1925032 (Migration)

[2021] AATA 3396

1925032 (Migration) [2021] AATA 3396 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925032

MEMBER:Frances Simmons

DATE:30 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 30 June 2021 at 7:51pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) visa – applicant had given incorrect information – identity and migration history – fears harm in Pakistan for being a Hazara Shia – applicant was a minor – applicant did not have the legal capacity to make the application – a productive member of the Australian community – time that has elapsed since the non-compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 36, 99, 101, 107, 107A, 109, 376
Migration Regulations 1994 (Cth), r 2.41

CASES
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101 of the Act and determined, having considered the prescribed circumstances under r.2.41, that the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal has considered all the evidence before it.[1] The applicant appeared before the Tribunal on 20 May 2021 and 18 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, [Mr A], at a resumed hearing on 18 June 2021. The applicant was represented in relation to the review by his registered migration agent.

   [1] This includes the Department’s cancellation file ([number deleted] – Cancellation of Resident Return (Subclass 155) Visa), the applicant’s protection visa application file ([number deleted] – Protection (subclass 866) visa), and the offshore humanitarian application file lodged in 2006 ([number deleted]  - Offshore Humanitarian (subclass 202) Visa). The Tribunal also has this department file relating to the Resident Return Visa granted  on 18 September 2018 ([number deleted]  – Resident Return (Subclass 155) Visa). This file contains no evidence.

4. 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

   Background

5. The applicant arrived in Australia on [date] October 1012 by air without a valid passport. He identified himself as [applicant’s name, comprising Given Name 1 and Surname 1] (dob: [date]), a Pakistani citizen, with no right to reside in any other country, who had never made any other type of visa application before. He provided his family composition (he declared he had [siblings] living in Pakistan and his two parents lived in Pakistan), and he claimed to fear harm in Pakistan by the Taliban as a Hazara Shia. He claimed that his family had already paid money to the Taliban to secure the release of his brother. He was found to be a refugee and was granted a protection visa in February 2013. In September 2018 he was granted a Subclass (155) (Five Year Resident Return) visa.

6. In a Notice of Intention to Consider Cancellation (NOICC) of the Subclass (155) visa dated 7 June 2019 the Department alleged that the applicant provided incorrect information in his protection visa application about his identity, immigration history, and nationality. Departmental records show that on 23/10/06 a male named [Alias 1] (DOB: [date]), an Afghan citizen born in Kabul in Afghanistan applied for an XB 202 offshore humanitarian visa as a secondary applicant. The first named applicant claimed to be a Hazara woman who had been living illegally as a refugee in Pakistan since 2002 with the three secondary applicants, said to be her children. A copy of an Afghan ID card number [in] the name of [Alias 1] was provided as evidence of the applicant’s Afghan citizenship. The proposer was the first named applicant's son who was an Australian citizen living in Australia. A Forensic Facial Image Comparison conducted by the Department on 20 July 2018 indicated that the applicant is the same person as [Alias 1].

   Relevant law

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of a current visa.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10.  In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

Was there non-compliance as described in the s.107 notice?

11.  The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s101(b) in respect of the following answers to questions in the protection visa application:

·     Question 3 of the Form 866 Part B asked: "Has any person named in Question 1 previously made any other type of application to the department (including a Parent visa)?" The applicant answered: No. The delegate considered that this answer was incorrect because the applicant applied for an Offshore Humanitarian visa on 23 October 2006 using the name [Alias 1].

·     Question 4 of the Form 866 Part C asked "What other names have you been known by (such as names before marriage, previous married name, alias)? If you changed your name, describe why and when you changed your name." The applicant answered: [Given Name 1]. The delegate considered this answer incorrect because the applicant applied for an Offshore Humanitarian visa on 23 October 2006 using the name [Alias 1], which is his alias.

·     Question 22 of the Form 866 Part C asked: "Do you hold any other citizenship or are you a national of any other country?" The applicant answered no. The NOICC alleged this information was incorrect because in his application for an Offshore Humanitarian visa on 23 October 2006 using the name [Alias 1], the applicant stated that he was a citizen of Afghanistan since his birth. He provided a copy of an Afghan ID card number  [in] his alias [Alias 1] as evidence of his Afghan citizenship. The NOICC alleged he was a citizen of Afghanistan.

Applicant’s response to the NOICC

12.  In a statutory declaration dated 3 July 2019 the NOICC the applicant did not directly address whether he agrees that there was non-compliance.  He claims to be a Pakistani citizen born in [year] in Pakistan. He declares that he never held Afghan citizenship, his parents were both born in Afghanistan, and that his family have all obtained Pakistani citizenship. He stated that his parents migrated from Afghanistan to Pakistan around 1979-1980 and obtained citizenship through migration. He says his father once incorrectly noted the birth date of [date] to the authorities.

13.  The applicant declares that he had no knowledge of the alias [Alias 1] in the 2006 visa application. The applicant submits that the information in the s/c 202 application about his identity, family composition and citizenship was incorrect; he was included in the application as a minor dependant, and as a minor he would not have completed that application nor able to procure the documents submitted concerning his identity; and the application was in English so he would not have understood it. He had no knowledge about what was submitted in that application, so he couldn't have given details of it in his 2012 protection visa application. The applicant submits that a minor shouldn't be held responsible for the acts of their parents or guardian (his representative made submissions on this point).

14.  The applicant claims that before the subclass 202 application, his parents held genuine concerns that he would be killed by the Taliban due to his Hazara ethnicity and appearance. Therefore, his father decided to arrange for his departure from Pakistan. Even if he had a vague memory of applying for migration to Australia in 2006, it would've been reasonable for him to have forgotten about it due to the stressful circumstances that surrounded his departure from Pakistan and his arrival in Australia. Had the information been included in the 2012 protection visa application, the decision maker "would have had some difficulties in assessing the application", but, if given an opportunity to address the inconsistent information contained in the 2006 application, it is likely he would still have been found to be a refugee as the information about his identity and claims in his protection visa application is correct.

15.  The applicant submits that his removal would be a breach of Australia's non-refoulement obligations as he fears discrimination and harm in Pakistan for being a Hazara Shia.

16.  The applicant provided Pakistani identity documents issued to him, including: his National Family certificate for child under 18 issued [in] May 2005, a copy of his NIC, and educational certificates. Translations were provided. The applicant also provided the following identity documents for his family members:

·     Australian passport of [the] applicant’s brother ([number deleted], expires [2024]);

·     Pakistani Passport of [the] applicant’s mother ([number deleted], expires [2026]) which records that she was born in Quetta, Pakistan;

·     Australian passport of [the] applicant’s father ([number deleted], expired [2018]), which records that he was born in Afghanistan.  

·     Pakistani passport of [the] applicant’s brother ([number deleted],, expires [2023]); and

·     Australian Passport of [the] applicant’s sister ([number deleted],, expired [2019]).

17.  The delegate decided the applicant did not comply with s.101(b) of the Act. The delegate found that the applicant provided incorrect information in relation to questions about his immigration history and whether he had been known by an alias.  The delegate found this information was incorrect because the applicant failed to declare that he had applied for an offshore humanitarian visa on 23 October 2006 using the name [Alias 1].

18.  The delegate observed that the applicant could not have been born in Afghanistan and Pakistan on different dates and that it is likely that either the Afghan identity card in the [Alias 1] or the Pakistani national identity card (NIC) in the name of [the applicant] contains incorrect information. The delegate had regard to the Pakistani identity documents produced by the applicant in response to the NOICC, including the NIC and certificate for children under 18 and concluded that it was likely he was a citizen of Pakistan and there was no non-compliance with respect to the applicant’s answer to question about whether he was a national of any other country.

APPLICATION FOR REVIEW

19.  The applicant appeared before the Tribunal on 20 May 2021 and 18 June 2021 to give evidence and present arguments. In a statutory declaration dated 11 May 2021, the applicant reiterated the information he provided to the Department and provided additional information. In summary:  

·     The applicant was born on [date] in Quetta in Pakistan. He maintains he is a citizen of Pakistan, not a citizen of Afghanistan.  All his Pakistani identity documents state his date of birth was [date].

·     The applicant and his family are of Hazara ethnicity.  His father was born in [year] in Afghanistan and completed school to year 9 level. His father fled Afghanistan in 1979-1980 following the Soviet invasion. During this time many people were killed and his father feared for his safety. After his father arrived in Quetta he married the applicant’s mother. The large Hazara population in Quetta was a key reason that his father settled there.

·     The applicant’s mother's family travelled from Afghanistan and settled in Quetta, Pakistan prior to his mother's birth in [year]. Until May 2021, he believed that his mother was born in Afghanistan and travelled to Pakistan with his father in 1979-1980. He now understands that this is incorrect; the correct information is his mother was born in Quetta.

·     The applicant’s father obtained ‘Pakistani citizenship through migration’. His mother was a Pakistani citizen by birth. The applicant and his siblings obtained Pakistani citizenship by being born and living in Pakistan. He completed all his education in Pakistan. Although his father migrated to Pakistan, a number of family members remained in Afghanistan. The applicant has no right to enter or remain in Afghanistan.

·     The facial image comparison report is not disputed: the photo attached to the documents submitted in the 2006 application is of the applicant. He was not involved in completing the application in 2006 or obtaining the supporting documentation. He believes that his family acted out of fear and concern for his safety in Pakistan. In 2006 her father's sister and her family had travelled from Afghanistan to Pakistan. In 2006, his father ­– with the assistance of his sister (his aunt) – arranged for his inclusion in an Offshore Humanitarian visa application for migration to Australia. At the time, he was about [age] years old. Other than being told that he would be migrating to Australia, he had no other knowledge about this application, its type or its content. He was not aware of the alias [Alias 1] or of other details included in the 2006 application.

·     The applicant failed to disclose the 2006 application because he had forgotten about it as he was only [age] years old when it was submitted. Before he applied for a protection visa, he was experiencing stressful circumstances: his brother and cousin had been kidnapped and a large ransom paid for their release. He had also become a target for kidnapping in Pakistan.  His father had arranged for his departure from Pakistan and he had travelled to Australia using false documents. When he arrived in Australia in October 2012, he was [age] years old and he had not been apart from his family before. He lodged his application while he was in immigration detention. He followed the advice he was given, which was to focus on why he left Pakistan and what would happen to him on return.

·     In Pakistan, his family operated a successful [business]. Then, in 2012, his younger brother and cousin were kidnapped, and a ransom demanded. The ransom was paid, and the kidnapping was reported to the police. After his brother and cousin were released, his father received threats he would be kidnapped if he did not pay additional money to the kidnappers. The applicant sought asylum in Australia after his father decided that the applicant was no longer safe in Quetta.

·     The applicant has [number of siblings] now resident in Australia. After he was granted a protection visa in 2013, his father closed down the business and then also travelled to Australia where he was also granted protection visa. His father sponsored his two sisters and one brother to migrate to Australia. [At the hearing the applicant gave evidence that one sister married an Afghan national and is resident in Afghanistan]. His family members are citizens in Australia. The applicant no longer has family members in Quetta.

·     The applicant fears that if he was returned to Pakistan, he would be kidnapped or killed or subject to some form of persecution or substantial discrimination and harassment due to his Hazara ethnicity and appearance. He will be forced to live alone without family support. He cannot relocate to larger centers such as Karachi or Lahore as Hazara people continue to be persecuted due to their ethnicity. He is identifiable as a Hazara and will be targeted for this reason.

·     The applicant resides at the family home in in [location] with his mother, father, [and specified siblings]. In addition to this, his older brother's wife and [children] reside with them. His sisters previously resided at home, they have each now married and live with their husbands. His mother suffers from high blood pressure and diabetes; she requires daily medication in the evening. As the family matriarch, his mother has many burdens and duties. As her son, he assists her where he can and tries to ensure her health issues are not worsened. His older brother has responsibility for his own family, and his father is getter older.

·     The applicant is part of a successful business and a loving, close-knit family household. If he was removed from Australia, this would have a negative impact on his family and their business in Australia. His family own and operate a busy [specified] business [ABN provided] and they have operated this business since around February 2014. He works in this business with his brothers and father. It employs [number] people, all of whom are Australian permanent residents or citizens.

20.  In addition to the applicant’s Pakistani NIC, which was provided to the Department, the representative submitted the following identity documents:

·     The applicant’s Pakistani birth certificate stating he was born [date] in Quetta;

· The applicant’s father’s NIC and an accredited translation issued [2011] and expired [2018];

·     The applicant’s mother’s NIC issued [2011] and expiring [2021];

·     The applicant’s parents’ marriage certificate and an accredited translation stating the marriage took place on [date] July 1977 in Quetta, Pakistan;

21.  The applicant’s oral evidence to the Tribunal was generally consistent with his written evidence and he expanded on aspects of his evidence when asked to do so. The evidence is briefly summarised below and, where relevant, is discussed below in the findings.

·     The applicant always considered himself to be a Pakistan citizen He was born in Quetta in Hazara Town as were his siblings. He departed Pakistan travelling on his own passport. Smugglers [arranged] a false passport for him the night before he travelled to Australia. The applicant’s father travelled to Australia the same way as the applicant in 2012. His father declared he was a Pakistani citizen born in Afghanistan and was granted a protection visa.

·     The applicant’s parents and his four of his siblings are resident in Australia; his mother and siblings were all born in Pakistan.  His earlier evidence that his mother was born in Afghanistan was incorrect. The applicant said he was from a Hazara ethnic community living in Afghanistan and Pakistan and he had assumed his mother was born in Afghanistan and migrated to Pakistan with his father. He only found out she was born in Quetta when asked about this issue by the Tribunal. When invited to comment on whether his father was born in Pakistan, the applicant maintained his father was born in Afghanistan.

·     The applicant’s elder brother was the first family member to arrive in Australia after he was sponsored to migrate to Australia by his fiancée in 2009.  His other siblings were sponsored by his father after his father was granted a protection visa.  His siblings are citizens of Australia apart from a sister who married an Afghan national and lives in Kabul. His siblings who are in Australia all travelled to Australia using Pakistani passports and identity documents.

·     The applicant was aware that his father was trying to arrange for him to travel to Australia in 2006 but he did not know the context or the names that were provided. He didn’t recall whether he had to sign the application form, but he recalled travelling to Islamabad with his aunt at the time the application was made. There were other cousins travelling who had come from Afghanistan.

·     The applicant’s father was born in Afghanistan and became a Pakistan citizen with assistance from Hazara tribal leaders. The applicant knows this because after his visa was cancelled, he was very stressed, and he asked his father many questions. His father came to Afghanistan after 1979 but his marriage certificate incorrectly said his parents married in 1977. The date was incorrect because his father migrated after the invasion and married his mother in 1979 (their first child was born in [year]). The applicant said in Pakistan they did not accept the refugees after 1979 and his father went to the Hazara tribe leaders who were connected to the Afghani government. He suggested that the marriage certificate may have been intended to show his father was resident in Pakistan before the 1979 soviet invasion of Afghanistan.

·     The Tribunal put to the applicant that it was not aware of a law that enabled Afghan refugees to become Pakistani citizens before 1979 and the country information before the Tribunal indicated that there was no legal pathway to citizenship for Afghan refugees who arrived in Pakistan after 1962. The applicant stated that this was the answer he got when he asked his father about it. He maintained his father was not born in Pakistan but became a Pakistani citizen after he left Afghanistan. The Tribunal invited the applicant to comment on reports that  over time an increasing number of Afghan refugees have attempted to become citizens of Pakistan however ‘, their claims have been denied both at administrative and judicial levels.’[2] In response, the applicant reiterated that his father had told him that he had acquired Pakistani citizenship with the assistance of the Hazara tribal leaders. He didn’t know about the rules about when people could get Pakistani citizenship.

·     The Tribunal invited the applicant to comment on information that indicates that a significant number of Afghan refugees acquired Pakistani identity documents through contacts or corruption and that it appeared possible that this was what his father had done. He gave evidence that his father was concerned about becoming a Pakistani citizen and the Hazara tribal leaders helped him; his father was able to obtain citizenship with the assistance of the Sardars. The applicant maintained his father was born in Afghanistan and he said his father was determined not to return to Pakistan, so he did every possible legal thing to remain in Pakistan. His father had a business in Pakistan and had a loan with the banks and this had been repaid. They had a successful business in Pakistan but when the kidnappings occurred they had to leave Pakistan and find a safe place. When his father sought asylum he told the Department he was born in Afghanistan and became a Pakistani citizen. When his father sponsored his mother to come to Australia, the application said she was born in Pakistan.

·     The applicant had heard about the checks that the Pakistani authorities undertake when some Hazaras sought to renew their national identity cards.  He said none of his family members were investigated by the authorities when they applied for national identity cards or passports. He applied for a CNIC based on his father’s documents. He described the difficulties experienced by other people outside of his family. However, neither he nor his family members had ever had national identity cards cancelled by NADRA. He went to the passport office himself and acquired a passport within a month without difficulty. His father ran a successful business in Pakistan and there was nothing that happened that required him to have a conflict with the government about these things.

·     The applicant had not met his paternal grandparents they were assumed dead. He didn’t remember his maternal grandparents. He gave evidence that the woman who made the offshore application in 2006 was his father’s sister. His aunt was in Pakistan for the 2006 application and then, when it was rejected, she went back to Afghanistan.

·     Before he travelled to Australia, the applicant had travelled to Iran with his father using his Pakistani passport. He has only travelled to Afghanistan once in 2015 to attend a friend’s wedding (he showed the Tribunal the entry and exit stamps in his Australian travel document). He has not returned to Pakistan. As well as a sister he also has extended relatives in Afghanistan. However, he was born in Pakistan and he had no documents from Afghanistan. He wasn’t born when his father got his citizenship and he really didn’t know what he did. He knew he was born in Pakistan and he was always a Pakistani citizen.

[2] 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 The first hearing was adjourned to enable the applicant to produce a statutory declaration from his father, Mr [A]. The information before the Tribunal indicates that Mr [A] arrived in Australia on [date] December 2012 by plane as an unauthorised air arrival and declared he was a citizen of Pakistan who was born in Afghanistan. [Mr A] was found to be a refugee and was granted a protection visa on 19 March 2013.

23.  In a statutory declaration dated 11 June 2021 Mr [A] states that he was born in Afghanistan in [year] and migrated to Pakistan following the Soviet Invasion in 1979. He declares that he is the father of the applicant and provides information about his family composition (he has [number] siblings; two are deceased; one is missing; the remainder live in Afghanistan).  In his statutory declaration [Mr A] states that historically the Pakistani government relied on the Sardar (tribe leader) as a voice between that tribe and the Pakistani government. The statutory declaration states, in part: 

15) I recall that around that time, a Hazara person could approach their Sardar to obtain a reference confirming that that person was a Hazara and that the person was wanting to reside in Quetta Pakistan. Such a reference statement could then be provided to the authorised identity office and seek for a National Identity Number to be issued.

17) I recall at the time, that I obtained such a reference statement from a Pakistani local Consular who knew the Hazara Sardar who detailed how he knew me and that I was a person living in that Consular's area. The consular also authorised and stamped my application for a National Identity number.

19) I then took the reference statement and provided it to the Pakistan Government Directorate General of Registration office where I applied for my National Identity Number and I was provided with my first National Identity Number.

22) In or around mid 1980's, I was named in a court case in Pakistan in a Balochistan Court. [a named person], who at the office was working in the office that issued National Identity numbers, had made a report to the Court that I was not a Pakistani National. I was then required to present before the Court in Balochistan and prove that I was a Pakistani National.’

23) The Court case went on for about a year or two. I provided the Court with documents in support of the fact I was a Pakistani National, particularly documents provided to me by my Sardar [named]. Sardar was the Hazara tribe leader in Pakistan at the time, and he attested to the fact I belonged to Sardar's tribe and that I was part of the Quetta District in Balochistan.

24) The Court ultimately found in my favour. Unfortunately, I no longer hold any documents relating to that Court case as many of my personal documents were lost over the years or in the period where I migrated to Australia.

25) Following the Court decision, the District Magistrate of the office of Deputy Commissioner District Quetta Pakistan issued me with my Local Certificate. To the best of my recollection, this was in around 1988.

24.  The applicant and his father appeared before the Tribunal on 18 June 2021 to give evidence. Where relevant this evidence is discussed further below. The applicant’s sister, [named], also attended as a support person.

25.  [Mr A], who gave evidence with the assistance of an interpreter in the Dari language, provided evidence about his early life in Afghanistan, education in Kabul, and the circumstances in which he left Afghanistan for Pakistan following the Soviet invasion in 1979.  [Mr A] gave evidence he was born in a village in Ghazni province. He was one of [number] brothers and he had [number] sisters. The applicant is his son.

26.  When [Mr A] was shown photographs from the 2006 application he identified his sister and his son. He thought the other two children pictured were his sister’s children although his evidence on this point was unclear. He said that his sister was an Afghan citizen and he suggested that the application process was initiated by her which is difficult to reconcile with the applicant’s sworn evidence that his father was responsible for his inclusion in the 2006 application.

27.  [Mr A] told the Tribunal that he was assisted to acquire Pakistani citizenship by tribal leaders. [Mr A] gave evidence he acquired Pakistani identity documentation in the same name that he was known by in Afghanistan. He gave evidence that some Hazaras were able to get Pakistani identity documents based on the fact that the tribal leaders were satisfied that they belonged to their tribe. [Mr A] claimed that he was involved in legal proceedings in the 1980s after it was alleged that he was not a Pakistani citizen. He gave evidence that this court case went on for one and half to three years and that he had to go to court. He gave evidence that the government inquired into his documents but ultimately concluded that the documents were OK. He has not retained documents from that time. [Mr A]’s evidence was that in the years that he lived in Pakistan he did not have any issues (apart from the court case): his documents were not cancelled; he was doing his business like any Pakistani, he was a member of the chamber of commerce, he imported goods from Iraq and he did all of these things based on the Pakistani documents he had.

Nationality, race and religion

28.  The applicant claims to be of Hazara ethnicity and Shia faith. He claims that he was born in Pakistan and holds Pakistani citizenship. Hazaras are a predominantly Shia ethnic group with distinguishable physical features; originally from Afghanistan, a significant population has lived in Pakistan for over a century, principally in Quetta.[3] Hazaras residing in urban areas are likely to speak Dari as a first language, and may speak other languages such as Pashto, English, and regional varieties of Persian.

[3] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 20 February 2019, ss.3.27–3.28‘War and Migration’, Alessandro Monsutti, Routledge, 2012, p.105.

29.  The applicant gave evidence that he spoke Dari, Urdu and English.  He elected to give evidence to the Tribunal, a language in which he is fluent. He told the Tribunal that in Pakistan he identified himself as [Given Name 1]. He explained that he adopted this surname ‘[Surname 1]’ after he arrived in Australia because he was advised that he needed a surname.

30.  The Tribunal accepts that the applicant is a Hazara and a Shia and that he was born in Pakistan. The applicant and his father share the distinctive facial characteristics associated with Hazaras and the Tribunal accepts that they are members of the Hazara minority and that his father was born in Afghanistan and the applicant, his siblings and his mother were  a born in Pakistan. Hazaras generally originate in Afghanistan but systematic discrimination and targeted violence have led to decades of persecution and displacement. Because Hazaras were the targets of discrimination and violence, first at the hands of the Soviet-backed regime and then the Taliban, many Hazara seek refuge in Pakistan:

Some Hazara families’ origins in Quetta can be traced back to the late 19th century, though the majority of the community immigrated in two waves – the first during the Soviet occupation of Afghanistan from 1979 onwards, and the second in 1996, when the Taliban regime in Afghanistan began to target the Hazara.[4]

[4] EASO, Pakistan Country Overview, August 2015, The following report provides context about the complexities that can arise when members of the Afghan Hazara ethnic minority group seek to establish their identity for the purpose of applying for asylum in Australia:

The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan they are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.

At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.

Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.

The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.

Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents.  It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[5]

[5] 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.

1. As discussed with the applicant, multiple sources indicate that Afghan refugees who arrived in Pakistan after 1962 and the children of Afghan refugees born in Pakistan after 1962 cannot claim citizenship under the Citizenship Act as the law that governs their residence in Pakistan is the Foreigners Act 1946.[6]

   [6] Report on Citizenship Law: Pakistan, Nazir, F, EUDO Citizenship Observatory, December 2016, pp.5-6.

2. The passage of the Pakistan Citizenship Act 1951 (and Pakistan Citizenship Act Rules 1952) had the effect of deeming migrants to Pakistan prior to 18 April 1951 to be Pakistani nationals.[7] However, while the Citizenship Act includes provision for citizenship by birth, by descent and by migration[8], in practice the country information indicates that none of these avenues to citizenship appear available to Afghan refugees or the children of Afghan refugees who were not present in Pakistan prior to 1962.[9]  The government of Pakistan has not conferred citizenship on Afghan refugees or persons of Afghan descent, who were born in Pakistan,[10] despite being the subject of legal challenge in the past.[11]  According to an article in Foreign Policy:

   [7] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015.

   [8] ‘Section 4 of the Pakistani Citizenship Act 1951 provides 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). Section 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). Section 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. 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.

   [9] Taqi, M., ‘Denigrating the Hazaras’, Daily Times, 27 June 2012, DFAT, Thematic Report Hazaras in Afghanistan and Pakistan,  26 March 2014, 3.14 (Country information details that the Hazara were recognised as a local tribe of Balochistan in 1962 by the Governor of West Pakistan, and that this allowed the Hazara resident at this time to be recognised as Pakistan nationals and granted citizenship).

   [10] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, p. 30, 20200312102402.

   [11] For e.g.‘NADRA submits reply in Hafiz Hamdullah citizenship case’, Pakistan Today, 23 November 2019

   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.[12]

   [12] Siddiqui, Z., ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019,

1. In the case of Ghulam Sanai vs. The Assistant Director National Registration Office, Peshawar, PLD 1999 Peshawar 18 (Sanai) 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.[13] In this case, the Court observed that in accordance with the Citizenship Act, ‘a person born after the commencement of the Act shall be a citizen of Pakistan by descent, if his father is a citizen of Pakistan at the time of his birth’. "[14]  The Court then considered the situation of Mr Sanai, a young man who was born in Pakistan to Afghan refugee parents. The Court observed his father had, in relying on false information, managed to obtain a National Identity Card and Pakistan passport, which had then been cancelled. However, while the position of Mr Sanai was that since he had been living in Pakistan for so long and intended to remain in Pakistan he had become a Pakistani national, the Court reasoned:

   [13] 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

   [14] Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Peshawar 18

   The long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law. The Afghan refugees have been provided refuge in Pakistan temporarily and they being not the citizen of Pakistan are governed by the Foreigners Act, 1946 (Act XXXI of 1946) and not by the provisions of Citizenship Act which is not applicable to them. According to the definition of 'Foreigner' given in section 2(a) of the Act (XXXI of 1946), 'Foreigner means a person who is not a citizen of Pakistan' hence an Afghan refugee being a foreigner and not a citizen of Pakistan cannot be issued a National Identity Card under section 4 of the National Registration Act, 1973 (Act LVI of 1973) which can only be issued to Pakistani citizens."[15]

   [15] Ibid.

2. Applying this reasoning, Afghan refugees are considered to be foreigners and aliens under the Foreigners Act 1946, which provides for the regulation of the entry, presence and departure of foreigners who are defined in the act as any person who is not a citizen of Pakistan[16] and therefore the ‘long stay of a foreigner in a foreign country would not automatically convert him to be the citizen of that country unless he acquires the nationality by process of law.’[17] 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.[18]

   [16] Sections 14, 2 of the Foreigners Act 1946.

   [17] ‘Report on Citizenship Law: Pakistan’, European University Institute, Faryal Nazir, 01 December 2016.

   [18] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019, >

   DFAT advises that more recent Hazara arrivals from Afghanistan do not have Pakistani citizenship and are not able to legally acquire the Pakistani National Identity Cards required to access government and other services.[19] According to DFAT, Hazara arrivals from Afghanistan typically do not have citizenship, though they are able to access immigration cards which provide some rights including access to drivers’ licences.[20]  Many Afghan refugees, specifically those in Hazara town, Quetta, do not hold an official form of identification of their refugee status or Afghan citizenship from the Pakistan government, but may hold a taskira or UNHCR registration documents.[21]

   [19] DFAT, Thematic Report Hazaras in Afghanistan and Pakistan, 26 March 2014, 3.14.

   [20] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.

   [21] DFAT, Country Information Report Pakistan, 20 February 2019, 3.65.

3. However, in 2019 DFAT reported that Hazara children born in Pakistan are entitled to Pakistan citizenship, but gives no source for this statement.[22] Other sources indicate that, despite the unconditional birth-right citizenship provided in Pakistan’s Citizenship Act,1951, the claims of children of Afghan refugees born in Pakistan have been denied at both administrative and judicial levels.[23] ’[24] In 2018 the Islamabad High Court in Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 cited with approval the decision in Sanai and held that all persons born in Pakistan except Afghan refugees were entitled to citizenship.[25]

   [22] DFAT, Country Information Report Pakistan, 20 February 2019, 3.42.

   [23] ‘Country Reports on Human Rights Practices for 2019 – Pakistan’, US Department of State, 11 March 2020, pp.29-30; ‘Report on Citizenship Law: Pakistan’, Faryal Nazir, European University Institute, December 2016, pp.5-6; ‘Birthright Citizenship Around the World’, Law Library of Congress, November 2018, pp.30 and 45. 

   [24] Report on Citizenship Law: Pakistan, Nazir, F, EUDO Citizenship Observatory, December 2016, pp.5-6; Ghulam Sanai v. The Assistant Director, National Registration Office, Peshawar and another PLD 1999 Peshawar 18. As noted above, the Courts have held that the children of Afghan refugees cannot claim citizenship by birth as their parents have a ‘recognised refugee status and they would be deemed foreigners and aliens under the law’ and therefore the law that governs their residence in Pakistan is the Foreigners Act 1946.

   [25] Saeed Abdi Mahmud v. NADRA 2018 CLC 1588 (Mahmud)

4. As well as provision for citizenship by birth, descent, migration, naturalisation, there is also provision for a non-national woman to become a Pakistani citizen by marrying a Pakistani man.[26] However, a foreign man cannot acquire citizenship of Pakistan on marrying a Pakistani woman.[27] Therefore, while children born in Pakistani with one Pakistani parent should be eligible for citizenship under the Citizenship Act by both birth and descent,[28] in practice the children of an Afghan refugee father and a Pakistani citizen mother appear unable to acquire citizenship because of the patriarchy system[29].[30]

   [26] Pakistan Citizenship Act 1951, 18 April 2000; see also The Pakistan Citizenship Act 1951

   [27] ‘Pakistan - Situation of Afghan refugees’, European Asylum Support Office (EASO), May 2020, p.50.

   [28] The Pakistan Citizenship Act, 1951 (as amended to 2000);

   [29]

   [30]

5. In September 2018, Pakistan Prime Minister Imran Khan proposed a law to grant citizenship to Afghan refugees born in Pakistan,[31] and a private members bill would have extended this to Afghans living in Pakistan for more than twenty years who were registered as refugees. …”[32] The Bill was unanimously rejected by the National Assembly’s Standing Committee on Interior on 30 August 2019.[33] In response to political backlash, Khan said he had raised refugee citizenship “just to initiate a debate”,[34] and shifted responsibility to a parliamentary committee which was asked to examine the possibility of extending citizenship to Pakistani-born children of refugees and stateless persons.[35]  No information was located that indicated that the committee has made progress toward implementation of the plan, or that any Afghans in Pakistan have been conferred citizenship under the plan.[36]

   [31] ‘Citizenship promise’, Dawn News, 18 September 2018; ‘Pakistan’s Imran Khan skirts issue of Afghan refugees’ citizenship’, Guardian, 19 September 2018.

   [32] ‘Pakistan PM Khan vows to grant Afghan refugees citizenship’, Independent, 18 September 2018

   [33] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,

   [34] ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018; ‘Pakistan’s Imran Khan skirts issue of Afghan refugees’ citizenship’, Guardian, 19 September 2018; ‘Parliamentary panel to decide citizenship for refugee children’, Pakistan Today, 25 September 2018; ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019; ‘Pakistan, Afghanistan, UNHCR sign declaration on return of refugees’, Tribal News Network (Pakistan), 19 June 2019,; ‘Citizenship promise’, Dawn News, 18 September 2018,; ‘Imran Khan pledges citizenship to Afghan and Bangladeshi refugees’, Al-Jazeera, 17 September 2018

   [35] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State,11 March 2020, p.30.

   [36] ‘For Afghan Refugees, Pakistan Is a Nightmare—but Also Home’, Foreign Policy, 9 May 2019, 

6. The applicant denies that the allegation in NOICC that he is an Afghan citizen named [Alias 1]. The applicant maintains that he was a Pakistani citizen by birth and that he had always considered himself to be a Pakistani citizen. He says that until his visa was cancelled he had never questioned his father about how he acquired Pakistani citizenship and that he had wrongly assumed his mother was born in Afghanistan when in fact she was born in Pakistan. While the Tribunal had some reservations about the applicant’s evidence that he was unaware that his mother had been born in Pakistan rather than Afghanistan, the Tribunal notes that the biodata page of her passport, which records she was born in Quetta, has previously been provided to the Department. Given its generally favourable impression of the applicant as a witness, the Tribunal is prepared to accept that until recently the applicant wrongly believed his mother was born in Afghanistan.

7. The Tribunal accepts the applicant has only recently asked questions about his parents’ migration history. The Tribunal found the applicant’s evidence at the hearing spontaneous and candid. The Tribunal accepts that he has endeavoured to provide correct information to the Tribunal, while acknowledging that some of the questions that have arisen in this review are not within his direct knowledge because the applicant was not born when his father migrated to Pakistan. The Tribunal accepts that the applicant was born in Pakistan, always considered himself and his family members to be Pakistani citizens, that he never experienced any difficulties obtaining a CNIC or a passport or a driver’s licence, and his siblings had never experienced difficulty obtaining or renewing Pakistani identity documents. The Tribunal accepts the evidence of the applicant and his father that no member of the immediate family has ever had a CNIC blocked or cancelled.

8. The Tribunal has considered the possibility that the applicant’s father obtained genuine Pakistani identity documents in late 1970s or early 1980s notwithstanding the fact that he was not technically entitled to do so and that this, in turn, enabled the applicant to acquire genuine Pakistani documents. It is notorious that national identity documentation is available through both official and unofficial means in Pakistan, and document fraud is ubiquitous.[37]  Corruption is endemic in Pakistan, and fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent feeder documents.[38] A 2018 report by the Danish National ID Centre recorded that ‘it is easy as well as almost risk-free to bribe officials at all levels of the Pakistani administration…according to a diplomatic source, there is, in general, little or no risk associated with acquiring forged documents or genuine documents with false content’.[39]

   [37] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, p. 71, ​​; ‘Pakistan Coercion, UN Complicity: The Mass Forced Return of Afghan Refugees’, Human Rights Watch, 13 February 2017, pp. 28-32; DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 1 September 2017, ss. 5.43–45.

   [38] DFAT Country Information Report Pakistan, 20 February 2019, 5.71.

   [39]  ‘Pakistan: The Pakistani passport and its trustworthiness’, Danish National ID Centre, 30 May 2018, p. 4,

9. Significant numbers of Afghans have illegally obtained identity documents in Pakistan.[40] One report, for example, estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[41]  DFAT assesses that ‘government efforts have reduced the incidence of bribery and fraud but have not eliminated it’. For example, CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud and the authorities can and do cancel fraudulent CNICs.[42]

   [40]  ‘NADRA is disrupting demographics in Balochistan by issuing fake ID cards’, The Nation (Pakistan), 7 August 2015, CXBD6A0DE19423, ‘Issuance of Afghan and Pakistan Passports and the Granting of Afghan and Pakistan Citizenship’, Country Information Report No. 05/17, DFAT, 9 March 2005, CX116630, ‘Afghan refugees’ Pakistani passports, identity cards illegal: NA told’, PAK Tribune, 17 November 2005, CX142357.  ‘Situation and return of Afghans in Pakistan’, DFAT, 19 April 2000, CX41729, ‘Pakistani/Afghan mixed marriages’, Country Information Report No.123/01, DFAT, 23 April 2001, CX52331, ‘Afghans holding Pakistani passports’, Country Information Report No.124/01, DFAT, 24 April 2001, CX52333, ‘Unregistered Afghans to be treated as illegal immigrants’, IRIN News, 22 November 2006, CX165588.

   [41] ‘No country for old Afghans ‘Post-1951 immigrants to be considered illegal’’ The Express Tribune,  3 April 2015, CX6A26A6E14660.

   [42] DFAT Country Information Report Pakistan, 20 February 2019, 5.70.

10. The issuance of bogus, or fraudulently obtained genuine NICs to Afghan refugees is of particular concern to NADRA with ongoing verification and blocking of NICs issued to Afghans. [43] Because the Pakistani authorities did not initially maintain proper records of refugees entering and leaving Pakistan and procedures to verify nationality were inadequate, ‘‘some Afghan refugees also managed to register with the District Registration Authorities as citizens of Pakistan and to obtain CNICs, which later became a serious concern for NADRA”.[44]  Presently, about 20,000 CNICs are suspended for being verified as belonging to Afghan refugees.[45] However, while NADRA can identify fraudulent documents ‘detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents’.[46]

    [43] UK Home Office, Country Information Note - Pakistan: Documentation, Version 2.0, March 2020, ‘The Hazaras of Afghanistan: an Historical, Cultural, Economic and Political Study’, Mousavi, S, 1997, p. 145, St Martin’s Press, New York.

    [45] Code Pakistan, Afghan Refugees in Pakistan - The Road Ahead, November 2019,

    [46] DFAT Country Information Report Pakistan, 20 February 2019, 5.72.

Anthropologist Alessandro Monsutti has examined the existence of large Hazara networks in Pakistan and observed the relative ease with which Hazaras may enjoy access to work, housing and identity documents.[47] According to Monsutti, connections play a significant role in the capacity of someone in Pakistan to gain identity documentation and evidence of citizenship irregularly. This means that many people who were born in Pakistan may not have Pakistani ID, while some who came from Afghanistan may find a way to get some. [48]

[47] ‘War and Migration: Social Networks and Economic Strategies of the Hazaras of Afghanistan’, Alessandro Monsutti, Routledge, 2005, pp. 101, 111, 120–121, CIS29035; see also ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802. See also ‘Participatory Needs Assessment of Afghan Refugees in Balochistan 2014’, United Nations High Commissioner for Refugees, October 2015, CISEC96CF14180.

[48] ‘Email from Alessandro Monsutti: Re: DIBP Request for Information on ‘Status of Hazaras in 1963’’, Monsutti, A, 15 December 2014, CIS2F827D91802.

The Tribunal found the applicant to be a generally credible witness who spoke spontaneously and fluently about his life in Pakistan. The Tribunal accepts that the applicant was born in Pakistan and that he has always considered himself to be a Pakistani citizen. The Tribunal accepts that the applicant’s father migrated from Afghanistan to Pakistan following the Soviet Invasion in 1979 and that he found a way to obtain Pakistani ID and citizenship with the assistance of Hazara tribal leaders. Having regard to the detailed evidence of [Mr A], the Tribunal also accepts that in the 1980s an allegation that [Mr A] was not entitled to Pakistani citizenship resulted in court proceedings and that these court proceedings were ultimately resolved in his favour.

The Tribunal accepts that before he left Pakistan and travelled to Australia he was in possession of Pakistani passport and a CNIC, that he relied on his father’s ID documents to obtain his own ID documents, and that these documents were genuine. The Tribunal accepts that his siblings all hold Pakistani identity documents, which were genuinely issued. When the Tribunal invited the applicant to comment on country information that obtaining passports and national identity cards is a persistent problem for members for the Shia Hazara community as the authorities ask applicants to prove that they have not ‘emigrated’ from Afghanistan’[49] and that NADRA has cancelled or blocked CNICs that belong to Afghan refugees, the applicant gave evidence that he was aware that members of Hazara community faced these problems, but the members of his family had not experienced any difficulties and had not their identity documents cancelled or blocked. 

[49] Pakistan: Situation and treatment of Shia [Shi’a, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020) Research Directorate, Immigration and Refugee Board of Canada.

The Tribunal has considered whether there is sufficient evidence for it to reach a real state of satisfaction that the applicant is in fact a national of Pakistan, in circumstances where there is some doubt about whether, if his account of his family immigration history is accepted, his father was legally entitled to obtain Pakistani citizenship. The Tribunal accepts the applicant’s evidence that [Alias 1] was an alias that was given to him by the family members who arranged the visa application and he has not been known by that name.  The delegate’s decision notes government record keeping in Afghanistan is poor and the system is vulnerable to fraud, whereas Pakistan has centralised identity records and family registration records and a computerised National Identity Card which is issued to citizens of Pakistan. However, as the country information set out above indicates it is possible to obtain genuine documents in Pakistan through fraudulent means.

The Tribunal accepts that the applicant was born and educated in Pakistan and that, contrary to the information in the 2006 application, he has never lived in Afghanistan or held Afghani identity documents.  The country information highlights role of connections within the Hazara community in enabling Afghan refugees obtaining Pakistani citizenship and also that NADRA has taken action against many Afghan refugees who were suspected of obtaining citizenship when they were not entitled to do so. While the country information before the Tribunal suggests there may be some question of whether the applicant’s father was technically legally entitled to Pakistan citizenship and it is unclear why the marriage certificate was backdated, the Tribunal acknowledges the available country is imperfect and, in some respects, ambiguous or contradictory. For example, as noted above, in 2019 DFAT reported that Hazara children born in Pakistan have been able to obtain citizenship whereas other reports suggest claims to citizenship by the children of Afghan refugees have been denied at administrative and judicial levels.

1. The Tribunal considers the weight of evidence indicates that the applicant is a Pakistani citizen who was known as [Given Name 1] in Pakistan. The Tribunal accepts that he only adopted the surname [Surname 1] when he arrived in Australia. The Tribunal accepts that it is not uncommon not to have surname is Afghanistan or Pakistan and that the applicant adopted a surname to conform to what he understood to be expectations of Australian society and not with any intent to deceive the Australian authorities.  The Tribunal accepts that in Pakistan the applicant held genuine Pakistani identity documents in the name of [Given Name 1] and that he was able to enjoy the rights and entitlements of Pakistan citizens, including by access services, enrolling in schools and obtaining a passport and a national identity card. The Tribunal considers that the applicant and his father gave credible evidence about how the applicant’s father obtained identity documentation Pakistan with the assistance of Hazara Sardars and, while the Tribunal cannot locate records of the court proceedings referred to by the applicant’s father given the passage of time, this is unsurprising. The Tribunal accepts that [Mr A] obtained genuine Pakistani identity documents and that in the 1980s legal proceedings about whether he was entitled to Pakistani citizenship were ultimately resolved in his favour. The Tribunal accepts that the applicant and his family members have lived in Pakistan as Pakistani citizens and enjoyed the rights of citizens of Pakistan. The Tribunal accepts the information he provided in his protection visa application about his nationality was consistent with his lived experience.

2. On the basis of the evidence before it, the Tribunal finds that it is more likely that the applicant is and was at the time of the visa application a citizen of Pakistan.

   Conclusions on non-compliance

3. For these reasons, the Tribunal finds that there was non-compliance with s101(b) by the applicant in the way described in the s.107 notice in the following respects:

   ·     The applicant provided incorrect information when he was asked whether he had ever made any type of application to the department before and he answered no. This information is incorrect because, as he has conceded, he was included in an offshore humanitarian visa on 23 October 2006.

   ·     The applicant provided incorrect information when he was asked a what other names have you been known by? (such as names before marriage, previous married name, alias). The applicant answered [Given Name 1] but failed to disclose that he had made a visa application under the alias [Alias 1].

53.  The Tribunal has considered the submission that this information was provided on behalf of the applicant by his father and his aunt and that, given the applicant was only [age] years of age when the GSH application was made, the Tribunal should conclude that the applicant did not have the legal capacity to make the application and therefore cannot be taken to have provided incorrect information.

54.  The Tribunal notes that under ss.101 and 102, non-citizens must fill in or complete their application forms and passenger cards in such a way that all questions are answered, and no incorrect answers are given or provided.

55.  For the purposes of these provisions, s.99 provides that information given by a non-citizen or ‘on his or her behalf’ to the Department or a Tribunal in relation to the application is taken to be an answer in the application form, whether it is given orally or in writing. Section 99 has a broad deeming effect that expands the ambit of the obligations to include a broad range of information which may be properly regarded as information for the purposes of s.101.

56.  In addition, s.100 makes it clear that for the purposes of Subdivision C, an answer to a question is incorrect even if the person who gave it or caused it to be given did not know that it was incorrect. Accordingly, the Tribunal finds the answers about the applicant's visa history in the protection visa application form are incorrect for the purposes of s.101 because he was included in the GSH application as a result of the actions of his father, even if he did not know he was included at the time, or if he was unaware that he was given an alias and, as a minor, had no capacity at the relevant time.

Should the visa be cancelled?

57. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

58. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

·     the correct information

·     the content of the genuine document (if any)

·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

·     the circumstances in which the non-compliance occurred

·     the present circumstances of the visa holder

·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

·     any other instances of non-compliance by the visa holder known to the Minister

·     the time that has elapsed since the non-compliance

·     any breaches of the law since the non-compliance and the seriousness of those breaches

·     any contribution made by the holder to the community.

59.  While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

The correct information

60.  The Tribunal considers it is likely that the applicant is a Pakistani citizen and finds that the correct information is as follows:

·The applicant was born [Given Name 1] in Pakistan on [date], held genuine Pakistani identity documents, and identified himself in Pakistan and in his protection visa application as a Pakistani citizen.

·At the time the applicant applied for a protection visa, the correct information was that he had applied for an offshore humanitarian visa on 23 October 2006 using the name of [Alias 1]. He did not provide the correct information about his immigration history in the protection visa application.

61.  The Tribunal accepts that the information the applicant provided in his protection visa application about his nationality was true and correct to the best of his knowledge at the time of the application.

1. The Tribunal accepts that after arriving in Australia the applicant adopted a surname, [Surname 1], in an attempt to conform to the conventions of Australian society.  The Tribunal accepts that since arriving in Australia the applicant has persisted in his use of the surname [Surname 1] and that this is reflected in his Australian identity documentation.  

   The content of the genuine document

63.  This prescribed circumstance is not relevant in this case because the s.107 notice relied on s.101, not on s.103 (relating to bogus documents).

The circumstances in which the non-compliance occurred

64.  The Tribunal acknowledges that the applicant’s evidence is that, while he was aware an application to migrate to Australia, he was not aware of the content of the 2006 application. The Tribunal accepts that the applicant was [age] years old in 2006 and that the incorrect information was provided on his behalf by his father and aunt. The Tribunal also accepts that when he arrived in Australia in 2012 he was not familiar with the protection visa process and followed the advice of others in relation to the information that he provided.  The Tribunal gives this consideration weight towards the visa not being cancelled.

Whether the decision to grant a visa to the visa holder was based, wholly or partly, on incorrect information

65.  The delegate considered that if the departmental officer who found  the applicant was a refugee had been aware that the applicant had previously made an application for an offshore humanitarian visa on 23 October 2006 in which he provided significantly different information about his identity, citizenship, family and history, consideration of this information may have affected the outcome of the 2012 application.  In response, the applicant submits the information he provided about his nationality and protection claims in the 2012 application is correct and that the information that was provided about his identity and nationality in the earlier 2006 application was incorrect. Had he been invited to comment on the 2006 application, he would have explained that he was a minor when the 2006 application was made on his behalf by his father and not responsible for its contents.

66.  While the applicant concedes he did not disclose an earlier application made on his behalf when he was a minor, the factual findings that underpinned the conclusion that the applicant was a refugee have not been found to be incorrect in the cancellation process.  It is not in dispute that the applicant is a member of the Hazara Shia minority and the Tribunal, like the delegate, accepts that he is a Pakistani citizen. At the hearing the applicant spontaneously referred to and described in some detail the circumstances that led him to come to Australia. The applicant’s father, who first arrived in Australia in 2012 identified himself as a Pakistani national and sought protection in Australia, was found to be refugee in March 2013 and is now an Australian citizen.

67.  The Tribunal gives this factor weight in favour of not cancelling the visa.

The present circumstances of the visa holder

68.  The evidence before the Tribunal is that the applicant is a productive member of the Australian community and part of a close-knit family. Since the applicant arrived in Australia in 2012, his immediate family have migrated to Australia and are now Australian citizens. The evidence before the Tribunal is that the applicant is a hard-working member of a family run business that has significant financial liabilities and provides employment to Australian permanent residents and citizens. The applicant is also a loving son who cares for his mother, which she appreciates as she has some medical issues.  

69.  The Tribunal gives these factors weight in favour of not cancelling the visa.

The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

70.  The applicant has conceded that he provided incorrect answers about his immigration history in his application for a protection visa. Given the applicant’s age in 2006, the Tribunal is prepared to accept that while he was aware of efforts to facilitate his migration to Australia he may have been unaware of its content of the GSH application, including  the alias that he was given. However, the Tribunal considers that his own evidence suggests he was aware an application was made. 

71.  The Tribunal considers the applicant has endeavoured to answer questions about his family’s migration from Afghanistan to Pakistan notwithstanding the challenges of answering questions that involve events that occurred before he was born. The applicant has, in response to questions from the Tribunal, acknowledged that he provided incorrect information about his mother’s place of birth. The applicant also told Tribunal that documents produced to the Tribunal in relation to his parents’ marriage do not accurately record the date on which his parents married.

72.  Having listened to the applicant give evidence the Tribunal is persuaded that he has always understood himself to be a Pakistani citizen and that his responses do not indicate an attempt to deceive the Australian authorities but reflect the complexities of determining nationality in the case of Hazaras who have moved between Afghanistan and Pakistan.

73.  The Tribunal gives this factor some weight in favour of not cancelling the visa.

Any other instances of non-compliance by the visa holder known to the Minister

74.  There are no other instances of non-compliance known to the Tribunal. The Tribunal has given this factor weight in favour of not cancelling the visa.

The time that has elapsed since the non-compliance

75.  The relevant non-compliance took place when the applicant applied for a protection visa in 2012. Over nine years have elapsed since the non-compliance took place and in the intervening years the applicant has established himself as a productive member of the Australian community and his family members have settled permanently in Australia.  The Tribunal gives this consideration significant weight in favour of not cancelling the visa.

Any breaches of the law since the non-compliance and the seriousness of those breaches

76.  There is no evidence before the Tribunal that the applicant has breached the law since the relevant non-compliance. The Tribunal gives this consideration some weight in favour of the applicant.

Any contribution made by the visa holder to the community

77.  The Tribunal considers that the applicant has contributed to the Australian community over a sustained period of time. The evidence before the Tribunal indicates that the applicant is a valued member of the family business. This business also provides employment to members of the Australian community. The Tribunal gives this consideration weight in favour of not cancelling the visa.

Other factors

Mandatory legal consequences

1. The Tribunal is required to consider, among other things, mandatory legal consequences to a cancellation such as: indefinite detention; whether a visa holder would be prevented from making a valid application for any visa; and whether, upon cancellation, a person would become an unlawful non-citizen.

2. If the applicant’s visa is cancelled, s.46A of the Act will prevent the applicant from making a visa application except with the authorisation of the Minister. As a result, the applicant will be unable to apply for a bridging visa or protection visa. In these circumstances, the consequence of the cancellation would be that the applicant would be liable to detention under s.189 of the Act.

3. Under s.198(5) of the Act, the applicant would be removed from Australia as soon as practicable. Under s.197C(1), Australia’s non-refoulement obligations are irrelevant to the removal of a person under s.198, and the duty to remove arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations: s.197C(2). It had been held that indefinite detention may not result, because of the version of s 197C then in force, which provided that non-refoulement obligations were irrelevant to duty to remove the unlawful non-citizens under s 198.[50]

   [50] See DMH16 v MIBP [2017] FCA 448, at [30]; NKWF v MIBP [2018] FCA 409, at [41]–[43]; AQM18 v MIBP [2019] FCAFC 27, at [17], [25], [28], [119]–[120].

4. The question of whether s 197C and 198 required the removal of an unlawful non-citizen from Australia as soon practicable regardless of whether Australia had non-refoulement obligations was addressed by Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). According to the Explanatory Memorandum, this Act intends to:

   · modify the effect of s.197C to not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations through the protection visa process unless:

   o    the decision finding that the non-citizen engages protection obligations has been set aside;

   o   the Minister is satisfied that the non-citizen no longer engages protection obligations;

   o   or the non-citizen requests voluntary removal; and

   ·    ensure that, in assessing a protection visa application, protection obligations are always assessed. [51]

   [51] Revised Explanatory Memorandum to Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, p.4. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021, which commenced on 25 May 2021, amends s 197C to clarify that Australia’s non-refoulement obligations do have relevance to the removal of unlawful non-citizens under s 198 (Revised EM, Item 2). It also inserted s 36A, which requires protection obligations to be considered in determining a protection visa application, before considering other criteria or whether the visa grant is prevented by any other provision, and without regard to exclusion provisions on character and security grounds.

5. As a result of these amendments the duty to remove the applicant under s 198(5) ‘should not be enlivened where to do so would breach non-refoulement obligations’.[52]As noted above, the applicant as an unlawful non-citizen the applicant will be subject to mandatory immigration detention. As the Minister's statutory powers to grant the applicant a visa(s.195A of the Act) or move a non-citizen into ‘community detention’ (s.197AB of the Act) are non-compellable and discretionary, it is uncertain whether the applicant would be granted a visa or that he would be eligible for community detention.

   [52]Ibid.

6. Therefore, if the applicant were not removed pursuant to s 198(5), the consequence of the cancellation is that he would be deprived of his liberty and exposed to the prospect of ongoing and possibly indefinite detention.

7. The mandatory consequences of cancellation weigh in favour of not cancelling the visa.

   Whether there would be consequential cancellations under s.140

8. There is no suggestion that another person holds a visa in Australia as a family member of the applicant. This factor is not relevant in this case.

   Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international obligations

9. The Tribunal has considered whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel and inhuman or degrading treatment or punishment. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights (the ICCPR) and its Second Optional Protocol (the Optional Protocol to the ICCPR).

10. The phrase ‘non-refoulement obligations’ is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.[53] In the absence of specific guidance on whether the Tribunal’s consideration of non-refoulement obligations should address whether the applicant meets the definition of refugee in article 1A(2) of the Refugees Convention or the codified definition of refugee in s.5H of the Act, the Tribunal considers the preferable approach is to consider whether the applicant comes within article 1A(2) of the Refugees Convention.

    [53] Section 5(1), Migration Act 1958.

1. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it

2. The Department’s Policy Guidelines provide that:

   Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

   Refoulement is prohibited under Article 33 of the Refugees Convention unless:

   ·     there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

   ·     the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

3. This policy indicates that a detailed international obligations assessment is to be undertaken where there are indications that cancelling a visa may engage Australia’s non-refoulement obligations before making the decision to cancel the visa. Notwithstanding this policy, the Department has not undertaken an International Treaties Obligation Assessment in relation to the cancellation of the applicant’s protection visa.

4. The Tribunal has considered submissions that the applicant will face persecution in Pakistan. The Tribunal accepts that the applicant comes from an ethnic and religious minority group that continues to face discrimination and violence in Pakistan and Afghanistan. For the reasons set out above, the Tribunal accepts that the applicant is a citizen of Pakistan. Accordingly, the Tribunal has assessed his claims against Pakistan as the country of reference.

5. On the evidence before it, the Tribunal accepts that the applicant is a Pakistani citizen of Hazara ethnicity and that he was formally resident in Quetta, Balochistan. It is submitted that the applicant is owed protection obligations by Australia if these claims are assessed against Pakistan on the basis of his Hazara ethnicity and Shia Muslim religion. The applicant maintains the claims that he made for protection in 2012 and has not returned to Pakistan in the intervening years.  

6. The Tribunal was told that the security situation for Hazaras in Quetta is deteriorating and Hazara people are easily identifiable across Pakistan. The applicant said Hazara people are locked up in a compound and if you go you will be killed. Everyday the owners of fruit market are accompanied by guards to fruit market. There are no proper jobs or medical services. It is very hard as he would have to go out of the compound to make a living and if he went out, he would be killed. He said everyone knew who went in and out of the compound and those who targeted his family in the past would know that he had returned.

7. DFAT’s most recent country information report on Pakistan, which was published in February 2019 and is now over two years old, states that Hazaras in Pakistan face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shia due to their distinct appearance and to segregation. Reports published in 2020 and 2021 indicate sectarian militants continue to target members of the Shia Hazara minority in Quetta.

8. Hazaras are largely confined to Quetta’s two Hazara-populated enclaves, which significantly restricts their ability to move freely, find employment and pursue higher education. Community members complained that increased security measures had turned their neighbourhoods into ghettos, resulting in economic exploitation, and an inability to find employment or pursue higher education. Outside Hazara enclaves in Quetta, DFAT assesses Hazaras face a moderate risk of societal discrimination, including by government officials and security forces, in the form of obstruction at checkpoints, denial of or delay in access to identity documentation, employment and services.[54] Hazaras have suffered lethal attacks outside the NADRA office in Quetta, located outside the enclaves, while trying to obtain passports and CNICs.[55]

   [54] ‘DFAT Country Information Report: Pakistan’, DFAT, February 2019

   [55]‘DFAT Country Information Report: Pakistan’, DFAT, 3.41, 3.45, 3.47–3.48, February 2019

9. With regard to the possibility of the applicant being able to access State protection, DFAT reports  indicate that there is some official willingness to protect minority groups threatened by extremist groups but that in reality State protection can be limited due to resource shortages, socio-economic factors at the individual level, and political will, police corruption, inefficiency and impunity.[56] With respect to the situation of Hazaras, DFAT reports that Frontier Corps are known to routinely discriminate against and harass Hazaras at checkpoints and international media report Hazaras fear security forces operating checkpoints in Balochistan as they may be involved in attacks against the community.[57] According to DFAT:

   [56] ‘DFAT Country Information Report: Pakistan’, DFAT, s.5.11, 20 February 2019

   [57] ‘DFAT Country Information Report: Pakistan’, DFAT, s.3.3-3.47, 20 February 2019.

   …Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.

   Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence.

10. In late March 2020, the United States Commission on International Religious Freedom (USCIRF) reported grave concern that the Hazara community in Quetta was being targeted by the provincial government of Balochistan in relation to COVID-19 measures.[58] Reportedly, Hazara Town and Mariabad were ‘completely sealed off’ as part of a lockdown in Quetta, and social media users had ‘made allusions to coronavirus as the ‘Shi’a virus’, given fears of its spread by pilgrims returning from Iran’. USCIRF warned that such further stigmatising of the Hazara minority could limit their ability to access medical care.[59]

    [58] 'USCIRF Troubled with Targeting of Hazara Shi’a in Pakistan amid Coronavirus Lockdown', US Commission on International Religious Freedom, 31 March 2020.

    [59] Ibid.

11. Hazaras face a high risk of sectarian violence from extremist militants as well as societal discrimination and discrimination from government officials. The Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal accepts that the applicant faces a real chance of persecution for reasons of his Hazara race and Shia religion if he returns to Pakistan, now or in the reasonably foreseeable future.

12. With respect to the question of relocation, the Tribunal accepts the applicant will be identifiable as a Hazara Shia wherever he lives in Pakistan and that this will expose him to a risk of being targeted by militants. A person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. What is reasonable, in the sense of practicable, depends on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[60] When the Tribunal asked the applicant whether he could relocate to elsewhere in Pakistan, for example to Karachi or Islamabad he said no because the minorities are not safe in Pakistan. He said he didn’t have any connections or anyone to guide him, it would be a living hell for him; they left everything behind. He also referred to reports of kidnappings and targeting of Hazaras and said it was not safe to travel from Quetta to Karachi.

    [60] SZATV v MIAC (2007) 233 CLR 18

13. DFAT reports that Hazaras that can afford to leave Quetta do so and go outside Balochistan, but ‘tend not to live in enclaves’, as, if they live near other Hazaras, they can be easily profiled and targeted.[61] In the first week of January 2021, militants from the Islamic State group kidnapped and killed 11 Hazara men working as miners in Balochistan province, in a small town close to the border with Afghanistan.[62] Outside of Quetta, smaller but significant populations of Hazaras reside in major urban centres such as Karachi, however estimating the number of Hazaras living outside Quetta is difficult. ^[63] While living in ethnically diverse locations affords increased security to Hazaras, they still experience societal discrimination and security threats across Pakistan: as noted above, DFAT assesses Hazaras face a high risk of violence from sectarian militants and a higher risk of violence than other Shias due to their distinct appearance.[64]

    [61] ‘DFAT Country Information Report: Pakistan’, DFAT, 5.22, 20 February 2019.

    [62] 'Pakistan coal miners kidnapped and killed in IS attack', British Broadcasting Corporation, 3 January 2021; 'PM Imran visits Quetta, meets families of slain Hazara miners', Dawn, 09 January 2021.

    [63] ‘Country Policy and Information Note - Pakistan: Hazaras', UK Home Office, November 2019, p.14

    [64] ‘DFAT Country Information Report: Pakistan’, DFAT, s.3.28, 20 February 2019.

14. On the evidence before it, the Tribunal considers that, even if the applicant could avoid a real chance of persecution by relocating within Pakistan, relocation is not reasonable.

15. For these reasons, the Tribunal accepts the applicant has a well-founded fear of persecution in Pakistan for reasons of his Hazara ethnicity and imputed Shia religion. It follows that he comes within article 1A(2) of the Refugees Convention and his removal from Australia to Pakistan would be in breach of article 33 and contrary to Australia’s non-refoulement obligations. Having reached this conclusion, it is unnecessary to consider whether the applicant’s removal would be in breach of Australia’s non-refoulement obligations under other international instruments.

    Any other relevant matter

16. The Tribunal accepts that the applicant is a member of the Hazara community, a community which faces violence and discrimination in both Afghanistan and Pakistan.[65] There is no suggestion that he poses any risk to the Australian community. A significant period of time has passed since the non-compliance. While the applicant was aware of efforts to facilitate his migration to Australia, he was [age] when the application was made on his behalf and it is possible he was not aware of the alias he was provided by his family members or the documentation that was produced to support the application.

    [65] If the Tribunal was wrong in its conclusion that the applicant is a Pakistani citizen and he was, technically, an Afghan citizen born in Pakistan and in possession of Pakistani identity documents as a legacy of time when Afghan citizens who were not technically entitled to citizenship relied on their connections to obtain genuine identity documents in Pakistan, then the Tribunal would have concluded that as a young Hazara man who has never lived in Afghanistan and has spent almost a decade in the west, he would face a real chance of persecution in Afghanistan as a member of the Hazara Shi’a minority. Such a conclusion would be supported by the current country information about the particular risks facing Hazara Shi’as in Afghanistan as U.S troops withdraw and the targeting of Hazaras intensifies; see, for e.g, On the return of Hazaras to Afghanistan, Professor William Maley AM, 19 May 2021;

17. The Tribunal has considered the hardship that would be caused by cancellation. The Tribunal accepts that, as a consequence of the cancellation, the applicant’s mother would be deprived of the support of her son and the family business, which provides employment to Australian citizens and permanent residents, would likely suffer some hardship as well. The Tribunal also accepts that if the applicant were removed from Australia to Pakistan, a country that is no longer home to his immediate family members and where Hazara Shia have been targeted for many years by anti-Shia extremists, he would face significant hardship.

    CONCLUSION

18. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. 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.

    Frances Simmons
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.