identity, [Applicant short name], son of [Father A], born in [year] who is now known as [Applicant full name]. These include Taskeras issued in Afghanistan for himself, his [uncle] and his father; his grandfather’s Afghan military discharge certificate; education certificates from Pakistan education centres dating from when the applicant was a youth; verification letters from the Afghan Embassy in Canberra; an Afghan passport issued through the Embassy in Canberra; ATO Tax Assessment notices; and recent employment payslips. The wedding photographs submitted by the applicant clearly show him with his wife, parents, and [Brother A] in family settings.
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 [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 [claimed] relative identified in the supporting Taskera submitted.
The identification details in the Taskeras and the Tarkhis match and support the applicant’s claim to be [Applicant short name] son of [Father A], born in [year]. The documents issued by Australian authorities confirm that the applicant is now known with the surname [Family name 1]. There is no indication that he has adopted the surname ‘[Family name 1]’ for fraudulent purposes. He appears to have done so simply as an acknowledgement that a surname is generally expected in Australia and having one avoids potentially substantial inconvenience.
The Tribunal considers the documents submitted by the applicant to be reasonably compelling evidence as to the applicant’s identity.
In the Tribunal’s view, the applicant has provided cogent and persuasive evidence that his original identity is [Applicant short name], a Shia Hazara born in [Village 1], in Jaghuri District in Ghazni province, Afghanistan in about [year], to father [Father A]. This was his identity while he lived in both Afghanistan and Pakistan. The Tribunal is therefore satisfied that the applicant’s identity up until his arrival in Australia was [Applicant short name], son of [Father A], a Shia Hazara from [Village 1] in Ghazni province in Afghanistan, born in about November in the year [year].
The Tribunal accepts that after arriving in Australia the applicant adopted a surname because he did not have one. The Tribunal accepts that over the years the applicant has persisted in his assumption of the surname [Family name 1], so that he now considers his full and official name to be [Applicant full 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 therefore is satisfied that the full identity of the applicant is [Applicant full name], son of [Father A], a Shia Hazara and national of Afghanistan, born in [Village 1] in Ghazni province, in or about [year].
Having regard to the information and findings above the Tribunal is satisfied as to the applicant’s identity.
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
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

[2021] AATA 1057

18 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction