1926063 (Migration)

[2020] AATA 5587

1926063 (Migration) [2020] AATA 5587 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926063

MEMBER:Christopher Smolicz

DATE:15 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 15 July 2020 at 1:36pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – satisfaction as to applicant’s identity – Afghan national – undocumented Hazara Shia living in Pakistan – difficulties in obtaining identity documents displaced Afghan nationals – use of false identity in previous visa application – DNA testing – mitigating factors – persecution experienced by the Hazara Shia community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360

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.116 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia [in] December 2011 and identified himself as [the applicant], an Afghan national of Shia religion and Hazara ethnicity born in approximately [year].

3. On 10 September 2019 the delegate cancelled the visa under s.116(1AA) on the basis that the Minister was not satisfied as to the visa holder’s identity.

4. The delegate’s decision to cancel the visa was based upon a view that the applicant had applied for an off-shore Global Special Humanitarian (GSH) and on-shore protection visa using two different identities. The two identities had different names, dates of birth, different places of birth, different family composition and different evidence as to whether the applicant had relatives in Australia. The delegate was unable to determine which of the identities was the applicant’s actual identity. As such the visa was cancelled under s.116(1AA).

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant is represented in relation to the review by his registered migration agent. The applicant has provided detailed statements in relation to his identity, including on 6 December 2018, 9 February 2019, 15 May 2019 and 18 December 2019. He claims his true name is [the applicant] and that he was born in Uruzgan province, Afghanistan in approximately [year]. He has conceded that the information related to his identity provided in the GSH visa was false.

7. The applicant was able to provide the Tribunal with the following new evidence in support of his identity which was not before the delegate:

   ·     certified copy of his computerised Afghan passport issued by the Afghan embassy in Canberra.

   ·     DNA evidence.

8. It was submitted by the applicant’s representative that the application is decision-ready and that compassionate and compelling reasons exist to prioritise the application pursuant to the President’s Direction.[1]

   [1] Administrative Appeals Tribunal / President’s Direction / Prioritising Cases in the Migration & Refugee Division

9. For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   LEGISLATIVE FRAMEWORK

10. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant was proposed for the GSH visa under the name [Alias 1], born [Date 1], in an application lodged in Pakistan on 3 March 2011. The applicant was included in the application as a dependant applicant. The primary applicant was the applicant’s claimed mother. The application was proposed by [Mr A], an Australian resident, who was identified as the applicant’s brother. This application was refused on 8 June 2011.

12. The applicant subsequently arrived in Australia as an Irregular Maritime Arrival (IMA) [in] December 2011 and was granted a protection visa on 30 June 2012. The applicant gave his name as [the applicant] born in Uruzgan Province Afghanistan on [Date 2]. He declared he was from the Hazara ethnic group and Shia Muslim religion. He provided his family composition, identity and travel history. The applicant did not declare that he had applied for a GSH visa under the name [Alias 1] or that he had any relatives in Australia.

13. On 23 May 2012, the applicant provided the name and address of [Mr A] to the Department, indicating that he was a community contact and friend. These details were included on a Transitional Support Needs Assessment Form.

14. On 2 July 2017, the applicant applied for Australian citizenship. On 2 October 2018, the applicant was invited to provide comment on adverse information in relation to his identity.

15. On 6 December 2018, the applicant provided a response to the information. This response acknowledged that the applicant lodged a GSH application under the fake name of [Alias 1] and that all the biographical, travel, residence and humanitarian claims associated with that name do not reflect his true identity.

16. The applicant claims that [Mr A] is a close personal friend who lodged the GSH application on his behalf and provided incorrect identity details for him out of compassion because as a Hazara Shia Muslim his life was in danger if he continued to live in Pakistan. He claimed that his true identity was [the applicant], as declared in his protection visa application forms.

17. On 11 February 2019, the applicant provided information to the Department in relation to an earlier taskera (afghan national identity document) he had provided to the Department when he was in immigration detention. The applicant detailed that while the information in the document was correct, he had reason to believe that the document was not issued by a duly authorised entity and this is why he did not provide the document to the Department with his citizenship application.

18. The applicant reiterated that he was currently unable to provide any documents from Afghanistan. The applicant reiterated that he was willing to co-operate with any department-initiated process to verify his identity. It is noted that the applicant requested that the Department request a DNA test from him and [Mr A] to verify his claims in relation to their lack of family relationship.

19. On 3 May 2019, the delegate wrote to the applicant confirming they were not satisfied as to his identity and that there were grounds under s.116(AA) of the Act to consider cancelling the Resident Return Subclass 155 visa.

20. Between May and July 2019, the applicant provided regular updates to the Department in relation to his attempts to obtain a taskera and verification from the relevant authorities in Afghanistan and Australia.

21. On 22 July 2019, the applicant provided to the Department a second taskera issued in his name, translation of the taskera and a letter from the Afghan embassy verifying the document.

22. It was submitted the applicant engaged an advocate in Afghanistan to assist him to locate his paternal records. The applicant’s taskera confirms that his grandfather’s record has been used to produce his own taskera. It was submitted that the applicant’s statutory declaration, dated 15 May 2019, outlines the process involved in obtaining the second taskera. This process, outlined in detail, in English, on the website of the Afghan embassy of Australia, involves several layers of authentication and verification, including the provision of a genuine taskera issued by Afghanistan Central Civil Registration Authority (ACCRA) in Afghanistan and then a verification document provided by the embassy in Canberra.

23. On 10 September 2019, the applicant received a notice of cancellation of his visa. The delegate’s decision does not indicate that the Department had undertaken any independent assessment of the documents provided by the applicant in support of his identity, nor made requests for verification through departmental channels.

24. On 10 October 2019, after the applicant’s visa was cancelled, the applicant was issued a computerised Afghan passport, issued by the Afghan embassy in Canberra. The Tribunal was provided with a certified copy of the applicant’s passport.

25. It was submitted by the applicant’s representative that his account of the taskera verification occurring as part of the process of issuing an Afghan passport is supported by information available on the Afghan embassy website.[2]

    [2] Embassy of the Islamic Republic of Afghanistan, Canberra – Australia, Consular Affairs – Absentee Tazkira

    >

    The applicant also provided the Tribunal with a “Sibship Analysis” report dated [in] November 2019 issued by Genomic Diagnostics. The report is based on DNA samples taken from the applicant and [Mr A]. The report concludes that it is extremely unlikely that [Mr A] and [the applicant] are related as biological full siblings and do not share the same paternal lineage.

    Does the ground for cancellation exist?

26. As detailed above, s.116(1AA) states that a visa may be cancelled if the Minister is not satisfied as to the visa holder’s identity.

27. In assessing the applicant’s claims regarding his true identity, the Tribunal has had regard to the Department’s National Identity Proofing Guidelines.

28. In particular the Departmental guidelines note that, ‘A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.’[3]

    [3] Department of Home Affairs, National Identity Proofing Guidelines, 2016 at 2.1.1 >

    The Department’s policy advice manual explains:

    The identity of an applicant is established using three pillars: biometrics, documentation and biography (refer to section 3.10.2 - Biometrics, documentation and biography). To reach a level of satisfaction that an applicant's identity is or is not as claimed, a decision maker should have regard to the consistency of information provided in relation to all three pillars.

    While applicants should provide biometrics, and may provide documentary evidence of identity, nationality or citizenship, consistent biographical information is important in assessing the applicant's identity. It is, therefore, essential that the three pillars of identity are considered in reference to one another, so a complete picture can be built.[4]

    [4] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.1

29. Documentation includes all documentary evidence relating to an applicant’s identity, nationality or citizenship. Biography is the life story of an applicant including explanations of where they lived, why and how they travelled, along with other relevant elements of their narrative. Biometrics includes personal identifiers such as facial image and fingerprints.[5]  

    [5] PAM – Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines – 3.10.2

30. The applicant’s representative also referred the Tribunal to specific guidance developed by the Department in relation to Hazara Shia Afghan protection applicants. The guidelines emphasise the difficulty applicants from Afghanistan may have in obtaining reliable documentation, although every effort may be expended by the application.[6]

    [6] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016

31. The guidelines refer to the following suggested issues for consideration:

    ·     is the documentation provided by the applicant consistent with the applicant’s biometric and biographical details?

    ·     has the biographical information provided by the applicant changed significantly over time?

    ·     are there any allegations from reliable sources that the applicant is making fraudulent claims about their nationality, personal data or claims?

    ·     does the applicant display a lack of knowledge about local conditions in Afghanistan?

    ·     does the applicant display linguistic patterns, difficulties or inconsistencies that give rise to concerns about their identity?

    ·     has the applicant admitted to providing a bogus document?

    ·     are there any reasonable explanations for the bogus documentation?

    ·     have reasonable steps been taken to produce documentary evidence of identity, nationality or citizenship?[7]

    [7] PAGN 5 “Afghanistan Hazara-Shia & Gov or Int Orgs” – August 2016

    Analysis

32. The Tribunal finds that the applicant has consistently claimed in the applications for GSH visa and his protection visa forms to be an Afghan national of Shia religion and Hazara ethnicity. The applicant declared that he speaks Hazaragi.

33. The delegate who assessed the applicant’s protection visa application noted that the applicant communicated fluently in Hazaragi including in his POE interview and there was no evidence to suggest he was not a citizen of Afghanistan.

34. In assessing the applicant’s evidence, the Tribunal has had regard to the following country information which confirms the difficulties displaced Afghan nationals face in obtaining identity documents:

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

    At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally.

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

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

    Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents.  It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[8]

    [8] Comparative international approaches to establishing indemnity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4

35. DFAT confirms that the majority of the Hazara community arrived in Pakistan in two waves – the first during the Soviet occupation of Afghanistan from 1979, and the next in 1996 following the Taliban takeover in Afghanistan. Hazaras have been subject to frequent sectarian attacks in Quetta, generally by anti-Shia militant groups.[9]

    [9] DFAT Thematic Report - Hazaras in Afghanistan and Pakistan, 26 March 2014 [2.19]

36. The Tribunal has also had regard to country information referred to by the applicant’s representative which confirms that the applicant’s home area in south-east Afghanistan is an area where identification documents are difficult to access particularly in the case of the applicant who fled Afghanistan as a young child.[10]

    [10] Afghanistan Independent Human Rights Commission (November/December 2009), “Report on the Situation of Economic

    and Social Rights in Afghanistan – IV Qaws 1388 (November/December 2009)”, pg 27 - 28

37. The Tribunal has regard to the applicant’s narrative, physical appearance, language and the country information detailed above and accepts that he is from the Hazara ethnic group and that he was born in Afghanistan. The Tribunal accepts that the applicant fled from Afghanistan to Pakistan in approximately 1996 when he was a child and would not have had access to any identity documents at that time.

38. As detailed above the applicant acknowledged that his failure to provide information about his previous failed GSH visa application applied for using a false identity raises legitimate questions about his identity. [Mr A] did not provide evidence in support of the applicant’s claims, he has however agreed to undergo DNA testing which supports the applicant’s evidence that there is no familial link between the applicant and [Mr A]. The Tribunal finds this evidence goes some way in support of the applicant’s claims that the applicant’s identity information contained in GSH visa application is false.

39. Departmental guidelines indicate cancelling the visa based on identity grounds will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[11] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.

    [11] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 1/7/17).

40. The Tribunal is of the view that there is no excuse for the applicant providing false information about his identity in his GSH visa application. The Tribunal does however accept that there is evidence which mitigates the applicant’s conduct and supports his claim that he used his true identity when he applied for the protection visa in Australia.

41. The Tribunal finds the applicant was a [age]-year-old undocumented Hazara Shia asylum seeker living in Pakistan when the GSH visa application was lodged with the Department. The applicant claims that [Mr A] was his close friend, living in Australia, who was able to assist him and his family escape persecution in Pakistan. The Tribunal finds that the applicant’s action in resorting to use a false identity in an attempt to travel to Australia needs to be seen against the background of persecution experienced by the Hazar Shia community living in Pakistan at that time of his GSH visa application.

1. Numerous contemporaneous reports confirm Hazaras and other Shia Muslims were targeted for harm in Quetta and in other parts of Balochistan at the time. A majority of attacks were reportedly perpetrated by the Deobandi-Sunni extremist group Lashkar-e-Jhangvi (LeJ).

2. According to the Weekly Pulse, in October 2011 the LeJ “distributed an open letter in Quetta essentially declaring war on the Hazara Shia community”.[12] The Kashmir Monitor similarly reported that LeJ had circulated an open letter addressed to Hazaras in Quetta. According to the letter:

   All Shi’ites are worthy of killing. We will rid Pakistan of unclean people. Pakistan means land of the pure and the Shi’ites have no right to live in this country. We have the edict and signatures of revered scholars, declaring Shi’ites infidels. Just as our fighters have waged a successful jihad against the Shi’ite Hazaras in Afghanistan, our mission in Pakistan is the abolition of this impure sect and its followers from every city, every village and every nook and corner of Pakistan.

   Like in the past, our successful jihad against the Hazaras in Pakistan and, in particular, in Quetta, is ongoing and will continue in the future. We will make Pakistan the graveyard of the Shi’ite Hazaras and their houses will be destroyed by bombs and suicide bombers. We will only rest when we will be able to fly the flag of true Islam on this land of the pure. Jihad against the Shi’ite Hazaras has now become our duty.[13]

   [12] ‘The widening specter of sectarian militancy’ 2012, Weekly Pulse, 9 March – Accessed 26 March 2012 <Attachment>

   [13] ‘Blood flows freely in Pakistan’ 2011, The Kashmir Monitor, 6 October –

3. According to a contemporaneous report prepared by DFAT, “Hazaras in Quetta have been the subject of numerous sectarian attacks, including drive-by shootings, improvised explosive devices, suicide attacks and complex attacks. Sunni sectarian group Lashkar-e-Jhangvi (LeJ) has claimed responsibility for most of these attacks”. DFAT noted that general security conditions have deteriorated in Balochistan in recent years, compounding increases in targeted sectarian attacks against Hazaras, and rising incidents of kidnapping for ransom. While some Quetta-based Hazaras had opted to relocate to other areas of Pakistan, some Hazara community leaders “suggested to post that these journeys are not without their own security risks, and that Hazaras face similar security problems in all cities in Pakistan”.[14]

   [14] DIAC Country Information Service 2012, Country Information Report No.12/20 – Hazaras in Pakistan, (sourced from DFAT advice of 1 & 9 March 2012),

4. A July 2010 report by DFAT on Hazaras in Quetta states the following:

   The security situation in Baluchistan, particularly Quetta, is generally poor. The Hazaran community is specifically affected by sectarian killings of Shi’a by armed Sunni groups as well as targeted killings of minorities and ‘outsiders’ by ethnic Baluchi elements. According to the Human Rights Commission of Pakistan, since the year 2003 more than 260 people belonging to the Hazara community in Quetta have been killed in targeted shootings and more than 1000 people injured. There have been no convictions for any of these killings so far. Hazara community leaders have urged their people to refrain from responding violently to these attacks. Hazaras are also affected by kidnappings for ransom, which have become a lucrative way for armed militant groups in Baluchistan to raise money.[15]

   [15] Department of Foreign Affairs and Trade 2010, Conditions for Asylum Caseloads: Hazaras in Quetta,

5. The International Crisis Group reported in 2009 that some members of the Balochistan police force were implicated in sectarian attacks in Balochistan:

   Hazaras have become even more vulnerable as Sunni radical groups have penetrated the province’s police force. For example, police who belonged to the SSP were implicated in two sectarian attacks in quick succession, in March and May 2004. On 19 July 2008, nine Hazara protesters were killed in a clash with police. More than two dozen were killed between December 2008 and February 2009, with police from the Hazara community a particular target. In the absence of a robust campaign to bring the perpetrators of such violence to justice, sectarian violence in Balochistan will continue to claim lives.[16]

   [16] International Crisis Group 2009, Pakistan: The Militant Jihadi Challenge, Asia Report no.164, 13 March, pp.16-17

6. In November 2009, The News reported as follows:

   Not a single perpetrator has been convicted so far. The Hazaras say that the administration, instead of protecting their lives and property, protects the perpetrators of crimes against them. They allege that some members of the police force have an ethnic bias against them and are involved in their killings. They are also of view that some sectarian militant organisations have patrons in the intelligence agencies. The Hazara community is quite concerned over the activities of the Lashkar-e-Jhangvi and Jindullah, both comprising Baloch Sunni militants.[17]

   [17] Adil, A. 2009, ‘Confidence-building in Balochistan’ 2009, The News, 12 November

7. The Tribunal has had regard to the country information detailed above and finds that it supports the applicant’s evidence that he was prepared to use a false identity in his GSH visa application to escape Pakistan because he feared for his life at the time.

8. The Tribunal finds that when the applicant arrived in Australia as an IMA in December 2011, he was able to use his true identity when he applied for a protection visa. The Tribunal also finds that the applicant was motivated to distance himself from the failed GSH visa application where he claimed to be [Mr A]’s brother. Having regard to all of the available evidence the Tribunal is satisfied that the applicant provided correct information about his identity when he applied for a protection visa in July 2012.

9. The Tribunal accepts that the applicant has documented his efforts to obtain his genuine taskera, specifically including updates on the process provided to him by his advocate in Kabul. The applicant provided, through his migration agent, a blow-by-blow account of the documents and dates associated with his attempts to obtain and verify his taskera, in submissions made to the Department on 16 May 2019 and emails specifically in relation to the documents, sent on 12 June 2019, 21 June 2019, 10 July 2019, 17 July 2019 and 22 July 2019.

10. The Tribunal has had regard to the certified copy of the applicant’s computerised Afghan passport issued by the Afghan embassy in Canberra and finds it is a genuine document which represents the applicant’s true identity.

11. The Tribunal accepts that the second taskera has been verified in the process of production of the applicant’s passport, as outlined on the website of the Afghan embassy.

12. The Tribunal is satisfied the applicant’s identity is [the applicant], born on [Date 2], in [location], Uruzgan Afghanistan.

13. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

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

    Christopher Smolicz
    Member