1916387 (Migration)

1916387 (Migration) [2021] AATA 1450 (23 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1916387
MEMBER:Melissa McAdam
DATE:23 April 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 23 April 2021 at 9:47am
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – satisfaction as to applicant’s identity – name, ethnicity, place of birth, nationality, and family composition – previously included in another person’s humanitarian visa application – forensic facial image examination – initial claim of mistaken identity – later admission that other person is applicant’s half-brother – father’s two wives and families with little contact between them – half-brother’s decision to include applicant under name of dead full brother – applicant unaware of half-brother’s application – family relationships and documentation – relationship with half-brother and father in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
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 14 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
NOICC
On 21 May 2019 the Department issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Resident Return (subclass 155) visa. In the NOICC the delegate set out the following:
Particulars of the grounds for cancellation and information indicating the grounds for cancellation appear to exist:
Bio-data form, entry interview, application for a Protection visa:
[In] June 2010 you arrived in Australia as an illegal maritime arrival (IMA) and advised you wished to apply for a Protection (subclass 866) visa.
On 14 June 2010 you completed and signed a biodata form. In this form you declared you had no contacts (either friends or relatives) in Australia.
On 18 July 2010 you underwent an entry interview with an officer from the Department. In this interview you declared your only contact in Australia was your friend ‘[Mr A]’ who you declared you had spoken to five months earlier. You also declared you had studied for five years at [a] School using the assumed name [Alias 1].
On 7 October 2011 you lodged an application for a Protection visa and submitted the forms 866B and 866C ‘Application for a Protection (Class XA) visa’. In the application form 866B you declared the following information (answers in italics):
Question 1 asked: Give details of ALL persons included in this application
family name: [Surname 1]
Given names: [Given names 1]
Date of birth: [Date 1]
Question 2 asked: Has any person named in Question 1 previously applied for refugee status or a Protection visa from the department? No
Question 3 asked: Has any person named in Question 1 previously made any other type of
application to the department (including a Parent visa)? No
Question 10 asked: Do any of the persons included in this application and named in Question 1
have close relatives who are IN AUSTRALIA at the time of application? No
Question 11 asked: Do any of the persons included in this application and named in Question 1
have close relatives who are NOT in Australia at the time of application? Yes, please refer to
attachment.
In the attachment you provided the following family composition:
Name …       Sex     Age       Place .. of Birth      Citizenship    Marital Status   Rel to applicant   Resident
[Ms B]          F     [age]   Quetta, Pakistan    Pakistan     Married           Wife           Pakistan
[Mr C]          M     [age]     [Village 1], Ghor   Afghanistan Deceased     Father      Deceased
[Ms D]          F     [age]    [Village 1], Ghor    Afghanistan Deceased     Mother      Deceased
[Mr E]           M    [age]     [Village 1], Ghor   Afghanistan   Married       Brother     Pakistan
[Ms F]           F     [age]     [Village 1], Ghor   Afghanistan   Single         Sister        Pakistan
[Mr G]           M    [age]    Quetta, Pakistan   Single        Brother     Pakistan
In the application form 866C you declared the following information:
Question 4 asked: What other names have you been known by? (such as name before marriage, previous married name, alias) Also write in your own script or characters. If you changed your name, describe why and when you changed your name. You did not provide a response.
Question 7 asked: Date of birth: [Date 1]
Age: [age]
Question 47 asked: When did you leave your home country: [Jan 1992]
You declared that between 1993 and 1998 you had studied at [a] School in Quetta, Pakistan and had completed up to Year [level]. You stated that between 2002 and 2005 you studied [subject] and [subject] in Quetta, Pakistan.
In support of your application you also provided a statement of claims in which you claimed your family had left Afghanistan for Pakistan in 1992. You claimed father had travelled to Afghanistan in 2005 to resolve a land issue with his brother and was killed by your cousin. You claimed you left Pakistan as you were being harassed by the Pashtun.
On 12 October 2011 you were granted a Protection visa.
Application for Australian Citizenship:
On 17 December 2015 you lodged an application for Australian citizenship. In lodging this
application you completed the form ‘Application for Australian Citizenship by Conferral – General Eligibility 1300t’.
On page 2-3 of the application form you declared the following information:
Has the applicant ever been known by or used any other names, date of birth or gender? Other
names include patronymic names, maiden names, clan or tribal names. Yes
Give details of other names, date of birth or gender.
Family name: [Alias 1 surname]
Given names: [Alias 1 given name]
Sex: Male
Date of birth: [Date 1]
Give details: was enrolled into an education institution at Pakistan so I could study for free as my friend’s name.
In this application you declared your address as [Address 1].
In support of your application you provided the following identity documents:
• A translated copy of a Taskera (ID Card No. [Number 1]) in the name [the applicant], born
[Date 1]. This Taskera was issued [in] 2015.
• A [bank] statement [dated] October 2015 in the name [the applicant].
• A copy of a Medicare card in the name [the applicant].
• A New South Wales driver’s licence in the name [the applicant].
• A [Bank] debit card in the name [the applicant].
• A scanned copy of your Protection visa label.
• A scanned copy of a Titre De Voyage in the name [the applicant], issued [in] February 2014.
Previous visa application:
Forensic biometric checking undertaken by the Department after the grant of your Protection visa indicates you have previously lodged an application for a Global Special Humanitarian (GSH) (subclass 202) visa under the name [Alias 2] born [Date 2]. A Facial Image Comparison was undertaken by a Forensic Facial Image Examiner, comparing a photograph taken of you upon your arrival in Australia in 2010 and a photograph of the applicant for the GSH visa.
This examination concluded the persons depicted in the images are the same person.
I therefore consider you have previously applied for a visa to Australia under the name
[Alias 2], born [Date 2].
You did not declare this previous application in your application for a Protection visa or in any
subsequent interactions with the Department.
Application for a Global Special Humanitarian visa:
The GSH visa application was lodged with the Department on 28 August 2007. The primary
applicant on this application was [Ms H] born [date] who was declared to be your sister. The application was proposed by [Mr I] ([date]), an Australian citizen who was declared to be your brother and stated his address as [Address 1].
In this application the following family composition was declared by [Ms H]:
Name Sex M/F Date of Birth Marital Status Place … of birth Country … now living Status
Your parents
[Mr J]      M   M            Ghore, Afghanistan    Afghanistan       C (Citizen)
[Ms K]     F   M             Ghore, Afghanistan    Afghanistan      C
Your brothers and sisters
[Mr L]      M  N             Ghore, Afghanistan     Afghanistan     C
[Mr M]    M   Ghore, Afghanistan       Missing
[Mr N]    M   N             Ghore, Afghanistan     Afghanistan     C
[Mr O]    M   Ghore, Afghanistan       Missing
[Mr P]      M   Ghore, Afghanistan       Missing
[Alias 2] M   N             Ghore, Afghanistan      Pakistan         I (Illegal)
In this application you declared you had resided in Afghanistan from 1990 and 2002 and had then moved to [Country 1] for three years until 2005 when you moved to Pakistan where you remained at the time of application.
You did not declare you had attempted any education.
In the statement of claims provided with the application it was claimed you and your sister were
residing unlawfully by yourselves in Pakistan as your brother [Mr N] had forced your parents to back to Afghanistan with him in early 2007. [Mr N] had wanted them to return to Afghanistan so he could marry his cousin after [Mr N]’s uncle refused the offer. The only solution to the issue was that [Ms H] would have to marry their Uncle’s son and be a second wife which [Ms H] did not want. [Ms H] claimed that [Mr N] would force her to be married and she therefore could not return to Afghanistan.
With this application you also provided a letter from the Consulate General of Islamic Republic of Afghanistan [dated] June 2007 which states the following:
'Consulate General of the I.R. of Afghanistan, Quetta presents its compliments to whom it
may concern and has the honor to verify that [Alias 2] S/0 [Mr J]
According to his own id card was born in Ghor on [Date 2]’
You also provided a translated copy of a Taskera (I.D Number [Number 2]) in which your details were
declared as [Alias 2], aged [age] years in 2006, son of [Mr J]. This document was issued [in] 2006.
This application was refused on 22 September 2007 as the delegate was not satisfied there were compelling reasons for giving special consideration to granting the applicant a permanent visa.
Identity:
Based on the above it appears you have provided inconsistent and contradictory information
regarding your identity over the course of your interactions with the Department.
You declared in your application for a Protection visa your name was [the applicant] and you
had not previously lodged any applications for refugee status or Protection visas with the
Department. You declared in your Protection visa application you had not been known by any other name, although you had earlier claimed to have studied under the assumed identity [Alias 1]. You declared you did not have any immediate family members residing in Australia. You declared you date of birth was [Date 1].
You have previously lodged an application for a GSH visa under the name [Alias 2] born [Date 2]. This application was proposed by your claimed brother [Mr I], an Australian citizen.
You declared in your application for a Protection visa you had left Afghanistan for Pakistan in
1992. In your application for a GSH visa you claimed you left Afghanistan in 2002 and moved to
[Country 1] until 2005 when you moved to Pakistan.
Your declared family composition in your application for a Protection visa is entirely different from that declared in the application for a GSH visa. It is also noted you have declared the same residential address as previously declared by [Mr I], who attempted to sponsor your application for a GSH visa.
You declared in your application for a Protection visa you had completed some primary school
education in Pakistan. You did not declare any education in your application for a GSH visa.
You have provided purported Taskeras under both identities, however, you have not provided any identity documents in your current identity that were issued prior to your arrival in Australia.
The inconsistent and contradictory information you have provided the Department over the course of your application history in relation to your name, date of birth, family composition and
residential history, as well as the lack of credible identity information and documentation pre-dating your arrival in Australia casts significant doubt on your true identity. Based on the above, I am not satisfied of your identity. Based on all the information before me, it appears there is a ground under s. 116(1AA) of the Act to consider cancelling your Resident Return visa, as I am not satisfied as to your identity.
Response to NOICC
On 30 May 2019 the applicant’s Agent provided the following written response on the applicant’s behalf:
[The applicant] denies any knowledge of a previous application referred to in the Department’s latest correspondence considering cancellation of his visa. We note that the Department has records of a previous Global Special Humanitarian (GSH) (subclass 202) visa in which our client has been identified as being a secondary applicant with a different identity of [Alias 2] born [Date 2]. This identity has been allegedly confirmed using a Facial Image Comparison undertaken by a Forensic Facial Image Examiner comparing the photographs in the GSH application and the client’s photograph provided on his arrival to
Australia in 2010.
The client claims that he has no knowledge of the previous GSH application that the Department is referring to, which was made in 2007. He also claims that the photographic
evidence relied on by the Department could be a case of mistaken identity or that of another
individual with similar facial features and characteristics.
Further to this, the client has acknowledged that the address used in the GSH application and
the client’s Protection Visa application is the same one as [Address 1]. However, the client maintains that he used this address only as a mailing address but was living in different places. See attached table of records indicating the client’s addresses since his arrival in Australia, in the client’s attached declaration.
We have attached a statement of claim by the client confirming the above information.
The client has also instructed us to request a copy of the picture used in the GSH application
which the Department claims is the same identity as the client. The client further requests a picture of the main applicant [Ms H] in the GSH application to clarify whether this
person is actually his sister.
The client has always identified himself as [the applicant] born [Date 1] and confirms that all the claims and information made and provided in his Protection Visa Application are true and correct to the best of his knowledge.
Consequences of Cancellation of Visa on the client
Ever since receiving the Notification of Intention to Consider Cancellation under s.116 of the
client’s current visa, the client has been suffering from extreme anxiety attacks, worry and
sleeplessness which has significantly and adversely affected his life. He is overtaken by the
fear of the same threats that he initially escaped from when he arrived in Australia. The thought
of being returned to that situation is unbearable for the client.
[The applicant] travelled to Australia to escape from the threats of the Taliban and the Pashtun as
maintained in his application for the Protection Visa and referred to by his representing agents
at the time. The client still continues to maintain that he has a well-founded fear of being
persecuted because of his race (Hazara) and religion (a follower of Shia Islam) both of whom
are a group under constant attack and harassment by the Taliban and Pashtun. The client was
and is still unable to or is unwilling, owing to the fears of persecution, to avail himself of the
protection of his country of origin and is due to this fear unwilling to return to it.
We submit that when the client was granted is Protection visa in 2011, the client was considered to be a person towards whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). At the time of the grant the client was within the scope of this protection and he was determined to satisfy the definition of ‘refugee’ which is defined by Article lA (2) of the Refugees Convention and Protocol. Despite having his identity in question, the claims for protection which apply to the client remain operative and true. We therefore submit that the client still remains under the protection obligations of Australia.
Furthermore, [the applicant] has at all times been compliant with this visa condition and has been a productive and contributing member to the Australian society. He has an active involvement with local Hazara community and is a devoted and practicing follower of his faith. This is something that he holds dear as he was unable to practice his faith in his country of origin without being under constant fear and threat of harm.
We note that the client and his family will face extreme hardship if the client’s visa is cancelled.
The client is the sole provider for his family and regularly sends money to his family for their expenses and well-being. The client has also lodged a Partner (Provisional) (subclass 309) visa
to bring his family into Australia, which is currently undergoing processing. Should the client’s
visa be cancelled, his family will have no source of income or livelihood and they will be at
risk of harm leaving them in a very vulnerable and sensitive situation.
[The applicant] has never been on record for any criminal or other disorderly behaviour and his
dealings with the Department have always been in good faith and compliant with the requirements, demands and expectations of the Department and he confirms that he will
maintain this relationship with the Department in all future dealings.
The applicant also submitted a written declaration stating:
I received a Notice of Intention to Consider Cancellation of my visa on 21 May 2019 and I deny the claims made in the notice.
The Department of Immigration and Border Protection state that I was an applicant for a Global Special Humanitarian (GSH) Visa (subclass 201) in August 2007. This allegation is based on a Facial Image Comparison undertaken by a Forensic Facial Image Examiner comparing a photo from the GSH application and one taken in 2010 on my arrival in Australia. The Department also states that I had a different name and identity in the GSH application as a secondary applicant. My alleged identity in that application is noted as [Alias 2] of date of birth [Date 2] and I was not the main applicant.
I respectfully deny any knowledge of the previous GSH application prior to my arrival in Australia in 2010.
I also deny that I have ever been known by or used the name [Alias 2] of date of birth [Date 2].
The photographic evidence relied on to question my identity could be a case of mistaken identity or that the photograph from the GSH application could relate to another individual with similar facial features and characteristics as mine but is not me.
The only evidence available to me to state that my identity is the same as [Alias 2] is only a photograph - no other documents show any connection or relationship of me to this person, including documents provided in my Protection Visa claims. Furthermore, no other documents from my family as declared in my Protection Visa application also show a connection to the other members of the family as mentioned in the GSH application of 2007.
I acknowledge that the address used in the GSH application and my Protection Visa application is the same one as [Address 1]. However, this is possibly a coincidence as I was referred to this address by a friend of mine when I was looking for an urgent place to stay for a few days before I found my own place as I found work in the nearby area. I continued to use this address as a mailing address only but was living in different places. Due to constantly moving, I decided to keep the mailing address the same to avoid missing any correspondences as I trusted the person there. See below table of records indicating my residential addresses since my arrival in Australia. I used the mailing address of [Address 1] because it was the address of the only person I knew in Sydney at the time, from my home country. The person at this address was a member of the same community as mine and lived in the same village as I did. I only lived at this address for less than 10 days until I moved to another shared accommodation as listed below.
Address   Date from Date to
1. [Address 2]   Nov-2011 Apr-2012
2. [Address 3]   Jun-2012 Apr-2013
3. [Address 4]   Apr-2013 Mar-2014
4. [Address 5]   Jun-2014 Jan-2016
5. [Address 6]   Feb-2016 Jun-2017
6. [Address 7]   Mar-2018 Jul-2018
7. [Address 8]        Nov-2018 CURRENT
I do not recall the exact unit number for the addresses at 1-3 above.
I confirm that I am and have always been [the applicant] born on [Date 1] and I do not know who [Alias 2] is nor do I have any relationship with him. I would also like to request the Department to provide me with a copy of the photographs that they have used to conduct the Facial Image Comparison so I can see for myself regarding this claim.
Delegate’s Decision

The delegate accepted the findings of the Forensic Facial Image Examiner and accepted that the photographs in the two different visa applications represented the same person. She did not accept the applicant’s explanation that the image from the GSH visa application may relate to another individual.
The delegate noted that when the Department contacted the applicant on 21 May 2019 to confirm his current address details for the issuance of the NOICC, he provided the [Suburb 1] address for correspondence. Further, he did not elaborate on the identity of the person at the [Suburb 1] address that he claimed to trust. The applicant did not deny he knew [Mr I], the proposer of the GSH visa application. The applicant did not provide any documentation in the identity of [the applicant] that pre-dated his arrival in Australia.
The delegate was satisfied that the applicant had previously represented himself to the Department under the identity [Alias 2] born [Date 2]. In view of the inconsistent and contradictory identity information he provided during the course of his interactions with the Department, the delegate was not satisfied as to his identity. She was not satisfied as to the applicant’s correct name, date of birth, family composition or residential history. Given these factors and the lack of identity documentation issued prior to his arrival in Australia she was not satisfied as to the applicant’s identity and found that grounds existed under s.116(1AA) of the Act to cancel the applicant Resident Return visa.
After weighing up the information available, the delegate was satisfied that the grounds for cancelling the applicant’s visa outweighed the reasons for not cancelling. She therefore decided to cancel the visa.
Information to the Tribunal
Pre-Hearing Submissions
The applicant submitted two Residential Tenancy Agreements for a property in [Address 7], leased to the applicant for three months from November 2018, and a property in [Address 8], leased to the applicant for six months from March 2018.
Tribunal Hearing
The applicant appeared before the Tribunal on 9 December 2020, 16 February 2021 and 6 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr I]. 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 on 9 December 2020:
a.He works in sales at the [workplace] in [Suburb 2], five days a week.
b.In his Partner visa application he included his wife, sister [Ms F], and his brother [Mr E’s] wife and son. At the time [Mr E] was in [Country 2] but he is now back in Pakistan.
c.The Tribunal showed the applicant a copy of the photograph of [Alias 2] from the 2007 GSH application. The applicant agreed that the photograph could be of him. Maybe because he was desperate to get out of Afghanistan he may have been included in another application by a family friend, without his knowledge.
d.When he came to Australia a friend of his, [Mr A], was in Melbourne at that time. The applicant was in contact with him. [Mr A] is from Afghanistan. The applicant and [Mr A] lived in Pakistan together. The applicant asked [Mr A] if he knows anyone to give the applicant somewhere to live anywhere. The applicant feels that the majority of people can’t be trusted. [Mr A] gave the applicant the telephone number of [Mr I]. The applicant did not know [Mr I]. After the applicant was released from detention he was placed in accommodation in [Suburb 3] by [an] organisation. The applicant was scared to live in [Suburb 3]. The applicant contacted [Mr I] and asked him to help the applicant and find him a job. [Mr I] gave the applicant accommodation. The applicant lived with him for a while. He also worked in the same [workplace] in [Suburb 2] with [Mr I].
e.The Tribunal asked the applicant why [Mr I] seems to have included the applicant in the 2007 GSH visa application. The applicant responded that he asked [Mr I] but [Mr I] said he didn’t know.
f.In 2013 the applicant’s brother [Mr E] went to [Country 2]. He is missing. [Mr E] is two years older than the applicant. [Mr E] had gone to Afghanistan and then to Pakistan.
g.The applicant’s sister, [Ms F], is now married. The applicant has applied for a Partner visa for his wife [Ms B] and their [child], born on [date].
h.According to the applicant an unknown person applied for the 2007 GSH visa, not his sister [Ms F].
i.The applicant’s mother has passed away. Her name was [Ms D]. His youngest brother, [Mr G], is in Pakistan and is [age] years old.
j.The applicant’s father went back to Afghanistan in around 2005 because there was a family dispute. His name is [Mr C].
k.The applicant has only two brothers, [Mr G] and [Mr E], and one sister, [Ms F].
l.In 2015 the applicant obtained a Taskera. He found a guy who went through the ID department. [Mr Q], an agent, called him.
m.The Tribunal asked the applicant if he knew [Mr I]’s phone number and if the Tribunal could contact him to speak with him about the applicant’s matter. The applicant agreed to this and provided a telephone number.
The Tribunal telephoned [Mr I] on the phone number provided by the applicant. The following is a summary of the information [Mr I] provided by telephone at the hearing on 9 December 2020:
a.He came to Australia in 2007.
b.His sister [Ms H] is married and he does not know where she is. Their brother [Mr R] went with her.
c.People often ask him why the applicant looks like him. He does not know why.
d.His father is [Mr J], born on [date]. He came by boat to Australia in 2010 or 2009.
e.He lived in [Village 1] in Afghanistan for 10 years.
f.He doesn’t know where his mother is. She is in Pakistan.
g.His siblings are [Mr L] who is [age], [Mr M] and [Mr O].
h.He lived with the applicant for two months. He did not know the applicant until he contacted him after his detention.
In the hearing invitation sent to the applicant for a further hearing the Tribunal asked for [Mr I] and [Mr J] to also attend to give evidence. At the resumed hearing on 18 February 2021 only the applicant attended. The following is a summary of the information provided by the applicant at the resumed hearing on 18 February 2021:
a.The Tribunal asked why [Mr I] and [Mr J] had not attended the hearing. The applicant responded that he did not ask them. He does not have such a good relationship with their family and did not understand it was so important for them to attend. He did not think he should bring them to the Tribunal. [Mr I] works and the father is old and frail and may have a heart problem. If the applicant had thought it important he would have asked them to attend the hearing.
b.The Tribunal further discussed with the applicant why he would not think their evidence was important given the central allegation that [Mr I] is the applicant’s brother. After several times responding vaguely the applicant eventually stated it is clear, he and [Mr I] are brothers with the same father but different mothers.
c.The Tribunal asked the applicant to confirm that he and [Mr I] are brothers and he replied yes but with different mothers.
d.[Mr I]’s full name is [Mr I, full name] and the applicant refers to him [by his second given name]. He is close to [age], much older than the applicant. The applicant is [age] years old.
e.The applicant cannot remember where he was born because he migrated to Pakistan when he was very young, at the age of [age] or [age]. The Tribunal asked him if he could recall the province he was born in and he stated that his parents are from Ghor so he must have been born in Ghor.
f.The Tribunal asked the applicant whether [Mr J] is his father and he responded yes. His mother, [Ms D], passed away about 25 years ago.
g.He does not know about his brother [Mr I]’s mother. His father was married to both women at different times. [Mr I]’s mother was never in Pakistan. The applicant’s mother died in Pakistan.
h.The applicant and his mother and full siblings lived separately from the applicant’s father and the applicant’s half-siblings in Pakistan. Everything was separate. The applicant’s father lived with ‘the other family’. The applicant does not know who was in the other family because they kept themselves completely separate from the applicant’s household.
i.The applicant lived with his mother, older brother [Mr E], sister [Ms F], and younger brother [Mr G].
j.[Mr E] is now in Pakistan. He tried to come to Australia from [Country 2] but it did not happen so he returned to Pakistan.
k.After his mother died [Mr E] looked after the family. Their father would occasionally visit.
l.At birth the applicant was given the name [Given names 1]. He does not know why his half-brother [Mr I] called him ‘[Alias 2]’ in the 2007 visa application. The applicant was not aware of what they were doing at the time.
m.The applicant has two full brothers and one full sister. He does not know how many half-brothers and half-sisters he has.
n.His father’s name is [Mr C].
o.The applicant does not know why his father is known as [Mr J]. His father has left a bitter taste in the applicant’s life. The applicant has nothing to do with him and does not like to see his face. What kind of father does not come hold his son’s hand or ask if he needs food or clothes. The applicant does not like his father. He does not live with his father.
p.[Mr I]’s wife is named [Ms S] but the applicant calls her ‘the mother of [T]’. He calls [Mr I] ‘the father of [T]’. [T] is their child. He is not the same [Mr A] who the applicant knew in Australia.
q.The applicant’s Taskera was issued in Kabul in 2015. The applicant obtained it by telephoning a person, [Mr Q]. The applicant told [Mr Q] his name, father’s name, grandfather’s name and village name. The applicant remembers that his village was [Village 1]. He located [Mr Q] because in Sydney he associates with tribespersons and they say there is a person in Kabul who can do these things for you.
r.The applicant will ask his father if he has a Taskera. He will also try to confirm whether or not the father’s registration details in his sister [Ms F]’s Taskera are correct. He will ask [Mr I] to attend a further resumed hearing with the Tribunal. He will ask his brother, [Mr E], in Pakistan if he can locate any identity documents for the applicant there. He will contact the Afghan Embassy in Canberra to try to obtain another Taskera.
Further Written Submissions
On 31 March 2021 the applicant provided the following written information to the Tribunal:
-A copy of the applicant’s father’s Afghan Taskera in the name ‘[Mr J]’, with an English translation.
-A Statutory Declaration from [Mr I], dated 4 March 2021
In the Statutory Declaration [Mr I] states the following:
I am the brother of [the applicant]. We have the same father and different mothers. My father married my mother [Ms K] and had 8 children, 7 brothers and one sister. My father married a second wife, also called [Ms D] and had 4 children, three brothers and one sister. The two families lived in the same area in Ghor and we knew about each other but we did not mix our lives together. We all had our own lives. My father had a shop in [Village 2] in Ghor and from that shop he supported the two families. My father basically lived with us and after [the applicant]'s mother died when he was a young boy of about [age] years of age, he lived all the time with us. He did support the other children but had nothing to do with them.
I have been in Australia since 2000 when I arrived to seek asylum. I was given a permanent protection visa in 2004 and I became a citizen of Australia in 2007.
…
When I got my permanent visa the first thing I wanted to do was sponsor my family in 2004. They arrived in 2005 after receiving their visas in Iran at the Australian Embassy. In 2007 I decided to sponsor my half-brother [the applicant] and my full sister [Ms H]. I wanted to help my half-brother [the applicant] as no one was in Australia from his part of the family. I called him [Alias 2] after a brother who had died in about 2006 after we had moved to Pakistan in 2000. In my first application I did not include the half brothers as I was not asked this question so I could not try to bring him as a brother. I put the birth date of [Date 2] as I guessed how old he was approximately. This application was rejected.
In 2010 my father, [Mr J], arrived by boat to claim asylum. My father was one year plus in the detention centre in Christmas Island, then Darwin until being brought to Adelaide for major [surgery] in 2012. I do not have his papers with me to be sure of the date. I applied for him to live with me in community detention in my house and he has been there ever since. I believe my father did not include me in his first application and when I went to Adelaide at the time of his surgery, I spoke to immigration about him being my father. I cannot remember what I did in Adelaide although I remember having an argument at the hospital about whether he was my father or not.
I believe that the department of immigration has a copy of the attested tazkera of my father which is in the name of [Mr J]. This tazkera dates from when he was in the army in Afghanistan and it is the original booklet. After he finished the two years conscription, he received a letter from the government which I believe I forwarded to the department of immigration. I should have the original at home and I am trying to find it. This tazkera is genuine and was obtained back in the time when booklet tazkeras were always considered genuine. The name of my father's father is [Mr U] and his father is [Mr V] and his father is [Mr W] and his father is [Mr X].
My full sister [Ms H] is married and lives in Pakistan with her husband.
I got in touch with my younger brother [the applicant] when he was released from detention and he phoned me. l did not know he was here before that. I went to meet him and I brought him to my house where he stayed for two or three months. I found him a job in [Suburb 2 workplace] and then he found his own place to live. He kept his address as my address as it was more stable. … I swear that I am the brother of [the applicant] and that his name is and always has been [the applicant] to me.
Resumed Tribunal Hearing, 6 April 2021
The applicant and his brother [Mr I] gave oral evidence at the resumed hearing. Prior to the start of the Hearing the applicant submitted a further Statutory Declaration from himself containing the following:
My name is [the applicant] and I arrived in Australia [in] June 2010 and applied for a protection visa.
I have a half brother called [Mr I] who came to Australia in 2000 and is now a citizen of Australia.
The name of my father is [Mr J]. It is just [Mr J, short form] on his original tazkera. I always knew him as [Mr C].
The name of my mother is [Ms D]. She is the second wife of my father.
There are four children in my immediate family - three brothers and one sister. There are 8 children born from my father's first wife whose name was also [Ms K].
The eight half siblings are [Mr I] (Australian citizen); [Mr L]; [Mr M]; [Mr N]; [Mr O]; [Mr P]; [Ms H] and [Mr R] (deceased).
My three full siblings are [Mr E]; [Ms F] and [Mr G].
I phoned my half brother [Mr I] when I was released from detention. He did not know I was in Australia until then.
I stayed with my half brother for a few months and then got my own place to live. I often used his address as it was more stable because I was moving often.
My wife is called [Ms B] and she was born in Quetta, Pakistan.
My half brother [Mr I] included me in the humanitarian sponsorship under the name of [Alias 2]. This was the name of his deceased brother. He was trying to help me get out of Pakistan/Afghanistan and I had nothing to do with that application. This application was refused in 2007.
The information which was included in the humanitarian visa was the work of the proposer, my half brother, and I was included as a favour to me. The dates, places of residence and the identity document provided for me were not related to me. I did not provide this information and the information about my own life are accurate — name, date of birth etc.
I did not declare my half brother [Mr I] when I came to Australia. I was advised against mentioning him and this has led to many problems for our family.
The address of my half brother is [Address 1]. I have stayed there for a few months and I have used this address as a permanent address for mail. My father now lives with my half brother and I find my father difficult and do not see him often. [Mr I] has helped me get a job in the [Suburb 2 workplace] and though I do not work with him I see him often at work.
I have asked my half brother to come to the Tribunal with me as requested by the Member. He said he would try to but has done a statement in the meantime.
I have my father's genuine first tazkera which has been translated as the Member required.
The Member asked me about my sister [Ms F]. I have a half sister [Ms H] and a full sister [Ms F]. My full sister is married and travels a lot with her husband in neighbouring countries. Her husband is [an Occupation 1]. She is often not able to be contacted.
I have initiated the contact with the Afghan Embassy and started the process to get my tazkera affirmed as genuine.
I agreed to contact [Mr E] (again I have a half brother and full brother called [the same name]) about historical family documents. I have tried but my full brother has not produced any documents.
The name of my father on his tazkera is different than the name I knew him by. I do not know why he was known to me as [Mr C] but this was the reality.
The inclusion of me in the sponsorship by my half brother [Mr I] has been explained. He was trying to make my life more secure and as he had not included his half brothers in his first application, he could not include me under my name [the applicant] as his brother. So he gave me the name of his younger brother who was deceased: [Mr R].
I know this all seems very confusing but I am [the applicant]. The [Surname 1] I included when I arrived in Australia as we were told very strongly that we needed family names and we would be using a family name in this country, unlike Pakistan.
To cancel my visa would be a terrible outcome for me. Afghanistan is the only country where I have a right of entry and to return to Afghanistan is more dangerous than when I first arrived in Australia.
The details of my identity have remained the same since I have been dealing with the immigration department. The lack of disclosure of family members and the difficulties with my father who arrived after me, have made no material difference to my claims for protection. I remain a Hazara Shia who fled to Pakistan for protection and then came to Australia because permanent protection was not offered in Pakistan. I have always worked hard in Australia, supported people in Pakistan, tried to obey the rules of this country and am very grateful to have been given a chance to live here.
At the hearing the applicant provided the following oral information:
a.He has sent his Taskera to the Afghan Embassy for verification. The Tribunal discussed with the applicant the possibility of also obtaining a new Taskera through the Embassy and the applicant responded he will do so.
b.He always knew his father as ‘[Mr C]’ not [Mr J]. He always called his father ‘Baba’ [father]. The applicant had no contact with his father since he moved to Pakistan with his mother at the age of 4 or 5. His father did not come to see him in Pakistan. His mother told the applicant that his father’s name was [Mr C]. He does not know why she told him this. She died when he was about 10 years old.
c.He knew his father’s father to be called ‘[Mr U]’. He never met his grandfather.
d.He does not have contact with his father in Australia. When the applicant sees his father out in public he pretends he didn’t see him. The applicant does not want to see his father.
e.His sister [Ms F] and her husband travel to Afghanistan, Pakistan and [Country 1]. When they are deported from one of these countries they go to another.

At the hearing the [Mr I] provided the following oral information:
a.At birth he was given the name [Mr I, given names]. He adopted the surname ‘[Surname 2]’ in Australia.
b.He knew of his father’s other family but he had no contact with them in Pakistan. He never visited them. His father would just tell him that he would have to be responsible for them.
c.His father’s two wives, [Mr I]’s mother and [the applicant’s] mother, were in conflict so the families did not interact.
d.His father arrived in Australia without documents. [Mr I] obtained his father’s Taskera and Military Discharge Certificate from his brother [Mr N], when he visited Pakistan in 2012 or 2013.
e.His father’s photo was in the Taskera but it is now 50 years old and the photo has deteriorated to just a white fragment.
f.He has not witnessed his father contact the applicant in Australia. His father asks [Mr I] about the applicant and whether he has seen him at work each day.
g.[Mr I] does not know why the applicant would think their father’s name is [Mr C]. In Afghan culture a father is usually known publicly as ‘Father of [his eldest son]’, for example Father of Mohammad or Father of Ali.
h.His father might write a statement about his relationship with the applicant.
During the hearing the [Mr I] showed the Tribunal the original of his father’s Taskera and also submitted his father’s Afghan Military Discharge booklet for the Tribunal to sight.
Further Written Submissions
On 23 April 2021 the applicant’s newly appointed Agent provided the following written information to the Tribunal on behalf of the applicant:
-A written submission from the Agent outlining reasons the applicant’s visa should not be cancelled.
-Photographs of the applicant’s brother [Mr I] and their father [Mr J] in Australia.
-A photograph of the applicant with his wife and family members on his wedding day.
-A letter from the applicant’s father [Mr J], signed and dated 12 April 2021, in which he states that he is the father of the applicant, [the applicant]. The applicant is his second eldest son from his second wife, [Ms D], who is deceased. The applicant knows him as ‘[Mr C]’ as this was the name he was called by in Afghanistan.
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.
A 2019 Canadian IRB Research Response describes the following in relation to Tazkiras and obtaining Tazkiras:
Sources indicate that tazkira are national identity cards. According to article 3(3) of the Law on Registration of Population Records, the tazkira "is an official document … distributed to citizens of the country pursuant to provisions of this law". …
Requirements and Procedures to Obtain Tazkira - Article 9(2) of the Law on Registration of Population Records provides that "Afghans [sic] citizens, inside and outside Afghanistan, shall be obligated to record their identity with offices of registration of population records and acquire national identity cards pursuant to the provisions of this law" (Afghanistan 2014). Articles 4 and 5 of the Law on Registration of Population Records provide the following:
Implementing Authority
Article Four: Ministry of Interior Affairs is implementing authority of registration of population records in the country and shall be responsible for the implementation of the provisions of this law. For the realization of the objectives set forth in this law, office of registration of population records and evaluation of foreigners identity affairs within the Ministry of Interior Affairs shall operate in the center, provinces, districts, border ports and airports.
Registration Authorities
Article Five: Offices of registration of population records shall be as follows:
Central Office of Registration of Population Records and Evaluation of Foreigners Identity Affairs.
Office of Registration of Population Records in the provinces, districts, municipality districts, border ports and airports.
Mobile team of Registration of Population Records.
Political or consular missions of Afghanistan abroad the country [sic].
According to a February 2018 article by AAN, article 4 of the Law on Registration of Population Records was modified to include the creation of a new government agency, the Afghanistan Central Civil Registration Authority (ACCRA). According to the US Department of State's Reciprocity Schedule for Afghanistan, tazkira are issued by ACCRA, which is part of the Ministry of Interior (MOI)'s Population Registration Department (PRD). The following requirements and procedures for Afghan nationals to obtain an e-tazkira in Afghanistan are provided on the ACCRA website:
Identity Verification:
Submit filled form [Family or Individual] along with supporting documents listed in family and individual forms to nearest enrollment center for verification[.]
Receive appointment for eTazkera enrollment[.]
eTazkera Enrollment:
Visit the enrollment center as per the appointment. Head of family along with available family members should be present for family enrollment.
Visit individual enrollment desk for demographic and biometric registration.
Pay eTazkera Card Fee ….
Receive appointment for eTazkera Card Collection.
eTazkera Distribution:
Visit distribution center as per the appointment[.]
Submit receipt of eTazkera form[.]
Complete the one to one verification of the eTazkera Card[.]
Receive activated eTazkera Card[.]
The following information regarding requirements and procedures for local Afghan nationals to obtain paper tazkira "as a whole family" and "[i]ndividually" (for "those who are above 18 years and have not gotten Tazkera yet"), is provided on the ACCRA website:
The presence of the individual applicant is mandatory and, for family applications, the presence of children aged 7 years old and above is mandatory;
Forms are available on the ACCRA website, as well as at "the reception department of ACCRA";
The completed form must be submitted "to the nearest ACCRA reception department in the province" in which the applicant lives;
The application form and "[s]ix passport size photos" must be submitted along with a "relative['s] (father, brother, uncle or cousin) original Tazkera or its copy … to the relevant department where [the applicant's or applicants'] family row and series is found and written" in the form;
When they are ready, the tazkera is to be retrieved from the ACCRA.
Other sources similarly report that applicants must provide the following documents to obtain a paper tazkira:
A [completed] application form;
Passport-sized photos;
A copy of the tazkira of a male relative or the applicant's father's tazkira or, if not available, the tazkira of a relative on the father's side "such as the father's sibling or aunt/uncle".
…
Applying from Abroad
In correspondence with the Research Directorate, a representative of the Consular Section of the Embassy of Afghanistan in Ottawa stated that since a "few years", it is possible for Afghans living outside Afghanistan to apply for tazkira at Afghan embassies or consular sections "in the country where they are living". On their website, the Embassy of Afghanistan in Ottawa states that it accepts applications for tazkira, "only" for Afghan citizens residing in Canada and that the tazkira will be issued in Kabul "in [the] absence of the applicant[t]". The same source provides the following list of requirements to apply for a tazkira:
Applicants should be present at the Consular Section of the Embassy for [fingerprinting].
Fill out the application form [available on their website in English, French, Dari and Pashto].
Two photos of 2 X 2 inches [50.8 mm x 50.8 mm][.]
Copy of a relative’s Tazkira (i.e. Tazkira of father, brother, uncle or a relative from [the applicant's] father['s] side [of the family])[.]
Photocopy of document verifying [the applicant's] legal status in Canada, such as passport, PR [permanent resident] card, etc.
Documents verifying [the applicant's] current address, such as [a] driv[er's] license, utility bills or similar documents.
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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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?
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 [Village 1] in Ghor Province in Afghanistan in [Year 1] with the given name ‘[Given names 1]’ and that he is Shia Hazara. Upon arrival to Australia he adopted the surname [Surname 1].
