1918722 (Refugee)
[2021] AATA 3503
•11 August 2021
1918722 (Refugee) [2021] AATA 3503 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918722
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Frances Simmons
DATE:11 August 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 790 (Safe Haven Enterprise Visa) visa.
Statement made on 11 August 2021 at 7:30pm
CATCHWORDS
REFUGEE – protection visa – cancellation – Afghanistan – incorrect information – irregular maritime arrival – claimed to be Pakistani citizen – Hazara – Shia – previous applications for humanitarian visas under different names – inconsistent evidence – applicant is citizen of Afghanistan – US withdrawal from Afghanistan – applicant’s ethnicity and religion – no support in Afghanistan – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2), 46A, 101-107, 109(1), 140, 189, 197C, 197D(2), 195A, 197AB, 198, 198(5), 438
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, r 2.41CASES
Commonwealth of Australia v AJL20 [2021] HCA 21
MIAC v Khadgi (2010) 190 FCR 248
Ibrahim v MHA [2019] FCAFC 89
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Evidence before the Tribunal
Restrictions on the disclosure of information
The Department’s file contains a certificate dated 19 July 2019 restricting the disclosure of certain information given to the Tribunal by the Department under s.438 of the Act. This certificate provides states that the disclosure of the information contained in folios 1–4, 6–7, 8–9 of file number [deleted] would be contrary to the public interest as it contains ‘documents or information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods’ and could ‘potentially be used to assist people to circumvent the Department’s processes’.
The Tribunal is satisfied that the s.438 certificate identifies a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest. The applicant did not make any comment on the validity of the certificate other than to state he accepted the Tribunal’s decision. In any event, the Tribunal is of the view that the adverse information that the Department relied on in making its decision was disclosed to the applicant in the Notice of Intention to Consider Cancellation (NOICC).
Background
The applicant arrived in Australia by boat [in] November 2012, and identified himself as [Name 1] (DOB [DOB 1]), a Pakistani citizen. On 22 January 2016 he applied for a Safe Haven Enterprise Visa (SHEV) (Subclass 790). This application was accompanied by a copy of a Pakistani National Identity Card (NIC) in the name of [Name 1] (DOB [DOB 1]), a marriage certificate relating to the marriage of [Name 1] and [Ms A], and a birth certificate in his claimed identity. He was granted the SHEV visa on 3 March 2017.
On 30 April 2019, the Department sent the applicant an NOICC of his SHEV visa. The NOICC alleged that the applicant provided incorrect information in his protection visa application as to his name, date of birth, nationality, family composition and visa history. The Department had formed this view because it conducted a Facial Image Comparison Report dated 20 November 2018 comparing images of the applicant taken on arrival in Australia to images from an application for an offshore Subclass 202 visa that was lodged on 1 December 2009. The Forensic Facial Image Examiner concluded that the images of [Name 1] (DOB [DOB 1]), the identity the applicant claimed when he applied for a SHEV, and [applicant name] ([DOB 2]) were of the same person.
The Department considered that the results of the forensic facial image comparison indicated that the applicant had been known by the name of [applicant name] (DOB [DOB 2]) and that he previously applied for a Global Special Humanitarian (Subclass 202) visa. This application was lodged by [Mr B] (DOB [Year 3]) in 2009 and the applicant was included as a secondary applicant in the name of [applicant name] (DOB [DOB 2]). The application was proposed by [Mr B] (DOB [DOB 4]), [applicant name]’s brother. In the Form 842 - Application for an Offshore Humanitarian visa, the applicant’s father [Mr B] (DOB [Year 3]) was listed as the primary applicant and identified as a citizen of Afghanistan, residing in Pakistan as a refugee. The applicant was listed as [Mr B]’s son, born in Afghanistan and a citizen of Afghanistan. His mother was listed as [Name deleted] (DOB [year]). A copy of an Afghan passport number [deleted] was provided in the name of [applicant name], s/o [Name 2], date of birth [DOB 2]. This application was refused on 4 June 2010.
In the response to the NOICC, the applicant conceded that he provided incorrect information to the Department in the SHEV application. The applicant stated that the correct information is that he is [applicant name], [an age]-year-old national of Afghanistan. He is of Hazara ethnicity and Shi’a religion. He stated he is a citizen of Afghanistan who was born around [DOB 2] although, in truth, like most Afghans, this date of birth was only an approximate date. He stated that his blood brother, [Mr B] (DOB [DOB 4]), is an Australian citizen, residing in Australia, and his sister, [Ms C], lives in Melbourne. He states that he is married to [Ms A], a citizen of Pakistan, and that he does not have any legal right to reside in any country other than Afghanistan. He states that it is not true that he is a citizen of Pakistan and that his father, [Mr D], is a citizen of Afghanistan.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b). The delegate considered that the information the applicant provided about his name, date of birth, nationality, previous immigration history and his personal contacts in Australia in his application for the SHEV visa was incorrect. The incorrect information can be summarised as follows:
· At question 3 and question 6 the applicant stated his full name was [Name 1].
· At question 9 in answer to a question about whether he had ever been known by any other name he answers no (including name at birth, before or after marriage, adoptive or foster name, alias or pseudonym, cultural or tribal name or clan, preferred name, other spellings of name).
· At question 15 and 16 the applicant stated his date of birth was [DOB 1] and he had not ever had a different date of birth.
· At question 17 and 18 when the applicant stated his place of birth was Quetta, Baluchistan Pakistan and his citizenship at birth was Pakistani. At question 23, 24, and 26 when he indicated he was not and had not been a citizen of any other country and that he did not have a right to reside in any other country than Pakistan.
· At question 46 the applicant stated he had no personal contacts in Australia.
· In response to question 65 about whether he had ever had an Australian immigration visa refused or cancelled, the applicant answered no. In response to a question 67 about whether he had ever applied for an Australian visa outside of Australia, the applicant answered no.
These items of information were all said to be incorrect because a forensic facial image comparison conducted by the Department has identified that [Name 1] ([DOB 1]) and [applicant name] (DOB [Year 2]) represent the same person. This, in turn, indicated to the Department that the applicant lodged a secondary application for a Global Special Humanitarian (Subclass 202) visa application for Australia in 2009 in the name of [applicant name] (DOB [Year 2]). In the GSH application, the applicant provided an Afghan passport, document number [deleted], in the name of [applicant name] s/o [Name 2].
In addition to this information, the Department also considered the information the applicant provided at question 18 and 26 of part C to be incorrect because in the 2009 application, the applicant’s father, [Name 2] was listed as a citizen of Afghanistan. In accordance with Article 9, Law on Citizenship of the Islamic Emirate of Afghanistan (lEA), a person born from parents holding citizenship of the lEA abroad or within the territory of the lEA is considered to be a citizen of the lEA.
The Department also considered that the 2009 application was proposed by [Mr B] (DOB [DOB 4]) and stated this person was the brother of [applicant name].
Response to NOICC
In his NOICC response, the applicant conceded that he provided incorrect information in his application for a SHEV visa.[1] He declared that the correct information was that he was a citizen of Afghanistan named [applicant name] born on approximately [DOB 2] in Afghanistan, and a national of Afghanistan. His brother, [Mr B] (DOB: [DOB 4]), is an Australian citizen. His wife is [Ms A], a Pakistani citizen. The applicant’s representative provided submissions in response to the NOICC on 14 May 2019 and 6 June 2019.
[1] Statutory declaration by the applicant, dated 31 May 2019 (Department file [number] f.70)
The applicant provided a table setting out the composition of his family dated 7 December 2020. According to this table:
a.The applicant is married to [Ms A], a Pakistani citizen. Together they have two children[in] Pakistan.
b.The applicant’s father is [Mr D] born in [year] in Afghanistan and currently resident in Pakistan as a refugee. The applicant’s mother is [deleted] and she was born in Afghanistan and is living in Pakistan as a refugee.
c.The applicant has three sisters, [Ms E], [Ms C][2] and [Ms F] all of whom were born in Afghanistan. [Ms F] and [Ms E] live in Afghanistan and [Ms C] is in Australia.
d.The applicant has three brothers, two of whom live in Pakistan and one of whom ([Mr B]) lives in Australia.
e.The applicant has a paternal uncle in Afghanistan, [Uncle 1] and a first cousin, [Mr G], son of [Uncle 1], who are both citizens of Afghanistan who now reside in Pakistan.
[2] [Ms C] is sometimes spelled [another way].
The applicant provided a copy of the statutory declaration dated 11 June 2016 that accompanied his application for a SHEV visa. The applicant provided various Pakistani identity documents, including a marriage registration certificate, a Pakistan ID card ([deleted]), Pakistan Driver’s Licence (untranslated); Pakistan Birth Certificate (translated and untranslated copy) with the SHEV visa application.
The applicant’s brother, [Mr B], provided a statutory declaration dated 3 June 2019, which states that he is a citizen of Australian and Afghanistan. He states he was ‘born in Afghanistan’ and came to Australia as a refugee. He is now married with a family and lives in Sydney where he has a small business. In his statutory declaration he declares:
1. My father’s official name is [Mr D], son of [Grandfather 1]. My father is known amongst his friends as [name] or [name]. I took the name of [surname] from my grandfather, [Grandfather 1].
2. I have a brother, [applicant name], living in Australia who has taken the name [NAME 1] in Australia. He currently works for me in my business. I also have a sister, [Ms C], who is married and lives in Melbourne.
3. I am willing to undertake a DNA test to establish the truth of my blood relationship with [Name 1], aka [applicant name], if required to do so …
The delegate concluded that there was non-compliance of the type described in the NOICC. The delegate considered that the correct information was that the applicant’s name was [applicant name], born in Afghanistan on [DOB 2].
APPLICATION FOR REVIEW
Evidence before the Tribunal
The applicant provided a taskera issued in the name of [applicant name] date of birth [DOB 5] (no. [deleted]). It records his father’s name as [Mr D], his grandfather’s name as [Grandfather 1], and his place of birth as Jaghori district in Ghazni province. The taskera appears to have been issued in [2019] while the applicant was present in Australia.
The applicant also provided a statutory declaration dated 9 December 2020. The annexures to this statutory declaration included the previous statutory declarations sworn by the applicant and his brother, the table setting out the details of his family members, childhood photographs reportedly taken in Afghanistan and the following documents:
a.Government of Pakistan National Database and Registration Authority (Ministry of Interior) - Certificate of Children Under the Age of Eighteen for the applicant’s two sons issued to [Ms A] (his wife) on [date]/11/2018.
b.Taskera for [Mr D] (the applicant’s father) son of [Grandfather 1] which was issued [in] July 1974. It STATES [Mr D] was born in [a] village in Jaghori in Ghazni province.
c.The applicant’s Islamic Republic of Afghanistan National Identity Verification Application form.
d.An email from the Afghan Embassy dated [date]/05/2019 confirming the applicant’s appointment at 11:30am [in] June 2019 in relation to an ‘Absentee Tazkira’.
e.Taskera for [Mr G] (the applicant’s paternal uncle’s son) and the Afghan citizen card issued to [Mr G] by the Pakistani authorities.
f.Taskera for [Uncle 1] (the applicant’s paternal uncle).
g.A taskera in the name of [applicant name] ([deleted]) issued to the applicant in [2019].
h.A copy of email advice about appointment with the Afghan Embassy for passport application dated [date]/07/2019.
i.A certified copy of the biodata page of the applicant’s Afghan passport, in the name of [applicant name] ([DOB 5]) which was issued in Canberra [in] 2019.[3]
[3] Translated and untranslated copies provided for all the Taskeras.
The applicant provided copies of his Australian certificate of identity[4] and his tax return for the period 01.07/2019-30/06/202.
[4] Australian Certificate of Identity - No. [deleted] (expired [date]/07/2019) – filed on [date]/12/2020; Australian Certificate of Identity - No. [deleted] (expired [date]/04/2018) – filed on [date]/12/2020.
The applicant and [Mr B]. appeared before the Tribunal on 1 December 2020 and 8 April 2021. Where relevant their evidence is discussed further below. The applicant appeared before the Tribunal on 1 December 2020 and 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B], who is the brother of the applicant. 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]. Where relevant the evidence provided to the Tribunal is discussed further below.
On 23 June 2021 the results of a DNA test concluded there is very strong support for a full sibling relationship between [Mr B] [applicant name] and [Mr B].
The situation of Hazaras in Pakistan
The applicant claims to be of Hazara ethnicity and Shi’a faith. He claims that he was born in Afghanistan and left Afghanistan as a very young child and resided in Pakistan with his family. He has no memory of life in Afghanistan. Hazaras are a predominantly Shi’a ethnic group with distinguishable physical features; originally from Afghanistan, a significant population has lived in Pakistan for over a century, principally in Quetta.[5] The applicant has consistently identified himself as a member of the Hazara Shi’a minority and gave evidence with the assistance of a Hazaragi interpreter.
[5] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, ss.3.27–3.28 ‘War and Migration’, Alessandro Monsutti, Routledge, 2012, p.105.
The Tribunal accepts that the applicant and his brother are members of the Hazara Shi’a minority. Hazaras generally originate in Afghanistan but systematic discrimination and targeted violence have led to decades of persecution and displacement. Because Hazaras were the targets of discrimination and violence, first at the hands of the Soviet-backed regime and then the Taliban, many Hazara seek refuge in Pakistan:
Some Hazara families’ origins in Quetta can be traced back to the late 19th century, though the majority of the community immigrated in two waves – the first during the Soviet occupation of Afghanistan from 1979 onwards, and the second in 1996, when the Taliban regime in Afghanistan began to target the Hazara.[6]
[6] EASO, Pakistan Country Overview, August 2015, >
The following report provides context about the complexities that can arise when members of the Afghan Hazara ethnic minority group seek to establish their identity for the purpose of applying for asylum in Australia:
The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan 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. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.
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.[7]
[7] Comparative international approaches to establishing identity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, no. 8, April 2018, Kristian Hollins p.4.
The applicant claims that he was born in Afghanistan in [Year 2] and arrived in Pakistan as a child. Multiple sources indicate that Afghan refugees who arrived in Pakistan after 1962 cannot claim citizenship under the Citizenship Act as the law that governs their residence in Pakistan is the Foreigners Act 1946.[8]
[8] Report on Citizenship Law: Pakistan, Nazir, F, EUDO Citizenship Observatory, December 2016, pp.5–6.
The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[9] However, while the Citizenship Act includes provision for citizenship by birth, by descent and by migration, in practice the country information indicates that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan prior to 1962.[10] The government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[11] despite being the subject of legal challenge in the past.[12]
[9] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015.
[10] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14 (Country information details 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 resident at this time to be recognised as Pakistan nationals and granted citizenship).
[11] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, p.30.
[12] For e.g.‘NADRA submits reply in Hafiz Hamdullah citizenship case’, Pakistan Today, 23 November 2019.
The Department of Foreign Affairs (DFAT) advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire the Pakistani National Identity Cards required to access government and other services.[13] While Hazara arrivals from Afghanistan typically do not have citizenship, they are able to access immigration cards which provide some rights including access to drivers’ licences.[14] Many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a taskera or UNHCR registration documents.[15]
[13] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.
[14] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.
[15] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.
In the case of Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai) the Peshawar High Court considered the situation of Mr Sanai, a young man who was born in Pakistan to Afghan refugee parents. The Court observed his father had, in relying on false information, managed to obtain a National Identity Card and Pakistan passport, which had then been cancelled. However, while the position of Mr Sanai was that since he had been living in Pakistan for so long and intended to remain in Pakistan he had become a Pakistani national, the Court reasoned:
The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens."[16]
[16] Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Peshawar 18; see also 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.
Applying this reasoning, Afghan refugees are considered to be foreigners and aliens under the Foreigners Act 1946, which 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[17] and therefore the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[18] 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.[19]
[17] Sections 14, 2 of the Foreigners Act 1946.
[18] ‘Report on Citizenship Law: Pakistan’, European University Institute, Faryal Nazir, 01 December 2016.
[19] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >
The country information set out above indicates that there is currently no legal process by which Afghans in Pakistan after 1962 may legitimately acquire citizenship, regardless of whether they are living in the community without registration or if they have the status of registered refugees. However, reports indicate that significant numbers of Afghans have illegally obtained identity documents in Pakistan.[20] This country information informs the Tribunal’s assessment of the applicant’s evidence about his nationality.
The applicant’s nationality and place of birth
[20] ‘NADRA is disrupting demographics in Balochistan by issuing fake ID cards’, The Nation (Pakistan), 7 August 2015, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17.
In response to the NOICC, the applicant conceded he provided incorrect information when he identified himself as [Name 1], a citizen of Pakistan. The applicant stated the correct information that he is a citizen of Afghanistan and that his full name is [applicant name]. He was born [in] Ghazni, Jaghori, Afghanistan. This was the village where his father, [Mr D] was born. His mother was [deleted]. He had three sisters and three brothers. He was around [age] years old when he left Afghanistan. His parents are alive and residing in Pakistan. Two of his sisters currently reside in Pakistan, and one sister, [Ms C], resides in Melbourne. He was not sure what [Ms C]’s immigration status was. She arrived in Australia after him after her husband sponsored her. He has two sisters in Quetta: the elder is [Ms E] and the younger is [Ms F]. He has one brother in Australia ([Mr B]) and two brothers living in Pakistan. He does not have step siblings. Growing up he lived with all of his siblings in Pakistan.
The applicant told the Tribunal that while he was living in Pakistan he obtained false Pakistani identity documents (a passport, national identity card(NIC), and birth certificate) in the name of [Name 1]. Asked when he first acquired a national identity card in Pakistan, he said he didn’t exactly remember – maybe between eight to twelve years ago. He obtained his Pakistani identity documents using an agent. The applicant initially said that he married his wife before he obtained an NIC but then subsequently clarified he had obtained Pakistani identity documents before he married his wife. He said without this ID his children would spend their lives doing labour jobs. He had a Pakistani birth certificate that he obtained by paying money. The applicant told the Tribunal he had a passport in the name of [Name 1]. The applicant referred to [a named person] (now deceased), who identified as his uncle, and said this uncle went to Pakistan for work a long time ago. His uncle’s son died, and the applicant bought the name of his son. [Grandfather 1] is his grandfather, and this is the name listed on his birth certificate.
The applicant was asked about what identity documentation his family members used in Pakistan. The applicant initially claimed he was not sure if his parents or siblings had obtained NICs. He told the Tribunal that his sister [Ms C] was born in Afghanistan and all his siblings were born in Afghanistan. He did not know how [Ms C] came to travel to Australia or what passport she used to travel to Australia. He said she was born in Afghanistan as ‘we were all born in Afghanistan’. He had not asked her whether she had a Pakistani passport. The applicant then subsequently gave evidence that he had assisted her to an identity card because she was of an age where she should study and no one would accept her without an NIC. The Tribunal put to the applicant its concerns that he had initially stated that he did not know whether any of his family members had NICs and then later gave evidence his sister had an NIC and he helped obtain this NIC for her. The applicant claimed he did not know whether his other siblings had NICs as they did not study; he knew about his sister because she studied. He maintained that he did not know whether his parents had obtained NICs.
The applicant told the Tribunal that he married a Pakistani citizen, [Ms A], in 2010. Together they have two children. His children live in Pakistan with his wife. Movement records indicate that the applicant has departed twice Australia (in 2017 and 2018) since his arrival in 2012. He claims that he did not return to Pakistan but travelled to Iran. He claims on the first occasion he met his wife in Iran and this is where they conceived their second child. After initially saying he was not sure if his wife had a passport, he then said she did have a passport and he knew this as she had travelled to Iran. Asked whether she would have records of her travel to Iran, he referred to photographs and suggested that there would be stamps in her passport (the applicant provided evidence of visa stamps relating to his travel to Iran but evidence of his wife’s travel to Iran was not provided to the Tribunal).
The applicant conceded that there was non-compliance of the type described in NOICC. The Tribunal discussed with the applicant that one issue it had to consider was what was his correct identity and whether he would return to Pakistan or Afghanistan.
The Tribunal raised with the applicant that it appeared that his Pakistani identity documents were relied upon to obtain birth certificates for his two children. The Tribunal put to the applicant that the birth certificates of his sons suggest that they are Pakistani citizens. His evidence about how these documents were acquired was somewhat unclear, but he claimed that everything happened by paying money. He confirmed that his children’s birth certificates refer to his name and his computerised national identity card (CNIC) number. He told the Tribunal that his wife lives with his parents as do his children, his brother and his family and his younger brother. He sends money to his wife through money transferring agencies. Asked if his children were Pakistani or Afghan citizens, he said he didn’t know. He was an Afghan citizen and that their mother was Pakistani. He thought that his children should be Afghan citizens.
In support of his claim to be a citizen of Afghanistan, the applicant has provided a taskera in his claimed identity and an Afghan passport issued in Canberra in [2019]. He gave evidence about his visit to the Afghan embassy in Canberra June 2019 and the process involved in obtaining a taskera and an Afghan passport. He told the Tribunal left Afghanistan with his whole family when he was a young child. He could not recall his time in Afghanistan; he recalled farming and cattle, nothing else. He has provided photographs which he claims show him and his siblings as children in Afghanistan, but it is not possible determine where or when these photographs were taken.
The applicant told the Tribunal that the documents provided with the 2009 application were fraudulent. The applicant maintained the Afghan identity documentation he obtained in 2019 through the procedures established by the Afghan embassy in Canberra were genuine.
Evidence of [Mr B]
The applicant’s brother, [Mr B]gave evidence in support of the claim that his brother was an Afghan citizen. [Mr B] holds an Australian passport which records that he was born on [DOB 4] in Jaghori district in Ghazni province. According to departmental records, he first arrived on Nauru in 2001. He was found to be a refugee with a well-founded fear of persecution in Afghanistan and settled in Australia. What follows is a brief summary of the evidence he gave to the Tribunal on 20 December 2020 and 20 April 2021.
[Mr B] told the Tribunal that he was born in Afghanistan but he could not recall how old he was when he left Afghanistan. It was a hard question as he was still a child when he left. He could have been between [age range] years old, but it was very hard to remember. He did not have any memories of his life in Afghanistan and he could not remember how he left Afghanistan or who he left with. [Mr B] was not sure how many years he lived in Pakistan before travelling from Pakistan to Indonesia en route to Australia: roughly five to 10 years maybe more. [Mr B] left Pakistan when he was under 18 (he might have been [age range]). He didn’t have a passport; the arrangements for his departure were made by an agent. He never had any type of identity documentation in Pakistan as he was too young. He learnt English at a detention centre in Nauru. The Tribunal was told that he had memory problems (no medical evidence was produced to support this claim).
At the first hearing [Mr B] was asked about his family composition. Consistent with the evidence of the applicant, he told the Tribunal he had two sisters ([Ms F] and [Ms C]), no stepsisters, and three brothers (the applicant and two brothers in Pakistan). His parents are alive and living in Quetta. Like the applicant, he denied having stepsiblings. However, he omitted to mention the third sister named by the applicant and, when questioned about how many sisters he had, he gave clear evidence that he only had two sisters. He identified [Mr G] as his uncle’s son; he believes he lives in Pakistan.
[Mr B] told the Tribunal that since he has settled in Australia he has married and had children. He has been back to Pakistan. The applicant lived with him in Sydney for a few months and now he works for him in a [business]. He last saw his parents when he visited Pakistan in 2016/2017. He said that they live with their family including one of his brothers. He was not sure who else his parents lived with. [Mr B] said the applicant was married but he had not met his wife and appeared not to know how many children his brother had.
[Mr B] told the Tribunal that in 2009 he made an application to bring his family to Australia. He told the Tribunal that he included his parents and one or two family members who were not from his immediate family. He gave evidence that he included his two sisters who he identified as [Ms C] and [Ms F] and the applicant. He could not recall if he included his oldest brother in the 2009 application and indicated he may not have done so as he was married and independent. He also included his mother and father and a woman called [name deleted] (not his sister). [Mr B] confirmed that he only had two sisters ([Ms C] and [Ms F]).
[Mr B] told the Tribunal that the Afghan passports that accompanied the offshore application in 2009 were fraudulent documents that were ‘made in Quetta’. He told the Tribunal that his father’s name was [name]. He sends money back to his dad in Pakistan every month. He has no idea who lives in his father’s house. He sends the money to them and they text him. When asked if he had any relatives in Afghanistan, he said his uncle [who] is now deceased. [Mr B] has not returned to Afghanistan. He confirmed the documents that were provided with the 2009 application were fraudulently made in Quetta. [Mr B] told the Tribunal that he did not know whether any of his brothers and sisters had Pakistani passports or if they had acquired NICs in Pakistan.
The Tribunal was concerned that [Mr B] and the applicant gave inconsistent evidence about whether they had three sisters or two b sisters. At the second hearing [Mr B] clarified that he had three sisters, not two sisters. Asked how he could be mistaken about how many sisters he had said he had a full and busy life in Australia and that his sister had married and had a separate life and he did not remember everything about that at that time.
Family composition
The applicant states that the information that he provided about his family composition in his application for a SHEV was incorrect. In the SHEV application the applicant provided his Pakistani NIC number and a Pakistani birth certificate as well as a copy of his marriage certificate. He stated his father and mother were deceased and he had two stepsisters: [Ms F] (DOB [date]) and [Ms C] (DOB [date]). He did not disclose that he had a brother in Australia or two other brothers in Pakistan.
In the 2009 application, the applicant was listed as a dependent applicant and provided the identity, [applicant name]. The main applicant for this XB202 visa was the applicant’s claimed father [Mr B], (DOB [Year 3]) and the proposer was his brother, who was a permanent resident of Australia. The following family composition was provided:
·[Name deleted] ([year]) (mother);
·[Ms F] ([year]) (sister);
·[name deleted] ([year]) (brother);
·[name deleted] ([year]) (sister);
·[Ms C] ([year]);
·Proposer: [Mr B] (DOB [deleted]) (brother).
The Tribunal accepts that the applicant’s brother, [Mr B], travelled to Australia by boat in 2001 and was found to be a refugee who had a well-founded fear of persecution in Afghanistan. Despite stating that they grew up in the same house, the applicant and his brother provided inconsistent evidence about how many sisters they had and [Mr B] was also unaware of how many children the applicant had. Because of these discrepancies in their evidence about their family composition, the Tribunal accepted the applicant’s offer to undergo DNA testing.
The report [dated] [June] 2021 states DNA testing was undertaken to determine ‘whether [applicant name] and [Mr B] are related as biological siblings’. The report found:
The likelihood ratios show that there is very strong support for a full sibling relationship between [applicant name] and [Mr B] compared to them being unrelated individuals.
There is also s trong support for a half sibling relationship between [applicant name] and [Mr B] compared to them being unrelated individuals
A Comparative analysis shows that [applicant name] and [Mr B] are approximately 2.8 times more likely to be related as full compared to half biological siblings.
· Although there is slightly more support for a full sibling relationship, the Kinship Index of 2.8 falls in the inconclusive range.
· The Combined Kinship Indices provide sufficient evidence to find that [applicant name] and [Mr B] are likely to be related as biological siblings, although it is deemed inconclusive as to whether they are full or half siblings.
The population statistics were derived from an Afghani population database
The report continues that [applicant name] and [Mr B] have the same Y chromosome and this provides very strong support for the conclusion that they are paternally related and share the same biological father.
The Tribunal accepts that the applicant and [Mr B] are brothers. The Tribunal also accepts, based on their consistent oral evidence, that their sister, [Ms C], lives in Melbourne. The information before the Tribunal indicates that [Ms C] travelled to Australia holding a Pakistani passport. However, the Tribunal accepts, based on the evidence it has been provided, that if it had taken evidence from [Ms C] she would have sought to support the evidence of her brothers, which is that the siblings were born in Afghanistan and, when they were very young children, they arrived in Pakistan from Afghanistan. The consistent evidence of the brothers was that their parents were alive and living in Quetta.
The Tribunal finds, based on the applicant’s concessions and the evidence before it that the applicant provided incorrect information about his family composition in the SHEV application. The Tribunal finds that neither the 2009 application nor the SHEV application provide an accurate description of the applicant’s family composition. The Tribunal was concerned that the applicant and his brother provided inconsistent evidence about how many sisters they had. No evidence was produced to support the claim that [Mr B] has a poor memory. Any future claims made by the applicant in relation to the composition of his immediate family should be carefully scrutinised.
The Tribunal is satisfied that the applicant is the brother of [Mr B]. The Tribunal also accepts that the applicant’s sister, [Ms C], is resident in Australia.
Identity documentation
Taskera and passport
The taskera, a one-page official identity certificate issued by the NSIA, is the primary form of identification for Afghan citizens. Document fraud is a major issue in Afghanistan, and this is particularly problematic in the case of taskeras.[21] In 2019 DFAT reported that while it was hoped that the issuance of new e-taskeras (launched officially in May 2018) should help mitigate the risk of document fraud as new e-NIC has international security features, the rollout continues to have issues. Corruption and bribery still invalidate the trustworthiness of identity documents and fraud remains a major issue in Afghanistan. According to DFAT, genuine documents can be issued based on false information, with support forms of documentation such as school, academic or bank records easily forged.
[21] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.54.
NSIA replaced the Afghan Central Civil Registration Authority (ACCRA) in 2020 as the authority responsible for issuing and verifying taskeras.[22] Taskeras are now obtained through an online application. Throughout 2019 and 2020, Afghan citizens had the data from their paper taskeras entered into a computerised system. In 2020, a new national digital system for identity verification was created by the NSIA. A statement released by NSIA regarding the ceasing of the document verification process read:
Paper tazkira issued and processed to Afghan citizens under the civil registration law is a valid document and does not require any verification.
National Statistics and Information Authority (NSIA) has stopped the paper tazkira verification services as of January 11, 2021, and does not conduct any verification of the paper tazkira.[23]
[22] Department of Home Affairs, COISS, ‘Afghan identity Documents (Tazkira Taskira Taskera)’ 20210415145526 (27 April 2021) p.2.
[23] ‘NSIA Announcement on Stopping Paper Tazkira (NID) Verification Services’, National Statistics and Information Authority (Afghanistan), 9 January 2021, 20210215115445
The applicant provided the Tribunal with a taskera (no. [deleted]) issued in his name in [2019]. The taskera records that his name is [applicant name], he was born on [DOB 5] in Jaghori district of Ghazni province and his father is [Mr D]. The taskera carries stamps dated [July] 2019 and appears to have been issued on that date.
The applicant claims that he obtained this taskera in 2019 through a process that he initiated when he visited the Embassy of the Islamic Republic in Afghanistan in Canberra [in] June 2019. He gave evidence that before visiting the embassy he completed an identity verification form (a copy was provided to the Tribunal) and obtained photographs: the embassy staff checked the form and asked for four photographs of which they kept three. His application was stamped and he was informed he could take it to Afghanistan and obtain documents from there. He did not go to Afghanistan but sent the package to Pakistan. He was advised that he required a representative, someone with their contact number who could go to Afghanistan and the relevant departments with this letter and ask for ID cards with the letter. He claims that his cousin [Mr G], who is a citizen of Afghanistan and resident in Pakistan, assisted him to do this. He claims [Mr G] went to Afghanistan to get the taskera for him and he received the taskera electronically. The applicant has had a passport issued to him by the Afghan embassy.
The website of the Afghan embassy in Canberra still contains information about the process for obtaining a taskera before the introduction of the new national digital system for identity verification and does not mention the new procedure through NSIA. Instead it sets the former procedure for applying for absentee taskiras. The website explains:
The Embassy of Islamic Republic of Afghanistan is not the authority to issue Tazkira (Afghan National ID). Only part of the process for obtaining a Tazkira in absentia can be initiated through this Embassy. An Afghan, who wish to obtain a Tazkira, can initiate the process at this Embassy based on having one of her/his paternal relatives’ Tazkira including father, grandfather, siblings, uncles (father’s brothers), aunts (father’s sisters) and cousins of father’s side.[24]
[24] Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039
According to the Embassy website, an interview is conducted with the applicant at the embassy and after the completed form is submitted at the embassy, the Embassy prepares ‘a document package’. This document package is sent to the ACCRA under cover of an official letter from the Embassy. A copy of the document package is also sent to the Consular Affairs Directorate of the Ministry of Foreign Affairs (MoFA), while the original package is returned to the applicant. The Embassy website explains:
The applicant should send the original package to her/his representative or relative in Afghanistan, whose details are included in the application form, for further assessment and processing. After this, the file is closed at the Embassy and requires NO further follow up. If the applicant fulfils all the requirements and is deemed entitled for a Tazkira by ACCRA, he/she will be issued an Afghan Tazkira in absentia by ACCRA. Applicant’s representative or relative, mentioned in the application form, can collect the original Tazkira from ACCRA, Afghanistan (NOT from the Embassy).”[25]
[25] ‘Absentee tazkira’, Embassy of Afghanistan, Canberra, n.d., CXBB8A1DA38039
Landinfo reports that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskera.[26] The Danish National ID Centre published information about taskeras on 16 May 2019, referring to the newest iteration of the paper taskera, without providing specific details of the information given on it:
The A4 paper version of the tazkera has been issued since 2001. According to the Swiss Refugee Council, every clerk has its own style, when it comes to fill the tazkera by hand. In the original version printed in Pashto, there is no room for surnames, as these are traditionally not used in Afghanistan, and there is no information regarding the mother of the applicant either.
Tazkera do not contain information about the date of birth or the place of birth. Instead, tazkeras normally contain the year its owner was born or an estimate of the person´s age at the moment the document was issued. According to the Immigration and Refugee Board of Canada, the place of birth is not indicated either on the document. The “place of birth” field on tazkera refers to the birth place of the applicant´s father, who also will have applied for the document on behalf of the applicant. It can also refer to the place where the family comes from. Although surnames and dates of birth do not appear in the original version of the document, they are found on English translations of the document. In these cases, surnames are the product of individual choices and it is normal for siblings to choose different surnames.[27]
[26] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 Afghanistan: National Identity card (Tazkera), Danish National ID Centre, 16 May 2019, p.7 20190520111530.
The applicant has provided a copy of his taskera and a copy of an Afghan passport issued by the Afghan embassy in Canberra. To obtain an absentee taskera in 2019 it appears the only documentary requirement was to provide a paternal relative’s taskera and this is what the applicant has said he did. The only other identity verification was an interview held at the embassy, which the evidence indicates the applicant attended in June 2019. On balance, the Tribunal accepts his evidence that he then acquired a taskera with the assistance of his cousin, [Mr G].
The Tribunal therefore accepts that the applicant presented documentation of his paternal relatives to the Afghan embassy in Canberra and obtained a taskera in the name of [applicant name] with the assistance of his cousin [Mr G]. In relation to passport applications, website of the Afghan embassy in Canberra states:
All applicants who do not possess verified Tazkiras should apply for Absentee Tazkira (Please refer to relevant section for further information on Absentee Tazkiras). Starting from solar year 1396, Tazkiras issued in absence of the person which are not processed through the Embassy, are not valid.
The Tribunal accepts that the applicant has been issued with a passport by the Afghan embassy in the name of [applicant name] ( [DOB5)) after he applied for, and obtained, an Absentee taskera.
Pakistani identity documentation
The applicant claims the documentation in the name of [Name 1] that he provided with his application for the SHEV visa was fraudulently obtained and that his true name is [applicant name] and he is an Afghan citizen. The applicant was questioned about how and why he acquired Pakistani identity documentation and what identity documentation his parents and siblings used in Pakistan. The Tribunal found his evidence about these issues vague and changeable. After telling the Tribunal that he did not know whether his parents and siblings had NICs in Pakistan he later disclosed that he helped his sister obtain a national identity card so she could study. The applicant gave evidence that he has two children in Pakistan and he has provided their birth certificates which refer to the CNIC number of [Name 1].
In Pakistan national identity documentation is available through both official and unofficial means, and document fraud is ubiquitous.[28] Corruption is endemic in Pakistan, and fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent feeder documents.[29] A 2018 report by the Danish National ID Centre recorded that ‘it is easy as well as almost risk-free to bribe officials at all levels of the Pakistani administration…according to a diplomatic source, there is, in general, little or no risk associated with acquiring forged documents or genuine documents with false content’.[30]
[28] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, p.71; ‘Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees’, ‘Human Rights Watch, 13 February 2017, pp.28–32; DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 1 September 2017, ss. 5.43–45.
[29] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.
[30] ‘Pakistan: The Pakistani passport and its trustworthiness’, Danish National ID Centre, 30 May 2018, p.4.
As noted above, significant numbers of Afghans have illegally obtained identity documents in Pakistan.[31] One report estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[32] Because the Pakistani authorities did not initially maintain proper records of refugees entering and leaving Pakistan and procedures to verify nationality were inadequate, ‘some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA’.[33] According to anthropologist Alessandro Monsutti, there are large Hazara networks in Pakistan and connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly. [34] This means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. [35]
[31] ‘NADRA is disrupting demographics in Balochistan by issuing fake ID cards’, The Nation (Pakistan), 7 August 2015, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17.
[32] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune, 3 April 2015, CX6A26A6E14660.
[33] ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p.145, St Martin’s Press, New York.
[34] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan’, Alessandro Monsutti, Routledge, 2005, pp.101, 111, 120–121, CIS29035; see also ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802. See also ‘Participatory Needs Assessment of Afghan Refugees in Balochistan 2014’, United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180.
[35] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802.
The Tribunal put to the applicant the issuance of bogus, or fraudulently obtained genuine NICs to Afghan refugees is of particular concern to NADRA with ongoing verification and blocking of NICs issued to Afghans.[36] Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees.[37] In response to this information, the applicant has not claimed that his NIC has ever been blocked or cancelled. Further, the birth certificates that have been provided for his children list their father as [Name 1] and provide his Pakistani CNIC. However, the country information indicates that genuine documents can be fraudulently obtained in Afghanistan and Pakistan. DFAT assesses that ‘government efforts have reduced the incidence of bribery and fraud but have not eliminated it’.[38] While NADRA can identify fraudulent documents ‘detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents’.[39]
[36] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,
[38] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.
[39] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.
The applicant states that he is a citizen of Afghanistan and has no right to reside in Pakistan. Having regard to the country information set out above, the Tribunal accepts that it is possible that the applicant was able to obtain false Pakistani identity documents and apply for a Pakistani passport in the name of [Name 1]. The Tribunal also accepts that it possible these documents were relied upon to obtain identity documentation for his children. The Tribunal finds that it is possible the applicant was recognised as a Pakistani citizen by Pakistani authorities but notes his evidence is that he obtained Pakistani identity documentation by providing false information to the Pakistani authorities. Pakistani law does not allow dual Afghan and Pakistani citizenship[40] and a person can be deprived of citizenship if he obtains citizenship of Pakistan either fraudulently or by misrepresentation.[41]
The applicant’s correct identity
[40] Section 14 of the Pakistan Citizenship Act, 1951 [Pakistan], 13 April 1951, available at: ‘The Pakistan CitizenshipAct, 1951 (as amended to 2000)’, Government of Pakistan, 15 August 2016.
[41] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory p.13
The applicant has presented documentary evidence of two alternative identities: [Name 1], a Pakistani citizen born in [Year 1] and [applicant name], a citizen of Afghanistan born in [Year 2]. The delegate who cancelled the visa found that the correct information was that the applicant was an Afghan citizen named [applicant name], not a Pakistani citizen named [Name 1]. In the first application, the applicant said that he was an Afghan citizen and relied on copies of an Afghan passport in the name of [applicant name] to support this claim. The Tribunal was informed applicant that passport pages that accompanied the 2009 application was ‘made in Quetta’ and were not genuine ([Mr B] explained that as they could not go to Afghanistan to acquire the documentation they made). The applicant maintains his true identity is [applicant name], an Afghan citizen and not [Name 1], a Pakistan citizen.
The applicant has provided a taskera issued in [2019] and passport issued to the applicant by the Afghan embassy in Canberra. He has given evidence that he has obtained these documents in accordance with the procedures established by the Afghan embassy in Canberra. In support of his claims to be an Afghan citizen the applicant has produced a taskera and an Afghan passport which has been issued in his name by the Afghan embassy in Canberra. While the Tribunal acknowledges that taskeras lack security features and Afghan identity documents are vulnerable to fraud, the Tribunal gives weight to the fact that the Afghan authorities recognise him as a citizen of Afghanistan. The Tribunal also gives weight to the fact that the applicant’s claim to be an Afghan citizen was supported by his brother who has been recognised by Australia as a refugee from Afghanistan.
The Tribunal acknowledges that the applicant comes from a culture with different naming practices, where dates of birth have little significance and it is common for people not to know when people were born and where surnames are not used or used more flexibly than in western societies. His brother [Mr B] arrived on Nauru in 2001 when he was a teenager. [Mr B]’s evidence about his early life in Pakistan was vague (he was still under 18 when he arrived on Nauru in 2001) but was broadly consistent with contemporaneous reports the situation of Afghan refugees in Pakistan. The Tribunal accepts that when he sought asylum in Australia he declared himself to be an Afghan citizen and was found to be owed protection obligation as a member of the Hazara Shi’a minority, a group that has long experienced discrimination and violence in both Afghanistan and Pakistan.
[74] ‘Bombing Outside Afghan School Kills at Least 90, With Girls as Targets’, Thomas Gibbons-Neff and Najim Rahim, New York Times, 8 May 2021.
[75] ‘At least 68 killed in Afghan school blast, families bury victims’, Reuters, 10 May 2021.
[76] ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 30 August 2018, pp.61–62.
[77] ‘Afghanistan: Fact-Finding Mission to Kabul in April 2019 - Situation of Returnees in Kabul’, Finnish Immigration Service, 15 October 2019, p.23.
[78] Mapping the advance of the Taliban in Afghanistan, BBC News, 4 August 2021
Future risk of harm
133. The Tribunal finds that the applicant is of Hazara ethnicity and Shi’a religion. While he has resided in Pakistan for most his life, he has no legal entitlement to reside in Pakistan. If he is removed from Australia to Afghanistan the Tribunal finds he will be removed to Kabul.[79] Based on the country information, the Tribunal is satisfied there is a real chance the applicant’s life would be threatened and he would be persecuted for the essential and significant reasons of his Hazara race, Shi’a religion and imputed political opinion if he were returned to Afghanistan. Given the risk of travelling on roads for Hazaras and western returnees the Tribunal is satisfied that there is a real chance that the applicant will face persecution throughout Afghanistan.
[79] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, p.51 (noting returnees from western countries almost exclusively return to Kabul).
134. The harm that the applicant fears from the Taliban and other anti-Shi’a militant groups. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable or unwilling to provide adequate protection against the harm. Even before the withdrawal of US and NATO troops from Afghanistan, DFAT reported that the ongoing armed conflict has significantly challenged the Afghan government’s ability to exercise effective control over large parts of the country.[80] In 2018 the UNHCR assessed that individuals who belong to one of Afghanistan’s minority ethnic groups, such as Hazaras, may, depending on the individual circumstances of the case, be in need of international refugee protection and noted the general inability of the state to protect these individuals.[81] Large-scale attacks in Kabul since the beginning of 2016 demonstrate the limits of the government’s ability to protect its citizens and the security situation continues to deteriorate as a resurgent Taliban launches a nationwide offensive.
[80] DFAT Country Information Report – Afghanistan, DFAT, 27 June 2019, pp.21–22.
[81] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 30 August 2018.
135. The Tribunal finds that the level of protection available to the applicant from the Afghan Government does not meet the level of protection which citizens are entitled to expect.[82]
[82] MIMA v Respondents S152/2003 (2004) 222 CLR 1.
136. The Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Hazara ethnicity, Shi’a religion and the political opinion that would be imputed to him by the Taliban and other anti-Shi’a militants because he would be readily identified as a Hazara Shi’a who has returned to Afghanistan from the west. The fact that the applicant has not lived in Afghanistan as an adult and does not have support networks in that country will only serve to elevate the high risk that he would face serious harm if removed to that country. It is also clear that the applicant would suffer significant hardship if returned to Afghanistan, where the already dire security conditions are deteriorating.
137. The Tribunal finds that the applicant is a refugee as that term is defined by Article 1A(2) of the Refugees Convention and if he were to be removed from Australia this would breach Australia’s non-refoulement obligations.
Conclusion
138. The Tribunal has considered the factors that weigh for and against the cancellation of the visa. The nature of the non-compliance in this case is extremely serious and not excused by circumstances or explained by the circumstances in which the non-compliance occurred. The Tribunal considers that the applicant has a partial and fragmented account of his life before seeking asylum. The discrepancies in the evidence of the applicant and his brother about their family composition suggests that any future visa applications should be carefully scrutinised. However, the Tribunal accepts that the applicant is of Hazara ethnicity and the Shi’a religion, a minority which has been persecuted in both Afghanistan and Pakistan.
139. The Tribunal accepts, on the evidence before it, that the applicant is most likely a citizen of Afghanistan. The applicant faces a real chance of persecution if he returns to Afghanistan in the reasonably foreseeable future, for the Convention reasons of his Hazara ethnicity, Shi’a religion and his imputed political opinion. The Tribunal accepts that the applicant has a well-founded fear of persecution throughout Afghanistan. He is a refugee and in determining that the visa should not be cancelled the Tribunal gives significant weight to the fact that his removal from Australia to Afghanistan would be in breach of Australia’s non-refoulement obligations and the possibility that, if he was unable to be removed from Australia for this reason, he may be subject to arbitrary or indefinite detention.
140. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
CONCLUSION
141. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
142. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa.
Frances Simmons
MemberATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b) no incorrect answers are given or provided.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
0
0