1917299 (Migration)

[2021] AATA 1800

1917299 (Migration) [2021] AATA 1800 (22 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1917299

MEMBER:Jane Marquard

DATE:22 March 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 22 March 2021 at 11:09am

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 – applicant provided inconsistent and contradictory information – family composition – identity documents – inconsistent use of family names – cancellation power does not arise – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 116, 119
Migration Regulations 1994, Schedule 8, Condition 8202

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

BACKGROUND TO THIS APPLICATION FOR REVIEW

1. The applicant is a national of Afghanistan. He arrived in Australia [in] June 2012 as an Irregular Maritime Arrival (IMA).

2. He was granted a protection visa on 12 December 2012, which ceased on 27 September 2017. He was granted a Resident Return (BB 155) visa on 27 September 2017.

3. In his protection visa application, it was claimed that he had left Afghanistan and fled to Pakistan, where he was living prior to arrival in Australia.

4. On 25 June 2019 a delegate of the Minister for Home Affairs decided to cancel the Resident Return visa under s.116 of the Migration Act 1958 Cth (the Act) on the basis that the delegate was not satisfied as to the applicant’s identity.

5. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal). The key issues are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

   CANCELLATION BY THE DEPARTMENT

   Notice of Intention to Consider Cancellation dated 7 June 2019

6. On 7 June 2019 the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 155 visa, under s.116(1AA) of the Act.

7. The particulars of the grounds for cancellation and information indicating the grounds for cancellation were listed as set out in the following paragraphs.

   Entry interview 11 June 2012

8. The NOICC stated that the applicant attended an entry interview with the Department on 11 June 2012 after arriving in Australia [in] June 2012.

9. In the interview, the applicant claimed that he had been residing in Pakistan since 2002 and was in possession of his identity document, a taskera.

10. He declared his mother’s name as ‘[Mother A]’.

11. He declared that he did not know anyone in Australia, besides a claimed friend named [Friend A].

    Application forms 866B and 866C dated 20 August 2012

12. In his application forms he declared that he had not previously applied for refugee status or a protection visa from the Department (Question 2).

13. He said that he had not previously made any other type of application to the Department (Question 3).

14. He said that he had no close relatives in Australia (Question 12).

15. He said that he had close relatives not in Australia – his mother, father, [and specified siblings] (Question 13).

16. He declared that he had not been known by other names, such as name before marriage, previous married name or alias. If his name had been changed, he was asked to explain why (Question 4).

17. He said that he left his home country [in] January 2002 (Question 50).

18. He said that he had attended [a named] School in [a named town in] Quetta, Pakistan [between specified years]

    Application for Australian citizenship dated 3 February 2017

19. In his application form for Australian citizenship (1200t) form on 3 February 2017, the name and date of birth provided were the same as those in his application forms.

20. He declared that he had not been known by other names (Question 3).

21. He said that he had not had a different name of birth to that shown at Question 6 (Question 7).

22. He was asked if he had children not included in the application. He said that he had a son, [Son A], born [date].

23. He declared that both his parents were deceased.

24. He did not declare his sister, [Sister A variant].

25. He provided a health care card, NSW driver’s licence, Queensland driver’s licence, [company] debit card and a titre de voyage (issued [in] 2014, date of birth [DOB 1]). All were in the name of [applicant’s name].

    Application for a Global Special Humanitarian visa dated 2 March 2011

26. In the course of conducting Forensic Biometric checks, the Department found that the applicant had previously lodged an application for a Global Special Humanitarian (GSH) (Subclass 202) visa under the name [Applicant Alias A], born [DOB 2].

27. A Facial Image Comparison was undertaken comparing the photographs provided in the protection visa application and the application for the Global Special Humanitarian visa and it was found that the images represented the same person.

28. The Department concluded that he had applied for a visa previously under the name [Applicant Alias A], which had not been declared in his application for a protection visa or in any subsequent interactions with the Department.

29. The primary applicant for this visa was [Stepmother A] ([DOB specified]) declared to be his stepmother.

30. In the forms it was recorded that his mother, [named], was killed during the Russian war.

31. It was declared in the forms that his father, [Mr A], born [DOB specified], was in Australia. His father proposed the application.

32. It was declared that his family consisted of his father, stepmother, [and different specified siblings], residing in Pakistan. His sister, [Sister B], was listed as missing.

33. He claimed in the Form 80 on 22 February 2011 that he left Afghanistan for Pakistan in approximately 2009/2010.

34. The application was refused on 15 October 2013.

    Conclusions by the Department as to the applicant’s identity

35. The Department noted that information before it indicated that the applicant shared an address with [Applicant Alias A].

36. The Department concluded that the applicant had provided inconsistent and contradictory information regarding his identity. The Department stated that:

    The inconsistent and contradictory information provided to the Department over the course of your application history in relation to your name of birth, date of birth, family composition and residential history as well as the lack of identity documentation issued prior to your arrival in Australia casts significant doubt on your identity. Based on all the information before me, it appears there is a ground under s116(1AA) of the Migration Act to consider cancelling your Resident Return visa as I am not satisfied as to your identity.

    Response to the NOICC by the applicant

37. On 7 June 2019 the applicant’s then migration agent, [named], responded to the NOICC, providing a number of documents, listed below.

    Statutory Declaration by the applicant’s uncle, [Mr A], dated 7 June 2019

38. [Mr A] stated that the applicant is the son of his brother, [Mr B], and his wife [Ms B].

39. He said that when he applied for the Offshore Humanitarian (Split Family) visa on 2 March 2011 for his family, he included the applicant in the list of his children’s names. He stated that his brother and wife also fled from Afghanistan to Pakistan, and he wanted to help their son come to Australia. [Mr A] stated that he regrets and apologises for providing inaccurate information.

40. He said that he believes that the applicant is about [age] years of age.

    Statutory Declaration by the applicant dated 10 June 2019

41. The applicant stated that it was his intention to provide further information to the authorities so that they could be certain of his identity. He stated that the details of his immediate family provided by him at the entry interview and recorded on his protection visa application form were correct.

42. He stated that his mother’s name is [Ms B] and he did not advise the Department at the entry interview that her name was [Mother A]. He stated that this may have been misheard or transcribed incorrectly.

43. He said that he should have provided a full list of relatives at his entry interview. He had thought it would be better for him not to mention his uncle in his list of family members as after many years of the Shi’a Hazara community being discriminated against by Pashtuns, there is a reluctance to be upfront with disclosing information. He apologised for the omission.

44. He stated that he has two relatives in Australia, a paternal uncle, [Mr A] (DOB: [specified]), and a cousin, [Cousin A] (DOB: [specified]).

45. He said that prior to his wedding he lived with [Cousin A] and his father [Mr A] for about a year.

46. In relation to his identity documents, he stated that he was issued his taskera ([number]) at the Jaghori Office of the Afghanistan Ministry of Interior Affairs. He travelled alone from Quetta to Jaghori, with a copy of his father’s taskera, to obtain the document. He does not know his exact date of birth but believes he was about [age] years old at the time. He hoped he would be assessed as older than his real age as he believed it was more convenient to be an adult rather than a teenager. The office assessed him to be about [older] years of age, and this is reflected on the taskera. The applicant stated that he regrets this discrepancy. The taskera identified him as being from [a village in] [Town 1 in], Jaghori in Ghazni Province and born in the Afghan calendar year of [year] (the period of [year range]).

47. The applicant stated that the taskera records his name as ‘[Taskera Name A]’. However, when he was issued his Afghan passport [in] 2008 by the Afghan Consulate, Quetta, his name was spelt ‘[Taskera Name A variant]’, and his father’s name was spelt ‘[Mr B variant]’. The passport indicates that he was born in [year], which matches his taskera. He disposed of the passport at the direction of the people smuggler but has retained a copy of the bio page.

48. The applicant stated that he did not provide his taskera or a copy of his passport to the Australian authorities due to the significant [number]-year discrepancy in his birth date. When he arrived [in Australia], he told the authorities that he did not know his date of birth and was allocated the date of birth [DOB 1]. He also shortened his name to ‘[applicant’s name]’ as he was told his full name was too long and difficult for people to say.

49. The applicant stated that he married his wife, [Wife A], [in] October 2015, and their son, [Son A], was born on [day]. Both his wife and son reside in Quetta and he wishes to bring them to Australia on a partner visa. His wife travelled to Kabul with her father, [Father-in-law name], to obtain a taskera for herself and her son. He stated that the new style of Afghan passport requires a family name to be chosen even though taskeras do not include family names. This process has been implemented in the last few years so that passports of Afghans are more in line with other passports. He did not want a family name on his son's passport so as to be consistent with his own name. However, as it is not possible to issue a machine-readable passport without a family name, his wife chose the name '[name]’ for their son, after her own father’s name.

50. In relation to the previous visa application for a Global Special Humanitarian visa, the applicant stated that his uncle, [Mr A], included him on the application as he wanted to bring the applicant to Australia with his children. The applicant stated that he was not advised by his uncle that he was described as his uncle’s child on the application, or that incorrect information was provided about him. He said while he thought his uncle was kind in trying to help him he did not believe it would come to fruition as his uncle had many children. He said that he had no recollection of signing a Form 80. 

51. The following documents were provided to the Tribunal:

    ·     Copy of an untranslated taskera belonging to the applicant (document [number]).

    ·     Photograph of an untranslated taskera purportedly belonging to the applicant’s father, [Mr B variant].

    ·     Copy of the applicant’s Afghan passport issued [in] 2008 under the name [Taskera Name A variant], born in [earlier year].

    ·     Copy of an Afghan passport belonging to [Wife A] (DOB: [specified]).

    ·     Copy and translation of a taskera belonging to [Wife A], daughter of [name].

    ·     Copy of an Afghan passport belonging to [Brother A] (DOB: [specified]).

    ·     Copy and translation of a taskera belonging to [Brother A]. This was issued [in] 2018 and indicates that he is the son of [Mr B variant].

    ·     Copy of an Afghan passport belonging to [Son A variant] (DOB: [specified]).

    ·     Copy and translation of a taskera belonging to [Son A variant]. This was issued [in] 2018 and indicates that he is the son of [Taskera Name A variant].

    Decision by the Department to cancel the visa on 25 June 2019

52. On 25 June 2019 the Department cancelled the applicant’s visa under s.116(1AA) of the Act. The delegate found that he had provided inconsistent and contradictory information over a sustained period of time. This included not declaring a previous visa application, and inconsistencies with regard to his name, age, residential history and family composition. The delegate also noted that he did not provide the Department with identity documents issued prior to his arrival.

53. The delegate noted that he claimed that information in his protection visa was correct but that he acknowledged not providing details of his Australian family members. The delegate found that the applicant was intentionally trying to withhold important identity information from the Department. This was based on the fact that the applicant acknowledges that he did not declare his Australian based family members in his entry interview and protection visa application, and did not declare his previous visa application to the Department, which was lodged under a different identity.

54. In addition, the delegate did not give the taskera any weight as evidence of his true identity, as the document was untranslated and unverified, and because the applicant claims to be several years younger than recorded on the taskera.

55. In addition, the delegate did not give any weight to the applicant’s Afghan passport as the applicant claims that the biodata details on the passport are incorrect, and country information indicates that documentation issued by the Consulate of the Islamic Republic of Afghanistan, Quetta, is known to be unreliable.

56. The applicant claimed that he dropped the name ‘[one name]’ from his name after arrival in Australia. However details of the name change were not included in his application for a protection visa or for citizenship. He only admitted to the name change after information was put to him by the Department. The delegate considered that this was further evidence of him intentionally providing misleading information to the Department.

57. The delegate noted that his son’s family name was recorded as ‘[Father-in-law name variant]’ after his maternal grandfather. However, he did not provide an explanation as to why he declared his son’s family name as ‘[family name]’ in the application for Australian citizenship.

58. The delegate did not accept that the identity documents for his spouse and child were evidence of his true identity.

59. The delegate accepted that a translation error may have been responsible for his mother’s name being recorded as ‘[Mother A]’.

60. The delegate concluded that given the contradictory and inconsistent information provided, he was still not satisfied as to his identity, including his name, date of birth or family composition.

61. The delegate then considered whether the visa should be cancelled, noting that the applicant had not addressed this issue in his response. The delegate noted that as his identity was unknown, it was not clear whether he would have met the requirements for a protection visa. The delegate noted that he wished to bring his family to Australia and had been residing in Australia for seven years. It was also noted that he had a cousin and uncle in Australia and would have formed community networks such that cancellation would cause financial and emotional hardship. The delegate took into consideration against cancelling the visa the fact that he may be subject to indefinite detention.

    Summary of evidence before the Tribunal

62. The applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments. The applicant was represented by his solicitor, [named], and his counsel, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. Evidence was taken from the applicant’s brother, [Brother B] in [Country 1] and his uncle, [Mr A] in Sydney. A number of attempts were made to contact the applicant’s siblings [Brother C] and [Sister A] in Afghanistan by telephone, but these were unsuccessful. The applicant told the Tribunal that it is often difficult to get through by telephone to this part of Afghanistan.

63. The applicant also provided detailed written submissions to the Tribunal.

64. A summary of the evidence provided in the written submissions and at the hearing is set out below.

    Statutory Declaration of applicant dated 15 February 2021

65. The applicant stated that he was born in [Town 1] in Jaghori district in the province of Ghazni. His wife, son and daughter live in Quetta. His son was born on [day] and his daughter on [date].

66. He confirmed that he has [number] siblings. [These include] his sister, [Sister A], who is about five years older than him. He has a [brother] called [Brother C]. His brother [Brother B] is one year younger and [another] brother called [Brother A].

67. In about 2002 his family travelled to Quetta in Pakistan, where they rented a house in Hazara Town. The house had one bedroom and a lounge which they shared and they had no furniture. His father worked as a labourer.

68. The applicant named a number of roads and buildings he could remember. He said that he attended a school which was 40 minutes’ walk from his home. He described the stalls on the way and the rickshaws. The school was funded by the Iranian government for Shi’a minorities. He went to elementary school for [number] years and then stopped, as he did not like school.

69. He said that his sister, [Sister A], married [Mr C] about a year after they arrived, and they continued to live in the family house. The applicant worked with [Mr C] selling vegetables in a market called [name]. They worked every day except for Friday, taking the bus early in the morning for one hour. His brothers [Brother C] and [Brother B] continued to attend school for few more years.

70. He referred to his June 2019 Statutory Declaration in which he said that he travelled from Quetta to Jaghori to obtain a taskera. He provided further information about this. He said he was [age range] and it was about 2008. His father encouraged him to make the journey. His father had been having discussions with him about leaving Pakistan to make a better life. He needed a passport so it was necessary for him to return to Jaghori to obtain his taskera, even though it was dangerous. He said that there were cars which drove from Hazara Town to Afghanistan. His father told a driver to take him to the border, which took about three to four hours. The driver said after that he should take a taxi to Khandahar and then a taxi to Jaghori. At the border was a gate for refugees wanting to enter Afghanistan, and he entered through that gate. There were many taxis and he went to a hotel called [name] in Khandahar.  He then got a taxi to Jaghori after eating a meal. It took five hours and the taxi did not stop. He had been warned that the road was dangerous and the Taliban sometimes attacked vehicles. He arrived in Jaghori at night and stayed in a small motel, paying for his meal so that he could sleep on the floor with other guests.  The next morning he met two people who knew his father from the village of [Town 1] in Afghanistan. These were old people and they offered to be witnesses so he could get his taskera. The officer at the government building knew his village and caste, and said he knew his father and that he looked similar to his father. He used himself as a witness as he already knew his father.

1. He said that after he got his taskera he returned to Quetta in the same way.

2. The applicant said that in his June 2019 Statutory Declaration he referred to his paternal uncle [Mr A] and he provided further information. He said that his father had [number] brothers, one of whom died before the applicant was born. [Another] brother arrived in Quetta after the applicant’s family. They lived in a house about five minutes away, which he sometimes visited. The applicant said that his uncle left Quetta in 2009. The applicant was aware that if he got to a safe country there was a plan for the applicant to follow. His father told him this but he did not speak to his uncle about it. He did not know that his uncle was going to Australia.

3. He said that when he arrived in Australia in June 2012 he did not know that his uncle was in Australia. He became aware after he got his protection visa and was living in [Suburb 1]. A caseworker told him there was a large Afghan community in [a nearby suburb]. This made him think about his uncle so he telephoned his father to ask him where his uncle was and his father said he was in Australia but did not have a telephone number. The applicant called his uncle’s family in Quetta and got his telephone number. He then called his uncle about a month after he was out of detention.

4. He said that his June 2019 Statutory Declaration makes it sound as if he knew that his uncle was in Australia when he arrived, but this is incorrect. He said that he only had five days to respond to the NOICC and his then solicitor could not speak Hazaragi and they had to communicate in English.

5. The applicant said that he had no knowledge of how there was a photograph of him in the Global Special Humanitarian visa application.

6. He said that he did not sign and date a completed Form 80 on 22 February 2011 as part of the Global Special Humanitarian visa application. He has seen the Form 80 and confirmed that the signature on the form was not his signature in 2011. He said that at the time he did not understand English.

7. He said that when he arrived in Australia in June 2012 he did not know that he had been added to the Global Special Humanitarian visa application.

8. He said that in June 2014 his mother called him to tell him that his father had died, after [an accident]. [In] July 2014 he travelled to Pakistan to be in Quetta for the funeral. He arrived in Quetta in the evening but his father had been buried earlier that day.

9. He said that his mother died 10 months’ later after an illness. When he had stayed with her in July 2014 she had been coughing a lot. After that he called home regularly. He called in May 2015 and was told his mother had passed away.

10. He said that after his parents died, [Sister A] and her children and [Brother C] returned from Pakistan to Afghanistan. They live together in Herat. He speaks with [Sister A] a few times a year. He rarely speaks to his brothers as it is expensive, and signals are poor. Before he left Quetta, [Brother B] had left Pakistan for Iran. He heard in 2016 that he was in [Country 1].  [Brother A] lives in Quetta with the applicant’s wife and children. He rarely speaks to [Brother A].

11. The applicant speaks regularly to his wife. His wife said that [Brother A] does not work as it is too dangerous for Hazaras from Afghanistan.

12. He said that for many years he has transferred money to his family members in Afghanistan and Pakistan. He provided copies of customer statements evidencing transfers. He said that the transfers in the name of ‘[name]’ are transfers to a man in Afghanistan who gives the money to his sister, [Sister A].

13. He said that he went to the Afghanistan Embassy in Canberra as his previous lawyer asked him to verify his taskera. He had a copy of his taskera with him but he did not have the original. Embassy officials looked at him and the photograph. The embassy official told him that he had done his research. He explained how he had the taskera and why his age was listed as older than he is. He said that the officials were satisfied. He provided a copy of a letter dated [in] November 2019 from the Embassy of Afghanistan.

14. He said that he also travelled to Pakistan in 2018 to visit his wife and son.

15. In Australia he went to [a named] High School and learnt English. He went to TAFE and enrolled in Adult Tertiary Preparation. He left and worked in a [business] where he stayed for one and a half years. He is now [an occupation 1]. He has worked as [an occupation 1] for four years and has been paying taxes. He provided copies of his tax assessments.

16. He said that he is part of the Afghanistan Community and attends festivals and social meetings. He has an uncle and cousin in Australia. He does volunteer work for the [local] library, [in specified duties].

    Statement of [Mr A] dated 12 January 2021

17. [Mr A] said that he is the uncle of the applicant. He said that his brother, the applicant’s father, was 10 years older than him, and he refers to him as ‘[title]’.

18. He said that when he lived in Afghanistan it was not customary to have a family name or surname. When he travelled to Pakistan he chose the name ‘[family name]’, which is why he has a name that his brother does not have.

19. He said that he lived in [Town 1] in the same house as the applicant and his family. They had a big house with farms, tractors and cars and were from a wealthy family. They had a good life but left because of the Taliban.

20. He said that he later travelled to Quetta, but he cannot remember the year. His brother had travelled there a few years prior. He had kept in contact with him. They went to Quetta because he lived there. They rented a small house in an alley way off [street name], on the same street as his brother, a five-minute walk away and saw the children often. It was a basic house, made of dirt. He saw his brother every day and consulted with him. He was like a father to him and in their culture, there is great respect for elders. His brother helped him settle in but he only stayed three months. He left his family there but decided to go to Australia to apply for a protection visa. His brother asked him to get his son into Australia. He was the eldest son and in danger.  He did not speak to the applicant about this.

21. He said that when he arrived in Australia he was put into detention. He telephoned his brother once a week. He told his brother when he got his protection visa. He later sponsored his wife and children for the offshore humanitarian visa in February 2011. He listed the applicant as his child but did not tell his brother this.

22. He said that a few years ago, he called his family in Pakistan and everyone was crying. His brother had passed away in a work accident. Later he heard that the applicant’s mother had died from illness.

    Statement of [Sister A]

23. [Sister A] said that she is the sister of the applicant. She said that she cannot read and speaks Dari but not English.  She did not go to school as a child. She named her parents and siblings, and her uncle in Australia (the same names provided by the applicant).

24. She said that she was born in [Town 1] and they lived comfortably.

25. She said that she does not have a taskera or any other identity document. She would need to travel to Jaghori to obtain one and it would be dangerous. She said that she can live in [Town 1] without identity documents. She does not know her date of birth but knows she was the eldest.

26. She said that Hazaras were persecuted in the village. In about 2000 or 2001, her father decided they should leave to avoid the Taliban. She does not know the year. After they settled in Quetta, she was married in an arranged marriage. She was probably about [age range] years old. She did not have her period yet. Her husband’s name was [Mr C]. They lived with her family. She did not go to school or work. Her tasks were to look after the children, help her mother, wash clothes and cook food. She said that [the applicant] and [Mr C] sold vegetables to earn money. [The applicant] told her that on the way to the fruit and vegetable market, the Taliban attacked the bus and martyred the Hazaras on the bus, including [Mr C]. The applicant lived because he was sitting on top of the bus because there were no seats in the bus. She became a widow with [specified children].

27. She said that within a year after the attack, the applicant left Quetta but she did not know where he went. Later her father said that he was living in Australia.

28. She said that in 2014 her father died, and her mother died within a year. Not long after her mother’s death, in 2016, she, her [children] and [Brother C] returned to Afghanistan. They live together in Herat. [Brother C] is [an occupation 2]. She said that she continues to speak to the applicant, but not often.

29. She recalled living in Afghanistan with [Mr A] and his family. Later they joined them in Quetta. He left shortly thereafter but his wife and children remained. She is aware that he and one of his children live in Australia.

    Statement of [Brother B]

100.   [Brother B] said that Quetta is in Balochistan. He said that the ‘roads and paths that lead there are full of danger due to Islamic fundamentalists’.

101.   He said that he lives in [Country 1] and is very grateful to live in a just and fair society.

102.   He said ‘please find my brother! He is suffering from depression due to the fear and unrest resulting from the event. He has not seen his family in a very long time. He has been living there for a long time.’

103.   He said that the applicant’s paternal uncle and son live in Australia.

Statement of [Brother C]

104.   [Brother C] named the other family members (same names as provided by the applicant).

105.   He said that he once had a taskera but he has lost it. He would need to travel to Kabul to replace it but has not done so as he is able to live without it.

106.   He recalls travelling to Quetta when he was about [age] years old to avoid being persecuted by the Kuchi. At this time his brother, [Brother A], was not born. He lived in the house with family members and went to school until 2014. After that he worked in a restaurant. The applicant sold vegetables. Life was hard in Quetta. In about 2011 the applicant and [Sister A’s] husband were on a bus which was attacked by extremists and [Sister A’s] husband died. A year later the applicant left and later [Brother C] heard that he was in Australia.

107.   He said that after his parents’ deaths he and [Sister A] and her [children] returned to Herat in Afghanistan. He [works] at [a named school] and feeds [Sister A] and her children. He provided a photograph of him [working] at the school.

108.   He said that he rarely speaks to his brother as it is expensive. The applicant sometimes sends money.

109.   He said that he is willing to give evidence about the applicant’s identity.

Article in India Express, ‘Explained: Why the Hazaras have become regular targets in Pakistan’ dated 13 January 2021

110.   This article refers to 11 Hazara coalminers who were killed by Islamic State on 3 January 2021. The article referred to ‘frequent targeting’ by both Taliban and Islamic State militants of the Hazara people.

Statement of the applicant dated 18 August 2012 while in Leonora Immigration Detention Centre

111.   The applicant stated that he was then [age] years old and born in Jaghori. He said that all his siblings were in Pakistan except for [Brother B] who was in Iran.

112.   He said that his family left Afghanistan out of fear of attack from the Taliban and Kuchis in his region, as they were Hazara Shi’as. Their area was susceptible to Kuchi attack. In the spring, the Kuchis would go to their area and destroy their land.  They would let their livestock graze there, loot houses and kill local residents. His father feared that their family would be killed so they departed Afghanistan in 2002.

113.   He said that travelling on the roads in Afghanistan was extremely hazardous for Hazaras. He said that his father had been shot at by Kuchis.

114.   He said that in Pakistan the situation was as bad for Hazaras. In their home region, Hazaras continued to be gunned down. He sold fruit and vegetables in the market. In October 2011 while travelling they were stopped by a vehicle by people with their faces covered. They separated Pashtuns from Hazaras. They fired on the Hazaras. He was not killed because he was sitting amongst other Pashtuns. He told the police he suspected the driver was involved as he had been driving suspiciously. The driver overheard him and later threatened to kill him.

115.   He feared returning to Quetta and believed he would be harmed by extremists.

Tribunal hearing

Name/son’s name

116.   The applicant confirmed that he was known officially by the name [applicant’s name] in Afghanistan/Pakistan.

117.   He said that his name is spelt slightly differently on his passport from his father’s name as he obtained the passport from the consulate in Pakistan, where they used his father’s taskera and did not look carefully at the information.

118.   He said that he shortened his name by getting rid of his middle name ‘[one name]’, which is listed in his taskera, to make it easier to use in Australia. At the camp in the detention centre, he was told by others that it was easier for his identification if he had a shorter name. He was new and did not comprehend that his name should be exactly as set out in the taskera.

119.   The Tribunal put to the applicant that, as set out in the cancellation decision, in Question 4 of the protection visa application he was asked what other names he had been known by and if he had changed his name, to describe why, and he had responded ‘NA’. The Tribunal queried why he had not stated in his protection visa application that he had changed his name. The applicant told the Tribunal that he had included his name correctly as shortened, and did not see it as a change.

120.   The applicant confirmed that his name was written differently, with the surname ‘[name]’, on the application for a Global Special Humanitarian visa. He said that this application was made by his uncle, [Mr A], who was claiming that the applicant was his son so he added on [that name]. However, the applicant had no knowledge of this.

121.   He said that in Afghanistan they do not use family names and when applying for citizenship he wanted to give his son a family name, so he chose the name [family name] for his son because he liked it. When they applied for his family to migrate to Australia, they used the maternal grandfather’s name, ‘[name]’, as a family name for their son as this is written on his passport. They later agreed they would use [that name] because his grandfather accompanied him on a dangerous trip to Afghanistan and made sacrifices for him.

Parents and siblings

122.   The applicant confirmed that the names of his parents and siblings were listed incorrectly on the application for a Global Special Humanitarian visa by [Mr A] who at that time was claiming that the applicant was his son. The applicant had no knowledge of this.

123.   The applicant confirmed that he did not include the name of his sister [Sister A variant] on his citizenship application but that there ‘was no reason for this’. He said that ‘there was a thinking among my people that when a girl is married, then she is not part of the family’. He said that there was no particular reason for this omission. The rest of his family was not living in one family unit as his sister had migrated to Afghanistan after her husband was killed and her parents died. She had some land from her husband. His [Brother C] helped her. He said that she is stuck there and is not having a comfortable life because of the security situation on the roads and highways and the discrimination against Hazara.

124.   He was asked if he has kept in close touch with his siblings. He said that the terrorist groups are attacking telephones and roads so it makes it difficult to keep in contact with them. He said that [Sister A] is living in Herat and has [number] children. Her [children] attend a basic primary school where his [Brother C works]. [Brother C], who is unmarried, is his [brother] and he speaks to him irregularly as the time differences are difficult and each of them work. He has recently been speaking to him from time to time. [Brother B] fled to Iran and then to [Country 1] about a year after the applicant was put into a detention centre.  The security situation worsened in Pakistan and many Hazaras fled. [Brother B] has been granted a visa in [Country 1] and is very happy. He has learnt the language and is studying and has adopted the country as his home. [Brother A] is living with the applicant’s family. He is part of the applicant’s responsibility and the applicant provides for him. He is in a small enclave in Hazara Town and cannot leave there for study or work as it is dangerous. He plays sports and attends a gym to keep himself busy.

His taskera

125.   The applicant provided a translated copy of the taskera to the Tribunal.

126.   He said that he did not provide the taskera at the time of his protection visa application because he was concerned about reaction to the discrepancies in the age between the taskera and his application. The taskera recorded his age as much older than he was, so he did not submit it. He said that he was told by people in the detention centre that he would be sent back on the same boat if this was discovered, and he was very afraid of boats and the sea.

Passport

127.   The applicant said that he did not provide the passport as part of the visa application process for the same reason, as his age was recorded as older than he actually is, based on the taskera.

128.   He said that he was issued the passport in Pakistan by the Afghan Consulate. He presented his own taskera and his father’s taskera in order to be granted the passport. It was clear to the Consulate that they were migrants from Afghanistan. When he arrived in Australia, he did not bring the passport as he arrived illegally, and the people smuggler arranged the documents and told him that he should not bring his passport. He said that he did not know where he was going at that stage. The people smuggler told them that they would arrange fraudulent passports. He said that his passport is at home in Pakistan. His brother took a photograph of the pages and sent it to him.  

Arrival in Australia and responses to Department

129.   The applicant said that after he arrived in Australia he was placed in detention. He has good memories of his time in detention as for the first time in his life he was provided with service, went to school, was looked after, and was respected. He was in detention for about three months. When he was released into the community, he lived in [Suburb 1] with other ‘boys from the detention centre’. He attended school and learnt English ‘very well’. He was provided with an orientation about everyday life such as how to use trains.

130.   The applicant said that he did not disclose in his entry interview or protection visa application (Question 12), when asked about who he knew in Australia, that he had an uncle and cousin. He only said that he had a friend called [Friend A]. He said that when he was in Indonesia people were saying a lot of different things to him and he wanted to be safe. He said that he was not sure that his uncle was in Australia. He said that he was young and did not know how to answer questions. He also may have thought that he was only being asked about close family members as there are different words in his language for uncles. He said that if he knew things, he would have known how to answer questions.

131.   The Tribunal put to him that his uncle and family had moved to Quetta after his family had moved there and lived five minutes away from them so it is reasonable to assume that they would have had frequent contact. According to his evidence, in 2009 his uncle left Quetta for ‘somewhere safe’, and his wife and children remained behind in Quetta. The Tribunal put to him that it seems reasonable that he would know that his uncle was in Australia given their close connections. The applicant told the Tribunal that he did not know, or was not entirely sure, in June 2012, that his uncle was in Australia. He only became aware of this after he got his protection visa and left the detention centre. His uncle may have told his father that he was in Australia, but the applicant did not know this and he did not know where he was going when he left Quetta, and he was young and under stress. The Tribunal asked him if his family would have told him while he was in in detention or when he was released into the community. He said that usually he was telling them about Australia. They never mentioned this to him. He said that in his entry interview he was interviewed when just off the boat and did not have the presence of mind to say everything that he should have.

Remittances

132.   The applicant referred to his written submissions and said that he had sent money to a man nominated by his sister, as [Sister A] did not have a taskera and women do not have much freedom.  She did not want him to send the money to her brother, [Brother C]. The only people he provides money to in Afghanistan and Pakistan are his siblings, wife and children, [Brother A] and [Sister A].

Discretionary factors

133.   The applicant said that he came to Australia very young and he loves the country. It would create hardship for him and for his children if he had to leave Australia, as he is able to support them.

134.   He said that he feels well settled into the Australian community. He has adopted Australia as his own homeland. He is making every effort to work and to be safe. He is [an occupation 1] and has been getting regular work including with [prominent businesses]. He has many friends in the Australian community, including people in big companies. He has done some volunteer work as an interpreter. He has also contacted the NSW Rural Fire Service to join as he felt very sorry for people last year during the bushfires. He will be doing the registration in [a brigade] and in the meantime he does volunteer work interpreting for people in the community in [various agencies]. In Brisbane he has helped interpreting for asylum seekers.

135.   He thanked the Tribunal for the opportunity to be heard and said it was a very ‘human approach’. He said that it is the ‘first time I have attended a court and seen things like this. In most countries there is not this chance. I appreciate it’.

136.   The applicant was asked about the evidence of [Mr A] that he had returned to Pakistan and the applicant had signed the Global Special Humanitarian visa application. The applicant said that [Mr A] was elderly and may be confused. When his uncle returned to Pakistan, the applicant had already left. He never saw or signed the Global Special Humanitarian visa application.

Evidence of the applicant’s brother, [Brother B]

137.   [Brother B] was interviewed by telephone from [Country 1].

138.   He confirmed that the evidence he had provided in his statement dated 19 January 2021 was true. He said that [Sister A] is the eldest of the siblings, and he and the applicant are a year apart. He has kept in touch with his family irregularly. While he was in [two named countries] he did not have contact for some time. He said that he knows that his paternal uncle and cousin live in Australia, but he only learnt this after the applicant went to Australia.

139.   He said that he travelled to [Country 1] two years after his brother left Quetta as the security situation got worse.

140.   The Tribunal referred to the paragraphs in his translated statement which read ‘please find my brother! He is suffering from depression due to the fear and unrest resulting from the event…After having heard about the event the only thing I can do is implore you.’ Asked what he meant by this, he said that when he gave the statement he was referring to how difficult it was when they left Quetta, and when he re-established contact with his brother he was severely depressed. It may have been because of the fear he had of police. He said that he does not know why his statement reads ‘please find him’, and believes that it must be a mistake in translation. He only expressed concern about his depression and provided the statement to confirm his identity.

141.   Asked if there was any further evidence he wished to provide he thanked the Australian government for providing protection to his brother.  

Evidence of [Mr A] at hearing

142.   [Mr A] confirmed that the evidence provided in his Statutory Declaration dated 7 June 2019 and a more recent statement dated 12 January 2021 was true and accurate.

143.   He said that he is the brother of the applicant’s father. He said that the applicant [has a family relationship]. He listed the applicant as his son on his application for a Global Special Humanitarian visa, although he is the uncle, because his wife had breastfed the applicant, so they regarded him as a son in their culture. He said that he wanted to help the applicant come and live in Australia.

144.   [Mr A] said that the applicant was not involved in preparation of the papers for the Global Special Humanitarian visa. He has said that he did not provide a photograph or sign the documents. He said that he prepared the application himself with an agent. He had a photograph of him as well as his own children which he provided to the Department. His wife was insistent that the applicant be included as well as their own children. He was asked if there was any reason he did not include his [brother] in the application. He said that his [brother] was with his mother and father but the applicant was ‘kind of adopted’ by him.

145.   The Tribunal asked [Mr A] what he meant when he said that ‘later when (the applicant) came to Australia by boat at some point I advised Australian authorities he was missing’. He said that after he left Pakistan for Indonesia his whereabouts were not known. He said that people were stuck there for a long time. Asked when he found out that the applicant was in Australia, he said that he learnt it from the family in Pakistan after one or two months. He said that people who had been in detention told him that he was well and alive. He was asked when he first spoke to him or saw him and he said that it was three or four years ago, after he came out of detention and into the community. He hugged him tight and told him ‘Thank God you are alive and made it to safety’. He said that his wife was very thankful.

146.   [Mr A] left the Tribunal hearing room once he had finished giving evidence as he felt unwell. Later he returned and said that he had something to say. He said that he had returned to Pakistan from Australia and had taken the Global Special Humanitarian visa application with him, and the applicant signed it there. He said that at the time a wave of killing by Daesh happened and people were fleeing. He then said he sent the application to Pakistan for them to sign. He also went there himself 20 days later. He said that the security situation was very bad then.

147.   On 1 March 2021 [Mr A] provided a further statement in which he clarified that he had returned to Quetta from Australia, and it was the applicant’s father who had signed the Global Special Humanitarian visa application forms on behalf of the applicant.

Character reference from [Mr D], the President of [Community Organisation 1]  dated 1 March 2021

148.   [Mr D] said that [Community Organisation 1] is a not-for-profit organisation [established] to support asylum seeker and refugee youth settling in Australia. The organisation arranges English classes and provides various sporting and support services. [Mr D] said that he had known the applicant for six years and he was of good character, reliable and had assisted them with social and cultural efforts, which was much appreciated.

Submissions dated 15 March 2021

149.   In submissions to the Tribunal the representative provided a copy of the signature of the applicant from his protection visa application. The signature used on the Global Special Humanitarian visa application form did not, in her submission, resemble his signature as displayed in the protection visa application. She said that [Mr A], after the Tribunal hearing and with the benefit of time to consider the matter in more detail, was able to recollect that the applicant’s father signed the Global Special Humanitarian visa application on behalf of the applicant.

150.   It was also submitted that [Mr A] had given evidence that he was not aware that the applicant was in a detention centre in Australia until about two months after the applicant arrived in Australia. He learnt about this from other Hazaras and the applicant’s family in Pakistan, and not from the applicant. It was also submitted that [Brother B] did not know his uncle was in Australia but only learnt about this later. It was submitted that presumably the applicant’s father had not told the applicant about his uncle being in Australia prior to him leaving the country.

151.   Evidence was provided of the applicant’s notices of assessment to demonstrate that he had been in paid employment in Australia since 2013. It was submitted that he had settled into the Australian community well and speaks English competently. It was submitted that there is persecution of Hazaras in Quetta and life in Hazara Town is difficult. There is also the risk of persecution in Afghanistan.

FINDINGS AND REASONS

152. Under s.116 of the Act, the Minister may cancel a visa if 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), that the Minister may cancel a visa if not satisfied as to the visa holder’s identity. 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.

Non-Disclosure Certificate

153.   A preliminary issue for the Tribunal to consider was that the Department had placed a Certificate on the Department file pursuant to s.375A of the Act, certifying that certain folios in the file should not be disclosed by the Tribunal to the applicant. The reason given for this was that there was a public interest reason for non-disclosure, which was that it would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prevent the effectiveness of those methods. The Tribunal is satisfied that the Certificate was valid as it clearly specifies a public interest reason for non-disclosure and identifies the claimed harm to Department investigative measures if released. In light of this, the Tribunal did not provide a copy of the Certificate to the applicant, however it did disclose some of the contents of the folios the subject of non-disclosure to the applicant for reasons of natural justice, to be fair to the applicant. The investigative methods were not disclosed.

154.   The relevant folios disclosed to the applicant were an identity and biometrics report produced by the Department. The report noted that the applicant had been identified through photographs provided to the Department as part of the application process. The Report listed a number of inconsistencies between the Global Special Humanitarian visa application lodged by his uncle, the applicant’s protection visa application and his citizenship application. The Tribunal noted that these inconsistencies were referred to in the NOICC such that the applicant was already aware of them and had been provided with an opportunity to comment on them.

Validity of the NOICC

155.   The Tribunal is satisfied that the NOICC was valid. Pursuant to s.119, the NOICC informed the applicant that there appeared to be grounds for cancelling the visa and gave particulars of those grounds and of the information because of which the grounds appeared to exist. The NOICC also invited the applicant to show within a specified time that those grounds did not exist or why the visa should not be cancelled.

Does the ground for cancellation exist?

156. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

157.   The delegate was not satisfied as to the applicant’s identity because the applicant had provided ‘inconsistent and contradictory information regarding his identity’. In particular:

·That he had claimed in his entry interview that his mother’s name was ‘[Mother A]’ but claimed in his protection visa application and citizenship application that her name was ‘[Ms B]’.

·That he had claimed in his entry interview and protection visa application that he did not know anyone or have close relatives in Australia besides one friend, when in fact he has an uncle and cousin in Australia.

·That he had provided a different name in his protection visa application and citizenship application to the name provided in the Global Special Humanitarian visa application.

·That he had stated in his protection visa application that he had not applied for any prior visa, when he had in fact applied for a Global Special Humanitarian visa.

·That the date of birth provided in the Global Special Humanitarian visa application was different to the date of birth provided in his protection visa application and citizenship application.

·That the relatives declared in the Global Special Humanitarian visa application were different to the relatives declared in the protection visa application and citizenship application.

·That when asked in his protection visa application and his citizenship application if he had been known by other names or dates of birth he said he had not, when he had in fact changed his name slightly to make it easier in Australia and had provided a different date of birth in the Global Special Humanitarian visa application.

·That in his citizenship application he did not declare his sister [Sister A], whom he had declared in his protection visa application.

·That in his entry interview he claimed that he had a taskera, but it was not provided to the Department.

·That in the citizenship application he provided his son’s name which had a different family name to the applicant.

158.   The delegate did not accept the explanations provided by the applicant for these inconsistencies. The delegate concluded that given the contradictory information he could not be satisfied as to the applicant’s identity.

159.   Further arguments and submissions were put to this Tribunal as summarised earlier in this decision.

160. ‘Identity’ is not defined in the legislation. The Explanatory Memorandum for the Bill that introduced s.116(1AA) into the Act provides:

16.      This amendment provides the Minister with a discretion to cancel a visa if, for example, two or more documents or pieces of information about a person’s identity have been given, furnished or provided by, on behalf of, or in relation to the applicant or 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. Contradictory or inconsistent information or documents relating to a person’s identity will prevent the Minister from being satisfied as to a person’s true identity.  The Minister’s discretion to cancel a visa also applies where the Minister is not satisfed as to the visa holder’s identity for any other reason.

17. The purpose of subsection 116(1AA) of the Migration Act is to make clear the Government’s position that a person must always provide correct information about their identity at any stage before, during or after the visa application process. If there is doubt about the person’s identity, the Minister has the discretion to cancel the person’s visa.[1]

[1] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

161.   The ordinary meaning of the word ‘identity’ is ‘who a person is, or the qualities of a person or group that make them different from others’.[2]

[2] Cambridge Dictionary, IDENTITY | meaning in the Cambridge English Dictionary

162.   The Tribunal is satisfied that it is possible to form a conclusion regarding which documents and information are genuine as will be discussed further below.

163.   The Tribunal is satisfied as to the applicant’s true identity, in the sense of who the applicant is or the qualities that differentiate him from others. The Tribunal is satisfied that his identity is as follows - a man called [applicant’s name], of uncertain date of birth, who was born in [Town 1 in], Ghazni and is a Hazara of Shi’a religion. The Tribunal is satisfied that his parents’ names were [Mr B variant] and [Ms B], that he has an older sister named [Sister A], a [brother] called [Brother C], a [brother] called [Brother B] and a brother [number] years younger called [Brother A]. The Tribunal is satisfied that the family moved in about 2002 to 2003 to [an address in] Hazara Town, Quetta due to fear of the Kuchi and Taliban.  The Tribunal is satisfied that they worked as fruit and vegetable vendors. The Tribunal is satisfied that the applicant has a wife and two children in Quetta. The Tribunal is satisfied that he left Quetta because of an attack in October 2011 on a bus by the Taliban in which his brother-in-law was killed. The reasons for these findings are set out below.

The taskera

164.   The Tribunal is satisfied that the translated copy of the taskera provided to the Tribunal is genuinely the applicant’s taskera. The Tribunal is satisfied that the applicant travelled from Quetta to Jaghori in 2008 to obtain this taskera. The applicant provided extensive information about this dangerous journey with the kind of detail that is commensurate with telling the truth.

165.   The applicant has provided a reasonable explanation as to why this taskera was not provided to the Department with his protection visa application, which was that the date of birth recorded was incorrect, suggesting he was [older] years old in 2008, when he was actually about [age]. He said that at the time he was issued the taskera he was glad that they had made this mistake as he wanted to be regarded as an adult, but later after he had arrived in Australia, he did not want to provide a document which showed a different age to that on his protection visa application form.

The applicant’s name

166.   The Tribunal is satisfied that the applicant’s name is [applicant’s name], as claimed in his protection visa application and on his citizenship application. This name has also been used on his titre de voyage, driver’s licence and health card.

167.   The name recorded on his taskera is [Taskera Name A variant], which is very similar to his current name. The Tribunal is satisfied that his explanation for dropping the middle name is reasonable, that he was told by other people in the detention centre that his name would be too long in Australia. The Tribunal notes that the taskera is the primary form of identification used in Afghanistan[3] and thus is strong evidence of the applicant’s identity.

[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 27 June 2019

168.   The Tribunal is also satisfied that he did not realise that the name without his middle name was significantly different so that a name change should be declared on the protection visa application form or citizenship forms. As the name was only shortened, not changed, the Tribunal accepts that it is reasonable that he did not believe that he needed to disclose the shortening of his name.

169.   The Tribunal is satisfied that the applicant has never had the name [family name] nor claimed to have this name. The issue of why he was included in the Global Special Humanitarian visa application under [that family name] is discussed later in these findings.

The applicant’s date of birth

170.   The Tribunal is satisfied that the applicant does not know his exact date of birth but believes that he was about [age] years old when he travelled to Jaghori to obtain his taskera. According to various sources, many Afghans have either little awareness of their own date of birth or are unsure of exactly when they were born.[4]

[4] See for example, LANDINFO, Report Afghanistan: Tazkera, passports and other ID documents, 22 May 2019

171.   The Tribunal is satisfied that his birth date recorded on his taskera was [older] years old in 1387, equal to 2008, because this was how the local population registration office assessed him, and later this date was also used on his passport on the basis of the taskera. According to country sources, issuing officers at district population registration offices complete taskeras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete.[5] Sources indicate that the majority of taskeras seem to give an estimated age at the time of issue. Landinfo finds that there are reasons to believe that there can be variations between the many districts on how they practice the giving of age.[6] The Tribunal has taken into consideration the fact that the Embassy of Afghanistan in Canberra verified the taskera and was satisfied as to why his age was listed as older than he is.

[5] Department of Foreign Affairs and Trade, DFAT Country Information Report Afghanistan, 27 June 2019

[6] LANDINFO, Report Afghanistan: Tazkera, passports and other ID documents, 22 May 2019

172.   The Tribunal accepts that when he arrived [in Australia] the applicant did not know his date of birth and was allocated the date of [DOB 1], which is the date of birth he has accepted in Australia and used in his protection visa application and citizenship application. 

The applicant’s place of birth

173.   The Tribunal is satisfied that the applicant was born in [Town 1 in], Jaghori as this information has been consistently provided in all documents since his entry interview and has been corroborated by all the witnesses.

The applicant’s ethnicity and religion

174.   The Tribunal is satisfied that the applicant is a Hazara Shi’a. The applicant has consistently provided this information since the entry interview. He also speaks Hazaragi.

The applicant’s mother’s name

175.   The Tribunal is satisfied that the applicant’s mother’s name is [Ms B], not ‘[Mother A]’. The only time ‘[Mother A]’ was recorded was in his entry interview, and this appears to have been a mistake, an explanation which was accepted by the delegate and is also accepted by this Tribunal, given that he has consistently named his mother [Ms B] otherwise.

Other family members

176.   The Tribunal is satisfied that the applicant’s father was [Mr B] (deceased), his sister [Sister A variant], his [brother] [Brother C], his brother [Brother B], and his brother [Brother A]. His father’s taskera has been provided and his father’s name has been recorded on the applicant’s taskera. Copies of taskeras or passports for his siblings have been provided indicating that they are children of [Mr B], the applicant’s father. The applicant has provided consistent information about his parents and siblings since the entry interview. The applicant, his uncle and [Brother B] all gave consistent evidence at the Tribunal hearing about the family composition, the sequence of ages of the siblings, and the current whereabouts and circumstances of the siblings. The applicant also provided telephone numbers so that the Tribunal could contact both [Sister A] and [Brother C] but due to problems with the Afghani telephone lines, the Tribunal was unable to speak to them. However, both [Sister A] and [Brother C] provided statements confirming that the applicant was one of [number] children, with details of the siblings and their position in the family. Copies of remittances were provided indicating that the applicant sends money to his family in Pakistan and Afghanistan. The applicant was also able to provide significant detail about his parents’ deaths and he travelled back to Quetta for his father’s funeral. The Tribunal accepts the applicant’s explanation that his omission of his sister’s name in his citizenship application was a mistake and he had perhaps excluded her as she was no longer regarded as part of his immediate family once married.

177.   The Tribunal notes that different family members were listed in the Global Special Humanitarian visa application. The Tribunal accepts that in this visa application the applicant was declared as a son of [Mr A], who is actually his uncle, without his knowledge. Evidence has been provided by the applicant’s uncle that his wife breastfed the applicant as a child, and they wanted to help him come to Australia. The applicant’s father had asked him to try and get the applicant to Australia. The Tribunal accepts that this was why [Mr A] declared the applicant as one of their children on the application form for the Global Special Humanitarian visa. The Tribunal has accepted the evidence of the applicant and the initial evidence of [Mr A] that the applicant was not involved in the preparation of the application and did not sign the documents. Although [Mr A] later changed his evidence to say that the applicant signed the documents when he returned to Afghanistan, the Tribunal prefers his earlier evidence, as the applicant was not in Afghanistan at the time when [Mr A] claims he returned. Furthermore, [Mr A] told the Tribunal in his Statement dated 12 January 2021 that he did not tell the applicant about his father’s request that he be included in a visa application. He also said that when he submitted the Global Special Humanitarian visa application he did not tell the applicant’s father and did not speak to the applicant until he came to Australia. The Tribunal notes that the applicant is elderly and was feeling unwell at the Tribunal hearing and may have wanted to say what he thought the Tribunal wanted to hear or he may have had confused recollections given that these events took place so long ago. This confusion was cleared up by a Statement dated 3 March 2021 provided by [Mr A] in which he said that the applicant’s father signed the document on behalf of his son when he returned to Quetta. The Tribunal is satisfied that the applicant did not sign the document, given his testimony and the fact that the signature provided does not look similar to that on his protection visa application. The Tribunal notes in this regard that it found the applicant to be a credible witness and that the explanations he provided for confusion as to his identity generally were credible.

178.   The Tribunal is satisfied that as the applicant had no knowledge of the fact that he was not included in the application for a Global Special Humanitarian visa, he did not declare that he was part of an earlier visa application in his protection visa application or citizenship application.

179.   The Tribunal has considered the applicant’s evidence that in his entry interview he did not declare that his uncle and cousin were in Australia as at that time he was unaware that they were in Australia, which is different evidence to that provided in a Statutory Declaration dated 11 June 2019 in which he said that he thought it would be better not to mention them. The Tribunal had some reservations about this, as it would have been expected that his family would have told him once he came to Australia. However, it is possible that he was not told, as it took some time for him to reach Australia, and he has said that he did not know where he would end up. It is persuasive that both he and his uncle have said that it was only when he was out of detention and in [Suburb 1] that the applicant found out from community members that his uncle was in Australia. [Brother B] also said that he did not know his uncle was in Australia, which is persuasive. The Tribunal is satisfied therefore that the applicant was not certain that his uncle was in Australia. In any event, even if he had some knowledge and did not disclose that they were in Australia, the Tribunal is nonetheless satisfied as to the identity of the applicant for all the other reasons discussed. 

The applicant’s family’s move to Quetta

180.   The Tribunal is satisfied that the applicant’s family moved to Quetta in around 2002/3 because of trouble from the Kuchi/Taliban and lived in [street name], Hazara Town until the applicant came to Australia. The applicant provided this information in his entry interview and has consistently provided this information since. He was able to provide significant detail of the area around Hazara Town, including descriptions of the house, street names and buildings. He could name his school and was able to provide details about selling vegetables in [the named] market. His evidence about the houses on [street name] was similar to descriptions provided by his uncle about the region. His sister [Sister A] and his brothers [Brother B] and [Brother C] provided consistent information about their move to Pakistan, local landmarks and details of their life there.

The applicant’s wife and children

181.   The Tribunal is satisfied that the applicant married his wife, [Wife A], [in] October 2015. They have a son, [Son A], born on [day]. The applicant is recorded as his father on the son’s taskera. The delegate had concerns about the fact that the applicant had provided different family names for his son. On his son’s taskera, his son’s name is recorded as [Son A variant]. The Tribunal accepts the applicant’s explanation that his wife travelled to Kabul to obtain a taskera for her son and as the new form of Afghan passport required a family name, his wife chose the name ‘[name]’ as this was her father’s name. The Tribunal accepts the applicant’s explanation that he listed his son’s name as [Son A] in his citizenship application as he liked the name and needed a family name for  his son.  

The applicant’s reasons for leaving Quetta

182.   The Tribunal is satisfied that the applicant, and [Sister A’s] husband, were on a bus which was attacked by extremists in 2011 and that [Sister A’s] husband was killed. This evidence has been consistent in the statements of the applicant since the entry interview and has been corroborated by various family members. [Sister A] has given evidence that she moved back to Afghanistan as a widow with her [children], corroborated by [Brother C’s] evidence.

Findings

183. The Minister may cancel a visa if not satisfied as to the visa holder’s identity pursuant to s.116 (1AA) of the Act. For all the reasons set out above, the Tribunal is satisfied as to the applicant’s identity, in that the Tribunal is able to confirm ‘who he is, or the qualities that make him different from others’.[7] Furthermore, as discussed above, the inconsistencies have reasonable explanations and the Tribunal is satisfied that it is possible to form a conclusion regarding which information is genuine.[8]

[7] Cambridge Dictionary, IDENTITY | meaning in the Cambridge English Dictionary

[8] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

184.   The Tribunal is not satisfied therefore that the ground specified in the notice, that the Tribunal is not satisfied as to the visa-holder’s identity, is made out. The cancellation power does not arise for consideration. The Tribunal therefore sets aside the cancellation decision and substitutes a decision that the visa is not cancelled.

185.   Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.  

DECISION

186.   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.

Jane Marquard
Member