The Tribunal accepts that the applicant is Shia Hazara. The applicant relied upon a Hazaraghi interpreter and was knowledgeable about Shia beliefs and commemorations.
In support of his identity the applicant has submitted an Afghan Taskera, purportedly issued in 2015, as well as the Taskera and military discharge paper of his father, [Mr J].
The applicant’s statements that he is [the applicant] are contradicted by the information in the 2007 GSH visa application sponsored by the applicant’s brother [Mr I]. In this application he is referred to as ‘[Alias 2]’ a full brother of the sponsor. Included in the application is a Taskera issued in 2006 in the name ‘[Alias 2]’, showing the applicant’s photograph.
According to available country information a person has to present personally, either at the relevant government office in Afghanistan or, if abroad, to the Afghan Embassy in order to apply for a Taskera. The applicant presented evidence that he obtained his 2015 Taskera without doing this by simply giving some basic details to a person in Kabul to obtain a Taskera on his behalf. Given the country information that this is not officially possible, and that the Taskera contains discrepancies and omissions, the Tribunal considers the applicant’s Taskera issued in 2015, is unreliable for establishing the applicant’s actual identity. For the same reasons, as well as on the basis of the evidence of widespread document fraud in Pakistan, the Tribunal finds that the Taskera issued in 2006 in the name ‘[Alias 2]’ is unreliable.
In relation to the Taskera and military discharge paper of his father, [Mr J], the Tribunal sighted the originals of both these documents at its final hearing and notes that there was nothing apparent about them to indicate the documents were not genuine. They were clearly very dated and not in good condition due to the passage of many years. The details in the documents also accord with the information previously provided by the applicant’s father and brother. On this basis the Tribunal accepts that the documents are genuine and official, issued by the government of Afghanistan to the applicant’s father.
The applicant has admitted to the Tribunal that he is the half-brother of [Mr I] and that their father, [Mr J], is also in Australia. He stated that he and [Mr I] have different mothers because his father had two wives and two families. The applicant’s mother passed away a long time ago but his two brothers [Mr E] and [Mr G], and one sister, [Ms F], are in Pakistan. Out of a sense of familial responsibility to the applicant as his half-brother, [Mr I] unsuccessfully attempted to include the applicant under the name of one of [Mr I]’s full brothers, who was deceased, in a visa application with [Mr I]’s full sister, [Ms H].
[Mr I] provided written and oral evidence in support of the applicant’s claim they are half-brothers. The Tribunal found his evidence clear, and coherent, and fitting the unusual facts of the applicant’s circumstances. It also appears that the Department has acknowledged that he is the son of [Mr J]. All the evidence, including the 2007 GSH application, supports that there is a strong family relationship between [Mr I] and the applicant, and that it is likely a sibling relationship.
The applicant has also submitted a signed letter from his father, [Mr J], acknowledging that the applicant is his son.
The Tribunal finds it odd that the applicant knows his father by a different name ‘[Mr C]’. He was unable to explain why this was so, stating that he based his knowledge on information from his mother. The Tribunal accepts that the applicant and his family were largely estranged from his father from when the applicant was very young, [age ]or [age] years old, and that his mother died when he was only [age] years old. The Tribunal also accepts that the applicant would largely think of and refer to his father as ‘Baba’. Given the lack of contact and interaction between the applicant and his father from a very young age the Tribunal accepts the applicant had little need to use or know his father’s name. In his letter the applicant’s father also explains that he was commonly known as ‘[Mr C]’ in Afghanistan. On the basis of the evidence before it the Tribunal accepts the plausibility of the applicant’s claims he considered the name of his father, [Mr J], to be [Mr C].
Given the applicant’s admission, the evidence of a close familial connection between the applicant and [Mr I], and the highly plausible explanations finally provided to the Tribunal, it is accepted that the applicant and [Mr I] are half-brothers and the sons of [Mr J], who is also present in Australia.
The applicant stated he has one full sister, [Ms F], and two full brothers [Mr E] and [Mr G], and that these three siblings are living in Pakistan. He stated that his sister [Ms F], is not the person named as ‘[Ms H]’ in the 2007 visa application sponsored by the applicant’s brother [Mr I]. The Tribunal has sighted photographs of ‘[Ms H]’, in the 2007 GSH visa application and of ‘[Ms F]’, in the 2013 Partner visa application sponsored by the applicant. The photographs show two people of very different appearance. Therefore the Tribunal accepts that they are two different people.
The applicant has consistently maintained, in his oral and documentary evidence, that he was born in [Village 1] in Ghor province in [Year 1]. This information also accords with his brother’s information. The Tribunal is satisfied that the applicant was born in [Village 1] in Ghor province Afghanistan in or about [Year 1].
From the above findings the Tribunal is satisfied that the applicant is Shia Hazara, a citizen of Afghanistan, born in [Village 1] in Ghor province in or about [Year 1], and given the name [Given names 1] at birth. The Tribunal accepts that it was not customary to have or use a surname in Afghanistan or Pakistan. The Tribunal accepts the applicant adopted a surname ‘[Surname 1]’ upon arrival to Australia as matter of convenience as it is expected in Australian society. There is no evidence he did so with any fraudulent intention. The Tribunal accepts that the applicant is the half-brother of a person known as [Mr I], now an Australian citizen. The Tribunal accepts the applicant is the son of [Mr J] and that his mother [Ms D], is deceased. The Tribunal accepts the applicant has three full siblings [Mr E], [Mr G], and [Ms F] and a number of half-siblings, including [Mr I], through his father’s marriage to another woman.
In view of the above finding the Tribunal is satisfied as to the applicant’s identity, in terms of his name, ethnicity, place of birth, nationality, and family composition.
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 1450

23 April 2021

Key Legal Topics

Areas of Law

Immigration

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