1920719 (Migration)

1920719 (Migration) [2020] AATA 5626 (23 September 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920719
MEMBER:Christopher Smolicz
DATE OF DECISION:  23 September 2020
DATE CORRIGENDUM
SIGNED:24 September 2020
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:

The words ‘In conclusion, having considered the evidence the Tribunal accepts that [Son Alias A] is the applicant’s biological son, the Tribunal does however find it concerning that the applicant repeatedly provided incorrect information about [Son Alias A] being her son throughout her dealings with the Department.’ at paragraph 92 should be replaced with:
‘In conclusion, having considered the evidence the Tribunal accepts that [Son Alias A] is not the applicant’s biological son, the Tribunal does however find it concerning that the applicant repeatedly provided incorrect information about [Son Alias A] being her son throughout her dealings with the Department.’
Christopher Smolicz
Member

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1920719

MEMBER:Christopher Smolicz
DATE:23 September 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 23 September 2020 at 2:17 pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – inconsistent details of children – inconsistent information regarding alleged son’s citizenship – Pakistani citizenship – applicant disclosed former husband’s true identity to Department – applicant pressured to include former husband’s son – taskeras obtained – family member in Australia – incorrect information in a previous protection visa application – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994

CASES
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 24 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 applicant took part in a video hearing before the Tribunal on 9 September 2020 and presented arguments and evidence in support of her application. The applicant’s representative was present at the hearing. The hearing was conducted with the assistance of an interpreter in the Dari and English languages.
Background
First, the Tribunal sets out the applicant’s migration history and relevant background leading to the decision to cancel her visa.
[In] April 2010 the applicant arrived at Christmas Island as an undocumented irregular maritime arrival (IMA) and identified herself as [name], an Afghan national of Shia religion and Hazara ethnicity born on [date]. She claimed to have had no formal education and to be illiterate. She travelled to Australia with a male who was identified as [Mr A].
The applicant applied for a Protection visa on 29 April 2011. She claimed [Mr A] was her second husband and they married in 2010 in Indonesia. [Mr A] was an Afghan, Hazara Shia Muslim who had converted to Christianity and she feared persecution because their marriage would not be recognised, and it is not acceptable to convert to another religion in Afghanistan.
Her first husband [Husband A] was a Hazara Shia member of the Hizb-e Wahdat political party and was killed by the Taliban in 2005 and her family have suffered persecution in Afghanistan because they are Hazara Shia Muslims. She declared to have seven children with her first husband.
In her Protection visa application and Refugee Status Assessment (RSA) interview the applicant confirmed she was born in Jaghori, Afghanistan and left unlawfully for Iran in 1999 with her first husband, due to being Shia Hazaras at risk of harm from the Taliban. In 2004 she and her first husband and children moved from Iran to Pakistan because they feared the Iranian government would expel them back to Afghanistan. They remained in Pakistan until 2010 before transiting through Iran, flying to [Country 1] and [Country 2] and travelling by boat to Indonesia and on to Australia. Her seven children remained in Pakistan and were cared for by her stepmother and half-sister [Ms B]. The Protection visa was granted on 4 May 2011.
On 3 June 2011 the applicant acted as a proposer for a Global Special Humanitarian (GSH) (Offshore) (XB 202) visa application for seven children (the first GSH visa application). The visa application was refused.
On 2 June 2015 the applicant reapplied for a second GSH visa application nominating six children. The visa application was refused.
On 9 June 2015 the applicant applied for Australian Citizenship. The application was refused on 22 October 2018 because the delegate was not satisfied as to the applicant’s identity.
On 8 June 2017 the applicant acted as a proposer for Child (Subclass 101) visa applications for six children. The application is pending.
On 19 October 2018 the applicant was granted the Five-Year Resident Return visa.
On 17 June 2019 the applicant was notified by the Department of an intention to consider cancelling her visa under s.116. The applicant responded to a Notice of Intention to Consider Cancellation (NOICC) of her visa and provided statutory declarations dated 1 July 2019 and 5 July 2019. She provided her taskera and that of her family members and various identity documents associated relating to her children.
On 24 July 2019 the delegate cancelled the Resident Return Subclass 155 visa under s.116(1AA) on the basis that the Minister was not satisfied as to the applicant’s identity.
The delegate’s decision to cancel the visa was based upon the view that the applicant had provided inconsistent and contradictory information regarding her marriage, citizenship, family composition, identity documentation and details surrounding her arrival to Australia throughout her dealings with the Department.
Issue
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
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
Since the grant of her Protection visa application the Department became aware of the following inconsistent information in relation to the applicant’s identity.
Inconsistent information regarding family composition
The applicant provided the following inconsistent information regarding her relationship with [Mr A] and her marital status:
·     In her Biodata Interview held [in] April 2010 the applicant claimed to be widowed and that [Mr A] was her boyfriend.
·     In her Entry Interview on 3 May 2010 the applicant stated that her first husband was deceased and she married [Mr A] in Indonesia [in] 2010. She claims she did not mention [Mr A] during the Biodata Interview because they had a fight.
·     In her RSA interview held on 17 October 2010 and Protection visa application lodged on 29 April 2011, the applicant claimed [Mr A] was her second husband and that they had met and married while transiting to Australia in early 2010.
[Mr A] declared in his Biodata Interview that he was engaged in 2009 to [another] Afghan by the name of [Ms B], who was residing in Pakistan at the time. He did not mention the applicant in the Biodata Interview, however during his Entry Interview, he claimed he met the applicant in [Country 2] in 2010 while transiting to Australia and that they were married in Indonesia.
Children
The applicant provided the following inconsistent information regarding her children.
Throughout her Protection visa application, the applicant claimed to have seven children from her previous marriage to [Husband A].
The applicant declared the following children in her first GSH visa application:
·    [Child 1, DOB, gender specified]
·    [Child 2, DOB, gender specified]
·    [Son A, DOB]
·    [Child 3, DOB, gender specified]
·    [Child 4, DOB, gender specified]
·    [Child 5, DOB, gender specified]
·    [Child 6, DOB, gender specified]
The applicant’s [Son A] was previously declared as [Son A Alias] in her Protection visa application, Biodata Interview and Entry Interview.
On 25 May 2015 the applicant provided a detailed statement in support of the second GSH visa application. The applicant declared in her GSH visa application that she and her second husband, [Mr A] divorced shortly after being released from detention and that her children were receiving regular threats from people linked to him. The applicant claimed she married [Mr A] in Pakistan 2007 and they mutually decided to migrate to Australia in 2010.
The information about her marriage was inconsistent with her previous claims throughout her Protection visa application that she met and married [Mr A] in 2010 while transiting to Australia.
The applicant claimed that it was only after they married, she became aware that [Mr A] was a people smuggler. The applicant claims that soon after arriving in Australia the relationship with [Mr A] deteriorated. He wanted to divorce her after they were released from detention so that he could marry another woman in Pakistan. [Mr A] was abusive towards the applicant at the detention centre. He physically assaulted her and caused serious injury which required medical attention.
In July 2011 she was assaulted at her home by [Mr A] and his friend. She wanted to report the incident to the police but [Mr A] threatened that he would arrange to kill her children in Pakistan. She felt emotionally fragile and was very afraid for her children and did not report him at that time.
The applicant stated that in late February 2012 [Mr A] travelled to Pakistan to apparently marry his fiancée and never returned to their house. Once she learned her application to sponsor her children was not successful, she suffered deep depression and was referred to a psychologist for counselling. The psychologist implored her to report [Mr A]. In June 2012 she filed a police report and obtained an intervention order and the police were considering charging [Mr A] and his friend with raping the applicant.
In the second GSH visa the applicant declared that she was seeking to sponsor the following six children:
·     [Child 1, DOB, gender specified]
·     [Child 2, DOB, gender specified]
·     [Child 3, DOB, gender specified]
·     [Child 4, DOB, gender specified]
·     [Child 5, DOB, gender specified]
·     [Child 6, DOB, gender specified]
The applicant provided different dates of birth for all of her children in the second GSH visa application, when compared to the dates of birth provided on the first GSH visa.
The applicant listed her son, [Son A, DOB] as a non-migrating family member and claimed he went missing in December 2012 and that he may be living in Iran.
The applicant also declared in the second GSH visa application that she married [Mr A] in Pakistan in 2007.
The applicant also declared in a statutory declaration dated 20 October 2016 provided in support of her citizenship application, that she also said she was married to [Mr A] in 2007 in Pakistan. She declared that [Mr A] was a Muslim and a Pakistani citizen and his real name was [Mr A Alias] ([DOB specified]). She provided a copy of [Mr Alias A’s] Pakistani passport and identity card in support of her evidence. The applicant declared that her second husband adopted the false identity of [Mr A] because his older brother had previously used a false name to obtain a refugee visa in Australia and he attempted to sponsor his mother and siblings to Australia under the false name.
The applicant’s Child (Subclass 101) visa applications lists the six children detailed in her second GSH visa application, excluding [Son A] who the applicant maintained was missing and his whereabouts unknown.
In November 2017 the Department became aware that [Son A] arrived in Australia [in] November 2012 as an IMA and declared that he is an Afghan citizen known as [Son Alias C] ([different DOB]). He provided a false taskera and birth certificate when he first arrived in Australia.
On 4 March 2017 [Son A] applied for a Safe Haven Enterprise (SHE) (Subclass 790) visa and indicated that he had provided false identity information on arrival to Australia. He confirmed his true name and date of birth was [Son A], born [Another DOB]. He also claimed that he was born in Pakistan and that both his mother ([Ms B variant] [DOB]) and father ([Mr D]) are Pakistani citizens. He provided his father’s Pakistani National Identity Card, bearing his father’s photograph and fingerprint.
On 6 December 2017, the Department wrote to the applicant and gave her an opportunity to comment on the inconsistent information regarding her alleged son’s citizenship and the implications that she may also be a Pakistan national. The delegate noted that as Pakistani citizenship is conferred through a person’s parents, this indicates that the applicant may also be a Pakistani citizen and that she has provided incorrect information to the Department regarding her citizenship and that of her family members.

40. On 16 March 2018, the applicant conceded that she provided false information and that [Son A] is not her son but was the “illegitimate” son (in the applicant’s words) of her second husband, [Mr A] ([Mr A Alias]) who had an affair with a married woman, resulting in [Son A’s] birth.

The delegate also noted that in her dealings with the Department, the applicant claimed to have a sister known as [Ms B or a variant] ([DOB]) and given the similarities in names and dates of birth, it is possible that in fact [Son A] is likely to be her nephew.
The applicant denied that [Son A] was her sister’s son and maintained he was [Mr A’s] son. She claims she was not aware [Son A] arrived in Australia in November 2012 until advised by the Department after she lodged her citizenship application.
The applicant claims she continued to declare [Son A] was her son throughout her dealings with the Department so that her evidence about her family composition would not be questioned and would be seen as consistent with her earlier claims that he was her son.
Documentation
The applicant arrived in Australia with no documentation to support her identity and failed to present any documentation issued from any country aside from Australia throughout her numerous applications submitted to the Department. She has not provided any birth certificates for her children or certificates in support of her first and second marriage.
During her Identity Interview on 4 November 2016, the applicant presented a number of documents to the Department, including her Afghan taskera, the taskeras for six of her children issued in 2016 and a document identified as a death certificate for her former husband, [Husband A]. In July 2018 she also provided copies of Afghan passports for six children in support of her citizenship application. She claims her children travelled to Afghanistan to obtain the documents.
Prior to this interview, the applicant claimed she had no legitimate documentation from her residence in Iran, Pakistan or Afghanistan. During the interview the applicant was asked why she had not previously provided a taskera. The applicant claimed as an Afghan woman prior to the US invasion, it was uncommon to obtain a taskera.
When asked to explain the circumstance under which she obtained her taskera issued in 2014, the applicant explained that a family member living in Afghanistan approached the Afghan authorities to initiate the application process on her behalf.
The applicant declared in a statutory declaration dated 11 August 2017 that the taskeras were obtained by her half-brother, [Brother A]. The delegate observed that [Brother A] was not declared in her Protection (Subclass 866) visa application.
Although the taskeras purport to be registered with Afghan authorities, the delegate had regard to country information and noted that Afghan passports and taskeras have little integrity and are easily obtained through fraudulent channels.
The Department submitted [Husband A’s] death certificate for verification. On 21 May 2017 the Department received confirmation that [Husband A’s] death was not registered with the Jaghori district of Ghazni province. The applicant was given an opportunity to comment on the inconsistent information during the process of assessing her citizenship application. In response, the applicant claimed [Brother A] assisted her in obtaining the taskeras and [Husband A’s] death certificate. She claims that the registration of her first husband’s death was only recorded in her home district of Jaghori and not on a national level. The applicant claims the “death certificate” that has had its authenticity questioned by the Department was not an official certificate, but a statement letter or testimony.
The applicant provided the Tribunal with her first husband’s death certificate (English language translation and copy of original) purporting to be issued by the Republic of Afghanistan [in] October 2019. The document records that [Husband A] was killed in 2005 and that he is married to [the applicant].
After submitting taskeras in conjunction with her Australian citizenship application, the applicant was asked if she could provide further information and documents supporting her identity, such as academic transcripts for her children or Proof of Registration cards. In response, the applicant claimed that she had never held any of these documents and her family resided in Pakistan as unregistered refugees.
The delegate had regard to country information and found that it did not support her claim that the applicant and her family members have resided in Pakistan for over 10 years without documents. The delegate found that the absence of Pakistani Proof of Residency Cards is a further indication that the applicant was withholding information regarding her identity.
Claimed travel to Australia
In her Entry Interview, the applicant claimed that she flew from Iran to [Country 1] and [Country 2] before travelling by boat to Indonesia and on to Australia. She travelled on a false passport with a blue cover, she did not read the name because she was illiterate.
The delegate found that the ambiguity in her responses raised concerns about the authenticity of her account, particularly since Imam Khomeini airport is one of the strictest airports in the region. The delegate had regard to country information and noted the extensive security systems and check points that a departing passenger must pass through in order to depart Iran. The delegate found it improbable that the applicant travelled with a false passport through this checkpoint with very little awareness of its contents, such as the name on the document or nationality. The delegate was also not satisfied that the applicant provided credible evidence regarding her education and employment and that of her children in Pakistan.
In response to the NOICC her visa, the applicant confirmed her journey to Australia did not go via Iran as initially claimed. She submits she continually maintained incorrect information that she transmitted via Tehran airport out of fear her visa would be cancelled.

The applicant claimed that she is [name], born [on date] and that she holds Afghan citizenship. She claims that she is widowed from her first husband.
Her sibling [Brother B] and half-siblings all share the same father, [named], but have different mothers. Her father’s first wife died during the childbirth of [Ms B]. He then remarried [Mother A] and they bore two children together – the visa holder and her brother [Brother B], who was killed along with the applicant’s first husband in Afghanistan. The applicant’s father also married [name], with whom he had six children: [named]. Both [Mother A] and [her father] are now deceased.
While the applicant and [Mr A] were in Quetta, he organised a people smuggler. They travelled from Quetta to Karachi, then flew to [Country 2] using fraudulent Pakistani passports supplied by the people smuggler. This passport contained her photograph, however a different name and different date of birth. Upon arriving in [Country 2], she and [Mr A] travelled to Indonesia. When they arrived in Indonesia, [Mr A] destroyed the passports. From Indonesia, they travelled to Australia by boat.
The applicant acknowledges that she originally provided incorrect information when she claimed she married her second husband in Indonesia whilst transiting to Australia. The applicant claims she married [Mr A] in 2007 whilst she was residing in Pakistan and she met him through his mother, who was one of her [clients]. She initially advised the Department they married in Indonesia because [Mr A] threatened her and her children’s lives if she did not comply. She believes this was to conceal [Mr A’s] correct identity as a Pakistani national.
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.
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.[1] 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.
[1] 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)
In assessing the applicant’s claims regarding her 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.’[2]
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.[3]
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 includes personal identifiers such as facial image and fingerprints.[4]
The Tribunal has also had regard to specific guidance developed by the Department in relation to Hazara Shia Afghan protection applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the application.[5]
[2] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1
[4] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2
[5] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016
The Tribunal has 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.[6]
[6] 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
Analysis
In assessing the applicant’s conduct and trying to understand why she has provided inconsistent information to the Department, the Tribunal understands that it is not uncommon for IMAs seeking protection in Australia to have limited access to documentation that can be used to verify their identity to an administrative standard.
Country information detailed above confirms 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. 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 means 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.
Secondly, the applicant submits that the various inconsistencies provided throughout her interactions with the Department can be mainly attributed to her second husband coercing her to provide incorrect information to conceal his true identity and his Pakistani citizenship.
In support of her claims of family violence the applicant provided the Tribunal with an Intervention Order dated [in] June 2012 issued under the Magistrates’ Court Family Violence Protection Act 2008 taken out against [Mr A]. The applicant also provided a statement dated [in] July 2012 made to the Victoria Police detailing the physical and sexual abuse inflicted by her husband since she arrived in Australia. The Tribunal notes that these documents were created before her visa was cancelled. The Tribunal also notes the existence of contemporaneous reports located on the Department’s file which refer to allegations of physical and sexual assault by [Mr A] while the applicant was in immigration detention in Australia.
The Tribunal was also provided with the applicant’s psychiatrist report dated 21 January 2020. The report confirms a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood (chronic) and differential diagnosis of major depressive disorder. The Tribunal also notes that there is an earlier report prepared by [Agency 1] in April 2017 confirming the applicant was assessed as having severe post-traumatic stress disorder, major depressive disorder and anxiety due to the prolonged separation from her children.
The Tribunal has had regard to the applicant’s evidence and accepts that she was a victim of family violence and that her second husband manipulated, coerced and threatened her to provide inconsistent and contradictory information regarding her marriage, family composition and circumstances surrounding her arrival to Australia for his own personal means.
The Tribunal accepts the applicant’s evidence that [Mr A’s] true identity is [Mr A Alias], born [DOB]. The Tribunal finds the applicant married [Mr Alias A] in Pakistan in 2007 after the death of her first husband in 2005. The applicant has provided the Tribunal with two affidavits of witnesses who claim to have been present at her second marriage in Pakistan. The Tribunal accepts the applicant’s claims that she separated from [Mr A] in 2011 and they divorced in July 2013 and that he travelled to Pakistan to marry another woman. The Tribunal further finds the fact that [Mr A] and the applicant divorced strongly suggests that they were married.
The Tribunal accepts the applicant’s claim that [Mr Alias A] used the false name of [Mr A] and claimed to have married the applicant in 2010 because he had family in Australia who had previously attempted to sponsor him under the false name in circumstances where he claimed he was single at the time.
The Tribunal accepts that [Mr A] threatened to harm the applicant and her children who remained in Pakistan if she did not comply with his directions. The Tribunal accepts the applicant’s claims that she arranged for her six children to relocate to [Country 3] to avoid being harmed by her husband. The Tribunal accepts the applicant’s claim that [Mr A] lied about his religious conversion when he arrived in Australia to strengthen his claims for protection.
The Tribunal further finds that it would have been very unusual for cultural and religious reasons for the applicant as an Afghan Shia woman to depart Pakistan and travel alone to Australia if she was not married.[7]
[7] and >
The Tribunal finds that the volatile relationship between the applicant and [Mr A] also needs to be seen in the context of his plan to marry another woman soon after he arrived in Australia. According to information in the delegate’s decision [Mr A] has since lodged a Partner visa application to sponsor his new [wife]. Within the Partner visa application, they claim to have met for the first time in August 2009 and married [in] January 2014.
The Tribunal also finds it significant that after the applicant separated from [Mr A] she voluntarily disclosed to the Department in her GSH visa application his true identity and that he travelled to Australia under a false name and that they married in Pakistan.
The Tribunal accepts the applicant’s evidence that the false information provided by her surrounding the circumstances of their travel to Australia confirms that [Mr A] was trying to distance his connections with Pakistan and his true identity. The Tribunal finds that the fact the applicant had access to copies of his Pakistani identity documents strongly suggests that they were in a relationship in Pakistan. The Tribunal also notes that there appears to be no obvious personal advantage for the applicant to claim that she married [Mr A] in Pakistan in 2007 and not in Indonesia in 2010 apart from helping him conceal his true identity.
The applicant maintains she has provided consistent information regarding her name, date of birth, ethnicity, religion and citizenship since she arrived in Australia. She maintains that the documents provided to the Department in support of her identity, death of her first husband and identity of her six children are genuine. The applicant claims to only have six children and concedes that she falsely declared she had seven children in the GSH visa applications because she was pressured by [Mr A] to include his son ([Son A]) from a previous relationship.
It was submitted that due to the increase in violence perpetrated by the Taliban and associated insurgent groups, in 1999, the applicant and her first husband, [Husband A], and the three children they had at that time ([Child 1], [Child 2] and [Child 3]), fled from Afghanistan to Iran. The applicant and [Husband A] lived together in Iran until approximately 2004 and had two more children there: [Child 4] and [Child 5]. For this five-year period, the applicant and her first husband and their then five children lived in Iran undocumented and illegally.
Country information provides that the ‘reign of the Taliban from 1996–2001 increased the conflict between Iran and Afghanistan’ and ‘created a new wave of refugees, who were not allowed to seek asylum (although many had valid asylum claims), and became undocumented migrants instead’.[8] From 2002 to the end of 2005, many Afghans began returning to Afghanistan as part of the Tripartite Agreement between Iran, Afghanistan and the UNHCR.[9]
[8] Janne Bjerre Christensen, ‘Guests or Trash: Iran’s Precarious Policies Towards the Afghan Refugees in the Wake of Sanctions and Regional Wars’ (2016) < 10
[9] Ibid, 8
At the beginning of this period, although the security situation in Afghanistan was looking more positive, it did not last for long.[10] Instead, the security situation took a turn for the worse and this prevented Afghans living illegally in Iran from voluntarily returning to Afghanistan.[11] Consequently, the applicant and her husband, and their five children fled from Iran to Pakistan in approximately 2004. It was here that the applicant had her sixth child, [Child 6 variant], with [Husband A].
[10] Ibid
[11] Ibid
The Tribunal accepts that since the applicant arrived in Australia, she has consistently identified herself as [name], an Afghan national of Shia religion and Hazara ethnicity born in [Town 1 in] Jaghori, Ghazni Province Afghanistan on [date]. In her dealings with the Department the applicant declared that she speaks Hazaragi and Dari. Her Biodata and Entry Interviews were conducted in the Hazaragi language. The delegate who assessed the applicant’s Protection visa application also noted that the applicant spoke Hazaragi.
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 subject to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups.[12]
[12] DFAT Thematic Report – Hazaras in Afghanistan and Pakistan, 26 March 2014 [2.19]
The Tribunal has regard to the applicant’s narrative, her physical appearance, spoken language and the country information detailed above and is satisfied that she is a Shia Muslim from the Hazara ethnic group who was born in Afghanistan.
The Tribunal has had regard to the country information and accepts that the applicant fled from Afghanistan to Iran and then Pakistan where she settled with her family in approximately 1999. The Tribunal accepts that as a displaced person the applicant would have difficulty accessing any identity documents at that time.
The Tribunal accepts that the applicant married her first husband in about 1991 when she was about [age] years old and this is why she does not have access to a marriage certificate. The Tribunal finds that the applicant has provided consistent information about the death of her first husband since she arrived in Australia. In the NOICC letter dated 17 June 2019, the delegate mentioned that on 4 November 2016, the applicant provided a death certificate for her first husband. The applicant claims that the document she provided was not a death certificate that is like the death certificates issued in Australia, rather, it was a statement letter or testimony. As detailed above the applicant has now obtained a document which she claims to be a formal death certificate for her first husband. The Tribunal has had regard to the applicant’s narrative and her first husband’s death certificate (issued by Republic of Afghanistan [in] October 2019) and accepts that the applicant married [Husband A] in about 1991 and he was killed by the Taliban in about 2005.
The applicant submits that ‘[Son A Alias]’ born on ([DOB]) – who is also known to the Department by the names [Son A] born on [same DOB] and [Son Alias C] born on [different DOB] – is not her biological child. The applicant maintains he is the child of her ex-second husband, [Mr A]. The applicant claims the reason why she originally declared that [Son Alias A]/ [Son Alias C] was her son is because at the time of coming to Australia, she was his stepmother. She continued to declare him as her son to keep her answers consistent. She has realised now that this was wrong of her to do. Additionally, the applicant claims she did not know that [Son Alias A]/ [Son Alias C] was in Australia until the Department informed her. Up until this point, [the applicant] believed [Son Alias A]/ [Son Alias C] was missing.
The Tribunal has had regard to the second GSH visa application and notes that it was lodged in June 2015, after [Son A] had arrived in Australia. The Tribunal finds that the fact the applicant excluded [Son A] from the visa application would strongly suggest that she was aware that [Son A] was in Australia at the time. The Tribunal also notes that when [Son A] first arrived in Australia, he used a false identity which would suggest he was hiding his real identity from the Department at the time. The Tribunal notes that [Son A] declared in his SHE visa application that his father was [Mr D] and that this evidence does not support the applicant’s claim that [Son A] is [Mr A’s] son.

The Tribunal notes that [Son Alias A] was not interviewed by the Department in relation to this matter. The Tribunal also notes that when he first arrived in Australia, he used a false name and provided false identity documents. The Tribunal finds that whether or not [Son Alias A] is [Mr A’s] son is not directly relevant to the question of the applicant’s identity. The Tribunal further finds that it is mere speculation to conclude on the limited evidence that [Son Alias A] is the applicant’s sister’s son because [Son A’s] mother’s name is [Ms B variant] (born [year]) which is similar to the applicant’s sister’s name, [Ms B further variant] (born [different year]). In conclusion, having considered the evidence the Tribunal accepts that [Son Alias A] is the applicant’s biological son, the Tribunal does however find it concerning that the applicant repeatedly provided incorrect information about [Son Alias A] being her son throughout her dealings with the Department.
When questioned about her six children at the hearing the applicant said her six children are currently living in [Country 3] and that she uses social media to contact them daily. The applicant said she has travelled to visit her children – twice in Pakistan and once in [Country 3] since she arrived in Australia. The Tribunal was able to observe the applicant at the hearing and notes that she was clearly emotional when discussing the difficulty she faced from being separated from her children.
The Tribunal has also considered the biodata information from Afghani passports in support of the identity of the applicant’s six children. The Tribunal has some concerns about the documents. The passports all purport to be issued [in] 2018 in Kabul. The Tribunal further notes that according to the passports all six of her children are recorded as being born in Ghazni, Afghanistan. The Tribunal finds that this information appears to have been taken from the children’s taskeras which also record that they were all born in [a] village, Jaghori District, Ghazni Province Afghanistan. This information is also inconsistent with information recorded in her Protection visa application where she claimed that five children were born in Afghanistan and the youngest was born in Pakistan.
The Tribunal notes that the applicant stated in her Citizenship application and Child Visa proposer statement that the three eldest children ([Child 1], [Child 2] and [Child 3]) were born in Afghanistan; [Child 4] and [Child 5] were born in Iran and [Child 6] was born in Pakistan.
The Tribunal has also considered the inconsistent details regarding the children’s dates of birth provided by the applicant in her dealings with the Department. The Tribunal accepts that the day and month of the birth of her children in the first GSH visa application were estimates (31 December) and the year of birth remained consistent throughout all the GSH visa applications. The Tribunal has had regard to country information and accepts the applicant’s submissions that dates of birth hold less significance in Afghan culture and accepts that there may have been some difficulties for confirming the exact dates of birth when she lodged her first GSH application because she did not have birth certificates for her children.
In post hearing submissions the applicant provided the Tribunal with photographs of herself and her children taken in Afghanistan, Iran, Pakistan and [Country 3]. The Tribunal finds the photographs are natural and not staged. The photos show the applicant and her children during various stages of their life. The applicant also provided a photograph of herself with her first husband and daughter [Child 2] taken in Afghanistan.
In conclusion, despite the inconsistencies detailed above the Tribunal finds the applicant has six biological children as detailed in her Child visa application. In making this finding the Tribunal has placed weight on certificates issued by the UNHCR in April 2019 which contain the children’s names, dates of birth and photos. The Tribunal finds the certificate supports the applicant’s evidence that six children were registered as Afghan refugees with the office of the UNHCR in [Country 3].
The next question for the Tribunal to determine is whether the applicant is a citizen of Afghanistan or Pakistan. On 1 July 2019, 4 July 2019 and 5 July 2019, the applicant provided information in response to the NOICC and enclosed copies of her taskera and an English translation and the taskeras of her family members, including her father’s, uncles’, brothers’, sisters’, cousins’ and children’s.

100. As detailed above, country information confirms that a taskera lacks any modern security features and is easily obtained through fraudulent channels. The delegate exercised caution and did not place any weight on the applicant’s taskera in support of the applicant’s identity. According to the material before the Tribunal it appears however that the Department did not confirm the validity of the applicant’s taskera and there is no official confirmation that it is not a genuine document.
101. A taskera is a primary source of identification for Afghan citizens that establishes a person’s national identity and link to the State. The Tribunal finds that the applicant’s taskera was issued based on her father’s taskera and that both documents contain consistent identity information which place them within the same family unit. The Tribunal accepts the applicant’s taskera has been attested by the Ministry of Foreign Affairs of the Islamic Republic of Afghanistan.
102. The Delegate concluded that the applicant was a Pakistani national rather than an Afghan national because she was married to [Mr A] who is a Pakistani national and because [Son A] was the applicant’s nephew who declared in his SHE visa application that his mother was a Pakistani citizen. The Delegate referred to section 4 of the Pakistan Citizenship Act 1951 (the Pakistan Citizenship Act)[13] and concluded that the applicant is therefore a Pakistani citizen either by marriage or by birth.
[13] Section 4 of the Pakistan Citizenship Act
‘Citizenship by birth. – Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth…’
103. Whether a person has a particular nationality is a question of fact for the decision maker on the available evidence.[14] 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 she arrived in Australia.
[14] AZK15 v MIBP [2015] FCA 1444
104. The Tribunal has also had regard to reports which confirm that in 2012 the Pakistani authorities arrested about 278 Afghans for possessing Pakistani National Identity Cards (NICs). The report confirms that the NICs were not fake but the process through which they were acquired was fraudulent.[15] The Tribunal has therefore exercised caution in relying on [Son Alias A’s] Pakistan identity documents or those confirming that the applicant’s second husband is a Pakistani citizen.
[15] Dual nationals: 278 Afghans held for possessing Pak CINCs, published by the Express Tribune, 14 May 2012
105. Importantly the Tribunal notes that Pakistani law does not allow dual Afghan and Pakistani citizenship and supports the applicant’s claim that she is not a Pakistan citizen.[16]
[16] Section 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
106. Country information states 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 Pakistan nationals and granted citizenship.[17]
[17] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012,
DFAT, Thematic Report Hazaras in
Afghanistan and Pakistan, 26 March 2014, 3.14
107. DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire Pakistani NICs required to access government and other services.[18]
[18] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14
108. The DFAT current country information report states that Hazara children born in Pakistan are entitled to Pakistan 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.[19]
[19] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42
109. 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 Pakistan government, but may hold a taskera or UNHCR registration documents.[20]
[20] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65
110. The Pakistan Citizenship Act makes provision for citizenship by birth, descent, migration, naturalisation, or if a non-national woman marries a Pakistani man.[21]
[21] The Pakistan Citizenship Act 1951, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
111. The applicant’s representative referred the Tribunal to s.4 of the Pakistan Citizenship Act which 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.[22]
[22] The Pakistan Citizenship Act 1951, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
112. 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 Pakistan citizens to be naturalised, has resided in Pakistan for the twelve 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.[23]
[23] The Pakistan Naturalization Act 1926, accessed at
Government of Pakistan Directorate General of Immigration and Passports, Ministry of Interior,
Immigration,
113. The country information demonstrates however 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.
114. According to an article on Foreign Policy:
Over time, a number of Afghan refugees have tried to naturalize in Pakistan as citizens, but these claims have always been denied. In 1999, a young man named Ghulam Sanai applied for a Pakistani national identity card when he turned 18, citing Section 4. The Peshawar High Court refused his petition, ruling that despite being born in Pakistan, Sanai could not get a national identity card since his parents were Afghan refugees and their stay in Pakistan was meant to be temporary. As a result, a child born to Afghan parents in Pakistan is neither a Pakistani citizen nor can he or she legally claim asylum in Pakistan. In other words, such children have no way to live in Pakistan legally.[24]
[24] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9
May 2019,

115. The European University Institute has provided a comprehensive and detailed report on Pakistan citizenship law. 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.’ [25] 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 Pakistan 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.[26]
[25] 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
[26] 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
116. 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.[27]
[27] 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

117. This judicial view was confirmed as recently as 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 Pakistan 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.
118. It is reported that the situation for unregistered Afghans in Pakistan appears even more parlous than for those who are registered. [28]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.[29] 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. [30]
[28] 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
[29] Sections 14, 2 of the Foreigners Act 1946
[30] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,

119. 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 greater 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.[31] 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.[32]
[31] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,

[32] Code Pakistan, Afghan Refugees in Pakistan – The Road Ahead, November 2019,

120. A further complication is that the Citizenship Rules 1952 provide for the issuing of a certificate of citizenship by provincial governments for those who acquire citizenship by birth or descent, but it is not common for such documents to be issued, so NADRA is the de facto, but not legislative, authority for recognition.[33] For those who acquire citizenship by naturalisation or marriage, the Directorate General of Immigration and Passports, Ministry of Interior, is responsible for determining eligibility for such citizenship acquisition. [34]
[33] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives
59/16.
[34] Farhat, S., ‘Citizenship Laws of Pakistan A Critical Review’ 31 December 2019, Policy Perspectives
59/16.
121. The Tribunal has had regard to the representative’s submissions and country information set out above and finds that there appears to be no legal process by which Afghan nationals in Pakistan after 1962 may legitimately acquire citizenship, regardless of their status as registered refugees or unregistered (and therefore considered illegal immigrants by the Pakistan government). Administratively, judicially, and legislatively the Pakistan authorities have manifested an intent to exclude Afghans from citizenship and other rights under the Constitution. It was submitted that there appears to be longstanding policy and that it has been confirmed by the refusal of the National Assembly to pass laws allowing for the granting of citizenship to Afghan refugees as recently as August last year. When read together, the decisions of the Pakistan High Courts set out above demonstrate that Afghans, whether registered refugees or unregistered, are distinguished from other groups in Pakistan and have been specifically excluded by these Court decisions from accessing citizenship through birth, but also, given the reasoning in Mahmud, through naturalisation or any of the other processes envisaged under Pakistan law for becoming a citizen. The Tribunal agrees with the submissions put forward by the applicant’s representative and finds there is compelling country information that establishes that Afghans in Pakistan appear to have no method by which they can be recognised as citizens. The recent actions of the National Assembly demonstrate legislative support for this approach.

122. According to the country information referred to above the only basis to conclude that the applicant is genuinely a Pakistan national would be to find that her father arrived in Pakistan or was born there prior to 1962. The Tribunal finds that there is no information or basis on which to conclude that this is what happened. On the contrary, the applicant’s father held an Afghan taskera, so do her uncles, brothers, sisters, herself and her children.
123. In conclusion, the Tribunal is of the view that there is no excuse for the applicant providing incorrect and inconsistent information since she arrived in Australia. The Tribunal does however accept that there is evidence which mitigates the applicant’s conduct. The Tribunal accepts that the applicant was a victim of family violence and that the various inconsistencies provided throughout her interactions with the Department can be mainly attributed to her second husband coercing her to provide incorrect information to conceal his true identity and threatening to harm her children who were residing in Pakistan at the time. The Tribunal finds that once the relationship ended and the children relocated to [Country 3] the applicant reported his conduct to the police in Australia and voluntarily disclosed to the Department his true identity and the details about their marriage in Pakistan.
124. On the available evidence the Tribunal is satisfied that the applicant’s identity is [name], an Afghan national of Shia religion and Hazara ethnicity born in [Town 1 in] Jaghori, Ghazni Province Afghanistan on [date].
125. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
126. 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.
Decision
127. 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

[2020] AATA 5626

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice