1921684 (Refugee)

1921684 (Refugee) [2021] AATA 1359 (5 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921684
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Christopher Smolicz
DATE:5 March 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 5 March 2021 at 2:24 pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – validity of the Notice of Intention to Consider Cancellation (NOICC) – date of the notice – service of the notice – errors in the notice – implications of a defect in the Department procedures – grounds of cancellation – satisfaction as to the applicant’s identity – National Identity Proofing Guidelines – incorrect information in previous visa applications – name and date of birth – family composition – identity documents – Afghan cultural naming practices – influence of people smugglers – persecution faced by Hazara Shia Muslims in Afghanistan – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 118A-127
Migration Regulations 1994 (Cth), r 2.55
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Krummrey v MIMIA (2005) 147 FCR 557
MIMIA v Ahmed (2005) 143 FCR 314
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Twist v Randwick Municipal Council (1976) 136 CLR 106
Uddin v MIMIA (2005) 149 FCR 1
Zhao v MIMA [2000] FCA 1235
Zubair v MIMIA (2004) 139 FCR 344
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 dated 29 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AA) because they were not satisfied as to the applicant’s identity.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 February 2012 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who provided evidence in support of the applicant’s identity. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Relevant background
The applicant arrived in Australia by boat [in] April 2011 and took part in an entry interview where he claimed to be [Alias 1], born [Date 1 in Year 1] from Daikundi Province Afghanistan. He described his ethnicity as Hazara and his religion as Shia Muslim. He is married and his wife, [Ms B] lives in [Country 1] with their sons, born in [year] and [year]. His father [Mr C], born in [year] was killed by the Taliban in 1999 or 2000, his mother remarried and lives in Afghanistan and he has two siblings. The applicant declared that he travelled to Australia with a friend ([Mr D]) who he met in [Country 2] on his journey to Australia. He declared that he had never applied for an Australian visa, lived in Afghanistan until 2007 and then travelled to [Country 3] in 2008 then [Country 1] until 2011. He has no relatives in Australia.
On 10 June 2011 the Department undertook a Protection Obligations Determination (POD) and lodged a protection visa application (PVA). During the process the applicant was interviewed, provided a statement and completed Form 80 ‘Personal Particulars for character assessment’ in which he provided similar details and claimed his father had been killed in Afghanistan because he was a member of the Wahdat Party. He claimed his family name was [Surname 1] and his given names were “[Given name 1]”. He provided an untranslated Afghanistan identity card [number] (taskira) issued in 2003 in support of the identity “[Given name 1]”. The document records his date of birth as [Year 2] and his father as [Mr C].
On 21 September 2011 the applicant was granted a Protection (Subclass 866) visa in the name of “[Alias 1]”.
On 5 December 2011 the applicant’s wife and dependent children applied for an offshore Refugee and Humanitarian visa (RHV). The applicant was listed as the proposer in the application.
On 7 November 2012 the applicant’s wife and sons subsequently applied for offshore Subclass 100 partner visas. The visa was granted on 7 April 2013 and the applicant’s wife and sons arrived in Australia [in] September 2013.
On 2 May 2014 the applicant notified the Department that he had changed his name from [Alias 1] to [Applicant Name].
The Department subsequently conducted a facial image comparison which showed that the applicant’s photograph submitted with his PVA matched a photograph of a person called [Mr E] (DOB [year]), who had previously lodged two offshore RHV applications dated 27 March 2006 (one as a dependent of his stepmother [Ms F], one individually), and a further individual application dated 22 February 2010.
Consequently, on 18 March 2019 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) in which the applicant was advised the Department was considering cancelling his visa under s.116 of the Act because it was not satisfied as to his identity.
According to the NOICC the information provided in the RHV application indicates [Mr E] was single, had no children, and was dependent on his stepmother. This is in contrast to later claims made in the POD, PVA and the RHV application lodged 5 December 2011 for his wife and sons and the Subclass 100 partner visa application which stated that he had a child in [year].
According to the RHV application the applicant’s father is [Mr C] (DOB [year]), who was granted protection on 12 October 2005 and became an Australian citizen on 12 August 2008. The applicant’s father was identified as a former member of the Hesbe Wahdat party who fled Afghanistan and travelled to Australia with the applicant’s sister. The applicant’s father was identified as the proposer who was seeking to sponsor [Mr E] and the stepmother to Australia.
The NOICC alleges that the information provided in the RHV applications contradicts the applicant’s claims in the entry interview/PVA/POD that his father was killed by the Taliban and the applicant had no family in Australia. The RHV application indicated that his mother was named [Ms G] and died in 1991, whereas the entry interview/PVA RHV stated his mother is [Ms H], who remarried after the applicant’s father died and lives in [Country 1].
In his entry interview/PVA, the applicant claimed he only had one brother and one sister. The RHV application included details of a sister in Australia, six half-siblings who lived in Australia from 2007, and a brother named [Mr I].
On arrival in Australia the applicant stated he had no family who travelled with him and later stated [Mr D] who he travelled with was a friend from his village. Department investigations indicate [Mr D], who arrived on the same boat as the applicant, is the same person as the applicant’s brother, [Mr I].
According to the applicant’s RHV application he left Afghanistan in 2001, whereas the entry interview/PVA indicate he left in 2007. Further, the NOICC states the applicant has not provided reliable documentary evidence to support his identity.
The applicant did not provide any response to the NOICC and on 29 July 2019 a delegate decided to cancel the applicant’s visa under s.116(1AA) of the Act because they could not be satisfied of his identity.
Validity of the NOICC
The applicant’s representative submitted to the Tribunal that there were a number of flaws in the NOICC that might affect the legality of the Department’s decision to cancel the applicant’s visa. The submissions have some merit.
Firstly, the NOICC is dated 18 March 2018 when in fact it was issued on 18 March 2019.
Secondly, there were a number of issues with service of the notice. The Department unsuccessfully attempted to obtain the applicant’s email address for service and the notice was sent by registered post to the applicant’s nominated address. The notice was ultimately ‘returned to sender’ on 9 August 2018 after the Department cancelled the applicant’s visa.
Thirdly, the notice contains a number of errors. It states the protection visa was granted to the applicant on 21 September 2016 when in fact it was 21 September 2011. It incorrectly refers to the applicant’s brother ([Mr I]) instead of the applicant in the context of the 27 March 2006 and 22 February 2010 RHV applications.
Implication for the Tribunal
In considering the validity of the notice the Tribunal notes that if the Minister is considering cancellation under s.116, certain procedures must be followed before a decision can be made to cancel the visa. The procedures for cancelling a visa under s.116 where the visa holder is in Australia are specified in Subdivision E (ss.118A–127). These provisions provide that the Department must:
·notify the visa holder of the proposed cancellation, and adverse information, if any;
·wait for a response;
·decide whether the ground for cancellation has been made out; and if so,
·decide whether or not to cancel the visa.
If a notice is sent in writing, the Regulations prescribe the ways in which the document may be given:[1]
·The s.119 notification must inform the visa holder that there appear to be grounds for cancelling the visa; and
·Give particulars of those grounds and of the information because of which the grounds appear to exist; and
·Invite the holder to show within a specified time that those grounds do not exist or why the visa should not be cancelled.
[1] See r.2.55.
The Tribunal finds that by incorrectly dating the NOICC the Department did not comply with r.2.55(3) and (7). This clearly had an implication on the applicant’s ability to respond to the notice within the 14-day timeframe which is calculated by reference to the date of the notice.
In considering the implications of a defect in the Department procedures the Tribunal notes that it is generally not part of the Tribunal’s role to examine the procedures followed by the Department to ensure that the statutory requirements have been met.[2] There are some circumstances in which defects in Departmental procedures, that may otherwise invalidate a process, can be remedied by the Tribunal. Specifically, the Tribunals can ‘cure’ a defect in natural justice or procedural fairness that occurred in the delegate’s decision, such as a defect in the ss.119–121 notice requirements, through their own procedural fairness mechanisms.[3]
[2] Zubair v MIMIA (2004) 139 FCR 344 at [35].
[3] See Zubair v MIMIA (2004) 139 FCR 344 at [32]; MIMIA v Ahmed (2005) 143 FCR 314 at [3]; Uddin v MIMIA (2005) 149 FCR 1 at [55]–[58]; Krummrey v MIMIA (2005) 147 FCR 557. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at [116] and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at [219].
The applicant confirmed at the hearing that he was provided with a copy of the notice by email on 17 June 2019, after the timeframe had passed for providing his response. He has now engaged a migration agent and provided detailed submissions and a copy of the delegate’s decision and a statutory declaration responding to the issues raised in the NOICC. The Tribunal was also able to provide the applicant with an opportunity to address the issues raised in the NOICC at hearing. In the circumstances the Tribunal is satisfied that it has cured any defect in the NOICC and the issues surrounding its service. The applicant and his representative agreed with the Tribunal’s reasoning.
Tribunal hearing - response to NOICC
The Tribunal finds the applicant to be a credible witness. He presented his evidence in a forthright manner. He provided a consistent and generally plausible explanation about the reason he provided false information in his PVA. The Tribunal also finds his evidence was consistent with country information.
The applicant claims his true identity is now [Applicant Name] born on approximately [Date 1]. He is a Hazara Shia and he was born in [Location 1], [District 1], Bamyan Province, Afghanistan. He is a Hazara Shia Muslim. He claims his full name at birth was “[Given name 1]”, however, everyone just called him [the second part of Given name 1].
The Tribunal was referred to country information which reports that according to Afghan cultural naming practices it is common for people to have compound names and to only be known by their main name. “[First part of Given name 1]” is a common subordinate name. The applicant and his family did not have a formal surname when they lived in Afghanistan.[4]
[4] The Structure of Afghan Names, November 2009 Karin Megerdoomian, The Structure of Afghan Names (psu.edu)
He claims that on his trip to Australia he had to transit through [Country 2] where he registered as a refugee with the UNHCR. The UNHCR officer has access to an updated map and was able to locate his home village in Daikundi Province. The applicant explained that although he was born in Bamyan, the boundaries between Bamyan and Daikudi had been redrawn since he left Afghanistan.
His mother was [Ms G (with variant spellings)], also known as [Alias 2] and [Alias 3], and his father is [Mr C (with variant spellings)].
His father remarried, so applicant’s stepmother is [Ms F]. The applicant has three full biological sisters and six half-siblings:
Brother: [Mr D] (DOB [date])
Sister: [Ms J] (DOB [date])
Sister: [Ms K] (deceased)
Half-brother: [Mr L] (DOB [date])
Half-brother: [Mr M] (DOB [date])
Half-sister: [Ms N] (DOB [date])
Half-sister : [Ms O] (DOB [date])
Half-sister: [Ms P] (DOB [date])
Half-sister: [Ms Q] (DOB [date])
It was submitted that the dates of birth for the applicant’s family members are only approximates and have been taken from the delegate’s Record of Decision which copied the majority of the dates of birth from Offshore RHV applications lodged by his father in 2006.
The applicant’s father supported the Hezb-e-Wahdat political party and this caused him to be targeted in Afghanistan. In about 1985 when the applicant was a young boy, he fled to [Country 1] with his family. On the way his mother died of suspected malaria. [In] April 2011 he arrived on Christmas Island as an Irregular Maritime Arrival, his brother [Mr D] was also on the same boat.
At the hearing the applicant was able to provide the Tribunal with a copy of his [Country 1] refugee card with translation. The card has a photo of the applicant as a young man and was issued in October 1999. It records the applicant’s name as [Applicant Name] born on [Date 2 in Year 2].
The Tribunal questioned the applicant about the card and its providence. The applicant said when he was living in [Country 1] officials asked for his full name, including surname, when preparing his refugee (migration) card. The applicant chose the surname ‘[Surname 2]’ for himself because it was a Persian sounding name and his brother was also given the same surname. He was unsure of his date of birth and chose the date of [Date 2] (Persian calendar [year]). He chose the date because it coincided with [an Islamic celebration] and was easy to remember. The applicant also provided the Tribunal with a copy of his sons’ temporary [Country 1] residence cards in support of their identity. The cards refer to his sons by the surname [Surname 2]. The Tribunal found the applicant’s explanation credible and accepts the cards are genuine documents.
The applicant is married to [Ms B] and together they have three children, [Child R] (born [year]), [Child S] (born [year]) and [Child T] who was born in Australia in [year].
The applicant sponsored his wife, [Child R] and [Child S] on a Partner visa (Subclass 100) and they arrived in Australia [in] September 2013; they are permanent residents. As [Child T]’s parents were permanent residents at the time he was born he is an Australian citizen. The applicant’s father, stepmother and all of his siblings live in Australia, they are all citizens except for [Mr M] and [Mr D].
The Tribunal was referred to the applicant’s [Country 1] religious marriage certificate which records the applicant married [Ms B] [in] September 2003. The Tribunal observed that the certificate was issued in 2012 and his name is listed as “[Alias 1]” which does not appear to reflect his true identity. The applicant conceded that he obtained the certificate once he arrived in Australia to sponsor his wife and children and he used the surname [Surname 1] because that was the name he was known by the Australian authorities.
The applicant said that after arriving in Australia he legally changed his name [in] April 2014 from ‘[Alias 1]’ to ‘[Applicant Name]’ so that his name would be the same as his wife and children.
The 2006 and 2010 RHV applications
The applicant’s father provided the Tribunal with a statutory declaration. He provided the following evidence about why he included false information in the the 2006 and 2010 RHV applications.
He claims he was an old and vulnerable man when he arrived in Australia as a refugee. He had fled to escape the persecution of the Hazara Shias and because he was in danger due to his involvement with the Hezb-e-Wahdat political party.
On the journey to Australia the people smugglers told him the Australian authorities would automatically reject any visa applications for his children if they were over the age of 18 or married. He was told the Australian authorities had access to everyone’s files so they would discover if his children were over the age of 18 or married and had [Country 1] papers. Everyone he met told him the exact same advice, including the other refugees making the journey to Australia and in immigration detention.
[Mr C] did not speak English and had no understanding of the Australian migration laws. For these reasons he trusted and relied upon the advice of the people smugglers and members of his community. Consequently, on 27 March 2006 [Mr C] proposed his family on the RHV application and included the applicant as a dependent of his stepmother, [Ms F].
[Mr C] claims he was desperate to bring his family to Australia so he could help them live a safe life; so he included the applicant, and also his brother [Mr D], under a false name and false information to try make it look like he was dependent on [Ms F] and increase his chances of getting a visa.
[Mr C] also lodged a second RHV application on the same day where the applicant was the only applicant. This application mirrored the information and claims in the RHV application which included the whole family and was an alternative in case the main application was rejected.
The applicant was not involved in this process, he just signed the signature pages of the application forms which [Mr C] sent to him.
For the 2010 RHV application [Mr C] copied the information from the 2006 applications into the 2010 application forms to keep the information consistent.

At the hearing the applicant conceded that he did discuss the content of the visa applications with his father when he was in [Country 1] and knew about the false information.
The name “[Mr E]”
The applicant said he has never been known by the name “[Mr E]”, it is not his name. This is just a name his father chose to try and distance the applicant from his true identity and that he was married and had [Country 1] identity papers. The [given name used in Mr E] is a completely random name.
The applicant’s father declared the applicant’s surname was “[Surname 1]” because this was the surname he chose for himself when he arrived in Australia in 2001. As is the norm in Afghanistan, the applicant’s father did not have a surname when he arrived in Australia.
Upon his arrival the Australian authorities asked him for his full name, including his surname, so he decided to put down the name “[Surname 1]” as his surname. He chose this name because [of a specified reason].
In the 2006 and 2010 RHV applications the applicant’s father used his chosen surname of “[Surname 1]” for all of his children, including the applicant, because he was presenting his family composition from his perspective. In this way the [Surname 1] surname did not exist for the applicant’s family until [Mr C] arrived in Australia. It was submitted the applicant never used or identified with the surname “[Surname 1]” prior to his arrival in Australia in 2011.
Date of birth
The applicant’s father only provided approximate dates for the dates of birth of his family members and key events in their history. This is because it is common in the Afghani culture for people to not know the exact dates when events have occurred or when people were born. The documentary systems in Afghanistan are poor and insufficient to accurately record the dates of events. Furthermore, one of the main reasons people do not personally remember dates of the key events in their lives is because of the high levels of illiteracy, so they have no way of making a note of when an event happened to help them remember. Consequently, accurately remembering the exact dates of events in one’s life is not an important aspect in the Afghani culture. Instead, most people only know approximates of when events occurred or when people were born. Quite often people may only remember if an event occurred close to another big event; for example, if an event happened a few years after the civil war ended. When asked to give the dates of an event many Afghan people will provide an estimate, a best guess of when an event happened, as they just do not know the exact dates. Within this context, the applicant’s father only provided an approximate date of birth of [Date 3 in Year 3] for the applicant. The Tribunal finds the applicant’s evidence about the significance of birth days in Afghani culture is consistent with DFAT’s country information report in support.
Other incorrect information
It was submitted the residential history and marital status of the applicant’s father declared for the applicant in offshore RHV applications in 2006 and 2010 was also incorrect.
As detailed above the applicant confirmed he moved to [Country 1] when he was a young boy in approximately 1985, not in 2001 as his father claimed. Furthermore, the applicant was married and had one child by the time the 2006 RHV applications were lodged. He had two children by the time the 2010 RHV was lodged.
Overall, it was submitted the Tribunal should not consider the 2006 and 2010 RHV applications when assessing the applicant’s identity because it contained false information created by the applicant’s father for the purpose of increasing the applicant’s chances.
Both the applicant and his father admit this was false information and [Mr C] has taken responsibility for this.
The 2011 PVA
It was submitted that the applicant has been restricted in his ability to present his claims for protection ever since his father lodged the 2006 and 2010 RHV applications and provided false information. He has been forced to try and distance himself from his father’s applications because he believed his protection visa would have been refused if these applications had been known.
The applicant’s father and people smuggler’s advice
The applicant claims when he was travelling to Australia the people smugglers told him that if he tells the Australian authorities that he had been included in previous visa applications or that he had family in Australia, his visa would be automatically rejected and he would be sent back to Afghanistan. Other people he met who were using the people smugglers to come to Australia and the people in immigration detention repeated this advice. He trusted this advice and believe it to be true. Furthermore, his father had told him and [Mr D] to not tell the Department about the 2006 and 2010 RHV applications and to distance himself as much as possible from these applications because they contained incorrect information and were refused.
It was submitted the applicant was in a vulnerable position when he arrived in Australia, participated in the Entry Interview and applied for the Protection visa. He had just escaped the persecution of Hazara Shias, risked his life to come to Australia and had trusted the people smugglers with his life. He did not understand Australia’s complex migration laws. He was in fear for his life if he was deported back to Afghanistan. Consequently, the applicant relied upon the people smugglers’ and his father’s advice and gave some false information in his PVA so he could distance himself from the RHV applications and [Mr D]’s application.
In particular, the applicant told the Australian officials his name was “[Alias 1]” and lodged his PVA in this name. He listed his surname as “[Surname 1]” because it is a common name for Afghanis.
The Tribunal questioned the applicant about the taskira he provided in support of his identity when he applied for protection in 2011. The applicant said he obtained the document when he was in Afghanistan and it was a genuine document in support of his true identity. He claims he was never sure of his precise date of birth and [Year 2] was simply chosen at the discretion of the official issuing the form.
The applicant said that when he took part in the IAAAS Interview in June 2011 he declared that he was also known as “[Alias 1]”. He also declared in his Form 80 he has also been known by the name “[Alias 1]”.
Family composition and family in Australia
The applicant said he incorrectly declared that the man called [Mr D] who was on the same boat as him was only a friend he met in [Country 2]. This man was his brother [Mr D]. The applicant said he was afraid if he truthfully declared [Mr D] was his brother, then the Department would work out they were included in the 2006 and 2010 RHV applications.
The applicant said that the majority of the family composition the applicant included in the Entry Interview and PVA was false. He does not have a sister called [Ms U] or a brother called [Mr V]. The applicant said at the hearing that he made up these siblings in the event he had to sponsor other relatives to Australia.
The applicant confirmed he made up the name [Ms H] for his mother and incorrectly stated she was still alive. His mother [[Ms G]] passed away when he moved from Afghanistan to [Country 1].
The applicant confirmed that he incorrectly declared that his father was deceased and that he had no family in Australia. His father was in fact alive and his stepmother [Ms G], sister [Ms J] and her daughter [Ms W], and his six half-siblings were all living in Australia at this time.
Lastly, the applicant incorrectly declared the [Mr L] who he knew in Australia was only a person who came from the same village. This [Mr L] is actually the applicant’s brother.
The applicant said he accepts responsibility for his actions and admits it was a mistake.
Residential history
The applicant did not to flee to [Country 3] with his wife and young child in 2007 and live there for approximately one year until they had to flee to [Country 1] in 2008. The applicant’s eldest son [Child R] was not born in Afghanistan and his son [Child S] was not born in [Country 3].
It was submitted that the correct information is that the applicant moved to [Country 1] as a young boy, got married in [Country 1] in 2003 and his two sons were born in [Country 1]. The applicant confirmed he has not lived in [Country 3]. He made up this information to distance himself from the 2006 and 2010 RHV applications and to increase his chance of getting a visa.
Claims for protection
The applicant’s claims that his father had been captured and killed by the Taliban because of his involvement with the Hezb-e-Wahdat party was incorrect. Although it was true that his father had been involved with the Hezb-e-Wahdat party.
Previous visa applications
The applicant admitted he provided false information when did not declare he had applied for any visas to Australia before when he had been included in three RHV applications.
The applicant acknowledges it was wrong of him to include the incorrect information in his PVA. He said he was trying his best to save his life and increase the chance of having the protection visa granted. He declared as much truthful information as he could within the constraints of the incorrect information provided by his father to the Department in the 2006 and 2010 RHV applications and his attempts to distance himself from these applications.
Sponsoring his family
The applicant has provided different dates of birth and spellings for [Ms B], [Child R] and [Child S]’s names in his PVA and the RHV and Partner visa applications he lodged for his family. It was submitted that this is due to the Afghani culture of not recording dates of birth and only knowing approximate dates of birth, as explained above, and the multiple ways in which Afghani names are spelt in English.
The variance in the spelling of names can be caused by the high levels of illiteracy and the difficulties in translating names into English. Therefore, people can be known by multiple different spellings of their name and, according to the Afghani culture, this does not raise doubts as to their identity.²⁴
It was submitted the applicant was not trying to provide varying information to try and mislead the Department about this family composition and identity. He was simply trying his best to provide the correct information to the Department.
Does the ground for cancellation exist?
Under s.116 of the Act, the Minister may cancel a visa if they are 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.
In assessing the applicant’s claims regarding his true identity, the Tribunal has had regard to the Department’s National Identity Proofing Guidelines. In particular the Departmental guidelines note that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[5]
[5] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 >
Departmental guidelines indicate that this ground 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. Also where, in response to a notice under s.119, the visa holder satisfies the delegate as to their true identity.[6] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.
[6] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s.109, s.116, s.128, s.134B and s.140) – s.116(1AA) – Not satisfied as to identity (re-issue date 21/8/16)
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.[7]
[7] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1
Documentation includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their narrative. Biometrics include personal identifiers such as facial image and fingerprints.[8]
[8] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2
The Tribunal has also had regard to specific guidance developed by the Department in relation to Hazara Shia Afghan visa applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the applicants.[9]
Nationality, race and religion
[9] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016
In assessing the applicant’s identity, the Tribunal has had regard to country information which confirms that the Hazara ethnic minority has a long history of persecution due to their Shia faith. Hazaras 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.[10] In particular, Hazara and Tajiks represent over 70% of the Afghan refugee population in Iran. [11] Reports confirm that the majority of Afghan refugees have been resident in both countries since fleeing the Soviet War in Afghanistan during the 1980s. Despite the success of voluntary repatriation programmes both in Pakistan and Iran, many Afghan refugees have specific needs, vulnerabilities and protection concerns that prevent their return. In addition, the volatile security situation and human rights violations in Afghanistan remain an ongoing concern.
[10] 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
[11] Afghan refugees in Iran & Pakistan | European Resettlement Network
The HRW confirms that Iran is failing to provide newly arrived asylum seekers access to protection because a functioning asylum system does not exist in Iran and the authorities are subjecting many Afghans to a range of rights abuses including arbitrary arrests and detentions. The report confirms that it has become increasingly difficult for registered Afghan refugees in Iran to retain their refugee status.[12]
[12] Human Rights Watch, Unwelcome Guests: Iran’s Violation of Afghan Refugee and Migrant Rights, 20 November 2013, ISBN: 978-1-62313-0770, available at: >
The Tribunal finds the applicant has presented that he is a Hazar Shia Muslim born in Bamyan, Afghanistan. He declared that his family fled Afghanistan because they feared harm from the Taliban because of their race and religion. The Tribunal finds the information about his race, religion and place of birth and fear of persecution has been consistently declared throughout his RHV applications, his entry interview and his PVA.
The Tribunal also notes the applicant participated in the visa grant processes with the assistance of interpreters in the Hazaragi language and the Tribunal finds that the applicant has the distinct facial features shared by Hazaras.
As detailed above, country information confirms that the Hazara ethnic minority has a long history of persecution in Afghanistan 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. The Tribunal is satisfied the applicant was born in Afghanistan and is of Hazara ethnicity and Shia Muslim religion and that he moved to Iran with his family after the Soviet invasion of Afghanistan.
Name and date of birth
The Tribunal has had regard to country information and accepts that that surnames in Afghanistan do not follow the same rigid rules as surnames in Western societies; it is a much more flexible concept. Country information confirms that Afghans traditionally use only a first name and generally lack a last name. Afghan people are often distinguished by their tribal affiliation, place of birth, profession or honorific titles. Afghans that have contact with the Western cultures may adopt a surname. In general, the educated or prosperous families living in urban areas use last names. In these instances, they generally select a last name that represents their tribal affiliation. It is also reported that male first names generally consist of two parts. It is common, that at least one of the parts includes a common name that is usually referred to as a “subordinate name”, such as Mohammad or Ali. This flexibility within the Afghan naming norms means it is not unusual for different surnames to exist within the same family, even siblings can choose to use different surnames.[13]
[13] The Structure of Afghan Names, November 2009 Karin Megerdoomian The Structure of Afghan Names (psu.edu)
The Tribunal accepts that the applicant was called “[Given name 1]” at birth and he was born in about [Year 2]. The Tribunal finds the applicant provided false information about his name, family composition, date of birth and residential history when he arrived in Australia to distance himself from the false information provided by his father in the RHV applications. The Tribunal finds the applicant provided false information because he feared his PVA would be refused and because received misleading advice from members of his community and the people smugglers who arranged his trip to Australia.
The Tribunal accepts that his father was known by the name [Mr C] and his mother who was called [Ms G] is deceased The Tribunal finds that when the applicant’s father arrived in Australia in 2001 he was undocumented and the authorities asked him for his full name, including his surname and he nominated the name “[Surname 1]” as his surname to comply with the visa form requirements.
The Tribunal finds that when the applicant was living in [Country 1], he applied for a refugee card and was given the surname [“Surname 2”]. The name was subsequently adopted as a formal surname in [Country 1] and was used by his wife and children. The Tribunal accepts that since his wife and children arrived in Australia, he has officially changed his name to [Applicant Name] to be consistent with his wife and children.
As detailed above three different dates of birth have been assigned to the applicant. According to the RHV applications lodged by his father he was born [on Date 3 in Year 3]. His taskira records he was born [four years earlier in Year 2]. His [Country 1] refugee card records his date of birth as [Date 2 in Year 2] and he declared he was born [on Date 1 in Year 1] when he arrived in Australia.

The Tribunal accepts the applicant’s claims that he does not know his exact date of birth and was never issued with a birth certificate and has estimated it to be [Year 1]. Country information supports his evidence in this regard. DFAT confirms that the Afghan authorities did not historically issue birth certificates, which remain far from common; the high number of home births makes the process of registering births challenging; the reporting of birth dates is unreliable and reported dates are likely to be approximate.[14]
[14] DFAT Country Information Report Afghanistan 27 June 2019 at 5.49
Documents

100. The applicant provided the following three different documents in support of his identity: a taskira ([number]) in the name ‘[Given name 1]’ born in [Year 2], his [Country 1] refugee card which records his name as [Applicant Name] born [Date 2] and his [Country 1] marriage certificate. As detailed above the Tribunal has concerns about the marriage certificate which records his name as [Alias 1]. Although the Tribunal accepts the [Country 1] refugee card is genuine the Tribunal finds it was issued to the applicant in the surname of [Surname 2] which was not his name at birth.
101. Country information confirms the taskira, a one-page official identity certificate issued by the National Statistics and Information Authority (NSIA), is the primary form of identification for Afghan citizens. DFAT reports that although the issuance of new e-taskiras (launched officially in May 2018) should help mitigate the risk of document fraud, it remains a major issue in Afghanistan. It states that genuine documents can be issued based on false information, with support forms of documentation such as school, academic or bank records easily forged. This is particularly problematic for taskiras – according to DFAT – given they are the primary document used to obtain other forms of identification.[15]
[15] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.46–5.48 and 5.54
102. For earlier taskiras, DFAT states:
Earlier taskiras were printed on plain paper, and include the names of the bearer, his/her father and grandfather; date and place of birth; place of residency; type of occupation; and military service status. They also include physical identification descriptions of the bearer, including: a photograph; height; colour of eyes, eyebrows, skin, and hair; and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration officers complete taskiras manually. The biographical information in them varies according to the individual issuing officer and is often incomplete[16].
[16] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.48

103. DFAT also indicates that: NSIA field officers manually record the details of births and deaths; each location holds two registers, which are completed simultaneously when data is entered; when the registers become full both registers are sent to the NSIA headquarters in Kabul and checked against each other for accuracy before being logged; and one register is returned to the originating NSIA field office, while the other remains with the NSIA headquarters in Kabul.[17]
[17] DFAT Country Information Report, Afghanistan, 27 June 2019 at 5.45
104. It is widely accepted that Afghan citizens displaced by the conflict in that country experience difficulties obtaining taskiras. This is because taskira access is based on recognition by family members or community elders, which pose significant challenges for displaced Afghan citizens who cannot easily locate elders to confirm their identity. Further, children and young people are at particular risk of lacking civil and identification documents, particularly when displaced.[18]
[18] Norwegian Refugee Council, Access to Tazkera and other civil documentation in Afghanistan, 8 November 2016
105. Country information confirms that it is possible to obtain a duplicate for Afghans who live abroad and who have previously been in possession of a taskira.[19] Country information also indicates that the Embassy of the Islamic Republic of Afghanistan in Canberra aids Afghan nationals in Australia who seek verification of their Afghan identity. [20]
[19] Landinfo, Country of Origin Information Centre, ‘Afghanistan: Tazkera, passports and other ID documents’, 22 May 2019, p.16 Department of Immigration and Border Protection 2017 Afghanistan: Country Information Request: CI170615142556028: Obtaining a Tazkira from the Afghan Embassy in Canberra, Australia
106. There are a number of reports showing what is required to obtain a taskira: a completed application form, passport sized photos and a copy of the taskira of a male relative on the father’s side (if the applicant does not have a birth certificate) .[21] As to whether or not a family member can obtain a taskira for another adult family member, country information from various sources indicates that the presence of an individual (over the age of seven) is mandatory. In advice from the Immigration and Refugee Board of Canberra in February 2019, it is stated that the US Reciprocity Schedule for Afghanistan states that applicants over the age of seven ‘must apply in[ ]person and submit a thumb print’.[22] According to a 2016 Samuel Hall and Norwegian Refugee Council (NRC) report, all Afghans are required to ‘return to their family's place of residence, or to Kabul, to apply for [a] tazkera’.[23]
[21] Landinfo, Country of Origin Information Centre, Report, Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, p.7, align="left">[22] Research Directorate, Immigration and Refugee Board of Canada, AFG106237.E, Afghanistan: Requirements and procedures to obtain tazkira [tazkera], including from abroad; appearance and security features (2017-February 2019), 6 February 2019, align="left">[23] Samuel Hall and the Norwegian Refugee Council (NRC), Access to Tazkera and Other Civil Documentation in Afghanistan, November 2016,
107. The Tribunal has had regard to the country information detailed above and the circumstances in which the applicant’s evidence about the circumstances in which he personally obtained the document when he was in Afghanistan in 2003. The Tribunal is prepared to accept it is a genuine document. The Tribunal finds it ironic however that at the time the applicant applied for protection he provided a copy of his taskira which recorded his real name as [Alias 1] born [Year 2]. It seems surprising the Department did not cross reference the name and date of birth recorded in the taskira with the information provided in the PVA form.
Conclusions as to the applicant’s identity
108. In assessing the applicant’s evidence, the Tribunal has had regard to country information and is acutely aware that the applicant comes from a culture with different naming practices, where dates of birth have little significance and where many families have been displaced due to violent conflicts and face difficulty obtaining formal identity documents. The Tribunal also accepts the difficulties Afghan asylum seekers face when required to complete forms in the English language which require dates of birth, a first name, and surname which may not exist in their culture.
109. The Tribunal also accepts that many protection visa applicants are given misleading advice by people smugglers or members of their own community who seek to assist them lodge their claims. Having said that, the Tribunal is also aware that some applicants seek out advice to facilitate migration outcomes to enable them to stay in Australia and create future migration pathways for other family members.
110. The Tribunal accepts that the applicant comes from an ethnic and religious minority group that continues to face persecution in Afghanistan. The Tribunal accepts that the applicant’s actions and those of his father in providing false information were underpinned by a genuine fear of being sent back to Afghanistan and the need to continue to support their families. Country information confirms that family is the single most important aspect of life in Afghanistan. Afghan culture is very collectivistic, and people generally put their family’s interests before their own. This means that family responsibilities tend to hold a greater importance than personal needs.[24] The essential role of the family and community networks in providing protection, opportunities and mobility in Afghanistan is well documented.[25]
[24] ICG 2009, UNHCR 2010, Still Human Still Here 2012
111. The Tribunal accepts the applicant arrived in Australia as IMA because his life was in danger and he was escaping persecution. The applicant’s non-compliance needs to be seen against the background of the persecution faced by Hazara Shia Muslims in Afghanistan and the lack of a functioning asylum system in [Country 1].
112. In this regard, the Tribunal is guided by the remarks of Justice O’Bryan in BOY19 v Minister for Immigration and Border Protection[26] that:
[26] [2019] FCA 574
honesty and dishonesty are not moral absolutes, and the circumstances in which a lie has been told has a substantial bearing on any perceived moral deficiency. … The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.[27]
[27] Ibid at [71]

113. In conclusion, for the reasons above and having considered the matters raised in the NOICC, the Tribunal is satisfied the applicant was born [Given name 1] and has now legally changed his name to [Applicant Name], born in about [Year 1]. He is a Hazara Shia from Afghanistan. He was born in [Location 1], [District 1], Bamyan Province, Afghanistan. He is married to [Ms B] and together they have three children.
114. 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.
115. In doing so, the Tribunal notes relevant case law that a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA, the Full Federal Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[28]
[28] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

116. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
117. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Christopher Smolicz
Member

[2021] AATA 1359

5 March 2021

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Immigration

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