1917711 (Migration)

1917711 (Migration) [2020] AATA 5164 (22 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1917711
MEMBER:Christopher Smolicz
DATE:22 October 2020
PLACE OF DECISION: Adelaide
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 October 2020 at 2:52 pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – identity – inconsistent information about name, date and place of birth, citizenship and family members – previous visa application and relative in Australia not declared – previous application made by relative – claim to have been unaware of relative’s application – lengthy undocumented residence in third country from young age – traumatic voyage, confusion in interviews and interpretation difficulty – facial image comparison – Afghani identification document issued recently – country information about Hazaras, citizenship and documentation – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1AA)
CASE
AZK15 v MIBP [2015] FCA 1444
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 1 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) on the basis that she was not satisfied as to the applicant’s identity.
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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant took part in a video hearing before the Tribunal on 31 August 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
First, the Tribunal sets out the applicant’s migration history and background leading to the decision to cancel his visa.
[In] June 2012 the applicant arrived in Australia by boat as an undocumented, unaccompanied minor. He completed a biodata form where he identified himself as [the applicant], born [Date 1]. He declared that he was born in Ghazni Province, Afghanistan although he may need to call his family to confirm where he was born. He described his religion as Shia and his ethnicity as Hazara. He declared he was citizen of Pakistan.
On 19 July 2012 the applicant took part in an Entry Interview where he maintained his name and date of birth but also stated that he was known by the name ‘[Alias 1]’. He declared that he was born in Pakistan and was a citizen of Pakistan. He did not know anyone in Australia but had communicated with a person named ‘[Mr A]’ who he described as a ‘friend’.
On 20 August 2012 the applicant applied for a Protection (Subclass 866) visa where he maintained his name and date of birth but declared he was born in Afghanistan and was an Afghan citizen. He declared that he had not previously applied for refugee status or a protection visa or made any other type of application with the Department. He declared that he did not have any family members in Australia.
In support of the protection visa application he provided a statement claiming he was an Afghan citizen who had been residing in Pakistan illegally and the information he had previously provided about his Pakistani citizenship was incorrect. He said he suffered a lot of trauma coming to Australia because the boat he was travelling on sunk, he lost his friend and he was in the water for 16 hours before he was rescued.
He said that in [Year 1] his parents fled with him from Afghanistan to Pakistan and they reside in Quetta with his four siblings. He said his family never had any identity documents in Pakistan and his mother told him his date of birth. He fled Pakistan because he feared he would be killed because he is of Hazara ethnicity and Shia Muslim faith. He could not return to Afghanistan due to potential threats from Pashtuns and the Taliban. On 30 January 2013 the applicant was granted a Protection visa.
On 24 February 2017 the applicant applied for Australian citizenship by conferral. In association with this application he provided a form 80 ‘Personal particulars for assessment including character assessment’. In this form the applicant declared he had not been known by any other names. He declared he had never been refused a visa to any country.
On 1 June 2018 the applicant was granted the Subclass 155 (Five Year Resident Return) visa.
On 5 October 2018 the Department sent the applicant an ‘Invitation to comment on adverse information’ in association with his application for Australian citizenship regarding his identity. The applicant responded on 8 November 2018.
On 7 January 2019 the Department refused the application for Australian citizenship on the basis that they were not satisfied of his identity.
On 26 March 2019 a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 155 visa under s.116(1AA) of the Act, as the delegate was not satisfied as to his identity. The NOICC referred to the applicant’s application for Australian citizenship and indicated that he had provided inconsistent and contradictory information about his identity over a number of years to the Department by not declaring a previous visa application and providing inconsistent information with regard to his name and family composition.
The NOICC records that the Department undertook facial image comparison after the applicant’s protection visa was granted and the comparison shows that he was previously proposed in a Global Special Humanitarian (GSH) visa (Subclass 202) application lodged on 12 May 2010 where the applicant is identified as ‘[Alias 1]’ born [Year 1] in Afghanistan. This application was submitted by [Mr B] ([Date 2]). [Mr B] was identified as the applicant’s brother who was living in Australia. The application also referred to six other siblings all residing in Pakistan and stated that the parents were deceased. The GSH visa application was refused in January 2011.
The NOICC gave the applicant the opportunity to comment on the following information:
·He had not declared his previous GSH visa application to the Department or that he had a brother residing in Australia.
·The claim in the GSH application that he had resided in Pakistan since 2002 was not consistent with statements provided in support of his Protection visa and Australian citizenship applications where he claimed to have moved to Pakistan shortly after his birth in [Year 1].
·He claimed in his GSH application his parents were deceased, however, in his Protection visa application he declared both were alive.
·He declared in his biodata form he was a citizen of Pakistan.
·Financial records indicate that money was transferred from Australia into a bank account in the name [similar to Alias 1] in Pakistan.
·He claimed his family resided unlawfully in Pakistan from [Year 1] onwards, however, he did not apply for a Proof of Registration card when they became available.
The applicant provided a statutory declaration dated 17 April 2019 in which he provided the following response to the NOICC.
He was not aware of the specifics of the GSH visa application until he received the invitation to comment in association with his application for Australian citizenship.
While he was residing in Pakistan, [Mr B] had told his father that he could apply for a visa to enable him to come to Australia. The applicant states he was a young boy at the time and had no understanding of the visa processes in Australia. [Mr B] was aware the situation in Quetta was not safe and the applicant assumed he wanted to assist him. Other than his father providing [Mr B] with a passport photo, the applicant and his father had no involvement in the application and [Mr B] never gave them any information about the visa process. The applicant therefore assumed the visa had not eventuated.
The applicant states he was often called ‘[Alias 1]’ by family and friends and believes that is why [Mr B] referred to him as [Alias 1] in the application and included the applicant’s father’s [name] as his surname. The applicant claims the information in the GSH application about his education, residence in Pakistan and parents’ details is false and was only relevant to [Mr B]’s siblings who were also included in the application. The applicant maintains his name is [the applicant], his father is [Mr C] and his mother is [Ms D].
To the best of his knowledge he has not received any money from [Mr B] and states he never had a bank account while residing in Pakistan.
The applicant claims his father has recently told him that [Mr B] is a half-brother to his father. The applicant claims his grandfather remarried and had another family, including three sons and one daughter, [Mr B], [Mr E], [Mr F] and [Ms G].
The applicant claims his father has two brothers [Mr H] and [Mr I]. The applicant claims that as his father is not [Mr B]’s full brother, he believes that is why [Mr B] did not list his father or his father’s brothers in the GSH application.
The applicant states he was [age] years old when he arrived in Australia. The boat on which he travelled to Australia sunk at sea and many people lost their lives. The applicant states he was traumatised by the experience and still has nightmares. When he arrived in Australia he was confused when questioned about his citizenship and assumed he was required to tell the Department the country where he had mainly resided. He may have provided inconsistent information because he was traumatised from his journey, missing his family and in a foreign country where he had to attend formal interviews which he had not done before. He was overwhelmed and found it difficult to communicate through interpreters who often spoke a different dialect to him.
Given these factors the applicant claims he may have mistakenly said he was a citizen of Pakistan. The applicant claims he is a citizen of Afghanistan and he does not have a legal right to reside in Pakistan.
The applicant states his father travelled to Kabul, Afghanistan in March 2019 to obtain a Taskera from the Central Civil Registration Authority. The Taskera has been certified and translated by the Ministry of Foreign Affairs in Afghanistan. The authorities in Afghanistan only issue Taskeras after they carry out an investigation into the applicant’s identity and background.
The applicant made an application for a Taskera with the Afghan Consulate in Canberra [in] 2019 after obtaining a copy of his father’s Taskera. The applicant states he has nominated a family friend to collect the document in Kabul.
The applicant claims he has made a genuine effort to obtain documents in support of his identity. He maintains his life in Pakistan was very difficult due to his lack of identity documents. Given that he left Afghanistan as a very young child, he was never issued with an identity document in Afghanistan.
The applicant claims growing up in Pakistan without a legal right to reside was very difficult as his family’s access to services was limited and the security situation was poor. There were regular attacks against the Hazara and Shia communities and he feared he would be killed every time he left his house.
The delegate noted the matters set out in the NOICC, and the applicant’s explanations as to the various inconsistent information that was provided, but ultimately did not accept them.
The delegate acknowledged that the applicant provided a translated copy of his Taskera issued [in] 2019 in the name [the applicant] born [Date 1]. The delegate was concerned that the applicant produced the Taskera after his Australian citizenship application was refused and it did not outweigh the concerns that the applicant had previously represented himself to the Department as [Alias 1] and the inconsistencies that remain about his true identity.
On 1 July 2019 the delegate cancelled the applicant’s visa. The delegate concluded that they were not satisfied as to the applicant’s identity and the ground for cancellation of the visa under s.116(1AA) was established.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave evidence at the hearing that his name is [the applicant], he is a Hazara Shia Muslim who was born in Afghanistan and had no identity documents at birth. His parents told him his date of birth ([Date 1]). He was [age] when his family fled Afghanistan and travelled to Pakistan where he lived illegally until he travelled to Australia. He is not aware of any family members remaining in Afghanistan. He referred to his Taskera in support of his evidence. He maintains that the identity information provided to the Department in his protection visa application and citizenship application is true and correct.
The Tribunal questioned the applicant about his knowledge of the GSH visa application lodged in the name of [Alias 1].
The applicant does not dispute that his photograph was submitted to the Department in the GSH visa application. He maintains he was [age] years old when the application was lodged and the personal details (name, date of birth, family composition) used in the application were false and do not relate to him. His parents are still alive and living in Pakistan. [Mr B] is not his brother but his step-uncle who was trying to help him escape from Pakistan. His father provided [Mr B] with the photograph and he did not sign the photograph and was not aware why his photo was required. He did not sign or complete any application form in support of the GSH visa application. His nickname was [Alias 1] and this may explain why the name appears on the form. He maintains that he had no knowledge of being included in the application under a false name until he was advised of this by the Department in response to his citizenship application. The applicant said that in 2012 the security situation in Pakistan became very dangerous. When he turned [age] years old his father decided to send him illegally to Australia by boat so he could escape. He departed Pakistan by plane using a false Pakistani passport.
The Tribunal also noted that there is financial evidence that [Mr B] was sending money to a bank account in Pakistan in the name [similar to Alias 1] and that his information was used to support the GSH visa application. The applicant said he had no knowledge that money was being sent to Pakistan.
The Tribunal observed that [Mr B] was living in Australia and it was surprised he was not nominated as a witness to give evidence to support the applicant’s claims. The applicant confirmed that he has been in contact with [Mr B] in Australia and is not sure if [Mr B] would be willing to be a witness. The Tribunal accepts that [Mr B] may not wish to give evidence in circumstances that may implicate him in providing false information to the Department in the GSH visa application.
Does the ground for cancellation exist?
As detailed above, s.116(1AA) states that a visa may be cancelled if the Minister is not satisfied as to the visa holder’s identity.
In assessing the applicant’s claims regarding his true identity, the Tribunal has had regard to the Department’s National Identity Proofing Guidelines. In particular the Departmental guidelines note that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[1]
[1] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 >
The Department’s policy advice manual explains:
The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.
While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant’s identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[2]
[2] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1
Documentation includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their narrative. Biometrics include personal identifiers such as facial image and fingerprints.[3]
[3] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2
The Tribunal has also had regard to specific guidance developed by the Department in relation to Hazara Shia Afghan protection visa applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the applicants.[4]
[4] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016
The Tribunal has also had regard to the following country information which confirms the difficulties displaced Afghan nationals living in Pakistan face in obtaining identity documents:
The Hazara ethnic minority has a long history of persecution due to their Shia faith. They are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.
At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally.
Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.
The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.
Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents. It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[5]
[5] Comparative international approaches to establishing indemnity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4
Name and family

The Tribunal has had regard to the information detailed in the NOICC and notes that there are two possible alternative scenarios regarding the applicant’s identity.
Firstly, the applicant’s name is [Alias 1] as detailed in the GSH visa application which was lodged by [Mr B] who was identified as the applicant’s brother in Australia. Alternatively, the applicant’s name is [the applicant] as declared in his protection visa application when he first arrived in Australia in 2012.
Departmental guidelines indicate cancelling the visa based on identity grounds will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[6] It 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.
[6] PAM3 - Visa Cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) – Not satisfied as to identity (re-issue date 1/7/17)
The Tribunal has considered the applicant’s evidence about the circumstances in which he was included in the GSH visa application. The Tribunal finds it implausible that the applicant would be included in a visa application, seeking to travel to Australia under a false identity and not be aware the application was lodged on his behalf or of the name and personal details submitted to the Department in support of the application. As discussed with the applicant at hearing, if the visa was approved, he would need to be familiar with all the personal details included in the application and that he would be travelling to Australia under a false identity using false documents.
The Tribunal also notes that applying for a visa to travel to Australia is complex, it requires planning, money and personal identity documents. It seems implausible that the applicant would have no knowledge of the process. For example, the photographs used for visa applications have to comply with specific requirements. They are of a particular size, composition and have to be signed with the date of birth written on the back.
In the circumstances the Tribunal finds that the applicant would have been aware that he was proposed in the GSH visa application as [Alias 1]. The Tribunal has however had regard to the applicant’s young age at the time and accepts that his father was the person who initiated the GSH visa application and was personally dealing with [Mr B] in Australia at the time.
The Tribunal notes that since the applicant arrived in Australia in 2012, he has been interviewed on a number of occasions and has consistently used the same name, date of birth and provided consistent details of his family composition. This evidence needs to be contrasted with the GSH visa application which was not completed by the applicant and was lodged and signed in Australia by [Mr B] at the time the applicant was only [age] years old and living in Pakistan. The Tribunal gives this evidence significant weight in supporting the applicant’s claim that the name and personal details used in the GSH visa application were false and that he provided his true identity details to the Department when he personally applied for the protection visa in 2012 and lodged his citizenship application in 2017.
Afghan Hazara Shia
The Tribunal has had regard to the evidence provided by the applicant about his place of birth and citizenship when he first arrived in Australia by boat. The applicant initially declared in his Biodata interview held on 24 June 2012 that he was born in Ghazni Province, Afghanistan and that he was a citizen of Pakistan. It is noted, however by the interviewing officer that the applicant was unsure where he was born and said he would need to clarify with his family when he next calls them.
The Tribunal finds that there are clear inconsistent answers regarding his place of birth and citizenship as recorded in his entry interview conducted 19 July 2012. According to the typed notes on Part B of the interview form it is recorded that he was born on [Date 1] in Pakistan (Q.6), however it is also recorded (Q.8 and Q.9) on the form that he was born in Qarabagh District in Ghazni Province [Afghanistan]. In response to question 10 it is recorded he is a citizen of Pakistan.
Further, the Tribunal notes that in response to a question seeking his address history (Q.12) “Most recent address in country of Citizenship or in country of residence. Include dates” the response is recorded as August/September [Year 1] to 2012 Quetta [Pakistan]. The answer further confirms the applicant’s evidence that he was born in Afghanistan and arrived in Pakistan when he was [age].
It is unclear if the inconsistencies in the evidence he provided in the entry interview are attributed to the departmental officer’s making incorrect notes of the applicant’s answers, interpreting issues or the applicant being confused at the time he was being questioned. The Tribunal finds however that the inconsistent answers about his place of birth are not indicative of the applicant seeking to provide false information and are most likely attributed to genuine error or misunderstanding of his response which should have been picked up by the interviewing officer at the time.
As detailed above, the Tribunal accepts that since the applicant arrived in Australia, he has consistently identified himself as [the applicant]. The Tribunal notes that apart from the details recorded at question 6 (referred to above) the applicant has consistently claimed that he is a Hazara Shia who was born in Ghazni Province, Afghanistan on [Date 1].
The Tribunal also notes that through the applicant’s dealings with the Department he has declared that he speaks Hazaragi. His Biodata and Entry Interviews were conducted in the Hazaragi language. The Tribunal was also able to observe the applicant at the hearing and finds his facial features are characteristic of the Hazar race.
The Department of Foreign Affairs and Trade (DFAT) confirms that the majority of the Hazara community arrived in Pakistan in two waves – the first during the Soviet occupation of Afghanistan from 1979 and the next in 1996 following the Taliban takeover in Afghanistan. Hazaras have been subjected to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups.[7] The country information is consistent with the applicant’s evidence in his protection visa application about the persecution his family faced in Afghanistan and why his father arranged for him to escape from Pakistan and travel to Australia.
[7] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan, 26 March 2014 [2.19]
The Tribunal has had regard to the country information and accepts that the applicant fled from Afghanistan to Pakistan where he settled with his family in approximately late [Year 1]. The Tribunal accepts that as a displaced person the applicant would have had difficulty accessing any identity documents at that time.
The Tribunal has had regard to the applicant’s narrative, his physical appearance, spoken language and the country information detailed above and is satisfied that he is a Shia Muslim from the Hazara ethnic group who was born in Afghanistan.
Identity documents
The applicant has provided the following documents in support of his identity:
·     A scanned copy of a Taskera issued in the name [Mr C] son of [Mr J] born [date]. This Taskera was issued on [in] 2019 and has been date stamped [later in] 2019.
·     A translated copy of an application for a Taskera dated [in] 2019 in the name [the applicant] son of [Mr C] born [Date 1].
·     A translated copy of a Taskera ([Number]) issued to [the applicant] born [Date 1], son of [Mr C]. This document was issued [in] 2019 and has been attested by the Ministry of Foreign Affairs for the Islamic Republic of Afghanistan.
According to country information a Taskera is a primary source of identification for Afghan citizens that establishes a person’s national identity and link to the State.[8]
[8] ‘Afghanistan: Taskera, passports and other identity documents’, Landinfo, Country of Origin Information
It was submitted that the applicant was required to present his father’s Taskera to obtain his own Taskera. As explained by the applicant he attended the Afghan Embassy in Canberra, Australia and applied for a Taskera. Through a new process, the Embassy of the Islamic Republic of Afghanistan can initiate the process of obtaining a Taskera in absentia.[9] The Embassy conducts an interview with the applicant for a Taskera and then assists them to prepare an application which is sent to the Afghanistan Central Civil Registration Authority (ACCRA) and the Consular Affairs Directorate of the Ministry of Foreign Affairs in Afghanistan. The applicant is provided with a package that they are required to provide to an authorised representative in Afghanistan to obtain the Taskera. In addition to providing his Taskera to the Department, the applicant also provided the verification form he completed and provided to the Consulate. The Tribunal accepts that the applicant adhered to the relevant procedures to obtain the Taskera. The Tribunal finds that the applicant’s Taskera was issued based on his father’s Taskera and that both documents contain consistent identity information which place them within the same family unit.
[9] Absentee Taskira (Afghan National ID), Embassy of the Islamic Republic of Afghanistan >
The delegate found it concerning that the applicant did not provide any identity documents until his identity was raised as an issue by the Department during his citizenship application.
DFAT has reported that Afghan authorities did not historically issue birth certificates, which remain far from common. The high number of home births makes the process of registering births challenging. Reporting of birth dates is unreliable, and reported dates are likely to be approximate. DFAT understands that the Ministry of Public Health now issues birth certificates through a small number of maternity hospitals. However, parents can obtain a taskira for their newborn child by registering the birth with the Ministry of the Interior’s population registration office.[10]
[10] DFAT Country Information Report Afghanistan 27 June 2019 [5.49]
It is widely accepted that Afghan citizens displaced by the conflict in that country experience difficulties obtaining a taskira. This is because taskira access is based on recognition by family members or community elders, which pose significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity. Further, children and young people, such as the applicant, are at particular risk of lacking civil and identification documents, particularly when displaced.[11]
[11] Norwegian Refugee Council, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016
The Tribunal has also had regard to country information detailed above and accepts that the lack of identity documents can be attributed to a number of factors such as the failure of governments in the country of origin, forced displacement or destruction of documentation.
As detailed above, country information also confirms that a Taskera lacks any modern security features and is easily obtained through fraudulent channels. According to the material before the Tribunal it appears however that the Department did not seek to confirm the authenticity of the applicant’s Taskera and there is no forensic report stating that it is not a genuine document.
The Tribunal has had regard to the applicant’s evidence about the circumstances in which his father travelled to Kabul, Afghanistan in March 2019 to obtain the Taskera from the Central Civil Registration Authority. The Tribunal notes the Taskera has been certified and translated by the Ministry of Foreign Affairs in Afghanistan. The Tribunal has also had regard to the applicant’s evidence that he made an application for a Taskera with the Afghan Consulate in Canberra [in] 2019 after obtaining a copy of his father’s Taskera. The Tribunal gives the applicant’s Taskera some weight in supporting his true identity and is satisfied it is a genuine document.
Citizenship
The next question for the Tribunal to determine is whether the applicant is a citizen of Afghanistan or Pakistan.
The applicant claims he is a citizen of Afghanistan by virtue of his birth and that his family were living as undocumented refugees in Pakistan.
Whether a person has a particular nationality is a question of fact for the decision maker on the available evidence.[12] As detailed above the Tribunal has had regard to country information and accepts the applicant is a Hazara Shia Afghan national by birth who resided in Pakistan before he arrived in Australia.
[12] AZK15 v MIBP [2015] FCA 1444
Country information confirms that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara residents at this time to be recognised as Pakistani nationals and granted citizenship.[13]
[13] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012,
DFAT, Thematic Report Hazaras in
Afghanistan and Pakistan, 26 March 2014, 3.14
The DFAT country information report on Pakistan states that Hazara children born in Pakistan are entitled to Pakistani citizenship, but that Hazara arrivals from Afghanistan typically do not have citizenship, instead being able to access immigration cards which provide some rights including access to driver’s licences.[14]
[14] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42
The DFAT report goes on to note that many Afghan refugees, specifically those in the Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistani government, but may hold a Taskera or UNHCR registration documents. DFAT reports that some undocumented Afghans in Pakistan refused to register for an Afghan Citizenship Card for fear of mistreatment by the Pakistani government.[15]
[15] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65
The Tribunal notes that the Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man.[16]
[16] The Pakistan Citizenship Act 1951, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
Section 4 of the Pakistan Citizenship Act states that every person born in Pakistan after the commencement of the Act shall be a citizen (except those born in Pakistan to a father who was an enemy alien in Pakistan), s.5 provides that a person is a citizen if his parent was a citizen of Pakistan (noting exceptions for those born outside the territory or in the service of a government), s.9 allows a person granted a certificate of naturalisation under the Naturalization Act 1926 to be registered a citizen of Pakistan by naturalisation or allowing the government to register any person as a citizen.[17]
[17] The Pakistan Citizenship Act 1951, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
The Naturalization Act allows a person to be granted a certificate of naturalisation if they are not a minor, are neither a citizen of Pakistan or a citizen of any state which does not allow Pakistani citizens to be naturalised, has resided in Pakistan for the 12 months before the application and for a period of years prior to that time, is of good character, had adequate knowledge of a language gazetted by the Government, and intends to reside in Pakistan.[18]
[18] The Pakistan Naturalization Act 1926, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
The European University Institute has provided a comprehensive and detailed report on Pakistani citizenship law. The report confirms that no statutory provision of law expressly deals with status of citizenship of refugees and especially, Afghan refugees in Pakistan. With regards to citizenship by birth the case of Afghan refugees is of special importance, as the status of citizenship is not extended to them even if a child of a refugee is born in Pakistan.[19]
[19] Nazir, F., Report on Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 5 [3.1.2]
In this report, the author notes that ‘Over time, an increasing number of Afghan refugees made efforts to naturalize in Pakistan as citizens, however, their claims have been denied both at administrative and judicial levels.’[20] The report references a case heard in the Peshawar High Court, Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai). In this case Mr Sanai was born in Pakistan to Afghan refugee parents and was denied a national identity card. His father had obtained his Pakistani national identity card and passport by providing false information to officials. The Peshawar High Court held that children of Afghan refugees cannot claim citizenship by birth because their parents, as refugees, were provided only temporary refuge in the country, had their status in Pakistan governed under the Foreigners Act 1946 and were not covered by the provisions of the Citizenship Act as they would be deemed foreigners and aliens.[21]
[20] Nazir, F., Report on Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 5
[21] Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 5-6
It is also reported in Foreign Policy over time, a number of Afghan refugees have tried to naturalise in Pakistan as citizens, but these claims have always been denied.[22]
[22] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9
May 2019,
Afghan refugees have also been found not to have rights under the Constitution of Pakistan. In the case of Abdul Majeed and another vs. The S.H.O. Police Station Naulakha, Lahore, PLD 1989 Lahore 223, the petitioner, an Afghan refugee, sought to argue that the position of Afghan refugees was analogous to that of those who had come to Pakistan as refugees in 1947 on partition and those from the Kashmir disputed territories. The court dismissed the application holding that Afghan refugees are categorically distinguished from these Constitutionally recognised groups:
It emphasized that statutory exceptions were carved out in the citizenship laws of Pakistan for these groups. Quite the contrary, Afghan refugees were granted refugee cards and under the terms of the Geneva Accords, their stay in the territory of Pakistan is allowed for a temporary period in which foreign troops have occupied Afghanistan. For this reason, the court held, the law enforcement agencies are justified to restrict the movement of foreigner refugees in the country.[23]
[23] Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 6

This judicial view was confirmed in 2018 by the Islamabad High Court which cited with approval the decision of the Peshawar High Court in Sanai. The Islamabad High Court in Saeed Abdi Mahmud v NADRA 2018 CLC 1588 (Mahmud), stated as had the court in Sanai that all persons born in Pakistan except Afghan refugees were entitled to citizenship, but went on to (incorrectly) assert that Pakistan was a signatory to the Refugees Convention and therefore that Afghan refugees were the responsibility of the UNHCR and that Pakistani laws including the Citizenship Act, Naturalization Act and the Constitution did not apply to them. The situation is further complicated by the potential for unregistered Afghan people resident in Pakistan to be considered illegal immigrants under the Foreigners Act 1946.
It is reported that the situation for unregistered Afghans in Pakistan appears even more parlous than for those who are registered.[24] The Foreigners Act provides for the regulation of the entry, presence and departure of foreigners who are defined in the Act as any person who is not a citizen of Pakistan.[25] Whilst registered Afghan refugees have a ‘special status’, excluding them from citizenship as above, unregistered Afghans in Pakistan are considered by the government to be aliens and illegal immigrants who may claim only alien registration, work permits and non-refoulement under customary international law.[26]
[24] Nazir, F., Report On Citizenship Law: Pakistan, Country Report 2016/13, European University Institute, EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies, December
2016, 6
[25] Sections 14, 2 of the Foreigners Act 1946
[26] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,
It is reported that in September 2018 Prime Minister Khan proposed a law which would have provided citizenship to Afghans born in Pakistan, and a private member’s Bill would have extended this to Afghans living in Pakistan for 20 years or more and had been registered. The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019, with the committee observing that the proposed amendment would have serious repercussions on the security and economy of the country and that the provinces of Sindh, Khyber Pakhtunkhwa, and Balochistan held serious reservations against the statement made by the Prime Minister.[27] This appears to reflect a widely held perception in Pakistan that Afghans are a security threat and an economic drain on the country, despite evidence to the contrary.[28]
[27] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,

[28] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,
The Tribunal has also considered the applicant’s evidence that he departed Pakistan on a false Pakistani passport. Reports confirm that thousands of Afghans residing in Pakistan have been issued with false NIC, by the National Database and Registration Authority. Reports also confirm that false NIC are subsequently used to apply for a passport.[29] Reports confirm that in 2012 the Pakistani authorities arrested about 278 Afghans for possessing fraudulently obtained Pakistani NIC. The report confirms that the NIC were not fake but the process through which they were acquired was fraudulent.[30]
[29] NADRA Issued Millions Fake ID Cards, Reveals Report Frontier Post (Web Page 30 April, 2019 see also Canada: Immigration and Refugee Board of Canada, Pakistan: Prevalence of fraudulent documents, 28 November 2007, PAK102657.E, available at: align="left">[30] Dual nationals: 278 Afghans held for possessing Pak CINCs, Published by the Express Tribune, May, 14, 2012

Importantly the Tribunal also notes that Pakistani law does not allow dual Afghan and Pakistani citizenship which further supports the applicant’s claim that he is not a Pakistani citizen.[31]

Further considerations with respect to the applicant’s claimed identity

[31] s. 14 of the Pakistan Citizenship Act, 1951 [Pakistan], 13 April 1951, available at: ‘The Pakistan Citizenship

Act, 1951 (as amended to 2000)’, Government of Pakistan, 15 August 2016, CIS38A80123108

In addition to the above considerations and findings, the Tribunal has given weight to the following considerations in accepting the applicant’s claimed identity:

a.The Tribunal has considered the money transfers sent from Australia to the bank account of [name similar to Alias 1] in Pakistan. The Tribunal notes that records located on the Department’s file confirm the transactions commenced in March 2010 when the applicant was [age] years old. The Tribunal finds it highly unlikely that the applicant as an undocumented Afghan refugee would have had a bank account at the age of [age] in Pakistan.
b.The Department accepted the applicant’s claimed identity and he was granted a protection visa in that identity in 2012. He has been issued multiple Australian identity documents under his claimed identity, including a titre de voyage which he has used to travel to Pakistan to see his family from Australia since being granted protection.
c.The Tribunal also notes that the applicant returned to Pakistan and married in 2017. He is sending money to his family in Pakistan and has provided the Tribunal with a remittance schedule as evidence of the transactions. He has a [age]-year-old daughter who was born when his visa was cancelled. In post hearing submissions the applicant provided photographs which he claims are of his mother, father, wife and their child including photographs of his wedding in Quetta, Pakistan. The applicant also provided (translations and originals) of his religious marriage certificate, his daughter’s birth certificate and a letter from an Iman in Quetta.
d.The Tribunal has considered the photographs provided by the applicant and finds they are taken in different settings, are natural and not staged. The Tribunal also notes that although his father’s photograph attached to his Taskera is of poor quality, it is similar to the father’s image in the photographs provided by the applicant. The Tribunal finds the family photographs support the applicant’s claim that his parents are alive and living in Pakistan as declared in his protection visa application. The Tribunal further notes that the translated marriage certificate lists the applicant’s father as a witness at his wedding. The Tribunal also notes that the marriage certificate and child’s birth certificate (as issued from the hospital) refer to the applicant as [the applicant]. The Tribunal has given this evidence significant weight in supporting the applicant’s claim that he declared his true identity when he arrived in Australia and applied for the protection visa.

Conclusions as to the applicant’s identity

The Tribunal accepts that the problem of undocumented refugees is exacerbated due to porous and unregulated borders between Afghanistan and Pakistan. As detailed above, reports confirm that decades of border-hopping between Afghanistan and Pakistan mean some people, such as the applicant, who are technically Afghan nationals were raised outside of that country and may not have access to legitimate identity documents when they arrived in Australia. For the reasons above and having considered each of the matters raised in the NOICC, the Tribunal is satisfied the applicant’s identity is as claimed. It accepts he is [the applicant], a Hazara Shia Muslim who was born in Ghazni Province, Afghanistan in [Year 1].

For these reasons, 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.

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

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.

Christopher Smolicz
Member

Centre, 22 May 2019,

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1917711 (Migration) [2020] AATA 5164

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AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444

[2020] AATA 5164

22 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction